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EXHIBIT 10.18
THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
As of February 13, 1998
To each of the Several Purchasers
(the "Purchasers") named on the
signature pages of this Third Amended and
Restated Registration Rights Agreement
Dear Sirs:
Pursuant to the Second Amended and Restated Registration Rights
Agreement dated as of February 26, 1997 (the "Old Registration Rights
Agreement") by and among Aspect Medical Systems, Inc., a Delaware corporation
(the "Company"), and certain of its investors, the Company granted certain
registration rights to the holders of the Company's Series A-1 Convertible
Preferred Stock, $.01 par value per share (the "Series A-1 Preferred Stock"),
Series B-1 Convertible Preferred Stock, $.01 par value per share (the "Series
B-1 Preferred Stock") and Series C Convertible Preferred Stock, $.01 par value
per share (the "Series C Preferred Stock"). The Series A-1 Preferred Stock,
Series B-1 Preferred Stock and Series C Preferred Stock are referred to
hereinafter as the "Existing Preferred Stock." In order to attract additional
investment in the Company, pursuant to this Third Amended and Restated
Registration Rights Agreement (this "Agreement"), the Company is granting
registration rights to the purchasers of the Company's Series D Convertible
Preferred Stock, $.01 par value per share (the "Series D Preferred Stock"), who
are purchasing such shares pursuant to the Series D Convertible Preferred Stock
Purchase Agreement of even date herewith (the "Series D Purchase Agreement"),
and to the holders of Existing Preferred Stock who become parties to this
Agreement. In addition, the Company intends that, upon execution of this
Agreement, the Old Registration Rights Agreement shall be terminated and
superseded in its entirety by this Agreement. The Company covenants and agrees
with each of you as follows:
1. TERMINATION OF OLD REGISTRATION RIGHTS AGREEMENT. The Old
Registration Rights Agreement is hereby amended and restated upon the terms and
conditions contained in this Agreement to read in its entirety as provided
herein.
2. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission, or
any other Federal agency at the time administering the Securities Act
(as defined below).
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations
of the Commission issued under such Act, as they each may, from time to
time, be in effect.
"HOLDERS" means the Preferred Shareholders, any persons or
entities to whom the rights granted under this Agreement are
transferred by the Preferred Shareholders, their successors or assigns
pursuant to Section 3 and 16 (a) hereof.
"PREFERRED SHARES" shall mean the Company's Series A-1 Preferred
Stock, Series B-1 Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series A-2 Preferred Stock, Series B-2 Preferred
Stock, Series C-2 Preferred Stock and Series D-2 Preferred Stock.
"PREFERRED SHAREHOLDERS" means the holders of the Preferred
Shares.
"REGISTRABLE SHARES" means (i) the shares of Common Stock issuable
upon conversion of Preferred Shares and (ii) any other shares of Common
Stock of the Company issued in respect of such shares (because of stock
splits, stock dividends, reclassifications, recapitalizations, or
similar events); PROVIDED, HOWEVER, that the shares of Common Stock
which are Registrable Shares shall cease to be Registrable Shares upon
any sale pursuant to a Registration Statement, or Rule 144 under the
Securities Act or any sale in any manner to a person or entity which,
by virtue of Section 3 and/or 16 (a) of this Agreement, is not entitled
to the rights provided by this Agreement. Wherever reference is made to
this Agreement to a request or consent of holders of a certain
percentage of Registrable Shares, the determination of such percentage
shall include shares of Common Stock issuable upon conversion of the
Preferred Shares even if such conversion has not yet been effected.
"REGISTRATION EXPENSES" means the expenses described in Section 7.
"REGISTRATION STATEMENT" means a registration statement filed by
the Company with the Commission for a public offering and sale of
securities of the Company (other than a registration statement on Form
S-8 or Form S-4, or their successors, or any registration statement
covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"SECURITIES ACT" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the
Commission issued under the Securities Act, as they each may, from time
to time, be in effect.
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3. SALE OR TRANSFER OF SHARES AND RIGHTS; LEGEND.
a. The Preferred Shares and shares issued in respect of the
Preferred Shares shall not be sold or transferred unless either (i) they first
shall have been registered under the Securities Act, or (ii) the Company first
shall have been furnished with an opinion of legal counsel, reasonably
satisfactory to the Company, to the effect that such sale or transfer is exempt
from the registration requirements of the Securities Act.
b. Any transferee (other than a transferee who is already a
"Holder" hereunder prior to the subject transfer) to whom rights under this
Agreement are transferred shall, as a condition to such transfer, deliver to the
Company a written instrument by which such transferee agrees to be bound by the
obligations set forth herein with respect to the Holders and to the provisions
regarding confidentiality set forth in Section 11 of the Series D Purchase
Agreement, PROVIDED, HOWEVER, that the right to transfer rights under this
Agreement is subject to Section 16(a) hereof.
c. Notwithstanding the foregoing, no registration or opinion of
counsel shall be required for (i) a transfer by a Holder which is a partnership
to a partner of such partnership or a retired partner of such partnership who
retires after the date hereof, or to the estate of any such partner or retired
partner; (ii) a transfer by a Holder which is a corporation to a stockholder
thereof, to a wholly-owned subsidiary corporation, to a parent corporation which
wholly-owns such Holder, or to a corporation which is wholly-owned by such a
parent corporation; or (iii) a transfer made in accordance with Rule 144 under
the Securities Act; PROVIDED, HOWEVER, that in the case of any transfer pursuant
to clause (i) of this paragraph (c), the transferee must agree in writing to be
subject to this Agreement to the same extent as a Holder hereunder.
d. Each certificate representing the Preferred Shares and shares
issued in respect of the Preferred Shares shall bear a legend substantially in
the following form:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be offered,
sold or otherwise transferred, pledged or hypothecated unless and until
such shares are registered under such Act or an opinion of counsel
satisfactory to the Company is obtained to the effect that such
registration is not required."
The foregoing legend shall be removed from such certificates, at the
request of the holder thereof, at such time as they become eligible for
resale pursuant to Rule 144(k) under the Securities Act.
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4. REQUIRED REGISTRATIONS.
a. At any time after the earlier to occur of (i) one year after
the closing of the Company's first underwritten public offering of shares of
Common Stock pursuant to a Registration Statement or (ii) the third anniversary
of the date of this Agreement, the Holders of not less than 35% of the
Registrable Shares then outstanding may request, in writing, that the Company
effect the registration on Form S-1 or Form S-2 (or any successor form) of
Registrable Shares held by such Holders. If the Holders initiating the
registration intend to distribute the Registrable Shares by means of an
underwriting, they shall so advise the Company in their request. In the event
such registration is underwritten, the right of other Holders to participate
shall be conditioned on such Holders' participation in such underwriting. Upon
receipt of any such request, the Company shall promptly give written notice of
such proposed registration to all Holders. Such Holders shall have the right, by
giving written notice to the Company within 30 days after the Company provides
its notice, to elect to have included in such registration such of its
Registrable Shares as such Holders may request in such notice of election,
subject to the approval of the underwriter managing the offering. If in the
opinion of such managing underwriter the inclusion of all shares requested to be
registered by the Holders would adversely affect the marketing of the securities
to be sold, then the Registrable Shares to be included in such an underwriting
may be reduced (pro rata among the requesting Holders based upon the Registrable
Shares owned by such Holders). Thereupon, the Company shall, as expeditiously as
possible, use its best efforts to effect the registration, on Form S-1 or Form
S-2 (or any successor form), for all Registrable Shares which the Company has
been requested to so register. No other holder of capital stock of the Company
may participate in any registered offering made pursuant to this section without
the consent of a majority of the Registrable Shares held by participating
Holders.
b. At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), a Holder or Holders may request the Company, in writing, to effect
the registration on Form S-3 (or such successor form) of Registrable Shares
having an aggregate offering price, net of underwriting discounts and
commission, if any, of at least $250,000 (based on the current public market
price). Upon receipt of any such request, the Company shall promptly give
written notice of such proposed registration to all Holders. Such Holders shall
have the right, by giving written notice to the Company within 30 days after the
Company provides its notice, to elect to have included in such registration such
of their Registrable Shares as such Holders may request in such notice of
election. Thereupon, the Company shall, as expeditiously as possible, use its
best efforts to effect the registration on Form S-3, or such successor form, of
all Registrable Shares which the Company has been requested to register.
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c. The Company shall not be required to effect more than three
registrations pursuant to paragraph (a) above requested by the holders of
Registrable Shares. A registration will not count as a required registration
under paragraph (a) unless it becomes effective and the Holders requesting
registration are able to sell at least 50% of the Registrable Shares sought to
be included in the registration.
d. If at the time of any request to register Registrable Shares
pursuant to this Section 4, the Company is engaged or has fixed plans to engage,
within 30 days of the time of the request, in a registered public offering as to
which the Holders may include Registrable Shares pursuant to Section 5 or is
engaged in any other activity which, in the good faith determination of the
Company's board of directors, would be adversely affected by the requested
registration to the material detriment of the Company, then the Company may at
its option direct that such request be delayed for a period not to exceed six
months from the effective date of such offering or the date of commencement of
such other material activity, as the case may be, such right to delay a request
to be exercised by the Company not more than once in any two-year period.
5. INCIDENTAL REGISTRATION.
a. Whenever the Company proposes to file a Registration
Statement at any time and from time to time, it will, prior to such filing, give
written notice to all Holders of its intention to do so and, upon the written
request of a Holder given within 20 days after receipt of such notice (which
request shall state the intended method of disposition of such Registrable
Shares), the Company shall use its best efforts to cause all Registrable Shares
which the Company has been requested by such Holder or Holders to register to be
registered under the Securities Act to the extent necessary to permit their sale
or other disposition in accordance with the intended methods of distribution
specified in the request of such Holder or Holders; PROVIDED that the Company
shall have the right to postpone or withdraw any registration effected pursuant
to this Section 5 without obligation to any Holder.
b. In connection with any offering under this Section 5
involving an underwriting, the Company shall not be required to include any
Registrable Shares in such underwriting unless the Holders thereof accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it. If in the opinion of the managing underwriter it is
appropriate because of marketing factors to limit the number of Registrable
Shares to be included in the offering, then the Company shall be required to
include in the registration only that number or Registrable Shares, if any,
which the managing underwriter believes should be included therein; PROVIDED,
that in no event shall the number of Registrable Shares included in the offering
(other than in the Company's initial public offering) be reduced below 25% of
the total number of shares of Common Stock (giving effect to conversion into
Common Stock of all securities convertible thereinto) included in the
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offering. If the number of Registrable Shares to be included in the offering in
accordance with the foregoing is less than the total number of shares which the
holders of Registrable Shares have requested to be included, then each Holder
shall be entitled to register its pro rata portion of the Registrable Shares
being registered (based upon the Registrable Shares owned by such Holders in
relation to all the Registrable Shares held by all Holders).
6. REGISTRATION PROCEDURES. If and whenever the Company is required
by the provisions of this Agreement to use its best efforts to effect the
registration of any of the Registrable Shares under the Securities Act, the
Company shall:
a. as expeditiously as possible file with the Commission a
Registration Statement with respect to such Registrable Shares and use
its best efforts to cause that Registration Statement to become and
remain effective;
b. as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Registration Statement
and the prospectus included in the Registration Statement as may be
necessary to keep the Registration Statement effective for a period of
not less than 120 days from the effective date;
c. as expeditiously as possible furnish to each selling Holder
such reasonable numbers of copies of the prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the selling Holder may
reasonably request in order to facilitate the public sale or other
disposition of the Registrable Shares held by the selling Holder; and
d. as expeditiously as possible use its best efforts to register
or qualify the Registrable Shares covered by the Registration Statement
under the securities or Blue Sky laws of such states as the selling
Holders shall reasonably request, and do any and all other acts and
things that may be necessary or desirable to enable the selling Holders
to consummate the public sale or other disposition in such states of
the Registrable Shares owned by the selling Holder; PROVIDED, HOWEVER,
that the Company shall not be required in connection with this
paragraph (d) to qualify as a foreign corporation or execute a general
consent to service of process in any jurisdiction.
If the Company has delivered preliminary or final prospectuses to the
selling Holders and after having done so the prospectus is amended to comply
with the requirements of the Securities Act, the Company shall promptly notify
the selling Holders and, if requested by the Company, the selling Holders shall
immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly provide the selling
Holders with revised
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prospectuses and, following receipt of the revised prospectuses, the selling
Holders shall be free to resume making offers of the Registrable Shares.
7. ALLOCATION OF EXPENSES. The Company will pay all Registration
Expenses of all registrations under this Agreement. For purposes of this
Section, the term "Registration Expenses" shall mean all expenses incurred by
the Company in complying with this Agreement, including, without limitation, all
registration and filing fees, fees and expenses of counsel for the Company and
the fees and expenses of one counsel selected by the selling Holders to
represent the selling Holders, state Blue Sky fees and expenses, and the expense
of any special audits incident to or required by any such registration, but
excluding underwriter discounts and commissions and the fees and expenses of
selling Holders' own counsel (other than the counsel selected to represent all
selling Holders). All other expenses of registered offerings shall be borne pro
rata amount the selling Holders and, if it participates, the Company.
8. INDEMNIFICATION. In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless each Holder of the Registrable Shares
so registered, each officer and director of such Holder, each underwriter of
such Registrable Shares, and each other person, if any, who controls such Holder
or underwriter within the meaning of the Securities Act or the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
such Holder, officer, director, underwriter or controlling person may become
subject under the Securities Act, the Exchange Act, state securities or Blue Sky
laws or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement under which such Registrable Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration
Statement, or arise out of or are based upon the omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Company will reimburse such Holder,
officer, director, underwriter and each such controlling person for any legal or
any other expenses reasonably incurred by such Holder, officer, director,
underwriter or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or omission made in such Registration Statement, preliminary prospectus or
prospectus, or any such amendment or supplement thereto, in reliance upon and in
conformity with information furnished to the Company, in writing, by or on
behalf of such Holder, officer, director, underwriter or controlling person
specifically for use in the preparation thereof.
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In the event of any registration of any of the Registrable Shares under
the Securities Act pursuant to this Agreement, each Holder of Registrable Shares
so registered, severally and not jointly, will indemnify and hold harmless the
Company, each of its directors and officers and each underwriter (if any) and
each person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, such directors
and officers, underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of such Holder, specifically for use in connection with the preparation
of such Registration Statement, preliminary prospectus or prospectus, or any
such amendment or supplement thereto, in reliance upon and in conformity with
information furnished to the Company, in writing, by or on behalf of such
Holder, officer, director, underwriter or controlling person specifically for
use in the preparation thereof; PROVIDED, HOWEVER, that the obligation of such
Holder hereunder shall be limited to an amount equal to the net proceeds to each
Holder of Registrable Shares sold as contemplated herein.
Each party entitled to indemnification under this Section 8 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; PROVIDED, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, PROVIDED, FURTHER, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement unless and only to the extent such failure
adversely affects the ability of such Indemnifying Party to defend or settle
such claim or litigation. The Indemnified Party may participate in such defense
at such party's expense; PROVIDED, HOWEVER, that the Indemnifying Party shall
pay such expense if representation of such Indemnified Party by the counsel
retained by the Indemnifying Party would be inappropriate due to actual or
potential differing interests between the Indemnified Party and any other party
represented by such counsel in such proceeding. No Indemnifying Party, in the
defense of any such
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claim or litigation shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect of such
claim or litigation, and no Indemnified Party shall consent to entry of any
judgment or settle such claim or litigation without the prior written consent of
the Indemnifying Party.
9. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING. In the
event that Registrable Shares are sold pursuant to a Registration Statement in
an underwritten offering pursuant to Section 4 (a), the Company agrees to enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of an issuer of the
securities being registered and customary covenants and agreements to be
performed by such issuer, including without limitation customary provisions with
respect to indemnification by the Company of the underwritings of such offering.
10. INFORMATION BY HOLDER. Each Holder of Registrable Shares that are
included in any registration shall furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder as the
Company may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
11. "STAND-OFF" AGREEMENT. Each Holder, if requested by the Company
and an underwriter of Common Stock or other securities of the Company, shall
agree not to sell or otherwise transfer or dispose of any Registrable Shares or
other securities of the Company held by such Holder for a specified period of
time (not to exceed 120 days) following the effective date of a Registration
Statement; PROVIDED, that:
a. such agreement shall only apply to the first such
Registration Statement covering Common Stock of the Company to be sold on its
behalf to the public in an underwritten offering; and
b. all other Holders holding not less than the number of shares
of Common Stock held by such Holder (including shares of Common Stock issuable
upon the conversion of Preferred Shares, or other convertible securities, or
upon the exercise of options, warrants or rights) and all executive officers and
directors of the Company enter into similar agreement.
Such agreement shall be in writing in a form satisfactory to the
Company and such underwriter. The Company may impose stop-transfer instructions
with respect to the Registrable Shares or other securities subject to the
foregoing restriction until the end of the stand-off period.
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12. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. The Company shall
not, without the prior written consent of Holders holding at least a majority of
the Registrable Shares, enter into any agreement (other than this Agreement)
with any holder or prospective holder of any securities of the Company which
would allow such holder or prospective holder to include securities of the
Company in any registration filed under Sections 4 or 5, if, under the terms of
such agreement, such holder or prospective holder's rights are superior or may
be exercised prior to the rights of the Holder contained herein.
13. RULE 144 REQUIREMENTS. After the earliest of (i) the closing of
the sale of securities of the Company pursuant to a Registration Statement, (ii)
the registration by the Company of a class of securities under Section 12 of the
Exchange Act, or (iii) the issuance by the Company of an offering circular
pursuant to Regulation A under the Securities Act, the Company agrees to:
a. make and keep public information available, as those terms
are understood and 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 any Holder of Registrable Shares under request a
written statement by the Company as to its compliance with the
reporting requirements of said Rule 144 (at any time after 90 days
following the closing of the first sale of securities by the Company
pursuant to a Registration Statement), and of the Securities Act and
the Exchange Act (at any time after it has become subject to such
reporting requirements), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the
Company as such holder may reasonably request to avail itself of any
similar rule or regulation of the Commission allowing it to sell any
such securities without registration.
14. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to you as follows:
a. The execution, delivery and performance of this Agreement by
the Company have been duly authorized by all requisite corporate action
and will not violate any provision of law, any order of any court or
other agency of government, the Certificate of Incorporation or By-laws
of the Company, each as amended to date, or any provision of any
indenture, agreement or other instrument to which it or any of its
properties or assets is bound, conflict with, result in a breach of or
institute (with due notice or lapse of time or both) a
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default under any such indenture, agreement or other instrument or
result in the creation or imposition of any lien, charge or encumbrance
of any nature whatsoever upon any of the properties or assets of the
Company.
b. This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms.
15. CHANGES IN COMMON STOCK OR PREFERRED SHARES. If, and as often as,
there is any change in the Common Stock of the Company or the Preferred Shares
by way of a stock split, stock dividend, combination or reclassification, or
through a merger, consolidation, reorganization or recapitalization, or by any
other means, appropriate adjustment shall be made in the provisions hereof so
that the rights and privileges granted hereby shall continue with respect to the
Preferred Shares and the shares of Common Stock issuable upon conversion
thereof, as so changed.
16. MISCELLANEOUS.
a. All covenants and agreements contained in this Agreement by
or on behalf of any of the parties hereto shall bind and inure to the
benefit of the respective successors and assigns of the parties hereto
(including without limitation transferees of any Registrable Shares or
Preferred Shares, whether so expressed or not), PROVIDED, HOWEVER, that
registration rights conferred herein on the holders of Preferred Shares
or Registrable Shares shall only inure to the benefit of a transferee
of Preferred Shares or Registrable Shares if there is transferred to
such transferee at least 25,000 shares of Preferred Shares or
Registrable Shares (other than transfer of registration rights to an
entity under common control with or to a shareholder, partner, former
partner or subsidiary of any Holder which will be without restriction
as to minimum shares), and PROVIDED, FURTHER, that the Company is given
written notice by the transferee at the time of the transfer stating
the name and address of the transferee and identifying the securities
with respect to which such rights are being assigned.
b. All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by certified or
registered mail, return receipt requested, postage prepaid, or telexed,
in the case of non-U.S. residents, addressed as follows:
if to the Company or any other party hereto, at the address
of such party set forth in the stock records of the Company, as the
case may be;
if to any subsequent holder of Preferred Shares or
Registrable Shares, to it at such address as may have been furnished to
the Company in writing by such holder;
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or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of
Preferred Shares or Registrable Shares) or to the holders of Preferred
Shares or Registrable Shares (in the case of the Company) in accordance
with the provisions of this paragraph.
c. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
d. The terms of this Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only
with the written consent of the Company and the holders of at least 55%
of the Registrable Shares.
e. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
f. The obligations of the Company to register shares of the
Registrable Shares under this Agreement shall terminate on the sixth
anniversary of the date of the consummation of a firm commitment
underwritten public offering of shares of Common Stock of the Company
which (i) results in aggregate gross proceeds of at least $20,000,000
and (ii) is at a price per share of at least $12.00.
g. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in
any manner affect or render illegal, invalid or unenforceable any other
provisions of this Agreement, and this Agreement shall be carried out
as if any such illegal, invalid or unenforceable provision were not
contained herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
ASPECT MEDICAL SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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President
/s/
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Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxx Xxxxxxx and
X. X. Xxxxxxxxxxxx, Trustees of the Xxxxx X.
Xxxxxxx Trust U/A dated 11/18/85
/s/
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X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for Juliet Xxx
Xxxxxxx
/s/
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X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for Xxxxxx
Xxxxxxxx Xxxxxxx
/s/
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X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for Xxxxxxx
Xxxxxxx Xxxxxxx
/s/
--------------------------------------------
X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for Xxxxx X.
Xxxxxxx, Xx.
[Third Amended and Restated Registration Rights Agreement]
-13-
14
VENHILL LIMITED PARTNERSHIP
By: /s/
----------------------------------------
Name:
Title:
JULIET CHALLENGER, INC.
By: /s/
----------------------------------------
Name:
Title:
BT XXXX XXXXX EMPLOYEE VENTURE FUND
By: /s/
----------------------------------------
Name:
Title:
SECOND CENTURY GROWTH DEFERRED
COMPENSATION PLAN: Xxxxx Xxxxxxx, Inc.
By: /s/
----------------------------------------
Name:
Title:
THE XXXX XXXXXXXXX SCHOOL ENDOWMENT FUND
By: /s/
----------------------------------------
Name:
Title:
[Third Amended and Restated Registration Rights Agreement]
-14-
15
/s/ Xxxxxx Xxxxxx
--------------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxx
POLARIS VENTURE PARTNERS, L.P.
By: Polaris Venture Management Co., LLC
Its General Partner
By: /s/
----------------------------------------
Member
POLARIS VENTURE PARTNERS
FOUNDERS' FUND, L.P.
By: Polaris Venture Management Co., LLC
Its General Partner
By: /s/
----------------------------------------
Member
ONE LIBERTY FUND III, L.P.
By: One Liberty Partners III, L.P.,
Its General Partner
By: /s/ Xxxxx X. Xxxxx, Xx.
----------------------------------------
Xxxxx X. Xxxxx, Xx.
General Partner
[Third Amended and Restated Registration Rights Agreement]
-15-
16
GILDE INTERNATIONAL B.V.
By: One Liberty Partners III, L.P.,
its Attorney-in-Fact
By: /s/ Xxxxx X. Xxxxx, Xx.
----------------------------------------
Title: Xxxxx X. Xxxxx, Xx.
General Partner
XXXXXXX RIVER PARTNERSHIP VII,
LIMITED PARTNERSHIP
By: /s/
----------------------------------------
Name:
Title:
NEW VENTURE PARTNERS III, LIMITED
PARTNERSHIP
By: /s/
----------------------------------------
Name:
Title:
GENSTAR INVESTMENT CORPORATION
By: /s/
----------------------------------------
Name:
Title:
[Third Amended and Restated Registration Rights Agreement]
-16-
17
HIGHLAND CAPITAL PARTNERS II, LIMITED
PARTNERSHIP
By: Highland Management Partners II Limited
Partnership, its General Partner
By: /s/
----------------------------------------
Name:
Title:
XXXXXXXX ASSOCIATES
By: /s/
----------------------------------------
Name:
Title:
XXXXXXXX MEDICAL PARTNERS
By: /s/
----------------------------------------
Name:
Title:
XXXXXXXX VI
By: /s/
----------------------------------------
Name:
Title:
[Third Amended and Restated Registration Rights Agreement]
-17-
18
MERRILL, PICKARD, XXXXXXXX & EYRE IV,
LIMITED PARTNERSHIP
By: MPAE IV Management Co., L.P.
By: /s/
---------------------------------------------
Name:
Title:
NEW ENTERPRISE ASSOCIATES IV, LIMITED
PARTNERSHIP
By: New Enterprise Associates IV, Limited
Partnership
By: NEA Partners IV, Limited Partnership
By: /s/ Xxxxx Xxxxxx
---------------------------------------------
Xxxxx Xxxxxx
General Partner
ORCHID & CO., nominee for
X. Xxxx Price Threshold Fund III, L.P.
By: X. Xxxx Price Threshold Fund Associates, Inc.
General Partner
By: /s/
---------------------------------------------
Name:
Title:
[Third Amended and Restated Registration Rights Agreement]
-18-
19
CHANCELLOR LGT PRIVATE CAPITAL PARTNERS III, L.P.
By: CPCP Associates, L.P.,
its general partner
By: Chancellor LGT Venture Partners, Inc.,
its general partner
By: /s/
---------------------------------------------
Name:
Title:
HLM PARTNERS VII, L.P.
By: /s/
---------------------------------------------
Name:
Title:
XXXXXX HILL VENTURES, A CALIFORNIA LIMITED
PARTNERSHIP
By: /s/
---------------------------------------------
Name:
Title:
TOW PARTNERS, A CALIFORNIA LIMITED PARTNERSHIP
By: /s/
---------------------------------------------
Name:
Title:
[Third Amended and Restated Registration Rights Agreement]
-19-
20
/s/
---------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx., Trustee of the
Younger Living Trust
/s/
---------------------------------------------
Xxxx X. and Xxxxxx X. Xxxxxx, Trustees of
the Wythes Living Trust
/s/ G. Xxxxxxx Xxxxx
---------------------------------------------
G. Xxxxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxx Xxxx
---------------------------------------------
Xxxxx Xxxx
/s/ Xxxxxx Xxxxxxxxx
---------------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxxxxx and Xxxx Xxxxxxx
---------------------------------------------
Xxxxxxxx and Xxxx Xxxxxxx
[Third Amended and Restated Registration Rights Agreement]
-20-
21
H&D INVESTMENTS II
By: /s/
---------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Partner
/s/ X. Xxxxxxxxxxxx Eagle
-------------------------------------------------
X. Xxxxxxxxxxxx Eagle
/s/ Xxxxx X. Xxxx
-------------------------------------------------
Xxxxx X. Xxxx
/s/ Xxxxx Xxxxx
-------------------------------------------------
Xxxxx Xxxxx
/s/ J. Xxxx Xxxxxxxxx
-------------------------------------------------
J. Xxxx Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxx Xx Xxxxxx
-------------------------------------------------
Xxxx Xx Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxx X. Xxxxxxx
[Third Amended and Restated Registration Rights Agreement]
-21-
22
THE XXXX CARDIOVASCULAR RESEARCH FOUNDATION
By: /s/
---------------------------------------------
Name:
Title:
/s/ Xxxx X. Xxxxxx
-------------------------------------------------
Xxxx X. Xxxxxx
ZED INTERNATIONAL, INC.
By: /s/
---------------------------------------------
Name:
Title:
BAYVIEW INVESTORS, LTD.
By: /s/
---------------------------------------------
Name:
Title:
INTERSTOCK ANSTALT FUR VERMOGENS UND TRUST
VERWALTUNG
By: /s/
---------------------------------------------
Authorized Signatory
[Third Amended and Restated Registration Rights Agreement]
-22-
23
SVE STAR VENTURE ENTERPRISES NO. V,
A GERMAN CIVIL LAW PARTNERSHIP
(WITH LIMITATION OF LIABILITY)
By: SVM Star Ventures
Managementgesellschaft mbH Nr. C
By: /s/
---------------------------------------------
Authorized Signatory
SVM STAR VENTURES
MANAGEMENTGESELLSCHAFT MBH NR.
3 & CO. BETEILIGUNGS KG
By: SVM Star Ventures
Managementgesellschaft mbH Nr. C
By: /s/
---------------------------------------------
Authorized Signatory
/s/ Xxxxxxx and Xxxxx Xxxxxx
-------------------------------------------------
Xxxxxxx and Xxxxx Xxxxxx
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxxxx X. Xxxxxxx
AENEAS VENTURE CORPORATION
By: /s/
---------------------------------------------
Name:
Title:
[Third Amended and Restated Registration Rights Agreement]
-23-
24
CATALYST VENTURES, LIMITED PARTNERSHIP
By: New Enterprise Associates IV, Limited
Partnership
By: NEA Partners IV, Limited Partnership
By: /s/
---------------------------------------------
Name:
Title:
XXXXX FARGO BANK, TRUSTEE SHV M/P/T FBO
XXXXX X. XXXXXXXX
By: /s/
---------------------------------------------
Name:
Title:
XXXXX FARGO BANK, TRUSTEE SHV M/P/T FBO
XXXXX XXXX
By: /s/
---------------------------------------------
Name:
Title:
/s/ Xxxxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------------------
Xxxxx X. Xxxxxx
[Third Amended and Restated Registration Rights Agreement]
-24-
25
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
THE XXXXXXX RESEARCH FOUNDATION
By: /s/
---------------------------------------------
Name:
Title:
FISHERS ISLAND PARTNERS
By: /s/
---------------------------------------------
Name:
Title:
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxx X. Xxxxxxx
-------------------------------------------------
Ziad and Xxxx Xxxxxxx
[Third Amended and Restated Registration Rights Agreement]
-25-
26
/s/ Xxxxxx Xxxxxx
-------------------------------------------------
Xxxxxx Xxxxxx as Custodian for Xxxxxxx
Xxxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxx, M.D.
-------------------------------------------------
Xxxxxx X. Xxxxx, M.D.
-------------------------------------------------
Xxxxx X. Xxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxx
-------------------------------------------------
Xxxx Xxx Young
/s/ Xxxxxx Xxxxxxx
-------------------------------------------------
Xxxxxx Xxxxxxx
LANDMARK VENTURES, LIMITED PARTNERSHIP
By: /s/
---------------------------------------------
Name:
Title:
/s/ Xxxx X. Rohrbasser
-------------------------------------------------
Xxxx X. Rohrbasser
/s/ Xxxxxxxx Xxxx
-------------------------------------------------
Xxxxxxxx Xxxx
[Third Amended and Restated Registration Rights Agreement]
-26-
27
/s/ Xxxxxxx Xxxxxx
-------------------------------------------------
Xxxxxxx Xxxxxx
CITIVENTURE 96 PARTNERSHIP, L.P.
By: Chancellor LGT Asset Management, Inc.
as investment advisor
By: /s/
---------------------------------------------
Name:
Title:
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxx
-------------------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxx
-------------------------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx
[Third Amended and Restated Registration Rights Agreement]
-27-
