MEMSIC, INC. FIFTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Exhibit 4.3
MEMSIC, INC.
FIFTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Agreement dated as of December 22, 2006 is entered into by and among MEMSIC, Inc., a Delaware corporation (the “Company”), Dr. Yang Zhao (the “Founder”), and the holders the Company’s Preferred Stock listed on the Schedule of Preferred Holders attached hereto as Exhibit A, together with any subsequent Purchasers, or transferees, who become parties hereto as “Purchasers” pursuant to Sections 5 and 9.10 below (the “Purchasers” and each individually a “Purchaser” and together with the Founder, the “Stockholders”).
Recitals
WHEREAS, the Company, the Founder and certain of the Purchasers are parties to a Fourth Amended and Restated Investor Rights Agreement dated as of May 5, 2004 (the “Prior Investor Rights Agreement”);
WHEREAS, concurrently with the execution of this Agreement, the Company and certain the Purchasers are entering into a Series D Convertible Preferred Stock Purchase Agreement (the “Purchase Agreement”) providing for the sale of shares of the Company’s Series D Convertible Preferred Stock; and
WHEREAS, the Company and the Stockholders desire to amend and restate the Prior Investor Rights Agreement in its entirety with the rights and privileges as set forth herein to provide for certain arrangements with respect to (i) the registration of shares of capital stock of the Company under the Securities Act of 1933, as amended and (ii) the Stockholders’ right of first refusal with respect to certain issuances of securities of the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and the consummation of the sale and purchase of the securities of the Company pursuant to the Purchase Agreement, and for other valuable consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following respective meanings:
1.1. “Affiliate” means another Person who, directly or indirectly, controls, is controlled by or is under common control with such Person, including, without limitation, any partner, officer, director, member or employee of such Person and any venture capital fund now or hereafter existing that is controlled by or under common control with one or more general partners or shares the same management company with such Person.
1.2. “Commission” means the Securities and Exchange Commission, or any other federal agency at the time administering the Securities Act.
1.3. “Common Stock” means the common stock, $0.00001 par value per share, of the Company.
1.4. “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor federal statute, and the rules and regulations of the Commission issued under such Act, as they each may, from time to time, be in effect.
1.5. “Initiating Holders” means the Stockholders initiating a request for registration pursuant to Section 2.1(a) or 2.1(b), as the case may be.
1.6. “Initial Public Offering” means the initial underwritten public offering of shares of Common Stock pursuant to an effective Registration Statement.
1.7. “Other Holders” shall have the meaning set forth in Section 2.1(d).
1.8. “Person” means an individual, firm, corporation, partnership, association, limited liability company, trust or any other entity.
1.9. “Prospectus” means the prospectus included in any Registration Statement, as amended or supplemented by an amendment or prospectus supplement, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
1.10. “Registration Statement” means a registration statement filed by the Company with the Commission for a public offering and sale of securities of the Company (other than a registration statement on Form S-8 or Form S-4, or their successors, or any other form for a similar limited purpose, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another corporation).
1.11. “Registration Expenses” means the expenses described in Section 2.4.
1.12. “Registrable Shares” means the shares of Common Stock that are owned from time to time by a Stockholder; and such shares of Common Stock that are transferred by a Stockholder in compliance with Section 4 of this Agreement; provided, however, that shares of Common Stock which are Registrable Shares shall cease to be Registrable Shares upon any sale pursuant to a Registration Statement or Rule 144 under the Securities Act. Wherever reference is made in this Agreement to a request or consent of holders of a certain percentage of Registrable Shares, the determination of such percentage shall include shares of Common Stock issuable upon conversion of the Shares whether or not the Shares have been converted.
1.13. “Securities Act” means the Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations of the Commission issued under such Act, as they each may, from time to time, be in effect.
1.14. “Selling Stockholder” means any Stockholder owning Registrable Shares included in a Registration Statement.
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1.15. “Shares” means shares of Series A Convertible Preferred Stock, par value $0.01 per share, shares of Series B Convertible Preferred Stock, par value $0.01 per share, shares of Series C Convertible Preferred Stock, par value $0.01 per share, and shares of Series D Convertible Preferred Stock, par value $0.01 per share, of the Company.
2. REGISTRATION RIGHTS.
2.1. Required Registrations.
(a) At any time after the earlier of (x) December 31, 2007 or (y) six months after the closing of the Initial Public Offering, a Stockholder or Stockholders holding in the aggregate at least 30% of the outstanding Registrable Shares may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) of Registrable Shares owned by such Stockholder or Stockholders having an aggregate value of at least $5,000,000 (based on the then current market price or fair value). Dr. Yang Zhao shall not be considered a Stockholder for purposes of this Section 2.1 only.
(b) At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), a Stockholder or Stockholders holding Registrable Shares may request, in writing, that the Company effect the registration on Form S-3 (or such successor form), of Registrable Shares having an aggregate value of at least $1,000,000 (based on the then current public market price).
(c) Upon receipt of any request for registration pursuant to this Section 2.1, the Company shall promptly give written notice of such proposed registration to all other Stockholders. Such Stockholders shall have the right, by giving written notice to the Company within 30 days after the Company provides its notice, to elect to have included in such registration such of their Registrable Shares as such Stockholders may request in such notice of election, subject in the case of an underwritten offering to the approval of the managing underwriter as provided in Section 2.1(d) below. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration on an appropriate registration form of all Registrable Shares which the Company has been requested to so register (provided, however, that in the case of a registration requested under Section 2.1(b), the Company will only be obligated to effect such registration on Form S-3 (or any successor form)).
(d) If Initiating Holders intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.1(a) or 2.1(b), as the case may be, and the Company shall include such information in its written notice referred to in Section 2.1(c). The right of any other Stockholder to include its Registrable Shares in such registration pursuant to Section 2.1(a) or 2.1(b), as the case may be, shall be conditioned upon such other Stockholder’s participation in such underwriting on the terms set forth herein.
(e) If the Company desires that any officers or directors of the Company holding securities of the Company be included in any registration for an underwritten offering requested pursuant to Section 2.1(d) or if other holders of securities of the Company who
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are entitled, by contract with the Company, to have securities included in such a registration (the “Other Holders”) request such inclusion, the Company may include the securities of such officers, directors and Other Holders in such registration and underwriting on the terms set forth herein. The Company shall (together with all Stockholders, officers, directors and Other Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form (including, without limitation, customary indemnification and contribution provisions on the part of the Company) with the managing underwriter; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of Stockholders materially greater than the obligations of the Stockholders pursuant to Section 2.5. Notwithstanding any other provision of this Section 2.1(e), if the managing underwriter advises the Company that the inclusion of all shares requested to be registered would adversely affect the offering, the securities of the Company held by officers or directors of the Company (other than Registrable Shares) and the securities held by Other Holders (other than Registrable Shares) shall be excluded from such registration and underwriting to the extent deemed advisable by the managing underwriter, and if a further limitation of the number of shares is required, the number of shares that may be included in such registration and underwriting shall be allocated among all holders of Registrable Shares requesting registration in proportion, as nearly as practicable, to the respective number of Registrable Shares held by them at the time of the request for registration made by the Initiating Holders pursuant to Section 2.1(a) or 2.1(b), as the case may be. If any holder of Registrable Shares, officer, director or Other Holder who has requested inclusion in such registration as provided above disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, and the securities so withdrawn shall also be withdrawn from registration. If the managing underwriter has not limited the number of Registrable Shares or other securities to be underwritten, the Company may include securities for its own account in such registration if the managing underwriter so agrees and if the number of Registrable Shares and other securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
(f) The Initiating Holders shall have the right to select the managing underwriter(s) for any underwritten offering requested pursuant to Section 2.1(a) or 2.1(b), subject to the approval of the Company, which approval will not be unreasonably withheld.
(g) The Company shall not be required to effect more than two registrations pursuant to Section 2.1(a), nor shall the Company be required to effect more than two registrations pursuant to Section 2.1(b) within any twelve month period. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months after the effective date of any other Registration Statement of the Company. For purposes of this Section 2.1(g), a Registration Statement shall not be counted until such time as such Registration Statement has been declared effective by the Commission (unless the Initiating Holders withdraw their request for such registration (other than as a result of information concerning the business or financial condition of the Company which is made known to the Initiating Holders after the date on which such registration was requested) and elect not to pay the Registration Expenses therefor pursuant to Section 2.4).
(h) If at the time of any request to register Registrable Shares by Initiating Holders pursuant to this Section 2.1, the Company is engaged or has plans to engage in a registered public offering or is engaged in any other activity which, in the good
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faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option direct that such request be delayed for a period not in excess of 45 days from the date of such request, such right to delay a request to be exercised by the Company not more than twice in any 12-month period.
2.2. Incidental Registration.
(a) Whenever the Company proposes to file a Registration Statement (other than a Registration Statement filed pursuant to Section 2.1) at any time and from time to time, it will, prior to such filing, give written notice to all Stockholders of its intention to do so; provided, that no such notice need be given if no Registrable Shares are to be included therein as a result of a determination of the managing underwriter pursuant to Section 2.2(b). Upon the written request of a Stockholder or Stockholders given within 20 days after the Company provides such notice (which request shall state the intended method of disposition of such Registrable Shares), the Company shall use its best efforts to cause all Registrable Shares which the Company has been requested by such Stockholder or Stockholders to register to be registered under the Securities Act to the extent necessary to permit their sale or other disposition in accordance with the intended methods of distribution specified in the request of such Stockholder or Stockholders; provided that the Company shall have the right to postpone or withdraw any registration effected pursuant to this Section 2.2 without obligation to any Stockholder.
(b) If the registration for which the Company gives notice pursuant to Section 2.2(a) is a registered public offering involving an underwriting, the Company shall so advise the Stockholders as a part of the written notice given pursuant to Section 2.2(a). In such event, the right of any Stockholder to include its Registrable Shares in such registration pursuant to this Section 2.2 shall be conditioned upon such Stockholder’s participation in such underwriting on the terms set forth herein. All Stockholders proposing to distribute their securities through such underwriting shall (together with the Company, Other Holders, and any officers or directors distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for the underwriting by the Company, provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of Stockholders materially greater than the obligations of the Stockholders pursuant to Section 2.5. Notwithstanding any other provision of this Section 2.2, if the managing underwriter determines that the inclusion of all shares requested to be registered would adversely affect the offering, the Company may limit the number of Registrable Shares to be included in the registration and underwriting. The Company shall so advise all holders of Registrable Shares requesting registration, and the number of shares that are entitled to be included in the registration and underwriting shall be allocated in the following manner. The securities of the Company held by Other Holders and by officers and directors of the Company (other than Registrable Shares) shall be excluded from such registration and underwriting to the extent deemed advisable by the managing underwriter, and, if a further limitation on the number of shares is required, the number of shares that may be included in such registration and underwriting shall be allocated among all Stockholders requesting registration in proportion, as nearly as practicable, to the respective number of shares of Common Stock (on an as-converted basis) which they held at the time the Company gives the notice specified in Section 2.2(a), provided that the number of Registrable Shares permitted to be included therein shall in any
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event be at least 25% of the aggregate amount of securities to be included therein (based on aggregate market values) except in the case of the Initial Public Offering. If any Stockholder or Other Holder would thus be entitled to include more securities than such holder requested to be registered, the excess shall be allocated among other requesting Stockholders and Other Holders pro rata in the manner described in the preceding sentence. If any holder of Registrable Shares or any officer, director or Other Holder disapproves of the terms of any such underwriting, such person may elect to withdraw therefrom by written notice to the Company, and any Registrable Shares or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration.
2.3. Registration Procedures.
(a) If and whenever the Company is required by the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares under the Securities Act, the Company shall:
(i) file with the Commission a Registration Statement with respect to such Registrable Shares and use its best efforts to cause that Registration Statement to become effective as soon as possible;
(ii) as expeditiously as possible prepare and file with the Commission any amendments and supplements to the Registration Statement and the prospectus included in the Registration Statement as may be necessary to comply with the provisions of the Securities Act (including the anti-fraud provisions thereof) and to keep the Registration Statement effective for 12 months from the effective date or such lesser period until all such Registrable Shares are sold;
(iii) as expeditiously as possible furnish to each Selling Stockholder such reasonable numbers of copies of the Prospectus, including any preliminary Prospectus, in conformity with the requirements of the Securities Act, and such other documents as such Selling Stockholder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Shares owned by such Selling Stockholder;
(iv) as expeditiously as possible use its best efforts to register or qualify the Registrable Shares covered by the Registration Statement under the securities or Blue Sky laws of such states as the Selling Stockholders shall reasonably request, and do any and all other acts and things that may be necessary or desirable to enable the Selling Stockholders to consummate the public sale or other disposition in such states of the Registrable Shares owned by the Selling Stockholder; provided, however, that the Company shall not be required in connection with this paragraph (iv) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction;
(v) as expeditiously as possible, cause all such Registrable Shares to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
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(vi) promptly provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such registration statement;
(vii) promptly make available for inspection by the Selling Stockholders, any managing underwriter participating in any disposition pursuant to such Registration Statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the Selling Stockholders, all financial and other records, pertinent corporate documents and properties of the Company and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement;
(viii) as expeditiously as possible, notify each Selling Stockholder, promptly after it shall receive notice thereof, of the time when such Registration Statement has become effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed; and
(ix) as expeditiously as possible following the effectiveness of such Registration Statement, notify each Selling Stockholder of any request by the Commission for the amending or supplementing of such Registration Statement or Prospectus.
(b) If the Company has delivered a Prospectus to the Selling Stockholders and after having done so the Prospectus is amended to comply with the requirements of the Securities Act, the Company shall promptly notify the Selling Stockholders and, if requested, the Selling Stockholders shall immediately cease making offers of Registrable Shares and return all Prospectuses to the Company. The Company shall promptly provide the Selling Stockholders with revised Prospectuses and, following receipt of the revised Prospectuses, the Selling Stockholders shall be free to resume making offers of the Registrable Shares.
(c) In the event that, in the judgment of the Company, it is advisable to suspend use of a Prospectus included in a Registration Statement due to pending material developments or other events that have not yet been publicly disclosed and as to which the Company believes public disclosure would be detrimental to the Company, the Company shall notify all Selling Stockholders to such effect, and, upon receipt of such notice, each such Selling Stockholder shall immediately discontinue any sales of Registrable Shares pursuant to such Registration Statement until such Selling Stockholder has received copies of a supplemented or amended Prospectus or until such Selling Stockholder is advised in writing by the Company that the then current Prospectus may be used and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. Notwithstanding anything to the contrary herein, the Company shall not exercise its rights under this Section 2.3(c) to suspend sales of Registrable Shares for a period in excess of 60 days in any 365-day period.
2.4. Allocation of Expenses. The Company will pay all Registration Expenses for all registrations under this Agreement; provided, however, that if a registration under Section 2.1 is withdrawn at the request of the Initiating Holders (other than as a result
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of information concerning the business or financial condition of the Company which is made known to the Initiating Holders after the date on which such registration was requested) and if the Initiating Holders elect not to have such registration counted as a registration requested under Section 2.1, the requesting Stockholders shall pay the Registration Expenses of such registration pro rata in accordance with the number of their Registrable Shares included in such registration. For purposes of this Section, the term “Registration Expenses” shall mean all expenses incurred by the Company in complying with this Agreement, including, without limitation, all registration and filing fees, exchange listing fees, printing expenses, fees and expenses of counsel for the Company and up to $25,000 in fees and expenses of one outside counsel selected by the Selling Stockholders to represent the Selling Stockholders, state Blue Sky fees and expenses, and the expense of any special audits incident to or required by any such registration, but excluding underwriting discounts, selling commissions and the fees and expenses of Selling Stockholders’ own counsel (other than the counsel selected to represent all Selling Stockholders).
2.5. Indemnification and Contribution.
(a) In the event of any registration of any of the Registrable Shares under the Securities Act pursuant to this Agreement, the Company will indemnify and hold harmless the seller of such Registrable Shares, each underwriter of such Registrable Shares, and each other person, if any, who controls such seller or underwriter within the meaning of the Securities Act or the Exchange Act against any losses, claims, damages or liabilities, joint or several, to which such seller, underwriter or controlling person may become subject under the Securities Act, the Exchange Act, state securities or Blue Sky laws or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement under which such Registrable Shares were registered under the Securities Act, any preliminary prospectus or final prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arise out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Company will reimburse such seller, underwriter and each such controlling person for any legal or any other expenses reasonably incurred by such seller, underwriter or controlling person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission made in such Registration Statement, preliminary prospectus or prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by or on behalf of such seller, underwriter or controlling person specifically for use in the preparation thereof.
(b) In the event of any registration of any of the Registrable Shares under the Securities Act pursuant to this Agreement, each seller of Registrable Shares, severally and not jointly, will indemnify and hold harmless the Company, each of its directors and officers and each underwriter (if any) and each person, if any, who controls the Company or any such underwriter within the meaning of the Securities Act or the Exchange Act, against any losses, claims, damages or liabilities, joint or several, to which the Company, such directors and officers, underwriter or controlling person may become subject under the Securities Act, Exchange Act, state
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securities or Blue Sky laws or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Shares were registered under the Securities Act, any preliminary prospectus or final prospectus contained in the Registration Statement, or any amendment or supplement to the Registration Statement, or arise out of or are based upon any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, if the statement or omission was made in reliance upon and in conformity with information relating to such seller furnished in writing to the Company by or on behalf of such seller specifically for use in connection with the preparation of such Registration Statement, prospectus, amendment or supplement; provided, however, that the obligations of a Stockholder hereunder shall be limited to an amount equal to the net proceeds to such Stockholder of Registrable Shares sold in connection with such registration.
(c) Each party entitled to indemnification under this Section 2.5 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided, that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld); and, provided, further, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section except to the extent that the Indemnifying Party is adversely affected by such failure. The Indemnified Party may participate in such defense at such party’s expense; provided, however, that the Indemnifying Party shall pay such expense if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceeding; provided further that in no event shall the Indemnifying Party be required to pay the expenses of more than one law firm per jurisdiction as counsel for the Indemnified Party. The Indemnifying Party also shall be responsible for the expenses of such defense if the Indemnifying Party does not elect to assume such defense. No Indemnifying Party, in the defense of any such claim or litigation shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect of such claim or litigation, and no Indemnified Party shall consent to entry of any judgment or settle such claim or litigation without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in this Section 2.5 is due in accordance with its terms but for any reason is held to be unavailable to an Indemnified Party in respect to any losses, claims, damages and liabilities referred to herein, then the Indemnifying Party shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities to which such party may be subject in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and the Stockholders on the other in connection with the statements or omissions which resulted in such losses, claims, damages or
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liabilities, as well as any other relevant equitable considerations. The relative fault of the Company and the Stockholders shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of material fact related to information supplied by the Company or the Stockholders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Stockholders agree that it would not be just and equitable if contribution pursuant to this Section 2.5 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph of Section 2.5, (a) in no case shall any one Stockholder be liable or responsible for any amount in excess of the net proceeds received by such Stockholder from the offering of Registrable Shares and (b) the Company shall be liable and responsible for any amount in excess of such proceeds; provided, however, that no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section, notify such party or parties from whom contribution may be sought, but the omission so to notify such party or parties from whom contribution may be sought shall not relieve such party from any other obligation it or they may have thereunder or otherwise under this Section. No party shall be liable for contribution with respect to any action, suit, proceeding or claim settled without its prior written consent, which consent shall not be unreasonably withheld.
2.6. Other Matters with Respect to Underwritten Offerings. In the event that Registrable Shares are sold pursuant to a Registration Statement in an underwritten offering pursuant to Section 2.1, the Company agrees to (a) enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the Company and customary covenants and agreements to be performed by the Company, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering; (b) use its best efforts to cause its legal counsel to render customary opinions to the underwriters and the Selling Stockholders with respect to the Registration Statement; and (c) use its best efforts to cause its independent public accounting firm to issue customary “cold comfort letters” to the underwriters and the Selling Stockholders with respect to the Registration Statement.
2.7. Information by Holder. Each holder of Registrable Shares included in any registration shall furnish to the Company such information regarding such holder and the distribution proposed by such holder as the Company may reasonably request in writing and as shall be required in connection with any registration, qualification or compliance referred to in this Agreement.
2.8. “Stand-Off” Agreement; Confidentiality of Notices. Each Stockholder, if requested by the Company and the managing underwriter of an underwritten public offering by the Company of Common Stock, shall not sell or otherwise transfer or dispose of any Registrable Shares or other securities of the Company held by such Stockholder for a period of up to 180 days following the effective date of a Registration Statement; provided, that:
(a) such agreement shall only apply to the Initial Public Offering; and
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(b) all stockholders of the Company then holding at least 1% of the outstanding Common Stock (on an as-converted basis) and all officers and directors of the Company enter into similar agreements.
The Company may impose stop-transfer instructions with respect to the Registrable Shares or other securities subject to the foregoing restriction until the end of such 180-day period (or a shorter period if agreed among the Company, underwriter and Stockholders).
Any Stockholder receiving any written notice from the Company regarding the Company’s plans to file a Registration Statement shall treat such notice confidentially and shall not disclose such information to any person other than as necessary to exercise its rights under this Agreement.
2.9. Limitations on Subsequent Registration Rights. The Company shall not, without the prior written consent of Stockholders holding at least a majority of the Registrable Shares then held by all Stockholders, enter into any agreement (other than this Agreement) with any holder or prospective holder of any securities of the Company which grant such holder or prospective holder rights to include securities of the Company in any Registration Statement, unless (a) such rights to include securities in a registration initiated by the Company or by Stockholders are subordinate to the rights granted to the Stockholder under Sections 2.1 and 2.2 of this Agreement, and (b) no rights are granted to initiate a registration, other than registration pursuant to a registration statement on Form S-3 (or its successor) in which Stockholders are entitled to include Registrable Shares on a pro rata basis with such holders based on the number of shares of Common Stock (on an as-converted basis) owned by Stockholders and such holders.
2.10. Rule 144 Requirements. After the earliest of (i) the closing of the sale of securities of the Company pursuant to a Registration Statement, (ii) the registration by the Company of a class of securities under Section 12 of the Exchange Act, or (iii) the issuance by the Company of an offering circular pursuant to Regulation A under the Securities Act, the Company agrees to:
(a) make and keep current public information about the Company available, as those terms are understood and defined in Rule 144;
(b) use its best efforts to file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements); and
(c) furnish to any holder of Registrable Shares upon request (i) a written statement by the Company as to its compliance with the reporting requirements of Rule 144 and of the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), (ii) a copy of the most recent annual or quarterly report of the Company, and (iii) such other reports and documents of the Company as such holder may reasonably request to avail itself of any similar rule or regulation of the Commission allowing it to sell any such securities without registration.
2.11. Termination. All of the Company’s obligations to register Registrable Shares under Sections 2.1 and 2.2 of this Agreement shall terminate (i) four years after the closing of the Initial Public Offering or (ii) as soon thereafter as such Stockholder could sell all
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shares of Common Stock without volume limitations pursuant to Rule 144, or (iii) upon the closing of any merger or consolidation of the Corporation or a subsidiary of the Corporation into or with another corporation (except one in which the holders of capital stock of the Corporation immediately prior to such merger or consolidation continue to hold at least a majority by voting power of the capital stock of the surviving or acquiring corporation) or sale of all or substantially all of the assets of the Corporation.
3. RIGHT OF FIRST REFUSAL.
3.1. Rights of Stockholders.
(a) The Company shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, (i) any shares of its Common Stock, (ii) any other equity securities of the Company, including, without limitation, shares of preferred stock, (iii) any option, warrant or other right to subscribe for, purchase or otherwise acquire any equity securities of the Company, or (iv) any debt securities convertible into capital stock of the Company (collectively, the “Offered Securities”), unless in each such case the Company shall have first complied with this Section 3.1. The Company shall deliver to each Stockholder a written notice of any proposed or intended issuance, sale or exchange of Offered Securities (the “Offer”), which Offer shall (i) identify and describe the Offered Securities, (ii) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (iii) identify the persons or entities (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (iv) offer to issue and sell to or exchange with such Stockholder, at the same price and on the same terms as the Offered Securities were offered to other potential investors, (A) a pro rata portion of the Offered Securities determined by dividing the aggregate number of shares of Common Stock then held by such Stockholder (giving effect to the conversion of all other shares of convertible preferred stock then held) by the total number of shares of Common Stock then outstanding (giving effect to the exercise and conversion of all outstanding convertible securities) (the “Basic Amount”), and (B) any additional portion of the Offered Securities attributable to the Basic Amounts of other Stockholders as such Stockholder shall indicate it will purchase or acquire should the other Stockholders subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(b) To accept an Offer, in whole or in part, a Stockholder must deliver a written notice to the Company prior to the end of the 30-day period of the Offer, setting forth the portion of the Stockholder’s Basic Amount that such Stockholder elects to purchase and, if such Stockholder shall elect to purchase all of its Basic Amount, the Undersubscription Amount (if any) that such Stockholder elects to purchase (the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Stockholders are less than the total of all of the Basic Amounts available for purchase, then each Stockholder who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if the Undersubscription Amounts subscribed for exceed the difference between the total of all of the Basic Amounts available for purchase and the Basic Amounts subscribed for (the “Available Undersubscription Amount”),
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each Stockholder who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Undersubscription Amount subscribed for by such Stockholder bears to the total Undersubscription Amounts subscribed for by all Stockholders, subject to rounding by the Board of Directors to the extent it deems reasonably necessary.
(c) The Company shall have 90 days from the expiration of the period set forth in Section 3.1(b) above to issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the Stockholders (the “Refused Securities”), but only to the offerees or Stockholders described in the Offer (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) which are not more favorable, in the aggregate, to the acquiring person or persons or less favorable to the Company than those set forth in the Offer.
(d) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 3.1(c) above), then each Stockholder may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that the Stockholder elected to purchase pursuant to Section 3.1(b) above multiplied by a fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Stockholders pursuant to Section 3.1(b) above prior to such reduction) and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Stockholder so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Stockholders in accordance with Section 3.1(a) above.
(e) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Stockholders shall acquire from the Company, and the Company shall issue to the Stockholders, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 3.1(d) above if the Stockholders have so elected, upon the terms and conditions specified in the Offer. The purchase by the Stockholders of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Stockholders of a purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Stockholders and their respective counsel.
(f) Any Offered Securities not acquired by the Stockholders or other persons in accordance with Section 3.1(c) above may not be issued, sold or exchanged until they are again offered to the Stockholders under the procedures specified in this Agreement.
(g) The rights of the Stockholders under this Section 3 shall not apply to:
(1) Common Stock issued as a stock dividend to holders of Common Stock or upon any subdivision or combination of shares of Common Stock;
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(2) shares of Common Stock issued or deemed to be issued upon the exercise or conversion of convertible securities of the Company outstanding on the date hereof;
(3) the issuance of any shares of Common Stock upon conversion of shares of convertible preferred stock;
(4) the issuance of up to an aggregate of 5,938,000 shares of Common Stock or such greater number as is approved by vote of not less than a majority of the non-employee directors of the Company, including all directors nominated by the holders of Series B Preferred Stock, or the grant of options therefor (such number to be proportionately adjusted in the event of any stock splits, stock dividends, recapitalizations or similar events occurring on or after the date of this Agreement) to officers, directors, consultants and employees of the Company or any subsidiary pursuant to the Company’s 2000 Omnibus Stock Plan or any plan, agreement or arrangement approved by a vote of not less than a majority of the Board of Directors of the Company (it being understood that any shares subject to options that expire or terminate unexercised shall not count towards the maximum number set forth in this clause (4));
(5) securities issued solely in consideration for the acquisition (whether by merger or otherwise) by the Company or any of its subsidiaries of all or substantially all of the equity or assets of any other entity;
(6) shares of Common Stock sold by the Company in an underwritten public offering pursuant to an effective registration statement under the Securities Act if the per share price to the public is at least $3.57 (which amount shall be subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting the Common Stock) and the aggregate net proceeds therefrom total at least $30,000,000; or
(7) the Shares being sold to the Purchasers pursuant to the Series D Purchase Agreement.
The provisions of this Section 3.1(g) shall not in any way amend or supersede the rights and preferences of any class of the Company’s capital stock under its Certificate of Incorporation.
3.2. Termination. This Section 3 shall terminate upon the earlier of the following events:
(a) The sale of all or substantially all of the assets or business of the Company, by merger, sale of assets or otherwise; or
(b) The closing of the Initial Public Offering if the per share price to the public is at least $3.57 (which amount shall be subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting the Common Stock) and the aggregate net proceeds therefrom total at least $30,000,000.
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4. RIGHT OF REQUIRED SALE. If the holders of (a) a majority in voting power of the then outstanding Common Stock and (b) 50% in voting power of the then outstanding Shares, or Common Stock issued upon conversion of Shares, held by the Stockholders (the “Approving Stockholders”), shall approve of the transfer of all of the outstanding capital stock of the Corporation, including all Stock owned by the Stockholders to a third party, whether in a single transaction or a series of related transactions by way of merger, consolidation or otherwise, then all Stockholders shall vote in favor of, participate in and otherwise support such transaction or transactions, including without limitation by tendering their shares, provided that all Stockholders shall only be required to so vote, participate and support a transaction in which all shares of each class and series of stock are sold on the same terms and conditions and at the same price per share as the Approving Stockholders’ shares of each such class and series of stock are sold (that is, in a transaction to which this Section 4 applies, each share of Series A Convertible Preferred Stock will be sold on the same terms and conditions and at the same price per share as each other share of Series A Convertible Preferred Stock sold in such transaction, each share of Series B Convertible Preferred Stock will be sold on the same terms and conditions and at the same price per share as each other share of Series B Convertible Preferred Stock sold in such transaction, each share of Series C Convertible Preferred Stock will be sold on the same terms and conditions and at the same price per share as each other share of Series C Convertible Preferred Stock sold in such transaction, each share of Series D Convertible Preferred Stock will be sold on the same terms and conditions and at the same price per share as each other share of Series D Convertible Preferred Stock sold in such transaction and each share of Common Stock will be sold on the same terms and conditions and at the same price per share as each other share of Common Stock sold in such transaction).
5. TRANSFERS OF RIGHTS. This Agreement, and the rights and obligations of each Stockholder hereunder, may be assigned by such Stockholder to (i) any person or entity to which at least 15% of such Stockholder’s shares (subject to appropriate adjustment for stock splits, stock dividends, recapitalizations and other similar events) of Common Stock (including securities that are exercisable and/or convertible into such number of shares Common Stock) are transferred by such Stockholder or (ii) to any partner, subsidiary or Affiliate of such Stockholder, and such transferee shall be deemed a “Stockholder” for purposes of this Agreement; provided in each case that the transferee provides written notice of such assignment to the Company and agrees in writing to be bound hereby.
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6. CONFIDENTIALITY. Each Stockholder severally and not jointly agrees that it will keep confidential and will not disclose, divulge, or use for any purpose other than monitoring its investment in the Company, any confidential, proprietary or secret information which it may obtain from materials submitted by the Company to such Stockholder pursuant to any Purchase Agreement and conspicuously labeled as “CONFIDENTIAL,” or pursuant to visitation or inspection rights granted thereunder, unless such information was already known to or otherwise in the possession of such Stockholder without restriction, or until such information becomes known, to the public without the fault of the Stockholder, is independently obtained or developed by such Stockholder without knowingly violating any obligation of confidentiality to the Company; provided, however, that a Purchaser may disclose such information (i) to its attorneys, accountants, consultants and other professionals to the extent necessary to obtain their services in connection with its investment in the Company or thereafter to enforce its rights in connection with such investment, (ii) to any prospective purchaser of any Shares from such Purchaser as long as such prospective purchaser agrees in writing to be bound by the provisions of this Section, (iii) to any Affiliate of such Purchaser or to a partner, shareholder or subsidiary of such Purchaser , subject to the agreement of such party to keep such information confidential as set forth herein and (iv) to the extent the Company gives or has given its consent to such disclosure. Furthermore, a general partner, officer or any Affiliate of any Purchaser may disclose information concerning the performance of their investment in the Company in any fund document or prospectus if such disclosure is deemed appropriate or required under applicable securities laws.
7. COVENANTS OF THE COMPANY.
7.1. Inspection. The Company shall permit any Purchaser that holds at least 1,000,000 Shares, or any authorized representative thereof, to visit and inspect the properties of the Company, including its corporate and financial records, and to discuss its business and finances with officers of the Company, during normal business hours following reasonable notice and as often as may be reasonably requested.
7.2. Financial Statements and Other Information. The Company shall deliver to each Purchaser that holds at least 1,000,000 Shares:
(a) within 90 days after the end of each fiscal year of the Company, an audited balance sheet of the Company as at the end of such year and audited statements of income and of cash flows of the Company for such year, certified by certified public accountants of established national reputation selected by the Company, and prepared in accordance with generally accepted accounting principles (“GAAP”);
(b) within 30 days after the end of each fiscal quarter of the Company, an unaudited balance sheet of the Company as at the end of such quarter, and unaudited statements of income and of cash flows of the Company for such fiscal quarter and for the current fiscal year to the end of such fiscal quarter;
(c) as soon as available, but in any event within 30 days prior to the commencement of each new fiscal year, a business plan, annual capital and operating budgets and projected financial statements for such fiscal year;
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(d) upon written request, copies of written materials prepared for meetings of the Board of Directors;
(e) such other notices, information and data with respect to the Company as the Company delivers to the holders of its capital stock at the same time it delivers such items to such holders; and
(f) with reasonable promptness, such other information and data as the Purchaser may from time to time reasonably request.
7.3. Material Changes and Litigation. The Company shall promptly notify the Purchasers of any material adverse change in the business, prospects, assets or condition, financial or otherwise, of the Company and of any litigation or governmental proceeding or investigation brought or, to the best of the Company’s knowledge, threatened against the Company, or an officer, director, key employee or principal stockholder of the Company which, if adversely determined, would have a material adverse effect on the Company.
7.4. Subsidiaries.
(a) The company shall cause MEMSIC Semiconductor (Wuxi) Co., Ltd., the Company’s wholly-owned Chinese subsidiary (the “Subsidiary”) to at all times preserve and keep in full force and effect its corporate existence and all rights and franchises material to the business of the Subsidiary, taken as a whole, and will cause the Subsidiary to qualify to do business as a foreign corporation in any jurisdiction where the failure to do so would have a material adverse effect on the business, condition (financial or other), assets, properties or operations of the Company and the Subsidiary, taken as a whole. The Company shall at all times own of record and beneficially, free and clear of all liens, charges, restrictions, claims and encumbrances of any nature, all of the issued and outstanding capital stock of the Subsidiary and each other subsidiary of the Company.
(b) Limitations on Subsidiary Activities. Except to the extent required by law, the Company shall not permit the Subsidiary, directly or indirectly, to create or suffer to exist or become effective any encumbrances or restrictions on the ability of the Subsidiary to (i) pay dividends or make any other distributions on its capital stock or any other interest or participation in its profit or pay any indebtedness owned by it to the Company, (ii) make loans or advances to the Company, or (iii) transfer any of its properties or assets to the Company. The Company shall not permit the Subsidiary to take any action which, if such action were taken by the Company, would require approval by the Purchasers pursuant to Section C.3(b) of Article Fourth of the Company’s Amended and Restated Certificate of Incorporation without first obtaining the written consent of the holders of a majority of all Preferred Stock then issued and outstanding, voting together as a single class on an as-converted to Common Stock basis, except that such consent shall not be necessary to permit the Subsidiary to (a) conduct transactions with the Company in the ordinary course of business; (b) make amendments to the Subsidiary’s organizational documents that would have no material impact on the Subsidiary’s business, the Company’s relationship with the Subsidiary, or the Purchaser’s rights or privileges as holders of the Company’s stock; (c) pay dividends or make any distributions to the Company; or (d) otherwise transfer any property to the Company.
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7.5. Options. Unless otherwise agreed by a majority of the members of the Board of Directors who are not employees of the Company, all stock options and other stock equivalents issued after the date of this Agreement to employees, directors, consultants and other service providers shall be subject to vesting (or become exercisable as the case may be) as follows: twenty-five percent (25%) of such stock shall vest at the end of each year over four years following the earlier of the date of issuance or such person’s services commencement date with the Company, in accordance with the Company’s stock option plan as approved by the Company’s Board of Directors, so long as the holder continues to be an employee or consultant of the Company. The foregoing vesting schedule shall not be accelerated by more than twelve (12) months upon a merger, acquisition or like transaction, or for any other reason, unless approved by a majority of the Company’s non-employee directors. Any unvested shares shall be cancelled or subject to repurchase by the Company at cost if the employment or consulting relationship between the employee or consultant and the Company is terminated.
7.6. Termination of Covenants. The covenants of the Company contained in Sections 7.1 through 7.5 shall terminate, and be of no further force or effect, upon the closing of an underwritten firm commitment public offering of Common Stock pursuant to an effective registration statement under the Securities Act in which the per share price to the public is at least $3.57 (which amount shall be subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting the Common Stock) and the aggregate net proceeds therefrom total at least $30,000,000.
8. GENERAL.
8.1. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
8.2. Specific Performance. In addition to any and all other remedies that may be available at law in the event of any breach of this Agreement, each Stockholder shall be entitled to specific performance of the agreements and obligations of the Company hereunder and to such other injunctive or other equitable relief as may be granted by a court of competent jurisdiction.
8.3. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of The Commonwealth of Massachusetts (without reference to the conflicts of law provisions thereof).
8.4. Notices. All notices, requests, consents, and other communications under this Agreement shall be in writing and shall be deemed delivered (i) two business days after being sent by registered or certified mail, return receipt requested, postage prepaid or (ii) one business day after being sent via a reputable nationwide overnight courier service guaranteeing next business day delivery, in each case to the intended recipient as set forth below:
If to the Company, at 800 Turnpike Street, Suite 202, North Andover, Massachusetts 01845, Attention: President, or at such other address or addresses as may have been furnished in writing by the Company to the Purchasers, with a copy to Robert L. Birnbaum, Esq., Foley Hoag LLP, 155 Seaport Boulevard, Boston, Massachusetts 02210;
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If to a Purchaser, at his or its address set forth on Exhibit A, or at such other address or addresses as may have been furnished to the Company in writing by such Purchaser, with a copy to Paul P. Brountas, Esq., Hale and Dorr LLP, 60 State Street, Boston, MA 02109; or
Any party may give any notice, request, consent or other communication under this Agreement using any other means (including, without limitation, personal delivery, messenger service, telecopy, first class mail or electronic mail), but no such notice, request, consent or other communication shall be deemed to have been duly given unless and until it is actually received by the party for whom it is intended. Any party may change the address to which notices, requests, consents or other communications hereunder are to be delivered by giving the other parties notice in the manner set forth in this Section.
8.5. Complete Agreement. This Agreement constitutes the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter, including without limitation the Prior Investor Rights Agreement. This Agreement may be translated into other languages, provided that the original English-language version shall remain the official version, and in the event of any discrepancy between translations of this Agreement, the English-language version shall govern.
8.6. Amendments and Waivers. Any term of this Agreement may be amended or terminated and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), with the written consent of the Company and the holders of at least a majority of the Registrable Shares held by all of the Stockholders; provided, that this Agreement may be amended with the consent of the holders of less than all Registrable Shares only in a manner which affects all such holders in the same fashion. Any such amendment, termination or waiver effected in accordance with this Section 8.6 shall be binding on all parties hereto, even if they do not execute such consent. No waivers of or exceptions to any term, condition or provision of this Agreement, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term, condition or provision.
8.7. Pronouns. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.
8.8. Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same document. This Agreement may be executed by facsimile signatures.
8.9. Section Headings. The section headings are for the convenience of the parties and in no way alter, modify, amend, limit or restrict the contractual obligations of the parties.
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8.10. Accession. Any Additional Purchaser (as defined in the Series C Purchase Agreement) shall automatically become a party to this Agreement by executing and delivering to the Company a counterpart signature page to this Agreement, shall be added to Exhibit A hereto and shall thereupon be deemed a “Purchaser” for all purposes of this Agreement.
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