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EXHIBIT 10.8
CALIPER TECHNOLOGIES CORP.
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
MAY 7, 1998
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TABLE OF CONTENTS
PAGE
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1. REGISTRATION RIGHTS......................................................................1
1.1 Definitions..................................................................1
1.2 Request for Registration.....................................................3
1.3 Company Registration.........................................................5
1.4 Obligations of the Company...................................................5
1.5 Expenses of Demand Registration..............................................6
1.6 Expenses of Company Registration.............................................7
1.7 Underwriting Requirements....................................................7
1.8 Delay of Registration........................................................8
1.9 Indemnification..............................................................8
1.10 Reports Under Securities Exchange Act of 1934...............................10
1.11 Form S-3 Registration.......................................................11
1.12 Assignment of Registration Rights...........................................12
1.13 Limitations on Subsequent Registration Rights...............................12
1.14 "Market Stand-Off" Agreement................................................12
1.15 Termination of Registration Rights..........................................13
2. COVENANTS OF THE COMPANY................................................................13
2.1 Financial Statements........................................................13
2.2 Inspection..................................................................14
2.3 Termination of Information and Inspection Covenants.........................14
2.4 Right of First Offer........................................................14
3. MISCELLANEOUS...........................................................................16
3.1 Successors and Assigns......................................................16
3.2 Governing Law...............................................................16
3.3 Counterparts................................................................16
3.4 Titles and Subtitles........................................................16
3.5 Notices.....................................................................16
3.6 Amendments and Waivers......................................................17
3.7 Severability................................................................17
3.8 Aggregation of Stock........................................................17
3.9 Entire Agreement............................................................17
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EXHIBIT 10.7
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the "Agreement")
is made as of the 7th of May, 1998, by and between CALIPER TECHNOLOGIES CORP., a
Delaware corporation (the "Company"), and the holders of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock and Series E Preferred Stock of the Company listed on Schedule A hereto
(the "Stockholders").
RECITALS
WHEREAS, the Company and certain of the Stockholders (the "Investors")
have entered into that certain Series E Preferred Stock Purchase Agreement,
dated as of even date herewith (the "Series E Agreement"), or will enter into
the Series E Agreement pursuant to Section 1.3 thereof, pursuant to which such
Investors shall purchase up to two million five hundred thousand (2,500,000)
shares of Series E Preferred Stock; and
WHEREAS, the Stockholders (other than the Investors who are not
currently stockholders of the Company) possess certain registration rights,
rights of first offer and other rights pursuant to that certain Amended and
Restated Investors' Rights Agreement dated May 7, 1997 (the "Prior Agreement")
among the Company and such Stockholders;
WHEREAS, the Stockholders and the Company desire to amend and restate
the Prior Agreement in its entirety and to accept the rights and obligations
created pursuant to this Agreement in lieu of the rights and obligations granted
to each of them under the Prior Agreement; and
WHEREAS, in order to induce the Company and the Investors to consummate
the transactions contemplated by the Series E Agreement, the Stockholders and
the Company hereby agree that this Agreement shall govern the rights of the
Stockholders to cause the Company to register shares of Common Stock issuable to
the Investors and the Stockholders and certain other matters as set forth
herein, and the Stockholders and the Company hereby agree that the Prior
Agreement is hereby amended and restated in its entirety by this Agreement.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. REGISTRATION RIGHTS. The Company covenants and agrees as
follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933,
as amended.
(b) The term "Form S-3" means such form under the
Act as in effect on the date hereof or any registration form under the Act
subsequently adopted by the SEC
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which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
(c) The term "Holder" means any person owning or
having the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.12 hereof.
(d) The term "1934 Act" shall mean the Securities
Exchange Act of 1934, as amended.
(e) The term "Participating Holder" shall mean with
respect to a public offering of securities of the Company, a Holder
participating in such public offering.
(f) The term "Preferred Stockholder" shall mean,
collectively, the Series A Stockholders, Series B Stockholders, Series C
Preferred Stock, Series D Stockholders and Series E Stockholders.
(g) The term "Preferred BCDE Stockholder" shall
mean, collectively, the Series B Stockholders, the Series C Stockholders, the
Series D Stockholders and the Series E Stockholders, excluding in all cases,
however, with respect to the right of first offer in Section 2.4 hereof, any
Series B Stockholder, Series C Stockholder, Series D Stockholder or Series E
Stockholder (other than the Investors who purchased Series E Stock subsequent to
the date of this Agreement pursuant to Section 1.3 of the Series E Agreement)
that acquired all of its shares of Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock and/or Series E Preferred Stock in a transaction
or series of transactions in which the right of first offer was not assigned or
transferred in accordance with Section 2.4(e) hereof.
(h) The term "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Act, and the
declaration or ordering of effectiveness of such registration statement or
document.
(i) The term "Registrable Securities" means (i) the
Common Stock issuable or issued upon conversion of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or
Series E Preferred Stock of the Company, and (ii) 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 the shares referenced
in (i) above, excluding in all cases, however, any securities which were
formerly Registrable Securities and which sold by a person in a transaction in
which his rights under this Section 1 are not assigned.
(j) The number of shares of "Registrable Securities
then outstanding" shall mean the sum of the number of shares of Common Stock
outstanding which are Registrable Securities and the number of shares of Common
Stock issuable pursuant to then exercisable or convertible securities which are
Registrable Securities.
(k) The term "SEC" shall mean the Securities and
Exchange Commission.
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(l) The term "Series A Stockholder" shall mean the
holders of the Company's Series A Preferred Stock or Common Stock issued upon
conversion of the Series A Preferred Stock.
(m) The term "Series B Stockholder" shall mean the
holders of the Company's Series B Preferred Stock or Common Stock issued upon
conversion of the Series B Preferred Stock.
(n) The term "Series C Stockholder" shall mean the
holders of the Company's Series C Preferred Stock or Common Stock issued upon
conversion of the Series C Preferred Stock.
(o) The term "Series D Stockholder" shall mean the
holders of the Company's Series D Preferred Stock or Common Stock issued upon
conversion of the Series D Preferred Stock.
(p) The term "Series E Stockholder" shall mean the
holders of the Company's Series E Preferred Stock or Common Stock issued upon
conversion of the Series E Preferred Stock.
1.2 REQUEST FOR REGISTRATION.
(a) If the Company shall receive at any time after
the earlier of (i) April 26, 1999 or (ii) three (3) months after the effective
date of the first registration statement for a public offering of securities of
the Company (other than registration statement on Form S-3 or a registration
statement relating either to the sale of securities to employees of the Company
pursuant to a stock option, stock purchase or similar plan or a Rule 145
transaction), a written request from the holders of at least twenty-five percent
(25%) of the Registrable Securities then outstanding that the Company file a
registration statement under the Act covering the registration of Registrable
Securities where the anticipated aggregate offering price to the public, net of
underwriting discounts and commissions, of which would be in excess of
$10,000,000, then the Company shall:
(i) within ten (10) days of the receipt
thereof, give written notice of such request to all Holders; and
(ii) file as soon as practicable, and in any
event within sixty (60) days of the receipt of such request, a registration
statement under the Act covering all Registrable Securities which the Holders
request to be registered, subject to the limitations of subsection 1.2(b).
(b) If the Holders initiating the registration
requested hereunder ("Initiating Holders") intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to subsection 1.2(a)
and the Company shall include such information in the written notice referred to
in subsection 1.2(a). The underwriter will be selected by the Company and shall
be reasonably acceptable to a majority in interest of the
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Initiating Holders. If the underwriter selected by the Company is not reasonably
acceptable to a majority in interest of the Initiating Holders, the Company
shall select a different underwriter, which shall be reasonably acceptable to a
majority in interest of the Initiating Holders. If such underwriter is not
reasonably acceptable to the majority in interest of the Initiating Holders, a
majority in interest of the Initiating Holders shall select the underwriter. In
such event, the right of any Holder to include his Registrable Securities in
such registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 1.4(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder; provided, however,
that in no event shall any securities of the Company held by Series A
Stockholders be included in such registration and underwriting to the extent
other Holders desire to include Registrable Securities therein.
(c) Notwithstanding the foregoing, if the Company
shall furnish to Holders requesting a registration statement pursuant to this
Section 1.2, a certificate signed by the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer taking action with respect to such filing for a period of not
more than 120 days after receipt of the request of the Initiating Holders;
provided, however, that the Company may not utilize this right more than once in
any twelve-month period.
(d) In addition, the Company shall not be obligated
to effect, or to take any action to effect, any registration pursuant to this
Section 1.2:
(i) After the Company has effected two
registrations pursuant to this Section 1.2 and such registrations have been
declared or ordered effective;
(ii) During the period starting with the date
sixty (60) days prior to the Company's good faith estimate of the date of filing
of and ending on a date one hundred eighty (180) days after the effective date
of, a registration subject to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(iii) If the Initiating Holders propose to
dispose of shares of Registrable Securities that may be immediately registered
on Form S-3 pursuant to a request made pursuant to Section 1.11 below.
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1.3 COMPANY REGISTRATION. If (but without any obligation to
do so) the Company proposes to register (including for this purpose a
registration effected by the Company for stockholders other than the Holders)
any of its stock or other securities under the Act in connection with the public
offering of such securities solely for cash (other than a registration relating
solely to the sale of securities to participants in a Company stock plan, a
registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities or a registration in which the
only Common Stock being registered is Common Stock issuable upon conversion of
debt securities which are also being registered), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing of
such notice by the Company in accordance with Section 3.5, the Company shall,
subject to the provisions of Section 1.7, cause to be registered under the Act
all of the Registrable Securities that each such Holder has requested to be
registered.
1.4 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective and, upon the request
of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for a period of up to one
hundred twenty (120) days or until the distribution contemplated in the
Registration Statement has been completed; provided, however, that (i) such
120-day period shall be extended for a period of time equal to the period the
Holder refrains from selling any securities included in such registration at the
request of an underwriter of Common Stock (or other securities) of the Company;
and (ii) in the case of any registration of Registrable Securities on Form S-3
which are intended to be offered on a continuous or delayed basis, such 120-day
period shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold, provided that Rule 415
or any successor rule under the Act permits an offering on a continuous or
delayed basis and provided further that applicable rules under the Act governing
the obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (I) includes any prospectus required by Section
10(a)(3) of the Act or (II) reflects facts or events representing a material or
fundamental change in the information set forth in the registration statement,
the incorporation by reference of information required to be included in (I) and
(II) above to be contained in periodic reports filed pursuant to Section 13 or
15(d) of the 1934 Act in the registration statement.
(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 Act with respect to the disposition of all securities
covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of
a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such
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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 state and other
securities 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, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Act.
(e) In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting agreement
in usual and customary form with the managing underwriter of such offering. Each
Holder participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the 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.
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
(i) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Section 1, on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 1, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
1.5 EXPENSES OF DEMAND REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification
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fees, printers' and accounting fees, fees and disbursements of counsel for the
Company and the reasonable fees and disbursements of one counsel for the selling
Holders shall be borne by the Company; provided, however, that the Company shall
not be required to pay for any expenses of any registration proceeding begun
pursuant to Section 1.2 if the registration request is subsequently withdrawn at
the request of the Holders of a majority of the Registrable Securities to be
registered (in which case all Participating Holders shall bear such expenses),
unless the Holders of a majority of the Registrable Securities agree to forfeit
their right to one demand registration pursuant to Section 1.2; provided
further, however, that if at the time of such withdrawal, the Holders have
learned of a material adverse change in the condition, business, or prospects of
the Company from that known to the Holders at the time of their request and have
withdrawn the request with reasonable promptness following disclosure by the
Company of such material adverse change, then the Holders shall not be required
to pay any of such expenses and shall retain their rights pursuant to Section
1.2.
1.6 EXPENSES OF COMPANY REGISTRATION. The Company shall bear
and pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.12) including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto and the fees and disbursements of one counsel for the selling Holders
selected by them, but excluding underwriting discounts and commissions relating
to Registrable Securities.
1.7 UNDERWRITING REQUIREMENTS. In connection with any
offering involving an underwriting of shares of the Company's capital stock, the
Company shall not be required under Section 1.3 to include any of the Holders'
Registrable Securities in such underwriting unless the Participating Holders
accept the terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (or by other persons entitled to select the
underwriters), and then only in such quantity as the underwriters determine in
their sole discretion will not jeopardize the success of the offering by the
Company. Notwithstanding any other provision of this Section 1.7, if the
underwriter determines that marketing factors require a limitation on the number
of shares to be underwritten, the securities of the Company (other than
Registrable Securities) held by the holders of Common Stock shall be excluded
from such registration to the extent so required by such limitation; and if a
limitation on the number of shares is still required, the Holders of Series A
Preferred Stock shall be excluded from such registration to the extent so
required by such limitation; and if a limitation on the number of shares is
still required, the number of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all remaining Holders on
a pro rata basis; provided, however, that if such registration is other than the
first registered offering of the sale of the Company's securities to the public,
the underwriter may limit the number of Registrable Securities to be included in
the registration and underwriting to not less than thirty percent (30%) of the
securities included therein (based on aggregate market values). The Company
shall so advise all holders of securities requesting registration, and the
number of shares of securities that are entitled to be included in the
registration and underwriting shall be allocated among all Participating Holders
in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities and other securities which they own at the time of filing
the registration statement. If any Participating Holder of Registrable
Securities disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the
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underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration. For
purposes of the foregoing, for any Holder which is a partnership or corporation,
the partners, retired partners, stockholders and affiliates of such Holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "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.
1.8 DELAY OF REGISTRATION. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.9 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any underwriter (as defined in the Act)
for such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Act or the 1934 Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, as incurred, any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this subsection 1.9 (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 any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each
Participating Holder will indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the registration statement, each
person, if any, who controls the Company within the meaning of the Act, any
underwriter, any other Participating Holder and any controlling person of any
such underwriter or other Participating Holder against any losses, claims,
damages or liabilities (joint or several) to which any of the foregoing persons
may become subject under the
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Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished by such Participating Holder expressly for use in
connection with such registration; and each such Participating Holder will pay,
as incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 1.9(b), in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
subsection 1.9(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 Participating Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any Participating Holder's
cumulative aggregate liability under this Section 1.9(b) or under Section
1.9(d), or under such sections together exceed the gross proceeds from the
offering received by such Participating Holder.
(c) Promptly after receipt by an indemnified party
under this Section 1.9 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 1.9,
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
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel
with the 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, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 1.9, 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 1.9.
(d) If the indemnification provided for in this
Section 1.9 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations; provided, however, that in no event shall any Participating
Holders cumulative aggregate liability under Section 1.9(b) or this Section
1.9(d) or under such sections together exceed the gross proceeds from the
offering received by such Holder. The relative fault of the indemnifying party
and of the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to
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state a material fact relates to information supplied by the indemnifying party
or by the indemnified party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) The obligations of the Company and Holders under
this Section 1.9 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.10 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Act ("Rule 144") and any other rule or regulation of the SEC that may
at any time permit a Holder to sell securities of the Company to the public
without registration or pursuant to a registration on Form S-3, the Company
agrees to:
(a) make and keep public information available, as
those terms are understood and defined in Rule 144, at all times after ninety
(90) days after the effective date of the first registration statement filed by
the Company for the offering of its securities to the general public;
(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the 1934 Act, as is
necessary to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities, such action to be taken as soon as practicable after the
end of the fiscal year in which the first registration statement filed by the
Company for the offering of its securities to the general public is declared
effective;
(c) file with the SEC in a timely manner all reports
and other documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder
owns any Registrable Securities, forthwith upon request (i) a written statement
by the Company that it has complied with the reporting requirements of Rule 144
(at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at any
time after it has become subject to such reporting requirements) or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
10.
13
1.11 FORM S-3 REGISTRATION. In the event the Company shall
receive a written request from the Holders of no less than twenty-five percent
(25%) of the then outstanding Registrable Securities that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holders,
the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, effect such registration
and all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within 15
days after receipt of such written notice from the Company; provided, however,
that the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this Section 1.12: (1) if Form S-3 is
not available for such offering by the Holders; (2) if the Holders, together
with the holders of any other securities of the Company entitled to inclusion in
such registration, propose to sell Registrable Securities and such other
securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $500,000; (3) if the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than 60 days after receipt of
the request of the Holders under this Section 1.11; provided, however, that the
Company shall not utilize this right more than once in any twelve month period;
(4) if the Company has, within the twelve (12) month period preceding the date
of such request, already effected two registrations on Form S-3 for the Holders
pursuant to this Section 1.11; or (5) in any particular jurisdiction in which
the Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance.
(c) Subject to the foregoing, the Company shall file
a registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt of
the request or requests of the Holders. All expenses incurred in connection with
the registrations requested pursuant to Section 1.11, including (without
limitation) all registration, filing, qualification, printer's and accounting
fees and the reasonable fees and disbursements of counsel for the selling Holder
or Holders and counsel for the Company, but excluding any underwriters'
discounts or commissions associated with Registrable Securities, shall be borne
by the Company. Registrations effected pursuant to this Section 1.11 shall not
be counted as demands for registration or registrations effected pursuant to
Sections 1.2 or 1.3, respectively.
11.
14
1.12 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder (i) to an affiliate
of such Holder or (ii) a transferee or assignee of such securities who, after
such assignment or transfer, holds at least 500,000 shares of Registrable
Securities (subject to appropriate adjustment for stock splits, stock dividends,
combinations and other recapitalizations), provided in each case that: (a) the
Company is, within a reasonable time after such transfer, furnished with 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; (b) such
transferee or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement, including without limitation the provisions of
Section 1.13 below; and (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Act. For the purposes of
determining the number of shares of Registrable Securities held by a transferee
or assignee, the holdings of transferees and assignees of a partnership who are
partners or retired partners of such partnership (including spouses and
ancestors, lineal descendants and siblings of such partners or spouses who
acquire Registrable Securities by gift, will or intestate succession) shall be
aggregated together and with the partnership; provided that all assignees and
transferees who would not qualify individually for assignment of registration
rights shall have a single attorney-in-fact for the purpose of exercising any
rights, receiving notices or taking any action under this Section 1.
1.13 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the outstanding Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow such holder or prospective
holder (a) to include such securities in any registration filed under Section
1.2 hereof, unless under the terms of such agreement, such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of his securities will not reduce the amount of the
Registrable Securities of the Holders which is included or (b) to make a demand
registration which could result in such registration statement being declared
effective prior to the earlier of either of the dates set forth in subsection
1.2(a) or within one hundred twenty (120) days of the effective date of any
registration effected pursuant to Section 1.2.
1.14 "MARKET STAND-OFF" AGREEMENT. Each Preferred Stockholder
hereby agrees that, during the period of duration specified by the Company and
an underwriter of common stock or other securities of the Company, following the
effective date of a registration statement of the Company filed under the Act,
it shall not, to the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such period except
common stock included in such registration; provided, however, that:
12.
15
(a) such agreement shall be applicable only to the
first two such registration statements of the Company which covers common stock
(or other securities) to be sold on its behalf to the public in an underwritten
offering; and
(b) all officers and directors of the Company and
all other persons with registration rights (whether or not pursuant to this
Agreement) enter into similar agreements; and
(c) such market stand-off time period shall not
exceed 180 days. In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each holder of Registrable Securities (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in this Section
1.14 shall not apply to a registration relating solely to employee benefit plans
on Form S-1 or Form S-8 or similar forms which may be promulgated in the future,
or a registration relating solely to a Rule 145 transaction on Form S-14 or Form
S-15 or similar forms which may be promulgated in the future.
1.15 TERMINATION OF REGISTRATION RIGHTS. The registration
rights granted hereunder shall terminate as to any Holder upon the earlier of
(i) five (5) years following the consummation of the sale of securities pursuant
to a registration statement filed by the Company under the Act in connection
with the initial firm commitment underwritten offering of its securities to the
general public, (ii) the closing of the first Company-initiated registered
public offering of Common Stock of the Company if all shares of Registrable
Securities held or entitled to be held upon conversion by such Holder may
immediately be sold under Rule 144 during any 90-day period, and (iii) on such
date after the closing of the first Company-initiated registered public offering
of Common Stock of the Company as all shares of Registrable Securities held or
entitled to be held upon conversion by such Holder may immediately be sold under
Rule 144 during any 90-day period.
2. COVENANTS OF THE COMPANY.
2.1 FINANCIAL STATEMENTS.
(a) DELIVERY OF FINANCIAL STATEMENTS. The Company
shall deliver to each Preferred BCDE Stockholder, as soon as practicable, but in
any event within ninety (90) days after the end of each fiscal year of the
Company, an income statement for such fiscal year, a balance sheet of the
Company and statement of stockholder's equity as of the end of such year, and a
schedule as to the sources and applications of funds for such year, such
year-end financial reports to be in reasonable detail, prepared in accordance
with generally accepted accounting principles ("GAAP"), and audited and
certified by independent public accountants of nationally recognized standing
selected by the Company;
(b) The Company shall deliver to each Preferred BCDE
Stockholder for so long as such Preferred BCDE Stockholder (together with its
respective affiliates) holds at least an aggregate of 250,000 shares of
Registrable Securities (a "Major Investor"):
13.
16
(i) as soon as practicable, but in any event
within forty-five (45) days after the end of each of the first three (3)
quarters of each fiscal year of the Company, an unaudited profit or loss
statement, a schedule as to the sources and application of funds for such fiscal
quarter and an unaudited balance sheet as of the end of such fiscal quarter and
a statement showing the number of shares of each class and series of capital
stock and securities convertible into or exercisable for shares of capital stock
outstanding at the end of the period, the number of common shares issuable upon
conversion or exercise of any outstanding securities convertible or exercisable
for common shares and the exchange ratio or exercise price applicable thereto,
all in sufficient detail as to permit the Major Investor to calculate its
percentage equity ownership in the Company; and
(ii) as soon as practicable, but in any event
thirty (30) days prior to the end of each fiscal year, a budget and business
plan for the next fiscal year, prepared on a monthly basis, including balance
sheets and sources and applications of funds statements for such months and, as
soon as prepared, any other budgets or revised budgets prepared by the Company;
and
(iii) with respect to the financial statements
called for in subsections (b)(i) of this Section 2.1, an instrument executed by
the Chief Financial Officer or President of the Company and certifying that such
financials were prepared in accordance with GAAP consistently applied with prior
practice for earlier periods (with the exception of footnotes that may be
required by GAAP) and fairly present the financial condition of the Company and
its results of operation for the period specified, subject to year-end audit
adjustment.
2.2 INSPECTION. The Company shall permit each Major Investor
(other than Hewlett-Packard Company, which the Company may in its sole
discretion permit), at such Major Investor's expense, to visit and inspect the
Company's properties, to examine its books of account and records and to discuss
the Company's affairs, finances and accounts with its officers, all at such
reasonable times as may be requested by the Major Investor; provided, however,
that the Company shall not be obligated pursuant to this Section 2.2 to provide
access to any information which it reasonably considers to be a trade secret or
similar confidential information.
2.3 TERMINATION OF INFORMATION AND INSPECTION COVENANTS. The
covenants set forth in Sections 2.1 and 2.2 shall terminate as to Preferred BCDE
Stockholders and be of no further force or effect when the sale of securities
pursuant to a registration statement filed by the Company under the Act in
connection with the firm commitment underwritten offering of its securities to
the general public is consummated or when the Company first becomes subject to
the periodic reporting requirements of Sections 12(g) or 15(d) of the 1934 Act,
whichever event shall first occur.
2.4 RIGHT OF FIRST OFFER. Subject to the terms and
conditions specified in this paragraph 2.4, the Company hereby grants to each
Preferred BCDE Stockholder a right of first offer with respect to future sales
by the Company of its Shares (as hereinafter defined). A Preferred BCDE
Stockholder shall be entitled to apportion the right of first offer hereby
granted it among itself and its partners and affiliates in such proportions as
it deems appropriate.
14.
17
Each time the Company proposes to offer any shares of, or securities
convertible into or exercisable for any shares of, any class of its capital
stock ("Shares"), the Company shall first make an offering of such Shares to
each Preferred BCDE Stockholder in accordance with the following provisions:
(a) The Company shall deliver a notice by certified
mail ("Notice") to the Preferred BCDE Stockholders stating (i) its bona fide
intention to offer such Shares, (ii) the number of such Shares to be offered,
and (iii) the price and terms, if any, upon which it proposes to offer such
Shares.
(b) Within 20 calendar days after receipt of the
Notice, each Preferred BCDE Stockholder may elect to purchase or obtain, at the
price and on the terms specified in the Notice, up to that portion of such
Shares which equals the proportion that the number of shares of Common Stock
issued and held, or issuable upon conversion of the Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and/or Series E Preferred
Stock then held, by such Preferred BCDE Stockholder bears to the total number of
shares of Common Stock issued and held, or issuable upon conversion of the
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock
and/or Series E Preferred Stock then held, by all Preferred BCDE Stockholders.
The Company shall promptly, in writing, inform each Preferred BCDE Stockholder
which purchases all the shares available to it ("Fully-Exercising Purchaser") of
any other Preferred BCDE Stockholder's failure to do likewise. During the
ten-day period commencing after receipt of such information, each
Fully-Exercising Purchaser shall be entitled to obtain that portion of the
Shares not subscribed for by the Preferred BCDE Stockholders which is equal to
the proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion of Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Series E Preferred Stock then held, by such
Fully-Exercising Purchaser bears to the total number of shares of Common Stock
issued and held, or issuable upon conversion of the Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock
then held, by all Fully-Exercising Purchasers who wish to purchase some of the
unsubscribed shares.
(c) If all Shares referred to in the Notice are not
elected to be obtained as provided in subsection 2.4(b) hereof, the Company may,
during the 30-day period following the expiration of the period provided in
subsection 2.4(b) hereof, offer the remaining unsubscribed portion of such
Shares to any person or persons at a price not less than and upon terms no more
favorable to the offeree than those specified in the Notice. If the Company does
not enter into an agreement for the sale of the Shares within such period or if
such agreement is not consummated within 30 days of the execution thereof, the
right provided hereunder shall be deemed to be revived and such Shares shall not
be offered unless first reoffered to the Preferred BCDE Stockholders in
accordance herewith.
(d) The right of first offer in this paragraph 2.4
shall not be applicable to: (i) the issuance or sale of shares of Common Stock
(or options therefor) to employees, officers, directors and consultants for the
primary purpose of soliciting or retaining their services; (ii) a bona fide,
firm commitment underwritten public offering of shares of Common Stock,
registered under the Act pursuant to a registration statement on Form S-1; (iii)
any issuance of securities following the consummation of an offering described
in (ii) above; (iv) the issuance of
15.
18
securities pursuant to the conversion or exercise of convertible or exercisable
securities; (v) the issuance of securities in connection with a bona fide
business acquisition of or by the Company, whether by merger, consolidation,
sale of assets, sale or exchange of stock or otherwise; or (vi) the issuance of
stock, warrants or other securities or rights to persons or entities with which
the Company has business relationships provided such issuances are for other
than primarily equity financing purposes and provided that at the time of any
such issuance, the aggregate of such issuance and similar issuances in the
preceding twelve month period do not exceed one percent (1%) of the then
outstanding Common Stock of the Company (assuming full conversion and exercise
of all convertible and exercisable securities). Notwithstanding anything to the
contrary set forth in this Section 2.4, with respect solely to ▇▇▇▇▇▇▇▇-▇▇ ▇▇▇▇▇
Inc. ("Roche"), The Dow Chemical Company and Hewlett-Packard Company, the right
of first offer in this Paragraph 2.4 shall not be applicable to the issuance of
Shares to any person or entity with which the Company has or is concurrently
entering into a strategic relationship.
(e) The right of first offer set forth in this
Section 2.4 may not be assigned or transferred, except that: (i) such right is
assignable by each Preferred BCDE Stockholder to any wholly owned subsidiary or
parent of, or to any corporation or entity that is, within the meaning of the
Act, controlling, controlled by or under common control with, any such Preferred
BCDE Stockholder and (ii) such right is assignable between and among any of the
Preferred BCDE Stockholders.
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2 GOVERNING LAW. This Agreement shall 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.
3.3 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 NOTICES. Unless otherwise provided, any notice required
or permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office by registered or certified mail,
postage prepaid and addressed to the party to be notified at the
16.
19
address indicated for such party on the signature page hereof, or at such other
address as such party may designate by ten (10) days' advance written notice to
the other parties.
3.6 AMENDMENTS AND WAIVERS. Any term of this Agreement may
be amended and the observance of any term of this Agreement 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 then outstanding; provided, however,
that without the consent of Roche, no term of this Agreement may be amended, nor
may the observance of any term of this Agreement be waived, if such amendment or
waiver shall materially and adversely affect the benefits intended to be
conferred upon Roche under this Agreement; provided further, however, that
amendments to this Agreement for the purpose of adding additional parties to
this Agreement, whether pursuant to additional purchases of shares of an
existing series of Preferred Stock or pursuant to issuances of one or more
additional series of Preferred Stock, shall not be deemed to materially or
adversely affect the benefits intended to be conferred upon Roche under this
Agreement. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each Holder of any Registrable Securities then
outstanding, each future holder of all such Registrable Securities, and the
Company.
It is the intent of the Stockholders that each Investor purchasing
Series E Preferred in a subsequent closing pursuant to Section 1.3 of the Series
E Agreement shall become a Stockholder by executing this Agreement, and that
such execution shall not constitute an amendment to this Agreement requiring the
consent of the other parties hereto. Should any such additional Investors
execute this Agreement, the Company shall prepare and distribute to the
Stockholders a revised Schedule A to this Agreement reflecting the addition of
such Investor as a Stockholder.
3.7 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
3.8 AGGREGATION OF STOCK. All shares of Registrable
Securities held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
3.9 ENTIRE AGREEMENT. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subjects hereof. The Prior Agreement is hereby amended and restated in its
entirety by this Agreement, and the Company and the Stockholders agree that this
Agreement shall superseded and replace the rights and obligations of the
Preferred Stockholders that the Company granted to them under the Prior
Agreement, including the obligations of transferees of Preferred Stock as noted
on Schedule A attached hereto.
17.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CALIPER TECHNOLOGIES CORP.
By: /s/ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
Chief Operating Officer
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
21
SCHEDULE A
PREFERRED STOCKHOLDERS
SERIES A SERIES B SERIES C SERIES D SERIES E
--------- --------- --------- --------- ---------
Venrock Associates II, L.P. -- 1,021,039 103,585 114,000 --
Venrock Associates -- 1,665,908 69,057 86,000 --
CW Ventures II, L.P. -- 2,207,136 141,814 -- --
CIP Capital L.P. 431,154 383,380 24,633 -- --
Falcon Technology Partners, L.P. -- 576,022 37,011 -- --
Aspen Venture Partners, L.P. 431,154 63,896 4,105 -- --
Arch Venture Fund II, L.P. -- 898,083 57,704 -- --
Lombard Odier & Cie -- 638,967 1,000,000 750,000 350,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ -- 31,948 8,333 -- --
▇▇▇▇▇▇▇▇-▇▇ ▇▇▇▇▇ Inc. -- -- 1,333,333 -- --
Comdisco, Inc. -- -- 33,333 62,500 --
QED Technologies L.P. -- 34,078 -- -- --
The ▇▇▇▇▇▇-▇▇▇▇▇ Corporation 431,154 -- -- -- --
Caduceus Capital, L.P. -- -- 108,335 -- --
Caduceus Capital, Ltd. -- -- -- 125,000 --
State Farm Mutual Automobile -- -- 333,333 250,000 --
GC&H Investments -- -- 16,666 12,500 --
Novartis Pharmaceuticals Corporation -- 161,391 27,172 -- --
The Dow Chemical Company -- -- -- 1,625,000 --
PHARM/wHEALTH -- -- -- 375,000 --
AEOW 96, LLC -- -- -- 100,000 5,500
The ▇▇▇▇▇ ▇. & ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust -- -- -- 50,000 --
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
22
SERIES A SERIES B SERIES C SERIES D SERIES E
--------- --------- --------- --------- ---------
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ TTEES FBO -- -- -- 2,500 --
▇▇▇▇ 1996 Charitable Trust dated 12/16/96
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ -- -- -- 5,000 --
Tredegar Investments, Inc. -- -- -- 250,000 --
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ -- -- -- 125,000 --
BB BioVentures, L.P. -- -- -- 1,250,000 --
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -- -- -- 12,500 12,500
Hewlett-Packard Company -- -- -- -- 833,334
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ -- -- -- -- 25,000
R. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ -- -- -- -- 3,500
TOTAL 1,293,462 7,681,848 3,298,414 5,195,000 1,229,834
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
23
In May 1997, Avalon Medical Partners, L.P., a Preferred Stockholder and Common
Stockholder, and Avalon BioVentures II, L.P., a Preferred Stockholder, both
parties to the Amended and Restated Investors' Rights Agreement dated January
14, 1997 (the "Prior Agreement"), distributed Preferred Stock and Common Stock
of the Company to certain transferees listed below (the "Transferees") thereby
imposing obligations on the Transferees but not granting any rights under the
Prior Agreement to the Transferees. The Transferees are not parties to this
Agreement but remain obligated under this Agreement.
SERIES A SERIES B SERIES C SERIES D
-------- -------- -------- --------
Institutional Venture Partners VI -- 315,350 -- --
Institutional Venture Management VI -- 6,436 -- --
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Trustee of the ▇▇▇▇▇ -- 76,502 4,303 --
▇▇▇▇▇▇▇▇ Trust, November 1994
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ -- 76,503 4,303 --
▇▇▇▇▇▇ ▇▇▇▇▇ -- 15,784 886 --
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ -- 9,664 543 --
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ -- 299,891 16,866 --
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ -- 4,832 271 --
Novartis Pharmaceuticals Corporation -- 161,391 27,172 --
TOTAL -- 966,353 54,344 --
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
24
In October 1997, the ▇▇▇▇ Family Partnership, a Preferred Stockholder, a party
to the Amended and Restated Investors' Rights Agreement dated May 7, 1997 (the
"Prior Agreement"), distributed Preferred Stock and Common Stock of the Company
to certain transferees listed below (the "Transferees") thereby imposing
obligations on the Transferees but not granting any rights under the Prior
Agreement to the Transferees. The Transferees are not parties to this Agreement
but remain obligated under this Agreement.
SERIES A SERIES B SERIES C SERIES D
-------- -------- -------- --------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ -- 10,213 4,079 --
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ -- 1,283 2,334 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, TTEES -- 1,283 1,334 --
FBO The ▇▇▇▇▇▇ Trust U/A dated 08/01/89
TOTAL -- 12,779 7,747 --
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
