ex_163836.htm


Exhibit 10.59


 


 


 


FORM OF REGISTRATION RIGHTS AGREEMENT


 


This Registration Rights Agreement (this “Agreement”) is made and entered into effective as of [                                       ], 2019, by and among Viveve Medical, Inc., a Delaware corporation (the “Company”), and CRG Partners III L.P., CRG Partners III - Parallel Fund “A” L.P., CRG Partners III – Parallel Fund “B” (Cayman) L.P., and CRG Partners II (Cayman) Lev AIV I L.P. (together, “CRG” or the “Purchasers”, with each of the purchasing entities, a “Purchaser”).


 


RECITALS:


 


WHEREAS, the Company (in consideration for the conversion and modification of certain of its outstanding debt) has offered and sold in compliance with Section 4(a)(2) under the Securities Act to accredited investors in a private placement offering (the “Offering”) shares of Series B Preferred Stock of the Company, par value $0.0001 per share (the “Shares”) and warrants (the “Warrants”) to purchase share of common stock of the Company, par value $0.0001 per share, pursuant to that certain Series B Preferred Stock and Warrant Purchase Agreement dated November 12, 2019 entered into by and among the Company and the Purchasers (the “Purchase Agreement”); and


 


WHEREAS, the Company has agreed to enter into a registration rights agreement with each of the Purchasers;


 


NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants, and conditions set forth herein, the parties mutually agree as follows:


 


1.     Definitions. As used in this Agreement, the following terms shall have the following respective meanings:


 


“Approved Market” means the Nasdaq Stock Market, the New York Stock Exchange or the NYSE MKT.


 


“Business Day” means any day of the year, other than a Saturday, Sunday, or other day on which banks in the State of New York are required or authorized to close.


 


“Commission” means the U. S. Securities and Exchange Commission or any other federal agency at the time administering the Securities Act.


 


“Common Stock” means the common stock, par value $0.0001 per share, of the Company and any and all shares of capital stock or other equity securities of: (i) the Company that are added to or exchanged or substituted for the Common Stock by reason of the declaration of any stock dividend or stock split, the issuance of any distribution or the reclassification, readjustment, recapitalization or other such modification of the capital structure of the Company; and (ii) any other corporation, now or hereafter organized under the laws of any state or other governmental authority, with which the Company is merged, which results from any consolidation or reorganization to which the Company is a party, or to which is sold all or substantially all of the shares or assets of the Company, if immediately after such merger, consolidation, reorganization or sale, the Company or the stockholders of the Company own equity securities having in the aggregate more than 50% of the total voting power of such other corporation.


 


“Demand Registration” shall have the meaning set forth in Section 3(a) hereof.


 


“Effective Date” means the date of the final closing of the Offering (excluding any exercise of the over-allotment option).


 



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“Effectiveness Period” shall have the meaning set forth in Section 3(a) hereof.


 


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


 


“Family Member” means (a) with respect to any individual, such individual’s spouse, any descendants (whether natural or adopted), any trust all of the beneficial interests of which are owned by any of such individuals or by any of such individuals together with any organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, the estate of any such individual, and any corporation, association, partnership or limited liability company all of the equity interests of which are owned by those above described individuals, trusts or organizations and (b) with respect to any trust, the owners of the beneficial interests of such trust.


 


“Holder” means the holder or holders, as the case may be, from time to time of Registrable Securities and any Permitted Assignees who acquire rights in accordance with this Agreement with respect to any Registrable Securities.


 


“Majority Holders” means, at any time, Holders of a majority of the Registrable Securities then outstanding.


 


“Permitted Assignee” means (a) with respect to a partnership, its partners or former partners in accordance with their partnership interests, (b) with respect to a corporation, its stockholders in accordance with their interest in the corporation, (c) with respect to a limited liability company, its members or former members in accordance with their interest in the limited liability company, (d) with respect to an individual party, any Family Member of such party, (e) an entity that is controlled by, controls, or is under common control with a transferor, or (f) a party to this Agreement.


 


“Piggyback Registration” means, in any registration of Common Stock referenced in Section 3(b), the right of each Holder to include the Registrable Securities of such Holder in such registration.


 


“Preferred Stock” means the shares of the Company’s Series B Convertible Preferred Stock issued to the Purchasers pursuant to the Purchase Agreement.


 


The terms “register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement by the Commission.


 


“Registrable Securities” means (a) the shares of Common Stock issued or issuable upon conversion of any of the Shares, (b) the shares of Common Stock issued or issuable upon exercise of any of the Warrants, and (c) any shares of Common Stock issued or issuable with respect to any shares described in subsections (a) or (b) above by way of a stock dividend or stock split or in exchange for or upon conversion of such shares or otherwise in connection with a combination of shares, distribution, recapitalization, merger, consolidation, other reorganization or other similar event with respect to the Common Stock; provided, however, that any such Registrable Securities shall cease to be Registrable Securities on the date that is two (2) years from the date the Registration Statement with respect to the sale of such Registrable Securities is declared effective by the Commission under the Securities Act or such shorter period ending on the earlier of the date on which (i) such Registrable Securities have been disposed of by the Holder in accordance with such Registration Statement, or (ii) all Registrable Securities held by such Holder may be sold under Rule 144 without restriction (including, without limitation, volume restrictions and manner-of-sale) and without the need for current public information required by Rule 144(c)(1).


 



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“Registration Statement” means any registration statement of the Company, including the prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits and all material incorporated by reference in such registration statement.


 


“Rule 144” means Rule 144 promulgated by the Commission under the Securities Act, as such rule may be amended or supplemented from time to time, or any similar successor rule that may be promulgated by the Commission.


 


“Rule 145” means Rule 145 promulgated by the Commission under the Securities Act, as such rule may be amended or supplemented from time to time, or any similar successor rule that may be promulgated by the Commission.


 


“Rule 415” means Rule 415 promulgated by the Commission under the Securities Act, as such rule may be amended or supplemented from time to time, or any similar successor rule that may be promulgated by the Commission.


 


“Securities Act” means the Securities Act of 1933, as amended, or any similar federal statute promulgated in replacement thereof, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.


 


“SEC Effective Date” means the date the Registration Statement is declared effective by the Commission.


 


“Shares” means the shares of Preferred Stock set forth in the Recitals.


 


“Trading Day” means any day on which the Nasdaq Capital Market, or such other securities market or quotation system, which at the time constitutes the principal securities market for the Common Stock, is open for general trading of securities.


 


“Warrants” means the warrants to purchase Common Stock issued pursuant to the Purchase Agreement as set forth in the Recitals.


 


Capitalized terms used herein without definition have the meanings ascribed to them in the Purchase Agreement.


 


2.     Term. The registration rights provided to the Holders of Registrable Securities hereunder, and the Company’s obligation to keep the Registration Statements effective, shall terminate on the earlier of (i) the date at which there are no longer any Registrable Securities outstanding, or (ii) the Effectiveness Period. Notwithstanding the foregoing, Section 6, Section 7, Section 9, and Section 11 shall survive the termination of this Agreement.


 



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3.     Registration.


 


(a)     Demand Registration. Upon expiration of the Lock-Up Period as provided in the Purchase Agreement, the holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all of the Registrable Securities that are not then registered on an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 or any other form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the resale by the Holders of all of the Registrable Securities (each, a “Demand Registration”). Upon receipt of such request, the Company shall promptly (but in no event later than twenty (20) calendar days after receipt of such request) deliver notice of such request to all other holders of Registrable Securities who shall then have ten (10 calendar days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall (i) use its commercially reasonable efforts to make the initial filing of the Registration Statement within ninety (90) calendar days after the date on which the initial request is given (ii) use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter, and (iii) use its commercially reasonable efforts to keep such Registration Statement effective until the date on which all securities under such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). The Registration Statement filed hereunder shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) that “Plan of Distribution” in substantially the form attached hereto as Annex A. Notwithstanding the foregoing, in the event that the staff (the “Staff”) of the Commission should limit the number of Registrable Securities that may be sold pursuant to the Registration Statement, the Company may remove from the Registration Statement such number of Registrable Securities as specified by the Commission on behalf of all of the holders of Registrable Securities on a pro rata basis among the holders thereof. In such event, the Company shall give the Purchasers prompt notice of the number of Registrable Securities excluded therefrom. The Company shall not be required to effect a registration pursuant to Form S-3 (or any other form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the resale by the Holders of all of the Registrable Securities) more than two (2) times for the holders of Registrable Securities as a group.


 


(b)     Piggyback Registration. If, after the SEC Effective Date, the Company shall determine to register for sale for cash any of its Common Stock, for its own account or for the account of others (other than the Holders), other than (i) a registration relating solely to employee benefit plans or securities issued or issuable to employees, consultants (to the extent the securities owned or to be owned by such consultants could be registered on Form S-8 (or its then equivalent form) or any of their Family Members (including a registration on Form S-8 (or its then equivalent form)), (ii) a registration relating solely to a Securities Act Rule 145 transaction or a registration on Form S-4 (or its then equivalent form) in connection with a merger, acquisition, divestiture, reorganization or similar event, or (iii) a transaction relating solely to the sale of debt or convertible debt instruments, then the Company shall promptly give to each Holder written notice thereof (but in no event later than twenty (20) calendar days prior to the filing of such registration statement), and shall, subject to Section 3(c), include as a Piggyback Registration all of the Registrable Securities (including any Registrable Securities that are removed from the Registration Statement as a result of a requirement by the Staff), specified in a written request delivered by the Holder thereof within ten (10) calendar days after delivery to the Holder of such written notice from the Company. However, the Company may, without the consent of such Holders, withdraw such registration statement prior to its becoming effective if the Company or such other selling stockholders have elected to abandon the proposal to register the securities proposed to be registered thereby.


 


(c)     Underwriting. If a Piggyback Registration is for a registered public offering that is to be made by an underwriting, the Company shall so advise the Holders as part of the notice given in connection with the Piggyback Registration. In that event, the right of any Holder to Piggyback 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 sell any of their Registrable Securities through such underwriting shall (together with the Company and any other stockholders of the Company selling their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter selected for such underwriting by the Company or such other selling stockholders, as applicable. Notwithstanding any other provision of this Section 3(c), if the underwriter or the Company determines that marketing factors require a limitation on the number of shares of Common Stock or the amount of other securities to be underwritten, the underwriter may exclude some or all Registrable Securities from such registration and underwriting. The Company shall so advise all Holders (except those Holders who failed to timely elect to include their Registrable Securities through such underwriting or have indicated to the Company their decision not to do so), and indicate to each such Holder the number of shares of Registrable Securities that may be included in the registration and underwriting, if any. The number of shares of Registrable Securities to be included in such registration and underwriting shall be allocated among such Holders as follows:


 



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(i)     If the Piggyback Registration was initiated by the Company, the number of shares that may be included in the registration and underwriting shall be allocated first to the Company and then, subject to obligations and commitments existing as of the date hereof, to all Holders exercising piggyback registration rights who have requested to sell in the registration on a pro rata basis according to the number of shares requested to be included therein; and


 


(ii)     If the Piggyback Registration was initiated by the exercise of demand registration rights by a stockholder or stockholders of the Company, then the number of shares that may be included in the registration and underwriting shall be allocated first to such selling stockholders who exercised such demand to the extent of their demand registration rights, subject to obligations and commitments existing as of the date hereof, to all Holders exercising piggyback registration rights who have requested to sell in the registration on a pro rata basis according to the number of shares requested to be included therein, and then, subject to obligations and commitments existing as of the date hereof, to the Company.


 


No Registrable Securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw such Holder’s Registrable Securities therefrom by delivering a written notice to the Company and the underwriter. The Registrable Securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that, if by the withdrawal of such Registrable Securities, a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities pursuant to the terms and limitations set forth herein in the same proportion used above in determining the underwriter limitation. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering.


 


(d)     Other Registrations. Until the Registration Statement required hereunder is declared effective by the Commission, the Company shall not take any action to facilitate registration under the Securities Act or enter into any agreement granting any registration rights with respect to any of its securities to any person without the written consent of Holders representing no less than a majority of the then outstanding Registrable Securities.


 


4.   Registration Procedures. The Company will keep each Holder reasonably advised as to the filing and effectiveness of the Registration Statement. At its expense with respect to the Registration Statement, the Company will:


 


(a)     prepare and file with the Commission with respect to the Registrable Securities, a Registration Statement in accordance with Section 3 hereof, and use its commercially reasonable efforts to cause such Registration Statement to become effective and to remain effective for the Effectiveness Period;


 


(b)     if the Registration Statement is subject to review by the Commission, promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the Commission;


 



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(c)     prepare and file with the Commission such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective during the Effectiveness Period;


 


(d)     prior to filing a Registration Statement or any related prospectus or any amendment or supplement thereto, the Company shall provide notice of such filing to any Holder that is directly referenced in or affected by such filing and duly consider any comments received by such Holder regarding the portion of the filing directly relating to such Holder;


 


(e)     furnish, without charge, to each Holder of Registrable Securities covered by such Registration Statement (i) a reasonable number of copies of such Registration Statement (including any exhibits thereto other than exhibits incorporated by reference), each amendment and supplement thereto as such Holder may reasonably request, (ii) such number of copies of the prospectus included in such Registration Statement (including each preliminary prospectus and any other prospectus filed under Rule 424 of the Securities Act) as such Holders may reasonably request, in conformity with the requirements of the Securities Act, and (iii) such other documents as such Holder may reasonably require to consummate the disposition of the Registrable Securities owned by such Holder, but only during the Effectiveness Period;


 


(f)     use its commercially reasonable efforts to register or qualify such registration under such other applicable securities laws of such jurisdictions within the United States as any Holder of Registrable Securities covered by such Registration Statement reasonably requests and as may be necessary for the marketability of the Registrable Securities (such request to be made by the time the applicable Registration Statement is deemed effective by the Commission) and do any and all other acts and things necessary to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder; provided, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph, (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction other than to the extent relating to the registration or sale of securities in such jurisdiction;


 


(g)     as promptly as practicable after becoming aware of such event, notify each Holder of Registrable Securities, the disposition of which requires delivery of a prospectus relating thereto under the Securities Act, of the happening of any event, which comes to the Company’s attention, that will after the occurrence of such event cause the prospectus included in such Registration Statement, if not amended or supplemented, to contain an untrue statement of a material fact or an omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading and the Company shall promptly thereafter prepare and furnish to such Holder a supplement or amendment to such prospectus (or prepare and file appropriate reports under the Exchange Act) so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, unless suspension of the use of such prospectus otherwise is authorized herein;


 


(h)     comply, and continue to comply during the Effectiveness Period, in all material respects with the Securities Act and the Exchange Act and with all applicable rules and regulations of the Commission with respect to the disposition of all securities covered by such Registration Statement;


 


(i)     as promptly as practicable after becoming aware of such event, notify each Holder of Registrable Securities being offered or sold pursuant to the Registration Statement of the issuance by the Commission of any stop order or other suspension of effectiveness of the Registration Statement;


 



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(j)     use its commercially reasonable efforts to cause all the Registrable Securities covered by the Registration Statement to be listed on the Nasdaq Capital Market or such other principal securities market or quotation system on which securities of the same class or series issued by the Company are then listed or traded or quoted;


 


(k)     provide a transfer agent and registrar, which may be a single entity, for the shares of Common Stock at all times and cooperate with the Holders to facilitate the timely preparation and delivery of the Registrable Securities to be delivered to a transferee pursuant to the Registration Statement (whether electronically or in certificated form) which Registrable Securities shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders may request;


 


(l)     cooperate with the Holders of Registrable Securities being offered pursuant to the Registration Statement to issue and deliver, or cause its transfer agent to issue and deliver, certificates representing Registrable Securities to be offered pursuant to the Registration Statement within a reasonable time after the delivery of certificates representing the Registrable Securities to the transfer agent or the Company, as applicable, and enable such certificates to be in such denominations or amounts as the Holders may reasonably request and registered in such names as the Holders may request;


 


(m)     notify the Holders or their counsel as promptly as reasonably possible and (if requested by any such person) confirm such notice in writing no later than one (1) Trading Day following the day: (i)(A) when a Prospectus or any prospectus supplement or post-effective amendment to a Registration Statement is proposed to be filed; (B) when the Commission notifies the Company whether there will be a “no review,” “review” or a “completion of a review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (in which case the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders that pertain to the Holders as a selling stockholder or to the Plan of Distribution, but not information which the Company believes would constitute material and non-public information); and (C) with respect to each Registration Statement or any post-effective amendment, when the same has been declared effective, provided, however, that such notice under this clause (C) shall be delivered to each Holder; (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or prospectus or for additional information that pertains to the Holders as selling stockholders or the Plan of Distribution; or (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose;


 


(n)     during the Effectiveness Period, refrain from bidding for or purchasing any Common Stock or any right to purchase Common Stock or attempting to induce any person to purchase any such security or right if such bid, purchase or attempt would in any way limit the right of the Holders to sell Registrable Securities by reason of the limitations set forth in Regulation M of the Exchange Act; and


 


(o)     take all other commercially reasonable actions necessary to effect the registration of such Registrable Securities contemplated by this Agreement.


 


5.     Obligations of the Holders.


 


(a)     Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4(g) hereof, such Holder shall discontinue the disposition of Registrable Securities included in the Registration Statement until such Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 4(g) hereof.


 



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(b)     Each Holder agrees, by acquisition of the Registrable Securities, that no Holder shall be entitled to sell any of such Registrable Securities pursuant to a Registration Statement or to receive a prospectus relating thereto, unless such Holder has furnished the Company with all material information required to be set forth in the Selling Securityholder Questionnaire attached to this Agreement as Annex B. Any sale of any Registrable Securities by any Holder shall constitute a representation and warranty by such Holder pursuant to a Registration Statement that such prospectus does not as of the time of such sale contain any untrue statement of a material fact regarding such Holder or omit to state any material fact regarding such Holder necessary to make the statements in such prospectus, in the light of the circumstances under which they were made, not misleading, solely to the extent such facts are based upon, and in conformity with, the information regarding such Holder furnished in writing to the Company by such Holder expressly for use in such prospectus.


 


(c)     Each Holder, by its acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder, unless such Holder has notified the Company in writing of its election to exclude all of its Registrable Securities from such Registration Statement.


 


6.    Registration Expenses. The Company shall pay all expenses in connection with any registration obligation provided herein, including, without limitation, all registration, filing, stock exchange fees, printing expenses, all fees and expenses of complying with applicable federal and state securities laws, the fees and disbursements of counsel for the Company and of the Company’s independent accountants and reasonable fees and disbursements of a single counsel of the Holders, in an amount not to exceed [$25,000]; provided, that, in any underwritten registration, the Company shall have no obligation to pay any underwriting discounts, selling commissions or transfer taxes attributable to the Registrable Securities being sold by the Holders thereof, which underwriting discounts, selling commissions and transfer taxes shall be borne by such Holders. Except as provided in Section 8 of this Agreement, the Company shall not be responsible for the expenses of any attorney or other advisor employed by a Holder.


 


7.   Board Observer Rights. For so long as any Preferred Shares remain outstanding, concurrently with delivery to the Company’s Board of Directors (the “Board”), the Company shall give a designated representative of the holders of such Preferred Shares (who may change from time to time at the sole discretion of the holders of such Shares and with prior written notice to the Company) (the “Representative”) copies of all notices, minutes, consents and other materials that the Company provides to the Board, and shall permit the Representative to attend all meetings of the Board as a non-voting observer, except that the Representative may be excluded from access to any material or meeting or portion thereof if the Board determines in good faith that (x) such exclusion is reasonably necessary to (i) preserve attorney-client privilege (which determination shall be made upon advice of counsel in the case of this clause (i)) or (ii) avoid a breach of a bona fide confidentiality obligation to third parties, so long as, in each case, the Representative is given written notice of such determination and is provided with a written summary of any information redacted from such meeting or material or (y) such material or meeting or portion thereof is about the Company’s strategy regarding the Preferred Shares, the Warrants, or the Term Loan Agreement, as may be amended from time to time, including any refinancing thereof.


 


8.    Assignment of Rights. No Holder may assign its rights under this Agreement to any party without the prior written consent of the Company; provided, however, that any Holder may assign its rights under this Agreement without such consent (a) to a Permitted Assignee as long as (i) such transfer or assignment is effected in accordance with applicable securities laws; (ii) such transferee or assignee agrees in writing to become bound by and subject to the terms of this Agreement; and (iii) such Holder notifies the Company in writing of such transfer or assignment, stating the name and address of the transferee or assignee and identifying the Registrable Securities with respect to which such rights are being transferred or assigned; or (b) as otherwise permitted under the Purchase Agreement. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party hereto (other than by merger or consolidation or to an entity which acquires the Company including by way of acquiring all or substantially all of the Company’s assets).


 



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9.     Indemnification.


 


(a)     In the event of the offer and sale of Registrable Securities under the Securities Act, the Company shall, and hereby does, indemnify and hold harmless, to the fullest extent permitted by law, each Holder, its directors, officers, partners, employees and agents, and each other person, if any, who controls or is under common control with such Holder within the meaning of Section 15 of the Securities Act, and the directors, officers, partners, employees and agents of such controlling persons (collectively, the “Holder Indemnified Parties”), from and, against any losses, claims, damages or liabilities, joint or several, and expenses to which the Holder Indemnified Party may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement of any material fact contained in any registration statement prepared and filed by the Company under which Registrable Securities were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission to state therein a material fact required to be stated or necessary to make the statements therein in the light of the circumstances in which they were made not misleading, and the Company shall reimburse the Holder Indemnified Party for any legal or any other expenses reasonably incurred by them in connection with investigating, defending or settling any such loss, claim, damage, liability, action or proceeding; provided, however, that the Company shall not be liable in any such case (i) to the extent, but only to the extent, that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon (x) an untrue statement in or omission from such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished by a Holder to the Company expressly for use in the preparation thereof or, (y) the failure of a Holder to comply with the covenants and agreements contained in Section 5 hereof respecting the sale of Registrable Securities; or (ii) if the person asserting any such loss, claim, damage, liability (or action or proceeding in respect thereof) who purchased the Registrable Securities that are the subject thereof did not receive a copy of an amended preliminary prospectus or the final prospectus (or the final prospectus as amended or supplemented) at or prior to the written confirmation of the sale of such Registrable Securities to such person because of the failure of such Holder to so provide such amended preliminary or final prospectus and the untrue statement or omission of a material fact made in such preliminary prospectus was corrected in the amended preliminary or final prospectus (or the final prospectus as amended or supplemented). Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Holder Indemnified Party and shall survive the transfer of such shares by the Holder.


 


(b)     As a condition to including Registrable Securities in any registration statement filed pursuant to this Agreement, each Holder agrees to be bound by the terms of this Section 8 and to indemnify and hold harmless, to the fullest extent permitted by law, the Company, each of its directors, officers, partners, and each underwriter, if any, and each other person, if any, who controls the Company within the meaning of Section 15 of the Securities Act (collectively the “Company Indemnified Parties”), from and against any losses, claims, damages or liabilities, joint or several, to which the Company Indemnified Party may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement of a material fact or any omission of a material fact required to be stated in any registration statement, any preliminary prospectus, final prospectus, summary prospectus, amendment or supplement thereto or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such untrue statement or omission is included or omitted in reliance upon and in conformity with written information furnished by the Holder to the Company for use in the preparation thereof, and such Holder shall reimburse the Company Indemnified Party for any legal or other expenses reasonably incurred by them in connection with investigating, defending, or settling any such loss, claim, damage, liability, action, or proceeding; provided, however, that indemnity obligation contained in this Section 9(b) shall in no event exceed the amount of the net proceeds received by such Holder as a result of the sale of such Holder’s Registrable Securities pursuant to such registration statement. Such indemnity shall remain in full force and effect, regardless of any investigation made by or on behalf of the Company Indemnified Party and shall survive the transfer by any Holder of such shares.


 



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(c)     Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in this Section 8 (including any governmental action), such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the indemnifying party of the commencement of such action; provided, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under this Section, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, unless in the reasonable judgment of counsel to such indemnified party a conflict of interest between such indemnified and indemnifying parties may exist or the indemnified party may have defenses not available to the indemnifying party in respect of such claim, the indemnifying party shall be entitled to participate in and to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof, unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption of the defenses thereof or the indemnifying party fails to defend such claim in a diligent manner, other than reasonable costs of investigation. Neither an indemnified nor an indemnifying party shall be liable for any settlement of any action or proceeding effected without its consent. No indemnifying party shall, without the consent of the 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. Notwithstanding anything to the contrary set forth herein, and without limiting any of the rights set forth above, in any event any party shall have the right to retain, at its own expense, counsel with respect to the defense of a claim. Each indemnified party shall furnish such information regarding itself or the claim in question as an indemnifying party may reasonably request in writing and as shall be reasonably required in connection with defense of such claim and litigation resulting therefrom.


 


(d)     If an indemnifying party does not or is not permitted to assume the defense of an action pursuant to Sections 9(c) or in the case of the expense reimbursement obligation set forth in Sections 9(a) and 9(b), the indemnification required by Sections 9(a) and 9(b) shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expenses, losses, damages, or liabilities are incurred.


 


(e)     If the indemnification provided for in Section 9(a) or 9(b) is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage or expense referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage or expense (i) in such proportion as is appropriate to reflect the proportionate relative fault of the indemnifying party on the one hand and the indemnified party on the other (determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission), or (ii) if the allocation provided by clause (i) above is not permitted by applicable law or provides a lesser sum to the indemnified party than the amount hereinafter calculated, then in such proportion as is appropriate to reflect not only the proportionate relative fault of the indemnifying party and the indemnified party, but also the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other, as well as any other relevant equitable considerations. No indemnified party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any indemnifying party who was not guilty of such fraudulent misrepresentation.


 



10




 




 


(f)     Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with an underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.


 


(g)     Other Indemnification. Indemnification similar to that specified in this Section (with appropriate modifications) shall be given by the Company and each Holder of Registrable Securities with respect to any required registration or other qualification of securities under any federal or state law or regulation or governmental authority other than the Securities Act.


 


10.     Independent Nature of Each Purchaser’s Obligations and Rights. The obligations of each Purchaser under this Agreement are several and not joint with the obligations of any other Purchaser, and each Purchaser shall not be responsible in any way for the performance of the obligations of any other Purchaser under this Agreement. Nothing contained herein and no action taken by any Purchaser pursuant hereto, shall be deemed to constitute such Purchasers as a partnership, an association, a joint venture, or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement. Each Purchaser shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose.


 


11.     Miscellaneous.


 


(a)     Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the United States of America and the State of New York, both substantive and remedial, without regard to New York conflicts of law principles. Any judicial proceeding brought against either of the parties to this Agreement or any dispute arising out of this Agreement or any matter related hereto shall be brought in the courts of the State of New York, New York County, or in the United States District Court for the Southern District of New York and, by its execution and delivery of this Agreement, each party to this Agreement accepts the jurisdiction of such courts. The foregoing consent to jurisdiction shall not be deemed to confer rights on any person other than the parties to this Agreement.


 


(b)     Remedies. In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, shall be entitled to specific performance of its rights under this Agreement. The Company and each Holder agree that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall not assert or shall waive the defense that a remedy at law would be adequate.


 



11




 




 


(c)     Successors and Assigns. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, Permitted Assignees, executors and administrators of the parties hereto.


 


(d)     No Inconsistent Agreements. The Company has not entered, as of the date hereof, and shall not enter, on or after the date of this Agreement, into any agreement with respect to its securities that would have the effect of impairing the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof.


 


(e)     Entire Agreement. This Agreement and the documents, instruments and other agreements specifically referred to herein or delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof.


 


(f)     Notices, etc. All notices, consents, waivers, and other communications which are required or permitted under this Agreement shall be in writing will be deemed given to a party (a) upon receipt, when personally delivered; (b) one (1) Business Day after deposit with an nationally recognized overnight courier service with next day delivery specified, costs prepaid) on the date of delivery, if delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid); (c) the date of transmission if sent by facsimile or e-mail with confirmation of transmission by the transmitting equipment if such notice or communication is delivered prior to 5:00 P.M., New York City time, on a Trading Day, or the next Trading Day after the date of transmission, if such notice or communication is delivered on a day that is not a Trading Day or later than 5:00 P.M., New York City time, on any Trading Day, provided confirmation of facsimile is mechanically or electronically generated and kept on file by the sending party and confirmation of email is kept on file, whether electronically or otherwise, by the sending party and the sending party does not receive an automatically generated message from the recipients email server that such e-mail could not be delivered to such recipient; (d) the date received or rejected by the addressee, if sent by certified mail, return receipt requested, postage prepaid; or (e) seven days after the placement of the notice into the mails (first class postage prepaid), to the party at the address, facsimile number, or e-mail address furnished by the such party,


 


If to the Company, to:


 


Viveve Medical, Inc.


345 Inverness Drive South


Building B, Suite 250


Englewood, CO 80112


Attention: Chief Executive Officer


Facsimile: 917-825-2479


E-mail: sdurbin@viveve.com


 


with a copy (which shall not constitute notice) to:


 


Goodwin Procter LLP


Three Embarcadero Center, 28th Floor


San Francisco, CA 94111


Attention: Bradley Bugdanowitz


Facsimile: 415-520-9513


Email: BBugdanowitz@goodwinlaw.com


 



12




 




 


if to a Purchaser, to:


 


such Purchaser at the address set forth on the signature page hereto;


 


or at such other address as any party shall have furnished to the other parties in writing in accordance with this Section 11(f).


 


(g)     Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any Holder, upon any breach or default of the Company under this Agreement, shall impair any such right, power or remedy of such Holder nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach or default thereunder occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any Holder of any breach or default under this Agreement, or any waiver on the part of any Holder of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, or by law or otherwise afforded to any Holder, shall be cumulative and not alternative.


 


(h)     Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. In the event that any signature is delivered by facsimile transmission or by an e-mail, which contains a portable document format (.pdf) file of an executed signature page, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or e-mail of a .pdf signature page were an original thereof.


 


(i)     Severability. In the case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.


 


(j)     Amendments. Except as otherwise provided herein, the provisions of this Agreement may be amended at any time and from time to time, and particular provisions of this Agreement may be waived, with and only with an agreement or consent in writing signed by the Company and the Majority Holders. The Purchasers acknowledge that by the operation of this Section, the Majority Holders may have the right and power to diminish or eliminate all rights of the Purchasers under this Agreement.


 


[Signature Page to Follow]


 



13




 




 


IN WITNESS WHEREOF, the undersigned have executed, or caused to be executed on their behalf by an agent there unto duly authorized, this Registration Rights Agreement as of the date first above written.


 


	
			 

				
			COMPANY:


			 


			VIVEVE MEDICAL, INC.

				
			 

			
	
			 

				
			 

				
			 

				
			 

			
	
			 

				
			 

				
			 

				
			 

			
	
			 

				
			By:

				
			 

				
			 

			
	
			 

				
			Name:

				
			 

				
			 

			
	
			 

				
			Title:

				
			 

				
			 

			



 


[Signature Page to Registration Rights Agreement]


 


 



 




 




 


IN WITNESS WHEREOF, the undersigned have executed, or caused to be executed on their behalf by an agent there unto duly authorized, this Registration Rights Agreement as of the date first above written.


 


	
			 

				
			CRG:


			 


			CRG PARTNERS III L.P.  


			By: CRG PARTNERS III GP L.P., its General Partner


			By: CRG PARTNERS III GP LLC, its General Partner


			 


			By: ________________________________


			Name: Nathan Hukill


			Title: Authorized Signatory


			 


			 


			Address for Notices:


			 


			1000 Main Street, Suite 2500


			Houston, TX 77002


			Attn:           General Counsel


			Tel.:            713.209.7350


			Fax:            713.209.7351


			Email:         adorenbaum@crglp.com


			 


			 


			Crg PARTNERS III – PARALLEL FUND “a” L.P. 


			By: CRG PARTNERS III – PARALLEL FUND “A” GP L.P., its General Partner


			By: CRG PARTNERS III GP LLC, its General Partner


			 


			By: ________________________________


			Name: Nathan Hukill


			  Title: Authorized Signatory


			 


			Address for Notices:


			 


			1000 Main Street, Suite 2500


			Houston, TX 77002


			Attn:           General Counsel


			Tel.:            713.209.7350


			Fax:            713.209.7351


			Email:         adorenbaum@crglp.com


			 


			 


			Crg PARTNERS III – PARALLEL FUND “B” (cayman) L.P. 


			By: CRG PARTNERS III (Cayman) GP L.P., its General Partner


			By: CRG PARTNERS III GP LLC, its General Partner


			 


			By: ________________________________


			Name: Nathan Hukill


			Title: Authorized Signatory

			



 



 




 




 


	 	
			WITNESS:__________________________


			Name:_____________________________


			 


			 


			Address for Notices:


			 


			1000 Main Street, Suite 2500


			Houston, TX 77002


			Attn:           General Counsel


			Tel.:            713.209.7350


			Fax:            713.209.7351


			Email:         adorenbaum@crglp.com


			 


			 


			CRG PARTNERS III (CAYMAN) LEV AIV I L.P.


			By: CRG PARTNERS III (CAYMAN) GP L.P., its General Partner


			By: CRG PARTNERS III (CAYMAN) GP LLC, its General Partner


			 


			 


			By: _________________________________


			Name: Nathan Hukill


			Title: Authorized Signatory


			 


			WITNESS:__________________________


			Name:______________________________


			 


			 


			Address for Notices:


			 


			1000 Main Street, Suite 2500


			Houston, TX 77002


			Attn:           General Counsel


			Tel.:            713.209.7350


			Fax:            713.209.7351


			Email:         adorenbaum@crglp.com

			



 


 


[Signature Page to Registration Rights Agreement]


 



 




 




 


Annex A


 


PLAN OF DISTRIBUTION


 


The selling stockholders and any of their pledgees, donees, transferees, assignees or other successors-in-interest may, from time to time, sell, transfer or otherwise dispose of any or all of their shares of common stock or interests in shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices. The selling stockholders may use one or more of the following methods when disposing of the shares or interests therein:


 


	 	
			•

				
			ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;

			



 


	 	
			•

				
			block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;

			



 


	 	
			•

				
			through brokers, dealers or underwriters that may act solely as agents;

			



 


	 	
			•

				
			purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

			



 


	 	
			•

				
			an exchange distribution in accordance with the rules of the applicable exchange;

			



 


	 	
			•

				
			privately negotiated transactions;

			



 


	 	
			•

				
			settlement of short sales, to the extent permitted by law;

			



 


	 	
			•

				
			through the writing or settlement of options or other hedging transactions entered into after the effective date of the registration statement of which this prospectus is a part, whether through an options exchange or otherwise;

			



 


	 	
			•

				
			broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;

			



 


	 	
			•

				
			a combination of any such methods of disposition; and

			



 


	 	
			•

				
			any other method permitted pursuant to applicable law.

			



 


The selling stockholders may also sell shares under Rule 144 under the Securities Act of 1933, as amended, or Securities Act, if available, rather than under this prospectus.


 


Broker-dealers engaged by the selling stockholders may arrange for other broker-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. The selling stockholders do not expect these commissions and discounts to exceed what is customary in the types of transactions involved.


 



 




 




 


The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell shares of common stock from time to time under this prospectus, or under a supplement or amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus.


 


Upon being notified in writing by a selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of common stock through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, we will file a supplement to this prospectus, if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each such selling stockholder and of the participating broker-dealer(s), (ii) the number of shares involved, (iii) the price at which such shares of common stock were sold, (iv) the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, and (vi) other facts material to the transaction. In addition, upon being notified in writing by a selling stockholder that a donee or pledge intends to sell more than 500 shares of common stock, we will file a supplement to this prospectus if then required in accordance with applicable securities law.


 


The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.


 


In connection with the sale of the shares of common stock or interests in shares of common stock, the selling stockholders may enter into hedging transactions after the effective date of the registration statement of which this prospectus is a part with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of common stock short after the effective date of the registration statement of which this prospectus is a part and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions after the effective date of the registration statement of which this prospectus is a part with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).


 


The selling stockholders and any broker-dealers or agents that are involved in selling the shares may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act and the rules of the Financial Industry Regulatory Authority (FINRA).


 


We have advised the selling stockholders that they are required to comply with Regulation M promulgated under the Securities and Exchange Act during such time as they may be engaged in a distribution of the shares. The foregoing may affect the marketability of the common stock.


 


The aggregate proceeds to the selling securityholders from the sale of the common stock offered by them will be the purchase price of the common stock less discounts or commissions, if any. Each of the selling securityholders reserves the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly or through agents. We will not receive any of the proceeds from this offering.


 



 




 




 


We are required to pay all fees and expenses incident to the registration of the shares. We have agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act or otherwise.


 


We have agreed with the selling stockholders to keep the registration statement of which this prospectus constitutes a part effective until the date on which all securities under such Registration Statement have ceased to be Registrable Securities.


 


The selling stockholder will be subject to the prospectus delivery requirements of the Securities Act including Rule 172 thereunder unless an exemption therefrom is available.


 


The shares of common stock will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the shares of common stock covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.


 



 




 




 


Annex B


 


Viveve Medical, Inc.


 


Selling Securityholder Notice and Questionnaire


 


The undersigned beneficial owner of Registrable Securities of Viveve Medical, Inc., a Delaware corporation (the “Company”), understands that the Company has filed or intends to file with the U.S. Securities and Exchange Commission a registration statement (the “Registration Statement”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended, of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement (the “Registration Rights Agreement”) to which this document is annexed. A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.


 


Certain legal consequences arise from being named as a selling security holder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling security holder in the Registration Statement and the related prospectus.


 


NOTICE


 


The undersigned beneficial owner (the “Selling Securityholder”) of Registrable Securities hereby elects to include the Registrable Securities owned by it in the Registration Statement.


 


The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate:


 


QUESTIONNAIRE


 


	
			1. 

				
			Name:

			



 


	 	
			(a)

				
			Full Legal Name of Selling Securityholder

			
	 	 	 
	 	 	 
	 	 	 



 


	 	
			(b)

				
			Full Legal Name of Registered Holder (holder of record) (if not the same as (a) above) through which Registrable Securities are held:

			
	 	 	 
	 	 	 
	 	 	 



 


	 	
			(c)

				
			If you are not a natural person, full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote or dispose of the securities covered by this Questionnaire):

			
	 	 	 
	 	 	 
	 	 	 



 



 




 




 


	
			2. 

				
			Address for Notices to Selling Securityholder:

			



 


	 	 	 	 
	Telephone: 	 	Fax:	 



	Email: 	 



	Contact Person:  	 



 


	
			3.

				
			Broker-Dealer Status:

			



 


	 	
			(a)

				
			Are you a broker-dealer?

			



 


Yes ☐     No ☐


 


	 	
			(b)

				
			If “yes” to Section 3(a), did you receive your Registrable Securities as compensation for investment banking services to the Company?

			



 


Yes ☐     No ☐


 


	 	
			Note:

				
			If “no” to Section 3(b), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.

			



 


	 	
			(c)

				
			Are you an affiliate of a broker-dealer?

			



 


Yes ☐     No ☐


 


	 	
			(d)

				
			If you are an affiliate of a broker-dealer, do you certify that you purchased the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities?

			



 


Yes ☐     No ☐


 


	 	
			Note:

				
			If “no” to Section 3(d), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.

			



 


	
			4.

				
			Beneficial Ownership of Securities of the Company Owned by the Selling Securityholder:

			



 


Except as set forth below in this Item 4, the undersigned is not the beneficial or registered owner of any securities of the Company.


 


	 	
			(a)

				
			Please list the type (common stock, warrants, etc.) and amount of all securities of the Company (including any Registrable Securities) beneficially owned1 by the Selling Securityholder:

			



 


 




1 Beneficially Owned: A “beneficial owner” of a security includes any person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise has or shares (i) voting power, including the power to direct the voting of such security, or (ii) investment power, including the power to dispose of, or direct the disposition of, such security. In addition, a person is deemed to have “beneficial ownership” of a security of which such person has the right to acquire beneficial ownership at any time within 60 days, including, but not limited to, any right to acquire such security: (i) through the exercise of any option, warrant or right, (ii) through the conversion of any security or (iii) pursuant to the power to revoke, or the automatic termination of, a trust, discretionary account or similar arrangement.


 


It is possible that a security may have more than one “beneficial owner,” such as a trust, with two co-trustees sharing voting power, and the settlor or another third party having investment power, in which case each of the three would be the “beneficial owner” of the securities in the trust. The power to vote or direct the voting, or to invest or dispose of, or direct the investment or disposition of, a security may be indirect and arise from legal, economic, contractual or other rights, and the determination of beneficial ownership depends upon who ultimately possesses or shares the power to direct the voting or the disposition of the security.


 


The final determination of the existence of beneficial ownership depends upon the facts of each case. You may, if you believe the facts warrant it, disclaim beneficial ownership of securities that might otherwise be considered “beneficially owned” by you.


 


 



 




 




 


	
			5.

				
			Relationships with the Company:

			



 


Except as set forth below, neither you nor (if you are a natural person) any member of your immediate family, nor (if you are not a natural person) any of your affiliates2, officers, directors or principal equity holders (owners of 5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.


 


State any exceptions here:


 


	
			 

				
			 

			
	 	 



 


The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof at any time while the Registration Statement remains effective.


 


By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through 5 and the inclusion of such information in the Registration Statement and the related prospectus and any amendments or supplements thereto. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related prospectus and any amendments or supplements thereto.


 


[Remainder of Page Intentionally Left Blank]


 


 




2 Affiliate: An “affiliate” is a company or person that directly, or indirectly through one or more intermediaries, controls you, or is controlled by you, or is under common control with you.


 



 




 




 


IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Selling Securityholder Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.


 


	BENEFICIAL OWNER (individual)	 	BENEFICIAL OWNER (entity)
	 	 	 	 
	 	 	 	 
	Signature	 	Name of Entity
	 	 	 	 
	 	 	 	 
	Print Name	 	Signature
	 	 	 	 
	 	 	 	 
	 	 	Print Name:	 
	Signature (if Joint Tenants or Tenants in Common)	 	 	 
	 	 	Title:	 



 


 


PLEASE E-MAIL OR FAX A COPY OF THE COMPLETED AND EXECUTED SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO:


 


Goodwin Procter LLP


Three Embarcadero Center, 28th Floor


San Francisco, CA 94111


Attention: Bradley Bugdanowitz


Facsimile: 415-520-9513


Email: BBugdanowitz@goodwinlaw.com