EXHIBIT 4.3
AMENDMENT NO. 1
TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED INVESTORS' RIGHTS
AGREEMENT ("Amendment") is made and entered into as of August 11, 1999, by and
among SYMBION, INC., a Tennessee corporation formerly named "UniPhy Healthcare,
Inc." (the "Company"), and those Persons identified on Exhibit A attached hereto
(collectively, the "Investors" and each individually an "Investor").
R E C I T A L S:
WHEREAS, the Company and the Investors are parties to that certain
Amended and Restated Investors' Rights Agreement, dated as of June 25, 1999 (the
"Investors' Rights Agreement");
WHEREAS, the Company and certain of the Investors are parties to that
certain Securities Purchase Agreement, dated as of July 6, 1999 (the "Purchase
Agreement");
WHEREAS, Section 1(B) of the Purchase Agreement grants an option (the
"Option") of limited duration to Richland Ventures III, L.P. ("RVIII") to
purchase up to 3,191,489 shares (the "Option Shares") of the common stock, no
par value (the "Common Stock"), of the Company, at a purchase price of $1.88 per
share;
WHEREAS, in the event that RVIII purchases the Option Shares, the
Company and the Investors desire that RVIII obtain the rights and obligations of
an "Investor," an "ARC Key Shareholder" and an "Anti-Dilution Investor" under
the Investors' Rights Agreement;
WHEREAS, the Company may, pursuant to Section 1(C) of the Purchase
Agreement, issue and sell up to 5,319,149 shares (the "Reserve Shares") of
Common Stock (including the Option Shares) to any person or entity (each, a
"Reserve Share Purchaser");
WHEREAS, in the event that a Reserve Share Purchaser purchases Reserve
Shares, the Company and the Investors may desire that such Reserve Share
Purchaser have the rights and obligations of an "Investor," a "UniPhy Preferred
Shareholder," a "UniPhy Founder" or an "ARC Key Shareholder," and an
"Anti-Dilution Investor" under the Investors' Rights Agreement;
WHEREAS, the Company may, from time to time after the date hereof,
issue and sell additional shares of Common Stock ("Additional Shares") to
various persons or entities (each, a "Subsequent Purchaser");
WHEREAS, in the event that a Subsequent Purchaser purchases Additional
Shares, the Company and the Investors may desire that such Subsequent Purchaser
have the rights and obligations of an "Investor" and a "UniPhy Preferred
Shareholder," a "UniPhy Founder" or an "ARC Key Shareholder" under the
Investors' Rights Agreement;
WHEREAS, the Company and the Investors desire to amend the Investors'
Rights Agreement as set forth in this Amendment, pursuant to Section 6.5 of the
Investors' Rights Agreement; and
WHEREAS, capitalized terms used herein without definition shall have
the same
meanings ascribed to such terms in the Investors' Rights Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements contained herein, the sufficiency of which is hereby
acknowledged, the parties hereby agree and consent to the following:
A G R E E M E N T:
1. RVIII Amendment. The Investors' Rights Agreement is hereby amended by
adding and appending the following as Section 7 of the Investors' Rights
Agreement:
7. Addition of RVIII as a Party. Notwithstanding the provisions of
Section 6.5 or any other Section hereof, upon the occurrence of: (i)
the exercise by Richland Ventures III, L.P. ("RVIII") of the option
(the "Option") to purchase up to 3,191,489 shares (the "Option Shares")
of Common Stock at a purchase price of $1.88 per share which was
granted to RVIII in Section 1(B) of that certain Securities Purchase
Agreement, dated as of July 6, 1999 (the "Purchase Agreement"), among
the Company and certain purchasers identified in such agreement, and
the purchase of Option Shares by RVIII, and (ii) the execution and
delivery to the Company by RVIII of a counterpart of this Amended and
Restated Agreement (as then amended), adopting and accepting the terms
hereof, and (iii) acceptance and countersignature of such counterpart
by the Company:
(a) RVIII shall be a party to this Amended and Restated Agreement;
and
(b) Exhibit A attached to this Amended and Restated Agreement
shall be amended to add RVIII as a person identified thereon, and RVIII
shall be, and shall be included within the definition of, an "Investor"
for purposes of this Amended and Restated Agreement; and
(c) Exhibit A attached to this Amended and Restated Agreement
shall be amended to identify RVIII as an "Anti-Dilution Investor," and
RVIII shall be, and shall be included within the definition of, an
"Anti-Dilution Investor" for purposes of this Amended and Restated
Agreement; and
(d) RVIII shall be, and shall be included within the definition
of, an "ARC Key Shareholder," for purposes of this Amended and Restated
Agreement; and
(e) RVIII shall have, and be entitled and subject to, all of the
rights, benefits, duties and obligations of an "Investor," an "ARC Key
Shareholder" and an "Anti-Dilution Investor" under this Amended and
Restated Agreement, subject to the terms hereof.
2. Reserve Share Purchasers Amendment. The Investors' Rights Agreement is
hereby further amended by adding and appending the following as Section 8, and
Sections 8.1 and 8.2 thereunder, of the Investors' Rights Agreement:
8. Addition of Reserve Share Purchasers as Parties.
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8.1 Reserve Share Purchasers. The parties hereto acknowledge and
agree that, pursuant to Section 1(C) of the Purchase Agreement, the
Company may issue, offer and sell up to 5,319,149 shares (the "Reserve
Shares") of Common Stock (including the 3,191,489 Option Shares) to any
person or entity (each, a "Reserve Share Purchaser"). Notwithstanding
the provisions of Section 6.5 or any other Section hereof, upon the
occurrence of: (i) the purchase from the Company by a Reserve Share
Purchaser of Reserve Shares (but not including the purchase of Option
Shares by RVIII, which is addressed in and governed by Section 7
above), and (ii) the execution and delivery to the Company by such
Reserve Share Purchaser of a counterpart of this Amended and Restated
Agreement (as then amended), adopting and accepting the terms hereof,
and (iii) acceptance and countersignature of such counterpart by the
Company:
(a) such Reserve Share Purchaser shall be a party to this
Amended and Restated Agreement; and
(b) Exhibit A attached to this Amended and Restated Agreement
shall be amended to add such Reserve Share Purchaser as a person
identified thereon, and such Reserve Share Purchaser shall be, and
shall be included within the definition of, an "Investor" for purposes
of this Amended and Restated Agreement; and
(c) subject to Section 8.2 below, Exhibit A attached to this
Amended and Restated Agreement shall be amended to identify such
Reserve Share Purchaser as an "Anti-Dilution Investor," and such
Reserve Share Purchaser shall be, and shall be included within the
definition of, an "Anti-Dilution Investor" for purposes of this Amended
and Restated Agreement; and
(d) subject to Section 8.2 below, such Reserve Share Purchaser
shall be, and shall be included within the definition of, either of a
"UniPhy Preferred Shareholder," a "UniPhy Founder" or an "ARC Key
Shareholder" (as designated by the Company pursuant to Section 8.2
below), for purposes of this Amended and Restated Agreement; and
(e) subject to Section 8.2 below, such Reserve Share
Purchaser shall have, and shall be entitled and subject to, all of the
rights, benefits, duties and obligations of an "Investor," a "UniPhy
Preferred Shareholder," a "UniPhy Founder" or an "ARC Key Shareholder"
(as designated by the Company pursuant to Section 8.2 below), and an
"Anti-Dilution Investor" under this Amended and Restated Agreement,
subject to the terms hereof.
8.2 Designation as Anti-Dilution Investor and UniPhy Preferred
Shareholder, UniPhy Founder or ARC Key Shareholder. The Company shall
have the right, power and authority, to determine, in its discretion,
in negotiation or agreement with one or more Reserve Share Purchasers
or otherwise, whether or not a particular Reserve Share Purchaser shall
(in addition to becoming a party hereto and an "Investor" hereunder) be
identified and/or designated as an "Anti-Dilution Investor" and/or a
"UniPhy Preferred Shareholder," "UniPhy Founder" or "ARC Key
Shareholder" for purposes of this Amended and Restated Agreement, and
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thereby have, and be entitled and subject to, all of the rights,
benefits, duties and obligations of such designation or identification
under this Amended and Restated Agreement, pursuant to Sub-sections
8.1(c), (d) and (e) above.
3. Subsequent Purchasers Amendment. The Investors' Rights Agreement is
hereby further amended by adding and appending the following as Section 9 of the
Investors' Rights Agreement:
9. Addition of Subsequent Purchasers as Parties. The parties hereto
acknowledge and agree that the Company may, from time to time, offer
and sell shares of Common Stock (such shares, "Additional Shares") in
addition to Option Shares and Reserve Shares to one or more
individuals, persons or entities (each, a "Subsequent Purchaser").
Notwithstanding the provisions of Section 6.5 or any other Section
hereof, upon the occurrence of: (i) the purchase from the Company by a
Subsequent Purchaser of Additional Shares, and (ii) the execution and
delivery to the Company by such Subsequent Purchaser of a counterpart
of this Amended and Restated Agreement (as then amended), adopting and
accepting the terms hereof, and (iii) acceptance and countersignature
of such counterpart by the Company:
(a) such Subsequent Purchaser shall be a party to this Amended and
Restated Agreement; and
(b) Exhibit A attached to this Amended and Restated Agreement
shall be amended to add such Subsequent Purchaser as a person
identified thereon, and such Subsequent Purchaser shall be, and shall
be included within the definition of, an "Investor" for purposes of
this Amended and Restated Agreement; and
(c) such Subsequent Purchaser shall have, and shall be entitled
and subject to, all of the rights, benefits, duties and obligations of
an "Investor" under this Amended and Restated Agreement, subject to the
terms hereof.
4. Deletion of Current Provision Regarding Additional Investors. The
Investors' Rights Agreement is hereby further amended by deleting Sub-section
6.5(c) of the Investors' Rights Agreement in its entirety, which subsection
shall thereupon be void and without effect.
5. Requisite Approval. Upon execution and delivery of this Amendment by
the Company and Investors representing the requisite percentage of Registrable
Shares set forth in Section 6.5 of the Investors' Rights Agreement, this
Amendment shall constitute and be deemed to be an amendment to and part of the
Investors' Rights Agreement.
6. No Other Changes. Except as expressly set forth or contemplated in this
Amendment, the terms and conditions of the Investors' Rights Agreement shall
remain in place and shall not be altered, amended or changed in any manner
whatsoever, except by any further amendment to the Investors' Rights Agreement
made in accordance with the terms of the Investors' Rights Agreement, as hereby
amended.
7. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when executed and delivered shall be deemed an original effective for
binding the parties hereto, but all of which shall together constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Amended and Restated Investors' Rights Agreement, and hereby consent to the
amendment and modification of the Investors' Rights Agreement provided herein,
as of the date first above written.
THE COMPANY:
SYMBION, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President and Chief Executive Officer
INVESTORS:
UniPhy PREFERRED SHAREHOLDERS:
ABS Capital Partners, L.P.
/s/ ABS Partners, L.P.
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By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: General Partner
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/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
/s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇
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R. ▇▇▇▇ ▇▇▇▇▇▇▇
5
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▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ INVESTMENT PARTNERSHIP II
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Title:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
PACIFIC VENTURE GROUP, L.P.
By: PVG Equity Partner, L.L.C.,
its General Partner
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Member
PVG ASSOCIATES, L.P.
By: PVG Equity Partner, L.L.C.,
its General Partner
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Member
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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ARC KEY SHAREHOLDERS:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ FOUNDATION
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By:
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Name:
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Title:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
FIRST AVENUE PARTNERS, L.P.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
HEALTH TECH AFFILIATES, INC.
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By:
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Name:
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Title:
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HLM/CB FUND, L.P.
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By:
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Name:
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Title:
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HLM PARTNERS VII, L.P.
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By:
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Name:
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Title:
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W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
By:
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Name:
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Title:
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B. Max Lauderdale
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
RICHLAND VENTURES II, L.P.
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Partner
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▇▇▇ ▇. ▇▇▇▇▇▇
SOUTH ATLANTIC PRIVATE EQUITY FUND IV (QP), LIMITED PARTNERSHIP
By: South Atlantic Private Equity Partners IV, Limited Partnership,
its General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chairman
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SOUTH ATLANTIC PRIVATE EQUITY FUND IV, L.P.
By: South Atlantic Private Equity Partners IV, Limited Partnership,
its General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chairman
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/s/ ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
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▇▇▇▇▇▇▇ V.B. ▇▇▇▇
▇▇ TWO, L.P.
By:
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Name:
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Title:
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▇▇▇▇▇ ▇. ▇▇▇▇, III
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UniPhy FOUNDERS:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
THE ▇▇▇▇▇▇▇ IRREVOCABLE TRUST, ▇▇▇ ▇▇▇▇▇▇▇, TRUSTEE
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Title:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ H. ▇▇▇▇▇▇ ▇▇▇▇▇▇ III
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H. ▇▇▇▇▇▇ ▇▇▇▇▇▇ III
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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EXHIBIT A
SCHEDULE OF INVESTORS
10
UniPhy PREFERRED SHAREHOLDERS
ABS Capital Partners, L.P.*
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇*
▇▇▇▇▇ ▇. ▇▇▇▇*
▇▇▇▇ ▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.*
R. ▇▇▇▇ ▇▇▇▇▇▇▇*
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Investment Partnership II*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
Pacific Venture Group, L.P.*
PVG Associates, L.P.*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇*
▇▇▇▇▇ ▇▇▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇▇▇▇▇▇*
ARC KEY SHAREHOLDERS
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Foundation*
▇▇▇▇▇ ▇. ▇▇▇▇▇*
First Avenue Partners, L.P.*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Health Tech Affiliates, Inc.
HLM/CB Fund, L.P.*
HLM Partners VII, L.P.*
W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.*
B. Max Lauderdale
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇*
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Richland Ventures II, L.P.*
▇▇▇ ▇. ▇▇▇▇▇▇
South Atlantic Private Equity Fund IV (QP)*
South Atlantic Private Equity Fund IV, L.P.*
▇▇▇ ▇▇▇▇▇▇, ▇▇.*
▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇*
WW Two, L.P.*
▇▇▇▇▇ ▇. ▇▇▇▇, III
* ANTI-DILUTION INVESTOR
UniPhy FOUNDERS
11
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
The ▇▇▇▇▇▇▇ Irrevocable Trust, ▇▇▇ ▇▇▇▇▇▇▇, Trustee*
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
H. ▇▇▇▇▇▇ ▇▇▇▇▇▇ III
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
* ANTI-DILUTION INVESTOR
12