Exhibit 4.1
SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT dated as of the 23rd day
of December, 1999, by and among ORAPHARMA, INC., a Delaware corporation (the
"Company"), and those stockholders of the Company whose names appear on the
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signature pages hereof (the "Investors").
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W I T N E S S E T H
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WHEREAS, the Company and certain of the Investors are entering into a Stock
Purchase Agreement dated as of the date hereof (the "Stock Purchase Agreement")
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in connection with which the Company has agreed to sell shares of its Series D
Preferred Stock (as defined below) to such Investors; and
WHEREAS, in connection with the Stock Purchase Agreement, the parties
hereto desire to enter into this Stockholders Agreement.
NOW, THEREFORE, in consideration of the foregoing, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
SECTION 1. Definitions.
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As used in this Agreement, the following terms shall have the following
respective meanings:
"Acceptance" shall have the meaning set forth in Section 4.2(e).
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"Business Day" shall mean any day that is not a Saturday or Sunday or
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a day on which banks located in the Commonwealth of Pennsylvania, or New York,
New York are authorized or required to be closed.
"By-Laws" shall mean the By-Laws of the Company.
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"Capital Stock" shall mean any (i) shares of Common Stock, Preferred
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Stock or any other equity security of the Company, (ii) debt securities
convertible into or exchangeable for any equity security of the Company, or
(iii) options, warrants or other rights to subscribe for, purchase or otherwise
acquire any such equity security or debt security of the Company.
"Charter" shall mean the Third Amended and Restated Certificate of
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Incorporation of the Company, as restated and amended from time to time.
"Commission" shall mean the Securities and Exchange Commission or any
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other Federal agency administering the Securities Act at the applicable time.
"Common Shares" shall mean the issued and outstanding shares of the
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Company's Common Stock, at the applicable time.
"Common Stock" shall mean the Common Stock, par value $.001 per share,
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of the Company.
"Common Stockholder" shall mean each Person who has purchased Common
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Stock from the Company or who acquires Common Stock by Transfer or otherwise and
who becomes a party to this Agreement, other than Preferred Stockholders who
acquire Restricted Shares upon conversion of the Preferred Shares.
"Equity Stock" shall have the meaning set forth in Rule 3a11-1 under
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the Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, and any successor statute and the rules and regulations thereunder, as
shall be in effect from time to time.
"Excluded Stock" shall have the meaning given to such term in the
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Charter.
"Family" shall include any spouse, lineal ancestor or descendant, or
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sibling, any trust for the exclusive benefit of any of the foregoing, or any
corporation, limited partnership, limited liability company or other entity
majority controlled by any of the foregoing individuals or trusts.
"Founders" shall mean Xxxxxx Investment Holdings I, L.L.C., Oak
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Investment Partners VI, Limited Partnership and Oak VI Affiliates Fund, Limited
Partnership, and any permitted transferee of a Founder pursuant to Section
4.1(b), each of whom shall become a party to this Agreement by executing a copy
hereof.
"Founders Pro Rata Fraction" shall have the meaning set forth in
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Section 4.2(b) hereof.
"Group" shall mean as to (a) a Stockholder that is a partnership, any
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or all of its general or limited partners or any "affiliate" thereof (as defined
by Rule 405 promulgated under the Securities Act), (b) a Stockholder that is a
trust, any of the beneficiaries, settlers or grantors now existing or hereafter
arising from, or any Person under common control with, such trust, (c) a
Stockholder that is a corporation, any of its stockholders, any subsidiary of
such Stockholder or any corporation which is under common control with such
Stockholder, or any directors, officers or employees of the Stockholder, and (d)
a Stockholder, that is a limited liability company, any of its members.
"Initial Public Offering" or "IPO" shall mean the Company's initial
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distribution of New Securities in an underwritten Public Offering to the general
public pursuant to a registration statement filed with and declared effective by
the Commission pursuant to the Securities Act at a price per New Security of not
less than $4.00 (as adjusted for stock splits, stock dividends or similar
recapitalizations) and resulting in gross proceeds (before underwriting
commissions and offering expenses) to the Company of not less than $15 million.
"New Securities" shall mean any Equity Stock, including, but not
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limited to, shares of Common Stock, any security which is convertible into or
exercisable or exchangeable for Common Stock, or any right, option or warrant to
acquire any Common Stock of the Company.
"Offer" shall have the meaning set forth in Section 4.2(a) hereof.
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"Offered Founders Shares" shall have the meaning set forth in Section
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4.2(b) hereof.
"Offered Shares" shall have the meaning set forth in Section 4.2(a)
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hereof.
"Option Shares" shall mean shares of Common Stock issued, available
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for issuance or subject to options, warrants or rights granted or authorized to
be granted to employees, directors, consultants and others who provide services
to the Company pursuant to any Stock Plan.
"Person" shall mean and include a natural person, a corporation, a
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limited liability company, a partnership, a trust, an unincorporated
organization, a joint stock company, a joint venture, a government or any
department, agency or political subdivision thereof or any other entity of
whatever nature.
"Preferred Registrable Securities" shall have the meaning set forth in
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Section 8.2.
"Preferred Shares" shall mean the issued and outstanding shares of the
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Company's Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock.
"Preferred Stockholder" shall mean each of the Stockholders who has
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purchased Preferred Shares from the Company pursuant to the Stock Purchase
Agreement and any Person to whom Preferred Shares or Restricted Shares are
Transferred in accordance with the provisions hereof.
"Pro Rata Fraction" shall have the meaning set forth in Section
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4.2(c).
"Public Offering" shall mean a distribution of New Securities in an
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underwritten public offering to the general public pursuant to a registration
statement filed with and declared effective by the Commission pursuant to the
Securities Act.
"Purchasing Stockholder" shall have the meaning set forth in Section
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4.2(f).
"Registrable Securities" shall have the meaning set forth in Section
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8.2.
"Restricted Shares" shall mean the shares of Common Stock issued or
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issuable upon the conversion of Preferred Shares.
"Restricted Stock Agreements" shall mean the Restricted Stock Purchase
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Agreements between the Company and each of the Founders.
"Securities Act" shall mean the Securities Act of 1933, as amended,
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and any successor statute and the rules and regulations of the Commission
thereunder, as shall be in effect at the applicable time.
"Selling Stockholder" shall have the meaning set forth in Section
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4.2(a).
"Series A Preferred Registrable Securities" shall mean the shares of
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Common Stock issued or issuable upon conversion or exercise of Series A
Preferred Restricted Securities or constituting a portion of the Series A
Preferred Restricted Securities.
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"Series A Preferred Restricted Securities" shall mean Series A
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Preferred Stock issued to Preferred Stockholders and the Common Stock issued or
issuable upon the conversion of the Series A Preferred Stock issued to Preferred
Stockholders, and any other securities of the Company which may be issued
hereafter to such Preferred Stockholders or any member of their Group which are
convertible into or exercisable or exchangeable for shares of Common Stock
(including, without limitation, other classes or series of Preferred Stock,
warrants, options or other rights to purchase Common Stock or convertible
debentures or other convertible debt securities, but excluding the Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock), and the
Common Stock issued or issuable upon such conversion or exercise of such other
securities, which have not been sold (a) in connection with an effective
registration statement filed pursuant to the Securities Act, or (b) pursuant to
Rule 144 or Rule 144A promulgated by the Commission under the Securities Act.
"Series A Preferred Stock" shall mean the Series A Preferred Stock,
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par value $.001 per share, of the Company.
"Series B Preferred Registrable Securities" shall mean the shares of
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Common Stock issued or issuable upon conversion or exercise of Series B
Preferred Restricted Securities or constituting a portion of the Series B
Preferred Restricted Securities.
"Series B Preferred Restricted Securities" shall mean Series B
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Preferred Stock issued to Preferred Stockholders and the Common Stock issued or
issuable upon the conversion of the Series B Preferred Stock issued to Preferred
Stockholders, and any other securities of the Company which may be issued
hereafter to such Preferred Stockholders or any member of their Group which are
convertible into or exercisable or exchangeable for shares of Common Stock
(including, without limitation, other classes or series of Preferred Stock,
warrants, options or other rights to purchase Common Stock or convertible
debentures or other convertible debt securities, but excluding the Series A
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock), and the
Common Stock issued or issuable upon such conversion or exercise of such other
securities, which have not been sold (a) in connection with an effective
registration statement filed pursuant to the Securities Act, or (b) pursuant to
Rule 144 or Rule 144A promulgated by the Commission under the Securities Act.
"Series B Preferred Stock" shall mean the Series B Preferred Stock,
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par value $.001 per share, of the Company.
"Series C Preferred Registrable Securities" shall mean the shares of
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Common Stock issued or issuable upon conversion or exercise of Series C
Preferred Restricted Securities or constituting a portion of the Series C
Preferred Restricted Securities.
"Series C Preferred Restricted Securities" shall mean Series C
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Preferred Stock issued to Preferred Stockholders and the Common Stock issued or
issuable upon the conversion of the Series C Preferred Stock issued to Preferred
Stockholders, and any other securities of the Company which may be issued
hereafter to such Preferred Stockholders or any member of their Group which are
convertible into or exercisable or exchangeable for shares of Common Stock
(including, without limitation, other classes or series of Preferred Stock,
warrants, options or other rights to purchase Common Stock or convertible
debentures or other convertible debt securities, but excluding the Series A
Preferred Stock, Series B Preferred Stock and Series D Preferred Stock), and the
Common Stock issued or issuable upon such conversion or exercise of such other
securities, which have not been sold (a) in connection with an
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effective registration statement filed pursuant to the Securities Act, or (b)
pursuant to Rule 144 or Rule 144A promulgated by the Commission under the
Securities Act.
"Series C Preferred Stock" shall mean the Series C Preferred Stock,
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par value $.001 per share, of the Company.
"Series D Preferred Registrable Securities" shall mean the shares of
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Common Stock issued or issuable upon conversion or exercise of Series D
Preferred Restricted Securities or constituting a portion of the Series D
Preferred Restricted Securities.
"Series D Preferred Restricted Securities" shall mean Series D
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Preferred Stock issued to Preferred Stockholders and the Common Stock issued or
issuable upon the conversion of the Series D Preferred Stock issued to Preferred
Stockholders, and any other securities of the Company which may be issued
hereafter to such Preferred Stockholders or any member of their Group which are
convertible into or exercisable or exchangeable for shares of Common Stock
(including, without limitation, other classes or series of Preferred Stock,
warrants, options or other rights to purchase Common Stock or convertible
debentures or other convertible debt securities, but excluding the Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred Stock), and the
Common Stock issued or issuable upon such conversion or exercise of such other
securities, which have not been sold (a) in connection with an effective
registration statement filed pursuant to the Securities Act, or (b) pursuant to
Rule 144 or Rule 144A promulgated by the Commission under the Securities Act.
"Series D Preferred Stock" shall mean the Series D Preferred Stock,
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par value $.001 per share, of the Company.
"Shares" shall mean and include all shares of Capital Stock of the
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Company now owned or hereafter acquired by any Stockholder or transferee of such
Stockholder.
"Stockholder" shall mean each Person who has purchased Shares from the
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Company or who acquires Shares upon conversion of the Preferred Shares, the
exercise of options, any Transfer or otherwise and who is a party to this
Agreement.
"Stock Plan" shall mean any stock option or rights plan for officers,
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directors, employees and consultants and others who render services to the
Company.
"Stock Purchase Agreement" shall have the meaning set forth in the
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first paragraph of this Agreement.
"Transfer" shall include any direct or indirect sale, assignment,
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transfer, pledge (but not including a pledge in favor of the Company),
hypothecation or other disposition of any Shares or of any legal or beneficial
interest therein.
"Voting Stock" shall mean and include all shares of voting capital
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stock of the Company now owned or hereafter acquired by any Stockholder or
transferee of such Stockholder.
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"Warrant Shares" shall mean the shares of Common Stock issuable upon
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exercise of the Warrants issued to the holders of the Series D Preferred Stock
pursuant to the Stock Purchase Agreement.
SECTION 2. Representations.
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2.1 By the Company. The Company represents to each Stockholder that:
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(a) The execution, delivery and performance by the Company of this
Agreement and all transactions contemplated in this Agreement have been duly
authorized by all action required by law, its Charter, its By-Laws or otherwise.
(b) This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company
enforceable against it in accordance with its terms.
2.2 By the Stockholders. Each Stockholder, as to itself or himself or
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herself, represents to the Company and the other Stockholders that:
(a) The execution, delivery and performance by such Stockholder of
this Agreement and, in the case of any Stockholder that is not an individual,
all transactions contemplated in this Agreement have been duly authorized by all
action required by law, and by the certificate of incorporation and by-laws,
partnership agreement, operating agreement or other governing instrument of such
Stockholder.
(b) This Agreement has been duly executed and delivered by such
Stockholder and constitutes the legal, valid and binding obligation of such
Stockholder enforceable against it, him or her in accordance with its terms.
SECTION 3. Legend on Shares and Notice of Transfer.
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3.1 Restrictive Legends. (a) Each certificate evidencing Shares, and each
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certificate evidencing Shares held by subsequent transferees of any such
certificate, shall (unless otherwise permitted by the provisions of Section 3.2
hereof) be stamped or otherwise imprinted with a legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAW. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR ANY EXEMPTION
THEREFROM UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAW.
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(b) Each certificate evidencing Shares, and each certificate
evidencing Shares held by subsequent transferees of any such certificate, shall
also be stamped or otherwise imprinted with a legend in substantially the
following form:
ADDITIONALLY, THE TRANSFER AND VOTING OF THESE SECURITIES
IS SUBJECT TO THE TERMS AND CONDITIONS OF A STOCKHOLDERS
AGREEMENT, AS AMENDED AND/OR RESTATED FROM TIME TO TIME,
AMONG ORAPHARMA, INC., THE HOLDER OF RECORD OF THIS
CERTIFICATE AND CERTAIN OTHER SIGNATORIES THERETO,
AND NO SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION
OR OTHER DISPOSITION OF SUCH SECURITIES SHALL BE VALID OR
EFFECTIVE EXCEPT IN ACCORDANCE WITH SUCH AGREEMENT AND UNTIL
SUCH TERMS AND CONDITIONS HAVE BEEN FULFILLED. COPIES OF
SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF ORAPHARMA, INC.
3.2 Notice of Transfer. (a) Each of the Stockholders, and any other
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holder of any Shares by acceptance thereof, agrees that, prior to any Transfer
of any Shares, such holder will give written notice to the Company of such
holder's intention to effect such Transfer and to comply in all other respects
with the provisions of this Section 3.2. Each such notice shall contain (i) a
statement setting forth the intention of said holder's prospective transferee
with respect to its retention or disposition of said Shares, and (ii) unless
waived by the Company, an opinion of counsel for said holder (who may be the
inside or staff counsel employed by said holder), as to the necessity or non-
necessity for registration under the Securities Act and applicable state
securities laws in connection with such Transfer and stating the factual and
statutory bases relied upon by counsel. The following provisions shall then
apply:
(i) If the proposed Transfer of Shares may be effected without
registration or qualification under the Securities Act and any applicable
state securities laws, then the registered holder of such Shares shall be
entitled to Transfer such Shares in accordance with Section 4 hereof and
the intended method of disposition specified in the statement delivered by
said holder to the Company.
(ii) If the proposed Transfer of such Shares may not be effected
without registration under the Securities Act or registration or
qualification under any applicable state securities laws, the registered
holder of such Shares shall not be entitled to Transfer such Shares
pursuant to Section 4 until the required registration or qualification is
effective.
(b) Notwithstanding the provisions of Section 3.2(a), in the case of a
Transfer by a holder to a member of such holder's Family or Group, no such
opinion of counsel shall be necessary; provided, that the transferee agrees in
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writing to be subject to Section 3 hereof to the same extent as if such
transferee were originally a signatory to this Agreement.
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(c) Each certificate evidencing the Shares issued upon such Transfer
(and each certificate evidencing any untransferred balance of such Shares) shall
bear the legend set forth in Section 3.1(a) hereof unless (i) in the opinion of
counsel (acceptable to the Company) addressed to the Company the registration of
future Transfers is not required by the applicable provisions of the Securities
Act or applicable state securities laws; (ii) the Company shall have waived the
requirement of such legend; or (iii) in the reasonable opinion of counsel to the
Company, such Transfer shall have been made in connection with an effective
registration statement filed pursuant to the Securities Act or in compliance
with the requirements of Rule 144 or Rule 144A (or any similar or successor
rule) promulgated under the Securities Act, and in compliance with applicable
state securities laws.
(d) Each certificate evidencing the Shares issued upon such Transfer
(and each certificate evidencing any untransferred balance of such Shares) shall
bear the legend set forth in Section 3.1(b) hereof, for so long as the
provisions of Sections 4 and 5 hereof remain in effect. In the event of the
termination of such provisions, a holder of Shares may request that the Company
issue a new certificate not bearing the legend set forth in Section 3.1(b)
hereof.
SECTION 4. Covenants of Stockholders and Company.
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4.1 Prohibited Transfers. (a) Each Stockholder agrees that it, he or she
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shall not Transfer any of its, his or her Shares without the prior written
consent of the holders of sixty-six and two-thirds of the outstanding Shares
other than the Shares held by the Transferring Stockholder, except as provided
for in Section 4.2.
(b) Notwithstanding anything to the contrary contained herein, a
Stockholder may Transfer all or any of its, his or her Shares: (i) if the
Stockholder is a limited partnership or a trust, to any member of the Group of
which such Stockholder is a member; provided, that such transferee shall agree
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in writing with the Company, prior to and as a condition precedent to such
Transfer, to be bound by all of the provisions of this Agreement; (ii) if the
Stockholder is a corporation, to any member of its Group; provided, that such
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transferee shall agree in writing with the Company, prior to and as a condition
precedent to such Transfer, to be bound by all of the provisions of this
Agreement; (iii) to any member of the Family of a Common Stockholder; provided,
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that such transferee shall agree in writing with the Company, prior to and as a
condition precedent to such Transfer, to be bound by all of the provisions of
this Agreement and, provided, further, that the interests in any Family trusts
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shall be non-transferable; and (iv) by will or the laws of descent and
distribution, in which event each such transferee shall be bound by all of the
provisions of this Agreement to the same extent as if such transferee were the
deceased Stockholder.
(c) If requested in writing by the managing underwriters, if any, of
any Public Offering, each Stockholder agrees not to offer, sell, contract to
sell or otherwise dispose of any Shares except as part of such Public Offering
within thirty (30) days before or one hundred and eighty (180) days after the
effective date of the registration statement filed with respect to said
offering, and the Company hereby also so agrees; provided, however, that this
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restriction will not apply to Transfers permitted under Section 4.1(b) provided
such transferee agrees to be bound by the restriction contained in this Section
4.1(c). Notwithstanding the foregoing, in the event that a Selling Stockholder
shall have accepted an offer to purchase Offered Shares which have been offered
pursuant to Section 4.2(a), such
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Selling Stockholder shall not be prohibited from consummating such sale,
provided, that the purchaser agrees to be bound by the restrictions contained
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in this Section 4.1(c).
4.2 Right of First Offer on Dispositions.
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(a) Without limiting a Stockholder's right to Transfer all or any part
of its, his or her Shares pursuant to any other provisions of this Agreement, if
a Stockholder (for purposes of this Section 4.2, the "Selling Stockholder")
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desires to Transfer, voluntarily or involuntarily, all or any part of its, his
or her Shares pursuant to this Section 4.2 to any Person, the Selling
Stockholder shall submit a written offer (the "Offer") to sell such Shares (the
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"Offered Shares"), to the Company and the Stockholders, which Offer shall
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specify the number of Offered Shares proposed to be sold, the total number of
Shares owned by the Selling Stockholder, and the terms and conditions, including
price, at which the Shares are being offered to the Company and the
Stockholders.
(b) Subject to and in accordance with the priorities of rights
established in subsection (e) below, if the Offered Shares are Common Shares
originally issued to a Founder pursuant to a Restricted Stock Agreement
("Founders' Common Shares") and are being offered by such Founder ("Offered
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Founders Shares"), each of the other Founders shall have the right to purchase
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that number of Offered Founders Shares, on the same terms and conditions
specified in the Offer, as shall be equal to the number of Offered Founders
Shares multiplied by a fraction, the numerator of which shall be the number of
Founders' Common Shares then owned by such Founder and the denominator of which
shall be the aggregate number of Founders' Common Shares then owned by all of
the Founders other than the Selling Stockholder (the "Founders Pro Rata
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Fraction").
(c) The Company shall have the right to purchase all or any portion of
the Shares offered by a Selling Stockholder other than the Offered Founders
Shares and all of the remaining Offered Founders Shares, on the same terms and
conditions specified in the Offer.
(d) Subject to and in accordance with the priorities of rights
established in subsection (e) below, if the Company and the Founders (to the
extent applicable under Section 4.2(b)) do not accept the Offer in accordance
with Section 4.2(b) and 4.2(c), respectively, as to any or all of the Offered
Founders Shares or Offered Shares, as the case may be, each Preferred
Stockholder shall have the right to purchase, on the same terms and conditions
specified in the Offer, that number of Offered Founders Shares or Offered
Shares, as the case may be, as shall be equal to the remaining number of Offered
Founders Shares or Offered Shares, as the case may be, multiplied by a fraction,
the numerator of which shall be the number of Shares then owned by such
Preferred Stockholder and the denominator of which shall be the aggregate number
of Shares then owned by all of the Preferred Stockholders (the "Pro Rata
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Fraction"). For the purpose of calculating the Pro Rata Fraction, each
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Preferred Share shall be deemed to represent the number of Common Shares into
which the Preferred Share is then convertible.
(e) The Founders and Preferred Stockholders shall have a right of
oversubscription such that, if any Founders and Preferred Stockholders fail to
accept the Offer as to its, his or her full Founders Pro Rata Fraction or Pro
Rata Fraction, as the case may be, the other Founders and Preferred Stockholders
shall, among them, have the right to purchase up to the balance of the Offered
Founders Shares or Offered Shares, as the case may be, not so purchased. Such
right of oversubscription may be exercised by a Founder or Preferred Stockholder
by accepting the offer as to more than its, his or her Founders Pro Rata
Fraction or Pro Rata Fraction, as the case may be. If, as a result thereof,
such
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oversubscriptions exceed the total number of Offered Founders Shares or
Offered Shares, as the case may be, available in respect of such
oversubscription privilege, the oversubscribing Founders and Preferred
Stockholders shall be cut back with respect to their oversubscriptions so as to
purchase the Offered Founders Shares or Offered Shares as nearly as possible in
accordance with their respective Founders Pro Rata Fraction or Pro Rata
Fraction, as the case may be, or as they may otherwise agree among themselves.
In all instances, the Preferred Stockholders shall have the right to purchase
only such Offered Founders Shares as are not purchased by the Company and the
Founders. Each Preferred Stockholder shall not be required to purchase more
than his or its Pro Rata Fraction and all such purchases shall be on the same
terms and conditions as those available to any proposed purchaser pursuant to
this Section 4.2.
(f) If the Company desires to purchase all or any portion of the
Offered Shares or, in the case of the Offered Founders Shares, the portion of
the Offered Founders Shares not accepted by the other Founders, on the same
terms and conditions specified in the Offer, the Company shall communicate in
writing its election to purchase (an "Acceptance") to the Selling Stockholder
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and the other Stockholders, which Acceptance shall state the number of Offered
Founders Shares or Offered Shares the Company desires to purchase and shall be
delivered in person or mailed to the Selling Stockholder and the Stockholders
within 20 days of the date the Offer was made.
(g) If a Founder or Preferred Stockholder desires to purchase all or
any part of the Offered Founders Shares or Offered Shares, as the case may be,
on the same terms and conditions specified in the Offer, such Founder or
Preferred Stockholder (a "Purchasing Stockholder") shall communicate in writing
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its, his or her Acceptance to the Selling Stockholder and the Company, which
Acceptance shall state the number of Offered Founders Shares or Offered Shares
the Purchasing Stockholder desires to purchase and shall be delivered in person
or mailed to the Selling Stockholder at the address set forth in the Offer, with
a copy to the Company and the other Stockholders, within 20 days of the date the
Offer was made by the Selling Stockholder pursuant to Section 4.2(a), in the
case of the Founders, or 30 days of the date the Offer was made by the Selling
Stockholder pursuant to Section 4.2(a), in the case of the Preferred
Stockholders.
(h) If the Company and/or the Purchasing Stockholders elect to
exercise their rights under this Section to purchase the Offered Shares, sale of
the Offered Shares shall be made on a business day, as designated by the Selling
Stockholder, at the offices of the Company not less than 30 nor more than 60
days following the expiration of the period applicable pursuant to Section
4.2(f) and (g) after the Offer is made. Such sales shall be effected by the
Selling Stockholder's delivery to each Purchasing Stockholder or the Company, as
the case may be, of a certificate or certificates evidencing the Offered Shares
to be purchased by it, him or her, duly endorsed for transfer to the Purchasing
Stockholder or the Company, as the case may be, which Offered Shares shall be
delivered free and clear of all liens, charges, claims and encumbrances of any
nature whatsoever, against payment to the Selling Stockholder of the purchase
price therefor by the Company or such Purchasing Stockholder, as the case may
be. Payment for the Offered Shares shall be made as provided in the Offer or by
wire transfer or certified check.
(i) If the Purchasing Stockholders and the Company do not elect to
purchase the Offered Founder Shares or Offered Shares, then the remaining
Offered Founder Shares or Offered Shares may be sold by the Selling Stockholder
at any time within 150 days after the date the Offer was made to any third party
so long as such third party agrees in writing to become a party hereto and be
bound
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hereby. Any such sale shall be upon terms and conditions, including price, not
less favorable to the Selling Stockholder than those specified in the Offer.
Any Offered Founder Shares or Offered Shares not sold within such 150- day
period shall continue to be subject to the requirements of a prior offer
pursuant to this Section 4.2.
4.3 Election of Directors.
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(a) Each of the Stockholders agrees to take such action, including the
voting of the Shares constituting Voting Stock owned or controlled by such
Stockholder (x) at any annual or special meeting of Stockholders of the Company
called for the purpose of voting on the election or removal of Directors, or (y)
by consensual action of Stockholders with respect to the election or removal of
Directors, as may be necessary to cause the following:
(i) the Board of Directors shall consist of up to nine (9)
persons;
(ii) four (4) directors shall be designees of the Preferred Shares,
(A) one of whom (initially, Xxxxxx X. More) shall be selected by Oak Investment
Partners VI, Limited Partnership so long as Oak shall be a Stockholder at the
time, (B) one of whom (initially, Xxxxx X. Xxxx) shall be selected by Canaan
Ventures II Limited Partnership so long as any Canaan fund shall be a
Stockholder at the time; (C) one of whom (initially, Xxxxxxxxxxx Xxxxxx) shall
be selected by TL Ventures III L.P., TL Ventures III Offshore L.P. and TL
Ventures III Interfund L.P. so long as any TL Ventures partnership shall be a
Stockholder at the time; and (D) one of whom (initially Xxxxx X. Xxxx) shall be
selected by Domain Associates so long as any Domain partnership shall be a
Stockholder at the time;
(iii) two (2) directors shall be selected by a vote of, or
written consent of, the holders of a majority of the Common Stock, voting
separately as a class, one of whom (initially, Xxxxx X. Xxxxxx) shall be
selected by Xxxxxx Investment Holdings I, L.L.C. ("Xxxxxx") so long as Xxxxxx is
------
a Stockholder at the time, and the other one of whom shall initially be Xxxxxxx
Xxxxxxxxx;
(iv) up to three (3) directors shall be selected by a vote of, or
written consent of, the holders of a majority of the Common Stock and Preferred
Stock, voting together as a class, two of whom shall initially be Xxxxx Xxxxxx
and Xxxx Xxxxxxx; and
(v) the removal, with or without cause, of any Director upon the
request of the party or parties designating such Director and for the election
to the Board of a substitute designated by such party or parties in accordance
with the provisions of this Section 4.4(a).
(b) If at any time a vacancy is created on the Board of Directors by
reason of the death, removal or resignation of any director, the Stockholders
agree to take immediate action to nominate and elect a person to fill such
vacancy in accordance with subsection (a) above.
(c) The Company shall reimburse each director on the Board of
Directors of the Company for all expenses (including travel expenses) reasonably
incurred by him or her in connection with such directorship.
(d) No Stockholder shall grant any proxy or enter into or agree to be
bound by any voting agreement or voting trust with respect to voting any Shares
constituting Voting Stock, except as
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provided herein. No Stockholder shall enter into any stockholder agreement or
arrangement of any kind with any Person with respect to any Shares inconsistent
with the provisions of this Agreement (whether or not such agreements and
arrangements are with other Stockholders or holders of Shares that are not bound
by this Agreement), including, but not limited to, agreements or arrangements
with respect to the acquisition, disposition or voting of Shares, or act, for
any reason, as a member of a group or in concert with any other Persons in
connection with the acquisition, disposition or voting of Shares in any manner
which is inconsistent with the provisions of this Agreement.
SECTION 5. Certain Transactions.
--------------------
(a) Drag Along. Subject to Section 4.2 above, anything in this
----------
Agreement to the contrary notwithstanding, in the event that the holders of
sixty-six and two-thirds of the Preferred Shares by vote or written consent
approves a transaction pursuant to which any Person or Persons not affiliated
with any of the Preferred Stockholders will acquire 50% or more of the Shares of
the Company (by stock purchase, merger or otherwise) or all or substantially all
of the assets of the Company, upon the written request of the holders of sixty-
six and two-thirds of the Preferred Shares, each of the Stockholders agrees to
offer to sell all of its, his or her Shares, and to sell all of its, his or her
Shares, to such Person or Persons or to vote all of its, his or her Voting Stock
in favor of the sale of assets, as the case may be, in either case upon the
terms and conditions of the transaction approved by the holders of sixty-six and
two-thirds of the Preferred Shares; provided, however, that a Stockholders'
-------- -------
obligation to sell its, his or her Shares pursuant to this Section 5 shall only
apply if all of the Shares are to be sold on the same terms and conditions.
(b) Tag Along. Subject to Section 4.2 above, anything in this
---------
Agreement to the contrary notwithstanding, in the event that the holders of
sixty-six and two-thirds of the Preferred Shares receive and desire to accept an
offer to Transfer such Preferred Shares to a Person or Persons not affiliated
with any of the Preferred Stockholders, such selling Preferred Stockholders
shall provide all of the other Preferred Stockholders with written notice of
such proposed Transfer at least thirty (30) days prior to the proposed
consummation thereof. Upon written request of any such other Preferred
Stockholder, it, he or she shall be entitled to sell its, his or her Shares to
such Person or Persons in the same proportion of such other Preferred
Stockholder's Shares as the selling Preferred Stockholders are selling to such
Person or Persons, and on the same terms and conditions as the selling Preferred
Stockholders.
SECTION 6. Rights to Purchase Additional Stock.
-----------------------------------
(a) Except for Excluded Stock, the Preferred Stockholders and the
Founders shall have the right to subscribe to any and all issuances of Capital
Stock of the Company in an amount equal to its, his or her Proportional Share of
the issuances to the extent set forth in this Section 6. For purposes of
determining the "Proportional Share" of the securities to be issued to which
------------------
each Preferred Stockholder and Founder is entitled to subscribe, the number of
shares of Common Stock or of Common Stock into which a Preferred Share is then
convertible (without giving effect to the proposed issuance of securities) held
by the Preferred Stockholder or Founder, as the case may be, divided by the
total number of shares of Common Stock outstanding prior to the offering on a
fully diluted basis (i.e., assuming that all the outstanding Preferred Shares
and any other security of the Company convertible into or
-12-
exercisable or exchangeable for shares of Common Stock shall have been converted
into or exercised or exchanged for shares of Common Stock and that all options
have been exercised. The Preferred Stockholders shall have a right of
oversubscription such that if any Preferred Stockholders fails to subscribe for
its, his or her full Proportional Share, the other Preferred Stockholders shall,
among them, have the right to subscribe for the balance of shares of Capital
Stock in such issuance not so subscribed for. Such right of oversubscription
may be exercised by a Preferred Stockholder by offering to subscribe for more
than its, his or her Proportional Share. If, as a result thereof, such
oversubscriptions exceed the total number of shares of Capital Stock available
in respect of such oversubscription privilege, the oversubscribing Preferred
Stockholders shall be cut back with respect to their oversubscriptions so as to
subscribe for the number of shares of Capital Stock as nearly as possible in
accordance with their respective Proportional Share or as they may otherwise
agree among themselves. In any event, each Preferred Stockholder's Proportional
Share shall be such number of securities as may be necessary so that such
holders' fully diluted Common Stock ownership is not reduced as a result of the
foregoing preemptive rights transaction.
(b) In the event the Company shall propose to issue Capital Stock
other than Excluded Stock, the Company shall give written notice (the "Section 6
---------
Offer") to each Preferred Stockholder and Founder which shall set forth the
-----
number and kind or class of shares of Capital Stock proposed to be issued (the
"Section 6 Offered Securities"), the terms and conditions thereof and the price
-----------------------------
therefor. Such notice shall be given at least 30 days prior to the issuance of
such Capital Stock.
(c) The Section 6 Offer by its terms shall remain open and irrevocable
for a period of 30 days from the date of its delivery to such Preferred
Stockholder or Founder ("30-Day Period").
-------------
(d) A Preferred Stockholder or Founder shall evidence its, his or her
acceptance of the Section 6 Offer by delivering a written notice ("Notice of
---------
Acceptance"), signed by the Preferred Stockholder or Founder, as the case may
----------
be, and setting forth the number of Section 6 Offered Securities which the
Preferred Stockholder or Founder elects to purchase. The Notice of Acceptance
must be delivered to the Company prior to the end of the 30-Day Period.
(e) If the Preferred Stockholders and the Founders do not tender
Notices of Acceptance for all of the Section 6 Offered Securities, the Company
shall have 120 days from the expiration of the 30-Day Period to sell all or any
part of the Section 6 Offered Securities refused by the Preferred Stockholders
and the Founders to any person(s). Any such sale shall be upon terms and
conditions, including price, not less favorable to the Company than those
specified in the Section 6 Offer.
(f) Upon the closing of the sale of Section 6 Offered Securities to
any third party, each Preferred Stockholder and Founder shall purchase from the
Company, and the Company shall issue and sell to such Preferred Stockholder and
Founder any Section 6 Offered Securities for which such Preferred Stockholder or
Founder tendered a Notice of Acceptance upon the terms specified in the Section
6 Offer.
(g) In each case, any Section 6 Offered Securities not purchased
either by the Preferred Stockholders, the Founders or by any other person in
accordance with this Section 6 may not be sold or otherwise disposed of until
they are again offered to the Preferred Stockholders and Founders under the
procedures specified in this Section 6.
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(h) Notwithstanding the time periods set forth above, in the event the
Section 6 Offered Securities to be issued by the Company are to be issued
pursuant to a Public Offering, the Company may require that the Preferred
Stockholders and Founders make an election on such date prior to the filing of
the registration statement or any amendment thereto relating to the Public
Offering as shall be determined by the Company to either (i) commit to purchase
from the Company at the public offering price at the closing of the Public
Offering, or (ii) waive their rights to subscribe for their Proportional Share
of Section 6 Offered Securities to be issued in the Public Offering. In
addition to the foregoing, the offering of the Section 6 Offered Securities
shall be subject to the following provisions: (a) the subscription right shall
not be applicable to Section 6 Offered Securities issuable upon exercise of the
underwriters' over-allotment option, and (b) the purchase by the Preferred
Stockholders and the Founders shall only be made in a sale pursuant to Section
4(2) under the Securities Act which shall close simultaneously with the closing
of the Public Offering.
SECTION 7. Reporting of Public Information; Rule 144.
-----------------------------------------
With a view to making available the benefits of Rule 144 under the
Securities Act (or any similar or successor rule which may at any time permit
the sale of Common Shares to the public without registration), at all times
after ninety (90) days after any registration statement covering an offering of
securities of the Company under the Securities Act shall have become effective,
the Company agrees to:
(a) make and keep public information available, as those terms are
defined in Rule 144 under the Securities Act;
(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 Exchange Act (at any time after it has become subject to
such reporting requirements); and
(c) furnish to each Stockholder promptly upon request a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 and the Exchange Act and the Securities Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
so filed by the Company as such holder may reasonably request in availing itself
of any law, rule or regulation of the Commission allowing a Stockholder to sell
any such securities without registration (or any similar or successor law, rule
or regulation).
SECTION 8. Registration Rights.
-------------------
8.1 Demand Registration Rights. At any time after the earlier to occur of
--------------------------
March 1, 2001 or six months after consummation of an Initial Public Offering,
upon written request by the holders of Preferred Registrable Securities holding
in the aggregate at least 30% of the total number of Preferred Registrable
Securities that have not been registered under the Securities Act, the Company
shall use its best efforts to effect the registration under the Securities Act
and registration or qualification under all applicable state securities laws of
the Preferred Registrable Securities, as requested by the holders of Preferred
Registrable Securities, all as provided in the following provisions of this
Section 8. Holders of Preferred Registrable Securities may require the Company
to effect no more than four registrations under the Securities Act, in the
aggregate, upon the request of the holders of Preferred Registrable Securities
-14-
pursuant to this Section 8.1(a). Any registration which is not declared
effective pursuant to the Securities Act and which does not remain effective as
required by Section 8.5(a) below shall not constitute one of the two
registrations which the Company is obligated to effect pursuant to this Section
8.1. A request by a holder of Shares to have the Company effect the
registration of Preferred Registrable Securities shall not obligate the holder
of Shares to convert them into Common Stock, whether or not the registration of
the Preferred Registrable Securities shall become effective; provided, that
--------
shares of Preferred Stock are automatically converted into Preferred Registrable
Securities immediately prior to the closing of the sale of such Preferred
Registrable Securities pursuant to such registration.
8.2 Registration Requested by Holders. Whenever the Company shall be
---------------------------------
requested pursuant to Section 8.1 hereof to effect the registration of any of
the Series A Preferred Registrable Securities, Series B Preferred Registrable
Securities, Series C Preferred Registrable Securities, or Series D Preferred
Registrable Securities (together, the "Preferred Registrable Securities") under
--------------------------------
the Securities Act (a "Request for Registration"), the Company shall promptly
------------------------
give notice of such proposed registration, which shall set forth information, to
the extent then known, as to offering price or range, the number of shares to be
offered, the proposed manner of distribution and the proposed managing
underwriter(s) of the offering, to all holders of Preferred Registrable
Securities and the Warrant Shares and the Founders (the Common Stock held by the
Founders, together with the Preferred Registrable Securities and the Warrant
Shares, being hereinafter referred to as the "Registrable Securities") and
----------------------
thereupon shall, as expeditiously as possible after such notice, use its best
efforts to effect the registration, qualification or compliance under the
Securities Act and under all applicable state securities laws of (a) all
Preferred Registrable Securities which the Company has been requested to
register pursuant to the Request for Registration, and (b) all other Registrable
Securities which holders of Registrable Securities have, within 30 days after
the Company has given such notice, requested the Company to register all to the
extent required to permit the sale or other disposition by the holders of the
Preferred Registrable Securities so to be registered. Subject to the foregoing,
the Company shall file a registration statement covering the Registrable
Securities so requested to be registered as soon as reasonably practicable after
receipt of the Request for Registration, but in any event within 150 days for
any registration which is an IPO, and, 60 days for any registration which is not
an IPO. If the holders of Preferred Registrable Securities who requested the
registration of Preferred Registrable Securities engage one or more
underwriter(s) to distribute such Preferred Registrable Securities, the Company
shall permit the managing underwriter(s) and counsel to the underwriter(s) at
the Company's expense to visit and inspect any of the properties of the Company,
examine its books, take copies and extracts therefrom and discuss the affairs,
finances and accounts of the Company with its officers, employees and public
accountants (and by this provision the Company hereby authorizes said
accountants to discuss with such underwriter(s) and such counsel its affairs,
finances and accounts), at reasonable times and upon reasonable notice, with or
without a representative of the Company being present. The Company shall have
the right to include in any registration of Preferred Registrable Securities
required pursuant to this Section 8.2 additional shares of its Common Stock
("Third Party Registrable Securities") that have the benefit of duly exercised
------------------------------------
registration rights contractually binding on the Company. If any Preferred
Registrable Securities to be so registered for sale are to be distributed by or
through underwriter(s), then all Registrable Securities to be so registered for
sale, and Third Party Registrable Securities, if any, shall be included in such
underwriting on the same terms; provided, that if, in the written opinion of the
--------
managing underwriter(s), the total amount of such securities to be registered
will exceed the maximum amount of the Company's securities which can be marketed
(i) at a price reasonably related to their then current market value, or (ii)
without otherwise materially and adversely affecting the entire offering, then
the Company shall exclude from such underwriting (x) first, the maximum number
of Third Party
-15-
Registrable Securities as is necessary in the opinion of the managing
underwriter(s) to reduce the size of the offering and (y) then, the minimum
number of Registrable Securities, pro rata to the extent practicable, on the
--- ----
basis of the number of Registrable Securities requested to be registered among
the participating holders of Registrable Securities as is necessary to reduce
the size of the offering.
8.3 "Piggyback" Registrations. (a) If the Company at any time proposes
------------------------
other than in accordance with a Request for Registration to register any of its
securities under the Securities Act on Form X-0, X-0 or S-3 or on any other form
upon which the Registrable Securities may be registered for sale to the general
public, other than on Form S-4 or S-8 or other similar form, whether for its own
account or for the account of others, the Company will at each such time
promptly give written notice to each holder of Registrable Securities of such
proposal, which shall set forth information, to the extent then known, as to
offering price or range, the number of shares to be offered, the proposed manner
of distribution and the proposed managing underwriter(s) of the offering. Upon
the written request of any holder of Registrable Securities given within 20 days
after the Company has given such notice, the Company will cause the Registrable
Securities which the Company has been requested to register by such holder of
Registrable Securities to be registered under the Securities Act (and any
related qualification under blue sky laws or other compliance), all to the
extent required to permit the sale or other disposition by such holder of
Registrable Securities of the Registrable Securities so registered.
(b) If securities are to be registered for sale under a registration
not initiated by a Request for Registration and are to be distributed for the
account of the Company by or through a firm of underwriter(s), then any
Registrable Securities which the Company has been requested to register pursuant
to clause (a) of this Section 8.3 shall also be included in such underwriting on
the same terms as other securities of the same class as the Registrable
Securities included in such underwriting; provided, that if, in the written
--------
opinion of the managing underwriter(s), the total amount of such securities to
be so registered, when added to the Registrable Securities and the securities
held by holders of securities other than the Registrable Securities, if any,
will exceed the maximum amount of the Company's securities which can be marketed
(i) at a price reasonably related to their then current market value, or (ii)
without otherwise materially and adversely affecting the entire offering, then
(subject to clause (d) of this Section 8.3) the Company shall exclude from such
underwriting (x) first, the maximum number of securities, if any, other than
Registrable Securities being sold for the account of persons other than the
Company as is necessary to reduce the size of the offering and (y) then, the
minimum number of Registrable Securities pro rata to the extent practicable, on
--- ----
the basis of the number of Registrable Securities requested to be registered
among the participating holders of Registrable Securities as is necessary in the
opinion of the managing underwriter(s) to reduce the size of the offering.
(c) If securities are to be registered for sale under a registration
not initiated by a Request for Registration and are to be distributed for the
account of holders of Third Party Registrable Securities or holders (other than
the Company) of other securities of the Company other than Registrable
Securities by or through a firm of underwriter(s) of recognized standing under
underwriting terms appropriate for such transaction, then any Registrable
Securities which the Company has been requested to register pursuant to clause
(a) of this Section 8.3 shall also be included in such underwriting on the same
terms as other securities included in such underwriting, provided, that if, in
--------
the written opinion of the managing underwriter(s), the total amount of such
securities to be so registered, when added to such Registrable Securities, will
exceed the maximum amount of the Company's securities which can be marketed (i)
at a price reasonably related to their then current market value, or (ii)
without otherwise materially and adversely affecting the entire offering, then
the Company shall exclude from such
-16-
underwriting the number of Registrable Securities and other securities, pro rata
--- ----
to the extent practicable, on the basis of the number of securities requested to
be registered, as is necessary in the opinion of the managing underwriter(s) to
reduce the size of the offering.
(d) Notwithstanding Section 8.3(a), (b) and (c), the Company may
exclude all Registrable Securities from registration in connection with the
Company's Initial Public Offering if the inclusion of such Registrable
Securities would, in the written opinion of the managing underwriter(s)
adversely affect the marketing of the New Securities to be sold by the Company
therein, provided, however, that such number of shares of Registrable Securities
shall not be reduced if any shares are to be included in such underwriting for
the account of any person other than the Company.
8.4 Registrations on S-3. At such time as the Company shall have
--------------------
qualified for the use of Form S-3 (or any successor form promulgated under the
Securities Act), the holders of Preferred Registrable Securities and the Warrant
Shares shall have the right to request in writing an unlimited number of
registrations on Form S-3; provided, that the Preferred Registrable Securities
--------
and the Warrant Shares proposed to be included in the registration statement
have a proposed aggregate offering price of at least $500,000. Each such
request shall (a) specify the number of Preferred Registrable Securities and the
Warrant Shares that the holders intend to sell or dispose of, and (b) state the
intended method by which the holders intend to sell or dispose of such Preferred
Registrable Securities and the Warrant Shares. Upon receipt of a request
pursuant to this Section 8.4, the Company shall give prompt written notice of
such proposed registration to all holders of Preferred Registrable Securities
and the Warrant Shares who shall have the right to request in writing, within 30
days after the Company has given such notice, to participate in such
registration on Form S-3. The Company shall use its best efforts to effect such
registration or registrations (and any related state securities qualification or
blue sky compliance with respect to such securities) on Form S-3 of all
Preferred Registrable Securities and the Warrant Shares requested to be
registered hereunder as would permit or facilitate the sale and distribution of
all or such portion of such Preferred Registrable Securities and the Warrant
Shares.
8.5 Company's Obligations in Registration. Whenever the Company is
-------------------------------------
obligated to effect the registration of any Registrable Securities under the
Securities Act, as expeditiously as possible the Company will use its best
efforts to:
(a) prepare and file with the Commission, a registration statement
with respect to such Registrable Securities and cause such registration
statement to become and remain effective, provided, that the Company shall not
--------
be required to keep such registration statement effective, or to prepare and
file any amendments or supplements thereto, later than the last business day of
the ninth month following the date on which such registration statement becomes
effective under the Securities Act, and, provided, further, that in the event
-------- -------
the Commission shall have declared any other registration statement with respect
to an offering of securities of the Company to be effective within four months
prior to the Company's receiving a Request for Registration, the Company may
delay the effective date of the registration statement filed in response to the
Request for Registration until six months after the effective date of the
previous registration statement;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of nine months following the date on which such registration statement
becomes effective under the Securities Act and to comply with provisions of the
-17-
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement whenever the holders of Registrable
Securities covered by such registration statement shall desire to dispose of the
same;
(c) furnish to the holders of Registrable Securities for whom such
Registrable Securities are registered or are to be registered such numbers of
copies of a printed prospectus, including a preliminary prospectus and any
amendments or supplements thereto, in conformity with the requirements of the
Securities Act, and such other documents as such holders of Registrable
Securities may reasonably request in order to facilitate the disposition of such
Registrable Securities;
(d) notify each holder of Registrable Securities, at any time when a
prospectus relating to the Registrable Securities covered by such registration
statement is required to be delivered under the Securities Act, of the Company's
becoming aware that the prospectus in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and at the request of any holder of Registrable
Securities, prepare and furnish to such holder any reasonable number of copies
of any supplement to or amendment of such prospectus necessary so that, as
thereafter delivered to any purchaser of the Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading;
(e) register or qualify the Registrable Securities covered by such
registration statement under such securities or blue sky laws of such
jurisdictions as the holders of Registrable Securities for whom such Registrable
Securities are registered or are to be registered shall reasonably request, and
do any and all other reasonable acts and things which may be necessary or
advisable to enable such holders of Registrable Securities to consummate the
disposition in such jurisdictions of such Registrable Securities, provided,
--------
however, that the Company shall not be required in connection with this clause
-------
(e) to qualify as a foreign corporation or execute a general consent to service
of process in any jurisdiction;
(f) furnish to the holders of Registrable Securities for whom such
Registrable Securities are registered or are to be registered at the closing of
the sale of such Registrable Securities by such holders of Registrable
Securities a signed copy of (i) an opinion or opinions of counsel for the
Company acceptable to such holders of Registrable Securities in form and
substance as is customarily given to underwriters in public offerings, and (ii)
a "cold comfort" letter 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, to the
extent that such "cold comfort" letters are then available to selling
stockholders;
(g) use its best efforts to cause all Registrable Securities covered
by such registration statement to be listed on the principal securities exchange
on which similar equity securities issued by the Company are then listed, if the
listing of such Registrable Securities is then permitted under the rules of such
exchange or, if similar equity securities are not listed, to include the
Registrable Securities on the Nasdaq National Market System if the inclusion is
then permitted under the rules thereof or, if similar equity securities are not
then included therein, to include the Registrable Securities on the National
Association of Securities Dealers Automated Quotation System;
-18-
(h) in connection with any underwritten offering, enter into an
underwriting agreement with the underwriter(s) of such offering in the form
customary for such underwriter(s) for similar offerings, including such
representations and warranties by the Company, provisions regarding the delivery
of opinions of counsel for the Company and accountants' letters, provisions
regarding indemnification and contribution, and such other terms and conditions
as are at the time customarily contained in such underwriter's underwriting
agreements for similar offerings;
(i) provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP number
of all such Registrable Securities in each case not later than the effective
date of such registration; and
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security holders,
as soon as reasonably practicable, an earnings statement covering the period of
at least twelve months, but not more than eighteen months, beginning with the
first month after the effective date of the Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
8.6 Payment of Registration Expenses. The costs and expenses of all
--------------------------------
registrations and qualifications under the Securities Act, and of all other
actions which the Company is required to take or effect pursuant to this Section
8, shall be paid by the Company or holders of Third Party Registrable Securities
or other securities of the Company other than Registrable Securities, if any
(including, without limitation, all registration and filing fees, printing
expenses, auditing costs and expenses, the fees and disbursements in connection
with issuance of a "cold comfort" letter from the independent certified
accountants of the Company and the reasonable fees and disbursements of counsel
for the Company and one special counsel for the holders of Registrable
Securities, which will be selected by the holders of sixty-six and two-thirds of
the Registrable Securities then being registered) and the holders of Registrable
Securities shall pay only the underwriting discounts and commissions and
transfer taxes, if any, relating to the Registrable Securities sold by them;
provided, that in the event more than two registrations of Registrable
--------
Securities become effective under the Securities Act as a result of Requests for
Registration pursuant to Section 8.4 in any 12-month period, the holders of
Registrable Securities and other securities, if any, included in such
registrations shall reimburse the Company pro rata for all registration and
--- ----
filing fees, reasonable printing expenses, reasonable auditing costs and
expenses (excluding costs and expenses of the Company's annual audit) and the
reasonable fees and expenses of counsel for the Company and the selling
stockholders and such reimbursement shall be made to the Company at the earlier
of the initial closing date of the offering or 30 business days after the
effective date of such a registration statement.
8.7 Information from Holders of Registrable Securities. Notices and
--------------------------------------------------
requests delivered by holders of Registrable Securities to the Company pursuant
to this Section 8 shall contain such information regarding the Registrable
Securities to be so registered and the intended method of disposition thereof as
shall reasonably be required in connection with the action to be taken. Each
holder of Registrable Securities hereby agrees to provide the Company, or its
agents or designees, with all information reasonably required in connection with
the registration, qualification or compliance under the Securities Act or any
applicable state securities law of any Registrable Securities.
8.8 Indemnification. (a) In the event of any registration under the
---------------
Securities Act of any Registrable Securities pursuant to this Section 8, the
Company shall indemnify and hold harmless each
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holder of Registrable Securities disposing of such Registrable Securities, each
of its respective officers and directors, and each other person, if any, which
controls (within the meaning of the Securities Act) such holder of Registrable
Securities and each Stockholder, if any, which may be deemed to control (within
the meaning of the Securities Act) the Company and each other person (including
underwriters) who participates in the offering of such Registrable Securities,
against any losses, claims, damages or liabilities (or actions in respect
thereof), joint or several, including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, to the extent that such
losses, claims, damages or liabilities (or proceedings in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in any registration
statement under which such Registrable Securities were registered under the
Securities Act, in any preliminary prospectus or final prospectus contained
therein, or in any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein (in the case of a prospectus, in the light of the
circumstances under which they were made) or necessary to make the statements
therein not misleading, and will reimburse each such holder of Registrable
Securities and each such controlling person or participating person for any
legal or any other expenses reasonably incurred by such holder of Registrable
Securities or such controlling person or participating person in connection with
investigating or defending any such loss, claim, damage, liability or
proceeding, provided, that the Company will not be liable in any such case to
--------
the extent that any such loss, claim, damage or liability is caused by or
contained in written information furnished by a holder of Registrable Securities
to the Company by an instrument duly executed by such holder of Registrable
Securities or such controlling or participating person, as the case may be,
expressly for inclusion therein.
Each such holder of Registrable Securities will, if requested by the
Company prior to the initial filing of any such registration statement, agree in
writing, severally but not jointly, to indemnify and hold harmless the Company
and each person which controls (within the meaning of the Securities Act) the
Company, each of its respective officers and directors, and each other person
(including underwriters) who participates in the offering of such Registrable
Securities, against all losses, claims, damages and liabilities (or actions in
respect thereof) including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, insofar as such losses, claims, damages or
liabilities (or proceedings in respect thereof) result from any untrue statement
or alleged untrue statement of any material fact contained, on the effective
date thereof, in any registration statement under which such Registrable
Securities were registered under the Securities Act, or in any preliminary
prospectus or final prospectus contained therein, or in any amendment or
supplement thereto, or result from the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, to the extent, but
only to the extent, that any such loss, claim, damage or liability result from
any such statement or omission contained in any written information furnished to
the Company by an instrument duly executed by such holder of Registrable
Securities and specifically stated to be for inclusion therein. Each
indemnified party shall cooperate with each indemnifying party in defending any
loss, claim, damage, liability or proceeding, but no failure or delay by the
indemnified party in notifying the indemnifying party of any claim, or
commencement of any action, suit or proceeding shall relieve the indemnifying
party of any liability that it may have to any indemnified party, except to the
extent that the indemnifying party demonstrates that the defense of such action
is prejudiced thereby. The indemnifying party shall have the rights, subject to
prior approval of the indemnified party (such approval not to be unreasonably
withheld), to select legal counsel and to compromise or settle any action, suit
or proceeding.
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(b) Indemnification similar to that specified in the preceding clause
of this Section 8.8 (with appropriate modifications) shall be given by the
Company and, at the Company's request, each holder of Registrable Securities
with respect to any registration or other qualification of securities under any
state securities and "blue sky" laws.
(c) Each indemnified party shall notify the indemnifying party in
writing promptly after such indemnified party has actual knowledge of any claim
as to which indemnity may be sought. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party, the
indemnifying party will be entitled to participate in the defense with counsel
selected by such indemnified party. Each indemnified party shall cooperate with
each indemnifying party in defending any loss, claim, damage, liability or
proceeding.
(d) If the indemnification provided for in this Section 8.8 shall be
unavailable or insufficient to hold harmless an indemnified party in respect of
any loss, claim, damage or liability (or proceeding in respect thereof) referred
to herein, 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 loss, claim, damage or liability (or proceeding in
respect thereof), in such proportion as shall be appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and of the
indemnified party, on the other hand. The relative fault shall be determined by
equitable considerations including reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party on the
one hand or the indemnified party on the other, the intent of the parties and
their relative knowledge, and access to information and opportunity to correct
or prevent such statement omission, but not by reference to any indemnified
party's stock ownership in the Company. In no event, however, shall an
indemnifying party be required to contribute in excess of the amount of the net
proceeds received by such indemnifying party in connection with the sale of
Registrable Securities in the offering which is the subject of such loss, claim,
damage or liability (or proceeding in respect thereof). The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability (or proceeding in respect thereof) referred to above shall be deemed
to include, for purposes of this Section 8.8(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such loss, claim, damage or liability. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) Notwithstanding any of the foregoing, if, in connection with an
underwritten public offering of Registrable Securities, the Company, the selling
stockholders and the underwriter(s) enter into an underwriting or purchase
agreement relating to such offering which contains provisions covering
indemnification and contribution among the parties, the indemnification and
contribution provisions of this Section 8.8 shall be deemed inoperative for
purposes of such offering with respect to any indemnification or contribution
obligations involving the Company, the selling stockholders and the
underwriter(s) of the offering, but shall remain applicable with respect to
obligations solely between the selling stockholders and the Company and
controlling persons as to indemnification and contribution.
8.9 Withdrawal from Registration. If any holder of Registrable Securities
----------------------------
disapproves of the terms of any underwriting pursuant to this Section 8, such
holder may elect to withdraw therefrom by written notice to the Company and the
underwriter(s) delivered at least five (5) days prior to the effective date of
the applicable registration statement. The Registrable Securities and/or other
securities so
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withdrawn shall also be withdrawn from registration. If by the withdrawal of
such Registrable Securities or other securities, a greater number of Registrable
Securities held by other holders may be included in such registration (up to the
maximum of any limitation imposed by the underwriters), then the Company shall
offer to all holders who have included Registrable Securities in the
registration the right to include additional Registrable Securities in the same
proportion and manner used in determining the effect of underwriter limitations
in Section 8.2 and 8.3.
SECTION 9. Duration of Agreement. The rights and obligations of each
---------------------
Stockholder, except the rights and obligations contained in Sections 3.1(a), 3.2
and 8 hereof, shall terminate as to each Stockholder upon the closing of the
Initial Public Offering by the Company. The obligations contained in Sections
3.1(a), 3.2 and 8 shall survive indefinitely until, by their respective terms,
they are no longer applicable.
SECTION 10. Remedies. In case any one or more of the covenants and/or
--------
agreements set forth in this Agreement shall have been breached by any party
hereto, the party or parties entitled to the benefit of such covenants or
agreements may proceed to protect and enforce their rights either by suit in
equity and/or by action at law, including, but not limited to, an action for
damages as a result of any such breach and/or an action for specific performance
of any such covenant or agreement contained in this Agreement and/or a temporary
or permanent injunction, in any case without showing any actual damage. The
rights, powers and remedies of the parties under this Agreement are cumulative
and not exclusive of any other right, power or remedy which such parties may
have under any other agreement or law. No single or partial assertion or
exercise of any right, power or remedy of a party hereunder shall preclude any
other or further assertion or exercise thereof. Any purported Transfer in
violation of the provisions of this Agreement shall be null and void ab initio.
-- ------
SECTION 11. Successors and Assigns. Except as otherwise expressly
----------------------
provided herein, this Agreement shall bind and inure to the benefit of the
Company, each of the Stockholders and the respective successors or heirs and
personal representatives and permitted assigns of each of the Stockholders and
the successors of the Company. Each Stockholder agrees further that it shall
not sell any Shares to any Person not a party to this Agreement unless such
Person becomes a party to this Agreement contemporaneously with such sale by
executing and delivering to the Company an agreement to be bound hereby,
whereupon such Person shall be deemed a Stockholder and shall have the same
rights and obligations as other Stockholders.
SECTION 12. Additional Stockholders. The parties hereto acknowledge and
-----------------------
agree that the Company may issue and sell shares of Common Stock to Persons not
presently a party to this Agreement, provided, however, that (i) all such sales
-------- -------
are not made in violation of this Agreement, and (ii) no shares of Common Stock
shall be issued and sold to a Person not presently a party to this Agreement
unless and until such Person (A) becomes a party to this Agreement
contemporaneously with such issuance and sale by executing and delivering to the
Company an agreement to be bound hereby, whereupon such Person shall be deemed a
Stockholder and shall have the same rights and obligations as other Stockholders
and (B) agrees to be bound by and to comply with the provisions of Sections 3, 4
and 5 hereof.
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SECTION 13. Entire Agreement. This Agreement, the Stock Purchase
----------------
Agreement and the Restricted Stock Agreements of the Company contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior stockholders agreements and all other prior and
contemporaneous arrangements or understandings with respect thereto. It is
understood and agreed among the parties hereto that this Agreement and the
representations, warranties, and covenants made herein are made expressly and
solely for the benefit of the other party or parties hereto (or their respective
successors or permitted assigns), and that no other person shall be entitled or
be deemed to be a third-party beneficiary of any party's rights under this
Agreement.
SECTION 14. Notices. All notices, requests, consents and other
-------
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered (a) by hand, (b) sent by telex or
telecopier (with receipt confirmed); provided, that a copy is mailed by
--------
registered mail, return receipt requested, or (c) one (1) day after sent by the
sender, if sent by Express Mail, Federal Express or other express delivery
service (receipt requested), in each case to the appropriate addresses, telex
numbers and telecopier numbers set forth below (or to such other addresses,
telex numbers and telecopier numbers as a party may designate as to itself by
notice to the other parties); provided, however, that if the Stockholder is
-------- -------
foreign, notice shall be sent by air courier, and telecopied or telexed to such
Stockholder:
(a) If to Oak Investment Partners VI, Limited Partnership and/or Oak
VI Affiliates Fund, Limited Partnership:
Oak Investment Partners
One Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. More
(b) If to Canaan S.B.I.C., L.P., Canaan Capital Limited Partnership
or Canaan Capital Offshore Limited Partnership C.V. or Canaan
Equity, L.P.:
Canaan Equity Partners LLC
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Member/Manager
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(c) If to Xxxxxxx Healthcare II, X.X.
Xxxxxxx & Company
0 Xxxxx Xxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxx X. Xxxxxxx
(d) If to TL Ventures III L.P., TL Ventures Offshore L.P. or TL
Ventures III Interfund L.P.:
TL Ventures
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxxxxx Xxxxxx, Ph.D.
with a copy to:
TL Ventures
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
(e) If to Domain Partners IV, L.P., XX XX Associates, L.P. or
Biotechnology Investments Limited:
Domain Associates
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxx, General Partner
and Xxxxxxxx X. Xxxxxxxxxx, General
Partner
(f) If to Healthcap KB or Healthcap CoInvest KB:
Xxxxxxxxxxx 00
X-00000 Xxxxxxxxx
Xxxxxx
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with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier copy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(g) If to Sentron Medical, Inc.:
Sentron Medical, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Ms. Xxxxx Xxxxxx
(h) If to Xxx X. Xxxxxxx, Xxxxx X. Xxxxx or Xxxx X. Xxxxxxxxxxx:
Xxxxxxx & Company
0 Xxxxx Xxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: [Applicable Purchaser]
(i) If to Xxxxx X. Xxxxxxx:
0000 00/xx/ Xxx., X.X.
Xxxxxx Xxxxxx, XX 00000
Telecopier No.:_____________
(j) If to Xxxxxxx X. Xxxxxxxxx
000 Xxxxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: ______________
(k) If to Xxxxxx Investment Holdings I, L.L.C.:
Xxxxxx & Company, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
In the case of any notice pursuant to Section 14(a) through (k), with a copy to:
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Xxxxxx, XxxXxxxxx, Xxxxxx, Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx XxxXxxxxx, Esq.
(l) If to the Company:
OraPharma, Inc.
000 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier No.: 000-000-0000
Attention: Xxxxxxx Kischbauch
with a copy to:
Xxxxx Cummis Radin
Tischman Xxxxxxx & Xxxxx, P.A.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxx X. Xxxxxxxxx, Esq.
All such notices, requests, consents and communications shall be
deemed to have been given (a) in the case of personal delivery, on the date of
such delivery, (b) in the case of telex or telecopier transmission, on the date
on which the sender receives machine confirmation of such transmission, and (c)
in the case of mailing, on the fifth business day following the date of such
mailing.
SECTION 16. Changes. The terms and provisions of this Agreement may not
-------
be modified or amended, or any of the provisions hereof waived, temporarily or
permanently, except pursuant to a written instrument signed by (i) the Company,
and (ii) the holders of at least 66-2/3% of the voting power of the Shares,
voting together as a class.
SECTION 17. Counterparts. This Agreement may be executed in any number
------------
of counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 18. Headings. The headings of the various sections of this
--------
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
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SECTION 19. Nouns and Pronouns. Whenever the context may require, any
------------------
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice-versa.
SECTION 20. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability. Such
prohibition or unenforceability in any one jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 21. Governing Law; Jurisdiction. This Agreement and (unless
---------------------------
otherwise provided) all amendments hereof and waivers and consents hereunder
shall be governed in all respects by the law of the State of New Jersey without
regard to the conflicts of law principles thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Stockholders Agreement on the date and year first written above.
ORAPHARMA, INC.
By:_____________________________
Xxxxxxx Xxxxxxxxx, President
OAK INVESTMENT PARTNERS VI,
LIMITED PARTNERSHIP
By: Oak Associates VI, L.L.C.
By:_____________________________
Xxxxxx X. More,
Managing Member
OAK VI AFFILIATES FUND, LIMITED
PARTNERSHIP
By: Oak VI Affiliates, L.L.C.
By:_____________________________
Xxxxxx X. More,
Managing Member
CANAAN S.B.I.C., L.P.
By: Canaan S.B.I.C. Partners, L.P., General
Partner
By:_____________________________
Xxxxx X. Xxxx,
General Partner
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CANAAN CAPITAL LIMITED PARTNERSHIP
By: Canaan Capital Management, L.P., General
Partner
By: Canaan Capital Partners L.P., General
Partner
By:_____________________________
Xxxxx X. Xxxx,
General Partner
CANAAN CAPITAL OFFSHORE LIMITED PARTNERSHIP C.V.
By: Canaan Capital Management L.P., General
Partner
By: Canaan Capital Partners L.P., General
Partner
By:_____________________________
Xxxxx X. Xxxx,
General Partner
CANAAN EQUITY, L.P.
By: Canaan Equity Partners LLC,
Member/Manager
By:_____________________________
Member/Manager
XXXXXXX HEALTHCARE II, L.P.
By: FHM, L.L.C., General Partner
By: Xxxxxxx Management, L.L.C., Member
By:______________________________
Xxx Xxxxxxx, Member
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TL VENTURES III L.P.
By: TL Ventures III Management
L.P., General Partner
By: TL Ventures III LLC, General
Partner
By:_____________________________
Managing Director
TL VENTURES III OFFSHORE L.P.
By: TL Ventures III Offshore
Partners L.P., General Partner
By: TL Ventures III Offshore Ltd.,
General Partner
By:_____________________________
Name:
Title:
TL VENTURES III INTERFUND L.P.
By: TL Ventures III LLC, General
Partner
By:_____________________________
Managing Director
DOMAIN PARTNERS IV, L.P.
By: One Xxxxxx Square Associates
IV, L.L.C., General Partner
By:_____________________________
Managing Member
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XX XX ASSOCIATES, L.P.
By: One Xxxxxx Square Associates
IV, L.P., General Partner
By:_____________________________
Managing Member
BIOTECHNOLOGY INVESTMENTS LIMITED
By: Old Court Limited
By:_____________________________
Attorney-in-Fact
SENTRON MEDICAL, INC.
By:_____________________________
Xxxxxxx Xxxxxxx
Vice President
HEALTHCAP KB
By: Healthcap AB, General Partner
By:_____________________________
Director
HEALTHCAP COINVEST KB
By: Healthcap AB, General Partner
By:_____________________________
Director
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XXXXXX INVESTMENT HOLDINGS I, L.L.C.
By:_____________________________
Xxxxx X. Xxxxxx,
Managing Member
________________________________
Xxxxxxx X. Xxxxxxxxx
________________________________
Xxx X. Xxxxxxx
________________________________
Xxxxx X. Xxxxx
________________________________
Xxxx Xxxxxxxxxxx, M.D.
________________________________
Xxxxx X. Xxxxxxx, M.D.
________________________________
Xxxxxxx Xxxxxxxxx
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