EXHIBIT 4.2
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
BIOMEDICINES, INC.
SEPTEMBER 12, 2000
TABLE OF CONTENTS
PAGE
1. REGISTRATION RIGHTS......................................................................................1
1.1 Definitions.....................................................................................1
1.2 Request for Registration........................................................................2
1.3 Company Registration............................................................................4
1.4 Obligations of the Company......................................................................4
1.5 Furnish Information.............................................................................6
1.6 Expenses of Demand Registration.................................................................6
1.7 Expenses of Company Registration................................................................6
1.8 Underwriting Requirements.......................................................................7
1.9 Delay of Registration...........................................................................7
1.10 Indemnification.................................................................................7
1.11 Reports Under Securities Exchange Act of 1934...................................................9
1.12 Form S-3 Registration..........................................................................10
1.13 Assignment of Registration Rights..............................................................11
1.14 Limitations on Subsequent Registration Rights..................................................11
1.15 "Market Stand-Off" Agreement...................................................................11
1.16 Termination of Registration Rights.............................................................12
2. COVENANTS OF THE COMPANY................................................................................12
2.1 Delivery of Financial Statements...............................................................12
2.2 Inspection.....................................................................................13
2.3 Termination of Information and Inspection Covenants............................................13
2.4 Right of First Offer...........................................................................13
2.5 Key-Man Insurance..............................................................................15
2.6 Proprietary Information and Inventions Agreements..............................................15
2.7 Termination of Certain Covenants and Rights....................................................15
2.8 Reimbursement of Directors' Expenses...........................................................15
3. MISCELLANEOUS...........................................................................................15
3.1 Successors and Assigns.........................................................................15
3.2 Governing Law..................................................................................16
3.3 Counterparts...................................................................................16
3.4 Titles and Subtitles...........................................................................16
i
TABLE OF CONTENTS
(CONTINUED)
3.5 Notices........................................................................................16
3.6 Expenses.......................................................................................16
3.7 Amendments and Waivers.........................................................................16
3.8 Severability...................................................................................16
3.9 Aggregation of Stock...........................................................................16
3.10 Entire Agreement...............................................................................17
SCHEDULE OF INVESTORS.............................................................................................1
ii
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT is made as of the
12th day of September, 2000, by and between BIOMEDICINES, INC., a Delaware
corporation (the "Company"), the holders of the Company's Series A Preferred
Stock (the "Series A Preferred") and the Company's Series B Preferred Stock
(the "Series B Preferred") listed on Schedule A hereto (hereinafter referred
to as the "Existing Holders"), the purchasers of the Series C Preferred Stock
(the "Purchasers") as set forth on the Schedule of Purchasers of that certain
Series C Preferred Stock Agreement of even date herewith (the "Purchase
Agreement"), and S. ▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"). The Existing Holders and the
Purchasers are referred to hereinafter as the "Investors" and each
individually as an "Investor". This Agreement amends and restates the
Investor Rights Agreement dated April 28, 1999, by and among the Company, the
Existing Holders and ▇▇▇▇ ▇▇▇▇▇ (the "Prior Agreement").
RECITALS
WHEREAS, the Company proposes to sell and issue up to 4,834,606 shares
of Series C Preferred Stock to the Purchasers pursuant to the Purchase
Agreement;
WHEREAS, in order to induce the Company to enter into the Series C
Agreement and to induce the Purchasers to invest funds in the Company
pursuant to the Series C Agreement, the Investors, ▇▇▇▇▇ and the Company
hereby agree to enter into this Agreement to amend and restate the Prior
Agreement and to set forth their agreements and understanding with respect to
the rights granted to Investors by the Company.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants made herein, the parties hereby agree that the Prior Agreement
shall be amended and restated and superseded in its entirety as follow:
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 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 1.13 hereof.
(d) The term "1934 ACT" shall mean the Securities Exchange Act
of 1934, as amended.
1.
(e) The term "PREFERRED STOCK" shall mean the Series A
Preferred, the Series B Preferred and the Company's Series C Preferred Stock
("Series C Preferred").
(f) The terms "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.
(g) The term "REGISTRABLE SECURITIES" means (i) the Common
Stock issuable or issued upon conversion of the Series A Preferred, the
Series B Preferred or Series C Preferred, (ii) the shares of Common Stock
issued to ▇▇▇▇▇; PROVIDED, HOWEVER, that such shares of Common Stock shall
not be deemed Registrable Securities and the aforementioned individual shall
not be deemed a Holder for the purposes of Section 1.2, 1.12, 1.14 and 3.7
and (iii) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, option, 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) and (ii)
above, excluding in all cases, however, any Registrable Securities sold by a
person in a transaction in which his rights under this Section 1 are not
assigned.
(h) The number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(i) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 REQUEST FOR REGISTRATION.
(a) If the Company shall receive at any time after the earlier
of (i) January 1, 2002, 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 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 an SEC Rule 145 transaction), a written request
from the Holders of forty percent (40%) of the Registrable Securities then
outstanding that the Company file a registration statement under the Act
covering the registration of such percentage of the Registrable Securities
then outstanding where the anticipated aggregate offering price, net of
underwriting discounts and commissions, would exceed $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) effect as soon as practicable, and in any event
within 90 days of the receipt of such request, the registration under the Act
of all Registrable Securities which the Holders request to be registered,
subject to the limitations of subsection 1.2(b), within twenty (20) days of
the mailing of such notice by the Company in accordance with Section 3.5.
2.
(b) If the Holders initiating the registration request
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
Initiating Holders. 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 (other than ▇▇▇▇▇) 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 the number of shares of Registrable Securities to be
included in such underwriting shall not be reduced unless all other
securities are first entirely excluded from the underwriting.
(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
3.
(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 1.12 below.
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 1.8,
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 reasonable 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 sixty (60) days or until the distribution contemplated in the
Registration Statement has been completed; PROVIDED, HOWEVER, that (i) such
60-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 sixty-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.
4.
(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 other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities
owned by them.
(d) Use its reasonable 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, 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) Use its reasonable best efforts to 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.
5.
1.5 FURNISH INFORMATION.
(a) It shall be a condition precedent to the obligations of
the Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish
to the Company such information regarding itself, the Registrable Securities
held by it, and the intended method of disposition of such securities as
shall be required to effect the registration of such Holder's Registrable
Securities.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.12 if, due to the
operation of subsection 1.5(a), 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 originally to trigger the Company's
obligation to initiate such registration as specified in subsection 1.2(a) or
subsection 1.12(b)(2), whichever is applicable.
1.6 EXPENSES OF DEMAND REGISTRATION. All reasonable and customary
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 fees, printers' and accounting fees, fees and disbursements of
counsel for the Company (including reasonable fees and reasonable and
customary disbursements of counsel for the Company in its capacity as counsel
to the Selling Holders hereunder; if Company counsel does not make itself
available for this purpose, the Company will pay the reasonable fees and
reasonable and customary 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 in proportion to the number of shares for which
registration was requested), 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.
1.7 EXPENSES OF COMPANY REGISTRATION. The Company shall bear and
pay all reasonable and customary 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 1.13), including (without limitation) all
registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto and the reasonable fees and reasonable and
customary disbursements of counsel for the Company in its capacity as counsel
to the Selling Holders hereunder; provided that if Company counsel does not
make itself available for this purpose, the Company will pay the reasonable
fees and reasonable and customary disbursements of one counsel for the
Selling
6.
Holders selected by them, but excluding underwriting discounts and commissions
relating to Registrable Securities.
1.8 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' securities in such underwriting unless they 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.
If the total amount of securities, including Registrable Securities,
requested by stockholders to be included in such offering exceeds the amount
of securities sold other than by the Company that the underwriters determine,
in their sole discretion, is compatible with the success of the offering,
then the Company shall be required to include in the offering only that
number of such securities, including Registrable Securities, which the
underwriters determine in their sole discretion will not jeopardize the
success of the offering (the securities so included to be apportioned pro
rata among the selling stockholders according to the total amount of
securities entitled to be included therein owned by each selling Stockholder
or in such other proportions as shall mutually be agreed to by such selling
stockholders) but in no event shall (i) the amount of securities of the
selling Holders included in the offering be reduced below thirty percent
(30%) of the total amount of securities included in such offering, unless
such offering is the initial public offering of the Company's securities in
which case the selling stockholders may be excluded if the underwriters make
the determination described previously in this sentence and no other
stockholder's securities are included or (ii) notwithstanding (i) above, any
shares being sold by a stockholder exercising a demand registration right
similar to that granted in Section 1.2 be excluded from such offering. For
purposes of the parenthetical in the preceding sentence concerning
apportionment, for any selling stockholder which is a holder of Registrable
Securities and which is a partnership or corporation, the partners, retired
partners and stockholders 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 "selling
stockholder", and any pro-rata reduction with respect to such "selling
stockholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
selling stockholder, as defined in this sentence.
1.9 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.
1.10 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, or the 1934 Act, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon
any of the following
7.
statements, omissions or violations (collectively a "Violation"): (i) any
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 to state therein a
material fact required to be stated therein, or necessary to make the
statements therein not misleading, or (iii) any violation by the Company of
the Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Act or the 1934 Act or any state securities law; and
the Company will pay to each such Holder, underwriter or controlling person,
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 1.10(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 selling 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 Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any
losses, claims, damages, or liabilities (joint or several) to which any of
the foregoing persons may become subject, under the Act, or the 1934 Act
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 Holder
specifically for use in connection with such registration; and each such
Holder will pay any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 1.10(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 1.10(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, that, in no event shall any indemnity under this
subsection 1.10(b) exceed the net proceeds from the offering received by such
Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 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 1.10,
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 reasonable fees and reasonable and customary
expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the
8.
indemnifying party would be inappropriate due to material 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 prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.10, 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
1.10.
(d) If the indemnification provided for in this Section 1.10
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. The relative fault of
the indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the 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. In no event shall any contribution
under this subsection 1.10(d) exceed the net proceeds from the Offering
received by such Holder.
(e) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
No indemnifying party, in the defense of any such claim or litigation, shall,
except with the consent of each indemnified party, which consent shall not be
unreasonably withheld, consent to the 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 release from
all liability in respect to such claim or litigation.
1.11 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 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 SEC 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) 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
9.
(c) 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 SEC 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.
1.12 FORM S-3 REGISTRATION. In case the Company shall receive from
any Holder or Holders a written request or requests 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 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; 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 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 $1,000,000; (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 Holder
or Holders under this Section 1.12; 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 1.12; 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 a registration requested pursuant to Section 1.12, including
(without
10.
limitation) all registration, filing, qualification, printer's and
zaccounting fees and the reasonable fees and reasonable and customary
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 and paid by the
Company. Registrations effected pursuant to this Section 1.12 shall not be
counted as demands for registration or registrations effected pursuant to
Sections 1.2 or 1.3, respectively.
1.13 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 to a transferee
or assignee of such securities who, after such assignment or transfer, holds
at least 100,000 shares of Registrable Securities (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations), provided: (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 1.15
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.
1.14 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.
1.15 "MARKET STAND-OFF" AGREEMENT. Each Holder 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 date of the
first sale to the public pursuant to an effective 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
11.
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:
(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;
(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 (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 1.15
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 Commission Rule 145
transaction on Form S-14 or Form S-15 or similar forms which may be
promulgated in the future.
1.16 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be
entitled to exercise any right provided for in this Section 1 (i) after 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, or (ii) if the Holder owns less than one percent (1%) of the
Registrable Securities.
2. COVENANTS OF THE COMPANY.
2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall deliver to
each Investor:
(a) 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) 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, 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;
12.
(c) 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;
(d) such other information relating to the financial
condition, business, prospects or corporate affairs of the Company as the
Investor or any assignee of the Investor may from time to time reasonably
request, PROVIDED, HOWEVER, that the Company shall not be obligated under
this subsection (d) or any other subsection of Section 2.1 to provide
information which it deems in good faith to be a trade secret or similar
confidential information; and
(e) with respect to the financial statements called for in
subsection (b) 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, provided that the foregoing shall not restrict the
right of the Company to change its accounting principles consistent with
GAAP, if the Board of Directors determines that it is in the best interest of
the Company to do so.
2.2 INSPECTION. From time to time, the Company shall permit each
Investor, at such Investor's sole 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 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. The Company will maintain true books and
records of account in which full and correct entries will be made of all its
business transactions.
2.3 TERMINATION OF INFORMATION AND INSPECTION COVENANTS. The
covenants set forth in Sections 2.1 and 2.2 shall terminate as to Investors
and be of no further force or effect upon the earlier of 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 ("IPO"), or when the Company first becomes
subject to the periodic reporting requirements of Sections 12(g) or 15(d) of
the 1934 Act.
2.4 RIGHT OF FIRST OFFER. Subject to the terms and conditions
specified in this Section 2.4, the Company hereby grants to each Major
Investor (as hereinafter defined) a right of first offer with respect to
future sales by the Company of its Shares (as hereinafter defined). For
purposes of this Section 2.4, a Major Investor shall mean (i) any Investor
who holds at least 10% of the combined investment such Investor makes in the
Company pursuant to the Series A Agreement, the Series B Agreement and the
Series C Agreement, and (ii) any person who acquires at least 10% of the
Preferred Stock issued pursuant to such agreements. For purposes of this
Section 2.4, Investor includes any general partners and affiliates of an
Investor. An Investor 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.
13.
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 Major Investor in accordance with the following
provisions:
(a) The Company shall deliver a notice by certified mail or
courier service, such as Federal Express, ("Notice") to the Major Investors
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) By written notification received by the Company, within 20
calendar days after giving of the Notice, the Major Investor 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
Preferred Stock then held, by such Major Investor bears to the total number
of shares of Common Stock issued and held, or issuable upon conversion of the
Preferred Stock then held, by all the Major Investors. The Company shall
promptly, in writing, inform each Major Investor which purchases all the
shares available to it ("Fully-Exercising Investor") of any other Major
Investor's failure to do likewise. During the ten-day period commencing after
such information is given, each Fully-Exercising Investor shall be entitled
to obtain that portion of the Shares not subscribed for by the Major
Investors which is equal to the proportion that the number of shares of
Common Stock issued and held, or issuable upon conversion of Preferred Stock
then held, by such Fully-Exercising Investor bears to the total number of
shares of Common Stock issued and held, or issuable upon conversion of the
Preferred Stock then held, by all Fully-Exercising Investors 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 60-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 Major
Investors in accordance herewith.
(d) The right of first offer in this paragraph 2.4 shall not
be applicable (i) to the issuance or sale of shares of Common Stock (or
options therefor) to employees for the primary purpose of soliciting or
retaining their employment, (ii) to the issuance of securities pursuant to
the IPO, (iii) the issuance of securities pursuant to the conversion or
exercise of convertible or exercisable securities currently outstanding or
issued in accordance with this Section 2.4, (iv) 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 (v) 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
14.
exceed 5% of the then outstanding Common Stock of the Company (assuming full
conversion and exercise of all convertible and exercisable securities).
(e) If a Major Investor fails to respond in writing to a
Notice delivered by the Company within the 20 calendar day period set forth
in paragraph (b) above, or if within such time period a Major Investor elects
not to purchase or obtain the Shares specified in the Notice, (or a portion
thereof that the Company has requested that the Major Investors purchase) the
right of first offer herein provided for shall terminate and be of no further
force or effect with respect to such Major Investors and the Company shall
have no obligation to offer such Major Investor an opportunity to participate
in any future offerings of Shares.
(f) The right of first refusal set forth in this Section 2.4
may not be assigned or transferred, except that (i) such right is assignable
by each Holder 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 Holder, and (ii) such
right is assignable between and among any of the Holders and (iii) such right
is assignable with the consent of the Company, which consent shall not be
unreasonably withheld.
2.5 KEY-MAN INSURANCE. The Company has obtained term life insurance
on the life of S. ▇▇▇▇ ▇▇▇▇▇ in the amount of $4,000,000. The Company agrees
to maintain the term life insurance described in this Section 2.5 hereof,
except and to the extent may be otherwise determined by the Company's Board
of Directors. Such policies shall name the Company as loss payee and shall
not be cancelable by the Company without prior approval of the Board of
Directors.
2.6 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS. The Company
will cause each person now or hereafter employed by it or any subsidiary with
access to confidential information to enter into a proprietary information
and inventions agreement substantially in the form approved by the Board of
Directors.
2.7 TERMINATION OF CERTAIN COVENANTS AND RIGHTS. The covenants in
Section 2.5 and 2.6, and the rights of first refusal in Section 2.4 shall
terminate and be of no further force or effect upon the consummation of an
IPO.
2.8 REIMBURSEMENT OF DIRECTORS' EXPENSES. The Company agrees to pay
for the reasonable out-of-pocket expenses relating to attendance at the
Company's board meetings of the four (4) members of the Company's Board of
Directors who are elected by the Preferred Stock as set forth in Section 4(b)
of Article IV of the Company's Amended and Restated Certificate of
Incorporation.
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,
15.
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 (A) upon personal delivery to the party to be notified, (B)
when sent by confirmed telex or facsimile, if sent during normal business
hours of the recipient, if not, then on the next business day, (C) upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid or (D) two (2) days after deposit with a recognized overnight
delivery courier, specifying first or second-day delivery, with written
verification of receipt. All communications shall be sent and addressed to
the party to be notified at the 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 EXPENSES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and necessary disbursements
in addition to any other relief to which such party may be entitled.
3.7 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. 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.
3.8 FUTURE INVESTORS. The parties hereto agree that without the
further consent of any party hereto any future investor of Series C Preferred
Stock on the same terms as set forth in the Purchase Agreement shall acquire
all rights granted to Purchasers and be subject to all obligations of
Purchasers under this Agreement upon execution and delivery of this Agreement
by such future investor.
3.9 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
16.
the balance of the Agreement shall be interpreted as if such provision were
so excluded and shall be enforceable in accordance with its terms.
3.10 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.
3.11 ENTIRE AGREEMENT. This Agreement (including the Exhibits
hereto, if any) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
17.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
BIOMEDICINES, INC.
By:/s/ ▇ ▇ ▇▇▇▇▇
------------------------------------
S. ▇▇▇▇ ▇▇▇▇▇, M.D., President
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FOUNDER:
/s/ ▇ ▇ ▇▇▇▇▇
---------------------------------------
S. ▇▇▇▇ ▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
INVESTORS:
PICTET GLOBAL SECTOR FUND BIOTECH
By: /s/ ▇. ▇▇▇▇▇▇▇ /s/ Yves Martinger
----------------------------------
Title: Directors
-------------------------------
Address:
-----------------------------
-----------------------------
-----------------------------
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
BRENTWOOD ASSOCIATES VII, L.P.
By: Brentwood VII Ventures, L.P.,
Its General Partner
By: /s/
----------------------------------
Title: General Partner
-------------------------------
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BRENTWOOD AFFILIATES FUND, L.P.
By: Brentwood VII Ventures, L.P.,
Its General Partner
By: /s/
----------------------------------
Title: General Partner
-------------------------------
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
DELPHI VENTURES IV, L.P.
By: Delphi Management Partners IV, L.L.C.,
Its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Managing Member
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
DELPHI BIOINVESTMENTS IV, L.P.
By: Delphi Management Partners IV, L.L.C.,
Its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Managing Member
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
INTERWEST PARTNERS VI, L.P.
By: InterWest Management Partners VI, L.L.C.
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Managing Director
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
INTERWEST INVESTORS VI, L.P.
By: InterWest Management Partners VI, L.L.C.
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Managing Director
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
ALTA CALIFORNIA PARTNERS II, L.P.
By: Alta California Management Partners, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Member
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ALTA EMBARCADERO PARTNERS II, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Under Power of Attorney
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
FIDURHONE S.A.
By: /s/ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Title: Secretary of the Board
--------------------------
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
BIM BILANCIATO
By: /s/
-----------------------------
Name:
---------------------------
Title: Head of Investments
--------------------------
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
BIM AZIONARIO GLOBAL
By: /s/
-----------------------------
Name:
---------------------------
Title: Head of Investments
--------------------------
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
CHARTER VENTURES IV L.P.
By: /s/ A. ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: A. ▇▇▇▇ ▇▇▇▇▇
---------------------------
Title: General Partner
--------------------------
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ M.D.
---------------------------
Title: Individual
--------------------------
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
▇▇▇▇▇▇ ▇. ENGLISH
By: /s/ ▇▇▇▇▇▇ ▇. English
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Name: ▇▇▇▇▇▇ ▇. English
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Title:
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
BSI SA
By: /s/ P.P.R. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: P.P.R. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Assistant Vice President Senior Vice President
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
BANK ▇▇▇▇▇▇ ▇▇▇▇ & CO.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
CBG COMPAGNIE BANCAIRE GENEVE
By: /s/ P.-▇. ▇▇▇▇▇▇▇ Th. Mory
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Name: P.-▇. ▇▇▇▇▇▇▇ Th. Mory
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Title: Ass. Vice Pres. Ass. Vice Pres.
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
▇▇▇▇▇▇ SPA.
By: /s/
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Name:
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Title: Chairman
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
LGT BANK IN LIECHTENSTEIN AG
By: /s/
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Name:
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Title: Chief Officer Chief Officer
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
RBB BANK AG, VIENNA
By:
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Name:
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Title:
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
TRIAXIS TRUST AG
By: /s/ H.P. ▇▇▇▇
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Name: H.P. ▇▇▇▇
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Title: CEO
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
TREFOIL S.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Director
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
SWISSPARTNERS INVESTMENT NETWORK LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Partner
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
BANQUE SCS ALLIANCE SA
By: /s/
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Name:
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Title:
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
THE BAY CITY CAPITAL FUND II, L.P.
By: Bay City Capital Management II LLC
Its General Partner
By: /s/ ▇▇▇▇▇ ▇▇
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Name: ▇▇▇▇▇ ▇▇
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Title: Managing Director
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THE BAY CITY CAPITAL FUND II CO-INVESTMENT FUND, L.P.
By: Bay City Capital Management II LLC
Its General Partner
By: /s/ ▇▇▇▇▇ ▇▇
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Name: ▇▇▇▇▇ ▇▇
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Title: Managing Director
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
FIN-SIRIO SRL
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
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Title: Procuratore
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
ESPERIA PERFORMANCE FUND
By:
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Name:
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Title:
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
CENTRO BANK VIENNA
By: /s/
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Name:
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Title:
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
By:
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Name:
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Title:
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By:
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Name:
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Title:
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
LOMBARD ODIER & CIE
By: /s/ Alexandre ▇▇▇▇▇ ▇▇▇▇▇▇▇ Gokok
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Name: Alexandre ▇▇▇▇▇ ▇▇▇▇▇▇▇ Gokok
------------------------- ------------------------
Title: Assistant Vice President Assistant Vice President
------------------------ ------------------------
[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- ----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
SCHEDULE A
SCHEDULE OF INVESTORS
Name
------------------------------------------------
Brentwood Associates VIII, L.P.
Brentwood Affiliates Fund., L.P.
Delphi Ventures IV, L.P.
Delphi Bioinvestments IV, L.P.
Alta California Partners II, L.P.
Alta Embarcadero Partners II, LLC
Interwest Partners VI, L.P.
Interwest Investors VI, L.P.
Pictet Global Sector Fund Biotech
Brentwood Associates VII, L.P.
Fidurhone S.A.
Bim Bilanciato
Bim Azionario Global
Charter Ventures IV ▇.▇.
▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇ ▇. English
BSI SA
Bank ▇▇▇▇▇▇ ▇▇▇▇ & Co.
CBG Compagnie Bancaire ▇▇▇▇▇▇
▇▇▇▇▇▇ Spa.
Fin-Sirio SRL
Esperia Performance Fund
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇
LGT Bank In Liechtenstein AG
RBB Bank Ag, Vienna
Triaxis Trust AG
Trefoil S.A.
Swisspartners Investment Network Ltd.
Banque SCS Alliance SA
Bay City Capital Fund II, L.P.
Bay City Capital Fund II Co-Investment Fund,
▇.▇.
▇▇▇▇▇▇▇ Odier & Cie
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Pieragelo ▇▇▇▇▇▇▇▇▇▇
