exv10w1



 





Exhibit 10.1




FINAL




 





AMENDED AND RESTATED

INVESTMENT AGREEMENT




DATED AS OF FEBRUARY 8, 2007




BY AND AMONG




TOMOTHERAPY INCORPORATED




AND




THE INVESTORS NAMED HEREIN




 





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE I — DEFINITIONS AND TERMS	 	 	2	 
	 
	 	 	 	 	 	 
	1.1
	 	Definitions	 	 	 2	 
	1.2
	 	Interpretation	 	 	 4	 
	1.3
	 	Other Terms	 	 	 4	 
	 
	 	 	 	 	 	 
	ARTICLE II — REGISTRATION RIGHTS	 	 	4	 
	 
	 	 	 	 	 	 
	2.1
	 	Demand Registration	 	 	 4	 
	2.2
	 	Piggyback Registration	 	 	 5	 
	2.3
	 	Registration Procedures	 	 	 6	 
	2.4
	 	Indemnification of the Rightholders	 	 	9	 
	2.5
	 	Indemnification of the Company	 	 	10	 
	2.6
	 	Rule 144 and Rule 144A	 	 	10	 
	2.7
	 	Transferability	 	 	11	 
	2.8
	 	No Further Grants of Registration Rights	 	 	11	 
	2.9
	 	Lock-Up and Market Standoff	 	 	11	 
	2.10
	 	Expiration of Registration Rights	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE III — ADDITIONAL PROVISIONS	 	 	12	 
	 
	 	 	 	 	 	 
	3.1
	 	Effective Date	 	 	12	 
	3.2
	 	Successors and Assigns	 	 	12	 
	3.3
	 	Notices	 	 	12	 
	3.4
	 	No Waiver; Remedies Cumulative	 	 	13	 
	3.5
	 	Amendments and Waivers	 	 	13	 
	3.6
	 	Severability	 	 	13	 
	3.7
	 	Headings	 	 	13	 
	3.8
	 	Governing Law	 	 	13	 
	3.9
	 	Counterparts	 	 	13	 
	3.10
	 	Further Assurances	 	 	13	 






EXHIBITS




     Exhibit A          Investors




 









 








AMENDED AND RESTATED

INVESTMENT AGREEMENT




     This Amended and Restated Investment Agreement (this “Agreement”) is made and entered
into as of February 8, 2007, by and among TomoTherapy Incorporated, a Wisconsin corporation (the
“Company”), and the undersigned Persons and entities listed on Exhibit A hereto
(the “Investors”).



RECITALS




     WHEREAS, the Company is in the business of developing, manufacturing, marketing and selling
medical devices used in radiation treatment of cancer and other image guided applications.



     WHEREAS, certain of the Investors, the Company and certain other persons have entered into
that certain Series A Investment Agreement dated as of May 19, 1999 (as amended, the “Series A
Investment Agreement”); and



     WHEREAS, certain of the Investors, the Company and certain other persons have entered into
that certain Series B Investment Agreement dated as of March 16, 2001 (as amended, the “Series
B Investment Agreement”); and



     WHEREAS, certain of the Investors, the Company and certain other persons have entered into
that certain Series C Investment Agreement dated as of August 8, 2002 (as amended, the “Series
C Investment Agreement”); and



     WHEREAS, certain of the Investors, the Company and certain other persons have entered into
that certain Series D Investment Agreement dated as of February 18, 2004 (as amended, the
“Series D Investment Agreement”); and



     WHEREAS, certain of the Investors, the Company and certain other persons have entered into
that certain Series E Investment Agreement dated as of December 29, 2005 (as amended, the
“Series E Investment Agreement”); and



     WHEREAS, certain of the Investors have entered into that certain Third Amended and Restated
Shareholders Agreement of TomoTherapy Incorporated dated as of December 29, 2005 (the
“Shareholders Agreement”); and



     WHEREAS, in contemplation of the registration and public offering of shares of the Company’s
common stock, par value $0.01 per share (“Common Shares”), the Investors and the Company
desire, by this Agreement, to amend and restate all of the Prior Investment Agreements (as defined
herein) and to terminate the Shareholders Agreement upon the closing of a Qualified Public Offering
(as defined herein).



     NOW, THEREFORE, in consideration of the mutual representations, warranties and covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:



 









 





ARTICLE I

DEFINITIONS AND TERMS




     1.1 Definitions. As used in this Agreement, the following terms have the following
meanings:



     “Affiliate” of a Person shall mean any Person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, another Person. A Person shall be
deemed to control another Person for the purposes of this definition if the controlling Person
directly or indirectly, either individually or together with (in the case of an individual) his or
her spouse, lineal descendants and ascendants and brothers or sisters by blood or adoption or
spouses of such descendants, ascendants, brothers and sisters, owns ten percent or more of any
class of voting securities of the controlled Person or possesses, directly or indirectly, the power
to direct, or cause the direction of, the management or policies of the second Person, whether
through the ownership of voting securities, common directors, trustees or officers, by contract or
otherwise.



     “Agreement” shall mean this Investment Agreement, as amended, restated, supplemented
or otherwise modified from time to time.



     “Common Shares” shall have the meaning assigned in the Recitals to this Agreement.



     “Company” shall have the meaning assigned in the first paragraph to this Agreement.



     “Demand Registration” shall have the meaning assigned in Section 2.1(a).



     “Effective Date” shall have the meaning assigned in Section 3.1.



     “GAAP” shall mean those generally accepted accounting principles in the United States
of America consistently applied for all periods so as to properly reflect the financial condition,
results of operations, and cash flows of the Company.



     “Governmental Authority” shall mean any nation or government, any state or other
political subdivision thereof, and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, and any corporation or other
entity owned or controlled through stock or capital ownership or otherwise, by any of the
foregoing.



     “Investors” as defined in the first paragraph of this Agreement, shall mean those
Persons listed on Exhibit A hereto.



     “Lock-Up Period” shall have the meaning assigned in Section 2.9.



     “NASD” shall have the meaning assigned in Section 2.3(a)(xv).



     “Opt-in Shareholders” shall have the meaning assigned in Section 2.1(a).



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     “Permitted Transferee” shall have the meaning assigned in Schedule 2.7.



     “Person” shall mean an individual, partnership, corporation, limited liability
company, firm, enterprise, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.



     “Prior Investment Agreements” shall mean, collectively, the Series A Investment
Agreement, Series B Investment Agreement, Series C Investment Agreement, Series D Investment
Agreement and Series E Investment Agreement.



     “Qualified Public Offering” shall mean an offering of equity securities of the Company
pursuant to an effective registration statement filed with the SEC under the Securities Act on or
prior to December 29, 2008 by an underwriter approved by the Board of Directors of the Company
pursuant to a firm underwriting agreement which raises gross proceeds to the Company of not less
than $20,000,000 and where the price per share is not less than $12.00, subject to adjustments for
subdivisions, stock splits, combinations, recapitalizations or similar transactions.



     “Registrable Securities” means, collectively, (i) the Common Shares issuable or issued
upon conversion of the securities issued pursuant to the Prior Investment Agreements; and (ii) any
Common Shares 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 of, the shares referenced in clause (i) above; excluding in all cases,
however, any securities that would otherwise be Registrable Securities that are sold by a Person in
a transaction in which the applicable rights under this Agreement are not assigned, and excluding
any shares for which registration rights have terminated pursuant to Section 2.10 of this
Agreement.



     “Required Investors” shall mean the Investor or Investors holding at least two thirds
of all outstanding Registrable Securities of the Company held by the Investors.



     “Rightholders” shall mean any person lawfully holding Registrable Securities.



     “SEC” shall have the meaning assigned in Section 2.3(a)(i).



     “Securities Act” shall mean the Securities Act of 1933, as amended, and any successor
statute, together with the rules and regulations thereunder, in each case as in effect from time to
time.



     “Securities Exchange Act” shall mean the Securities Exchange Act of 1934, as amended,
and any successor statute, together with the rules and regulations thereunder, in each case as in
effect from time to time.



     “Series A Investment Agreement” shall have the meaning assigned in the Recitals to
this Agreement.



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     “Series B Investment Agreement” shall have the meaning assigned in the Recitals to
this Agreement.



     “Series C Investment Agreement” shall have the meaning assigned in the Recitals to
this Agreement.



     “Series D Investment Agreement” shall have the meaning assigned in the Recitals to
this Agreement.



     “Series E Investment Agreement” shall have the meaning assigned in the Recitals to
this Agreement.



     “Shareholders Agreement” shall have the meaning assigned in the Recitals to this
Agreement.



     “Subject Shares” shall have the meaning assigned in Section 2.3(a).



     1.2 Interpretation. Unless otherwise expressly provided or unless the context requires
otherwise, (a) all references in this Agreement to Articles, Sections, Schedules and Exhibits shall
mean and refer to Articles, Sections, Schedules and Exhibits of this Agreement; (b) all references
to statutes and related regulations shall include all amendments of the same and any successor or
replacement statutes and regulations; (c) words using the singular or plural number also shall
include the plural and singular number, respectively; (d) references to “hereof,” “herein,”
“hereby” and similar terms shall refer to this entire Agreement (including the Schedules and
Exhibits hereto); and (e) references to any Person shall be deemed to mean and include the
successors and permitted assigns of such Person (or, in the case of a Governmental Authority,
Persons succeeding to the relevant functions of such Person).



     1.3 Other Terms. Except as otherwise specifically provided, each accounting term used
herein shall have the meaning given to it under GAAP, as consistently applied by the Company.



ARTICLE II

REGISTRATION RIGHTS




     2.1 Demand Registration.



          (a) The Rightholders of a majority of all Registrable Securities, voting as a single class,
shall have the right, exercisable by giving written notice to the Company, to require the Company
to file a registration statement under the Securities Act to register the offer and sale of all or
any portion of such holders’ (in either case, the “Rightholders”) Registrable Securities in
the
Company (in either case, a “Demand Registration”); provided that the Company shall
not be obligated to effect a registration pursuant to this Section 2.1(a) (other than a
registration on Form S-3 or any successor form from and after the time the Company is eligible to
use Form S-3 or any successor form, as applicable, as to which the Rightholders shall have
unlimited rights to require the Company to effect a registration) on more than three occasions. In
the event of such a demand, the Company shall, within twenty (20) days of the receipt thereof, give
written notice of such request to all other Rightholders. In the event that any such Rightholders
wish to participate in the registration




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(the “Opt-in Shareholders”), they shall so advise
the Company within twenty (20) days of receipt of such notice and shall include in their notice the
number of Registrable Securities they desire to so register. Notwithstanding any other provision
of this section, if the managing underwriter determines that marketing factors require a limitation
on the number of shares to be underwritten, then the Company shall so advise the Opt-in
Shareholders which would otherwise be underwritten pursuant to this provision, and the number of
shares that may be included in the underwriting shall be allocated to the Opt-in Shareholders in
proportion, as nearly as practicable, to the respective amounts of Common Shares held by such
Opt-in Shareholders at the time of filing the registration statement.; provided,
further, that the number of shares owned by the Rightholders to be included in such
underwriting and registration shall not be reduced unless all other securities held by other
shareholders of the Company are first entirely excluded from the underwriting and registration.
The managing underwriter(s) for such offering shall be selected by the Company with the prior
written approval of the Rightholders holding a majority of the Common Shares held by Rightholders
to be offered for sale pursuant to the Demand Registration, which approval shall not be
unreasonably withheld. In the event the Company has not selected an underwriter approved by such
Rightholders within thirty (30) days of the Rightholders’ notice, the Rightholders holding a
majority of the Common Shares held by Rightholders to be offered for sale pursuant to the Demand
Registration may select the underwriter. The Company shall not be deemed to have effected a Demand
Registration pursuant to this Section 2.1(a) unless the Rightholders shall have sold that
number of shares representing at least fifty percent (50%) of the Registrable Securities requested
to be registered by the Rightholders.




          (b) The Company may postpone for up to 120 days the filing or effectiveness of a registration
statement with respect to a Demand Registration if the Company furnishes to Rightholders requesting
a registration pursuant to this Section 2.1 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 be filed during the period of such postponement for one or more of the following reasons: (i)
the filing of such registration statement during such period would materially interfere with an
acquisition, corporate reorganization or other transaction that the Company would disclose in a
periodic report filed pursuant to the Securities Exchange Act; (ii) the filing of such registration
statement during such period would require disclosure of material, non-public information relating
to the Company which the Company has a bona fide business purpose for preserving as confidential;
or (iii) the filing of such registration statement during such period would result in the Company’s
inability to comply with applicable requirements of the Securities Act; and it is therefore
necessary to defer the filing of such registration statement for such period; provided,
however, that the Company may not invoke this right more than once in any 12-month period.
In the event of postponement, the Rightholders
shall be entitled to withdraw such request and if withdrawn, such Demand Registration shall not be
deemed a Demand Registration for purposes of Section 2.1(a).




     2.2 Piggyback Registration. If at any time the Company proposes or is required to
register any offering of Registrable Securities or Common Shares under the Securities Act (other
than a registration on Form S-4 or Form S-8 or successor forms or any other registration statement
relating to a corporate reorganization or other transaction under Rule 415 of the Securities Act),
the Company will give written notice thereof to the holders of Registrable Securities at least
thirty (30)



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days prior to the filing of a registration statement. Each holder of Registrable
Securities shall have the right to include in such registration all or a portion of its Common
Shares. If the managing underwriter(s) advise(s) the Rightholders in writing that marketing
factors require a limitation of the number of Common Shares to be underwritten, then the Company
shall so advise all Rightholders participating and the number of Common Shares that may be included
in the registration and underwriting shall be allocated among all Rightholders in proportion, as
nearly as practicable, to the respective amounts of Common Shares held by such Rightholders at the
time of filing the registration statement. No Common Shares excluded from the underwriting by
reasons of the underwriters’ marketing limitation shall be included in such registration. To
facilitate the allocation of Common Shares in accordance with the above provisions, the Company or
the underwriters may round the number of Common Shares allocated to any Rightholder to the nearest
100 shares.



     2.3 Registration Procedures.



          (a) Whenever the Company is required to effect the registration of any Common Shares under the
Securities Act pursuant to Sections 2.1 or 2.2 (the “Subject Shares”), the
Company will use its best efforts to effect the registration and sale of the Subject Shares in
accordance with the intended method of disposition thereof. Without limiting the generality of the
foregoing, the Company will as soon as practicable:





     (i) prepare and file with the Securities and Exchange Commission (the “SEC”) a
registration statement with respect to the Subject Shares in form and substance satisfactory
to the Rightholders holding a majority of the Common Shares held by Rightholders to be
offered for sale pursuant to the Demand Registration and use its best efforts to cause such
registration statement to become effective as soon as practicable, but not later than 120
days after notice of a Demand Registration, and to maintain the effectiveness thereof until
the earlier of (x) the date that the Subject Shares have been sold thereunder, and (y) 120
days after effectiveness; provided, however, that such one-hundred twenty
(120) day period shall be extended for a period equal to the time that the Rightholders
refrain from selling any securities included in such registration at the request of an
underwriter or the Company; provided, further, that the Company may suspend
sales at any time under the registration statement immediately upon notice to the selling
Rightholders or their assigns for a period of time not to exceed in the aggregate sixty (60)
days during any twelve (12) month period, if there then exists material, non-public
information relating to the Company which, in the reasonable good faith opinion of the board
of directors of the Company, would be materially detrimental to the Company to disclose
during that time;




     (ii) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be necessary
to keep such registration statement effective for the applicable period and to comply with
the provisions of the Securities Act with respect to the disposition of all Subject Shares
covered by such registration statement; provided that, except to the extent
otherwise provided by the Rightholders, all such amendments and supplements shall be
provided to the Rightholders at least five days prior to filing and the Company shall not
file any such amendment or supplement to which the Rightholders shall reasonably object.



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     (iii) furnish to any Rightholder, without charge, such number of conformed copies of
such registration statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus), such documents incorporated
by reference in such registration statement or prospectus, and such other documents, as such
Rightholder may reasonably request;




     (iv) use all reasonable efforts to register or qualify the Subject Shares covered by
such registration statement under the securities or blue sky laws of such jurisdictions as
the managing underwriter(s) shall reasonably recommend, and do any and all other acts and
things which may be reasonably necessary or advisable to enable the Rightholders to
consummate the disposition in such jurisdictions of the Subject Shares covered by such
registration statement, except that the Company shall not for any such purpose be required
to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein
it is not so qualified, (B) subject itself to taxation in any such jurisdiction wherein it
is not so subject, or (C) consent to general service of process in any such jurisdiction or
otherwise take any action that would subject it to the general jurisdiction of the courts of
any jurisdiction in which it is not so subject;




     (v) otherwise use its best efforts to comply with all applicable rules and regulations
of the SEC;




     (vi) furnish, at the Company’s expense, unlegended certificates representing ownership
of the securities being sold in such denominations as shall be requested and instruct the
transfer agent, if any, to release any stop transfer orders with respect to the Subject
Shares being sold;




     (vii) notify the Rightholders at any time when a prospectus relating to the Subject
Shares is required to be delivered under the Securities Act due to the happening of any
event as a result of which the prospectus included in such registration statement contains
any untrue statement of a material fact or omits to state a material fact necessary to make
the statements therein (in the case of the prospectus or any preliminary prospectus, in
light of the circumstances under which they were made) not misleading, and the Company
shall, as promptly as practicable thereafter, prepare and file with the SEC and furnish a
supplement or amendment to such prospectus so that, as thereafter delivered to the
purchasers of
Subject Shares such prospectus will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading;




     (viii) enter into customary agreements (including an underwriting agreement in
customary form in the case of an underwritten offering); make such representations and
warranties to the Rightholders and the underwriters as in form and substance are customarily
made by issuers to underwriters in underwritten offerings and take such other actions as the
Rightholders or the managing underwriter(s) reasonably require in order to expedite or
facilitate the disposition of such Subject Shares;



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     (ix) make available for inspection by the Rightholders (or any of them), any
underwriter or agent participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other similar professional advisor retained by
the Rightholders (or any of them) or any such underwriter or agent, all pertinent financial
and other records, pertinent corporate documents and properties of the Company as shall be
reasonably necessary to enable them to exercise their due diligence responsibility, and
cause the Company’s officers, directors and employees to supply all information reasonably
requested by any such inspector in connection with such registration statement;




     (x) obtain for delivery to the Company, any such underwriter or agent, with copies to
the Rightholders, a “cold comfort” letter from the Company’s independent public accountants
in customary form and covering such matters of the type customarily covered by “cold
comfort” letters as the Rightholders or the managing underwriter(s) reasonably request;




     (xi) obtain for delivery to the Rightholders and any such underwriter or agent an
opinion or opinions from counsel for the Company in customary form and reasonably
satisfactory to the Rightholders and such underwriters or agents and their counsel;




     (xii) make available to its security holders earnings statements, which need not be
audited, satisfying the provisions of Section 11(a) of the Securities Act no later than 90
days after the end of the 12-month period beginning with the first month of the Company’s
first quarter commencing after the effective date of such registration statement, which
earnings shall cover such 12-month period;




     (xiii) make every reasonable effort to prevent the issuance of any stop order
suspending the effectiveness of such registration statement or of any order preventing or
suspending the effectiveness of such registration statement at the earliest possible moment;




     (xiv) cause the Subject Shares to be registered with or approved by such other
Governmental Authority as may be necessary to enable the Rightholders or the underwriter or
underwriters to consummate the disposition of such securities;




     (xv) cooperate with the Rightholders and the managing underwriter(s) or any other
interested party (including any interested broker-dealer) in making any filings or
submissions required to be made, and furnishing all appropriate information in connection
therewith, with the National Association of Securities Dealers, Inc. (“NASD”);




     (xvi) cause all Subject Shares to be listed on such national securities exchange(s)
or the National Association of Securities Dealers National Market System as the Rightholders
may reasonably request and, if any similar securities issued by the Company are then listed
on any securities exchanges or national market systems, to also list all such Subject Shares
on such securities exchanges or national market systems, and enter into such customary
agreements, including a listing application and indemnification agreement in customary form,
provided that the applicable listing requirements are satisfied, and provide a transfer



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agent and registrar for such Subject Shares covered by such registration statement no later
than the effective date of such registration statement; and




     (xvii) take all other steps necessary to effect the registration of the Subject Shares
contemplated hereby.



          (b) The Rightholders shall provide all information and materials and take all action as may be
required in order to permit the Company to comply with all applicable requirements of the SEC and
any applicable state securities laws and to obtain any desired acceleration of the effective date
of any registration statement prepared and filed by the Company pursuant to this Agreement.




          (c) Each Rightholder shall, if requested by the Company or the managing underwriter(s) in
connection with any proposed registration and distribution pursuant to this Agreement, (i) agree to
sell the Subject Shares on the basis provided in any underwriting arrangements entered into in
connection therewith that are customary for similar offerings and (ii) complete and execute all
questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
customary in similar offerings, all in form and substance reasonably satisfactory to the such
Rightholder.




          (d) Upon receipt of any notice from the Company that the Company has become aware that the
prospectus (including any preliminary prospectus) included in any registration statement filed
pursuant to Sections 2.1 or 2.2, as then in effect, contains any untrue statement
of a material fact or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, the Rightholders shall forthwith discontinue
disposition of the Subject Shares pursuant to the registration statement covering the same until
the Rightholders receive copies of a supplemented or amended prospectus and, if so directed by the
Company, deliver to the Company (at the Company’s expense) all copies other than permanent file
copies then in the Rightholders’ possession, of the prospectus covering the Subject Shares that was
in effect prior to such amendment or supplement.




          (e) The Company shall pay all expenses incurred in connection with any registration statements
filed pursuant to this Agreement, including without limitation all SEC and
blue sky registration and filing fees (including NASD fees), printing expenses, transfer agents’
and registrars’ fees, fees and disbursements of the Company’s counsel and accountants and fees and
disbursements of experts used by the Company in connection with such registration statement and the
reasonable fees and disbursements of not more than one counsel to the Rightholders;
provided that the Rightholders shall pay their pro rata share of all underwriting discounts
and commissions attributable to the Subject Shares sold by the Rightholders pursuant to any such
registration statement.




     2.4 Indemnification of the Rightholders.



          (a) In connection with any registration pursuant to Sections 2.1 or 2.2, the
Company shall indemnify and hold harmless the Rightholders and each Person, if any, who controls a
Rightholder (or transferee of all the rights hereunder), within the meaning of Section 15 of the




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Securities Act against (i) all loss, liability, claim, damage and expense whatsoever arising out of
or based upon any untrue or alleged untrue statement of a material fact contained in any
preliminary prospectus, the registration statement or the prospectus (as amended or supplemented),
or in any application or other document executed by the Company or based upon written information
furnished by the Company filed in any jurisdiction in order to qualify the Subject Shares under the
securities laws thereof or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not misleading, or any other
violation of applicable federal or state statutory or regulatory requirements or limitations
relating to action or inaction by the Company in the course of preparing, filing or implementing
such offering; provided that the Company shall not be liable for any loss, liability,
claim, damage or expense arising out of or based upon any such untrue or alleged untrue statement
or any such omission or alleged omission, if such statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by or on behalf of such
Rightholder expressly for use in the preparation of the registration statement and (ii) all loss,
liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission or any such alleged untrue statement or omission (including but
not limited to any and all expenses whatsoever reasonably incurred in investigating, preparing or
defending against any such litigation or claim) if such settlement is effected with the written
consent of the Company.




          (b) The Company shall be entitled to participate at its own expense in the defense of any suit
brought to enforce any such claim, but if the Company elects to assume such defense, such defense
shall be conducted by counsel chosen by the Company; provided that such counsel is
reasonably satisfactory to a majority of the Rightholders, which approval shall not be unreasonably
withheld or delayed. In the event that the Company elects to assume the defense of any such suit
and retain such counsel, the selling shareholders or controlling Persons, and defendants in the
suit, shall, after the date they are notified of such election, bear the fees and expenses of any
additional counsel thereafter retained by them in connection with such action.




     2.5 Indemnification of the Company. Each Rightholder in any registered offering
pursuant to Sections 2.1 or 2.2 agrees, severally
and not jointly, to indemnify and hold harmless the Company and each of the officers and directors
and agents of it and each other Person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act against any and all such losses, liabilities, claims, damages and
expenses as are indemnified against by the Company under Section 2.4, but only to the
extent that such losses, liabilities, claims, damages and expenses are based upon untrue statements
or omissions in any document referred to in Section 2.4 in reliance upon, and in conformity
with, written information furnished in respect of such shareholders by or on behalf of such
Rightholder expressly for use therein. If any action shall be brought against the Company or any
other Person for which indemnification may be sought under this Section 2.5, such
Rightholder shall have the rights and duties identical to those of the Company, and the Company and
each other Person so indemnified shall have the rights and duties given to the Rightholder,
pursuant to Section 2.4. Any Person seeking indemnification pursuant to this Section
2.5 shall promptly notify the applicable Rightholder after the assertion of such claim.



     2.6 Rule 144 and Rule 144A. The Company shall file in a timely manner all reports
required to be filed by it under the Securities Act and the Securities Exchange Act (or, if the



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Company is not required to file such reports, it will, upon the request of the Investors, make
publicly available other information so long as necessary to permit sales under Rule 144 and Rule
144A under the Securities Act), and it will take such further action as such Investors may
reasonably request, all to the extent required from time to time to enable any of such Investors to
sell Common Shares without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 and Rule 144A under the Securities Act, as such rules may be
amended from time to time, or any similar rules or regulations hereafter adopted by the SEC. Upon
the request of any such Investor, the Company will deliver to such Investor a written statement as
to whether it has complied with such requirements. In addition, the Company agrees that for a
period of 18 months following the date on which a registration statement filed pursuant to
Sections 2.1 or 2.2, above, shall have become effective, the Company shall not
deregister such securities under Section 12 of the Securities Exchange Act.



     2.7 Transferability. Each Rightholder may transfer its rights under this Article
II, but only in connection with a sale or transfer to the following Persons: (a) any Permitted
Transferee (as such term is defined in Schedule 2.7 to this Agreement), (b) any Person if
the Rightholder is selling the number of Subject Shares equal to at least ten percent (10%) of the
number of Registrable Securities owned by the Rightholder, including shares issuable upon the
exercise of any options, warrants or other convertible securities owned by such Rightholder (or an
equivalent number of Registrable Securities), adjusted for any stock dividend, stock splits and the
like as provided for in the Shareholders Agreement; and (c) any Person if the Rightholder is
selling its entire interest in the Registrable Securities. Each Rightholder’s right to transfer
its rights pursuant to this Section shall be conditioned on (i) the Rightholder providing to the
Company, within ten (10) business days after such transfer, written notice of the name and address
of such transferee or assignee and the number of shares of Registrable Securities with respect to
which such rights are being assigned, and (ii) such transferee or assignee agreeing to become a
party to, and subject to the rights and obligations of, this Agreement (after which time such
transferee or assignee shall be deemed a “Rightholder” for purposes of this Agreement). Any
attempted assignment made in contravention of this Agreement shall be null and void and of no force
or effect.



     2.8 No Further Grants of Registration Rights. The Company will not grant to any
present or future shareholder any further registration rights without the consent of a majority of
the holders of the Registrable Securities, voting as a single class.



     2.9 “Lock-Up” and Market Standoff. Each Investor agrees that in the event the Company
proposes an initial public offering of its equity securities in a registration statement under the
Securities Act, and (1) if requested in writing by the Company; and (2) if all other Affiliates of
the Company, all holders of at least 1% of the Company’s voting securities, and all directors and
officers similarly situated are likewise obligated, then each Investor shall not sell, grant any
option or right to buy or sell or otherwise transfer or dispose of in any manner or in any hedging
or other derivative security transaction, to the public in open market transactions, any
Registrable Securities, Common Shares or other securities of the Company held by such Investor
during the period requested by the Company and the underwriter for restrictions on trading or
transfer (the “Lock-Up Period”) following the effective date of the registration statement
of the Company filed under the Securities Act. Each Investor also agrees to enter into a lock-up
agreement with the underwriters that shall be in writing and in form and substance



-11-









 







pursuant to
customary and prevailing terms and conditions for such lock-up agreements. The Company may impose
stop-transfer instructions with respect to the securities subject to the foregoing restrictions
until the end of the Lock-Up Period. Such Lock-Up Period applicable to the Investors shall not
exceed (i) 180 days in length for the Company’s initial public offering, and (ii) 90 days in length
for all subsequent offerings.



     2.10 Expiration of Registration Rights. The right of any Investor to request
registration or inclusion in any registration pursuant to Sections 2.1 or 2.2 shall
terminate upon or at any time following the closing of the first Company-initiated registered
public offering of Common Shares of the Company, if all Common Shares held or entitled to be held
upon conversion by such Investor may immediately be sold under Rule 144 under the Securities Act
during any 90-day period.



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



ARTICLE III

ADDITIONAL PROVISIONS




     3.1 Effective Date. This Agreement shall become effective upon the closing of a
Qualified Public Offering (the “Effective Date”). On the Effective Date, this Agreement
will (i) amend and restate all Prior Investment Agreements, each of which shall be replaced in its
entirety by this Agreement and none of which shall be of any further force or effect and (ii) the
Shareholders Agreement shall terminate and be of no further force or effect.



     3.2 Successors and Assigns. This Agreement shall be binding upon, and inure to the
benefit of, the Investors and the Company and their respective successors and assigns, and, except
as otherwise expressly provided in any particular provision hereof, any subsequent holder of the
Registrable Securities.



     3.3 Notices. All communication or notices required or permitted by this Agreement
shall be in writing and shall be deemed to have been given or made when delivered in hand,
deposited in the mail or sent by facsimile. Communications or notices shall be delivered
personally or by certified or registered mail, return receipt requested and postage prepaid, or by
facsimile with evidence of transmission, and addressed as follows, unless and until either of such
parties notifies the other in accordance with this section of a change of address:



	 	 	 	 	 
	 

	 	(a) if to the Company:
	 	TomoTherapy Incorporated
	 

	 	 	 	1240 Deming Way
	 

	 	 	 	Madison, WI 53717-1954
	 

	 	 	 	(608) 824-2800
	 

	 	 	 	(608) 824-2996 (fax)
	 

	 	 	 	Attn: General Counsel






-12-









 





          (b) if to the Investors, at the addresses set forth on their respective signature page hereto.




     3.4 No Waiver; Remedies Cumulative. No delay on the part of the Investors or any
other holder of the Registrable Securities in exercising any right, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right,
power or privilege hereunder or thereunder preclude other or further exercise thereof, or the
exercise of any other right, power or privilege. The rights and remedies provided in this
Agreement are cumulative and are in addition to all right or remedies which the Investors and such
other holders otherwise may have in law or in equity or by statute or otherwise. Without limiting
the generality of the of the foregoing, nothing in this Agreement shall be deemed to preclude or be
in lieu of any right or remedy that the Investors or other holders may have in law or in equity or
by statute or otherwise against the Company or any other Person based upon any fraud.



     3.5 Amendments and Waivers. Any change or amendment to this Agreement or any waiver
hereunder shall be effective only if in writing and signed by the Company and the Required
Investors.



     3.6 Severability. If any provision of this Agreement is held for any reason to be
unenforceable, the remainder of this Agreement shall remain in full force and effect.



     3.7 Headings. The headings in this Agreement are intended solely for convenience of
reference and shall be given no effect in the construction or interpretation of this Agreement.



     3.8 Governing Law; Venue. This Agreement is made in the State of Wisconsin and shall
be governed by and construed in accordance with the internal laws of the State of Wisconsin,
without reference to its principles of conflicts of law.



     3.9 Counterparts. This Agreement may be executed 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. This Agreement may be executed by facsimile signatures, each of which will be deemed
an original.



     3.10 Further Assurances. The Company agrees, and shall cause its officers, to execute
any other documents or take any other actions reasonably requested by the Investors to fulfill the
transactions described in and contemplated by this Agreement.



[The balance of this page is intentionally left blank. Signature pages follow.]




-13-









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	COMPANY:	 	TOMOTHERAPY INCORPORATED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Frederick A. Robertson 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	     Frederick A. Robertson	 	 
	 

	 	 	 	     Chief Executive Officer	 	 






[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



INVESTOR:




	 	 	 	 	 
	 

	 	/s/ Paul J. Reckwerdt
	 	 
	 

	 	 	 	 
	 

	 	Paul J. Reckwerdt
	 	 
	 
	 	 	 	 
	Notices:

	 	Paul J. Reckwerdt	 	 
	 

	 	c/o TomoTherapy Incorporated	 	 
	 

	 	1240 Deming Way	 	 
	 

	 	Madison, WI 53717-1954	 	 
	 

	 	Phone: (608) 824-2849	 	 
	 

	 	Email: preckwerdt@tomotherapy.com	 	 






[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	 	 	ASCENSION HEALTH	 	 
	 	 	 	 	 	 	a Missouri nonprofit corporation as fiscal agent and
nominee for certain of its wholly-owned subsidiaries	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	   /s/ Anthony J. Spironzo 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	   Anthony J. Spironzo	 	 
	 

	 	 	 	 	 	 	 	   Senior Vice President & Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Notices:	 	Attn:	 	Matt Hermann	 	 
	 	 	 	 	 	 	Phone: (314) 733-8112	 	 
	 	 	 	 	 	 	Fax: (314) 733-8002	 	 
	 	 	 	 	 	 	Email: mhermann@ascensionhealth.org	 	 
	 	 	 	 	 	 	Attn: Jamie Wehrung	 	 
	 	 	 	 	 	 	Phone: (314) 733-8116	 	 
	 	 	 	 	 	 	Fax: (314) 733-8002	 	 
	 	 	 	 	 	 	Email: jwehrung@ascensionhealth.org	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	With a copy to:	 	 	 	Jeffrey W. Short, Esquire	 	 
	 	 	 	 	 	 	Hall, Render, Killian, Heath & Lyman	 	 
	 	 	 	 	 	 	Suite 2000, Box 82064	 	 
	 	 	 	 	 	 	One American Square	 	 
	 	 	 	 	 	 	Indianapolis, IN 46282	 	 
	 	 	 	 	 	 	Phone: (317) 977-1413	 	 
	 	 	 	 	 	 	Fax: (317) 633-4878	 	 
	 	 	 	 	 	 	E-mail: jshort@hallrender.com	 	 






[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



INVESTOR:




	 	 	 	 	 
	 

	 	/s/ Stephen C. Hathaway
	 	 
	 

	 	 	 	 
	 

	 	Stephen C. Hathaway
	 	 
	 
	 	 	 	 
	Notices:

	 	Stephen C. Hathaway	 	 
	 

	 	c/o TomoTherapy Incorporated	 	 
	 

	 	1240 Deming Way	 	 
	 

	 	Madison, WI 53717-1954	 	 
	 

	 	Phone: (608) 824-2838	 	 
	 

	 	Email: shathaway@tomotherapy.com 	 	 






[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:	 	AVALON TECHNOLOGY, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	Avalon Capital Group, Inc, its Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Stanley Ray 	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Stanley Ray	 	 
	 	 	Title: CFO	 	 
	 
	 	 	 	 	 	 
	Notices:	 	c/o Avalon Portfolio, LLC	 	 
	 	 	5786 LaJolla Blvd.	 	 
	 	 	LaJolla, CA 92037	 	 
	 	 	Attn: Michael Mikalsky	 	 
	 	 	Phone: (858) 551-4434	 	 
	 	 	Email: mmikalsky@avalon.com 	 	 






[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:	 	ADVANTAGE CAPITAL WISCONSIN

PARTNERS I, LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 
	 	 	By: Venture Investors LLC	 	 
	 	 	Its: Sub-Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ John Neis 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	     John Neis	 	 
	 

	 	 	 	     Managing Director	 	 
	 
	 	 	 	 	 	 
	Notices:	 	c/o Venture Investors LLC	 	 
	 	 	505 South Rosa Road, #100	 	 
	 	 	Madison, WI 53719-1262	 	 
	 	 	Attn: John Neis, Managing Director	 	 
	 	 	Phone: (608) 441-2700	 	 
	 	 	Fax: (608) 441-2727	 	 
	 	 	Email: john@ventureinvestors.com	 	 






[Signature Page to Amended and Restated Investment Agreement]




 









 











     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.






	 	 	 	 	 	 	 
	INVESTOR:	 	BAIRD VENTURE PARTNERS I

LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Baird Venture Partners Management
Company I, L.L.C.	 	 
	 

	 	Its:
	 	General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Peter K. Shagory	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	   Peter K. Shagory	 	 
	 

	 	 	 	   Managing Director	 	 
	 
	 	 	 	 	 	 
	Notices:	 	c/o Baird Venture Partners	 	 
	 	 	227 West Monroe Street, 22nd Floor	 	 
	 	 	Chicago, IL 60606-5055	 	 
	 	 	Attn: Michael Liang	 	 
	 	 	Phone: (312) 609-5999	 	 
	 	 	Email: mliang@rwbaird.com	 	 







[Signature Page to Amended and Restated Investment Agreement]




 









 









     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.






	 	 	 	 	 	 	 
	INVESTOR:	 	BVP I AFFILIATES FUND

LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Baird Venture Partners Management
Company I, L.L.C.	 	 
	 

	 	Its:
	 	General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Peter K. Shagory	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	   Peter K. Shagory	 	 
	 

	 	 	 	   Managing Director	 	 
	 
	 	 	 	 	 	 
	Notices:	 	c/o Baird Venture Partners	 	 
	 	 	227 West Monroe Street, 22nd Floor	 	 
	 	 	Chicago, IL 60606-5055	 	 
	 	 	Attn: Michael Liang	 	 
	 	 	Phone: (312) 609-5999	 	 
	 	 	Email: mliang@rwbaird.com	 	 








[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:	 	OPEN PRAIRIE VENTURES I, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Open Prairie Ventures Management I, LLC	 	 
	 

	 	Its:
	 	General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Open Prairie Ventures, Inc.	 	 
	 

	 	Its:
	 	Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Dennis D. Spice	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	   Dennis D. Spice	 	 
	 

	 	 	 	   Vice President	 	 
	 
	 	 	 	 	 	 
	Notices:	 	Open Prairie Ventures	 	 
	 	 	115 North Neil Street, Suite 209	 	 
	 	 	Champaign, IL 61820-4024	 	 
	 	 	Attn: Jim Schultz	 	 
	 	 	(400 E. Jefferson St., Effingham, IL 62401)	 	 
	 	 	Phone: (217) 351-7000	 	 
	 	 	Fax: (217) 351-7051	 	 
	 	 	Email: jschultz@openprairie.com	 	 






[Signature Page to Amended and Restated Investment Agreement]




 









 












     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.







	 	 	 	 	 	 	 
	INVESTOR:	 	THE ENDEAVORS GROUP, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Kevin Lindsey	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Kevin Lindsey	 	 
	 

	 	 	 	Manager	 	 
	 
	 	 	 	 	 	 
	Notices:	 	The Endeavors Group, LLC	 	 
	 	 	Attn: Kevin Lindsey	 	 
	 	 	9100 N. Swan Rd.	 	 
	 	 	Milwaukee, WI 53224-1704	 	 
	 	 	Phone: (414) 355-3000	 	 
	 	 	Fax: (414) 355-8060	 	 
	 	 	Email: klindsey@execpc.com	 	 






[Signature Page to Amended and Restated Investment Agreement]





 










 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	780 TOMOTHERAPY PARTNERS
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Michael E. Skindrud
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Michael E. Skindrud
	 

	 	 	 	 	 	Partner
	 
	 	 	 	 	 	 
	 	 	Notices:	 	c/o LaFollette Godfrey & Kahn
	 	 	 	 	One East Main Street, Suite 500
	 	 	 	 	Madison, WI 53703
	 	 	 	 	Attn: Michael E. Skindrud
	 	 	 	 	Phone: (608) 284-2619
	 	 	 	 	Fax: (608) 257-0609
	 	 	 	 	Email: mskindrud@gklaw.com






[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	SKL INVESTMENT GROUP, LLC
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Steve Grissom
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Steve Grissom, Administrative Officer
	 
	 	 	 	 	 	 
	 	 	Notices:	 	SKL Investment Group, LLC
	 	 	 	 	121 S. 17th Street
	 	 	 	 	Mattoon, IL 61938
	 	 	 	 	Attn: Steve Grissom
	 	 	 	 	Phone: (217) 235-4410
	 	 	 	 	Email: steven.grissom@consolidated.com






[Signature Page to Amended and Restated Investment Agreement]





 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	AKRA INVESTMENTS, LLC
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Bob Schultz
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Bob Schultz, President
	 
	 	 	 	 	 	 
	 	 	Notices:	 	c/o Schultz Investment Company
	 	 	 	 	PO Box 218
	 	 	 	 	Effingham, IL 62401
	 	 	 	 	Attn: Bob Schultz
	 	 	 	 	Phone: (217) 342-0802
	 	 	 	 	Email: bschultz@schultzusa.com






[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:
	 	 	 	 	 	 
	 
	 	 	 	/s/ Wade Fetzer III	 	 
	 	 	 	 	 
	 	 	 	 	Wade Fetzer III
	 
	 	 	 	 	 	 
	 	 	Notices:	 	Wade Fetzer III
	 	 	 	 	c/o Goldman, Sachs & Co.
	 	 	 	 	4900 Sears Tower
	 	 	 	 	Chicago, IL 60606-6372
	 	 	 	 	Email: wade.fetzer@gs.com






[Signature Page to Amended and Restated Investment Agreement]





 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:
	 	 	 	 	 	 
	 
	 	 	 	/s/ Frank J. Gambino	 	 
	 	 	 	 	 
	 	 	 	 	Frank J. Gambino
	 
	 	 	 	 	 	 
	 	 	Notices:	 	Frank J. Gambino
	 	 	 	 	1007 Farwell Court
	 	 	 	 	Madison, WI 53704
	 	 	 	 	Phone: (608) 240-9639
	 	 	 	 	Email: fgambino@rwbaird.com






[Signature Page to Amended and Restated Investment Agreement]





 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:
	 	 	 	 	 	 
	 
	 	 	 	/s/ David A. Hackworthy	 	 
	 	 	 	 	 
	 	 	 	 	David A. Hackworthy
	 
	 	 	 	 	 	 
	 	 	Notices:	 	David A. Hackworthy
	 	 	 	 	639 Summit Road
	 	 	 	 	Madison, WI 53704
	 	 	 	 	Phone: (608) 241-2988
	 	 	 	 	Email: dhackworthy-jr@rwbaird.com






[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	HACKWORTHY FAMILY TRUST

DATED MAY 24, 2003
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Patricia A. Hackworthy
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Patricia A. Hackworthy, Trustee
	 
	 	 	 	 	 	 
	 	 	Notices:	 	2136 Van Hise Avenue
	 	 	 	 	Madison, WI 53705
	 	 	 	 	Phone: (608) 233-4400
	 	 	 	 	Or
	 	 	 	 	P.O. Box 392
	 	 	 	 	Madison, WI 53701-0392
	 	 	 	 	Phone: (608) 251-2351
	 	 	 	 	Email: dhackworthy-jr@rwbaird.com






[Signature Page to Amended and Restated Investment Agreement]





 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:
	 	 	 	 	 	 
	 
	 	 	 	/s/ Terry F. Kelly 
	 	 	 	 	 
	 	 	 	 	Terry F. Kelly
	 
	 	 	 	 
	 
	 	 	 	/s/ Mary W. Kelly
	 	 	 	 	 
	 	 	 	 	Mary W. Kelly
	 
	 	 	 	 	 	 
	 	 	Notices:	 	Terry F. and Mary W. Kelly
	 	 	 	 	1007 Hillside Avenue
	 	 	 	 	Madison, WI 53705-1116
	 	 	 	 	Phone (work): (608) 274-5789
	 	 	 	 	Phone (home): (608) 238-3734
	 	 	 	 	Email: tkelly@wxc.com





[Signature Page to Amended and Restated Investment Agreement]





 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.






	 	 	 	 	 	 	 
	INVESTOR:
	 	 	 	 	 	 
	 
	 	 	 	/s/ Thomas S. King
	 	 	 	 	 
	 	 	 	 	Thomas S. King
	 
	 	 	 	 	 	 
		 	Notices:            	Thomas S. King
	 	 	 	 	3582 Bishops Way
	 	 	 	 	Middleton, WI 53562
	 	 	 	 	Phone: (608) 242-4100 ext. 30373
	 	 	 	 	Email: tkin1@amfam.com





[Signature Page to Amended and Restated Investment Agreement]





 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.





	 	 	 	 	 	 	 
	INVESTOR:
	 	 	 	 	 	 
	 
	 	 	 	/s/ Max G. Lagally
	 	 	 	 	 
	 	 	 	 	Max G. Lagally
	 
	 	 	 	
	 
	 	 	 	/s/ Shelley M. Lagally
	 	 	 	 	 
	 	 	 	 	Shelley M. Lagally
	 
	 	 	 	 	 	 
	 	 	Notices:	 	Max G. and Shelley M. Lagally
	 	 	 	 	5110 Juneau Road
	 	 	 	 	Madison, WI 53705-4744
	 	 	 	 	Phone: (608) 233-0071
	 	 	 	 	Email: lagally@neep.engr.wisc.edu





[Signature Page to Amended and Restated Investment Agreement]





 









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



INVESTOR:





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	/s/ Michael G. Laskis
	 	 
	 

	 	 	 	 	 	 

Michael G. Laskis
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Notices:
	 	 	 	Michael G. Laskis	 	 
	 

	 	 	 	 	 	c/o Foley & Lardner	 	 
	 

	 	 	 	 	 	150 E. Gilman Street, PO Box 1497	 	 
	 

	 	 	 	 	 	Madison, WI 53701-1497	 	 
	 

	 	 	 	 	 	Phone: (608) 257-5035	 	 
	 

	 	 	 	 	 	Fax: (608) 258-4258	 	 
	 

	 	 	 	 	 	Email: mlaskis@foleylaw.com	 	 





[Signature Page to Amended and Restated Investment Agreement]




 









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



INVESTOR:





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	/s/ Kevin Lindsey	 	 
	 

	 	 	 	 	 	 

Kevin Lindsey
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Notices:
	 	Kevin Lindsey	 	 
	 

	 	 	 	 	 	c/o The Endeavors Group, LLC	 	 
	 

	 	 	 	 	 	9100 N. Swan Road	 	 
	 

	 	 	 	 	 	Milwaukee, WI 53224-1704	 	 
	 

	 	 	 	 	 	Phone: (414) 355-3000	 	 
	 

	 	 	 	 	 	Fax: (414) 355-8060	 	 
	 

	 	 	 	 	 	Email: klindsey@execpc.com	 	 





[Signature Page to Amended and Restated Investment Agreement]




 









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



INVESTOR:





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	/s/ 
John J. McDonough
	 	 
	 

	 	 	 	 	 	 

John J. McDonough
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Notices:
	 	c/o McDonough Medical Products Corp.	 	 
	 

	 	 	 	 	 	1407 Barclay Boulevard	 	 
	 

	 	 	 	 	 	Buffalo Grove, IL 60089	 	 
	 

	 	 	 	 	 	Phone: (847) 325-9774	 	 
	 

	 	 	 	 	 	Fax: (847) 541-8452	 	 
	 

	 	 	 	 	 	Email: jmcdono286@aol.com	 	 





[Signature Page to Amended and Restated Investment Agreement]




 









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



INVESTOR:





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	/s/ Allison J. McDonough
	 	 
	 

	 	 	 	 	 	 

Allison J. McDonough
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Notices:
	 	Allison J. McDonough	 	 
	 

	 	 	 	 	 	756 Mawman Avenue	 	 
	 

	 	 	 	 	 	Lake Bluff, IL 60044	 	 
	 

	 	 	 	 	 	Phone: (847) 615-9432	 	 
	 

	 	 	 	 	 	Fax: (312) 215-5080	 	 
	 

	 	 	 	 	 	Email: ejm101658@aol.com	 	 





[Signature Page to Amended and Restated Investment Agreement]




 









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



INVESTOR:





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	/s/ Edwin J. McDonough
	 	 
	 

	 	 	 	 	 	 

Edwin J. McDonough
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Notices:
	 	c/o McDonough Medical Products Corp.
	 	 
	 

	 	 	 	 	 	1407 Barclay Boulevard	 	 
	 

	 	 	 	 	 	Buffalo Grove, IL 60089	 	 
	 

	 	 	 	 	 	Phone: (847) 325-9774	 	 
	 

	 	 	 	 	 	Fax: (847) 541-8452	 	 
	 

	 	 	 	 	 	Email: ejm@mcdonoughmedical.com	 	 





[Signature Page to Amended and Restated Investment Agreement]




 









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



INVESTOR:





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	/s/ John J. McDonough, Jr.
	 	 
	 

	 	 	 	 	 	 

John J. McDonough, Jr.
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Notices:
	 	John J. McDonough, Jr.	 	 
	 

	 	 	 	 	 	8225 Cobblestone Drive	 	 
	 

	 	 	 	 	 	Austin, TX 78735	 	 
	 

	 	 	 	 	 	Phone: (512) 394-0329	 	 
	 

	 	 	 	 	 	Fax: (512) 418-0111	 	 
	 

	 	 	 	 	 	Email: johnmcdonough1@mac.com	 	 





[Signature Page to Amended and Restated Investment Agreement]




 









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



INVESTOR:




	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	/s/ Joseph F. McDonough
	 	 
	 

	 	 	 	 	 	 

Joseph F. McDonough
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Notices:
	 	Joseph F. McDonough	 	 
	 

	 	 	 	 	 	6990 Apprentice Place	 	 
	 

	 	 	 	 	 	Middleton, WI 53562	 	 
	 

	 	 	 	 	 	Phone: (608) 831-2292	 	 
	 

	 	 	 	 	 	Fax: (425) 645-0313	 	 
	 

	 	 	 	 	 	E-mail: joe@joemcdonough.com	 	 






[Signature Page to Amended and Restated Investment Agreement]




 









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



INVESTOR:




	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	/s/ Dana L. McDonough
	 	 
	 

	 	 	 	 	 	 

Dana L. McDonough
	 	 
	 
	 

	 	 	 	Notices:
	 	Dana L. McDonough	 	 
	 

	 	 	 	 	 	310 Ravine Forest Drive	 	 
	 

	 	 	 	 	 	Lake Bluff, IL 60045	 	 
	 

	 	 	 	 	 	Phone: (847) 735-9772	 	 
	 

	 	 	 	 	 	Fax: (847) 735-9678	 	 
	 

	 	 	 	 	 	Email: mcdonod@comcast.net	 	 






[Signature Page to Amended and Restated Investment Agreement]





 










 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.





	 	 	 	 	 
	INVESTOR:
	 	 	 	/s/ Cary J. Nolan
	 

	 	 	 	 
	 

	 	 	 	Cary J. Nolan
	 
	 	 	 	 
	 

	 	Notices:
	 	Cary J. Nolan
	 

	 	 	 	10028 Hobart Road
	 

	 	 	 	Kirtland, OH 44094-9723
	 

	 	 	 	Phone: (440) 256-3903/3904
	 

	 	 	 	Fax: (440) 256-2900
	 

	 	 	 	Fax (winter): (949) 376-4554
	 

	 	 	 	Mobile: (216) 314-5651
	 

	 	 	 	Email: cnolan95@aol.com






[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	ARDESTA EMPLOYEES’ 401(K) SAVINGS &
INVESTMENT PLAN F/B/O CHRISTOPHER RIZIK
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Christopher L. Rizik
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	     Christopher L. Rizik, Trustee
	 
	 	 	 	 	 	 
	 	 	Notices:	 	Christopher L. Rizik
	 	 	 	 	c/o Ardesta Employees’ 401(k) Savings &
	 	 	 	 	Investment Plan
	 	 	 	 	201 S. Main Street, Suite 1000
	 	 	 	 	Ann Arbor, MI 48104
	 	 	 	 	Email: chrisrizik@ardesta.com






[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 
	INVESTOR:
	 		 	/s/ Anne E. Ross 
	 

	 	 	 	 
	 

	 	 	 	Anne E. Ross
	 
	 	 	 	 
	 

	 	Notices:
	 	Anne E. Ross
	 

	 	 	 	c/o Foley & Lardner
	 

	 	 	 	150 E. Gilman Street, PO Box 1497
	 

	 	 	 	Madison, WI 53701-1497
	 

	 	 	 	Phone: (608) 257-5035
	 

	 	 	 	Fax: (608) 258-4258
	 

	 	 	 	Email: aross@foleylaw.com





[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	RONALD D. SIPPEL REVOCABLE TRUST
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	     /s/ Ronald D. Sippel, Trustee 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	     Ronald D. Sippel, Trustee
	 
	 	 	 	 	 	 
	 	 	Notices:	 	Ronald D. Sippel
	 	 	 	 	1312 Church Street
	 	 	 	 	Evanston, IL 60201
	 	 	 	 	Phone: (312) 559-8891
	 	 	 	 	Email: rsippel@usa.net





[Signature Page to Amended and Restated Investment Agreement]



 









 







     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 
	INVESTOR:
	 	 	 	/s/ Dennis Skogen 
	 

	 	 	 	 
	 

	 	 	 	Dennis Skogen
	 
	 	 	 	 
	 

	 	Notices:
	 	Dennis Skogen
	 

	 	 	 	3154 Wacheeta Trail
	 

	 	 	 	Madison, WI 53711-5952
	 

	 	 	 	Phone: (608) 222-8600
	 

	 	 	 	Email: dennis@skogen.com




[Signature Page to Amended and Restated Investment Agreement]




 









 









     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.






	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	RICHARD D. SNYDER REVOCABLE TRUST
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Richard D. Snyder
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	     Richard D. Snyder, Trustee
	 
	 	 	 	 	 	 
	 	 	Notices:	 	c/o Richard D. Snyder
	 	 	 	 	201 S. Main Street, Suite 1000
	 	 	 	 	Ann Arbor, MI 48104






[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.






	 	 	 	 	 
	INVESTOR:
	 	 	 	/s/ Marc Vaintrub
	 

	 	 	 	 
	 

	 	 	 	Marc Vaintrub
	 
	 	 	 	 
	 

	 	Notices:
	 	Marc Vaintrub
	 

	 	 	 	843 West Webster Avenue
	 

	 	 	 	Chicago, IL 60614
	 

	 	 	 	Phone: (773) 525-1791
	 

	 	 	 	Email: marc@vaintrub.org




[Signature Page to Amended and Restated Investment Agreement]



 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.





	 	 	 	 	 
	INVESTOR:
	 	 	 	/s/ David G. Walsh
	 

	 	 	 	 
	 

	 	 	 	David G. Walsh
	 
	 	 	 	 
	 

	 	Notices:
	 	David G. Walsh
	 

	 	 	 	c/o Foley & Lardner
	 

	 	 	 	150 E. Gilman Street
	 

	 	 	 	Madison, WI 53703-2808
	 

	 	 	 	Phone: (608) 257-5035
	 

	 	 	 	Fax: (608) 258-4258
	 

	 	 	 	Email: dwalsh@foleylaw.com




[Signature Page to Amended and Restated Investment Agreement]





 









 









     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	ALLAN A. WEISSBURG REVOCABLE TRUST
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Allan A. Weissburg
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	     Allan A. Weissburg, Trustee
	 
	 	 	 	 	 	 
	 	 	Notices:	 	c/o Allan A. Weissburg
	 	 	 	 	11502 Hemingway Drive
	 	 	 	 	Reston, VA 20194-1252
	 	 	 	 	Phone: (703) 467-9855
	 	 	 	 	Email: allan@weissburg.com





[Signature Page to Amended and Restated Investment Agreement]




 









 







     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	STATE OF WISCONSIN 
INVESTMENT BOARD
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Chris Prestigiacomo
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	     Chris Prestigiacomo
	 

	 	 	 	 	 	     Portfolio Manager
	 
	 	 	 	 	 	 
	 	 	Notices:	 	121 East Wilson Street
	 	 	 	 	Madison, WI 53702
	 	 	 	 	Attn: Chris Prestigiacomo, Portfolio Manager
	 	 	 	 	Phone: (608) 266-6723
	 	 	 	 	Fax: (608) 266-2436
	 	 	 	 	Email: chris.prestigiacomo@swib.state.wi.us






[Signature Page to Amended and Restated Investment Agreement]





 










 









     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.







	 	 	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	VENTURE INVESTORS EARLY STAGE FUND

II LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: Venture Investors Founders, L.P.

Its: General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: Venture Investors LLC

Its: General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ John Neis	 	 
	 

	 	 	 	 	 	 

John Neis
	 	 
	 

	 	 	 	 	 	Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Notices:	 	c/o Venture Investors LLC

505 South Rosa Road, #100

Madison, WI 53719-1262

Attn: John Neis, Managing Director

Phone: (608) 441-2700

Fax: (608) 441-2727

Email: john@ventureinvestors.com	 	 








[Signature Page to Amended and Restated Investment Agreement]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.








	 	 	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	VENTURE INVESTORS EARLY STAGE FUND

III LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: Venture Investors LLC

Its: General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ John Neis	 	 
	 

	 	 	 	 	 	 

John Neis

Managing Director
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Notices:	 	 	 	 	 	 
	 	 	 	 	505 South Rosa Road, #100

Madison, WI 53719-1262

Attn: John Neis, Managing Director

Phone: (608) 441-2700

Fax: (608) 441-2727

Email: john@ventureinvestors.com	 	 






 [Signature Page to Amended and Restated Investment Agreement]




 









 






     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.





	 	 	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	WISCONSIN ALUMNI RESEARCH FOUNDATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Carl E. Gulbrandsen	 	 
	 

	 	 	 	 	 	 

Carl E. Gulbrandsen

Managing Director
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Carrie J. Thome	 	 
	 

	 	 	 	 	 	 

Carrie J. Thome

Associate Director of Investments
	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Notices:	 	614 Walnut Street (53705)

P.O. Box 7365

Madison, WI 53707-7365

Attn: Carrie J. Thome, Associate Director of
Investments

Phone: (608) 263-2500

Fax: (608) 263-1064

Email: cthome@warf.ws	 	 






[Signature Page to Amended and Restated Investment Agreement]





 









 






     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.







	 	 	 	 	 	 	 
	INVESTOR:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	/s/ James Hanson	 	 
	 

	 	 	 	 

James Hanson
	 	 
	 
	 	 	 	 	 	 
	 

	 	Notices:
	 	James Hanson

3440 Highpoint Road

Madison, WI 53719

Phone (Mobile): (608) 358-2817

Email: jimhanson@gdinet.com	 	 







 [Signature Page to Amended and Restated Investment Agreement]




 









 






     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.






	 	 	 	 	 	 	 
	INVESTOR:

	 	 	 	DAVID & LESLIE WEISSBURG,

 JTWROS	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	/s/ David Weissburg	 	 
	 

	 	 	 	 

David Weissburg
	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	/s/ Leslie Weissburg	 	 
	 

	 	 	 	 

Leslie Weissburg
	 	 
	 
	 	 	 	 	 	 
	 

	 	Notices:
	 	David and Leslie Weissburg

4213 Winnequah Road

Monona, WI 53716

Phone: (608) 221-0023

Fax: (608) 221-9055

Email: david@weissburg.com	 	 




 [Signature Page to Amended and Restated Investment Agreement]




 









 






     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 	 	 
	INVESTOR:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	/s/ P. Schaefer Price	 	 
	 

	 	 	 	 

P. Schaefer Price
	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	/s/ Amy J. Price	 	 
	 

	 	 	 	 

Amy J. Price
	 	 
	 
	 	 	 	 	 	 
	 

	 	Notices:
	 	P. Schaefer and Amy J. Price

c/o Pharmasset

303 College Road East

Princeton, NJ 08540

Phone: (404) 325-5183

Email: sprice@pharmasset.com	 	 




 [Signature Page to Amended and Restated Investment Agreement]




 









 






     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH	 	 
	 
	 

	 	 	 	By:	 	/s/ Stephen P. VanNurden 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Name:	 	Stephen P. VanNurden 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Its:	 	Assistant Treasurer 	 	 
	 

	 	 	 	 	 	 

	 	 
	 	 	Notices:	 	Attn: Nathan L. Stacy

Mayo Medical Ventures

200 First Street, S.W.

Rochester, MN 55905

Phone: (507) 538-1652

Fax: (507) 284-5410

E-mail: stacy.nathan@mayo.edu	 	 





 [Signature Page to Amended and Restated Investment Agreement]




 









 






     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 	 	 
	INVESTOR:	 	 	 	SUNSHINE SUMMIT, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Jose Luis Pino-y-Torres 	 	 
	 

	 	 	 	Its:	 	President 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Notices:	 	Attn: Dr. Jose Luis Pino-y-Torres

22 Shady Lane

Sparta, NJ 07871

Phone: (407) 628-4526

Mobile: (407) 367-9731

Email: pinoytorres@earthlink.net	 	 





 [Signature Page to Amended and Restated Investment Agreement]




 









 






     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.




	 	 	 	 	 	 	 
	INVESTOR:
	 	 	 	 	 	 
	 
	 	 	 	/s/ John J. Barni	 	 
	 

	 	 	 	 

John J. Barni
	 	 
	 
	 	 	 	 	 	 
	 

	 	Notices:
	 	John J. Barni

6757 Bramblewood Lane

Mayfield Village, OH 44143

Mobile: (440) 655-3889

Email: vwbug66@sbcglobal.net	 	 





[Signature Page to Amended and Restated Investment Agreement]





 









 






EXHIBIT A




Investors




Reckwerdt, Paul J.

Barni, John

Hathaway, Stephen C.

Avalon Technology, LLC

Wisconsin Alumni Research Foundation

Venture Investors Early Stage Fund III L.P.

Venture Investors Early Stage Fund II L.P.

Advantage Capital Wisconsin Partners I, L.P.

Open Prairie Ventures I, L.P.

Mayo Foundation for Medical Education and Research

Endeavors Group, LLC, The

AKRA Investments, LLC

Ascension Health

780 Partners

Baird Venture Partners I L.P.

BVP I Affiliates Fund L.P.

Fetzer III, Wade

Gambino, Frank J.

Hackworthy, David A.

Hackworthy Family Trust

Hanson, James

Kelly, Terry F. and Mary W.

King, Thomas S.

Lagally, Max G. and Shelley M.

Laskis, Michael G.

Lindsey, Kevin

McDonough, John J.

McDonough, Allison J.

McDonough, Edwin J.

McDonough, John J. Jr.

McDonough, Joseph F.

McDonough, Dana L.

Nolan, Cary

Price, P. Schaefer and Amy J.

Rizik, Christopher L. 401(k)

Ross, Anne E.

Sippel Revocable Trust

SKL Investment Group, LLC

Skogen, Dennis

Snyder Revocable Trust

Sunshine Summit, LLC




A-1









 





Vaintraub, Marc

Walsh, David G.

Weissburg, Allan A. Revocable Trust

Weissburg, David and Leslie, JTWROS

State of Wisconsin Investment Board




A-2









 





SCHEDULE 2.7

to

Amended and Restated Investment Agreement




Definition of Permitted Transferee





	 	 	“Permitted Transferee” shall mean,
	 
	(i)	 	with respect to Advantage Capital Wisconsin Partners I, Limited Partnership, a Wisconsin
Limited Partnership (“Advantage”), (a) any shareholder or member of Advantage or
Advantage Capital Wisconsin-GP I, LLC (such shareholder or member, an “Advantage
Member”), any corporation, partnership, limited liability company or other entity that is
an Affiliate of Advantage or any Advantage Member (an “Advantage Affiliate”), (b) any
managing director, director, general partner, limited partner, officer or employee of
Advantage, an Advantage Member or an Advantage Affiliate, or any spouse or lineal descendant
of any of the foregoing persons or any heir, executor, administrator, testamentary trustee,
legatee or beneficiary of any of the foregoing persons (provided that no Advantage Affiliate
that becomes such an entity primarily for the purpose of effecting a transfer of the
Registrable Securities shall be considered a Permitted Transferee ) (collectively,
“Advantage Associates”), and (c) any trust, the beneficiaries of which, or any
corporation, limited liability company or partnership, the stockholders, members or general
and limited partners of which include only Advantage, Advantage Members, Advantage Affiliates
or Advantage Associates;
	 
	(ii)	 	with respect to Avalon Technology, LLC, a Michigan limited liability company
(“Avalon”), (a) any shareholder or member of Avalon or Avtech Ventures, LLC
(collectively, “Avalon Investment”) (such shareholder or member, an “Avalon
Member”), any corporation, partnership, limited liability company or other entity that is
an Affiliate of Avalon Investment or any Avalon Member (an “Avalon Affiliate”), (b)
any managing director, director, general partner, limited partner, officer or employee of
Avalon Investment, an Avalon Member or an Avalon Affiliate, or any spouse or lineal descendant
of any of the foregoing persons or any heir, executor, administrator, testamentary trustee,
legatee or beneficiary of any of the foregoing persons (provided that no Avalon Affiliate that
becomes such an entity primarily for the purpose of effecting a transfer of the Registrable
Securities shall be considered a Permitted Transferee) (collectively, “Avalon
Associates”), and (c) any trust the beneficiaries of which, or any corporation, limited
liability company or partnership, the stockholders, members or general and limited partners of
which include only Avalon Investment, Avalon Members, Avalon Affiliates or Avalon Associates;
	 
	(iii)	 	with respect to Venture Investors Early Stage Fund III Limited Partnership, a Wisconsin
limited partnership (“VI”), (a) any general partner, limited partner, shareholder or
member of VI or Venture Investors LLC (collectively, “Venture Investors”) (such
shareholder or member, a “VI Member”), any corporation, partnership, limited liability
company or other entity that is an Affiliate of Venture Investors or any VI Member (a




 









 






	 	 	“VI Affiliate”), (b) any managing director, director, general partner, limited
partner, officer or employee of Venture Investors, a VI Member or a VI Affiliate, or any
spouse or lineal descendant of any of the foregoing persons or any heir, executor,
administrator, testamentary trustee, legatee or beneficiary of any of the foregoing persons
(provided that no VI Affiliate that becomes such an entity primarily for the purpose of
effecting a transfer of the Registrable Securities shall be considered a Permitted
Transferee) (collectively, “VI Associates”), and (c) any trust the beneficiaries of
which, or any corporation, limited liability company or partnership, the stockholders,
members or general and limited partners of which include only Venture Investors, VI Members,
VI Affiliates or VI Associates;
	 
	(iv)	 	with respect to Venture Investors Early Stage Fund II Limited Partnership, a Wisconsin
limited partnership (“VIESF II”), (a) any general partner, limited partner,
shareholder or member of VIESF II or Venture Investors LLC (collectively, “VIESF
Investors”) (such shareholder or member, a “VIESF Member”), any corporation,
partnership, limited liability company or other entity that is an Affiliate of VIESF Investors
or any VIESF Member (a “VIESF Affiliate”), (b) any managing director, director,
general partner, limited partner, officer or employee of VIESF Investors, a VIESF Member or a
VIESF Affiliate, or any spouse or lineal descendant of any of the foregoing persons or any
heir, executor, administrator, testamentary trustee, legatee or beneficiary of any of the
foregoing persons (provided that no VIESF Affiliate that becomes such an entity primarily for
the purpose of effecting a transfer of the Registrable Securities shall be considered a
Permitted Transferee) (collectively, “VIESF Associates”), and (c) any trust the
beneficiaries of which, or any corporation, limited liability company or partnership, the
stockholders, members or general and limited partners of which include only VIESF Investors,
VIESF Members, VIESF Affiliates or VIESF Associates;
	 
	(v)	 	with respect to Open Prairie Ventures I, L.P., an Illinois limited partnership (“Open
Prairie Ventures”), (a) any general partner, limited partner, shareholder or member of
Open Prairie Ventures (collectively, “Open Prairie”) (such shareholder or member, an
“Open Prairie Member”), any corporation, partnership, limited liability company or
other entity that is an Affiliate of Open Prairie or any Open Prairie Member (an “Open
Prairie Affiliate”), (b) any managing director, director, general partner, limited
partner, officer or employee of Open Prairie, an Open Prairie Member or an Open Prairie
Affiliate, or any spouse or lineal descendant of any of the foregoing persons or any heir,
executor, administrator, testamentary trustee, legatee or beneficiary of any of the foregoing
persons (provided that no Open Prairie Affiliate that becomes such an entity primarily for the
purpose of effecting a transfer of the Registrable Securities shall be considered a Permitted
Transferee) (collectively, “Open Prairie Associates”), and (c) any trust the
beneficiaries of which, or any corporation, limited liability company or partnership, the
stockholders, members or general and limited partners of which include only Open Prairie, Open
Prairie Members, Open Prairie Affiliates or Open Prairie Associates;
	 
	(vi)	 	with respect to Baird Venture Partners I Limited Partnership and BVP I Affiliates Fund
Limited Partnership, (a) any general partner, limited partner, shareholder or member of Baird
Venture Partners I Limited Partnership, BVP I Affiliates Fund Limited Partnership,




 









 






	 	 	Baird Venture Partners Management Company I, L.L.C. or Baird Capital Partners Management
Company, L.L.C. (collectively, “Baird”) (such shareholder or member, a “Baird
Member”), any corporation, partnership, limited liability company or other entity that
is an Affiliate of Baird or any Baird Member (a “Baird Affiliate”), (b) any managing
director, director, general partner, limited partner, partner, senior vice president, vice
president, officer or employee of Baird, a Baird Member or a Baird Affiliate, or any spouse
or lineal descendant of any of the foregoing persons or any heir, executor, administrator.
testamentary trustee. legatee or beneficiary of any of the foregoing persons (provided that
no Baird Affiliate that becomes such an entity primarily for the purpose of effecting a
transfer of the Registrable Securities shall be considered a Permitted Transferee)
(collectively. “Baird Associates”), and (c) any trust the beneficiaries of which, or
any corporation. limited liability company or partnership. the stockholders. members or
general and limited partners of which include only Baird, Baird Members, Baird Affiliates or
Baird Associates;
	 
	(vii)	 	with respect to The Endeavors Group, LLC, a Wisconsin limited liability company (“The
Endeavors Group”) (a) any member of The Endeavors Group (“Endeavors Member”), (b)
any corporation, partnership, limited liability company or other entity that is an Affiliate
of any Endeavors Member (an “Endeavors Affiliate”), (c) any managing director,
director, general partner, limited partner, officer or employee of an Endeavors Member or an
Endeavors Affiliate, or any spouse or lineal descendant of any of the foregoing persons or any
heir, executor, administrator, testamentary trustee, legatee or beneficiary of any of the
foregoing persons (provided that no Endeavors Affiliate that becomes such an entity primarily
for the purpose of effecting a transfer of the Registrable Securities shall be considered a
Permitted Transferee) (collectively, “Endeavors Associates”), and (d) any trust the
beneficiaries of which, or any corporation. limited liability company or partnership, the
stockholders, members or general and limited partners of which include only Endeavors Members,
Endeavors Affiliates or Endeavors Associates;
	 
	(viii)	 	with respect to Mayo Foundation for Medical Education and Research (MFMER), any corporation,
partnership, limited liability company or other entity that is an Affiliate of MFMER, and
	 
	(ix)	 	with respect to Ascension Health, a Missouri nonprofit corporation (“Ascension”), any
Affiliate of Ascension or any Affiliate of any of its subsidiaries.