EXHIBIT 10.3
INVESTORS RIGHTS AGREEMENT
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THIS INVESTORS RIGHTS AGREEMENT (this "Agreement") is made as of September
30, 1997 by and among ACCESS RADIOLOGY CORPORATION, a Delaware corporation (the
"Company"), and the undersigned holders of the Company's Series J Preferred
Stock (individually, an "Investor" and collectively, the "Investors").
The parties agree as follows:
1. GENERAL.
1.1 Definitions. As used in this Agreement, the following terms will have
the following respective meanings:
(a) "Agreement" has the meaning set forth in the first paragraph
hereof.
(b) "Company" has the meaning set forth in the first paragraph of this
Agreement.
(c) "Equity Securities" means (1) any Common Stock, Preferred Stock or
other equity security of the Company, (2) any security convertible, with or
without consideration, into any Common Stock, Preferred Stock or other equity
security of the Company (including any option to purchase such a convertible
security), (3) any security carrying any warrant or right to subscribe to or
purchase any Common Stock, Preferred Stock or other equity security of the
Company or (4) any such warrant or right.
(d) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(e) "Holder" means any person owning of record Registrable Securities
or any assignee of record of such Registrable Securities in accordance with
Section 2.10 hereof.
(f) "Initial Offering" means the Company's first firm commitment
underwritten public offering of its Common Stock registered under the Securities
Act.
(g) "Initiating Holders" means the Holders of at least 30% of the
Registrable Securities then outstanding.
(h) "Investor" has the meaning set forth in the first paragraph of
this Agreement.
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(i) "Qualified Public Offering" means a public offering of equity
securities of the Company in which the offering price per share is at least
$3.00 and the aggregate offering price to the public is in excess of
$15,000,000.
(j) "Register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement or document.
(k) "Registrable Securities" means (1) Common Stock of the Company
issued or issuable upon conversion of the Shares; and (2) any Common Stock of
the Company issued as (or issuable upon the conversion or exercise of any
warrant, right or other security that is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
above-described securities. Notwithstanding the foregoing, Registrable
Securities will not include any securities sold by a person to the public either
pursuant to a registration statement or Rule 144 or sold in a private
transaction in which the transferror's rights under Section 2 of this Agreement
are not assigned.
(l) "Registrable Securities then outstanding" means the number of
shares determined by calculating the total number of shares of the Company's
Common Stock that are Registrable Securities and either (1) are then issued and
outstanding or (2) are issuable pursuant to then exercisable or convertible
securities.
(m) "Registration Expenses" means all expenses incurred by the Company
in complying with Sections 2.2, 2.3 and 2.4 including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, reasonable fees and disbursements not to exceed $15,000
of a single special counsel for the Holders, blue sky fees and expenses 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 will
be paid in any event by the Company).
(n) "Securities Act" means the Securities Act of 1933, as amended.
(o) "Selling Expenses" means all underwriting discounts and selling
commissions applicable to the sale.
(p) "Shares" means the Company's Series J Preferred Stock issued
pursuant to that certain Series J Preferred Stock Purchase Agreement, dated as
of the date hereof, between the Company and the Investors (the "Purchase
Agreement").
(q) "Form S-3" means such form under the Securities Act as in effect
on the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC that permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
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(r) "SEC" means the Securities and Exchange Commission.
(s) "Violation" has the meaning set forth in Section 2.9(a) of this
Agreement.
2. REGISTRATION; RESTRICTIONS ON TRANSFER.
2.1 Restrictions On Transfer.
(a) No Holder will make any disposition of all or any portion of the
Shares or Registrable Securities unless and until:
(1) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(2) (A) The transferee has agreed in writing to be bound by this
Section 2.1, (B) such Holder has notified the Company of the proposed
disposition and has furnished the Company with a detailed statement of the
circumstances surrounding the proposed disposition, and (C) if reasonably
requested by the Company, such Holder has furnished the Company with an opinion
of counsel, reasonably satisfactory to the Company, that such disposition will
not require registration of such shares under the Securities Act. The Company
will not require opinions of counsel for transactions made pursuant to Rule
144(k) except in unusual circumstances.
(3) Notwithstanding the provisions of Sections 2.1(a)(1) and
2.1(a)(2), no such registration statement or opinion of counsel will be
necessary for a transfer by a Holder that is (A) a partnership to its partners
or former partners in accordance with partnership interests, (B) a corporation
to its shareholders in accordance with their interests in the corporation, (C) a
limited liability company to its members or former members in accordance with
their interests in the limited liability company, or (D) to a Holder's family
member or trust for the benefit of an individual Holder or a Holder's family
member or members, provided that the transferee will be subject to the terms of
this Section 2.1 to the same extent as if he, she or it were an original Holder
hereunder.
(b) Each certificate representing Shares or Registrable Securities
will (unless otherwise permitted by the provisions of this Agreement) be stamped
or otherwise imprinted with a legend substantially similar to the following (in
addition to any legend required under applicable state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED,
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ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT
OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED.
(c) The Company will reissue promptly unlegended certificates at the
request of any holder thereof if the holder has obtained an opinion of counsel
(which counsel may be counsel to the Company) reasonably acceptable to the
Company to the effect that the securities represented by such certificate, may
lawfully be so disposed of without registration, qualification or legend.
(d) Any legend endorsed on an instrument pursuant to applicable state
securities laws and the stop-transfer instructions with respect to such
securities will be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
2.2 Demand Registration.
(a) If the Company receives a written request from the Initiating
Holders that the Company file a registration statement under the Securities Act
covering the sale of Registrable Securities that, if completed, would result in
a public offering of equity securities of the Company having an aggregate
offering price to the public in excess of $15,000,000, then the Company will,
within 30 days of the receipt thereof, give written notice of such request to
all other Holders and effect, as soon as practicable, the registration under the
Securities Act of all Registrable Securities that the Holders request to be
registered. Each Holder desiring to include in any such registration statement
all or any part of the Registrable Securities held by it will, within 15 days
after the above-described notice from the Company, so notify the Company in
writing.
(b) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they will so
advise the Company as a part of their request made pursuant to this Section 2.2
and the Company will include such information in the written notice referred to
in Section 2.2(a). In such event, the right of any Holder to include its
Registrable Securities in such registration will be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting will enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by the
Company (which underwriter or underwriters will be reasonably acceptable to a
majority in interest of the Initiating Holders). Notwithstanding any other
provision of this Section 2.2, if the underwriter advises the Company that
marketing factors require a limitation of the number
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of securities to be underwritten (including Registrable Securities) then the
Company will so advise all Holders of Registrable Securities that would
otherwise be underwritten pursuant hereto, and the number of shares that may be
included in the underwriting will be allocated to the Holders of such
Registrable Securities on a pro rata basis based on the number of Registrable
Securities held by all such Holders (including the Initiating Holders). Any
Registrable Securities excluded or withdrawn from such underwriting will be
withdrawn from the registration.
(c) The Company will not be required to effect a registration
pursuant to this Section 2.2:
(1) during the period starting with the date of filing of, and
ending on the date 180 days following the effective date of the registration
statement pertaining to the Initial Offering, provided that the Company is
making reasonable and good faith efforts to cause such registration statement to
become effective;
(2) if, within 30 days of receipt of a written request from the
Initiating Holders pursuant to Section 2.2(a), the Company notifies the Holders
of its intention to file a registration statement with respect to a public
offering of its Common Stock (excluding a registration relating to an employee
benefit plan or with respect to a corporate reorganization or other transaction
under Rule 145 of the Securities Act) within 90 days, during the period
beginning on the date of such notice from the Company and ending 90 days
thereafter;
(3) after the Company has effected two registrations pursuant to
this Section 2.2 and such registrations have been declared or ordered effective;
or
(4) if the Company furnishes to the Holders a certificate signed
by the Board of Directors stating that in the good faith judgment of the Board
of Directors of the Company, it would be seriously detrimental to the Company
and its shareholders for such registration to be effected at such time, in which
event the Company will have the right to defer such filing for a period of not
more than 90 days after receipt of the request of the Initiating Holders;
provided that such right to delay a request will be exercised by the Company no
more than twice in any one-year period.
2.3 Piggyback Registrations.
(a) The Company will notify all Holders of Registrable Securities in
writing at least 30 days prior to the filing of any registration statement under
the Securities Act for purposes of a public offering of securities of the
Company (including, but not limited to, registration statements relating to
secondary offerings of securities of the Company, but excluding registration
statements relating to employee benefit plans or with respect to corporate
reorganizations or other transactions under Rule 145 of the Securities Act) and
will afford each such Holder an opportunity to include in such registration
statement all or part of
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such Registrable Securities held by such Holder. Each Holder desiring to include
in any such registration statement all or any part of the Registrable Securities
held by it will, within 15 days after the above-described notice from the
Company, so notify the Company in writing. Such notice will state the intended
method of disposition of the Registrable Securities by such Holder. If a Holder
decides not to include all of its Registrable Securities in any registration
statement thereafter filed by the Company, such Holder will nevertheless
continue to have the right to include any Registrable Securities in any
subsequent such registration statement or registration statements as may be
filed by the Company with respect to offerings of its securities, all upon the
terms and subject to the conditions set forth herein.
(b) If the registration statement under which the Company gives notice
under this Section 2.3 is for an underwritten offering, the Company will so
advise the Holders of Registrable Securities as a part of such notice. In such
event, the right of any Holder to be included in a registration pursuant to this
Section 2.3 will be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting will enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of the Agreement, if the underwriter determines in good faith that
marketing factors require a limitation of the number of shares to be
underwritten, the number of shares that may be included in the underwriting will
be allocated: first, to the Company; second, to the Holders on a pro rata basis
based on the total number of Registrable Securities proposed to be sold by the
Holders (assuming conversion of all Shares); and third, to any other shareholder
of the Company on a pro rata basis (assuming conversion of all Preferred Stock).
(c) The Company will have the right to terminate or withdraw any
registration initiated or withdraw any registration initiated by it under this
Section 2.3 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The Registration
Expenses of such withdrawn registration will be borne by the Company in
accordance with Section 2.5.
2.4 Form S-3 Registration.
(a) If the Company receives a written request from a Holder or Holders
that the Company file a registration statement on Form S-3 under the Securities
Act covering the registration of Registrable Securities having an aggregate
offering price to the public in excess of $500,000, then the Company will,
within 10 days of the receipt thereof, give written notice of such request to
all other Holders and effect, as soon as practicable, the registration on Form
S-3 under the Securities Act of all Registrable Securities that the Holders
request to be registered. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by it
will, within 15 days after the above-described notice from the Company, so
notify the Company in writing.
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(b) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they will so
advise the Company as a part of their request made pursuant to this Section 2.4
and the Company will include such information in the written notice referred to
in Section 2.4(a). In such event, the right of any Holder to include its
Registrable Securities in such registration will be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting will enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by a
majority in interest of the Initiating Holders (which underwriter or
underwriters will be reasonably acceptable to the Company). Notwithstanding any
other provision of this Section 2.4, if the underwriter advises the Company that
marketing factors require a limitation of the number of securities to be
underwritten (including Registrable Securities) then the Company will so advise
all Holders of Registrable Securities that would otherwise be underwritten
pursuant hereto, and the number of shares that may be included in the
underwriting will be allocated to the Holders of such Registrable Securities on
a pro rata basis based on the number of Registrable Securities held by all such
Holders (including the Initiating Holders). Any Registrable Securities excluded
or withdrawn from such underwriting will be withdrawn from the registration.
(c) The Company will not be required to effect a registration
pursuant to this Section 2.4:
(1) if Form S-3 (or any similar form) is not available for such
offering by the Holders;
(2) if the Company has effected two or more registrations
pursuant to this Section 2.4 within the 12 months preceding receipt of the
request described in Section 2.4(a); or
(3) if the Company furnishes to the Holders a certificate signed
by the Board of Directors stating that in the good faith judgment of the Board
of Directors of the Company, it would be seriously detrimental to the Company
and its shareholders for such registration to be effected at such time, in which
event the Company will have the right to defer such filing for a period of not
more than 90 days after receipt of the request of the Initiating Holders;
provided that such right to delay a request will be exercised by the Company nor
more than twice in any one-year period.
2.5 Expenses Of Registration. Except as specifically provided in this
Agreement, all Registration Expenses incurred in connection with any
registration, qualification or compliance pursuant to Section 2.2, 2.3 or 2.4
will be borne by the Company. All Selling Expenses incurred in connection with
any registrations hereunder will be borne by the holders
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of the securities so registered pro rata on the basis of the number of shares so
registered. The Company will not, however, be required to pay for expenses of
any registration proceeding begun pursuant to Section 2.2 or 2.4, the request of
which has been subsequently withdrawn by the Initiating Holders unless (a) the
withdrawal is based upon material adverse information concerning the Company of
which the Initiating Holders were not aware at the time of such request or (b)
in the case of a registration pursuant to Section 2.2, the Holders of a majority
of Registrable Securities agree to forfeit their right to one requested
registration pursuant to Section 2.2, in which event such right will be
forfeited by all Holders. If the Holders are required to pay the Registration
Expenses, such expenses will be borne by the holders of securities (including
Registrable Securities) requesting such registration in proportion to the number
of shares for which registration was requested.
2.6 Obligations Of The Company. Whenever required to effect the
registration of any Registrable Securities, the Company will, as soon as
practicable:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use all reasonable efforts to cause
such registration statement to become effective and keep such registration
statement effective for up to 120 days or, if earlier, until the participating
Holder or Holders have completed the distribution related thereto.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(d) Use all reasonable efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as will be reasonably requested by the Holders,
provided that the Company will not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter or underwriting of such offering. Each
Holder participating in such underwriting will also enter into and perform its
obligations under such an agreement.
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(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(g) Furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (1) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration in form
and substance as is customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the Holders
requesting registration, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities and (2) a letter,
dated as of such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and if permitted by
applicable accounting standards, to the Holders requesting registration of
Registrable Securities.
2.7 Termination Of Registration Rights. All registration rights granted
under this Section 2 will terminate and be of no further force and effect as to
any Holder if (a) the Company has completed its Initial Offering and is subject
to the provisions of the Exchange Act and (b) all Registrable Securities held by
such Holder (together with its affiliates, partners and former partners) may be
sold under Rule 144 during any 90-day period.
2.8 Delay Of Registration; Furnishing Information.
(a) No Holder will have any right to obtain or seek an injunction
restraining or otherwise delaying any registration hereunder as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Section 2.
(b) It will be a condition precedent to the obligations of the Company
to take any action pursuant to Section 2.2, 2.3 or 2.4 that the selling Holders
will furnish to the Company such information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of
such securities as will be requested by the Company and required to effect the
registration of such Holder's Registrable Securities.
2.9 Indemnification. In the event any Registrable Securities are included
in a registration statement under Section 2.2, 2.3 or 2.4:
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(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners, shareholders, officers, stockholders,
directors and legal counsel of such Holder, any underwriter (as defined in the
Securities Act) for such Holder and each person, if any, who controls such
Holder or underwriter within the meaning of the Securities Act or the Exchange
Act against any losses, claims, damages, or liabilities (joint or several) to
which any of such persons may become subject insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations (individually a
"Violation") by the Company: (1) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto; (2) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, not misleading; or (3) any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, any state securities law or
any rule or regulation promulgated under the Securities Act, the Exchange Act or
any state securities law in connection with the offering covered by such
registration statement; and the Company will reimburse each such Holder,
partner, shareholder, officer, director, underwriter or controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section 2.9(a)
will not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company, which consent will not be unreasonably withheld, nor will the Company
be liable in any such case for any such loss, claim, damage, liability or action
to the extent that (i) it arises out of or is based upon a Violation that occurs
in reliance upon and in conformity with written information furnished expressly
for use in connection with such registration by such Holder, partner, officer,
director, underwriter or controlling person of such Holder or (ii) in the case
of a sale directly by a Holder of Registrable Securities (including a sale of
such Registrable Securities through any underwriter retained by such Holder to
engage in a distribution solely on behalf of such Holder), such untrue statement
or alleged untrue statement or omission or alleged omission was contained in a
preliminary prospectus and corrected in a final or amended prospectus (a copy of
which was delivered to such Holder by the Company at or prior to confirmation of
such sale), and such Holder failed to deliver a copy of the final or amended
prospectus at or prior to the confirmation of such sale of the Registrable
Securities to the person asserting any such loss, claim, damage or liability in
any case where such delivery is required by the Securities Act.
(b) To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration is being effected, indemnify and hold harmless the Company, each of
its directors, stockholders, officers and legal counsel, any underwriter (as
defined in the Securities Act) for the Company and each person, if any, who
controls the Company or underwriter within the meaning of the Securities Act,
and any other Holder selling securities under such registration statement, any
of such other Holder's partners, shareholders, directors, officers or legal
counsel, any
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underwriter (as defined in the Securities Act) for such Holder or any person who
controls such Holder or underwriter, against any losses, claims, damages or
liabilities (joint or several) to which any of such persons may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation by the Company, in each
case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder under an instrument duly executed by such Holder and stated to be
specifically for use in connection with such registration; and each such Holder
will reimburse any legal or other expenses reasonably incurred by any such
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this Section 2.9(b) will not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent will not be unreasonably
withheld; provided further, that in no event will any indemnity under this
Section 2.9(b) exceed the proceeds from the offering received by the
indemnifying Holder.
(c) Promptly after receipt by an indemnified party under this Section
2.9 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 2.9, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party will have the right to participate in and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party will
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, will relieve such indemnifying party of any liability to the
indemnified party under this Section 2.9, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 2.9.
(d) If the indemnification provided for in this Section 2.9 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, will to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation or Violations that resulted
in such loss, claim, damage or liability, as well as
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any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party will be determined by a court of
law by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission; provided, that in no event
will any contribution by a Holder hereunder exceed the proceeds from the
offering received by such Holder.
(e) The obligations of the Company and Holders under this Section 2.9
will survive completion of any offering of Registrable Securities in a
registration statement. No indemnifying party, in the defense of any such claim
or litigation with respect to which indemnification has been sought hereunder,
will, except with the consent of each indemnified party seeking indemnification
hereunder, consent to entry of any judgment or enter into any settlement that
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.
2.10 Assignment Of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Section 2 may only be assigned
by a Holder to a transferee or assignee of Registrable Securities that (a) is a
subsidiary, parent, general partner, limited partner or retired partner of a
Holder, (b) is a Holder's family member or trust for the benefit of an
individual Holder or a Holder's family member or members, or (c) acquires at
least 25,000 shares of Registrable Securities (as adjusted for stock splits and
combinations); provided, however, that the transferor will, within 10 days after
such transfer, furnish to the Company written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned and such transferee will agree to be
subject to all restrictions set forth in this Agreement.
2.11 Amendment Of Registration Rights. Any provision of this Section 2 may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and the Holders of a majority of the Registrable
Securities. Any amendment or waiver effected in accordance with this Section
2.11 will be binding upon each Holder and the Company.
2.12 Limitation On Subsequent Registration Rights. After the date of this
Agreement, the Company will not, without the prior written consent of the
Holders of a majority of the Registrable Securities, enter into any agreement
with any holder or prospective holder of any equity securities of the Company
that would grant such holder registration fights that (a) would permit such
holder to cause the registration of equity securities held by such holder at a
time when the Holders would not be permitted hereunder to cause a registration
of Registrable Securities or (b) calls for any Registrable Securities to be
excluded from a registration statement pursuant to Section 2.3.
12
2.13 "Market Stand-Off" Agreements. If requested by the Company or the
representative of the underwriters of Common Stock (or other securities) of the
Company, each Holder will not sell or otherwise transfer or dispose of any
Common Stock (or other securities) of the Company held by such Holder (other
than those included in the registration) for a period specified by the
representative of the underwriters not to exceed 180 days following the
effective date of a registration statement of the Company filed under the
Securities Act; provided that the obligations described in this Section 2.13
will not apply to a registration relating solely to employee benefit plans or a
registration relating solely to a SEC Rule 145 transaction. The Company may
impose stop-transfer instructions with respect to the shares of Common Stock (or
other securities) subject to the foregoing restriction until the end of said
period. The Company will use all commercially reasonable efforts to require
each other person who has acquired or in the future acquires Common Stock or
Preferred Stock from the Company to be subject to the same or a substantially
equivalent market stand-off agreement.
2.14 Rule 144 Reporting. With a view to making available to the Holders
the benefits of certain rules and regulations of the SEC that may permit the
sale of the Registrable Securities to the public without registration, the
Company will use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration for an offering of its securities to the general public;
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act;
(c) So long as a Holder owns any Registrable Securities, furnish to
such Holder promptly upon request: a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 of the Securities
Act, and of 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 as a Holder may reasonably
request in availing itself of any rule or regulation of the SEC allowing it to
sell any such securities without registration.
3. COVENANTS OF THE COMPANY.
3.1 Basic Financial Information And Reporting.
(a) The Company will maintain true books and records of account in
which full and correct entries will be made of all its business transactions
pursuant to a system of accounting established and administered in accordance
with generally accepted accounting principles consistently applied, and will set
aside on its books all such proper accruals and
13
reserves as will be required under generally accepted accounting principles
consistently applied.
(b) As soon as practicable after the end of each fiscal year of the
Company, and in any event within 120 days thereafter, the Company will furnish
each Investor an audited consolidated balance sheet of the Company as at the end
of such fiscal year, and audited consolidated statements of income, cash flows
and shareholders' equity of the Company for such year, all 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. Such financial statements will be
accompanied by a report thereon by independent public accountants of national
standing selected by the Company's Board of Directors.
(c) The Company will furnish each Investor, as soon as practicable
after the end of the first, second and third quarterly accounting periods in
each fiscal year of the Company, and in any event within 45 days thereafter, a
consolidated balance sheet of the Company as of the end of each such quarterly
period, and a consolidated statement of income and a consolidated statement of
cash flows of the Company for such period and for the current fiscal year to
date, prepared in accordance with generally accepted accounting principles
consistently applied, with the exception that no notes need be attached to such
statements and year-end audit adjustments need not have been made.
(d) So long as an Investor (with its affiliates) owns not less than
250,000 shares of Registrable Securities (as adjusted for stock splits,
combinations and the like), the Company will furnish such Holder (1) within 60
days after the beginning of each fiscal year an annual budget and operating
plans for such fiscal year (and as soon as available, any subsequent revisions
thereto); and (2) as soon as practicable after the end of each month, and in any
event within 30 days thereafter, a consolidated balance sheet of the Company as
of the end of each such month, and a consolidated statement of income and a
consolidated statement of cash flows of the Company for such month and for the
current fiscal year to date, including a comparison to plan figures for such
period, prepared in accordance with generally accepted accounting principles
consistently applied, with the exception that no notes need be attached to such
statements and year-end audit adjustments may not have been made.
3.2 Inspection Rights. Each Holder will have the right to visit and
inspect any of the properties of the Company or any of its subsidiaries, and to
discuss the affairs, finances and accounts of the Company or any of its
subsidiaries with its officers, and to review such information as is reasonably
requested all at such reasonable times and as often as may be reasonably
requested; provided, however, that the Company will not be obligated under this
Section 3.2 with respect to a competitor of the Company or with respect to
information that is confidential and should not, therefore, be disclosed.
14
3.3 Reservation Of Common Stock. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the conversion of the
Series J Preferred Stock, all Common Stock issuable from time to time upon such
conversion.
3.4 Termination Of Covenants. All covenants of the Company contained in
Section 3 will expire and terminate on the effective date of the registration
statement pertaining to a Qualified Public Offering.
4. BOARD OF DIRECTORS.
4.1 Election. At any annual or special meeting called, or any other
action taken, for the purpose of electing persons to or removing persons from
the Company's Board of Directors, the Holders will vote all of their Shares and
Registrable Securities during the term of this Agreement so as to cause the
representative of the Series J Preferred Stock required by Section 4.3(c)(5) of
the Certificate of Incorporation to be elected to the Board of Directors to be a
nominee of Bedrock Capital Partners I, L.P. (the "Bedrock Nominee").
4.2 Removal. In the event of any removal or resignation of the Bedrock
Nominee from the Board of Directors, the Holders will take all actions necessary
and appropriate to cause such vacancy to be filled in accordance with the
provisions of Section 4.1.
4.3 Best Efforts. The Company will use its best efforts to ensure that
the rights granted to the parties under this Section 4 are effective and that
the parties enjoy the benefits thereof. Such actions include, without
limitation, the use of the Company's best efforts to cause the nomination and
election of the Bedrock Nominee. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
performed hereunder by the Company, but will at all times in good faith assist
in the carrying out of all of the provisions of this Section 4 and in the taking
of all such actions as may be necessary, appropriate or reasonably requested by
Bedrock Capital Partners I, L.P.
4.4 Grant of Proxy; Voting Trust. In the event the Holders do not vote
their Shares and Registrable Securities in accordance with this Section 4, each
Holder, to the extent necessary to carry out the terms of this Section 4, hereby
grants to ▇▇▇▇▇▇ ▇▇▇▇▇ an irrevocable proxy pursuant to the Delaware General
Corporation Law to vote such Holder's Shares and Registrable Securities in
accordance with the terms of this Section 4. To the extent this Section 4 or
any provision hereof is deemed illegal, invalid or unenforceable, the parties
hereto agree to enter into a voting trust agreement and to take all action
necessary to cause such voting trust agreement to become legal, valid, binding
and enforceable and to effectuate the terms and provisions thereof.
4.5 Amendment. This Section 4 may be amended only with the written
consent of the Company, Bedrock Capital Partners I, L.P. and the holders of 66
2/3% of the Registrable Securities.
15
4.6 Termination. This Section 4 will terminate and be of no further force
and effect upon the later of (a) the second anniversary of the date hereof and
(b) the date on which the covenants contained in this Section 4 are not, in the
reasonable judgment of Bedrock Capital Partners I, L.P., necessary to maintain
the status of Bedrock Capital Partners I, L.P. as a "venture capital operating
company" for ERISA purposes. Bedrock Capital Partners I, L.P. will notify the
Company of the occurrence of the date described in clause (b) above.
Notwithstanding the foregoing, this Section 4 will terminate and be of no
further force and effect on such date as Bedrock Capital Partners I, L.P. ceases
to own any shares of capital stock of the Company.
5. RIGHT OF FIRST REFUSAL.
5.1 Subsequent Offerings By The Company. Each Investor will have a right
of first refusal to purchase its pro rata share of all Equity Securities that
the Company may, from time to time, propose to sell and issue after the date of
this Agreement, other than the Equity Securities excluded by Section 5.4. Each
Investor's pro rata share is equal to the ratio of (a) the number of shares of
the Company's Common Stock (including all shares of Common Stock issued or
issuable upon conversion of the Shares) that such Investor is deemed to be a
holder of immediately prior to the issuance of such Equity Securities to (b) the
total number of shares of the Company's outstanding Common Stock (including all
shares of Common Stock issued or issuable upon conversion of the Shares)
immediately prior to the issuance of the Equity Securities.
5.2 Notice. If the Company proposes to issue any Equity Securities, it
will give each Investor written notice of its intention, describing the Equity
Securities, the price and the terms and conditions upon which the Company
proposes to issue the same. Each Investor will have 15 days from the giving of
such notice to agree to purchase its pro rata share of the Equity Securities for
the price and upon the terms and subject to the conditions specified in the
notice by giving written notice to the Company and stating therein the quantity
of Equity Securities to be purchased. Notwithstanding the foregoing, the
Company will not be required to offer or sell such Equity Securities to any
Investor who would cause the Company to be in violation of applicable federal
securities laws by virtue of such offer or sale.
5.3 Unsubscribed Equity Securities. If not all of the Investors elect to
purchase their pro rata share of the Equity Securities, then the Company will
promptly notify in writing the Investors who do so elect and will offer such
Investors the right to acquire such unsubscribed shares. The Investors will
have five days after receipt of such notice to notify the Company of its
election to purchase all or a portion thereof of the unsubscribed shares. If
the Investors fail to exercise in full the foregoing right of first refusal, the
Company will have 60 days thereafter to sell the Equity Securities in respect of
which the Investors' rights were not exercised, at a price and upon general
terms and conditions materially no more favorable to the purchasers thereof than
specified in the Company's notice to the Investors pursuant to Section 4.1. If
the Company has not sold such Equity Securities within said 60-day period, the
16
Company will not thereafter issue or sell any Equity Securities without first
offering such securities to the Investors in the manner provided above.
5.4 Excluded Equity Securities. The right of first refusal established by
this Section 5.1 will have no application to any of the following Equity
Securities:
(a) 2,850,000 shares of Common Stock (and/or options, warrants or
other Common Stock purchase rights issued pursuant to such options, warrants or
other rights) issued or to be issued to employees, officers or directors of, or
consultants or advisors to the Company or any subsidiary, pursuant to the
Company's 1994 Stock Plan;
(b) 255,482 shares of Common Stock and 409,091 shares of Series J
Preferred Stock issuable upon exercise of warrants outstanding on the date
hereof;
(c) 59,228 shares of Common Stock issuable upon exercise of stock
options granted to employees, outstanding on the date hereof and not otherwise
described in Section 5.4(a);
(d) any Equity Securities issued for consideration other than cash
pursuant to a merger, consolidation, acquisition or similar business
combination;
(e) shares of Common Stock issued in connection with any stock split,
stock dividend or recapitalization by the Company;
(f) shares of Common Stock issued upon conversion of the Shares or any
other shares of Preferred Stock outstanding as of the date hereof; and
(g) any Equity Securities issued pursuant to any equipment leasing
arrangement or debt financing approved by the Board of Directors.
5.5 Termination. The right of first refusal set forth in this Section 5
will not apply to, and will expire upon the closing of, a Qualified Public
Offering.
6. RESTRICTION ON SECURITIES ISSUANCES.
Until January 1, 1999, the Company will not issue or grant any of its
securities as compensation (pursuant to its stock option plans or otherwise) to
any person that is not then an employee of the Company and then owns 1% of more
of the outstanding Common Stock of the Company (assuming exercise of all stock
options and other rights to acquire equity securities and conversion of all
Preferred Stock to Common Stock).
17
7. MISCELLANEOUS.
7.1 Governing Law. This Agreement will be governed by and construed under
the laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California.
7.2 Survival. The representations, warranties, covenants and agreements
made herein will survive any investigation made by any Holder and the closing of
the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby will be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
7.3 Successors And Assigns. Except as otherwise expressly provided
herein, the provisions hereof will inure to the benefit of, and be binding upon,
the successors, assigns, heirs, executors, and administrators of the parties
hereto and will inure to the benefit of and be enforceable by each person who is
a holder of Registrable Securities from time to time; provided, however, that
prior to the receipt by the Company of adequate written notice of the transfer
of any Registrable Securities specifying the full name and address of the
transferee, the Company may deem and treat the person listed as the holder of
such shares in its records as the absolute owner and holder of such shares for
all purposes.
7.4 Severabi1ity. In case any provision of the Agreement is invalid,
illegal, or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
7.5 Amendment And Waiver.
(a) Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the written consent of the Company and the holders
of at least 66 2/3% of the Registrable Securities.
(b) Except as otherwise expressly provided, (1) the obligations of the
Company and the rights of the Holders under this Agreement may be waived by any
Holder only in writing and for all Holders only with the written consent of the
holders of at least 66 2/3% of the Registrable Securities and (2) the
obligations of the Holders and the rights of the Company under this Agreement
may be waived only with the written consent of the Company.
(c) Notwithstanding the foregoing, this Agreement may be amended with
only the written consent of the Company to include Additional Investors (as
defined in Section 1.3 of that certain Series J Stock Purchase Agreement of even
date herewith) as "Investors," "Holders" and parties hereto.
18
7.6 Delays Or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party hereto upon any breach, default or
noncompliance of any other party under this Agreement will impair any such
right, power or remedy, nor will it be construed to be a waiver of any such
breach, default or noncompliance, or any acquiescence therein, or of any similar
breach, default or noncompliance thereafter occurring. Any waiver, permit,
consent, or approval of any kind or character on the part of any party hereto of
any breach, default or noncompliance under the Agreement or any waiver on such
Holder's part of any provisions or conditions of this Agreement must be in
writing and will be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement, by law or otherwise
afforded to the parties hereto, will be cumulative and not alternative.
7.7 Notices. All notices required or permitted hereunder will be in
writing and will be deemed effectively given: (1) upon personal delivery to the
party to be notified, (2) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (3) five days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (4) one day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications will be sent to the party
to be notified at the address as set forth on the signature pages hereof or at
such other address as such party may designate by 10 days' advance written
notice to the other parties hereto.
7.8 Attorneys' Fees. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
will be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement including, without limitation, reasonable fees and expenses of
attorneys and accountants, which will include, without limitation, all fees,
costs and expenses of appeals.
7.9 Titles And Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original, but all of which together will
constitute one instrument.
7.11 Antidilution Provisions. The Holders agree that for purposes of
Section 4.3(f) of the Restated Charter (as defined in the Purchase Agreement),
"Additional Shares of Common Stock" will not include up to 2,850,000 (the "Cap")
shares of the Company's Common Stock and/or options or other rights to purchase
the Company's Common Stock and the Company's Common Stock issued pursuant to
such options or other rights (as adjusted for any stock dividends, combinations,
splits, recapitalizations and the like) issued pursuant to the existing Company
1994 Stock Option Plan, whether previously or hereafter issued, provided,
however, that if any options or other rights to purchase the Company's Common
Stock lapse
19
unexercised, such options or rights will not be counted toward such Cap. Each
Holder agrees to vote in favor of, and to consent to, any amendment proposed by
the Company to the Restated Charter, the sole purpose of which is to amend the
Restated Charter to provide for the foregoing.
[THIS SPACE INTENTIONALLY LEFT BLANK]
20
The parties have executed this Agreement as of the date first above written.
The Company:
Access Radiology Corporation
Signature:
_________________________
Printed Name:
_____________________
Title:
____________________________
Address:
__________________________
__________________________
The Investors:
Bedrock Capital Partners I, L.P.
By: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & Company, LLC,
Its General Partner
Signature:
_________________________
Printed Name:
_____________________
Title:
____________________________
Address:
__________________________
__________________________
Bedrock Capital Partners Side-By-Side, L.P.
By: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & Company, LLC,
Its General Partner
Signature:
_________________________
Printed Name:
_____________________
Title:
____________________________
Address:
__________________________
__________________________
SIGNATURE PAGE TO INVESTORS RIGHTS AGREEMENT
Pacific Venture Group, L.P.
By: PVG Equity Partners, L.L.C
Its General Partner
Signature: _______________________
Printed Name:
Title: Member
Address: __________________________
__________________________
__________________________
PVG Associates, L.P.
By: PVG Equity Partners, L.L.C.
Its General Partner
Signature: _______________________
Printed Name:
Title: Member
Address: __________________________
__________________________
__________________________
Delphi Ventures III, L.P.
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
Delphi BioInvestments III, L.P.
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
VBW Partners, L.P.
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
Seaflower Health and Technology
Fund, LLC
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
J&L ▇▇▇▇▇▇▇▇ Family, LLC
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
Privat Kredit Bank
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
SIGNATURE PAGE TO INVESTORS RIGHTS AGREEMENT
Pictet Bank
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
Pictet Bank
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
ICD, Ltd.
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
Guadamur LTD.
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
SIGNATURE PAGE TO INVESTORS RIGHTS AGREEMENT
Privat Kredir Bank
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
Rigel Investment Corp.
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
Rigel Investment Corp. #2
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
Privat Kredir Bank
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
SIGNATURE PAGE TO INVESTORS RIGHTS AGREEMENT
Gole Inc. A
Signature: _______________________
Printed Name: ____________________
Title: ___________________________
Address: __________________________
__________________________
__________________________
SIGNATURE PAGE TO INVESTORS RIGHTS AGREEMENT
