IRA Rev 3.docx

1、IRA Rev 3AMENDED AND RESTATEDINVESTORS RIGHTS AGREEMENTPreliminary NotesAn Investors Rights Agreement can cover many different subjects. The most frequent are information rights, registration rights, contractual “rights of first offer or preemptive” rights i.e., the right to purchase securities in s

2、ubsequent equity financings conducted by the Company), and various post-closing covenants.TABLE OF CONTENTSPage1. Definitions. 22. Registration Rights 62.1 Demand Registration 62.2 Company Registration. 82.3 Underwriting Requirements 92.4 Obligations of the Company 112.5 Furnish Information 122.6 Ex

3、penses of Registration 122.7 Delay of Registration 132.8 Indemnification 132.9 Reports Under Exchange Act 162.10 Limitations on Subsequent Registration Rights 162.11 Market Stand off Agreement 172.12 Restrictions on Transfer 182.13 Termination of Registration Rights 203. Information and Observer Rig

4、hts 203.1 Delivery of Financial Statements 203.2 Inspection 223.3 Observer Rights 233.4 Termination of Information and Observer Rights 233.5 Confidentiality 234. Rights to Future Stock Issuances 244.1 Right of First Offer 244.2 Directed IPO Shares. 264.3 Termination 275. Additional Covenants 275.1 I

5、nsurance 275.2 Employee Agreements 275.3 Employee Vesting 285.4 Qualified Small Business Stock 285.5 Matters Requiring Investor Director Approval 285.6 Meetings of the Board of Directors 305.7 Successor Indemnification 305.8 Board Expenses 305.9 Termination of Covenants 306. Miscellaneous 306.1 Succ

6、essors and Assigns 306.2 Governing Law 316.3 Counterparts; Facsimile 326.4 Titles and Subtitles 326.5 Notices 326.6 Amendments and Waivers 326.7 Severability 336.8 Aggregation of Stock 336.9 Additional Investors 336.10 Entire Agreement 336.11 Dispute Resolution 346.12 Delays or Omissions 346.13 Ackn

7、owledgment 35Schedule A - Schedule of InvestorsSchedule B - Schedule of Key HoldersExhibit A - Form of Noncompetition and Nonsolicitation AgreementAMENDED AND RESTATEDINVESTORS RIGHTS AGREEMENTTHIS AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT (“Agreement”) is made as of the _ day of _, 200_, by a

8、nd among _, a Delaware corporation (the “Company”), and each of the investors listed on Schedule A hereto, each of which is referred to in this Agreement as an “Investor”,” and each of the stockholders listed on ScheduleB hereto, each of whom is referred to herein as a “Key Holder” and any Additiona

9、l Purchaser (as defined in the Purchase Agreement) that becomes a party to this Agreement in accordance with Section 6.9 hereof.RECITALSAlternative 1:WHEREAS, the Company and the Investors are parties to the Series A Preferred Stock Purchase Agreement of even date herewith (the “Purchase Agreement”)

10、; andWHEREAS, in order to induce the Company to enter into the Purchase Agreement and to induce the Investors to invest funds in the Company pursuant to the Purchase Agreement, the Investors and the Company hereby agree that this Agreement shall govern the rights of the Investors to cause the Compan

11、y to register shares of Common Stock issuable to the Investors, to receive certain information from the Company, and to participate in future equity offerings by the Company, and shall govern certain other matters as set forth in this Agreement;NOW, THEREFORE, the parties hereby agree as follows:Alt

12、ernative 2:WHEREAS, certain of the Investors (the “Existing Investors”) hold shares of the Companys Series _ Preferred Stock and/or shares of Common Stock issued upon conversion thereof and possess registration rights, information rights, rights of first offer, and other rights pursuant to an Invest

13、ors Rights Agreement dated as of _ _, 200_ between the Company and such Investors (the “Prior Agreement”); and WHEREAS, the Existing Investors are holders of at least _ percent (_%) of the Registrable Securities of the Company (as defined in the Prior Agreement), and desire to amend and restate term

14、inate the Prior Agreement in its entirety and to accept the rights created pursuant to this Agreement in lieu of the rights granted to them under the Prior Agreement; andWHEREAS, certain of the Investors are parties to that certain Series _ Preferred Stock Purchase Agreement of even date herewith be

15、tween the Company and certain of the Investors (the “Purchase Agreement”), under which certain of the Companys and such Investors obligations are conditioned upon the execution and delivery of this Agreement by such Investors, Existing Investors holding at least _ percent (_%) of the Registrable Sec

16、urities, and the Company; NOW, THEREFORE, the Existing Investors hereby agree that the Prior Agreement shall be amended and restated superseded and replaced in its entirety by this Agreement, and the parties to this Agreement further agree as follows: 1. Definitions. For purposes of this Agreement:1

17、.1 “Affiliate” means, with respect to any specified Person, any other Person who or which, directly or indirectly, controls, is controlled by, or is under common control with such specified Person, including without limitation any general partner, officer, director, or manager of such Person and any

18、 venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person.1.2 “Common Stock” means shares of the Companys common stock, par value $0._ per share.1.3 “Damages” means any loss, dama

19、ge, or liability (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act, or other federal or state law, insofar as such loss, damage, or liability (or any action in respect thereof) arises out of or is based upon (i) any untrue statement or alleged u

20、ntrue statement of a material fact contained in any registration statement of the Company, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto; (ii)an omission or alleged omission to state therein a material fact required to be stated t

21、herein, or necessary to make the statements therein not misleading; or (iii) any violation or alleged violation by the indemnifying party (or any of its agents or Affiliates) of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities

22、 Act, the Exchange Act, or any state securities law.1.4 “Derivative Securities” means any securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants.1.5 “Exchange Act” means the Securities Exchange Ac

23、t of 1934, as amended, and the rules and regulations promulgated thereunder.1.6 “Excluded Registration” means (i) a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; (ii) a registration relating to

24、 an SEC Rule 145 transaction; (iii) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; or (iv) a registration in which the only Common Stock being registe

25、red is Common Stock issuable upon conversion of debt securities that are also being registered.1.7 “Form S1” means such form under the Securities Act as in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the SEC.1.8 “Form S2” means such f

26、orm under the Securities Act as in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the SEC.1.9 “Form S3” means such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequent

27、ly adopted by the SEC that permits incorporation of substantial information by reference to other documents filed by the Company with the SEC.1.10 “GAAP” means generally accepted accounting principles in the United States.1.11 “Holder” means any holder of Registrable Securities who is a party to thi

28、s Agreement.1.12 “Immediate Family Member” means a child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, of a natural person referred to herein.1.1

29、3 “Initiating Holders” means, collectively, Holders who properly initiate a registration request under this Agreement.1.14 “IPO” means the Companys first underwritten public offering of its Common Stock under the Securities Act.1.15 “Key Employee” means any executive-level employee (including divisi

30、on director and vice president-level positions) as well as any employee who, either alone or in concert with others, develops, invents, programs, or designs any Company Intellectual Property (as defined in the Purchase Agreement).1.16 “Key Holder Registrable Securities” means (i) the _ shares of Com

31、mon Stock held by the Key Holders, and (ii) any Common Stock issued as (or issuable upon the conversion or exercise of any warrant, right, or other security that is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of such shares.1.17 “Major Investor”

32、means any Investor that, individually or together with such Investors Affiliates, holds at least _ shares of Registrable Securities (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the date hereof).1.18 “New Securities” means, collectively, equity securities of the Company, whether or not currently auth