Exhibit 10.1
EXECUTION DOCUMENT
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (the "Agreement") is
made as of May 15, 2000 by and among XENOGEN CORPORATION, a California
corporation (the "Company"), and the individuals and entities listed on Exhibit
A attached hereto. This Agreement supercedes and terminates the Amended and
Restated Investors' Rights Agreement dated as of April 9, 1999.
1. Certain Definitions. As used in this Agreement, the following terms shall
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have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
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other federal agency at the time administering the Securities Act.
"Conversion Stock" shall mean the shares of Common Stock issued or
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issuable upon conversion of the Shares.
"Holder" shall mean the holders of Registrable Securities or
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securities convertible into Registrable Securities and any person holding such
securities to whom the rights under this Agreement have been transferred in
accordance with Section 2.13 hereof.
"Investors" shall mean: (i) the purchasers of Series A Preferred Stock
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pursuant to the Series A Preferred Stock Purchase Agreement, dated August 19,
1996, (the "Series A Agreement") (ii) the purchasers of Series B Preferred Stock
pursuant to the Series B Preferred Stock Purchase Agreement, dated April 19,
1996, (the "Series B Agreement") (iii) the purchasers of Series C Preferred
Stock pursuant to the Series C Preferred Stock Purchase Agreement, dated January
27, 1998 (the "Series C Agreement"), (iv) the purchasers of Series D Preferred
Stock pursuant to the Series D Preferred Stock Purchase Agreement, dated as of
April 9, 1999 (the "Series D Agreement"), and (v) the purchasers of Series E
Preferred Stock pursuant to the Series E Preferred Stock Purchase Agreement
dated as of even date herewith.
"Preferred Stock" shall mean the Company's Series A Preferred Stock,
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Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock.
"Registrable Securities" means (i) the Conversion Stock, and (ii) any
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Common Stock of the Company issued or issuable with respect to, or in exchange
for or in replacement of the Conversion Stock or other securities convertible
into or exercisable for Conversion Stock upon any stock split, stock dividend,
recapitalization, or similar event, provided, however, that shares of Common
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Stock or other securities shall only be treated as Registrable Securities if and
so long as they have not been sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise
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stated below, incurred by the Company in complying with Sections 2.5, 2.6 and
2.7 hereof, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, up to one (1) counsel to the selling Holders (with fees and
expenses not to exceed $25,000), blue sky fees and expenses, the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company which shall be paid in any
event by the Company).
"Restricted Securities" shall mean the securities of the Company
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required to bear the legend set forth in Section 2.2 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
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any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all legal fees and expenses in excess of
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$25,000 for a single counsel to the selling shareholders, all legal fees and
expenses of more than one (1) counsel to all the selling shareholders,
underwriting discounts, selling commissions and stock transfer taxes applicable
to the securities registered by the Holders.
"Shares" shall mean the shares of the Company's Series A Preferred
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Stock issued pursuant to the Series A Agreement, the Company's Series B
Preferred Stock issued pursuant to the Series B Agreement, the Company's Series
C Preferred Stock issued pursuant to the Series C Agreement, the Company's
Series D Preferred Stock issued pursuant to the Series D Agreement and the
Company's Series E Preferred Stock issued pursuant to the Series E Agreement.
2. Restrictions on Transferability of Securities; Compliance with
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Securities Act; Registration Rights
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2.1 Restrictions on Transferability. The Shares and the Conversion
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Stock shall not be sold, assigned, transferred or pledged except upon the
conditions specified in this Section 2. The Investors will cause any proposed
purchaser, assignee, transferee, or pledgee of the Shares or the Conversion
Stock held by the Investors to agree to take and hold such securities subject to
the provisions and upon the conditions specified in this Section 2.
2.2 Restrictive Legend. Each certificate representing (i) the Shares,
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(ii) the Conversion Stock or (iii) any other securities issued in respect of the
Shares or the Conversion Stock
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upon any stock split, stock dividend, recapitalization, merger, consolidation or
similar event, shall (unless otherwise permitted by the provisions of Section
2.3 below) be stamped or otherwise imprinted with a legend in the following form
(in addition to any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE
SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO
THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF
THE CORPORATION.
The Investors and Holders consent to the Company making a notation on
its records and giving instructions to any transfer agent of the Shares or the
Conversion Stock in order to implement the restrictions on transfer established
in this Section 2.
2.3 Notice of Proposed Transfers. The holder of each certificate
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representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 2.3. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities (other than (i) a
transfer not involving a change in beneficial ownership, or (ii) in transactions
involving the distribution without consideration of Restricted Securities by any
Holder to any of its partners, or retired partners, or to the estate of any of
its partners or retired partners, (iii) a transfer to any fund, individual,
partnership or company which is an affiliate of the transferror, which is not a
competitor of the Company, subject to compliance with applicable securities
laws, or (iv) transfers in compliance with Rule 144(k), so long as the Company
is furnished with satisfactory evidence of compliance with such Rule), unless
there is in effect a registration statement under the Securities Act covering
the proposed transfer, the holder thereof shall give written notice to the
Company of such holder's intention to effect such transfer, sale, assignment or
pledge. Each such notice shall describe the manner and circumstances of the
proposed transfer, sale, assignment or pledge in sufficient detail, and shall be
accompanied, at such holder's expense, by either (i) a written opinion of legal
counsel who shall, and whose legal opinion shall be, reasonably satisfactory to
the Company addressed to the Company, to the effect that the proposed transfer
of the Restricted
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Securities may be effected without registration under the Securities Act, or
(ii) a "no action" letter from the Commission to the effect that the transfer of
such securities without registration will not result in a recommendation by the
staff of the Commission that action be taken with respect thereto, whereupon the
holder of such Restricted Securities shall be entitled to transfer such
Restricted Securities in accordance with the terms of the notice delivered by
the holder to the Company. Each certificate evidencing the Restricted Securities
transferred as above provided shall bear the appropriate restrictive legend set
forth in Section 2.2 above, except that such certificate shall not bear such
restrictive legend if in the opinion of counsel for such holder and in the
reasonable opinion of the Company such legend is not required in order to
establish compliance with any provision of the Securities Act.
2.4 Removal of Restrictions on Transfer of Securities. Any legend referred
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to in Section 2.2 hereof stamped on a certificate evidencing the Restricted
Securities and the stock transfer instructions and record notations with respect
to such Restricted Security shall be removed and the Company shall issue a
certificate without such legend to the holder of such Restricted Security if
such security is registered under the Securities Act, or if such holder provides
the Company with an opinion of counsel (which may be counsel for the Company)
reasonably acceptable to the Company to the effect that a public sale or
transfer of such security may be made without registration under the Securities
Act or such holder provides the Company with reasonable assurances, which may,
at the option of the Company, include an opinion of counsel satisfactory to the
Company, that such security can be sold pursuant to Section (k) of Rule 144
under the Securities Act.
2.5 Requested Registration.
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(a) Request for Registration. If the Company shall receive at any
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time after the earlier of (A) December 31, 2002 or (B) six (6) 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 Holders of at least a majority of the Registrable
Securities that the Company effect any registration, qualification or compliance
with respect to at least thirty-five percent (35%) of the Registrable
Securities, or any lesser number of shares of Registrable Securities if the
anticipated aggregate offering price exceeds $10,000,000, the Company will:
(i) within 20 days of the receipt by the Company of
such notice, give written notice of the proposed registration, qualification or
compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to
effect such registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or regulations)
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as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in
a written request received by the Company within 20 days after receipt of such
written notice from the Company.
Notwithstanding the foregoing, the Company shall not be obligated to take
any action to effect any such registration, qualification or compliance pursuant
to this Section 2.5:
(A) In any particular jurisdiction in which the Company would be
required to qualify as a foreign corporation, subject itself to taxation in that
jurisdiction or execute a general consent to service of process in effecting
such registration, qualification or compliance unless the Company is already
subject to service in such jurisdiction and except as may be required by the
Securities Act;
(B) During the period starting with the date sixty (60) days
prior to the Company's estimated date of filing of, and ending on the date six
(6) months immediately following the effective date of, any registration
statement pertaining to securities of the Company (other than a registration of
securities in a Rule 145 transaction or with respect to an employee benefit
plan); provided that the Company is actively employing in good faith all
reasonable efforts to cause such registration statement to become effective;
(C) After the Company has effected two such registrations
pursuant to this Section 2.5(a) and such registrations have been declared or
ordered effective, provided further, that all Registrable Securities requested
to be included in such registration were in fact included in such registration;
or
(D) If the Company shall furnish to such Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors it would be seriously detrimental to the Company or
its shareholders for a registration statement to be filed in the near future,
then the Company's obligation to use its best efforts to register, qualify or
comply under this Section 2.5 shall be deferred for a period not to exceed 120
days from the date of receipt of written request from the Holders; provided
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however, that the Company shall not exercise such right more than once in any
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twelve-month period.
Subject to the foregoing clauses (A) through (D), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable, after receipt of the request or requests of
the Holders.
(b) Underwriting. In the event that a registration pursuant to Section
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2.5 is for a registered public offering involving an underwriting, the Company
shall so advise the Holders as
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part of the notice given pursuant to Section 2.5(a)(i). In such event, the right
of any Holder to include Registrable Securities in a registration pursuant to
Section 2.5 shall be conditioned upon such Holder's participation in the
underwriting arrangements required by this Section 2.5, and the inclusion of
such Holder's Registrable Securities in the underwriting to the extent requested
shall be limited to the extent provided herein.
The Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter of recognized national standing
selected for such underwriting by a majority of the Holders proposing to
distribute their securities through such underwriting and reasonably acceptable
to the Company. Notwithstanding any other provision of this Section 2.5, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
Registrable Securities and other securities to be distributed through such
underwriting. The Company shall so advise all Holders distributing their
securities through such underwriting of such limitation and the number of shares
of Registrable Securities that may be included in the registration (and
underwriting, if any) shall be allocated among all Holders in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities
requested by such Holders to be included in such Registration Statement. No
Registrable Securities excluded from the underwriting by reason of the
Underwriters marketing limitation shall be included in such registration. To
facilitate the allocation of shares in accordance with the above provisions, the
Company may round the number of shares allocated to any Holder or Holders to the
nearest 100 shares. In no event shall the number of Registrable Securities
underwritten in an offering be limited unless and until all shares held by
persons other than the Holders of Registrable Securities and the Company are
completely excluded from such offering.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Holders. The Registrable
Securities and/or other securities so withdrawn shall also be withdrawn from
registration, and such Registrable Securities shall not be transferred in a
public distribution prior to 180 days after the effective date of such
registration, or such other shorter period of time as the underwriters may
require. The Company may impose stop transfer instructions with its transfer
agent in order to enforce the foregoing covenant.
2.6 Company Registration.
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(a) Notice of Registration. If at any time or from time to time
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the Company shall determine to register any of its securities, either for its
own account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans, (ii) a registration
relating solely to a Rule 145 transaction, (iii) a registration pursuant to
Section 2.5 hereof, or (iv) the initial public offering of the Company's
securities the Company will:
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(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved therein,
all the Registrable Securities specified in a written request or requests, made
within twenty (20) days after receipt of such written notice from the Company,
by any Holder.
(b) Underwriting. If the registration of which the Company gives notice is
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for a registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to Section
2.6(a)(i). In such event the right of any Holder to registration pursuant to
Section 2.6 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of Registrable Securities in the underwriting to
the extent provided herein.
(i) All Holders proposing to distribute their securities through such
underwriting shall (together with the Company) enter into an underwriting
agreement in customary form with the managing underwriter selected for such
underwriting by the Company. Notwithstanding any other provision of this Section
2.6, if the managing underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the managing underwriter
may limit the Registrable Securities and other securities to be distributed
through such underwriting. The Company shall so advise all Holders distributing
their securities through such underwriting of such limitation and the number of
shares of Registrable Securities that may be included in the registration (and
underwriting, if any) shall be allocated among all Holders in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities
requested by such Holders to be included in such Registration Statement but in
no event shall the amount of securities of the selling Holders included in the
offering be reduced below twenty-five percent (25%) 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 shareholders may
be excluded if the underwriters make the determination described above and no
other shareholder's securities are included. For purposes of the preceding
provision concerning apportionment, for any selling shareholder which is a
holder of Registrable Securities and which is a partnership or corporation, the
partners, retired partners and shareholders 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 or any other affiliate shall be deemed
to be a single "selling shareholder," and any pro-rata reduction with respect to
such "selling shareholders" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "selling shareholders," as defined in this sentence. No Registrable
Securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. To facilitate the
allocation of shares in accordance with the above provisions, the Company may
round the number of shares allocated to any Holder or Holders to the nearest 100
shares. In no event shall the number of Registrable Securities underwritten in
an offering be limited unless and until all shares
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held by persons other than the Holders of Registrable Securities are completely
excluded from such offering.
(ii) If any Holder or Holders disapprove of the terms of any
such underwriting, such Holder or Holders may elect to withdraw therefrom by
written notice to the Company and the managing underwriter. The Registrable
Securities and/or other securities excluded or withdrawn from such underwriting
shall also be withdrawn from such registration, and shall not be transferred in
a public distribution prior to 180 days after the effective date of the
registration statement relating thereto, or such other shorter period of time as
the underwriters may require.
(c) Right to Terminate Registration. The Company shall have the
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right to terminate or withdraw any registration initiated by it under this
Section 2.6 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The Registration
Expenses of such withdrawn registration shall be borne by the Company in
accordance with Section 2.8 hereof.
2.7 Registration on Form S-3.
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(a) If any Holder or Holders request in writing that the Company
file a registration statement on Form S-3 (or any successor form to Form S-3),
or any similar short-form registration statement, for a public offering of
Registrable Securities, the reasonably anticipated aggregate price to the public
of which, net of underwriting discounts and commissions (if any), would exceed
$1,000,000 and the Company is a registrant entitled to use Form S-3 to register
the Registrable Securities for such an offering, the Company shall use its best
efforts to cause such Registrable Securities to be registered on such form for
the offering and to cause such Registrable Securities to be qualified in such
jurisdictions as the Holder or Holders may reasonably request. The provisions of
Section 2.6(b) shall be applicable to each registration initiated under this
Section 2.7. The Company will use its best efforts to cause such registration
statement on Form S-3 to remain effective for the period referred to in Section
2.9(a) herein.
(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Section 2.7: (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act; (ii) more than once in any
twelve month period; (iii) if the Company, within ten (10) days of the receipt
of the request of the initiating Holders, gives notice of its bona fide
intention to effect the filing of a registration statement with the Commission
within sixty (60) days of receipt of such request (other than with respect to a
registration statement relating to a Rule 145 transaction, or an offering solely
to employees); (iv) during the period starting with the date sixty (60) days
prior to the Company's estimated date of filing of, and ending on the date six
(6) months immediately following, the effective date of any registration
statement pertaining
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to securities of the Company (other than a registration of securities in a Rule
145 transaction or with respect to an employee benefit plan), provided that the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or (v) if the Company shall furnish
to such Holder a certificate signed by the President of the Company stating that
in the good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its shareholders for registration statements to be
filed in the near future, then the Company's obligation to use its best efforts
to file a registration statement shall be deferred for a period not to exceed
120 days from the receipt of the request to file such registration by such
Holder; provided, however, that the Company shall not exercise such right under
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(iv) and this (v) more than once in any twelve-month period.
2.8 Expenses of Registration. The Company shall bear all Registration
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Expenses in connection with all registrations pursuant to Sections 2.5, 2.6 or
2.7 herein, exclusive of any Selling Expenses. All Selling Expenses relating to
securities registered on behalf of the Holders shall be borne by the holders of
securities included in such registration pro rata among each other on the basis
of the number of shares so registered; provided, however, that the Company shall
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not be required to pay for any expenses of any registration 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 registration was pursuant to
Section 2.5 and the Holders of a majority of the Registrable Securities agree to
forfeit their right to a demand registration pursuant to Section 2.5, if
applicable; provided further, however, that if at the time of such withdrawal,
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the Holders have learned of a material adverse change in the condition,
business, or prospects of the Company which did not exist at the time of their
request, then the Holders shall not be required to pay any of such expenses and
shall retain their rights pursuant to Section 2.5, if applicable.
2.9 Registration Procedures. In the case of each registration,
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qualification or compliance effected by the Company pursuant to this Section 2,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for thirty (30) days (in
the case of registrations pursuant to Section 2.5 and 2.6), ninety (90) days (in
the case of registrations pursuant to 2.7), or less if the distribution
described in the Registration Statement has been completed.
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
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(c) Furnish to the Holders participating in such registration and to the
underwriters of the securities being registered such reasonable number of copies
of the registration statement, preliminary prospectus, final prospectus and such
other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities.
(d) Use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders, provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Furnish, at the request of a majority of the Holders participating in
the registration, on the date that such Registrable Securities are delivered to
the underwriters for sale, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters, on
the date that the registration statement with respect to such securities becomes
effective, (i) an opinion, dated as of such date, of the counsel representing
the Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities and (ii) a letter dated as of
such date, from the independent certified public accountants of the Company, in
form and substance as is customarily given by independent certified public
accountants to underwriters in connection with an underwritten public offering
and reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and if permitted by
applicable accounting standards, to the Holders requesting registration of
Registrable Securities.
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2.10 Indemnification.
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(a) The Company will indemnify each Holder, each of its officers,
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 2, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, qualification or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, or any violation by the Company of the
Securities Act or any rule or regulation promulgated under the Securities Act
applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse each such Holder,
each of its officers, directors, partners and each person controlling such
Holder, each such underwriter and each person who controls any such underwriter,
for any legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder,
controlling person or underwriter specifically for use therein, or the failure
of such Holder to deliver a Prospectus that was delivered to the Holder prior to
a sale or sales by such Holder.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, and each
other Holder, each of its officers, directors, partners and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company, such Holders, such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or
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defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by such Holder specifically for use therein. Notwithstanding the
foregoing, the liability of each Holder under this subsection (b) shall be
limited to the proportion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the public offering price of the shares
sold by such Holder under such registration statement bears to the total public
offering price of all securities sold thereunder, but not to exceed the proceeds
received by such Holder from the sale of Registrable Securities covered by such
registration statement unless such liability resulted from willful misconduct by
such Holder. A Holder will not be required to enter into any agreement or
undertaking in connection with any registration under this Section 2 providing
for any indemnification or contribution on the part of such Holder greater than
the Holder's obligations under this Section 2.10(b).
(c) Each party entitled to indemnification under this Section 2.10 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 2 unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or separate and
different defenses but shall bear the expense of such defense nevertheless. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
(d) If the indemnification provided for under paragraphs (a) through (c)
of this Section 2.10 is unavailable or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in respect thereof referred to therein, then
each indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the underwriters and the Holder of such Registrable Securities,
-12-
on the other, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or actions as well as any other
relevant equitable considerations, including the failure to give any notice
under paragraph (c) of this Section 2.10. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact relates to information supplied by the Company, on
the one hand, or the underwriters or the Holders of such Registrable Securities,
on the other, and to the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each of the Holders agrees that it would not be just and
equitable if contributions pursuant to this paragraph were determined by pro
---
rata allocation (even if all of the Holders of such Registrable Securities were
----
treated as one entity for such purpose) or by any other method of allocation
which did not take account of the equitable considerations referred to above in
this paragraph. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities or action in respect thereof,
referred to above in this paragraph, shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this paragraph, no Holder shall be required to contribute any
amount in excess of the lesser of (i) the proportion that the public offering
price of shares sold by such Holder under such registration statement bears to
the total public offering price of all securities sold thereunder, but not to
exceed the proceeds received by such Holder for the sale of Registrable
Securities covered by such registration statement and (ii) the amount of any
damages which they would have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission. No person guilty of fraudulent
misrepresentations (within the meaning of Section 11(f) of the Securities Act),
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation.
2.11 Information by Holder. The Holder or Holders of Registrable
---------------------
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Section 2.
2.12 Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, after such
time as a public market exists for the Common Stock of the Company, the Company
agrees to:
(a) Use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144 under the
Securities Act, at all times after the effective date that the Company becomes
subject to the reporting requirements of the Securities Act or the Securities
Exchange Act of 1934, as amended.
-13-
EXECUTION DOCUMENT
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934, as amended (at any time
after it has become subject to such reporting requirements);
(c) Register its Common Stock under Section 12 of the Exchange
Act 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.
(d) So long as an Investor owns any Restricted Securities to
furnish to the Investor forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
(at any time after 90 days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Securities Exchange Act of 1934 (at
any time after it has become subject to such reporting requirements), a copy of
the most recent annual or quarterly report of the Company, and such other
reports and documents of the Company and other information in the possession of
or reasonably obtainable by the Company as an Investor may reasonably request in
availing itself of any rule or regulation of the Commission allowing an Investor
to sell any such securities without registration.
2.13 Transfer of Registration Rights. The rights to cause the Company
-------------------------------
to register securities granted Holders under Sections 2.5, 2.6 and 2.7 may be
transferred or assigned to (i) a transferee or assignee who acquires at least
250,000 shares of Registrable Securities or (ii) to any transferee or assignee
who is an affiliate or constituent partner of a Holder or the estate of such
constituent partner, provided that (x) the transferor or assignor provides the
Company prompt written notice of such transfer or assignment, (y) the transferee
or assignee becomes a party to this Agreement and (z) such transfer or
assignment may otherwise be effected in accordance with applicable securities
laws. For the purposes of determining the number of shares of Registrable
Securities held by a transferor or assignor, or transferee or assignee, the
holdings of affiliates of transferors or assignors, or 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.
2.14 Market Standoff Agreement. In connection with the initial public
-------------------------
offering of the Company's securities, each Holder agrees not to sell, make any
short sale of, loan, grant any option for the purchase of, or otherwise dispose
of or hedge its ownership risks of any securities of the Company (other than
those included in the registration) without the prior written consent of the
Company or managing underwriters, as the case may be, for one hundred eighty
(180) days from the effective date of such registration provided that all
officers and directors of the Company, and all holders of five or more percent
of the Company's capital stock enter into similar agreements
-14-
for similar periods of time. Each Holder agrees that the Company may impose stop
transfer instructions in order to enforce the foregoing covenant. Each Holder
agrees to execute any agreement reflecting the foregoing as may be requested by
the managing underwriters at the time of the Company's initial underwritten
public offering.
2.15 Termination of Registration Rights. The rights granted under
----------------------------------
this Section 2 shall terminate on the earlier of (i) the fifth anniversary of
the consummation of the first firm commitment underwritten public offering of
the Company's securities pursuant to an effective registration statement filed
under the Securities Act or (ii) as to a given Holder, when such Holder can sell
all of such Holder's Registrable Securities in a 90 day period pursuant to Rule
144 under the Securities Act.
2.16 Limitations on Subsequent Registration Right. 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 2.6 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 Section 2.5(a) or within one hundred
twenty (120) days of the effective date of any registration affected pursuant to
Section 2.5(a).
3. Investors' Right of First Refusal.
----------------------------------
3.1 Right of First Refusal Upon Issuances of Securities by the
----------------------------------------------------------
Company.
-------
(a) The Company hereby grants, on the terms set forth in this
Section 3.1, to each Investor who (with affiliates) holds at least 500,000
Shares or Conversion Stock, the right of first refusal to purchase all or any
part of such Investor's pro rata share of the New Securities (as defined in
Section 3.1(b)) which the Company may, from time to time, propose to sell and
issue. Such Investors may purchase said New Securities on the same terms and at
the same price at which the Company proposes to sell the New Securities. The pro
rata share of each Investor, for purposes of this right of first refusal, is the
ratio of the total number of shares of Common Stock held by such Investor,
including any shares of Common Stock into which shares of Preferred Stock held
by such Investor are convertible, to the total number of shares of Common Stock
outstanding immediately prior to the issuance of the New Securities (including
any shares of Common Stock into which outstanding shares of Preferred Stock are
convertible and shares of Common Stock issuable upon exercise of outstanding
options and warrants).
-15-
(b) "New Securities" shall mean any capital stock of the
Company, whether now authorized or not, and any rights, options or warrants to
purchase said capital stock, and securities of any type whatsoever that are, or
may become, convertible into said capital stock; provided, however, that New
-------- -------
Securities does not include (i) the Shares, (ii) the Conversion Stock, (iii)
securities offered pursuant to a bona fide, firm commitment underwritten public
offering pursuant to an effective registration statement filed under the
Securities Act, (iv) securities issued pursuant to the acquisition of another
corporation by the Company by merger, purchase of substantially all of the
assets of such corporation or other reorganization which have been approved by
the Board of Directors, (v) all shares of Common Stock or other securities
issued or issuable to officers, directors, employees, scientific advisors or
consultants of the Company pursuant to any plan or arrangement approved by the
Board of Directors of the Company, (vi) securities issued, upon the approval of
the Board of Directors of the Company, pursuant to corporate collaborations,
agreements to license technology and/or provide sponsored research which have
been approved by the Board of Directors, and (vii) securities issued to lending
or leasing institutions pursuant to arrangements approved by the Board of
Directors of the Company.
(c) In the event the Company proposes to undertake an issuance
of New Securities, it shall give to the Investors written notice (the "Notice")
of its intention, describing the type of New Securities, the price, the terms
upon which the Company proposes to issue the same, and a statement as to the
number of days from receipt of such Notice within which the Investors must
respond to such Notice. The Investors shall have thirty (30) days from the date
of receipt of the Notice to purchase any or all of their pro rata portion of the
New Securities for the price and upon the terms specified in the Notice by
giving written notice to the Company and stating therein the quantity of New
Securities to be purchased and forwarding payment for such New Securities to the
Company if immediate payment is required by such terms, or in any event no later
than thirty (30) days after the date of receipt of the Notice.
(d) In the event the Investors fail to exercise in full the
right of first refusal within said thirty (30) day period, the Company shall
have ninety (90) days thereafter to sell or enter into an agreement (pursuant to
which the sale of New Securities covered thereby shall be closed, if at all,
within thirty (30) days from date of said agreement) to sell the New Securities
(including any New Securities which were to be sold and issued to the Investors
and any New Securities as to which the Investors' rights were not exercised), at
a price and upon general terms no more favorable to the purchasers thereof than
specified in the Notice. In the event the Company has not sold the New
Securities within said ninety (90) day period (or sold and issued New Securities
in accordance with the foregoing within thirty (30) days from the date of said
agreement), the Company shall not thereafter issue or sell any New Securities
without first offering such securities to the Investors in the manner provided
above.
(e) The right of first refusal granted under this Section 3.1
shall expire upon:
-16-
(i) The closing of the Company's first bona fide firm
commitment public offering underwritten by a nationally recognized investment
bank pursuant to an effective registration statement filed by the Company under
the Securities Act; or
(ii) For each Investor, the date on which such Investor
(with its affiliates) no longer holds a minimum of 500,000 Shares or Conversion
Stock.
4. Affirmative Covenants of the Company and the Investors. The Company
------------------------------------------------------
hereby covenants and agrees as follows:
4.1 Financial Information. The Company will provide Investors who hold
---------------------
at least 100,000 Shares or Conversion Stock with the reports set forth below.
(a) As soon as practicable after the end of each fiscal year,
and in any event within one hundred twenty (120) days thereafter, consolidated
balance sheets of the Company and its subsidiaries, if any, as of the end of
such fiscal year, and consolidated statements of income and consolidated
statements of changes in financial position of the Company and its subsidiaries,
if any, for such year, prepared in accordance with United States generally
accepted accounting principles and setting forth in each case in comparative
form the figures for the previous fiscal year (or, at the election of the
Company, setting forth in comparative form the budgeted figures for the fiscal
year then reported), all in reasonable detail and audited by independent public
accountants of national standing selected by the Company, and a comparison of
such financial statements to the operating budget of the Company.
(b) As soon as practicable after the end of each fiscal quarter,
and in any event within sixty (60) days thereafter, unaudited consolidated
balance sheets of the Company and its subsidiaries, if any, as of the end of
such quarter, and unaudited consolidated statements of income and consolidated
statements of changes in financial position of the Company and its subsidiaries,
if any, for such quarter prepared in accordance with United States generally
accepted accounting principles and setting forth in each case in comparative
form the figures for the year to date, in reasonable detail, and a comparison of
such financial statements to the operating budget of the Company.
(c) At such Holder's expense, the right 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 4.1(c) to provide
access to any information which it reasonably considers to be trade secret or
similar confidential information.
-17-
4.2 Assignment of Rights to Financial Information. The rights granted
---------------------------------------------
pursuant to Section 4.1 may be transferred or assigned to (i) a transferee or
assignee who acquires at least 1,000,000 Shares or Conversion Stock or (ii) to
any transferee or assignee who is an affiliate or constituent partner of a
Holder or the estate of such constituent partner, provided that (x) the
transferor or assignor provides the Company prompt written notice of such
transfer or assignment, (y) such transfer or assignment may otherwise be
effected in accordance with applicable securities laws and (z) the transferee or
assignee becomes party to this Agreement. For the purposes of determining the
number of Shares or Conversion Stock held by a transferor or assignor, or
transferee or assignee, the holdings of affiliates of transferors or assignors,
or 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.
4.3 Termination of Covenants. The covenants set forth in Sections 4.1
------------------------
and 4.2 shall terminate and be of no further force or effect upon the closing of
the Company's first firm commitment underwritten public offering pursuant to an
effective registration statement filed by the Company under the Securities Act,
or earlier as to a particular Investor on the date such Investor (with
affiliates) no longer holds a minimum of 100,000 Shares or Conversion Stock.
5. Miscellaneous.
-------------
5.1 Waivers and Amendments. With the written consent of the Company
----------------------
and the record holders of more than fifty percent (50%) of the Shares and
Conversion Stock, the obligations of the Company and the rights of the other
parties to this Agreement may be waived (either generally or in a particular
instance, either retroactively or prospectively and either for a specified
period of time or indefinitely), and with the same consent the Company, when
authorized by resolution of its Board of Directors, may enter into a
supplementary agreement for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement; provided,
--------
however, that no such waiver or supplemental agreement shall reduce the
-------
aforesaid percentage of the Shares and Conversion Stock which is required to
consent to any waiver or supplemental agreement, without the consent of the
record holders of all of the Registrable Securities.
5.2 Governing Law. This Agreement shall be governed in all respects
-------------
by the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California.
5.3 Successors and Assigns. Except as otherwise expressly provided
----------------------
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
-18-
5.4 Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
5.5 Notices. All notices and other communications required or
-------
permitted hereunder shall be effective upon receipt and shall be in writing and
may be delivered in person, by telecopy, electronic mail, overnight delivery
service or U.S. mail, in which event it may be mailed by first-class, certified
or registered, postage prepaid, addressed (a) if to an Investor or Holder, at
such address as such Investor or Holder shall have furnished the Company in
writing, or, until any such holder so furnishes an address to the Company, then
to and at the address of the last holder of such securities who has so furnished
an address to the Company, or (b) if to the Company, at such address as the
Company shall have furnished to the Investors in writing. Notwithstanding the
foregoing, all notices and communications to addresses outside the United States
shall be given by telecopier and confirmed in writing sent by overnight or two-
day courier service.
5.6 Titles and Subtitles. The titles of the paragraphs and
--------------------
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
5.7 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. Signature pages to this Agreement received by
the Company via facsimile shall be deemed the same as originals.
[Remainder of Page Intentionally Left Blank]
-19-
The foregoing Amended and Restated Investors' Rights Agreement is hereby
executed as of the date first above written.
"COMPANY"
XENOGEN CORPORATION
a California corporation
By: /s/ X. Xxxxxxxxxx
---------------------------
Print Name: XXXXX XXXXXXXXXX
-------------------
Title: CEO & VP.
------------------------
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
"INVESTORS"
Brentwood Associates VIII, L.P.
By: Brentwood VIII Ventures, L.L.C.
Its Managing Member
By: /s/ X. Xxxxxx
-------------------------
Print Name: XXXXX XXXXXX
-----------------
Title: MANAGING MEMBER
----------------------
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
CHEVRON TECHNOLOGY VENTURES LLC
By: /s/ Xxxxxx X. Xxxx
---------------------------
Print Name: Xxxxxx X. Xxxx
-------------------
Title: President
------------------------
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
DELPHI VENTURES IV, L.P.
By: Delphi Management Partners IV, L.L.C.
General Partner
By: /s/ [ILLEGIBLE]
----------------------------------
Managing Member
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
DELPHI BIOINVESTMENTS IV, L.P.
By: Delphi Management Partners IV, L.L.C.
General Partner
By: /s/ [ILLEGIBLE]
--------------------------------
Managing Member
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
INVEMED FUND, L.P.
By: Invemed Associates LLC
General Partner
By: /s/ Xxxx Xxxxx
-----------------------------------
Print Name: XXXX XXXXX
---------------------------
Title: CFO of INVEMED ASSOCIATES LLC
--------------------------------
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
XXXXX XXXXXXXX & COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------
Print Name: XXXXXXXX X. XXXXXXX
---------------------------
Title: SVP
--------------------------------
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
LOMBARD ODIER & CIE
By: /s/ C. Gokok /s/ X. Xxxxxxxxx
-----------------------------------------------------------
Print Name: Xxxxxxx Gokok Xxxxxxxx Xxxxxxxxx
---------------------------------------------------
Title: Assistant Vice President Assistant Vice President
--------------------------------------------------------
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
/s/ Xxxx X. Xxxxxxxx
--------------------------------
Xx. Xxxx X. Xxxxxxxx, Ph.D
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
HARVARD PRIVATE CAPITAL HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Print Name: Xxxxxxx Xxxxxx
---------------------
Title: Authorized Signatory
--------------------------
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
PICTET GLOBAL SECTOR FUND - BIOTECH
By: /s/ X. Xxxxxxx /s/ Y. Martignier
----------------------------------------
Print Name: X. XXXXXXX Y. MARTIGNIER
--------------------------------
Title: Directors
-------------------------------------
May 4, 0000
XXXXXXX AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
HSBC INVESTMENT BANK PLC
By: /s/ [ILLEGIBLE]
-----------------------------
Print Name: [ILLEGIBLE]
---------------------
Title: Managing
--------------------------
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
/s/ [ILLEGIBLE]
--------------------------------
[NAME] (Dr. )
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
S.R. ONE, LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
-----------------------
Title: Vice President
----------------------------
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
INVEMED ASSOCIATES LLC
By: /s/ Xxxx Xxxxx
-------------------------
Print Name: XXXX XXXXX
-----------------
Title: CFO
----------------------
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
/s/ Xxxxxxx Xxxxx, Xx.
------------------------------
Xxxxxxx Xxxxx, Xx.
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXECUTION DOCUMENT
/s/ Xxxx Xxxxx
---------------------------
Xxxx Xxxxx
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
/s/ Xxxxxx Xxxxxxxxx
----------------------------
Xxxxxx Xxxxxxxxx
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
/s/ Xxx Xxxxxx
--------------------------
Xxx Xxxxxx
XENOGEN AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT SIGNATURE PAGE
EXHIBIT A
Class and
Number of Shares of
Preferred Stock
--------------------------------------------- -------------------
Xxxx Xxxxxx 3,030 Series D
Invemed Associates, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxxxx 12,121 Series D
Invemed Associates, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Brentwood Affiliates Fund 83,200 Series C
0000 Xxxx Xxxx Xxxx 60,606 Series X
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Brentwood Associates VIII, L.P. 1,996,800 Series C
0000 Xxxx Xxxx Xxxx 1,454,546 Series X
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxxxx X. Xxxxxxxx 3,030 Series A
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx 17,730 Series C
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Xxxxx Xxxxxx 92,308 Series C
000 Xxxxx Xxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Delphi BioInvestments IV, L.P. 27,969 Series C
0000 Xxxx Xxxx Xxxx 15,915 Series D
Xxxxxxxx 0, Xxxxx 000 2,376 Series E
Attn: Xxxxx Xx
Xxxxx Xxxx, XX 00000
A-1
Class and
Number of Shares of
Preferred Stock
--------------------------------------------- -------------------
Delphi Ventures IV, L.P. 1,356,646 Series C
0000 Xxxx Xxxx Xxxx 771,964 Series D
Xxxxxxxx 0, Xxxxx 000 115,271 Series E
Attn: Xxxxx Xx
Xxxxx Xxxx, XX 00000
Xxxxxxx and Xxxxx Xxxxx 55,000 Series B
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx 3,030 Series A
Xxxxxx & Simion
000 Xxxxxxxxxx Xxx.
Xxxxx Xxxx, XX 00000
Harvard Private Capital Holdings, Inc. 1,423,077 Series C
000 Xxxxxxxx Xxxxxx 1,333,334 Series D
26/th/ Floor 941,176 Series E
Attn: Xxxx Xxxxx
Xxxxxx, XX 00000
Invemed Fund, L.P. 1,212,121 Series D
000 Xxxx Xxxxxx, Xxxxx 0000 117,647 Series X
Xxx Xxxx, XX 00000
Invemed Associates LLC 227,273 Series D
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx-Xxxxxx 12,122 Series D
Credit Suisse First Boston
0 Xxxxx Xxxxxx
Xxxxxx, XXXXXXX
Xxxx & Xxxxx Xxxxxx 20,000 Series B
00 Xx Xxxxxx
Xxxxxx, XX 00000
A-2
Class and
Number of Shares of
Preferred Stock
--------------------------------------------- -------------------
Xxxxxxx Xxxxxxx 20,000 Series B
00 Xxxxxx Xxxx
Xxxx Xxxxx, XX 00000
Eng X. Xxx 10,000 Series B
00000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Xxxxxxx Xxxxx 1,500 Series C
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
0000 Xxxxxxx xx Xxxxx Xxxxxxx
Xxxxxx, XX 00000
Xxxxxx & Xxxxxxx Ventures 27,273 Series A
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Plan A 10,000 Series B
000 Xxxxx Xxxxxx
Xxxxx X
Xxxxxxxx Xxxx, XX 00000
Xxxxxxx Xxxxxx 3,847 Series C
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Xxxxxxx Xxxxxx 38,462 Series C
ImmunoGen, Inc.
000 Xxxxxxxxxx Xxx
Xxxxxxx, XX 00000
H. Xxxx and Xxxxxx X. Xxxxxxxxxx 20,000 Series B
000 Xxxxx Xxxxx
Xxx Xxxxxx, XX 00000
A-3
Class and
Number of Shares of
Preferred Stock
---------------------------------------------------------- -------------------
Xxxxxxx Xxxxx, Xx. 15,152 Series D
Invemed Associates, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Xxxx and Xxxxxxx Xxxxx TTEES FOB 55,000 Series B
The Family Xxxxx Trust
000 Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
S.R. One, Limited 1,515,152 Series D
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000 705,882 Series X
Xxxx Xxxxx Xxxxxx
Xxxx Xxxxxxxxxxxx, XX 00000-0000
State Bank & Trust Company, TTEE FBO Xxxxx Xxxxxxx 401(k) 10,000 Series A
State Bank & Trust Company, TTEE
FBO Xxxxx Xxxxxxx 401(k) #5455
XX Xxx 000
Xxx Xxx, XX 00000-0000
Xxxxxx X. Xxxxxxx 30,303 Series D
Invemed Associates, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Xxx Xxxxxx 15,152 Series D
Invemed Associates, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
WS Investment Company 95B 27,273 Series A
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
A-4
Class and
Number of Shares of
Preferred Stock
--------------------------------------------- -------------------
Brentwood VIII Venture, L.L.C. 705,882 Series E
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxxx Xxxxxxxx & Company 117,647 Series E
0 Xxxxxx Xxx, Xxxxx 000X
Xxxxxx, XX 00000
Lombard Odier & Cie 1,176,470 Series E
Xxxxxxxxxxx 00
0000 Xxxxxx
Xxxxxxxxxxx
Xx. Xxxx X. Xxxxxxxx, Ph.D 11,764 Series E
0000 Xxxxxx Xxxxxx
Xxxx X0
Xxxxxxxxx, XX 00000
Pictet & Cie Banquiers 941,176 Series E
Xx. Xxxxxxx-Xxxxx
XX-0000 Xxxxxx
Xxxxxxxxxxx
HSBC Investment Bank plc 1,176,470 Series E
00 Xxxxx Xxxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Xx. Xxxxx Xxxxx 5,882 Series E
Willem de Xxxxxxxxxxx 00
0000 Xx Santpoort-Zuid
The Netherlands
A-5
