Exhibit 4.10

 

ANTERIOS, INC.

 

AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 











 

TABLE OF CONTENTS

 

 

	
 
    	
 
    	
Page
    
	
1.
    	
Definitions
    	
1
    
	
 
    	
 
    	
 
    
	
2.
    	
Registration   Rights
    	
5
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
2.1
    	
Demand   Registration
    	
5
    
	
 
    	
2,2
    	
Company   Registration
    	
6
    
	
 
    	
2.3
    	
Underwriting   Requirements
    	
7
    
	
 
    	
2.4
    	
Obligations   of the Company
    	
8
    
	
 
    	
2.5
    	
Furnish   Information
    	
9
    
	
 
    	
2.6
    	
Expenses   of Registration
    	
9
    
	
 
    	
2.7
    	
Delay   of Registration
    	
10
    
	
 
    	
2.8
    	
Indemnification
    	
10
    
	
 
    	
2.9
    	
Reports   Under Exchange Act
    	
12
    
	
 
    	
2.10
    	
Limitations   on Subsequent Registration Rights
    	
13
    
	
 
    	
2.11
    	
“Market   Stand off” Agreement
    	
13
    
	
 
    	
2.12
    	
Restrictions   on Transfer
    	
13
    
	
 
    	
2.13
    	
Termination   of Registration Rights
    	
15
    
	
 
    	
 
    	
 
    	
 
    
	
3.
    	
Information   and Observer Rights
    	
15
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
3.1
    	
Delivery   of Financial Statements
    	
15
    
	
 
    	
3.2
    	
Inspection
    	
15
    
	
 
    	
3.3
    	
Termination   of Information
    	
16
    
	
 
    	
3.4
    	
Confidentiality
    	
16
    
	
 
    	
 
    	
 
    	
 
    
	
4.
    	
Rights   to Future Stock Issuances
    	
16
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
4.1
    	
Right   of First Offer
    	
16
    
	
 
    	
 
    	
 
    	
 
    
	
5.
    	
Additional   Covenants
    	
18
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
5.1
    	
Insurance
    	
18
    
	
 
    	
5.2
    	
Confidential   Information/Non-Disclosure Agreements
    	
18
    
	
 
    	
5.3
    	
Employee   Vesting
    	
18
    
	
 
    	
5.4
    	
Matters   Requiring Investor Approval
    	
18
    
	
 
    	
5.5
    	
Meetings   of the Board of Directors
    	
18
    
	
 
    	
5.6
    	
Successor   Indemnification
    	
18
    
	
 
    	
5.7
    	
Board   Expenses
    	
18
    
	
 
    	
5.8
    	
Termination   of Covenants
    	
19
    
	
 
    	
 
    	
 
    	
 
    
	
6.
    	
Miscellaneous
    	
19
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
6.1
    	
Successors   and Assigns
    	
19
    
	
 
    	
6.2
    	
Governing   Law
    	
19
    
	
 
    	
6.3
    	
Counterparts;   Facsimile
    	
19
    
	
 
    	
6.4
    	
Titles   and Subtitles
    	
19
    
	
 
    	
6.5
    	
Notices
    	
19
    
	
 
    	
6.6
    	
Amendments   and Waivers
    	
20
    
	
 
    	
6.7
    	
Severability
    	
20
    


 

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TABLE OF CONTENTS 
  (cont’d)

 

	
 
    	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
6.8
    	
Aggregation   of Stock
    	
20
    
	
 
    	
6.9
    	
Additional   Investors
    	
20
    
	
 
    	
6.10
    	
Entire   Agreement
    	
20
    


 

Schedule A                                                                                   Schedule of Series A Holders

Schedule B                                                                                   Schedule of Series B Holders

Schedule C -                                                                            Schedule of Key Holders

 

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AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

THIS AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of this 6th day of October, 2009, by and among Anterios, Inc. (f/k/a Encapsion, Inc.), a Delaware corporation (the “Company”), each holder of the Company’s Series A Preferred Stock, $0.0001 par value per share (“Series A Preferred Stock”) listed on Schedule A (the “Series A Holders”) and each holder of the Company’s Series B Preferred Stock, $0.0001 par value per share (“Series B Preferred Stock”) listed on Schedule B (the “Series B Holders”, together with the Series A Holders, the “Investors”, and each individually, an “Investor”) and those certain stockholders of the Company listed on Schedule C (each of whom is referred to herein as a “Key Holder” and, collectively, as the “Key Holders”).

 

RECITALS

 

WHEREAS, The Company, the Series A Holders, and the Key Holders previously entered into the Investors’ Rights Agreement, dated January 16, 2007 (the “Prior Agreement”), and previously purchased shares of the Company’s Series A Preferred Stock, pursuant to that certain Stock Purchase Agreement dated as of January 16, 2007, between the Company, the Key Holders and the Series A Holders; and

 

WHEREAS, Concurrently with the execution of this Agreement, the Company and the Series B Holders are entering into a Series B Preferred Stock Purchase Agreement (the “Purchase Agreement”) providing for the sale of shares of the Company’s Series B Preferred Stock, and in connection with that agreement the parties desire to provide the Series B Holders with the rights set forth in this Agreement;

 

WHEREAS, To induce the Company to enter into the Purchase Agreement and to induce the Series B Holders to invest funds in the Company pursuant to the Purchase Agreement, the Investors and the Company hereby agree that this Agreement shall govern the rights of the Investors to cause the Company to register shares of Common Stock issuable to the Investors, to receive certain information from the Company, and to participate in future equity offerings by the Company, and shall govern certain other matters as set forth in this Agreement;

 

NOW, THEREFORE, the Company, the Key Holders and the Investors, each hereby agree to amend and restate the Prior Agreement in its entirety as set forth herein, and the parties hereto further agree as follows:

 

1.                   Definitions. For purposes of this Agreement:

 

1.1                          “Affiliate” means, with respect to any specified Person, any other Person who or which, directly or indirectly, controls, is controlled by, or is under common control with such specified Person, including without limitation any general partner, officer, director, or manager of such Person and any venture capital fund now or hereafter existing that is controlled

 











 

by one or more general partners or managing members of, or shares the same management company with, such Person.

 

1.2                               “Common Stock” means shares of the Company’s common stock, par value $0.0001 per share.

 

1.3                               “Damages” means any loss, damage, or liability (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act, or other federal or state law, insofar as such loss, damage, or liability (or any action in respect thereof) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any registration statement of the Company, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto; (ii) an omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or (iii) any violation or alleged violation by the indemnifying party (or any of its agents or Affiliates) of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange Act, or any state securities law.

 

1.4                               “Derivative Securities” means any securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants.

 

1.5                               “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

1.6                               “Excluded Registration” means (i) a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; (ii) a registration relating to an SEC Rule 145 transaction; (iii) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; or (iv) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered.

 

1.7                               “Form S 1” means such form under the Securities Act as in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the SEC.

 

1.8                               “Form S 2” means such form under the Securities Act as in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the SEC.

 

1.9                               “Form S 3” means such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the SEC that permits incorporation of substantial information by reference to other documents filed by the Company with the SEC.

 

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1.10 “Form SB-2” means such form under the Securities Act as in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the SEC.

 

1.11 “GAAP” means generally accepted accounting principles in the United States,

 

1.12 “Holder” means any holder of Registrable Securities who is a party to this Agreement.

 

1.13 “Immediate Family Member” means a child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, of a natural person referred to herein.

 

1.14 “Initiating Holders” means, collectively, Holders who properly initiate a registration request under this Agreement.

 

1.15 “IPO” means the Company’s first underwritten public offering of its Common Stock under the Securities Act.

 

1.16 “Key Employee” means Jon Edelson, MD.

 

1.17 “Major Investor” means any Investor that, individually or together with such Investor’s Affiliates, holds 113,871 or more shares of Series B Preferred Stock or 337,257 or more shares of Series A Preferred Stock (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the date hereof).

 

1.18 “New Securities” means, collectively, equity securities of the Company, whether or not currently authorized, as well as rights, options, or warrants to purchase such equity securities, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for such equity securities.

 

1.19 “Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

 

1.20 “Preferred Stock” means collectively, all shares of Series A Preferred Stock and Series B Preferred Stock,

 

1.21 “Registrable Securities” means (i) the Common Stock issuable or issued upon conversion of the Preferred Stock; (ii) any Common Stock issued or issuable upon conversion of any capital stock of the Company acquired by the Investors after the date hereof; (iii) any shares of Common Stock held by, or issued or issuable upon conversion of any capital stock of the Company held by, the Key Holders, provided, however, that such shares of Common Stock shall not be deemed Registrable Securities and the Key Holders shall not be deemed Holders for the purposes of Sections 2.1, 2,10, 3.1, 3,2, 4.1 and 6.6; and (iv) any Common Stock issued as (or issuable upon the conversion or exercise of any warrant, right, or other security that is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement

 

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of, the shares referenced in clauses (i), (ii), and (iii); provided however, that shares of Common Stock which are Registrable Securities shall cease to be Registrable Securities upon (i) any sale pursuant to a Registration Statement or Rule 144 under the Securities Act, or (ii) any sale in a private transaction in which the transferor’s rights under Section 2 of this Agreement are not assigned.

 

1.22 “Registrable Securities then outstanding” means the number of shares determined by adding the number of shares of outstanding Common Stock that are Registrable Securities and the number of shares of Common Stock issuable (directly or indirectly) pursuant to then exercisable and/or convertible securities that are Registrable Securities.

 

1.23 “Restricted Securities” means the securities of the Company required to bear the legend set forth in Section 2.12(b) hereof.

 

1.24 “SEC” means the Securities and Exchange Commission.

 

1.25 “SEC Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.

 

1.26 “SEC Rule 145” means Rule 145 promulgated by the SEC under the Securities Act.

 

1.27 “Second Restated Certificate” means the Second Amended and Restated Certificate of Incorporation of the Company which will be filed as of the Initial Closing, as defined in the Purchase Agreement.

 

1.28 “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

1.29 “Selling Expenses” means all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Holder, except for the fees and disbursements of the Selling Holder Counsel borne and paid by the Company as provided in Section 2.6.

 

1.30 “Series A Director” means any director of the Company that the holders of record of the Series A Preferred Stock are entitled to elect pursuant to the Second Restated Certificate.

 

1.31 “Series B Director” means any director of the Company that the holders of record of the Series B Preferred Stock are entitled to elect pursuant to the Second Restated Certificate.

 

1.32 “Series A Preferred Stock” has the meaning set forth in the preamble to this Agreement.

 

1.33 “Series B Preferred Stock” has the meaning set forth in the preamble to this Agreement.

 

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2.                                      Registration Rights. The Company covenants and agrees as follows:

 

2.1                               Demand Registration.

 

(a)                                      Form S-1 Demand. If at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of at least thirty percent (30%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to the Registrable Securities then outstanding and that the anticipated aggregate offering price for such registration would exceed seven million dollars ($7,000,000), then the Company shall (1) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within ninety (90) days after the date such request is given by the Initiating Holders, file a Form S-1 (or, if eligible to use, and the Company so elects, a Form SB-2 registration statement) registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(c) and Section 2,3,

 

(b)                                      Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least thirty percent (30%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least three million dollars ($3,000,000), then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within fogy-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(e) and Section 2.3.

 

(c)                                  Notwithstanding the foregoing obligations or the obligations set forth in Section 2.4, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 (or, in the case of an effective registration, furnishes to Holders whose Registrable Securities are included in a registration statement pursuant to Section 2.2) a certificate signed by the Company’s Chief Executive Officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements

 

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under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing for a period of not more than sixty (60) days after the request of the Initiating Holders is given (or, in the case of an effective registration statement, for a period of not more than sixty (60) days after the date on which an amendment or supplement to the registration statement and/or prospectus would otherwise be required); provided, however, that the Company may not invoke this right more than once in any twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such sixty (60) day period other than an Excluded Registration.

 

(d)                                 The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two (2) registrations pursuant to Section 2.1(a); or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected two (2) registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2,1K until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(4

 

2.2                               Company Registration. If the Company proposes to register (including, for this purpose, a registration effected by the Company for stockholders other than the Holders) any of its securities under the Securities Act in connection with the public offering of such securities solely for cash (other than in an Excluded Registration), the Company shall, at such time, promptly give each Holder notice of such registration. Upon the request of each Holder given within twenty (20) days after such notice is given by the Company, the Company shall, subject to the provisions of Section 2.3, include in the registration statement all of the Registrable Securities that each such Holder has requested to be included in such registration. The Company shall have the right to determine not to file, terminate or withdraw any registration initiated by it under this Section 2.2 before the effective date of such registration, whether or not any Holder has elected to include Registrable Securities in such registration. The expenses (other than Selling Expenses) of such withdrawn registration shall be borne by the Company in accordance with Section 2.6.

 

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2.3                               Underwriting Requirements.

 

(a)                                      If, pursuant to Section 2.1, the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1, and the Company shall include such information in the Demand Notice. The underwriter(s) will be selected by the Initiating Holders, subject only to the reasonable approval of the Company, not to be unreasonably withheld. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 2.4(e)) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Section 2.3, if the managing underwriter(s) advise(s) the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated among such Holders of Registrable Securities, including the Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable Securities owned by each Holder or in such other proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the number of Registrable Securities held by the Holders to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares.

 

(b)                                      In connection with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Section 2.2, the Company shall not be required to include any of the Holders’ Registrable Securities in such underwriting unless the Holders accept the terms of the underwriting as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriters in their sole discretion determine will not jeopardize the success of the offering by the Company. If the total number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters and the Company in their sole discretion determine will not jeopardize the success of the offering. If the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated among the selling Holders in proportion (as nearly as practicable to) the number of Registrable Securities owned by each selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares. Notwithstanding the foregoing, in no event shall (i) the number of Registrable Securities included in the offering be reduced unless all other securities (other than securities to be sold by the Company) are first entirely excluded from the offering, or (ii) the number of Registrable Securities included in the offering be reduced below

 

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thirty percent (30%) of the total number of securities included in such offering, unless such offering is the IPO, in which case the selling Holders may be excluded further if the underwriters make the determination described above and no other stockholder’s securities are included in such offering. For purposes of the provision in this Section 2.3(b) concerning apportionment, for any selling Holder that is a partnership, limited liability company, or corporation, the partners, members, retired partners, retired members, stockholders, and Affiliates of such Holder, or the estates and Immediate Family Members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate number of Registrable Securities owned by all Persons included in such “selling Holder” as defined in this sentence.

 

2.4                               Obligations of the Company. Whenever required under this Section 2 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:

 

(a)                                      prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, subject to the provisions of Section 2.1(c), keep such registration statement effective for a period of up to one hundred twenty (120) days or, if earlier, until the distribution contemplated in the registration statement has been completed; provided, however, that such one hundred twenty (120) day period shall be extended for a period of time equal to the period the Holder refrains, at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in such registration;

 

(b)                                      prepare and file with the SEC such amendments and supplements to such registration statement, and the prospectus used in connection with such registration statement, as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such registration statement;

 

(c)                                       furnish to the selling Holders such numbers of copies of a prospectus, including a preliminary prospectus, as required by the Securities Act, and such other documents as the Holders may reasonably request in order to facilitate their disposition of their Registrable Securities;

 

(d)                                      use its commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the selling Holders; provided that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;

 

(e)                                       in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter(s) of such offering;

 

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(f)                                        use its commercially reasonable efforts to cause all such Registrable Securities covered by such registration statement to be listed on a national securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities issued by the Company are then listed;

 

(g)                                       provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;

 

(h)                                      subject to the execution and delivery of a confidentiality agreement in form and substance satisfactory to the Company, promptly make available for inspection by the selling Holders, any managing underwriter(s) participating in any disposition pursuant to such registration statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holders, all financial and other records, pertinent corporate documents, and properties of the Company, and cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent, in each case, as necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection therewith;

 

(i)                                          notify each selling Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus forming a part of such registration statement has been filed; and

 

(j)                                         after such registration statement becomes effective, notify each selling Holder of any request by the SEC that the Company amend or supplement such registration statement or prospectus.

 

2.5                               Furnish Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as is reasonably required to effect the registration of such Holder’s Registrable Securities.

 

2.6                               Expenses of Registration. All expenses (other than Selling Expenses) incurred in connection with registrations, filings, or qualifications pursuant to Section 2, including all registration, filing, and qualification fees; printers’ and accounting fees; fees and disbursements of counsel for the Company; and the reasonable fees and disbursements not to exceed $25,000 of one counsel for the selling Holders (“Selling Holder Counsel”), shall be borne and paid by the Company; provided, however, that the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 2.1 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered (in which case all selling Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be included in the withdrawn registration), unless the Holders of a majority of the Registrable Securities agree to forfeit their right to one registration pursuant to Section 2.1(a) or Section 2.1(b), as the case may

 

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be; provided further that if, at the time of such withdrawal, the Holders have learned of a material adverse change in the condition, business, or prospects of the Company from that known to the Holders at the time of their request and have withdrawn the request with reasonable promptness after learning of such information, then the Holders shall not be required to pay any of such expenses and shall not forfeit their right to one registration pursuant to Section 2.1Ca) or Section 2.1(b). All Selling Expenses relating to Registrable Securities registered pursuant to this Section 2 shall be borne and paid by the Holders pro rata on the basis of the number of Registrable Securities registered on their behalf.

 

2.7                               Delay of Registration. No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any registration pursuant to this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2.

 

2.8                               Indemnification.  If any Registrable Securities are included in a registration statement under this Section 2:

 

(a)                                 To the extent permitted by law, the Company will indemnify and hold harmless each selling Holder, and the partners, members, officers, directors, and stockholders of each such Holder; legal counsel and accountants for each such Holder; any underwriter (as defined in the Securities Act) for each such Holder; and each Person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Damages, and the Company will pay to each such Holder, underwriter, controlling Person, or other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 2.8(a) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable for any Damages to the extent that they arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of any such Holder, underwriter, controlling Person, or other aforementioned Person expressly for use in connection with such registration.

 

(b)                                 To the extent permitted by law, each selling Holder, severally and not jointly, will indemnify and hold harmless the Company, and each of its directors, each of its officers who has signed the registration statement, each Person (if any), who controls the Company within the meaning of the Securities Act, legal counsel and accountants for the Company, any underwriter (as defined in the Securities Act), any other Holder selling securities in such registration statement, and any controlling Person of any such underwriter or other Holder, against any Damages, in each case only to the extent that such Damages arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of such selling Holder expressly for use in connection with such registration; and each such selling Holder will pay to the Company and each other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained in this

 

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Section 2.8(b) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; and provided further that in no event shall any indemnity under this Section 2.8(b) exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of fraud or willful misconduct by such Holder.

 

(c)                                       Promptly after receipt by an indemnified party under this Section 2.8 of notice of the commencement of any action (including any governmental action) for which a party may be entitled to indemnification hereunder, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.8, give the indemnifying party notice of the commencement thereof. The indemnifying party shall have the right to participate in such action and, to the extent the indemnifying party so desires, participate jointly with any other indemnifying party to which notice has been given, and to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such action.

 

(d)                                      Notwithstanding anything else herein to the contrary, the foregoing indemnity agreements of the Company and the selling Holders are subject to the condition that, insofar as they relate to any Damages arising from any untrue statement or alleged untrue statement of a material fact contained in, or omission or alleged omission of a material fact from, a preliminary prospectus (or necessary to make the statements therein not misleading) that has been corrected in the form of prospectus included in the registration statement at the time it becomes effective, or any amendment or supplement thereto filed with the SEC pursuant to Rule 424(b) under the Securities Act (the “Final Prospectus”), such indemnity agreement shall not inure to the benefit of any Person if a copy of the Final Prospectus was furnished to the indemnified party and such indemnified party failed to deliver, at or before the confirmation of the sale of the shares registered in such offering, a copy of the Final Prospectus to the Person asserting the loss, liability, claim, or damage in any case in which such delivery was required by the Securities Act.

 

To provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (i) any party otherwise entitled to indemnification hereunder makes a claim for indemnification pursuant to this Section 2.8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case, notwithstanding the fact that this Section 2.8 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any party hereto for which indemnification is provided under this Section 2.8, then, and in each such case, such parties will contribute to the aggregate losses, claims, damages, liabilities, or expenses to which they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative fault of each of the indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that

 

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resulted in such loss, claim, damage, liability, or expense, as well as to reflect any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or allegedly untrue statement of a material fact, or the omission or alleged omission of a material fact, relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission; provided, however, that, in any such case, (x) no Holder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered and sold by such Holder pursuant to such registration statement, and (y) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation; and provided further that in no event shall a Holder’s liability pursuant to this Section 2.8(e), when combined with the amounts paid or payable by such Holder pursuant to Section 2.8(b), exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of willful misconduct or fraud by such Holder.

 

(f)                                   Unless otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the Company and Holders under this Section 2.8 shall survive the completion of any offering of Registrable Securities in a registration under this Section 2, and otherwise shall survive the termination of this Agreement.

 

2.9                               Reports Under Exchange Act. With a view to making available to the Holders the benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S 3, the Company shall:

 

(a)                                      make and keep available adequate current public information, as those terms are understood and defined in SEC Rule 144, at all times after the effective date of the registration statement filed by the Company for the IPO;

 

(b)                                      use commercially reasonable efforts to file with the SEC 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 the Company has become subject to such reporting requirements); and

 

(c)                                       furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) to the extent accurate, a written statement by the Company that it has complied with the reporting requirements of SEC Rule 144 (at any time after ninety (90) days after the effective date of the registration statement filed by the Company for the IPO), the Securities Act, and the Exchange Act (at any time after the Company has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S 3 (at any time after the Company so qualifies); (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company; and (iii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC that permits the selling of any such securities without

 

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registration (at any time after the Company has become subject to the reporting requirements under the Exchange Act) or pursuant to Form S 3 (at any time after the Company so qualifies to use such form).

 

2.10 Limitations on Subsequent Registration Rights. From and after the date of this Agreement, the Company shall not, without the prior written consent of the Holders of a majority of the Registrable Securities then outstanding, enter into any agreement with any holder or prospective holder of any securities of the Company that would allow such holder or prospective holder (i) to include such securities in any registration unless, under the terms of such agreement, such holder or prospective holder may include such securities in any such registration only to the extent that the inclusion of such securities will not reduce the number of the Registrable Securities of the Holders that are included or (ii) to demand registration of any securities held by such holder or prospective holder; provided that this limitation shall not apply to any additional Investor who becomes a party to this Agreement in accordance with Section 6.9.

 

2.11 “Market Stand off’ Agreement. Each party agrees that, so long as it holds any voting securities of the Company, upon request by the Company or the underwriters managing the initial public offering of the Company’s securities, it will not sell or otherwise transfer or dispose of any securities of the Company (other than those permitted to be included in the registration and other transfers to affiliates permitted by law) without the prior written consent of the Company or such underwriters, as the case may be, for a period commencing on the date of the final prospectus for the offering and ending on the date specified by the Company and the underwriter; provided however that such period shall not exceed the greater of: (a) one hundred eighty (180) days, or (b) if required by such underwriter, such longer period of time as is necessary to enable the underwriter to issue a research report, analyst recommendation or opinion in accordance with the then-applicable rules and regulations of the Financial Regulatory Authority, Inc. and the applicable stock exchange, but in no event in excess of two hundred ten (210) days following the date of the final prospectus relating to such offering. The foregoing provision of this Section 2.11 shall not apply to the sale of any securities of the Company to an underwriter pursuant to any underwriting agreement, and shall only be applicable to the Holders if all officers, directors and holders of one percent (1%) or more of the Company’s outstanding share capital enter into similar agreements, and if the Company or any underwriter releases any officer, director or holder of one percent (1%) or more of the Company’s outstanding share capital from his, her or its sale restrictions so undertaken, then each Holder shall be notified prior to such release and shall itself be simultaneously released to the same proportional extent. The Company shall require all future acquirers of the Company’s securities holding at least one percent (1%) of the then outstanding share capital of the Company to execute prior to a qualified public offering a market stand-off agreement containing substantially similar provisions as those contained in this Section 2,11.

 

2.12 Restrictions on Transfer.

 

(a)                                 No shares of the Preferred Stock or the Registrable Securities shall be sold, pledged, or otherwise transferred, and the Company shall not recognize any such sale, pledge, or transfer, except upon the conditions specified in this Agreement, which conditions are intended to ensure compliance with the provisions of the Securities Act. A transferring Holder

 

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will cause any proposed purchaser, pledgee, or transferee of any shares of Preferred Stock and the Registrable Securities held by such Holder to agree to take and hold such securities subject to the provisions and upon the conditions specified in this Agreement.

 

(b)                                      Notwithstanding the provisions of subsection (a) above, no such restriction shall apply to a transfer by a Holder that is (A) a partnership transferring to its partners or former partners in accordance with partnership interests, (B) a corporation transferring to a wholly owned subsidiary or a parent corporation that owns all of the capital stock of the Holder, (C) a limited liability company transferring to its members or former members in accordance with their interest in the limited liability company, or (D) an individual transferring to the Holder’s family member or trust for the benefit of an individual Holder; provided that in each case the transferee will agree in writing to be subject to the terms of this Agreement to the same extent as if he were an original Holder hereunder.

 

(c)                                       Each certificate or instrument representing (i) Preferred Stock, (ii) the Registrable Securities, and (iii) any other securities issued in respect of the securities referenced in clauses (i) and (ii), upon any stock split, stock dividend, recapitalization, merger, consolidation, or similar event, shall (unless otherwise permitted by the provisions of Section 2.12(b))  be stamped or otherwise imprinted with a legend substantially in the following form:

 

THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD, PLEDGED, OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A VALID EXEMPTION FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.

 

THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN INVESTOR RIGHTS AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY,

 

The Holders consent to the Company making a notation in its records and giving instructions to any transfer agent of the Restricted Securities in order to implement the restrictions on transfer set forth in this Section 2.12.

 

(d)                                 If, after a registration statement filed under this Section 2 becomes effective, the Company advises the Holders that the Company considers it appropriate for the registration statement to be amended or the prospectus to be supplemented, the Holders shall suspend any further sales of their Registrable Securities until the Company advises them that the registration statement has been amended or the prospectus has been supplemented.

 

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2.13 Termination of Registration Rights. The right of any Holder to request registration or inclusion of Registrable Securities in any registration pursuant to Section 2.1 or Section 2.2 shall terminate upon the earliest to occur of:

 

(a)                                      the closing of a Deemed Liquidation Event, as such term is defined in the Second Restated Certificate; and

 

(b)                                      when all of such Holder’s Registrable Securities could be sold without restriction under SEC Rule 144 within any ninety (90) day period.

 

3.                                      Information and Observer Rights.

 

3.1                               Delivery of Financial Statements. The Company shall deliver to each Major Investor:

 

(a)                                      as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company, annual, quarterly, and monthly financial statements, and other information as determined by the Board;

 

(b)                                      thirty (30) days prior to the end of each fiscal year, a comprehensive operating budget forecasting the Company’s revenues, expenses, and cash position on a month-to-month basis for the upcoming fiscal year; and

 

(c)                                       promptly following the end of each quarter an up-to-date capitalization table, if requested, certified by the Chief Financial Officer or Chief Executive Officer of the Company.

 

(d)                                      If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries.

 

(e)                                       The financial statements to be delivered to each Major Investor shall be prepared in accordance with GAAP (other than the inclusion of full footnotes) applied on a consistent basis throughout the periods indicated, and in a manner reasonably capable of being audited at a certain date.

 

(f)                                        Notwithstanding anything else in this Section 3.1 to the contrary, the Company may cease providing the information set forth in this Section 3.1 during the period starting with the date thirty (30) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.

 

3.2                               Inspection. The Company shall permit each Major Investor who is not a competitor of the Company, at such Major Investor’s expense, to visit and inspect the

 

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Company’s properties; examine its books of account and records; and discuss the Company’s affairs, finances, and accounts with its officers, upon reasonable notice, during normal business hours of the Company as may be reasonably requested by the Major Investor; provided, however, that the Company shall not be obligated pursuant to this Section 3.2 to provide access to any information that it reasonably considers to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel.

 

3.3                               Termination of Information. The covenants set forth in Section 3.1, and Section 3.2 shall terminate and be of no further force or effect (i) immediately before the consummation of the IPO, or (ii) when the Company first becomes subject to the periodic reporting requirements of Section 12(g) or 15(d) of the Exchange Act, whichever event occurs first.

 

3.4                               Confidentiality. Each Investor agrees that such Investor will keep confidential and will not disclose, divulge, or use for any purpose (other than to monitor its investment in the Company) any confidential information obtained from the Company pursuant to the terms of this Agreement (including notice of the Company’s intention to file a registration statement), unless such confidential information (a) is known or becomes known to the public in general (other than as a result of a breach of this Section 3.5 by such Investor), (b) is or has been independently developed or conceived by the Investor without use of the Company’s confidential information, or (c) is or has been made known or disclosed to the Investor by a third party without a breach of any obligation of confidentiality such third party may have to the Company; provided, however, that an Investor may disclose confidential information (i) to its attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company; (ii) to any prospective purchaser of any Registrable Securities from such Investor, if such prospective purchaser is not a competitor of the Company and agrees to be bound by the provisions of this Section 3.5; (iii) to any Affiliate, partner, member, stockholder, or wholly owned subsidiary of such Investor in the ordinary course of business, provided that such Investor informs such Person that such information is confidential and directs such Person to maintain the confidentiality of such information; or (iv) as may otherwise be required by law, provided that the Investor promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure.

 

4.                                      Rights to Future Stock Issuances.

 

4.1                               Right of First Offer. Subject to the terms and conditions of this Section 4.1 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its Affiliates, partners or members in such proportions as it deems appropriate.

 

(a)                                 The Company shall give notice (the “Offer Notice”) to each Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such

 

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New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.

 

(b)                                      By notification to the Company within twenty (20) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Stock or Series B Preferred Stock and any other Derivative Securities and/or Common Stock then held, by such Investor bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and other Derivative Securities). At the expiration of such twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Common Stock issued and held, or issuable upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 4.1(b) shall occur within the later of one hundred twenty (120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 4.1(c).

 

(c)                                       If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 4.1(b), the Company may, during the ninety (90) day period following the expiration of the periods provided in Section 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more materially favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors in accordance with this Section 4.1.

 

(d)                                      The right of first offer in this Section 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Second Restated Certificate), (ii) New Securities that the Company proposes to issue in connection with a merger, consolidation, other business combination, or acquisition of assets or securities that is approved by the Board of Directors of the Company and (iii) the issuance of shares of Series B Preferred Stock to Additional Purchasers pursuant to Section 1.3 of the Purchase Agreement.

 

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5.                                      Additional Covenants.

 

5.1                               Insurance. If the Board of Directors determines it advisable, the Company will use commercially reasonable efforts to cause to be maintained until such time as the Board of Directors determines that such insurance should be discontinued its (i) Directors and Officers Errors and Omissions insurance, and (ii) term “key person” insurance on the Key Employee in an amount satisfactory to the Board.

 

5.2                               Confidential Information/Non-Disclosure Agreements. The Company will cause each person now or hereafter employed by it or by any subsidiary (or engaged by the Company or any subsidiary as a consultant/independent contractor), including each founder of the Company, with access to confidential information and/or trade secrets to enter into a nondisclosure and proprietary rights assignment agreement. In addition, Jon Edelson will enter into a one-year non-competition and non-disclosure agreement in a form reasonably acceptable to the Investors.

 

5.3                               Employee Vesting. Unless otherwise approved by the Board of Directors and except for any vesting provision applicable to any agreement with Jon Edelson, all future employees and consultants of the Company who purchase, receive options to purchase, or receive awards of shares of the Company’s capital stock after the date hereof shall be required to execute restricted stock or option agreements, as applicable, providing for (i) vesting of shares over a four (4) year period, with the first twenty-five percent (25%) of such shares vesting following twelve (12) months of continued employment or service, and the remaining shares vesting in equal monthly installments over the following thirty-six (36) months, and (ii) a market stand-off provision substantially similar to that in Section 2.11. In addition, unless otherwise approved by the Board of Directors, the Company shall retain a “right of first refusal” on employee transfers until the Company’s IPO and shall have the right to repurchase unvested shares at cost upon termination of employment of a holder of restricted stock. The vesting provision applicable to any future stock option grant or restricted stock agreement with Jon Edelson will be subject to approval by the Board of Directors.

 

5.4                               Meetings of the Board of Directors. Unless otherwise determined by the vote of a majority of the directors then in office, the Board of Directors shall meet at least quarterly (unless more often as otherwise agreed by a vote of the majority of Directors) each year in accordance with an agreed-upon schedule. In addition, the Series A Director and the Series B Director will each have the right to participate in each committee created by the Board.

 

5.5                               Successor Indemnification. If the Company or any of its successors or assignees consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, then to the extent necessary, proper provision shall be made so that the successors and assignees of the Company assume the obligations of the Company with respect to indemnification of members of the Board of Directors as in effect immediately before such transaction, whether such obligations are contained in the Company’s Bylaws, its Certificate of Incorporation, or elsewhere, as the case may be.

 

5.6                               Board Expenses. The Company shall reimburse the non-employee directors for all reasonable out-of-pocket travel expenses incurred (consistent with the Company’s travel policy) in connection with attending meetings of the Board of Directors.

 

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5.7                               Termination of Covenants. The covenants set forth in this Section 5, except for Section 5.6, shall terminate and be of no further force or effect (i) immediately before the consummation of the IPO, (ii) upon a Deemed Liquidation Event, as such term is defined in the Second Restated Certificate, or (iii) a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from the Company or stockholders of the Company Shares representing more than fifty percent (50%) of the outstanding voting power of the Company, whichever event occurs first.

 

6.                                           Miscellaneous,

 

6.1                               Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors, assigns, heirs, executors, and administrators and shall inure to the benefit of and be enforceable by each person who shall be a holder of Registrable Securities from time to time; provided, however, that prior to the receipt by the Company of adequate written notice of the transfer of any Registrable Securities specifying the full name and address of the transferee, the Company may deem and treat the person listed as the holder of such shares in its records as the absolute owner and holder of such shares for all purposes, including the payment of dividends or any redemption price.

 

6.2                               Governing Law. This Agreement and any controversy arising out of or relating to this Agreement shall be governed by and construed in accordance with the General Corporation Law of the State of Delaware as to matters within the scope thereof, and as to all other matters shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflict of law principles that would result in the application of any law other than the law of the State of New York,

 

6.3                               Counterparts; Facsimile. This Agreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

6,4                               Titles and Subtitles. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.

 

6.5                               Notices. All notices, requests, and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given, delivered and received (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the business day of deposit with a nationally recognized overnight courier, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their addresses as set forth on Schedule A, Schedule B or Schedule C (as applicable) hereto, or to the principal office of the Company and to the attention of the Chief Executive Officer, in the case of the Company, or to such email address, facsimile number, or address as subsequently modified by written notice given in accordance with this Section 6.5. If notice is given to the Company, a copy shall also be sent to Faber Daeufer & Rosenberg PC, 950 Winter

 

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Street, Suite 4500, Waltham, MA 02451, Attention: Joseph L. Faber, Esq., Facsimile: (781) 7954747, and if notice is given to the Purchasers, a copy shall also be given to Morgan Lewis & Bockius, 2 Palo Alto Square, 3000 El Camino Real, Suite 700, Palo Alto, California 94306, Attention: Thomas W. Kellerman, Esq., Facsimile: (650) 843-4001.

 

6.6                               Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the Company and the holders of a majority of the Registrable Securities then outstanding; provided that any provision hereof may be waived by any waiving party on such party’s own behalf, without the consent of any other party. Notwithstanding the foregoing, this Agreement may not be amended or terminated and the observance of any term hereof may not be waived with respect to any Investor without the written consent of such Investor, unless such amendment, termination, or waiver applies to all Investors in the same fashion (it being agreed that a waiver of the provisions of Section 4 with respect to a particular transaction shall be deemed to apply to all Investors in the same fashion if such waiver does so by its terms, notwithstanding the fact that certain Investors may nonetheless, by agreement with the Company, purchase securities in such transaction). The Company shall give prompt notice of any amendment or termination hereof or waiver hereunder to any party hereto that did not consent in writing to such amendment, termination, or waiver. Any amendment, termination, or waiver effected in accordance with this Section 6.6 shall be binding on all parties hereto, regardless of whether any such party has consented thereto. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.

 

6.7                               Severability. In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.

 

6.8                               Aggregation of Stock. All shares of Registrable Securities held or acquired by Affiliates shall be aggregated together for the purpose of determining the availability of any rights under this Agreement.

 

6.9                               Additional Investors. Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of the Company’s Preferred Stock after the date hereof, any purchaser of such shares of Preferred Stock may become a party to this Agreement by executing and delivering an additional counterpart signature page to this Agreement, and thereafter shall be deemed an “Investor” for all purposes hereunder. No action or consent by the Investors shall be required for such joinder to this Agreement by such additional Investor, so long as such additional Investor has agreed in writing to be bound by all of the obligations as an “Investor” hereunder.

 

6.10 Entire Agreement. This Agreement (including any Schedules and Exhibits hereto) constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the

 

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subject matter hereof existing between the parties is expressly canceled. Upon the effectiveness of this Agreement, the Prior Agreement shall terminate and be of no further force and effect and shall be superseded and replaced in its entirety by this Agreement.

 

[Remainder of Page Intentionally Left Blank

 

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IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

	
 
    	
COMPANY:
    
	
 
    	
 
    
	
 
    	
ANTERIOS, INC.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Jon Edelson
    
	
 
    	
 
    
	
 
    	
Name:   Jon Edelson
    
	
 
    	
 
    
	
 
    	
Title:   CEO and President
    


 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
SHD   Anterios Partners, LLC
    
	
 
    	
 
    
	
 
    	
By:   Scientific Health Development, Ltd., its sole manager
    
	
 
    	
By:   SHD GP, LLC, its general partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Carter Meyer
    
	
 
    	
Carter   Meyer, Chief Executive Officer
    


 

SIGNATURE PAGE TO INVESTORS’ RIGHTS AGREEMENT

 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
QUANTUM   TECHNOLOGY PARTNER IV, L.P.
    
	
 
    	
 
    
	
 
    	
By:   Quantum Technology Management Company IV, LLC, its General Partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Barry Dickman
    
	
 
    	
Barry   Dickman
    


 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
ASCENT   BIOMEDICAL VENTURES I, LP
    
	
 
    	
 
    
	
 
    	
By:   ABV, LLC, its General Partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Geoffrey W. Smith
    
	
 
    	
Name:   Geoffrey W. Smith
    
	
 
    	
Title:   Director
    


 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
ASCENT   BIOMEDICAL VENTURES I NY, LP
    
	
 
    	
 
    
	
 
    	
By:   ABV, LLC, its General Partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Geoffrey W. Smith
    
	
 
    	
Name:   Geoffrey W. Smith
    
	
 
    	
Title:   Director
    


 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
TRUST   OF CRAIG D. FRIEDMAN
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Craig D. Friedman
    
	
 
    	
Name:   Craig D. Friedman, MD FACS
    


 









 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
BARCLAYS   CAPITAL, INC. CUSTODIAN FBO

DAVID   B. MUSKET IRA
    
	
 
    	
 
    
	
 
    	
By:   Barclays Capital, Inc. Custodian FBO David B. Musket

IRA,   its general partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s.   David B. Musket
    
	
 
    	
Beneficiary
    


 











IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
BARCLAYS   CAPITAL, INC. CUSTODIAN FBO JACQUELINE C. WHITNEY IRA
    
	
 
    	
 
    
	
 
    	
By:   Barclays Capital, Inc. Custodian FBO Jacqueline C>

Whitney   IRA, its general partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Jacqueline C. Whitney
    


 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
MPH   ENTERPRISES LLC
    
	
 
    	
 
    
	
 
    	
By:   MPH Enterprises, LLC, its general partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Morton Hyman
    


 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
SA   CAPITAL GROUP LLC
    
	
 
    	
 
    
	
 
    	
By:   SA Capital Group LLC, its general partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s./   Noah P. Dorsky
    


 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
NEAL   WEINSTEIN AND REBECCA WEINSTEIN
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s./   Neal Weinstein
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Rebecca Weinstein
    


 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
PETER   SOLLETT
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Peter Sollett
    


 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
JAY   PETSCHEK
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Jay Petschek
    


 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
DAVID   YASPAN
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   David Yaspan
    


 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
JEFFREY   SCHAB
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Jeffrey Schab
    


 











 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Investors’ Rights Agreement as of the date set forth in the first paragraph hereof.

 

 

	
 
    	
INVESTOR:
    
	
 
    	
 
    
	
 
    	
MAJOR   FAMILY PARTNERSHIP
    
	
 
    	
 
    
	
 
    	
By:   Major Family Partnership, its general partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Seth Feuerstein
    


 









 

	
KEY   HOLDER:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
/s/   Jon Edelson
    	
 
    
	
Jonathon   Edelson, MD
    	
 
    


 











 

	
KEY   HOLDER:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
/s/   Rachel Edelson
    	
 
    
	
Rachel   Edelson, MD
    	
 
    


 











 

	
KEY   HOLDER:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
EDELSON   TRUST F/B/O ZACHARY EDELSON
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
/s/   Rachel Edelson, Trustee
    	
 
    
	
Duly   authorized
    	
 
    


 











 

	
KEY   HOLDER:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
EDELSON   TRUST F/B/O ELI EDELSON
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
/s/   Rachel Edelson, Trustee
    	
 
    
	
Duly   authorized
    	
 
    












 

	
KEY   HOLDER:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
/s/   Stephen McCarthy
    	
 
    
	
Stephen   McCarthy, PhD
    	
 
    


 











 

	
KEY   HOLDER:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
/s/   Robert Nicolosi
    	
 
    
	
Robert   Nicolosi, PhD
    	
 
    


 











 

	
KEY   HOLDER:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
/s/   Bal Ram Singh
    	
 
    
	
Bal   Ram Singh, PhD