EXHIBIT 10.5
PHYTERA, INC.
AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
_______________________
As of May 26, 1998
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TABLE OF CONTENTS
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SECTION 1 2
1.1 Basic Financial Information..................................................... 2
1.2 Reports to the Board of Directors............................................... 2
1.3 Inspection Rights............................................................... 2
1.4 Operating Plan.................................................................. 3
1.5 Additional Information.......................................................... 3
1.6 Shareholders' Agreement......................................................... 3
1.7 Observation Rights.............................................................. 3
1.8 Participation Right............................................................. 3
1.9 Compensation Committee.......................................................... 5
1.10 Prompt Payment of Taxes......................................................... 5
1.11 Maintenance of Properties and Leases............................................ 5
1.12 Insurance....................................................................... 6
1.13 Key Man Life Insurance.......................................................... 6
1.14 Accounts and Records............................................................ 6
1.15 Independent Accountants......................................................... 6
1.16 Compliance with Requirements of Governmental Authorities........................ 7
1.17 Maintenance of Corporate Existence.............................................. 7
1.18 Availability of Common Stock for Conversion..................................... 7
1.19 Confidential and Proprietary Information Agreements; Agreements Not to Compete.. 7
1.20 Consulting Agreements........................................................... 7
1.21 Restricted Stock Purchase Agreements............................................ 7
1.22 Amendment of Charter and By-Laws................................................ 8
1.23 Financings...................................................................... 8
1.24 Restricted Activities........................................................... 8
1.25 Litigation...................................................................... 9
1.26 Termination of Covenants........................................................ 9
SECTION 2 9
2.1 Restrictions on Transferability................................................. 9
2.2 Certain Definitions............................................................. 9
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2.3 Restrictive Legends............................................................. 10
2.4 Notice of Proposed Transfers.................................................... 11
2.5 Requested Registration.......................................................... 11
2.6 Company Registration............................................................ 13
2.7 Expenses of Registration........................................................ 15
2.8 Registration on Form S-3........................................................ 16
2.9 Registration Procedures......................................................... 16
2.10 Indemnification................................................................. 17
2.11 Information by Holder........................................................... 18
2.12 Limitation on Registration of Issues of Securities.............................. 18
2.13 Rule 144 Reporting.............................................................. 19
2.14 Transfer or Assignment of Registration Rights................................... 19
2.15 "Market Stand-off" Agreement.................................................... 20
SECTION 3............................................................................. 20
SECTION 4............................................................................. 20
4.1 Governing Law................................................................... 21
4.2 Survival........................................................................ 21
4.3 Successors and Assigns.......................................................... 21
4.4 Entire Agreement; Amendment and Waiver.......................................... 21
4.5 Notices......................................................................... 21
4.6 Delays or Omissions............................................................. 21
4.7 Rights; Separability............................................................ 22
4.8 Information Confidential........................................................ 22
4.9 Expenses........................................................................ 22
4.10 Titles.......................................................................... 22
4.11 Counterparts.................................................................... 22
EXHIBITS
A - Schedule of Investors
B - Form of Confidential and Proprietary Information Agreement (U.S.)
C - Form of Confidential and Proprietary Information Agreement (U.K.)
D - Form of Agreement Not to Compete
E - Form of Restricted Stock Purchase Agreement
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AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this "Agreement") dated
as of May 26, 1998 is among Phytera, Inc., a Delaware corporation formerly known
as Plant Pharmaceuticals, Inc. (the "Company"), and the investors listed on
Exhibit A to this Agreement (the "Investors").
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WHEREAS the Company and the Investors holding shares of the Company's Series A
Convertible Preferred Stock ("Series A Shares") entered into a Series A
Preferred Stock Purchase Agreement dated as of August 31, 1992, as amended as of
November 9, 1992, February 10, 1993 and October 22, 1993 (the "Series A
Agreement");
WHEREAS the Company and the Investors holding shares of the Company's Series B
Convertible Preferred Stock ("Series B Shares") entered into a Series B
Preferred Stock Purchase Agreement dated as of December 16, 1993 (the "Series B
Agreement");
WHEREAS the Company and the Investors holding shares of the Company's Series C
Convertible Preferred Stock ("Series C Shares") entered into a Series C
Preferred Stock Purchase Agreement dated as of January 31, 1996 and most
recently amended as of May 31, 1996 (as amended, the "Series C Agreement");
WHEREAS the Company entered into Subscription Agreements of various dates with
each of the Investors holding shares of the Company's Series D Convertible
Preferred Stock ("Series D Shares") pursuant to an Information Memorandum dated
as of October 30, 1996;
WHEREAS the Company and the Investors holding the Series A Shares, the Series
B Shares, the Series C Shares and the Series D Shares entered into an Amended
and Restated Investor Rights Agreement dated as of October 30, 1996 and most
recently amended pursuant to a Master Amendment dated as of March 10, 1997 (as
so amended, the "1996 Restated Investor Rights Agreement");
WHEREAS the Company wishes to sell shares of its Series E Convertible
Preferred Stock ("Series E Shares") to certain Investors (the "Series E
Investors") beginning May ___, 1998; and
WHEREAS it is a condition to the purchase of the Series E Shares by the Series
E Investors that certain rights and obligations arising from the terms of the
1996 Restated Investor Rights Agreement be amended and restated and that certain
similar rights and obligations be granted to the Series E Investors, in each
case as such rights and obligations are set forth herein;
NOW THEREFORE, each of the parties hereto agrees as follows:
SECTION 1
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Covenants of the Company
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The Company hereby covenants and agrees, so long as any Investor owns any
Series A Shares, Series B Shares, Series C Shares, Series D Shares, Series E
Shares or any shares of the Company's Preferred Stock issued upon conversion
thereof (the "Conversion Shares") (the Series A Shares, the Series B Shares, the
Series C Shares, the Series D Shares, the Series E Shares and the Conversion
Shares, collectively, the "Shares") or any shares of the Company's Common Stock
(the "Common Stock") issued upon conversion of the Shares, as follows:
1.1 Basic Financial Information. The Company shall furnish the following
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reports to each Investor holding Shares or any shares of the Company's Common
Stock issued upon conversion of the Shares:
(a) as soon as practicable after the end of each fiscal year of the
Company, and in any event within 180 days thereafter, a consolidated balance
sheet of the Company and its subsidiaries (if any), as at the end of such fiscal
year and consolidated statements of income and cash flows of the Company and its
subsidiaries for such year, prepared in accordance with generally accepted
accounting principles consistently applied and setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and certified by independent public accountants of recognized national
standing selected by the Company, which certification shall state that (i) such
financial reports have been prepared in accordance with generally accepted
accounting principles applied on a basis consistent with that of the preceding
fiscal year and (ii) the audit by such accountants in connection with such
financial statements has been made in accordance with generally accepted
auditing standards; and
(b) from the date the Company becomes subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act'), and in lieu of the financial information required pursuant to Section
1.1(a), copies of its annual report on Form 10-K and its quarterly reports on
Form 10-Q, respectively.
1.2 Reports to the Board of Directors. Prior to each meeting of the
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Board of Directors, the Company shall deliver to the Board of Directors a
consolidated balance sheet of the Company and its subsidiaries as at the end of
the month ended not less than 15 nor more than 31 days prior to such meeting and
consolidated statements of income and of cash flows of the Company and its
subsidiaries for each month and for the current fiscal year of the Company
through such month-end, prepared in accordance with generally accepted
accounting principles consistently applied subject to year-end audit
adjustments.
1.3 Inspection Rights. The Company shall permit representatives of each
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Investor who, together with its affiliates, holds an aggregate of 250,000 Shares
(treated as if converted and including any shares of Common Stock into which any
Shares have been converted) (such Investors are referred to herein as
"Substantial Investors"), to visit and inspect any of the properties and assets
of the Company and its subsidiaries, including their books of account and
records, to discuss their affairs, finances and accounts with the Company's or
any subsidiary's
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officers and their independent public accountants, and to consult with and
advise the management of the Company and its subsidiaries as to their affairs,
finances and accounts, all at such reasonable times and as often as any such
Substantial Investor may reasonably request. The provisions of this Section 1.3
shall not be in limitation of any rights which an Investor may have with respect
to the books of account and records of the Company and its subsidiaries or to
inspect their properties and assets or discuss their affairs, finances and
accounts, under the laws of the jurisdictions in which they are incorporated.
1.4 Operating Plan. The Company shall deliver to each Investor who, together
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with its affiliates, holds an aggregate of 90,000 Shares (treated as if
converted and including any shares of Common Stock into which any Shares have
been converted) as soon as available, and in any event within 90 days after the
commencement of the Company's fiscal year, a summary of the financial plan of
the Company as contained in its operating plan approved by the Company's Board
of Directors, with any material changes in such financial plan to be furnished
as promptly as practicable after such changes have been approved by the Board of
Directors.
1.5 Additional Information. Until the earlier of (a) the date on which the
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Company is subject to the reporting requirements of Section 13(a) or Section
15(d) of the Exchange Act or (b) the date on which quotations for the Common
Stock are reported by the automated quotations system operated by the National
Association of Securities Dealers, Inc. or by an equivalent quotations system,
the Company shall furnish with reasonable promptness such information and data
with respect to the Company and its subsidiaries as any Investor may from time
to time reasonably request.
1.6 Shareholders' Agreement. The Company agrees not to take any action or
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fail to object to any action which would be inconsistent with the obligations of
the parties to the Amended and Restated Shareholders Agreement of even date
herewith (the "Shareholders Agreement").
1.7 Observation Rights. The Company shall furnish to one representative
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designated by BancBoston Ventures Inc. (the "BancBoston Representative") timely
notice of, and permit the BancBoston Representative to attend as a nonvoting
observer, all meetings of the Board of Directors of the Company and shall
deliver to the BancBoston Representative, as and when delivered to the Company's
directors, copies of all notices, minutes, consents, corporate reports and any
other materials that the Company provides to its directors.
1.8 Participation Right. The Company hereby grants to each Investor the
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right (the "Participation Right") to purchase, on a pro-rata basis, all (or any
part) of the New Securities (as defined below) which the Company may, from time
to time, propose to issue and sell. An Investor's pro-rata share, for purposes
of the Participation Right, is the ratio of the number of Shares purchased by
such Investor to the total number of Shares. Each Investor shall have a right
of over-allotment such that if any Investor fails to exercise its right
hereunder to purchase its pro-rata portion of New Securities, the other
Investors may elect to purchase the non-purchasing Investor's portion on a pro-
rata basis within five days from the date such non-purchasing Investor fails to
exercise its right hereunder to purchase its pro-rata share of New Securities.
The Participation Right shall be subject to the following provisions:
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(a) "New Securities" shall mean any capital stock (including the
Common Stock, the Shares or any other class or series of preferred stock) of the
Company whether now authorized or not, and warrants, options or other rights to
purchase capital stock, and securities of any type whatsoever that are, or may
become, convertible into capital stock; provided that the term "New Securities"
does not include (i) securities issued upon conversion of the Shares; (ii)
Common Stock offered in an underwritten public offering on a firm commitment
basis pursuant to an effective registration statement filed under the Securities
Act of 1933 (the "Act") covering the offer and sale of the Common Stock at a per
share offering price to the public of at least $9.65 (as adjusted for stock
splits, stock dividends, distributions or subdivisions), resulting in gross
proceeds to the Company (without deduction of commissions) of not less than
$10,000,000 (a "Qualified Public Offering"); (iii) securities issued to any
entity, which is not a financial institution and whose principal business is not
the making of equity or similar investments, in a corporate partnering
arrangement approved by the Board of Directors, including the CBI Director, the
Concord Director, the DDFC Director and the Preferred Director (all as defined
in the Shareholders Agreement) (each individually an "Investor Representative"
and collectively the "Investor Representatives"); (iv) securities issued
pursuant to the acquisition of another corporation by the Company by merger,
purchase of shares, purchase of substantially all the assets or other
reorganization whereby the Company owns not less than fifty-one percent (51%) of
the voting power of such corporation (including, but not limited, to the merger
of Neptune Pharmaceuticals, Inc. with and into the Company); (v) any borrowings,
direct or indirect, from financial institutions or other persons by the Company,
whether or not presently authorized, including any type of loan or payment
evidenced by any type of debt instrument, provided such borrowings do not have
any equity features, including warrants, options or other rights to purchase
capital stock, and are not convertible into capital stock of the Company; (vi)
options, warrants, rights or other securities issued to employees, consultants
or directors of the Company pursuant to any stock option plan or stock purchase
or stock bonus arrangement approved by the Board of Directors or by the
Compensation Committee in accordance with Section 1.9, or securities issued upon
the exercise of conversion thereof; or (vii) options or warrants to purchase the
Company's capital stock outstanding as of the date of the final closing of the
offering of the Series E Shares.
(b) In the event the Company proposes to undertake an issuance of New
Securities, it shall give each Investor written notice of its intention,
describing the type of New Securities, the price and the general terms upon
which the Company proposes to issue the same. Each Investor shall have 30 days
from the date of receipt of any such notice to agree to purchase the Investor'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.
(c) In the event the Investors fail to exercise the Participation
Right within said 30-day period and after the expiration of the five-day period
for the exercise of the over-allotment provisions of this Section 1.8, the
Company shall have 120 days thereafter to sell or enter into an agreement
(pursuant to which the sale of New Securities covered thereby shall be closed,
if at all, within 120 days from the date of any such agreement) to sell those
New Securities as to which the Investors' Participation Right was not exercised
at a price and upon general terms no more favorable to the purchasers thereof
than specified in the Company's notice
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to each Investor pursuant to Section 1.8(b) above. In the event the Company has
not sold or entered into an agreement to sell the New Securities within the 120-
day period (or sold and issued New Securities in accordance with the foregoing
within 120 days from the date of any such agreement), the Company shall not
thereafter issue or sell any New Securities, without first offering such
securities to the Investors in the manner provided above.
(d) The Participation Right granted hereunder (i) is assignable by
each Investor to any wholly-owned subsidiary or parent of, or to any corporation
or entity which is, within the meaning of the Act, controlling, controlled by or
under common control with, any such Investor, (ii) is assignable among any of
the Investors, (iii) is assignable to any successor in interest of an Investor
upon the sale of all or substantially all of the assets or upon the merger,
consolidation or dissolution of any corporate Investor, (iv) shall pass to the
receiving partner upon a distribution of Shares (or shares of Common Stock
issued upon conversion of the Shares) by a partnership Investor, and (v) upon
the death of an Investor, such right shall pass to the beneficiaries under the
deceased Investor's last will and testament or to the distributees of the
deceased Investor's estate.
1.9 Compensation Committee. The Company shall cause to be established a
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Compensation Committee of the Board of Directors, a majority of the members of
which Committee shall be the Investor Representatives or other non-employee
members of the Board of Directors as the Investor Representatives may designate.
No compensation or other remuneration at an annualized rate in excess of
$100,000 shall be paid to, nor shall any capital stock of the Company be issued
to or options to purchase any of its capital stock granted to, any director,
officer or employee of the Company or any of its subsidiaries without the
approval of the Compensation Committee. No compensation or other remuneration
at an annualized rate in excess of $40,000 shall be paid to, nor shall any
capital stock of the Company be issued to or options to purchase any of its
capital stock be granted to, any consultant to the Company or any of its
subsidiaries, without the approval of the Compensation Committee.
1.10 Prompt Payment of Taxes. The Company shall promptly pay and
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discharge, or cause to be paid and discharged, when due and payable, all lawful
taxes, assessments and governmental charges or levies imposed upon the income,
profits, property or business of the Company or any subsidiary; provided,
however, that any such tax, assessment, charge or levy need not be paid if the
validity thereof shall be contested in good faith by appropriate proceedings by
the Company and if the Company shall have set aside on its books of accounts
adequate reserves with respect thereto, and provided, further, that the Company
shall pay all such taxes, assessments, charges or levies forthwith upon the
commencement of proceedings to foreclose any lien which may have attached as
security therefor. The Company shall promptly pay or cause to be paid when due,
or in conformance with customary trade terms, all other indebtedness incident to
the operations of the Company and any of its subsidiaries.
1.11 Maintenance of Properties and Leases. The Company shall keep its
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properties and those of its subsidiaries in good repair, working order and
condition, reasonable wear and tear excepted, and make all proper repairs,
renewals, replacements, additions and improvements thereto. The Company and its
subsidiaries shall at all times comply with each provision of all leases to
which any of them is a party or under which any of them occupies property if the
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breach of such provision might have a material adverse effect on the operations
or the condition, financial or otherwise, of the Company.
1.12 Insurance. The Company shall keep its assets and those of its
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subsidiaries which are of an insurable character insured by financially sound
and reputable insurers against loss or damage by fire, explosion and other risks
customarily insured against by companies in the Company's business. The
Company and its subsidiaries shall maintain, with financially sound and
reputable insurers, insurance against other hazards and risks and liability to
persons and property to the extent and in the manner customary for companies in
similar businesses and similarly situated.
1.13 Key Man Life Insurance. The Company shall maintain key man term life
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insurance with a financially sound and reputable insurer on the life of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ in the amount of at least $1,000,000, with the Company named
beneficiary thereof, so long as ▇▇. ▇▇▇▇▇▇▇▇ remains an employee of the Company.
In addition, the Company shall maintain term life insurance on such other key
employees and in such amounts as the Investor Representatives on the Board of
Directors deem appropriate. The Company will not cause or permit any assignment
of the proceeds of the life insurance policies specified in the preceding
sentences, and will not borrow against any of such policies. The Company will
add the Presidents of Commonwealth BioVentures Inc., ▇▇▇▇▇▇, Read Inc. and
Danish Development Finance Company as notice parties to such policies and will
request that the issuer(s) of such policies provide such designees with 30 days
notice before any of such policies is terminated (for failure to pay premiums or
otherwise) or assigned, or before any change is made in the designation of the
beneficiary thereof. Such policies shall not be cancelable by the Company
except upon 60 days prior written notice to each of the Investor Representatives
and upon the consent a majority of the Investor Representatives.
1.14 Accounts and Records. The Company and its subsidiaries shall keep true
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books of accounts and records in which full, true and correct entries will be
made of all dealings or transactions in relation to their business and affairs
in accordance with generally accepted accounting principles applied on a
consistent basis.
1.15 Independent Accountants. The Company shall retain a firm of independent
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public accountants of recognized national standing who shall certify the
Company's and its subsidiaries financial statements at the end of each fiscal
year. In the event the services of the firm of independent public accountants,
so selected, or any firm of independent public accountants hereafter employed by
the Company are terminated, the Company shall promptly thereafter notify the
Investors and shall request the firm of independent public accountants whose
services are terminated to deliver to the Investors a letter of such firm
setting forth the reasons for the termination of their services. In the event
of such termination, the Company shall promptly thereafter engage another such
firm of independent public accountants of recognized national standing. In its
notice to the Investors, the Company shall state whether the change of
accountants was recommended or approved by the Board of Directors or any
committee thereof.
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1.16 Compliance with Requirements of Governmental Authorities. The Company
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and its subsidiaries shall duly observe and conform to all valid requirements of
governmental authorities relating to the conduct of their businesses or to their
properties or assets.
1.17 Maintenance of Corporate Existence. The Company shall maintain in full
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force and effect (and cause each subsidiary to preserve and maintain, except
that any subsidiary may be merged into the Company or another subsidiary
thereof) its corporate existence, rights and franchises and all licenses and
other rights to use patents, processes, licenses, trademarks, trade names or
copyrights owned or possessed by it or any subsidiary and deemed by the Company
to be necessary to the conduct of their businesses.
1.18 Availability of Common Stock for Conversion. The Company shall, from
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time to time and in accordance with the laws of the State of Delaware, increase
the authorized amount of Common Stock if at any time the number of shares of
Common Stock remaining unissued and available for issuance shall be insufficient
to permit conversion of all the then outstanding Shares.
1.19 Confidential and Proprietary Information Agreements; Agreements Not to
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Compete. The Company and each person now or hereafter employed by it or any
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subsidiary on a full-time or part-time basis with access to confidential
information shall enter into a Confidential and Proprietary Information
Agreement in substantially the form attached as Exhibit B for persons now or
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hereafter employed by the Company or any U.S. Subsidiary and in substantially
the Form attached as Exhibit C for persons now or hereafter employed by any U.K.
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Subsidiary of the Company. The Company shall enter into an Agreement Not to
Compete in substantially the form attached as Exhibit D with all present and
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future "key employees" of the Company as determined by the Board of Directors.
1.20 Consulting Agreements. The Company and any subsidiaries and all of
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their present and future consultants shall enter into consulting agreements
which will, at a minimum, contain covenants regarding confidential and
proprietary information similar to those contained in Exhibit B or Exhibit C, as
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applicable.
1.21 Restricted Stock Purchase Agreements. Except for grants of options to
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purchase Common Stock granted by the Compensation Committee pursuant to the
Company's 1992 Stock Option Plan or any other plan adopted by the Board of
Directors, and the issuance of such Common Stock upon the exercise thereof, the
Company shall not issue any of its capital stock, or grant an option to purchase
any of its capital stock, to any employee, officer or director of, or any
consultant to, the Company or a subsidiary unless (i) the Company requires as a
condition to the issuance of stock pursuant thereto the execution of an
agreement embodying terms substantially similar to the terms embodied in the
Restricted Stock Purchase Agreement attached as Exhibit E, and (ii) the
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provisions of such agreement governing the vesting of shares thereunder shall
have been approved by the Compensation Committee of the Board of Directors in
accordance with Section 1.9. All such issuances and grants shall be subject to
approval by the Compensation Committee of the Board of Directors as provided in
Section 1.9.
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1.22 Amendment of Charter and By-Laws. The Company's Restated Certificate of
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Incorporation and By-Laws shall not be amended in any manner unless prior
thereto any such amendment shall have been approved by a majority of the
Investor Representatives.
1.23 Financings. The Company shall promptly, fully and in detail, inform the
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Board of Directors in advance of any material commitments or contracts relating
to financing of any nature for the Company or any pledge of corporate assets.
1.24 Restricted Activities.
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(a) Without the approval of a majority of the members of the Board of
Directors of the Company, neither the Company nor its subsidiaries shall,
together or alone:
(i) borrow, guarantee or otherwise incur any indebtedness or
commit itself to pay in excess of $100,000 in any transaction or series of
similar transactions;
(ii) lease, purchase or otherwise acquire, or sell or otherwise
dispose of, any property or services having a value in excess of $100,000 in
any transaction or series of similar transactions, other than dispositions of
equipment in the ordinary course of business, or license, sell or otherwise
dispose of any United States Letters Patents, foreign patents, patent rights,
invention disclosures, know-how, trademarks, trade names, trade name rights,
copyrights or other proprietary information;
(iii) collaterally assign, mortgage, pledge or otherwise encumber
any assets having a value of more than $100,000 or any United States Letters
Patents, foreign patents, patent rights, invention disclosures, know-how,
trademarks, trade names, trade name rights, copyrights or other proprietary
information;
(iv) disclose any proprietary information to any person other
than as shall be necessary to the conduct of the ordinary business of the
Company or its subsidiaries, unless the Company has the written agreement of
the party to whom the disclosure is made to retain the confidentiality of the
Company's proprietary information and not to disclose it to others;
(v) except as otherwise approved by the Compensation Committee
in accordance with Section 1.9, enter into any employment, consulting or
similar agreement obligating the Company or any subsidiary to pay in excess of
$40,000 per annum which the Company or its subsidiaries shall be unable to
cancel, without penalty or other cost, upon notice of ninety (90) dates or
less, or any collective bargaining agreement;
(vi) make any loan or extend any credit to, guaranty any
indebtedness of, pledge or hypothecate any asset to secure the indebtedness
of, or forgive or otherwise change the terms of any indebtedness of any
director, officer or holder of securities of the Company or its subsidiaries;
or
(vii) make any loan, extend any credit or guaranty any
indebtedness, or forgive or otherwise change the terms of any indebtedness, in
excess of $25,000.
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(b) As long as 50,000 Shares remain outstanding, without the approval
of a majority of the Investor Representatives, neither the Company nor its
subsidiaries shall, together or alone:
(i) relocate a material part of its business operations;
(ii) 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;
(iii) consolidate or merge with or into another corporation or
convey all or substantially all of the assets of the Company or any of its
subsidiaries to another corporation; or
(iv) authorize or issue any debt or equity securities (other than
securities issued pursuant to the Company's 1992 Stock Option Plan or in
accordance with Section 1.21).
1.25 Litigation. The Company, promptly upon becoming aware thereof, shall
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notify each Substantial Investor in writing of any claim or litigation in which
it is involved and of any proceedings before any governmental or regulatory
authority which may materially and adversely affect the Company, any of its
technology or any of its key employees.
1.26 Termination of Covenants. The covenants set forth in this Section 1
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shall expire upon the earlier of (i) the closing of a Qualified Public Offering
or (ii) the conversion of the Shares in accordance with Section 3.3(b)(ii) of
the Company's Restated Certificate of Incorporation.
SECTION 2
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Restrictions on Transferability of
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Securities; Compliance with Securities Act
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2.1 Restrictions on Transferability. The Shares shall not be transferable,
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except upon the conditions specified in this Section 2, which conditions are
intended to ensure compliance with the provisions of the Act or, in the case of
Section 2.15, to assist in an orderly distribution. Each Investor will cause
any proposed transferee of Shares held by that Investor to agree to take and
hold those securities subject to the provisions and upon the conditions
specified in this Section 2.
2.2 Certain Definitions. As used in this Section 2, the following terms
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shall have the following meanings:
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Act.
"Holder" shall mean any holder of outstanding shares of Registrable
Securities.
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"Initiating Holders" shall mean any Investors, or their assignees under
Section 2.14, who in the aggregate are Holders of forty percent (40%) or more of
the Registrable Securities, the Shares or any combination thereof.
"Other Shareholders" shall mean any holders of securities of the Company who
are entitled, by agreement with the Company, to have securities included in a
requested registration of securities pursuant to Section 2.5 or 2.6.
The terms "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Act and applicable rules and regulations thereunder and the
declaration of ordering of the effectiveness of such registration statement.
"Registrable Securities" shall mean (i) shares of Common Stock issued or
issuable pursuant to the conversion of the Shares and (ii) any Common Stock
issued in respect of, in exchange for or in replacement of the Shares or other
securities issued pursuant to the conversion of the Shares upon any stock split,
dividend, recapitalization, merger, consolidation or similar event.
"Registration Expenses" shall mean all expenses incurred in compliance with
Sections 2.5, 2.6 and 2.8, including without limitation all registration and
filing fees, printing expenses, fees and disbursements of counsel for the
Company, blue sky fees and expenses, fees and disbursements of a single counsel
for all the selling Holders and other security holders, and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company, which shall be paid in any
event by the Company).
"Restricted Securities" shall mean the securities of the Company required to
bear or bearing the legend set forth in Section 2.3.
2.3 Restrictive Legends. Each certificate representing the Shares or the
-------------------
Registrable Securities shall (unless otherwise permitted or unless the
securities evidenced by such certificate shall have been registered under the
Act) be stamped or otherwise imprinted with a legend in substantially the
following form (in addition to any other legend required under applicable state
or federal securities laws):
THE SHARES REPRESENTED HEREBY HAVE BEEN ACQUIRED BY THE HOLDER NAMED HEREON
FOR HIS OWN ACCOUNT FOR INVESTMENT WITH NO INTENTION OF MAKING OR CAUSING TO
BE MADE ANY PUBLIC DISTRIBUTION OF ALL OR ANY PORTION THEREOF; AND SUCH
SECURITIES MAY NOT BE PLEDGED, SOLD OR IN ANY OTHER WAY TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS IN EFFECT AT THAT TIME, OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT.
Each certificate representing Series D Shares shall also bear the following
legend:
10
THE SHARES HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED, THE "SECURITIES ACT"), AND MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (i) AS
PART OF THEIR DISTRIBUTION AT ANY TIME OR (ii) OTHERWISE UNTIL THE FIRST
ANNIVERSARY AFTER THE DATE OF ISSUANCE, EXCEPT IN EITHER CASE IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT. TERMS USED ABOVE HAVE THE MEANING
GIVEN TO THEM BY REGULATION S.
Upon request of a holder of such a certificate, the Company shall remove the
foregoing legends from the certificate or issue to such holder a new certificate
therefor free of any transfer legend, if, with such request, the Company shall
have received either the opinion referred to in clause (a) of Section 2.4 or the
"no action" letter referred to in clause (b) of Section 2.4 to the effect that
any transfer by such holder of the securities evidenced by such certificate will
not violate the Act. Upon such removal, such securities shall no longer be
Restricted Securities.
2.4 Notice of Proposed Transfers. The holder of each certificate
----------------------------
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 2.4. Prior to any proposed
transfer of any Restricted Securities (other than under circumstances described
in Sections 2.5, 2.6 and 2.8), the holder thereof shall give written notice to
the Company of such holder's intention to effect such transfer. Each such
notice shall describe the manner and circumstances of the proposed transfer in
sufficient detail, and shall be accompanied (except in transactions in
compliance with Rule 144 under the Act) by either (a) a written opinion of legal
counsel who shall be reasonably satisfactory to the Company, addressed to the
Company and reasonably satisfactory in form and substance to the Company's
counsel, to the effect that the proposed transfer of the Restricted Securities
may be effected without registration under the Act, or (b) a "no-action" letter
from the Commission to the effect that the distribution of such securities
without registration will not result in a recommendation by the staff of the
Commission that action be taken with respect thereto, whereupon the holder of
such Restricted Securities shall be entitled to transfer such Restricted
Securities in accordance with the terms of the notice delivered by the holder to
the Company. Each certificate evidencing the Restricted Securities transferred
as provided above shall bear the appropriate restrictive legend set forth in
Section 2.3, unless such legend may be removed in accordance with Section 2.3.
2.5 Requested Registration.
----------------------
(a) Request for Registration. If the Company shall receive from
------------------------
Initiating Holders, at any time or times after the earlier of (i) January 1,
2000 or (ii) the date six months after the closing of the Company's first
registered offering of its securities to the public, a written request that the
Company effect any registration with respect to all or a part of the Registrable
Securities, the Company will:
(i) promptly give written notice of the proposed registration to
all other Holders at least 45 days prior to the date the Company anticipates
filing the
11
registration statement covering the Registrable Securities so requested to be
registered; and
(ii) as soon as practicable, use its diligent best efforts to effect
such registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Act) as may be so requested and
which would permit or facilitate the sale and distribution of all or such
portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder
or Holders joining in such request as are specified in a written request given
within 30 days after receipt of such written notice from the Company; provided
that the Company shall not be obligated to effect, or to take any action to
effect, any such registration pursuant to this Section 2.5:
(A) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting
such registration, qualification or compliance, unless the Company is
already subject to service in such jurisdiction and except as may be
required by the Act or applicable rules or regulations thereunder; or
(B) after the Company has effected three such registrations
pursuant to this Section 2.5(a) and such registrations have been declared
or ordered effective by the Commission.
Subject to the foregoing, the Company shall file a registration statement
covering the Registrable Securities so requested to be registered as soon as
practicable after receipt of the request or requests of the Initiating Holders.
The registration statement filed pursuant to the request of the Initiating
Holders may, subject to the provisions of Section 2.5(b), include securities of
the Company for its own account, or other securities of the Company which are
held by officers or directors of the Company or which are held by persons who,
by virtue of agreements with the Company, are entitled to securities in any such
registration.
(b) Underwriting. If the Initiating Holders intend to distribute the
------------
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 2.5 and the Company shall include such information in the written
notice referred to in Section 2.5(a)(i). The right of any Holder to
registration pursuant to this Section 2.5 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder with respect to
such participation and inclusion) to the extent provided in this Section. A
Holder may elect to include in such underwriting all or a part of the
Registrable Securities it holds.
12
If officers or directors of the Company holding other securities of the
Company shall request inclusion in any registration pursuant to this Section
2.5, or if Other Shareholders request such inclusion, the Initiating Holders
shall, on behalf of all Holders, offer to include the securities of such
officers, directors or Other Shareholders in the underwriting and may further
condition such offer on the acceptance of the applicable provisions of this
Section 2 by such officers, directors and Other Shareholders. The Company shall
(together with all Holders, officers, directors and Other Shareholders proposing
to distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders and reasonably acceptable to the Company. If
the representative of the underwriter advises the Initiating Holders in writing
that marketing factors require a limitation on the number of shares to be
underwritten, then the securities of the Company (other than Registrable
Securities) held by officers or directors of the Company shall be excluded from
such registration to the extent so required by such limitation, and if a
limitation of the number of shares is still required, the Initiating Holders
shall so advise all Holders of Registrable Securities and Other Shareholders
whose securities would otherwise be underwritten pursuant to the request
described in this Section, and the number of shares of Registrable Securities
and other securities that may be included in the registration and underwriting
shall be allocated among all such Holders and Other Shareholders in proportion,
as nearly as practicable, to the respective amounts of Registrable Securities
and other securities which they had requested to be included in such
registration at the time of filing the registration statement, except that
Registrable Securities shall be the last to be limited. No Registrable
Securities or any other securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
If any Holder of Registrable Securities, officer, director or Other
Shareholder who has requested inclusion in such registration as provided above
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the underwriter and the Initiating
Holders. The securities held by such person shall then be withdrawn from
registration; provided, that, if by the withdrawal of such securities a greater
number of Registrable Securities held by other participating Holders may be
included in such registration (up to the maximum of any limitation imposed by
the underwriter), then the Company shall allocate such greater number of
Registrable Securities to such Holders in proportion, as nearly as practicable,
to the respective amount of Registrable Securities held by such participating
Holders. If the underwriter has not limited the number of Registrable
Securities or other securities to be underwritten, the Company may include its
securities for its own account in such registration if the underwriter so agrees
and if the number of Registrable Securities and other securities which would
otherwise have been included in such registration and underwriting has not
thereby been limited.
(c) Availability of Rule 144. The Company shall not be obligated to
------------------------
effect a registration pursuant to this Section 2.5 for any Holder who could at
the time of such request for registration then sell all of the Registrable
Securities which such Holder then holds at one time pursuant to Rule 144 under
the Act without regard to or violation of the volume limitations imposed by Rule
144.
2.6 Company Registration.
--------------------
13
(a) Notice of Registration. If, at any time or from time to time, the
----------------------
Company shall determine to register any of its securities either for its own
account or the account of a security holder or holders exercising their
respective demand registration rights, other than a registration relating solely
to a Commission Rule 145 transaction, or a registration on any registration form
which does not permit secondary sales or does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of Registrable Securities, the Company will:
(i) promptly give to each Holder written notice thereof which shall
include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable blue sky or other
state securities laws; and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written
request or requests, made by any Holder within 30 days after receipt of
the written notice from the Company described in clause (i) above, except
as set forth in Section 2.6(b). Such written request may specify that all
or a part of a Holder's Registrable Securities be included in the
Company's registration.
(b) Underwriting. If the registration of which the Company gives notice
------------
is for a registered public offering involving an underwriting, the Company shall
so advise the Holders as a part of the written notice given pursuant to Section
2.6(a)(i). In such event the right of any Holder to registration pursuant to
this Section 2.6 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 in this Section. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and the Other Shareholders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or representative of the underwriters selected for such underwriting
by the Company. If the representative of the underwriter determines that
marketing factors require a limitation on the number of shares to be
underwritten, and (i) if such registration is the first registered offering of
the Company's securities to the public, then the underwriter may (subject to the
allocation priority set forth below) exclude from such registration and
underwriting some or all of the Registrable Securities which would otherwise be
underwritten pursuant to the notice described in this Section, and (ii) if such
registration is other than the first registered offering of the sale of the
Company's securities to the public, then the underwriter may limit the number of
Registrable Securities to be included in the registration and underwriting to
not less than fifty percent (50%) of the securities included therein (based on
aggregate market values), subject to the allocation priority set forth below;
provided, that the underwriter may further limit the number of Registrable
Securities as provided by Section 2.6(c). The Company shall advise all holders
of securities requesting registration promptly after such determination by the
underwriter, and the number of shares of securities that are entitled to be
included in the registration and underwriting shall be allocated in the
following manner: The securities of the Company (other than Registrable
Securities) held by officers and directors of the Company shall be excluded from
such registration and underwriting to the extent required by
14
such limitation, and if a limitation of the number of shares is still required,
the number of shares that may be included in the registration and underwriting
shall be allocated among all such Holders and Other Shareholders in proportion,
as nearly as practicable, to the respective amounts of Registrable Securities
and other securities which they had requested to be included in such
registration at the time of filing the registration statement, except that
Registrable Securities shall be the last to be limited. If any Holder of
Registrable Securities or any officer, director or Other Shareholder disapproves
of the terms of any such underwriting, he may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable Securities or
other securities excluded or withdrawn from such underwriting shall be withdrawn
from such registration; provided, that, if by the withdrawal of such securities
a greater number of Registrable Securities held by other participating Holders
may be included in such registration (up to the maximum of any limitation
imposed by the underwriter), then the Company shall allocate such greater number
of Registrable Securities to such Holders in proportion, as nearly as
practicable, to the respective amount of Registrable Securities held by such
participating Holders.
(c) Additional Limitation of Registrable Securities. If the
-----------------------------------------------
registration is other than the first registered offering of the sale of the
Company's securities to the public, and the representative of the underwriter
determines that marketing factors require a limitation on the number of
Registrable Securities to be included in the registration and underwriting to
less than fifty percent (50%) of the securities included therein (based on
aggregate market values), then the representative of the underwriter shall give
written notice to all Holders. Such notice shall set forth the marketing factors
so requiring such additional limitation, and the percentage of the registration
and underwriting which the underwriter proposes to consist of Registrable
Securities. Any Holder voluntarily withdrawing from such registration shall be
entitled to one additional request for registration pursuant to Section 2.5
(notwithstanding the provisions of Section 2.5(a)(ii)(B)), in which other
Holders shall also have the right to participate in accordance with such
section. Such right shall be exercisable at any time after nine months from the
effective date of the registration from which such Holder voluntarily withdrew.
If more than one Holder so withdraws, the right to one additional request for
registration shall be held by all such Holders. If the Registrable Securities so
withdrawn exceed the number of shares requested by the underwriter to be
withdrawn, then the number of shares to be excluded shall be allocated pro rata
among all Holders voluntarily withdrawing.
2.7 Expenses of Registration. All Registration Expenses incurred in
------------------------
connection with any registration, qualification or compliance pursuant to this
Section 2 shall be borne by the Company, and all selling expenses, including
underwriting discounts, selling commissions and the fees and expenses of the
selling Holder's own counsel (other than one counsel selected to represent all
selling Holders) shall be borne by the holders of the securities so registered
pro rata on the basis of the number of their shares so registered; provided,
however, that the Company shall not be required to pay any Registration Expenses
if, as a result of the withdrawal of a request for registration by Initiating
Holders (unless such withdrawal is due to material adverse information which was
not previously known to the Holders), the registration statement does not become
effective, in which case the Holders and Other Shareholders requesting
registration shall bear such Registration Expenses pro-rata on the basis of the
number of their shares so included in
15
the registration request, and provided, further, that such registration shall
not be counted as a requested registration pursuant to Section 2.5(a) (ii) (B).
2.8 Registration on Form S-3. The Company shall use its best efforts to
------------------------
qualify for registration of its securities on Form S-3 or any comparable or
successor form; the Company shall register (whether or not required by law to do
so) the Common Stock under the Exchange Act in accordance with the provisions
thereof, following the effective date of the first registration of any
securities of the Company on Form S-1 or Form 1-SB or any comparable or
successor form or forms. After the Company has qualified for the use of Form S-
3, in addition to the rights contained in the foregoing provisions of this
Section 2, the Holders of Registrable Securities shall have the right to request
registration on Form S-3. Such requests shall be in writing and the Company
shall state the number of shares of Registrable Securities to be disposed of and
the intended methods of disposition of such shares by such Holder or Holders.
The Company shall promptly give notice of such proposed registration to all
Holders of Registrable Securities, and the Company shall, as expeditiously as
possible, use its best efforts to effect the registration on Form S-3 of the
Registrable Securities which the Company has been requested to register (a) in
each request and (b) in any response given within thirty (30) days to a notice
from the Company pursuant to this Section 2.8. The Company shall not be
obligated to effect a registration pursuant to this Section 2.8 for any Holder
who could at the time of such request for registration then sell all of the
Registrable Securities which such Holder then holds at one time pursuant to Rule
144 under the Act without regard to or violation of the volume limitations
imposed by Rule 144. The Company shall not be required to effect more than two
registrations pursuant to this Section 2.8 in any twelve-month period.
2.9 Registration Procedures. In the case of each registration effected by
-----------------------
the Company pursuant to this Section 2, the Company will keep each Holder
advised in writing as to the initiation of each registration and as to the
completion thereof. At its expense, the Company will:
(a) keep such registration effective for a period of six months or
until all of the securities included in such registration shall have been sold,
whichever shall be the earlier to occur; provided, however, that (i) such six-
month period shall be extended for a period of time equal to the period the
Holder refrains from selling any securities included in such registration in
accordance with the provisions of Section 2.15, and (ii) in the case of any
registration of Registrable Securities on Form S-3 which are intended to be
offered on a continuous or delayed basis, such six-month period shall be
extended, if necessary, to keep the registration statement effective until all
such Registrable Securities are sold; provided that Rule 415, or any successor
rule under the Act, permits an offering on a continuous or delayed basis, and
provided further that applicable rules under the Act governing the obligation to
file a post-effective amendment permit, in lieu of filing a post-effective
amendment which (A) includes any prospectus required by Section 10(a)(3) of the
Act or (B) reflects facts or events representing a material or fundamental
change in the information set forth in the registration statement, the
incorporation by reference of information required to be included in (A) and (B)
above to be contained in periodic reports filed pursuant to Section 13 or 15(d)
of the Exchange Act in the registration statement;
16
(b) furnish such number of prospectuses and other documents incident
thereto as a Holder from time to time may reasonably request; and
(c) in connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 2.5, the Company will enter
into an underwriting agreement reasonably necessary to effect the offer and sale
of the Registrable Securities requested to be included in such registration;
provided, however, that such underwriting agreement contains customary
underwriting provisions and provided further that if the underwriter so requests
the underwriting agreement will contain customary contribution provisions.
2.10 Indemnification.
---------------
(a) The Company will, and does hereby undertake to, indemnify and
hold harmless each Holder, each of its officers, directors and partners, and
each person who controls such Holder, on whose behalf registration,
qualification or compliance has been effected pursuant to Section 2, and each
underwriter, if any, and each person who controls any underwriter (within the
meaning of the Act and the rules and regulations thereunder) from and against
all claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the Act or any rule
or regulation thereunder applicable to the Company and relating to action or
inaction required of the Company in connection with any such registration,
qualification or compliance, and will reimburse each such Holder, each of its
officers, directors and partners, and each person who controls such Holder, each
such underwriter and each person who controls any such underwriter, for any
legal and other expenses reasonably incurred in connection with investigating
and defending any such claim, loss, damage, liability or action; provided that
the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises from or is based on any untrue
statement or omission or alleged untrue statement or omission based upon written
information furnished to the Company by such Holder or underwriter and stated to
be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by it are
included in the securities as to which such registration, qualification or
compliance is being effected, and each Other Shareholder who has the right to
register its securities pursuant to Section 2 will be required by the Company
to, indemnify and hold harmless the Company, each of its directors and officers
and each underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls the Company or such underwriter
(within the meaning of the Act and the rules and regulations thereunder), each
other such Holder and Other Shareholder and each of their officers, directors
and partners, and each person who controls such Holder or Other Shareholder,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be
17
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company and such Holders, Other Shareholders, directors,
officers, partners, persons, underwriters or controlling persons for any legal
and other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other registration document in
reliance upon and in conformity with written information furnished to the
Company by such Holder or Other Shareholder and stated to be specifically for
use therein; provided, however, that the obligations of such Holders and Other
Shareholders hereunder shall be limited to an amount equal to the proceeds to
each such Holder or Other Shareholder of securities sold as contemplated in this
Section.
(c) Each party entitled to indemnification under this Section 2.10
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided in this Section shall not relieve
the Indemnifying Party of its obligations under Section 2. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party (which consent shall not unreasonably be
withheld), consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
2.11 Information by Holder. Each Holder of Registrable Securities, and
---------------------
each Other Shareholder holding securities included in any registration, shall
furnish to the Company such information regarding such Holder or Other
Shareholder and the distribution proposed by such Holder or Other Shareholder as
the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in Section 2.
2.12 Limitation on Registration of Issues of Securities. From and after
--------------------------------------------------
the date of this Agreement, the Company shall not enter into any agreement with
any holder or prospective holder of any securities of the Company giving such
holder or prospective holder the right to require the Company to initiate any
registration of any securities of the Company, provided that this Section 2.12
shall not limit the right of the Company to enter any agreements with any holder
or prospective holder of any securities of the Company giving such holder or
prospective holder the right to require the Company, upon any registration of
any of its securities, to include, among the securities which the Company is
then registering, securities owned by such holder if
18
such agreement includes 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 pursuant to this
Agreement. Any right given by the Company to any holder or prospective holder of
the Company's securities in connection with the registration of securities shall
be conditioned such that it shall be consistent with the provisions of Section 2
and with the rights of the Holders provided in this Agreement.
2.13 Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may permit the sale of the
Restricted Securities to the public without registration, the Company agrees to:
(a) make and keep public information available as those terms are
understood and defined in Rule 144 under the Act (and any successor rule to Rule
144) at all times from and after 90 days following the effective date of the
first registration statement under the Act filed by the Company for an offering
of its securities to the public;
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Act and the Exchange Act at any time
after it has become subject to such reporting requirements;
(c) so long as an Investor owns any Restricted Securities, furnish to
the Investor as promptly as possible upon its request a written statement by the
Company confirming its compliance with the reporting requirements of Rule 144
(at any time from and after 90 days following the effective date of the first
registration statement filed by the Company for an offering of its securities to
the public), and of the Act and the Exchange Act (at any time after it has
become subject to such reporting requirements), a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents so
filed as an Investor may reasonably request in availing itself of any rule or
regulation of the Commission allowing an Investor to sell any such securities
without registration; and
(d) register its Common Stock under Section 12(g) of the Exchange
Act, as amended, not later than ninety (90) days after the close of the
Company's first fiscal year following the effective date of the first
registration statement covering shares of Common Stock filed by the Company
relating to a public offering other than to employees of the Company under an
employee option plan or employee stock purchase plan.
2.14 Transfer or Assignment of Registration Rights. The rights to cause
---------------------------------------------
the Company to register the Registrable Securities granted by the Company under
Sections 2.5, 2.6 and 2.8 may be transferred or assigned by a Holder to a
transferee or assignee of any of the Holder's Restricted Securities; provided
that the Company is given written notice by a Holder at the time of or within a
reasonable time after said transfer or assignment, stating the name and address
of said transferee or assignee and the securities with respect to which such
registration rights are being transferred or assigned and provided further that
the transferee or assignee of such rights assumes the obligations of such Holder
under Section 2.
19
2.15 "Market Stand-off" Agreement. Each Investor agrees, if requested by
----------------------------
the Company and an underwriter of Common Stock (or other securities) of the
Company, not to sell or otherwise transfer or dispose of any Common Stock (or
other securities) of the Company held by it during the 90-day period following
the effective date of a registration statement filed under the Act, provided
that:
(a) such agreement only applies to the first such registration
statement of the Company including securities to be sold on its behalf to the
public in an underwritten offering; and
(b) all other Holders, Other Shareholders and officers and directors
of the Company enter into similar agreements.
Such agreement shall be in writing in a form satisfactory to the
Company and such underwriter. The Company may impose stop-transfer instructions
with respect to the shares (or securities) subject to the foregoing restriction
until the end of the 90-day period.
SECTION 3
-------
Certain Voting Rights
---------------------
If at any time so long as long as 50,000 Shares are outstanding:
(a) the Company shall violate any provisions of its Restated
Certificate of Incorporation as then in effect relating to the payment of
dividends,
(b) the Company shall fail to comply with, or shall breach or
violate (i) any material covenant contained in this Agreement or the
Shareholders Agreement or (ii) Section 3.4, Section 3.5 or Section 3.7 of
Article Fourth of the Company's Restated Certificate of Incorporation (provided
that the Investor Representatives shall not have caused, or that each of the
Investor Representative shall not have consented to, such failure, breach or
violation), or
(c) ▇▇. ▇▇▇▇▇▇▇▇ should breach either the Confidential and
Proprietary Information Agreement dated as of March 1, 1993 or the Agreement Not
to Compete dated as of October 23, 1993, as either of such agreements may be
amended or superseded, and the Company shall have failed to institute
appropriate legal or other remedial action;
and such failure or breach shall have continued for 30 days after written notice
thereof to the Company or to ▇▇. ▇▇▇▇▇▇▇▇ by Investors holding in the aggregate
fifty percent (50%) or more of the Shares or such number of shares of Common
Stock issued to the Investors upon conversion of fifty percent (50%) of the
Shares or any combination thereof, then the Investors shall have the special
----
voting rights as set forth in Article Fourth, Section 3.5(b) of the Company's
Restated Certificate of Incorporation.
SECTION 4
-------
20
Miscellaneous
-------------
4.1 Governing Law. This Agreement shall be governed in all respects by the
-------------
laws of the State of Delaware without giving effect to principles of conflicts
of law thereunder. It is acknowledged that it will be impossible to measure in
money the damages that would be suffered if the parties fail to comply with any
of the obligations imposed on them by this Agreement and that in the event of
any such failure an aggrieved party will be irreparably damaged and will not
have an adequate remedy at law. Any such party shall, therefore, be entitled to
injunctive relief and/or specific performance to enforce such obligations, and
if any action should be brought in equity to enforce any of the provisions of
this Agreement, none of the parties hereto shall raise the defense that there is
an adequate remedy at law.
4.2 Survival. The representations, warranties, covenants and agreements made
--------
in this Agreement shall survive any independent investigation made by any
Investor and the closing of the transactions contemplated hereby.
4.3 Successors and Assigns. Except as otherwise expressly provided in this
----------------------
Agreement, the provisions of this Agreement shall inure to the benefit of, and
be binding upon, the successors, heirs, executors and administrators of the
parties; provided, however, the Company may not assign its rights or delegate
its duties under this Agreement.
4.4 Entire Agreement; Amendment and Waiver. This Agreement constitutes the
--------------------------------------
full and entire understanding and agreement between the parties with regard to
the subject matter hereof. Neither this Agreement nor any term hereof may be
amended, discharged or terminated, except by a written instrument signed by the
Company and the holders of sixty percent (60%) or more of the Shares (calculated
on an as converted basis and including any shares of Common Stock into which any
Shares have been converted that have not been sold); provided, however, that the
effect of any such amendment will be such that all of the Investors will be
treated equally. The addition of parties to this Agreement who acquire Series E
Shares after the date hereof shall not require the consent of any other
Investor.
4.5 Notices. All notices and other communications required or permitted
-------
under this Agreement shall be in writing and shall be deemed effectively given
upon personal delivery, upon delivery by a nationally or internationally
recognized overnight courier service, or upon deposit with the United States
Post Office (or other appropriate national postal service), by registered or
certified mail, postage prepaid, addressed to the Company at its address set
forth on the signature page of this Agreement and to an Investor at its address
provided on Exhibit A or at such other address as any party may designate by ten
---------
days prior written notice to the other party.
4.6 Delays or Omissions. No delay or omission to exercise any right, power
-------------------
or remedy accruing to any holder of any Shares upon any breach or default of the
Company under this Agreement shall impair any such right, power or remedy of
such holder 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.
21
Any waiver, permit, consent or approval of any kind or character on
the part of any holder of any breach or default under this Agreement, or any
waiver on the part of any holder of any provisions or conditions of this
Agreement, must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any holder, shall be cumulative and
not alternative.
4.7 Rights; Separability. Unless otherwise expressly provided in this
--------------------
Agreement, each Investor's rights are several rights, not rights jointly held
with any of the other Investors. In case any provision of this Agreement shall
be held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
4.8 Information Confidential. Each Investor agrees that it will not use any
------------------------
confidential information received by it pursuant to this Agreement in violation
of the Exchange Act or reproduce, disclose or disseminate such information to
any other person (other than to its employees, agents or attorneys having a need
to know the contents of such information), except in connection with the
exercise of rights under this Agreement, unless (a) the Company has made such
information available to the public generally; (b) an Investor is required to
disclose such information by a governmental body; (c) the Investor possessed
such information before the date of this Agreement; (d) the Investor received
such information from a third party after the date of this Agreement; or (e) the
Investor discloses such information of a non-technical nature (including
financial information) to its partners, shareholders or advisors which such
Investor discloses to its partners, shareholders and/or advisors generally.
4.9 Expenses. Except as provided in Section 2, the Company shall bear its
--------
own expenses and legal fees incurred on its behalf with respect to this
Agreement and the transactions contemplated by this Agreement.
4.10 Titles. The titles of the Sections of this Agreement are for
------
convenience of reference only and are not to be considered in construing this
Agreement.
4.11 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one Agreement.
[the remainder of this page is intentionally left blank]
22
IN WITNESS WHEREOF, each of the parties has duly executed this Agreement as
of date first above written.
PHYTERA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
REPRESENTING AT LEAST 60% OF SHARES HELD BY THE INVESTORS:
CR MANAGEMENT CAPITAL PARTNERS I
L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
General Partner
▇▇▇▇▇▇, READ & CO., as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
CONCORD PARTNERS II, L.P.
By: Venture Associates II, L.P., General Partner
By: ▇▇▇▇▇▇, Read Inc., General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------
Title: Attorney-in-Fact
23
LEXINGTON PARTNERS IV, L.P.
By: DRMC, Inc., General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------
Title: Managing Director
BANCBOSTON VENTURES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------
Title: Managing Director
DANISH DEVELOPMENT FINANCE
COMPANY
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Mrck
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
-------------------------
Title: CEO
Name: ▇▇▇▇▇▇▇▇▇ Mrck
--------------
Title: CFO
COMMONWEALTH BIOVENTURES IV
LIMITED PARTNERSHIP
By: BioVentures Partners Limited Partnership,
General Partner
By: Commonwealth BioVentures Inc.,
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------
Title: Vice President
24
COMMONWEALTH BIOVENTURES V
LIMITED PARTNERSHIP
By: BioVentures Partners Limited Partnership,
General Partner
By: Commonwealth BioVentures Inc., General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------
Title: Vice President
25
A/S FORSIKRINGSSELSKABET CODAN
PENSION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
A/S FORSIKRINGSSELSKABET CODAN LIV
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
26
KIRKBI A/S
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Bent ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Finanschef
Name: Bent ▇▇▇▇▇▇▇▇
Title: Managing Director
27
CARNEGIE BANK A/S
By: /s/ ▇▇▇ Bttkjaer
-----------------
Name: ▇▇▇ Bttkjaer
-------------
Title:
28
The following purchasers of Series E Preferred Stock are deemed to have
executed this Agreement by execution of a Subscription Agreement bearing the
dates set forth below:
Name Date of Subscription
---- --------------------
29
EXHIBIT A
SCHEDULE OF INVESTORS
Concord Partners II, L.P.
Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Lexington Partners IV, L.P.
Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, Read & Co. Inc., as Agent
Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Commonwealth BioVentures IV
Limited Partnership
Address:
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Commonwealth BioVentures V
Limited Partnership
Address:
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Kummell Investments Limited
Address:
P.O. Box 71
Craigmuir ▇▇▇▇▇▇▇▇
Road Town
Tortola, British Virgin Islands
(Effective notice to Kummell Investments Limited requires a copy to one of the
following as well as the above address: Morningside North America Limited, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention ▇▇▇ ▇▇▇▇▇▇; or ▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇ Investments Limited, ▇/▇
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇, fax ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇)
Clariden Bank
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
CH-8002
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Clariden Asset Management, Inc.
Address:
Clariden Asset Management
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
CR Management Capital
Partners I L.P.
Address:
CR Management Associates, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BancBoston Ventures, Inc.
Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
Address:
c/o Agel Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Deltec Asset Management Corp.
Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
1935 ▇▇▇▇▇ Trust - ▇▇▇▇▇▇ Share
Address:
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
31
1935 ▇▇▇▇▇ Trust - ▇▇▇▇▇▇ Share
Address:
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Address:
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Commonwealth BioVentures Inc.
Profit Sharing Plan UAD 7-7-92
FBO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Address:
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address:
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Professor
of Business Administration
Harvard Business School
Soldiers ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
32
BioTrust General Partnership
Address:
▇/▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ELTAG
Address:
FL-9490
Vaduz
Liechtenstein
Mailing Address:
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Alha-Beta Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
Address:
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address:
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
Address
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Address:
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. Grey III
Address:
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Modl Ventures
Address:
▇▇▇▇▇▇, ▇'▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PNC Bank, New England, Custodian for ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
Address:
[PNC Address]
Massachusetts Biotechnology Research
Institute, Inc., A Massachusetts Non-Profit
Corporation
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Danish Development Finance Company
Address:
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
34
▇▇▇▇▇ ▇▇▇▇▇▇, III
Address:
c/o Massachusetts Biotechnology
Research Institute
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
c/o Massachusetts Biotechnology
Research Institute
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
c/o Massachusetts Biotechnology
Research Institute
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Address:
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
Address:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇. ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
35
I.A.R. Inc. [Nominees]
c/o Wilson H. Kidde
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
c/o Commonwealth BioVentures, Inc.
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
c/o Commonwealth BioVentures, Inc.
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Massachusetts Institute of Technology
Department of Chemistry
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ Institute of Technology
Department of Chemistry
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Massachusetts Institute of Technology
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36
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
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▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
Address:
▇▇▇▇▇-▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Technology Development, Inc.
c/o ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
Address:
Environmental Capital Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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37
Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇▇, Trustee
▇▇▇▇ ▇. ▇▇▇▇▇ Revocable Trust
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o Phytera, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SERIES D INVESTORS:
A/S Forsikringsseslkabet Codan Pension
Address:
c/o ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Codanhus
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
A/S Forsikringsseslkabet Codan Liv
Address:
c/o ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Codanhus
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Kirkbi A/S
Address:
c/o Finanschef ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Uni Invest
38
Address:
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇. ▇▇▇
1630 Kobenhavn V
Denmark
Becada A/S
Address:
▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
Nordisk Re
Address:
c/o ERC Frankona A/S
Attn: Jesper ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Holding
Address:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
39
Scandinavian Merchant Group AB
Address:
c/o Gerania AB
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Per ▇▇▇▇▇▇▇▇
Address:
Lindhs Advokatbyra
▇▇▇ ▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
SEB, Luxembourg
Address:
40
▇.▇. ▇▇▇ ▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Remsle Invest AB
Address:
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Stiftelse
Address:
Gronbergs Adv. ▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Quadrofolium
Address:
Gronbergs Adv. ▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
c/o Adv. firma ▇▇▇ ▇▇▇▇▇▇▇
Birger ▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
Birger ▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-Abergh
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Aso Ingenjorsfortbildning
Address:
▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇▇▇
Sveriges Tandlakares Hjalpfondsnamnd
Address:
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Sveriges Tandlakares TT
Address:
▇/▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Sveriges Tandlakares Forbund
Address:
▇/▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
Address:
Villa ▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
42
Vilunda Ekonomi
Address:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Orebro Svagstromsbyra
Address:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Pal ▇▇▇▇▇▇▇
Address:
Tradgardsgatan 17 B:50
753 09 Uppsala
Sweden
Simon Sjo
Address:
Ostra ▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Address:
Hildur Ottelinsgatan 2 ▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Wasa ▇▇▇▇▇ ▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
43
▇▇▇▇ ▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ Rahmqvist AB
Address:
▇▇▇ ▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Consult AB
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Svenska Metall
Address:
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address:
Skogsliden 6 A
44
187 41 Taby
Sweden
Adpoprio AB
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Hedensberg Godsforvaltning AB
Address:
▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
45
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Aktieklubben Fyrklovern
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Address:
Attn: ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
Address:
▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Address:
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B Omentum Consulting AB
Address:
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A/S Korn og Foderstof Kompagniet
Address:
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Adm. Direktor
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Orkla ASA
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Harmony Holding (Panama) S.A.
Address:
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3106 Dah Sing Financial Centre
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Christian Konigsfeldt
Address:
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Carnegie Bank A/S
Address:
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Denmark
GJK Holding APS
[Address]
SERIES E INVESTORS:
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