NORTHWEST BIOTHERAPEUTICS, INC. SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
EXHIBIT 10.3
NORTHWEST BIOTHERAPEUTICS, INC.
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Second Amended and Restated Investor Rights Agreement (the “Agreement”) is
entered into as of the 22nd day of June, 2007, by and between Northwest
Biotherapeutics, Inc., a Delaware corporation (the “Company”), Toucan Capital Fund II,
L.P. (“Toucan Capital”) and Toucan Partners, LLC (“Toucan Partners” and, collectively with
Toucan Capital, the “Investors”).
Recitals
Whereas, Toucan Capital holds shares of the Company’s Series A Cumulative Convertible
Preferred Stock (the “Series A Stock”) and Series A-1 Cumulative Convertible Preferred Stock (the
“Series A-1 Preferred Stock” and, together with the Series A Stock, the “Preferred Stock”) and
Toucan Capital is electing to convert all shares of Preferred Stock that it holds into shares of
Common Stock of the Company, pursuant to that certain Conversion Agreement dated of even date
herewith;
Whereas, Toucan Partners will receive shares of Common Stock of the Company in
conjunction with the Conversion Agreement and holds notes convertible into, and warrants
exercisable for, additional shares of capital stock of the Company;
Whereas, Toucan Capital and the Company are party to that certain Investor Rights
Agreement (the “Original Agreement”), which was amended and restated in its entirety by the Amended
and Restated Investor Rights Agreement (the “Amended and Restated Agreement”) on April 17, 2006;
Whereas, the Conversion Agreement is conditioned upon the execution and delivery of
this Agreement; and
Whereas, in connection with the consummation of the Conversion Agreement, the parties
desire to enter into this Agreement in order to further amend and restate the Amended and Restated
Agreement, add Toucan Partners as a party to the agreement, and to provide Investors with the
registration and other rights as set forth below, subject to the admission of the Company’s Common
Stock for trading on AIM.
Now, Therefore, in consideration of these premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. GENERAL.
1.1 Definitions. As used in this Agreement the following terms shall have the following
respective meanings:
(a) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(b) “Form S-3” means such form under the Securities Act as in effect on the date hereof or any
successor or similar registration form under the Securities Act subsequently adopted by the SEC
which permits inclusion or incorporation of substantial information by reference to other documents
filed by the Company with the SEC.
(c) “Holder” means any person owning of record Registrable Securities that have not been sold
to the public or any assignee of record of such Registrable Securities in accordance with Section
2.10 hereof.
(d) “Notes” shall mean those certain convertible promissory notes held by Toucan Partners that
are convertible for shares of the Company’s capital stock.
(e) “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.
(f) “Registrable Securities” means (a) Common Stock of the Company held by the Holders or
issuable or issued upon conversion of the Notes and/or Warrants and (b) any Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to, or in exchange for
or in replacement of, such above-described securities. Notwithstanding the foregoing, Registrable
Securities shall not include any securities (i) sold by a person to the public either pursuant to a
registration statement or Rule 144, (ii) sold in a private transaction in which the transferor’s
rights under Section 2 of this Agreement are not assigned or (iii) held by a Holder (together with
its affiliates) if, as reflected on the Company’s list of stockholders, such Holder (together with
its affiliates) holds less than 1% of the Company’s outstanding Common Stock (treating all shares
of Preferred Stock on an as converted basis) and all shares of Common Stock of the Company issuable
or issued upon conversion of the Shares held by and issuable to such Holder (and its affiliates)
may be sold pursuant to Rule 144 during any ninety (90) day period.
(g) “Registrable Securities then outstanding” shall be the number of shares of the Company’s
Common Stock that are Registrable Securities and either (a) are then issued and outstanding or (b)
are issuable pursuant to then exercisable or convertible securities.
(h) “Registration Expenses” shall mean all expenses incurred by the Company in complying with
Sections 2.2, 2.4 and 2.6 hereof, 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 one hundred thousand dollars ($100,000) 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 shall be paid in any event by the Company).
(i) “SEC” or “Commission” means the Securities and Exchange Commission.
(j) “Securities Act” shall mean the Securities Act of 1933, as amended.
(k) “Selling Expenses” shall mean all underwriting discounts and selling commissions
applicable to the sale.
(l) “Shares” shall mean the Company’s Common Stock issued pursuant to the Conversion Agreement
held from time to time by the Investors and their permitted assigns and the Capital Stock issuable
upon conversion of the Notes or exercise of the Warrants, and any additional shares of Common Stock
acquired by the Investors after the date hereof (including additional shares of Common Stock of the
Company directly or indirectly issuable upon conversion, exchange or exercise of any securities).
(m) “Special Registration Statement” shall mean (i) a registration statement relating to any
employee benefit plan or (ii) with respect to any corporate reorganization or transaction under
Rule 145 of the Securities Act, any registration statements related to the issuance or resale of
securities issued in such a transaction or (iii) a registration related to stock issued upon
conversion of debt securities.
(n) “Warrants” shall mean those certain warrants to purchase capital stock of the Company held
by Toucan Capital dated June 1, 2007 and those certain warrants to purchase capital stock of the
Company held by Toucan Partners dated June 1, 2007, and any such additional warrants issued to
Toucan Partners thereafter.
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER.
2.1 Restrictions on Transfer.
(a) Each Holder agrees not to make any disposition of all or any portion of the Shares or
Registrable Securities unless and until:
(i) 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
(ii) (A) The transferee has agreed in writing to be bound by the terms of this Agreement, (B)
such Holder shall have notified the Company of the proposed disposition and shall have furnished
the Company with a detailed statement of the circumstances surrounding the proposed disposition,
and (C) if reasonably requested by the Company, such Holder shall have 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 any
transferee pursuant to Rule 144 to be bound by the terms of this Agreement if the shares so
transferred do not remain Registrable Securities hereunder following such transfer.
(b) Notwithstanding the provisions of subsection (a) above, no such restriction shall apply to
a transfer by a Holder that is (A) a partnership transferring to its partners or former partners in
accordance with partnership interests, (B) a corporation transferring to an affiliate, (C) a
limited liability company transferring to its members or former members in accordance with their
interest in the limited liability company, (D) an individual transferring to the Holder’s family
member or trust for the benefit of an individual Holder, or (E) any other party permitted
under applicable federal and state securities laws; provided that in each case the transferee
will agree in writing to be subject to the terms of this Agreement to the same extent as if he were
an original Holder hereunder.
(c) Each certificate representing Shares or Registrable Securities shall be stamped or
otherwise imprinted with legends 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, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED.
THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND
CONDITIONS OF A CERTAIN INVESTOR RIGHTS AGREEMENT BY AND BETWEEN THE
STOCKHOLDER AND THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.
(d) The Company shall be obligated to reissue promptly unlegended certificates at the request
of any Holder thereof if the Holder shall have obtained an opinion of counsel (which counsel may be
counsel to the Company) reasonably acceptable to the Company to the effect that the securities
proposed to be disposed of may lawfully be so disposed of without registration, qualification and
legend, provided that the second legend listed above shall be removed only at such time as the
Holder of such certificate is no longer subject to any restrictions hereunder.
(e) Any legend endorsed on an instrument pursuant to applicable state securities laws and the
stop-transfer instructions with respect to such securities shall 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 holders of at least 20% of the Registrable Securities issued or issuable to the Holders
(the “Initiating Holders”) request that the Company file a registration statement on Form SB-2 or
Form S-1 (the “Registration Statement”) covering at least 10% of the Registrable Securities issued
or issuable to the Holders (or any lesser percentage if the anticipated aggregate
offering price would exceed $2,000,000), the Company shall cause the Registrable Securities to
be registered.
(b) If the Investor intends to distribute the Registrable Securities covered by their request
by means of an underwriting, it shall so advise the Company as a part of its request made pursuant
to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such
information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable.
In such event, the right of any Holder to include its Registrable Securities in such registration
shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of
such Holder’s Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters selected for such
underwriting by the Holders of a majority of the Registrable Securities held by all Initiating
Holders (which underwriter or underwriters shall be reasonably acceptable to the Company).
Notwithstanding any other provision of this Section 2.2 or 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 shall 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 shall 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); provided, however, that the number of shares
of Registrable Securities to be included in such underwriting and registration shall not be reduced
unless all other securities of the Company are first entirely excluded from the underwriting and
registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) if the Company has effected two (2) registrations pursuant to this Section 2.2 in the
preceding twelve (12) months, and such registrations have been declared or ordered effective; or
(ii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may
be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below and
the Company undertakes promptly to file such Form S-3.
2.3 Piggyback Registrations. The Company shall notify all Holders of Registrable Securities
in writing at least fifteen (15) 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 Special Registration Statements) and will afford each such Holder an opportunity to
include in such registration statement all or part of 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 shall, within fifteen (15) days after the above-described notice
from the Company, so notify the Company in writing. Such notice shall 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 shall nevertheless continue to have the
right to include any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings of its securities,
all upon the terms and conditions set forth herein.
(a) Underwriting. If the registration statement of which the Company gives notice under this
Section 2.3 is for an underwritten offering, the Company shall so advise the Holders of Registrable
Securities. In such event, the right of any such Holder to include Registrable Securities in a
registration pursuant to this Section 2.3 shall be conditioned upon such Holder’s participation in
such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to
the extent provided herein. All Holders proposing to distribute their Registrable Securities
through such underwriting shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any
other provision of this Agreement, if the underwriter reasonably 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 shall be allocated, first, to the Company; second,
to the Holders on a pro rata basis based on the total number of Registrable Securities held by the
Holders; and third, to any stockholder of the Company (other than a Holder) on a pro rata basis;
provided, however, that no such reduction shall reduce the amount of securities of the selling
Holders included in the registration below thirty percent (30%) of the total amount of securities
included in such registration in accordance with the immediately preceding clause. In no event
will shares of any other selling stockholder be included in such registration that would reduce the
number of shares which may be included by Holders without the written consent of Holders of not
less than a majority of the Registrable Securities proposed to be sold in the offering. If any
Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw
therefrom by written notice to the Company and the underwriter, delivered at least ten (10) days
prior to the effective date of the registration statement. Any Registrable Securities excluded or
withdrawn from such underwriting shall be excluded and withdrawn from the registration. For any
Holder which is a partnership, limited liability company or corporation, the partners, retired
partners, members, retired members and stockholders of such Holder, or the estates and family
members of any such partners, retired partners, members and retired members and any trusts for the
benefit of any of the foregoing person shall be deemed to be a single “Holder,” and any pro rata
reduction with respect to such “Holder” shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such “Holder,” as defined in
this sentence.
2.4 Form S-3 Registration. In case the Company shall receive from any Holder or Holders of
Registrable Securities a written request or requests that the Company effect a registration on Form
S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related
qualification or compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any related qualification
or compliance, to all other Holders of Registrable Securities; and
(b) as soon as practicable, effect such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale and distribution of
all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given within fifteen (15)
days after receipt of such written notice from the Company; provided, however, that the Company
shall not be obligated to effect any such registration, qualification or compliance pursuant to
this Section 2.4:
(i) if Form S-3 is not available for such offering by the Holders, or
(ii) if the Holders, together with the holders of any other securities of the Company entitled
to inclusion in such registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public of less than one million dollars ($1,000,000).
(c) Subject to the foregoing, the Company shall file a Form S-3 registration statement
covering the Registrable Securities and other securities so requested to be registered as soon as
practicable after receipt of the requests of the Holders. Registrations effected pursuant to this
Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to
Section 2.2.
2.5 Expenses of Registration. Except as specifically provided herein, all Registration
Expenses incurred in connection with any registration, qualification or compliance pursuant to
Section 2.2, 2.3 or 2.4 herein shall be borne by the Company. All Selling Expenses incurred in
connection with any registrations hereunder, shall be borne by the holders of the securities so
registered pro rata on the basis of the number of shares so registered. The Company shall not,
however, be required to pay for expenses of any registration proceeding begun pursuant to Section
2.2 or 2.3, 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) the Holders of a majority of
Registrable Securities agree to deem such registration to have been effected as of the date of such
withdrawal for purposes of determining whether the Company shall be obligated pursuant to Section
2.2(c) to undertake any subsequent registration, in which event such right shall be forfeited by
all Holders). If the Holders are required to pay the Registration Expenses, such expenses shall 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. If the Company is
required to pay the Registration Expenses of a withdrawn offering pursuant to clause (a) above,
then such registration shall not be deemed to have been effected for purposes of determining
whether the Company shall be obligated pursuant to Section 2.2 to undertake any subsequent
registration.
2.6 Obligations of the Company. Whenever required to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably possible:
(a) prepare and file within sixty (60) days of the receipt of a request for registration of
Registrable Securities 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 within one hundred twenty (120) days of such request, and keep such registration
statement effective until the 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 for the period set forth in subsection (a)
above.
(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 its best efforts to register and qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders; provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of
such offering. Each Holder participating in such underwriting shall also enter into and perform
its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing. The Company will amend or supplement such prospectus
in order to cause such prospectus not to include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
(g) Use its best efforts to furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold through underwriters, (i)
an opinion, dated as of such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and (ii) 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 addressed to the underwriters.
2.7 Delay of Registration; Furnishing Information.
(a) No Holder shall have any right to obtain or seek an injunction restraining or otherwise
delaying any such registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 2.
(b) It shall 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 shall furnish to the Company such
information regarding themselves, the Registrable Securities held by them and the intended method
of disposition of such securities as shall be required to effect the registration of their
Registrable Securities.
(c) The Company shall have no obligation with respect to any registration requested pursuant
to Section 2.2 or Section 2.4 if the number of shares or the anticipated aggregate offering price
of the Registrable Securities to be included in the registration does not equal or exceed the
number of shares or the anticipated aggregate offering price required to originally trigger the
Company’s obligation to initiate such registration as specified in Section 2.2 or Section 2.4,
whichever is applicable.
2.8 Liquidated Damages. In the event that the Company shall fail to cause the Registration
Statement to be timely filed, timely declared effective as provided herein, the Company shall pay
as liquidated damages the amount of 1% per month of the aggregate purchase price for the securities
to be sold pursuant to the Registration Statement (or such lesser amount that is the maximum
permitted under applicable rules and regulations of the U.S. Small Business Administration (“SBA”))
provided, however, that in no event shall the aggregate liquidated damages exceed ten percent (10%)
of the aggregate purchase price of the Registrable Securities proposed to be included in the
Registration Statement.
2.9 Indemnification. In the event any Registrable Securities are included in a registration
statement under Sections 2.2, 2.3 or 2.4:
(a) To the fullest extent permitted by law, the Company will indemnify and hold harmless each
Holder, the partners, members, officers and directors of each Holder, any underwriter (as defined
in the Securities Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages, or liabilities (joint or several) other than consequential losses of any kind, to
which they may become subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or violations (collectively a
“Violation”) by the Company: (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement or incorporated reference therein, including any
preliminary prospectus or final prospectus contained therein or any amendments or supplements
thereto, (ii) the omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or (iii) any violation
or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities
law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state
securities law in connection with the offering covered by
such registration statement; and the Company will reimburse each such Holder, partner, member,
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) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company, which consent shall not
be unreasonably withheld, nor shall the Company be liable in any such case for any such loss,
claim, damage, liability or action to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Holder, partner, member, officer, director,
underwriter or controlling person of such Holder.
(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 qualifications or compliance is
being effected, indemnify and hold harmless the Company, each of its directors, its officers and
each person, if any, who controls the Company within the meaning of the Securities Act, any
underwriter and any other Holder selling securities under such registration statement or any of
such other Holder’s partners, directors or officers or any person who controls such Holder, against
any losses, claims, damages or liabilities (joint or several) to which the Company or any such
director, officer, controlling person, underwriter or other such Holder, or partner, director,
officer or controlling person of such other Holder may become subject under the Securities Act, the
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 of the following statements: (i)
any untrue statement or alleged untrue statement of a material fact contained in such registration
statement or incorporated reference therein, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or necessary to make the
statements therein not misleading, or (iii) any violation or alleged violation by the Company of
the Securities Act (collectively, a “Holder Violation”), in each case to the extent (and only to
the extent) that such Holder 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 the Company or any such director, officer,
controlling person, underwriter or other Holder, or partner, officer, director or controlling
person of such other Holder in connection with investigating or defending any such loss, claim,
damage, liability or action if it is judicially determined that there was such a Holder Violation;
provided, however, that the indemnity agreement contained in this Section 2.9(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement
is effected without the consent of the Holder, which consent shall not be unreasonably withheld;
provided further, that in no event shall any indemnity under this Section 2.9 exceed the net
proceeds from the offering received by such 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 shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to
assume the defense thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel, with the fees and
expenses thereof 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 shall relieve such indemnifying party of any
liability to the indemnified party under this Section 2.9 to the extent, and only to the extent,
prejudicial to its ability to defend such action, 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, shall 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(s) or Holder
Violation(s) that resulted in such loss, claim, damage or liability, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of the indemnified
party shall 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 shall any contribution by a Holder hereunder
exceed the net proceeds from the offering received by such Holder.
(e) The obligations of the Company and Holders under this Section 2.9 shall survive completion
of any offering of Registrable Securities in a registration statement and, with respect to
liability arising from an offering to which this Section 2.9 would apply that is covered by a
registration filed before termination of this Agreement, such termination. No indemnifying party,
in the defense of any such claim or litigation, shall, except with the consent of each indemnified
party, 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.
(f) Notwithstanding any of the foregoing provisions of this Section 2.9, no party shall be
entitled to indemnification against any consequential damages.
2.10 Assignment of Registration Rights. The rights to cause the Company to register
Registrable Securities pursuant to this Section 2 may be assigned by a Holder to a transferee or
assignee of Registrable Securities (for so long as such shares remain Registrable Securities) that
(a) is a subsidiary, parent, general partner, limited partner, retired partner, member or retired
member, or stockholder of a Holder that is a corporation, partnership or limited liability
company, (b) is a Holder’s family member or trust for the benefit of an individual Holder, (c)
acquires at least one million (1,000,000) shares of Registrable Securities (as adjusted for stock
splits and combinations); (d) is an entity affiliated by common control (or other related entity)
with such Holder, or (e) is any other permitted assignee or transferee under applicable federal and
state securities laws, provided, however, (i) the transferor shall, within ten (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
(ii) such transferee shall agree to be subject to all restrictions set forth in this Agreement.
2.11 Limitation on Subsequent Registration Rights. Without the consent of the holders of a
majority of the Registrable Securities, 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
that would grant such holder rights to demand the registration of shares of the Company’s capital
stock, or to include such shares in a registration statement that would reduce the number of shares
includable by the Holders.
2.12 Agreement to Furnish Information. If requested by the Company or the representative of
the underwriters of Common Stock (or other securities) of the Company, each Holder shall provide,
within ten (10) days of such request, such information as may be required by the Company or such
representative in connection with the completion of any public offering of the Company’s securities
pursuant to a registration statement filed under the Securities Act. The obligations described in
this Section 2.12 shall not apply to a Special Registration Statement. 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 day period. Each Holder agrees that any
transferee of any shares of Registrable Securities shall be bound by this Section 2.12. The
underwriters of the Company’s stock are intended third party beneficiaries of this Section 2.12 and
shall have the right, power and authority to enforce the provisions hereof as though they were a
party hereto.
2.13 Rule 144 Reporting. With a view to making available to the Holders the benefits of
certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to
the public without registration, the Company agrees to 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 filed by the Company 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; and
(c) So long as a Holder owns any Registrable Securities, furnish to such Holder forthwith 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 filed with the Commission; and such other reports and
documents as a Holder may reasonably request in connection with availing itself of any rule or
regulation of the SEC allowing it to sell any such securities without registration.
SECTION 3. COVENANTS OF THE COMPANY.
3.1 Qualified Small Business. The Company will use best efforts to comply with the reporting
and recordkeeping requirements of Section 1202 of the Internal Revenue Code of 1986, as amended
(the “Code”), any regulations promulgated thereunder and any similar state laws and regulations and
agrees not to repurchase any stock of the Company if such repurchase would cause the Shares not to
so qualify as “Qualified Small Business Stock,” so long as the Company’s Board of Directors
determines that it is in the best interests of and not unduly burdensome to the Company to comply
with the provisions of Section 1202 of the Code.
3.2 Certain Covenants Relating to SBA Matters.
(a) Use of Proceeds. The Company has used, and shall continue to use, the proceeds from the
sale of the Preferred Stock (the “Proceeds”) for its growth, modernization or expansion. The
Company shall provide each Investor which is a licensed Small Business Investment Company (an “SBIC
Investor”) and the SBA reasonable access to the Company’s books and records for the purpose of
confirming the use of Proceeds.
(b) Business Activity. For so long as any SBIC Investor holds any securities of the Company,
the Company shall not change the nature of its business activity if such change would render the
Company ineligible as provided in 13 C.F.R. Section 107.720.
(c) Compliance. So long as any SBIC Investor holds any securities of the Company, the Company
will at all times comply with the non-discrimination requirements of 13 C.F.R. Parts 112, 113 and
117.
(d) Information for SBIC Investor. Within forty five (45) days after the end of each fiscal
year and at such other times as an SBIC Investor may reasonably request, the Company shall deliver
to such SBIC Investor a written assessment, in form and substance reasonably satisfactory to such
SBIC Investor, of the economic impact of such SBIC Investor’s financing specifying the full-time
equivalent jobs created or retained in connection with such investment, and the impact of the
financing on the Company’s business in terms of profits and on taxes paid by the Company and its
employees. Upon request, the Company agrees to promptly provide each SBIC Investor with sufficient
information to permit such Investor to comply with their obligations under the Small Business
Investment Act of 1958, as amended, and the regulations promulgated thereunder and related thereto;
provided, however, each SBIC Investor agrees that it will protect any information which the Company
labels as confidential to the extent permitted by law. Any submission of any financial information
under this Section shall include a certificate of the Company’s president, chief executive officer,
treasurer or chief financial officer.
(e) Number of Holders of Voting Securities. So long as any SBIC Investor holds any securities
purchased pursuant to the Purchase Agreement or issued by the Company with respect thereto, the
Company shall notify each SBIC Investor (i) at least fifteen (15) days prior to taking any action
after which the number of record holders of the Company’s voting
securities would be increased from fewer than fifty (50) to fifty (50) or more, and (ii) of
any other action or occurrence after which the number of record holders of the Company’s voting
securities was increased (or would increase) from fewer than fifty (50) to fifty (50) or more, as
soon as practicable after the Company becomes aware that such other action or occurrence has
occurred or is proposed to occur.
SECTION 4. MISCELLANEOUS.
4.1 Effectiveness of this Agreement. This Agreement shall be effective immediately upon
Admission.
4.2 Governing Law. This Agreement shall be governed by and construed under the laws of the
State of Delaware in all respects as such laws are applied to agreements among Delaware residents
entered into and to be performed entirely within Delaware, without reference to conflicts of laws
or principles thereof. The parties agree that any action brought by either party under or in
relation to this Agreement, including without limitation to interpret or enforce any provision of
this Agreement, shall be brought in, and each party agrees to and does hereby submit to the
jurisdiction and venue of, any state or federal court located in the County of Wilmington,
Delaware.
4.3 Successors and Assigns. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the parties hereto and their respective
successors, assigns, heirs, executors, and administrators and shall inure to the benefit of and be
enforceable by each person who shall be 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, including the payment of dividends or
any redemption price.
4.4 Entire Agreement. This Agreement, the Exhibits and Schedules hereto, the Purchase
Agreement and the other documents delivered pursuant thereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects hereof and no party
shall be liable or bound to any other in any manner by any oral or written representations,
warranties, covenants and agreements except as specifically set forth herein and therein. Each
party expressly represents and warrants that it is not relying on any oral or written
representations, warranties, covenants or agreements outside of this Agreement.
4.5 Severability. In the event one or more of the provisions of this Agreement should, for
any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provisions of this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
4.6 Amendment and Waiver.
(a) Except as otherwise expressly provided, this Agreement may be amended or modified, and
the obligations of the Company and the rights of the Holders under this
Agreement may be waived, only upon the written consent of the Company and the holders of at
least a majority of the then-outstanding Registrable Securities.
(b) For the purposes of determining the number of Holders entitled to vote or exercise any
rights hereunder, the Company shall be entitled to rely solely on the list of record holders of its
stock as maintained by or on behalf of the Company.
4.7 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power,
or remedy accruing to any party, upon any breach, default or noncompliance by another party under
this Agreement shall impair any such right, power, or remedy, nor shall it be construed to be a
waiver of any such breach, default or noncompliance, or any acquiescence therein, or of any similar
breach, default or noncompliance thereafter occurring. It is further agreed that any waiver,
permit, consent, or approval of any kind or character on any party’s part of any breach, default or
noncompliance under the Agreement or any waiver on such party’s part of any provisions or
conditions of this Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this Agreement, by law, or
otherwise afforded to any party, shall be cumulative and not alternative.
4.8 Notices. All notices required or permitted hereunder shall be in writing and shall be
deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by
confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if
not, then on the next business day, (c) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the party to be notified at the address as set forth
on the signature pages hereof or at such other address or electronic mail address as such party may
designate by ten (10) days advance written notice to the other parties hereto.
4.9 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.
4.10 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 instrument.
4.11 Aggregation of Stock. All shares of Registrable Securities held or acquired by
affiliated entities or persons or persons or entities under common management or control shall be
aggregated together for the purpose of determining the availability of any rights under this
Agreement.
4.12 Pronouns. All pronouns contained herein, and any variations thereof, shall be deemed to
refer to the masculine, feminine or neutral, singular or plural, as to the identity of the parties
hereto may require.
4.13 Termination. This Agreement shall terminate and be of no further force or effect upon an
Acquisition.
[Signature Page Follows]
In Witness Whereof, the parties hereto have executed this Second Amended
and Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
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