Delaware | 2834 | 20-0028718 | ||
(State or Other Jurisdiction
of
Incorporation or Organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification Number) |
Jay K. Hachigian, Esq.
Marc F. Dupré, Esq. Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP 610 Lincoln Street Waltham, MA 02451 (781) 890-8800 |
Richard D. Truesdell, Jr., Esq.
Davis Polk & Wardwell LLP 450 Lexington Avenue New York, NY 10017 (212) 450-4000 |
Large accelerated filer o | Accelerated filer o | Non-accelerated filer þ | Smaller reporting company o |
Amount of
|
||||||
Title of Each Class of
|
Proposed Maximum
|
Registration
|
||||
Securities to be Registered | Aggregate Offering Price(1)(2) | Fee | ||||
Common stock, $0.01 par value
|
$80,000,000 | $4,464(3) | ||||
(1) | Includes the offering price of shares of common stock that may be purchased by the underwriters to cover over-allotments, if any. | |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) promulgated under the Securities Act of 1933, as amended. |
(3) | A registration fee in the amount of $4,464 was paid at the time of the initial filing of the registration statement on an estimate of the aggregate offering price. A portion of this registration fee was paid through an off-set of a registration fee in the amount of $2,948 that was previously paid by the registrant in connection with a prior registration statement filing that was subsequently withdrawn. |
The
information in this preliminary prospectus is not complete and
may be changed. These securities may not be sold until the
registration statement filed with the Securities and Exchange
Commission is effective. This preliminary prospectus is not an
offer to sell nor does it seek an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted.
|
Per Share | Total | |||||||
Initial public offering price
|
$ | $ | ||||||
Underwriting discount
|
$ | $ | ||||||
Proceeds, before expenses, to the Issuer
|
$ | $ |
Credit Suisse
|
Citi | |
Cowen and Company
|
Oppenheimer & Co. |
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F-1
EX-4.3
EX-4.4
EX-4.5
EX-10.13
EX-10.14
EX-10.15
EX-10.16
EX-10.17
EX-10.19
EX-10.20
EX-10.21
EX-10.22
EX-10.23
EX-10.24
EX-10.25
EX-23.1
i
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Pursue FDA Approval for Iluvien.
In December
2009 we received the month 24 clinical readout from our FAME
Study. Based upon our analysis of this data, we plan to file an
NDA in the United States for the low dose of Iluvien in the
second quarter of 2010, followed by registration filings in
certain European countries and Canada.
Maximize the Commercial Success of Iluvien.
If
approved by the FDA, we intend to market and sell Iluvien to the
approximately 1,600 retinal specialists practicing in the
approximately 900 retina centers in the United States and Canada
and to seek a commercialization partner for sales and marketing
activities outside North America.
Assess the Effectiveness of Iluvien for Additional Retinal
Diseases.
Iluvien is being studied in three
Phase 2 clinical trials with retinal specialists to assess
its safety and efficacy in the treatment of dry AMD, wet AMD and
RVO.
Develop Our Existing Ophthalmic Product
Pipeline.
We have acquired exclusive, worldwide
licenses of rights under patent applications for two classes of
NADPH oxidase inhibitors from Emory University and are
evaluating the use of these compounds in the treatment of dry
AMD. We plan to evaluate the use of NADPH oxidase inhibitors in
the treatment of other diseases of the eye, including wet AMD
and diabetic retinopathy.
2
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Expand Our Ophthalmic Product Pipeline.
We
believe there are further unmet needs in the treatment of
ophthalmic diseases. Toward that end, we intend to leverage
managements expertise and its broad network of
relationships in continuing to evaluate in-licensing and
acquisition opportunities for compounds and technologies with
applications in diseases affecting the eye.
We are dependent on the success of our product candidates and
specifically on the success of Iluvien, our only product
candidate currently in clinical development, and if we are not
successful in commercializing Iluvien, or are significantly
delayed in doing so, our business will be materially harmed and
we may need to curtail or cease operations;
We face heavy government regulation, and approval of Iluvien and
our other product candidates from the FDA and from similar
entities in other countries is uncertain, in particular the FDA
may have a different interpretation of our clinical data than
that presented in our NDA, which could result in the FDA not
granting marketing approval for Iluvien;
Even if approved, the demonstration of Iluviens safety and
efficacy, its cost-effectiveness, its potential advantages over
other therapies, the reimbursement policies of government and
third-party payors with respect to Iluvien, and the
effectiveness of our marketing and distribution capabilities may
impact the degree of Iluviens acceptance in the market;
We are dependent upon our ability, and the ability of our
licensors, to obtain and maintain protection for the
intellectual property incorporated into our products and the
value of our technology and products will be adversely affected
if we or our licensors are unable to obtain or maintain such
protection; and
We do not expect to generate revenues from our product
candidates until the first quarter of 2011 and although we
anticipate that the proceeds from this offering will fund our
operations through the projected commercialization of Iluvien as
early as the first quarter of 2011, we cannot be sure that this
offering will be completed, that Iluvien will be approved by the
FDA in the fourth quarter of 2010 or that, if approved, future
sales of Iluvien will generate revenues sufficient to fund our
operations beyond the first quarter of 2011, or ever.
3
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Common stock offered by us
shares
Common stock to be outstanding after this offering
shares
Use of Proceeds
We expect to receive net proceeds from the offering of
approximately $ million. We
intend to use the proceeds from this offering primarily to
complete the clinical development and registration of Iluvien
for DME, to repay indebtedness and make certain milestone
payments to pSivida US, Inc., to commence the commercial launch
of Iluvien, to continue to develop our product pipeline and for
working capital and other general corporate purposes. See
Use of Proceeds for additional information.
Risk Factors
You should read the Risk Factors section of this
prospectus for a discussion of factors that you should consider
carefully before deciding to invest in shares of our common
stock.
Proposed Nasdaq Global Market symbol
ALIM
the automatic conversion of all outstanding shares of our
preferred stock into 77,736,832 shares of common stock upon
the closing of the offering, including the conversion of certain
Series A preferred stock dividends accumulated prior to
November 22, 2005 into 1,293,014 shares of common
stock, the conversion of 6,581,416 shares of Series C-1
preferred stock issuable upon exercise of outstanding warrants,
and the receipt of $10.0 million in proceeds as a result of
the exercise of those warrants;
the filing of our restated certificate of incorporation and the
adoption of our amended and restated bylaws to be effective upon
the closing of this offering;
no exercise of the underwriters over-allotment option to
purchase additional shares; and
a -for-1
split of our common stock to be effected prior to this offering.
4
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Nine Months Ended
Years Ended December 31,
September 30,
2004
2005
2006
2007
2008
2008
2009
(In thousands, except per share data)
(Unaudited)
(Unaudited)
$
1,488
$
2,926
$
6,736
$
8,363
$
43,764
$
39,614
$
11,979
1,856
2,595
3,028
3,184
5,058
2,774
2,351
479
557
616
969
1,259
934
541
3,823
6,078
10,380
12,516
50,081
43,322
14,871
48
223
596
1,079
585
509
35
(203
)
(2
)
(2
)
(2
)
(1,514
)
(1,039
)
(1,423
)
6
8
6
1
(10,454
)
(4,083
)
(5,295
)
(3,972
)
(5,849
)
(9,780
)
(11,438
)
(61,464
)
(47,935
)
(21,554
)
(2,731
)
(7,790
)
(3,191
)
5,733
(6,703
)
(13,639
)
(12,971
)
(5,705
)
(61,464
)
(47,935
)
(21,554
)
(355
)
(52
)
(164
)
(243
)
(248
)
(718
)
(609
)
(377
)
(358
)
(1,546
)
(3,548
)
(4,685
)
(6,573
)
(4,794
)
(5,340
)
$
(7,113
)
$
(15,349
)
$
(16,762
)
$
(10,638
)
$
(68,755
)
$
(53,338
)
$
(27,626
)
$
(1.48
)
$
(3.14
)
$
(3.43
)
$
(2.09
)
$
(13.39
)
$
(10.34
)
$
(5.41
)
4,804
4,887
4,887
5,100
5,136
5,159
5,105
$
(0.74
)
$
(0.22
)
68,796
74,272
5
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(1)
Includes $29.8 million of research and development expenses
incurred in connection with an amendment to the pSivida license
agreement in the nine months ended September 30, 2008. See
Note 7 to the financial statements for a more detailed
description of the pSivida agreement and the amendment.
(2)
Includes gains on disposal of $9.7 million and
$6.0 million for the years ended December 31, 2006 and
2007, respectively. See Note 3 to the financial statements
for a more detailed description of the discontinued operations.
(3)
The pro forma basic and diluted net loss per common share data
for the year ended December 31, 2008 and the nine months
ended September 30, 2009 reflect the conversion, upon the
closing of this offering, of our Series A, Series B,
Series C and Series C-1 preferred stock (including
shares of
Series C-1
preferred stock issuable upon exercise of outstanding warrants)
at their respective conversion rates into our common stock, as
if the conversion had occurred at the later of the beginning of
the period presented or the date of issuance of such shares of
preferred stock and excludes the effect of the change in fair
value of the preferred stock conversion feature, preferred stock
accretion and preferred stock dividends. The pro forma data does
not give effect to the consummation of this offering.
As of December 31,
As of September 30,
2004
2005
2006
2007
2008
2008
2009
(In thousands)
(Unaudited)
(Unaudited)
$
3,355
$
22,815
$
27,157
$
20,847
$
17,875
$
26,620
$
9,902
2,783
21,846
25,294
19,862
14,551
21,500
1,561
4,381
25,081
31,251
24,519
20,264
30,172
10,889
19
57
60
31
28,217
21,675
31,777
8,982
43,373
63,057
67,990
103,017
101,128
111,257
1,937
2,193
2,571
2,867
3,474
3,354
4,339
(7,966
)
(23,315
)
(40,077
)
(50,715
)
(119,470
)
(104,053
)
(147,096
)
(5,923
)
(21,015
)
(37,399
)
(47,738
)
(115,887
)
(100,590
)
(141,176
)
6
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52
successfully complete our clinical trials;
produce, through a validated process, batches of Iluvien in
quantities sufficiently large to permit successful
commercialization;
receive marketing approvals from the FDA and similar foreign
regulatory authorities;
establish commercial manufacturing arrangements with third-party
manufacturers;
launch commercial sales of Iluvien; and
secure acceptance of Iluvien in the medical community and with
third-party payors.
7
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a drug candidate may not be safe or effective;
regulatory agencies may interpret data from preclinical and
clinical testing in different ways from those which we do;
they may not approve of our manufacturing process;
they may conclude that the drug candidate does not meet quality
standards for stability, quality, purity and potency; and
they may change their approval policies or adopt new regulations.
8
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9
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10
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11
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our inability to manufacture or obtain from third-parties
materials sufficient for use in preclinical studies and clinical
trials;
delays in patient enrollment and variability in the number and
types of patients available for clinical trials;
difficulty in maintaining contact with patients after treatment,
resulting in incomplete data;
poor effectiveness of product candidates during clinical trials;
unforeseen safety issues or side effects; and
governmental or regulatory delays and changes in regulatory
requirements and guidelines.
our inability to recruit and retain adequate numbers of
effective sales and marketing personnel;
the inability of sales personnel to obtain access to or persuade
adequate numbers of retinal specialists to prescribe our
products;
12
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the lack of complementary products to be offered by sales
personnel, which may put us at a competitive disadvantage
relative to companies with more extensive product lines; and
unforeseen costs and expenses associated with creating an
independent sales and marketing organization.
13
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14
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our collaboration agreements are expected to be for fixed terms
and subject to termination under various circumstances,
including, in many cases, on short notice without cause;
15
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we expect to be required in our collaboration agreements not to
conduct specified types of research and development in the field
that is the subject of the collaboration. These agreements may
have the effect of limiting the areas of research and
development that we may pursue, either alone or in cooperation
with third-parties;
our collaborators may develop and commercialize, either alone or
with others, products and services that are similar to or
competitive with our products which are the subject of their
collaboration with us; and
our collaborators may change the focus of their development and
commercialization efforts. In recent years there have been a
significant number of mergers and consolidations in the
pharmaceutical and biotechnology industries, some of which have
resulted in the participant companies reevaluating and shifting
the focus of their business following the completion of these
transactions. The ability of our products to reach their
potential could be limited if any of our future collaborators
decreases or fails to increase spending relating to such
products.
the research methodology used may not be successful in
identifying potential product candidates; or
potential product candidates may on further study be shown to
have harmful side effects or other characteristics that indicate
they are unlikely to be effective drugs.
we may be unable to license or acquire the relevant technology
on terms that would allow us to make an appropriate return from
the product;
companies that perceive us to be their competitors may be
unwilling to assign or license their product rights to
us; or
we may be unable to identify suitable products or product
candidates within our areas of expertise.
16
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17
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restrictions on such products or manufacturing processes;
withdrawal of the products from the market;
voluntary or mandatory recall;
fines;
suspension of regulatory approvals;
product seizure; and
injunctions or the imposition of civil or criminal penalties.
18
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regulatory authorities may require the addition of labeling
statements, such as a black box warning or a
contraindication;
regulatory authorities may withdraw their approval of the
product;
we may be required to change the way that the product is
administered, conduct additional clinical trials or change the
labeling of the product; and
our reputation may suffer.
19
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20
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21
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22
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23
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24
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the commercial success of our product candidates;
the emergence of products that compete with our product
candidates;
the status of our preclinical and clinical development programs;
variations in the level of expenses related to our existing
product candidates or preclinical and clinical development
programs;
execution of collaborative, licensing or other arrangements, and
the timing of payments received or made under those arrangements;
any intellectual property infringement lawsuits to which we may
become a party; and
regulatory developments affecting our product candidates or
those of our competitors,
25
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actual or anticipated fluctuations in our results of operations;
changes in, or our failure to meet, securities analysts
expectations;
conditions and trends in the markets we serve;
26
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announcements of significant new services or solutions by us or
our competitors, including technological innovations;
additions to or changes in key personnel;
the commencement or outcome of litigation;
changes in market valuation or earnings of our competitors;
the trading volume of our common stock;
future sales of our equity securities;
changes in the estimation of the future size and growth rate of
our markets;
legislation or regulatory policies, practices or
actions; and
general economic conditions.
27
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28
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Authorize the issuance of blank check preferred
stock that could be issued by our board of directors to thwart a
takeover attempt;
Do not provide for cumulative voting in the election of
directors, which would allow holders of less than a majority of
our outstanding common stock to elect some directors;
Establish a classified board of directors, as a result of which
the successors to the directors whose terms have expired will be
elected to serve from the time of election and qualification
until the third annual meeting following their election;
Require that directors only be removed from office for cause;
Provide that vacancies on the board of directors, including
newly created directorships, may be filled only by a majority
vote of directors then in office;
Limit who may call special meetings of stockholders;
Prohibit stockholder action by written consent, requiring all
actions to be taken at a meeting of the stockholders; and
Establish advance notice requirements for nominating candidates
for election to the board of directors or for proposing matters
that can be acted upon by stockholders at stockholder meetings.
29
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31
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approximately $16.5 million to complete the clinical development
and registration of Iluvien for DME;
$15.0 million to repay indebtedness to pSivida US, Inc.
(pSivida) pursuant to a promissory note issued in connection
with the amendment and restatement of our agreement with pSivida
(this promissory note is currently accruing interest at the rate
of 8% per annum, adjusting to 20% per annum effective
April 1, 2010, and is payable in full upon the earlier of
certain liquidity events (including an initial public offering
of our common stock greater than $75.0 million), the
occurrence of an event of default under our agreement with
pSivida or on September 30, 2012);
$25.0 million to pay a milestone payment to pSivida upon
the FDA approval of Iluvien pursuant to our agreement with
pSivida; and
the balance of $ million to
commence the commercial launch of Iluvien, to continue to
develop our product pipeline and for working capital and other
general corporate purposes.
32
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our actual capitalization as of September 30, 2009;
our pro forma capitalization assuming and giving effect to the
conversion of all outstanding shares of preferred stock into
common stock upon the completion of this offering, including the
conversion of certain Series A preferred stock dividends
accumulated prior to November 22, 2005 into
1,293,014 shares of common stock and the conversion of
6,581,416 shares of our
Series C-1
preferred stock issuable upon the exercise of outstanding
warrants, and the receipt of $10.0 million in proceeds in
January 2010 as a result of the exercise of
Series C-1
preferred stock warrants for which notices of exercise were
received in December 2009; and
our pro forma capitalization as adjusted to reflect the receipt
of the estimated net proceeds from our sale
of shares
of common stock in this offering at the assumed offering price
of $ per share, after deducting
the underwriting discounts and commissions and estimated
offering expenses and after deducting the amount necessary to
repay the note due to pSivida, and the filing of a restated
certificate of incorporation after the closing of this offering.
As of September 30, 2009
Pro Forma As
Actual
Pro Forma
Adjusted
(In thousands, except per share data)
(Unaudited)
(Unaudited)
$
9,902
$
19,902
$
15,000
$
15,000
18,855
35,895
39,948
32,798
2,616
52
829
4,339
145,146
1,472
57
57
(147,096
)
(147,096
)
(141,176
)
(1,064
)
$
3,936
$
13,936
33
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the automatic conversion of all outstanding shares of our
preferred stock into 77,736,832 shares of common stock upon the
closing of the offering, including the conversion of certain
Series A preferred stock dividends accumulated prior to
November 22, 2005 into 1,293,014 shares of common stock,
the conversion of 6,581,416 shares of
Series C-1
preferred stock issuable upon exercise of outstanding warrants,
and the receipt of $10.0 million in proceeds in January
2010 as a result of the exercise of
Series C-1
warrants for which notices of exercise were received in December
2009;
7,487,319 shares of common stock issuable upon exercise of
stock options outstanding at a weighted average exercise price
of $0.61 per share;
shares
of common stock available for future issuance under our
stock-based compensation plans; and
895,494 shares of common stock issuable upon the exercise
of outstanding warrants as of September 30, 2009, with a
weighted average exercise price of $1.03 per share.
34
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35
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36
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Years Ended December 31,
Nine Months Ended September 30,
2004
2005
2006
2007
2008
2008
2009
(In thousands, except per share data)
(Unaudited)
(Unaudited)
Operating expenses
$
1,488
$
2,926
$
6,736
$
8,363
$
43,764
$
39,614
$
11,979
1,856
2,595
3,028
3,184
5,058
2,774
2,351
479
557
616
969
1,259
934
541
3,823
6,078
10,380
12,516
50,081
43,322
14,871
48
223
596
1,079
585
509
35
(203
)
(2
)
(2
)
(2
)
(1,514
)
(1,039
)
(1,423
)
6
8
6
1
(10,454
)
(4,083
)
(5,295
)
(3,972
)
(5,849
)
(9,780
)
(11,438
)
(61,464
)
(47,935
)
(21,554
)
(2,731
)
(7,790
)
(3,191
)
5,733
(6,703
)
(13,639
)
(12,971
)
(5,705
)
(61,464
)
(47,935
)
(21,554
)
(355
)
(52
)
(164
)
(243
)
(248
)
(718
)
(609
)
(377
)
(358
)
(1,546
)
(3,548
)
(4,685
)
(6,573
)
(4,794
)
(5,340
)
$
(7,113
)
$
(15,349
)
$
(16,762
)
$
(10,638
)
$
(68,755
)
$
(53,338
)
$
(27,626
)
$
(1.48
)
$
(3.14
)
$
(3.43
)
$
(2.09
)
$
(13.39
)
$
(10.34
)
$
(5.41
)
4,804
4,887
4,887
5,100
5,136
5,159
5,105
$
(0.74
)
$
(0.22
)
68,796
74,272
(1)
Includes $29.8 million of research and development expenses
incurred in connection with an amendment to the pSivida license
agreement in the nine months ended September 30, 2008. See
Note 8 to the financial statements for a more detailed
description of the pSivida agreement and the amendment.
(2)
Includes gains on disposal of $9.7 million and
$6.0 million for the years ended December 31, 2006 and
2007, respectively. See Note 3 to the financial statements
for a more detailed description of the discontinued operations.
(3)
The pro forma basic and diluted net loss per common share data
for the year ended December 31, 2008 and the nine months
ended September 30, 2009 reflect the conversion, upon the
closing of this offering, of our Series A, Series B,
Series C and Series C-1 preferred stock (including
shares of
Series C-1
preferred stock issuable upon exercise of outstanding warrants)
at their respective conversion rates into our common stock, as
if the conversion had occurred at the later of the beginning of
the period presented or the date of issuance of such shares of
preferred stock and excludes the effect of the change in fair
value of the preferred stock conversion feature, preferred stock
accretion, and preferred stock dividends. The pro forma data
does not give effect to the consummation of this offering.
37
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As of December 31,
As of September 30,
2004
2005
2006
2007
2008
2008
2009
(Unaudited)
(Unaudited)
(In thousands)
$
3,355
$
22,815
$
27,157
$
20,847
$
17,875
$
26,620
$
9,902
2,783
21,846
25,294
19,862
14,551
21,500
1,561
4,381
25,081
31,251
24,519
20,264
30,172
10,889
19
57
60
31
28,217
21,675
31,777
8,982
43,373
63,057
67,990
103,017
101,128
111,257
1,937
2,193
2,571
2,867
3,474
3,354
4,339
(7,966
)
(23,315
)
(40,077
)
(50,715
)
(119,470
)
(104,053
)
(147,096
)
(5,923
)
(21,015
)
(37,399
)
(47,738
)
(115,887
)
(100,590
)
(141,176
)
38
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AND RESULTS OF OPERATIONS
complete the clinical development and registration of Iluvien;
build our sales and marketing capabilities for the anticipated
commercial launch of Iluvien as early as the first quarter of
2011;
add the necessary infrastructure to support our growth;
evaluate the use of Iluvien for the treatment of other diseases;
and
advance the clinical development of other new product candidates
either currently in our pipeline, or that we may license or
acquire in the future.
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salaries and related expenses for personnel;
fees paid to consultants and contract research organizations in
conjunction with independently monitoring clinical trials and
acquiring and evaluating data in conjunction with clinical
trials, including all related fees such as investigator grants,
patient screening, lab work and data compilation and statistical
analysis;
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costs incurred with third parties related to the establishment
of a commercially viable manufacturing process for our product
candidates;
costs related to production of clinical materials, including
fees paid to contract manufacturers;
costs related to upfront and milestone payments under
in-licensing agreements;
costs related to compliance with FDA regulatory requirements;
consulting fees paid to third-parties involved in research and
development activities; and
costs related to stock options or other stock-based compensation
granted to personnel in development functions.
the number of sites included in the trials;
the length of time required to enroll eligible patients;
the number of patients that participate in the trials;
the number of doses that patients receive;
the drop-out or discontinuation rates of patients;
the duration of patient
follow-up;
the phase of development the product candidate is in; and
the efficacy and safety profile of the product candidate.
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the nature and history of our business;
our historical operating and financial results;
the net present value of our expected cash flows;
the market value of companies that are engaged in a
substantially similar business;
the lack of marketability for our common stock;
the price at which shares of our common and preferred stock have
been sold;
the liquidation preference and other rights, privileges and
preferences associated with our preferred stock;
our progress in developing and commercializing the
non-prescription products owned by our company at the time;
our progress towards clinical and product development milestones;
the risks and uncertainties of obtaining FDA approval for
Iluvien;
the inherent risks associated with our business at the time
stock option grants were approved; and
overall equity market conditions and general economic trends.
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the potential of an initial public offering at various market
capitalizations;
a sale of us or our assets in a merger or acquisition;
a decision by our board of directors and stockholders to remain
an independent private company; or
the liquidation of our company resulting in no value to the
holders of common stock.
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Common
Stock
Valuation
$
0.66
0.71
0.73
0.74
0.96
1.14
1.15
1.48
1.59
1.60
1.09
1.09
1.16
1.18
1.18
1.24
1.27
1.84
2.49
On March 14, 2008, we completed the modification of our
agreement with pSivida that resulted in our acquisition of
rights to an incremental 30% of the future profits of Iluvien,
increasing our total ownership to 80% of the future profits;
On March 17, 2008, we entered into a Series C
preferred stock purchase agreement with certain investors. Under
the agreement, the investors agreed to purchase up to
19,744,246 shares of our Series C preferred stock at a
purchase price of $1.52 per share. The agreement contemplated
the purchase of such shares in two tranches. The first sale of
shares was completed on March 17, 2008 when we issued
18,715,461 shares. We completed the second sale of the
remaining 1,028,785 shares on April 23, 2008. The
proceeds of this offering have been and will be used primarily
to fund the initial payments
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associated with our amended and restated agreement with pSivida
and our incremental development costs associated with our
assumption of all financial responsibility for the remaining
development of Iluvien.
On April 25, 2008, we had an organizational meeting with a
selected group of investment bankers to initiate a process for
the initial public offering of our common stock. We filed a
registration statement with respect to this offering on
July 1, 2008, and subsequently amended that registration
statement on August 19, 2008.
In the fall of 2008 the volatility of the public capital markets
increased significantly and limited our ability to complete the
initial public offering of our common stock contemplated in our
July 1, 2008 registration filing, raise additional private
capital or complete a sale of our company. We ceased efforts
towards an initial public offering in the fourth quarter of 2008.
On August 25, 2009, we entered into a
Series C-1
preferred stock and warrant purchase agreement with certain
investors. Under the agreement, the investors agreed to purchase
up to 3,290,708 shares of our
Series C-1
preferred stock at a purchase price of $1.52 per share and
warrants to purchase up to an additional 6,581,416 shares
of our
Series C-1
preferred stock at an exercise price per share of $1.52. The
sale of the shares of
Series C-1
preferred stock was completed on August 25, 2009. The
proceeds of this offering will be used primarily to fund the
continuation of our FAME Study and prepare for filing an NDA for
Iluvien.
In June 2008, September 2008 and September 2009, we received
interim readouts from our open-label Phase 2 human
pharmacokinetic clinical trial (PK Study) that we believe
support that the sub-microgram levels of FA delivered by Iluvien
will provide visual acuity improvements while reducing the risk
of ocular side effects commonly associated with the use of
corticosteroids. See Business
Iluvien Iluvien is Positioned to Reduce Side
Effects for additional information on ocular side effects
commonly associated with the use of corticosteroids.
On September 30, 2009, we had an organizational meeting
with a selected group of investment bankers to reinitiate a
process for the initial public offering of our common stock. We
filed a registration statement with respect to this offering on
October 30, 2009.
On December 16, 2009, we received the month 24 clinical
readout from our FAME Study. Based on our analysis of this
readout, Iluvien demonstrated efficacy in the treatment of DME.
In addition, based on this readout, we believe that the adverse
events associated with the use of Iluvien are within the
acceptable limits of a drug for the treatment of DME.
The month 24 clinical readout from our FAME Study in
advance of this offering has further reduced the perceived
development and regulatory risk associated with Iluvien for a
potential investor. In discussions with our underwriters related
to the initial public offering of our common stock they have
indicated that a higher valuation of our common stock will
result from the month 24 readout from our FAME Study.
Our underwriters view of current market conditions and
other factors, including the last available financial and market
data from which our projections and valuations were derived.
The immediate liquidity available to investors in this offering.
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The assumed conversion of all of our outstanding shares of
preferred stock (including shares of
Series C-1
preferred stock issuable upon exercise of outstanding warrants)
into common stock immediately prior to this offering, resulting
in the elimination of a cumulative preference distribution of
approximately $115.6 million at September 30, 2009 to
the holders of our preferred stock.
The immediate liquidity available to investors in this offering.
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Number of
Weighted
Weighted
Options
Average
Average Fair
Granted
Exercise Price
Value at Grant
932,347
$
0.60
$
0.36
295,000
0.60
0.36
204,633
0.60
0.36
60,000
0.60
0.36
101,500
0.60
0.36
61,325
0.60
0.36
1,683,675
0.39
0.39
125,000
0.39
0.39
1,434,300
0.39
0.39
250,000
0.41
0.41
10,000
0.41
0.41
12,000
0.41
0.41
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Number of
Weighted
Weighted
Options
Average
Average Fair
Granted
Exercise Price
Value at Grant
1,137,345
0.41
0.41
1,673,722
0.71
0.71
135,000
1.11
1.11
20,000
1.48
1.48
7,000
1.60
1.60
924,267
1.18
1.18
80,300
2.49
2.49
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from July 2003 to October 2003, we issued and sold a total of
4,725,000 shares of common stock for aggregate net proceeds
of $1.7 million;
in May 2004 we issued $810,000 of convertible promissory notes
which were converted into 646,265 shares of Series A
preferred stock and 161,560 shares of common stock in July
2004;
from July 2004 to October 2005, we issued and sold a total of
21,878,280 shares of Series A preferred stock for
aggregate net proceeds of $25.9 million;
from November 2005 to November 2006, we issued and sold a total
of 24,302,903 shares of Series B preferred stock for
aggregate net proceeds of $31.9 million;
from March 2008 to April 2008, we issued and sold a total of
19,744,246 shares of Series C preferred stock for
aggregate net proceeds of $29.9 million; and
in August 2009 we issued and sold 3,290,708 shares of
Series C-1
preferred stock, and warrants exercisable for an additional
6,581,416 shares of
Series C-1
preferred stock for aggregate net proceeds of $4.9 million.
Nine Months
Year Ended December 31,
Ended September 30,
2006
2007
2008
2009
(In millions)
$
10.0
$
10.4
$
32.2
$
12.8
10.8
2.5
$
20.8
$
12.9
$
32.2
$
12.8
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Year Ended
Nine Months
December 31,
Ended September 30,
2006
2007
2008
2009
(In millions)
$
(0.4
)
$
(0.2
)
$
(0.6
)
$
(0.1
)
9.7
6.7
$
9.3
$
6.5
$
(0.6
)
$
(0.1
)
the progress and cost of preclinical studies, clinical trials
and other research and development activities;
the scope, prioritization and number of clinical trials and
other research and development programs;
the costs of the development and expansion of our operational,
sales and marketing infrastructure;
the costs and timing of obtaining regulatory approval;
the ability of our collaborators to achieve development
milestones;
the costs of filing, prosecuting, enforcing and defending patent
claims and other intellectual property rights;
the costs and timing of securing manufacturing arrangements for
clinical or commercial production;
the costs of acquiring or undertaking development and
commercialization efforts for any future product candidates;
the magnitude of our general and administrative expenses; and
the cost that we may incur under current and future licensing
arrangements relating to other product candidates.
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Payments Due by Future Period
Total
Less than 1 Year
1 - 3 Years
3 - 5 Years
5+ Years
(In thousands)
$
19,475
$
4,975
$
14,500
$
$
168
168
8
6
2
$
19,651
$
5,149
$
14,502
$
$
The possible acceleration of the note payable to pSivida of
$15 million upon the earlier of certain liquidity events
(including an initial public offering of our common stock
greater than $75 million), or the occurrence of an event of
default under our agreement with pSivida.
In connection with our March 2008 agreement with pSivida we
are obligated to make a milestone payment of $25.0 million
upon FDA approval of Iluvien.
In connection with our July 2009 license and option agreement
with Emory University for the fulvene class of NADPH oxidase
inhibitors, we are required to make annual minimum royalty
payments in the first through the fourth calendar years
following regulatory approval of the product in a major market
country (i.e., the United States, Japan, China, India or any
European country) in the amount of $250,000, $500,000,
$1.0 million and $2.5 million, respectively, and $2.5
million for each subsequent year during the term of our
agreement. We will also be required to make payments of up to
$5.8 million depending upon which regulatory milestones we
achieve. If we do not make any milestone payments to Emory
University under our agreement prior to the third anniversary of
the effective date of the agreement, then we will be required to
pay Emory University annual license maintenance fees ranging
from $500,000 to $2.0 million (depending upon when such
payment is made) until a milestone payment is made under the
agreement. As an upfront license fee for the license granted by
Emory University to us, we issued to Emory University (and its
inventors) that number of shares of our common stock with a fair
market value equal to $150,000 on the date of issuance. To date,
no other payments have been made to Emory University in
connection with this license agreement.
In connection with our August 2009 license and option agreement
with Emory University for the triphenylmethane class of NADPH
oxidase inhibitors, we are required to make annual minimum
royalty payments in the first through the fourth calendar years
following regulatory approval of the product in a major market
country (i.e., the United States, Japan, China, India or any
European country) in the amount of $250,000, $500,000,
$1.0 million and $2.5 million, respectively, and an
annual minimum royalty payment of $2.5 million for each
subsequent year during the term of our agreement. We will also
be required to make payments of up to $5.9 million
depending upon which regulatory milestones we achieve. If we do
not make any milestone payments to Emory University under our
agreement prior to the third anniversary of the effective date
of the agreement, then we will be required to pay Emory
University annual license maintenance fees ranging from $500,000
to $2.0 million (depending upon when such payment is made)
until a milestone payment is made under the agreement. As an
upfront license fee for the license granted by Emory University
to us, in the fourth quarter of 2009 we issued to Emory
University (and its inventors) that number of shares of our
common stock with a fair market value equal to $150,000 on the
date of issuance. To date, no other payments have been made to
Emory University in connection with this license agreement.
In connection with our November 2007 agreement with Dainippon
Sumitomo Pharma Co., Ltd. (Dainippon) we will be required to
make a payment in the amount of $200,000 to Dainippon within
30 days following the first regulatory approval of a
licensed product in the United States by the FDA.
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In January 2006, we entered into an agreement with a contract
research organization for clinical and data management services
to be performed in connection with our FAME Study clinical sites
in the United States, Canada, and Europe. In accordance with the
terms of the agreement, we will incur approximately
$17.4 million of expenses with the contract research
organization through 2010. Through September 30, 2009 we
incurred $12.4 million of expense associated with this
agreement.
In July 2006, we entered into an agreement with a contract
research organization for clinical services to be performed in
connection with our FAME Study clinical sites in India. In
accordance with the terms of the agreement, we will incur
approximately $1.8 million of expenses with the contract
research organization through 2010. Through September 30,
2009 we incurred $995,000 of expense associated with this
agreement.
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Pursue FDA Approval for Iluvien.
We are
currently conducting our FAME Study involving 956 patients in
sites across the United States, Canada, Europe and India to
assess the efficacy and safety of Iluvien in the treatment of
DME. In December 2009 we received the month 24 clinical readout
from our FAME Study. Based upon our analysis of this data, we
plan to file an NDA in the United States for the low dose of
Iluvien in the second quarter of 2010, followed by registration
filings in certain European countries and Canada.
Maximize the Commercial Success of Iluvien.
If
approved by the FDA, we intend to capitalize on our
managements past experience and expertise in marketing
eye-care products including the launch and management of
Visudyne (Novartis Ophthalmics) by marketing and selling Iluvien
to the approximately 1,600 retinal specialists practicing
in the approximately 900 retina centers in the United
States and Canada. We intend to seek a commercialization partner
for sales and marketing activities outside North America.
Assess the Effectiveness of Iluvien for Additional Retinal
Diseases.
We believe that Iluvien has the
potential to address additional retinal diseases including,
among others, dry AMD, wet AMD and RVO. Iluvien is being studied
in three Phase 2 clinical trials with retinal specialists
to assess the safety and efficacy of Iluvien for the treatment
of these diseases of the eye.
Develop Our Existing Ophthalmic Product
Pipeline.
We have acquired exclusive, worldwide
licenses of rights under patent applications for two classes of
NADPH oxidase inhibitors from Emory University. We believe that
the management of oxidative stress is an important strategy in
managing the development and progression of diseases of the eye,
and we believe that NADPH oxidase inhibitors have the potential
to manage oxidative stress. Our initial focus is on the use of
NADPH oxidase inhibitors in the treatment of dry AMD. We plan to
evaluate the use of NADPH oxidase inhibitors in the treatment of
other diseases of the eye, including wet AMD and diabetic
retinopathy.
Expand Our Ophthalmic Product Pipeline.
We
believe there are further unmet needs in the treatment of
ophthalmic diseases. Toward that end, we intend to leverage
managements expertise and its broad
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network of relationships in continuing to evaluate in-licensing
and acquisition opportunities for compounds and technologies
with applications in diseases affecting the eye.
Figure 2
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Iluvien delivers FA.
The active pharmaceutical
ingredient in Iluvien is FA, which has demonstrated efficacy in
the treatment of DME in our FAME Study.
Iluvien delivers sustained sub-microgram levels of a steroid
to the eye.
In our clinical trials we are
studying two doses of Iluvien (a high-dose with an initial
release of approximately 0.45µg per day and a low-dose with
an initial release of approximately 0.23µg per day) to
determine the lowest dose possible that will provide efficacy
for the treatment of DME. The dosage levels of Iluvien provide
lower exposure to corticosteroids than other intraocular dosage
forms currently available.
Iluvien is expected to deliver a therapeutic effect for up to
36 months.
In vitro release kinetics have
shown that Iluvien provides sustained delivery of sub-microgram
levels of FA over time. Based on these release kinetics, we
expect that the low dose of Iluvien will provide sustained
therapy for up to 36 months, with actual therapeutic effect
to be determined in our ongoing FAME Study.
Iluviens placement utilizes the eyes natural
fluid dynamics.
There are two natural currents of
fluid within the eye; one to the front of the eye and the other
to the back of the eye, or retina. We believe that
Iluviens delivery of sustained sub-microgram levels of FA
and insertion into the back of the eye, a position that we
believe optimizes delivery of FA to the retina by utilizing
these natural currents, will maximize efficacy and minimize
possible side effects.
Iluvien is inserted using a 25-gauge
needle.
Needle gauge determines the size of the
wound that is created. Iluvien is inserted into the eye using a
25-gauge needle, which results in a wound that is small enough
to seal itself after the needle is removed thus eliminating the
need for additional intervention. Using a larger needle would
require a more complicated insertion procedure to create a
self-sealing wound.
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Number of
Enrollment
Trial Name
Phase
Objectives
Geography
Patients
Status
FAME Study
(Trial A)
Phase 3
Safety
Dosage
Efficacy
Northern Regions
of the U.S., Europe
and India and all
of Canada
481
Completed
FAME Study
(Trial B)
Phase 3
Safety
Dosage
Efficacy
Southern Regions
of the U.S.,
Europe and India
475
Completed
PK Study
Phase 2
Pharmaco-
kinetics
U.S.
37
Completed
MAP GA
Phase 2
Safety
Dosage
Proof of
Concept
U.S.
40
On-going
MAP
Phase 2
Safety
Dosage
Proof of
Concept
U.S.
30
On-going
FAVOR
Phase 2
Safety
Dosage
Proof of
Concept
U.S.
20
On-going
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Trial A
Trial B
Low
High
Low
High
Control
Dose
Dose
Control
Dose
Dose
95
190
196
90
186
199
62.7
64.0
62.3
61.1
61.8
62.2
54.8
53.4
52.5
54.7
53.3
53.3
50.5/49.5
57.9/42.1
60.2/39.8
66.7/33.3
56.5/43.5
63.8/36.2
16.5
17.4
16.5
16.3
16.8
15.9
4.4
3.9
3.9
3.5
3.3
3.3
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Trial A
Trial B
Individuals
%
p-value
Individuals
%
p-value
14/95
14.7
%
16/90
17.8
%
51/190
26.8
%
0.029
57/186
30.6
%
0.030
51/196
26.0
%
0.034
62/199
31.2
%
0.027
Combined
Individuals
%
p-value
30/185
16.2
%
108/376
28.7
%
0.002
113/395
28.6
%
0.002
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patients with improved BCVA of 15 or more letters at each follow
up visit;
patients with improved BCVA of 15 or more letters at any time
point;
other levels of BCVA improvement at month 24;
BCVA improvement of 15 or more letters relative to baseline
BCVA; and
decrease in excess foveal thickness.
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Trial A & Trial B Combined
BCVA Improvement
Control
Low Dose
p-value
54.1
%
66.8
%
0.005
40.0
%
52.1
%
0.010
26.5
%
38.3
%
0.009
Trial A & Trial B Combined
Baseline BCVA
Control
Low Dose
p-value
11.8
%
21.1
%
0.027
28.6
%
46.1
%
0.039
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Trial A & Trial B Combined
Control
Low Dose
High Dose
N=185
N=375
N=393
2.7%
16.3%
21.6%
0.0%
1.3%
2.5%
0.0%
2.1%
5.1%
0.0%
0.3%
0.5%
0.5%
1.3%
2.5%
0.5%
3.5%
7.4%
(1)
An IOP of 30 mmHg is a clinically significant level that we use
in assessing adverse events.
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Dry AMD.
Dry AMD patients account for 90% of
AMD patients, with the greatest unmet need among these patients
being a treatment for geographic atrophy (GA) for which there
are currently no treatments available. Pre-clinical studies in
two established rat models of retinal degeneration reported at
the Association for Research in Vision and Ophthalmology
meetings in 2006, 2007 and 2008, described the efficacious
effects of a miniaturized version of Iluvien in two animal
models of retinal degeneration. Based on these results, we began
enrollment of a pilot study in December 2008 to assess the
safety and efficacy of Iluvien in patients with bilateral GA
secondary to AMD. Our Phase 2 study (the MAP GA Trial) is
comparing the two doses of Iluvien to a sham injection in
patients with bilateral GA secondary to AMD. The change from
baseline in size of GA will be assessed over time.
Wet AMD.
The size of the wet AMD market was
$2 billion in 2008 according to visiongain, an independent
competitive intelligence organization. We believe Iluvien will
be synergistic with the market leading anti-VEGF therapies in
the treatment of wet AMD. Anti-VEGFs require persistent dosing
to maintain a therapeutic effect which is a burden on both the
patient and the physician. Given that corticosteroids have been
shown to suppress the production of VEGF, a Phase 2 investigator
sponsored study (the MAP Trial) is assessing the safety and
efficacy of Iluvien in conjunction with Lucentis in patients
with wet AMD. Patients will be enrolled who have been treated
with Lucentis for at least six months and whose visual
acuity has plateaued. At baseline, subjects will receive either
the high-dose or the low-dose of Iluvien and an injection of
Lucentis. Subjects will receive additional Lucentis injections
during the study only if subretinal or intraretinal fluid
persists. Outcome measures will include the change from baseline
visual acuity at six months, and mean number of injections of
Lucentis over the six-month study period versus the six months
prior to study entry.
Macular edema associated with non-ischemic
RVO.
Estimates of the prevalence of retinal vein
occlusion in the United States range from approximately 800,000
based on data from The Epidemiology of Retinal Vein Occlusion:
The Beaver Dam Eye Study in 2000, to approximately 1.6 million
based on data from Ten-Year Incidence of Retinal Vein Occlusion
in an Older Population: The Blue Mountains Eye Study in 2006.
Additionally, JP Morgan stated in 2007 in an equity research
report on Genentech, Inc. that the prevalence in the United
States was approximately 1,070,000 patients. In September
2009,
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Allergan, Inc.s (Allergan) product Ozurdex (dexamethasone
intravitreal implant), is a bioerodable extended release implant
that delivers the corticosteroid dexamethasone. Ozurdex was
approved in 2009 for macular edema following branch or central
RVO and showed a duration of therapy of three to five months. In
addition, Allergans product Trivaris (triamcinolone
acetonide injectable suspension) is approved for sympathetic
ophthalmia, temporal arteritis, uveitis and other inflammatory
conditions unresponsive to topical corticosteroids. Trivaris is
not indicated for the treatment of DME, dry AMD, wet AMD or RVO.
Alcon, Inc.s (Alcon) product TRIESENCE (triamcinolone
acetonide injectable suspension), a preservative free synthetic
corticosteroid for visualization during vitrectomy, is approved
for the treatment of sympathetic ophthalmia, temporal arteritis,
uveitis and other inflammatory conditions unresponsive to
topical corticosteroids. TRIESENCE is not indicated for the
treatment of DME, dry AMD, wet AMD or RVO.
Genentech Inc.s (Genentech) products Lucentis (ranibizumab
injection) and Avastin (bevacizumab), both antibodies that block
all isoforms of VEGF, are being studied for the treatment of
DME. However, only Lucentis is currently enrolled in
Phase 3 clinical trials for the treatment of DME. Lucentis
is currently approved in the United States for the treatment of
patients with neovascular wet AMD. Avastin is currently marketed
as an oncology product. Neither product is indicated for the
treatment of DME, dry AMD or RVO. Genentech is a wholly-owned
member of the Roche Group.
Eyetech, Inc.s product Macugen (pegaptanib sodium
injection) is an anti-VEGF aptamer against VEGF 165. It has been
FDA-approved for treatment of all subtypes of choroidal
neovascularization in patients with AMD. Macugen is not
indicated for the treatment of DME, dry AMD or RVO.
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pay $12.0 million to pSivida upon the execution of the
March 2008 agreement;
issue a $15.0 million promissory note to pSivida;
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forgive all outstanding development payments, penalties and
interest as of the effective date of the March 2008 agreement,
which totaled $6.8 million;
continue responsibility for regulatory, clinical, preclinical,
manufacturing, marketing and sales for the remaining development
and commercialization of the products;
assume all financial responsibility for the development of the
products and assume 80% of the commercialization costs of the
products (instead of 50% as provided under the February 2005
agreement where commercialization costs were shared
equally); and
make an additional milestone payment of $25.0 million after
FDA approval of the first product under the March 2008 agreement
to be approved by the FDA.
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completion of preclinical laboratory and animal testing and
formulation studies conducted under Good Laboratory Practices
(GLP) regulations;
submission of an Investigational New Drug Application (IND)
which must become effective before human clinical trials may
begin;
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completion of adequate and well-controlled human clinical trials
to establish the safety and efficacy of the investigational drug
for its intended use; the studies must be conducted under Good
Clinical Practices (GCP) regulations;
submission of an NDA or Biologics License Application (BLA);
satisfactory completion of an FDA inspection of the
manufacturing facility or facilities where the product is
produced to assess compliance with current Good Manufacturing
Practice (cGMP) regulations; and
FDA review and approval of the NDA or BLA.
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85
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86
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87
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55
President, Chief Executive Officer and Director
40
Chief Financial Officer
51
Senior Vice President and Chief Scientific Officer
65
Senior Vice President, Regulatory and Medical Affairs
46
Vice President of Marketing
66
Chairman of the Board of Directors
43
Director
38
Director
43
Director
57
Director
38
Director
(1)
Member of the Nominating/Corporate Governance Committee
(2)
Member of the Compensation Committee
(3)
Member of the Audit Committee
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for any breach of the directors duty of loyalty to us or
our stockholders;
for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
in respect of unlawful payments of dividends or unlawful stock
repurchases or redemptions as provided in Section 174 of
the Delaware General Corporation Law; or
for any transaction from which the director derives any improper
personal benefit.
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94
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50% based upon the achievement of individual performance goals;
25% based upon our achievement of corporate performance
goals; and
95
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25% based upon the subjective assessment by the compensation
committee of the progress of the executive team towards our
strategic objectives.
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680,454
157,579
229,206
157,579
171,904
360,932
96,501
125,110
83,391
93,833
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Non-Equity
Option
Incentive Plan
All Other
Salary
Bonus(1)
Awards(2)
Compensation(3)
Compensation(4)
Total
Year
($)
($)
($)
($)
($)
($)
2008
340,000
34,085
228,559
102,255
4,382
709,281
2008
240,000
15,863
(5)
94,318
47,588
(5)
5,613
403,382
2008
250,000
15,742
(5)
143,480
47,227
(5)
5,613
462,062
2008
220,000
13,578
78,890
40,734
5,613
358,815
2008
210,000
13,158
43,755
39,473
5,613
311,999
(1)
The amounts set forth in this column represent the discretionary
bonuses paid to executives based on the board of directors
approval. Discretionary bonus amounts were earned in and paid in
2008 for all executives with the exception of Mr. Eiswirth
and Dr. Green, who were paid the 2008 earned amount in 2009.
(2)
The amounts in this column represent the dollar amount
recognized for financial statement reporting purposes with
respect to the fiscal year in accordance with ASC 718,
excluding forfeiture estimates. See Note 11 of the Notes to
our Financial Statements included elsewhere in this prospectus
for a discussion of our assumptions in determining the
ASC 718 values of our option awards.
(3)
The Non-Equity Incentive Plan Compensation represents the bonus
paid to executives based on personal and corporate targets as
defined in our Incentive Compensation Bonus Plan and approved by
the board of directors.
(4)
All Other Compensation represents group term life insurance
premiums, short-term and long-term disability
gross-ups
paid on an executives behalf.
(5)
Represents amount paid in January 2009 for bonus earned for
fiscal year 2008.
Non-Equity
Incentive
Plan
Salary
Bonus
Compensation
35
%
4
%
11
%
45
%
3
%
9
%
52
%
3
%
10
%
56
%
4
%
10
%
54
%
3
%
10
%
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All Other Option
Estimated Future
Awards: Number of
Payouts Under Non-Equity
Securities
Exercise or Base
Grant Date Fair
Incentive Plan Awards
Underlying Options
Price of Option
Value of Option
Grant Date
Minimum
Target
Maximum
(#)(1)
Awards ($/Sh)(2)
Awards ($)(3)
3/20/2008
$
0
$
141,440
$
141,440
680,454
$
0.71
3/20/2008
0
62,400
62,400
157,579
0.71
6/25/2008
0
100,000
1.14
3/20/2008
0
65,000
65,000
229,206
0.71
3/20/2008
0
57,200
57,200
157,579
0.71
3/20/2008
0
54,600
54,600
171,904
0.71
(1)
The option grants in column All Other Option Awards
vests as to 25% on March 20, 2009 and as to an additional
6.25% of the shares on each three-month anniversary date
thereafter, except for the June 25, 2008 grant to
Mr. Eiswirth which vests as to 25% on June 25, 2009
and as to an additional 6.25% of the shares on each three-month
anniversary date thereafter.
(2)
The fair market value of the option award was determined by our
board of directors as of the date of grant. See
Managements Discussion and Analysis of Financial
Condition and Results of Operations Critical
Accounting Policies and Estimates The Valuation of
our Common Stock for additional information.
(3)
The amounts in this column represent the aggregate grant date
fair value of the option awards, computed in accordance with
ASC 718. See Note 11 of the Notes to our Financial
Statements included elsewhere in this prospectus for a
discussion of our assumptions in determining the ASC 718
grant date fair value of our option awards.
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Option Awards
Number of
Number of
Securities
Securities
Underlying
Underlying
Option
Unexercised
Unexercised
Exercise
Option
Options (#)
Options (#)
Price
Expiration
Initial Vesting Date
Exercisable(1)
Unexercisable
($/share)
Date
7/7/2005
154,873
$
0.60
7/7/2014
11/22/2006
281,250
93,750
0.39
1/1/2016
11/22/2006
281,250
93,750
0.39
10/12/2016
12/13/2008
189,000
567,001
0.41
12/13/2017
3/20/2009
680,454
0.71
3/20/2018
10/31/2006
34,744
11,581
0.60
10/31/2015
10/31/2006
246,506
82,169
0.39
1/1/2016
11/22/2007
87,500
87,500
0.39
10/12/2016
12/13/2008
28,129
84,389
0.41
12/13/2017
3/20/2009
157,579
0.71
3/20/2018
6/25/2009
100,000
1.14
6/25/2018
8/2/2005
250,000
0.60
8/2/2014
1/3/2006
46,875
3,125
0.60
1/1/2015
11/22/2006
112,500
37,500
0.39
1/1/2016
11/22/2006
112,500
37,500
0.39
10/12/2016
11/22/2007
37,500
37,500
0.39
10/12/2016
3/1/2008
87,500
112,500
0.41
3/1/2017
12/13/2008
22,165
66,498
0.41
12/13/2017
3/20/2009
229,206
0.71
3/20/2018
7/7/2005
30,367
0.60
7/4/2014
2/18/2006
65,280
4,353
0.60
2/18/2015
11/22/2006
112,500
37,500
0.39
1/1/2016
11/22/2006
112,500
37,500
0.39
10/12/2016
3/1/2008
21,875
28,125
0.41
3/1/2017
12/13/2008
3,129
9,389
0.41
12/13/2017
3/20/2009
157,579
0.71
3/20/2018
7/7/2005
91,102
0.60
7/7/2014
11/22/2006
84,375
28,125
0.39
1/1/2016
11/22/2006
84,375
28,125
0.39
10/12/2016
12/13/2008
1,661
4,984
0.41
12/13/2017
3/20/2009
171,904
0.71
3/20/2018
(1)
One-quarter of each option vests upon continuous service through
the Initial Vesting Date shown in the table. Thereafter, the
option vests in 12 equal quarterly installments over the next
three years of service.
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a reduction of the executives base salary;
a material adverse change in the executives primary
responsibilities or duties;
a geographical relocation of our corporate headquarters, or the
executives primary business location, to a location that
is more than 35 miles from the present location; or
any material breach by us of the employment agreement.
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Termination
without
Voluntary
Cause or
Termination
Resignation
for Good
without
or
Reason Prior
Cause or for
Termination
to Change in
Good Reason after
Benefit
for Cause
Control
Change in Control
Salary
$
0
$
340,000
$
340,000
Bonus
0
136,000
136,000
Benefit Continuation
0
5,074
5,074
Accelerated Vesting
$
0
$
481,074
$
Salary
$
0
$
240,000
$
240,000
Bonus
0
60,000
60,000
Benefit Continuation
0
15,290
290
Accelerated Vesting
$
0
$
315,290
$
Salary
$
0
$
250,000
$
250,000
Bonus
0
62,500
62,500
Benefit Continuation
0
10,024
10,024
Accelerated Vesting
$
0
$
322,524
$
Salary
$
0
$
220,000
$
220,000
Bonus
0
55,000
55,000
Benefit Continuation
0
10,267
10,267
Accelerated Vesting
$
0
$
285,267
$
Salary
$
0
$
210,000
$
210,000
Bonus
0
52,500
52,500
Benefit Continuation
0
15,290
22,935
Accelerated Vesting
$
0
$
277,790
$
a material adverse change in the executives
responsibilities or duties;
a geographical relocation of our corporate headquarters, or the
executives primary business location, to a location that
is more than 35 miles from the present location; or
any breach by us of the employment agreement that is material
and not cured, or capable of being cured, within 30 days
after the executive gives us and our board of directors written
notice.
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Fees Earned or
Paid in Cash
Total
$
$
12,000
12,000
Aggregate Number
Number of
Exercise
of Options
Options
Price per
Grant Date
Outstanding on
Date of Grant
Granted
Share
Fair Value(1)
December 31, 2008
12/29/2004
15,000
$
0.60
$
4,000
75,000
7/1/2005
15,000
0.60
3,800
12/14/2006
30,000
0.39
9,300
6/25/2008
15,000
1.14
13,700
7/16/2009
15,000
1.18
14,700
(1)
See Note 11 of the Notes to our Financial Statements
included elsewhere in this prospectus for a discussion of our
assumptions in determining the ASC 718 grant date fair
value of our option awards. All director options have a 7-year
term and were fully vested upon grant.
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2,000,000 shares;
4% of the shares of common stock outstanding at that
time; or
the number of shares determined by our board of directors.
incentive and non-statutory stock options to purchase shares of
our common stock;
stock appreciation rights;
restricted shares of our common stock; and
stock units.
cash;
shares of common stock that the optionee already owns;
an immediate sale of the option shares through a broker approved
by us; or
a promissory note, if permitted by applicable law.
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Operating profits (including earnings before income, taxes,
depreciation and amortization)
Net income (before or after taxes)
Earnings per share
Profit returns
and/or
margins
Revenue
Stockholder return
and/or
value
Stock price
Working capital
Customer satisfaction
Implementation, completion or attainment of measurable
objectives with respect to research, development, products,
projects or recruiting and maintaining personnel
Market share
Return on equity
Revenue growth
Total stockholder return
Increases or growth in any of the foregoing
a merger after which our own stockholders own 50% or less of the
surviving corporation or its parent company;
a sale of all or substantially all of our assets;
a proxy contest that results in the replacement of more than
one-half of our directors over a
24-month
period; or
an acquisition of 50% or more of our outstanding stock by any
person or group, other than a person related to the company,
such as a holding company owned by our stockholders.
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incentive and non-statutory stock options to purchase shares of
our common stock;
stock appreciation rights;
restricted shares of our common stock; and
stock units.
a merger;
a sale of at least 50% of our assets;
the dissolution or liquidation of the company;
a proxy contest that results in the replacement of at least
one-half of our directors over a two-year period; or
an acquisition of 20% or more of our outstanding stock by any
person or group.
cash or cash equivalents;
shares of common stock that the optionee already owns; or
an immediate sale of the option shares through a broker
designated by us.
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the fair market value per share of our common stock on the last
trading day before the start of the applicable six-month
offering period (or, in the case of the first offering period,
the price at which shares are sold to the public in this
offering), or
the fair market value per share of common stock on the last
trading day in the applicable offering period, which is the
purchase date.
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we have been or are to be a participant;
the amount involved exceeds $120,000; and
any of our directors, executive officers or holders of more than
5% of our capital stock, or any immediate family member of or
person sharing the household with any of these individuals
(other than tenants or employees), had or will have a direct or
indirect material interest.
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each stockholder, or group of affiliated stockholders, that we
know owns more than 5% of our outstanding capital stock;
each of our named executive officers;
each of our directors;
all of our directors and executive officers as a group.
5,206,839 shares of common stock;
the automatic conversion of 22,524,545 shares of our Series
A preferred stock into 23,817,559 shares of common stock
upon the closing of the offering, including the conversion of
certain Series A preferred stock dividends accumulated prior to
November 22, 2005 into 1,293,014 shares of common stock;
the automatic conversion of 24,302,903 shares of our Series
B preferred stock into 24,302,903 shares of common stock
upon the closing of the offering;
the automatic conversion of 19,744,246 shares of our Series
C preferred stock into 19,744,246 shares of common stock
upon the closing of the offering;
the automatic conversion of 9,872,124 shares of our Series
C-1 preferred stock (which includes 6,581,416 shares of our
Series C-1 preferred stock issuable upon the exercise of
outstanding warrants, for which notices of exercise were
received in December 2009) into 9,872,124 shares of common
stock upon the closing of the offering; and
a -for-1
split of our common stock to be effected prior to this
offering.
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Shares Beneficially Owned
Shares Beneficially Owned
Prior to Offering
After the Offering
Number
Percent
Number
Percent
15,298,169
(1)
18.44
%
15,298,169
(1)
Foster City, California 94404
15,298,167
(2)
18.44
%
15,298,167
(2)
Princeton, New Jersey 08542
15,298,163
(3)
18.44
%
15,298,163
(3)
Durham, North Carolina 27701
15,298,168
(4)
18.44
%
15,298,168
(4)
Waltham, Massachusetts 02451
12,386,225
(5)
14.93
%
12,386,225
(5)
Menlo Park, California 94025
15,298,169
(6)
18.44
%
15,298,169
(6)
670,818
(7)
0.81
%
670,818
(7)
642,923
(8)
0.78
%
642,923
(8)
905,992
(9)
1.09
%
905,992
(9)
15,298,167
(10)
18.44
%
15,298,167
(10)
783,473
(11)
0.94
%
783,473
(11)
12,386,225
(12)
14.93
%
12,386,225
(12)
1,448,673
(13)
1.75
%
1,448,673
(13)
1,104,338
(14)
1.33
%
1,104,338
(14)
15,298,163
(15)
18.44
%
15,298,163
(15)
15,298,168
(16)
18.44
%
15,298,168
(16)
79,135,109
95.41
%
79,135,109
(1)
The general partner of BAVP, L.P. is Scale Venture
Management I, LLC. The managing members of Scale Venture
Management I, LLC share voting and investment power with
respect to these shares. Mark J. Brooks, a member of our board
of directors, is a managing member of Scale Venture
Management I, LLC, and shares voting and investment power
with the three other managing members of Scale Venture
Management I, LLC. Mr. Brooks disclaims beneficial
ownership of these shares except to the extent of his pecuniary
interest therein.
(2)
Represents 15,135,956 shares held by Domain Partners VI,
L.P. and 162,211 shares held by DP VI Associates, L.P. The
managing members of One Palmer Square Associates VI, L.L.C., the
general partner of Domain Partners VI, L.P. and DP VI
Associates, L.P., share voting and investment power with respect
to these shares. Brian Halak, a member of our board of
directors, is a member of One Palmer Square Associates VI, LLC,
but has no voting or investment power and disclaims beneficial
ownership of these shares, except to the extent of his pecuniary
interest therein.
(3)
Represents 236,708 shares held by Intersouth
Affiliates V, L.P.; 5,163,952 shares held by
Intersouth Partners V, L.P.; 6,672,410 shares held by
Intersouth Partners VI, L.P.; and 3,225,093 shares held by
Intersouth Partners VII, L.P. Dennis Dougherty and Mitch Mumma
are both member managers of
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Intersouth Associates V, LLC, Intersouth Associates VI, LLC
and Intersouth Associates VII, LLC and share voting and
investment power over the share held by each of Intersouth
Affiliates V and L.P., Intersouth Partners V, L.P.,
Intersouth Partners VI, L.P., and Intersouth Partners VII, L.P.
Philip R. Tracy, a member of our board of directors, is a member
of each of Intersouth Associates V, LLC, Intersouth
Associates VI, LLC and Intersouth Associates VII, LLC. Pursuant
to powers of attorney granted by each of Intersouth
Associates V, LLC, Intersouth Associates VI, LLC and
Intersouth Associates VII, LLC, Mr. Tracy shares voting
power with respect to the securities owned by the entities for
which these entities serve as general partners. Mr. Tracy
disclaims beneficial ownership of these shares held by
Intersouth Affiliates V, L.P., Intersouth Partners V,
L.P., Intersouth Partners VI, L.P., and Intersouth Partners VII,
L.P., except to the extent of his pecuniary interest therein.
(4)
Represents 15,023,444 shares held by Polaris Venture
Partners IV, L.P. and 274,724 shares held by Polaris
Venture Entrepreneurs Fund IV, L.P. Polaris Venture
Management Co., IV, L.L.C., is the sole general partner of
Polaris Venture Partners IV, L.P. and Polaris Venture Partners
Entrepreneurs Fund IV, L.P. Bryce Youngren, a member
of our board of directors, has an assignee interest in Polaris
Venture Management Co, IV, L.L.C. To the extent that he is
deemed to share voting and investment powers with respect to the
shares held by Polaris Venture Partners IV, L.P. and Polaris
Venture Partners Entrepreneurs Fund IV, L.P.,
Mr. Youngren disclaims beneficial ownership of all such
shares, except to the extent of his pecuniary interest therein.
(5)
Represents 10,082,386 shares held by Venrock Associates IV,
L.P.; 2,056,114 shares held by Venrock Partners, L.P.; and
247,725 shares held by Venrock Entrepreneurs Fund IV,
L.P. Venrock Management IV, LLC, Venrock Partners Management,
LLC, and VEF Management IV, LLC are the sole general partners of
Venrock Associates IV, L.P., Venrock Partners, L.P., and Venrock
Entrepreneurs Fund IV, L.P., respectively. Venrock
Management IV, LLC, Venrock Partners Management, LLC, and VEF
Management IV, LLC disclaim beneficial ownership of all shares
held by Venrock Associates IV, L.P., Venrock Partners, L.P., and
Venrock Entrepreneurs Fund IV, L.P., except to the extent
of their pecuniary interest therein. Anders D. Hove, M.D.,
a member of our board of directors, is a member of each of
Venrock Management IV, LLC, Venrock Partners Management, LLC,
and VEF Management IV, LLC. Dr. Hove disclaims beneficial
ownership of all shares held by Venrock Associates IV, L.P.,
Venrock Partners, L.P., and Venrock Entrepreneurs Fund IV,
L.P. and beneficially owned by Venrock Management IV, LLC,
Venrock Partners Management, LLC, and VEF Management IV, LLC,
except to the extent of his pecuniary interest therein.
(6)
Mr. Brooks is a managing member of Scale Venture
Management I, LLC, the general partner of BAVP, LP.
Mr. Brooks is one of four managing members of Scale Venture
Management I, LLC who share voting and investment power
with respect to these shares. Mr. Brooks disclaims
beneficial ownership of the shares held by BAVP, LP referenced
in footnote (1) above, except to the extent of his
pecuniary interest therein.
(7)
Includes 495,818 shares issuable upon exercise of options
exercisable within 60 days of September 30, 2009.
(8)
Includes 642,923 shares issuable upon exercise of options
exercisable within 60 days of September 30, 2009.
(9)
Includes 905,992 shares issuable upon exercise of options
exercisable with 60 days of September 30, 2009.
(10)
Dr. Halak is affiliated with Domain Associates L.L.C.
Dr. Halak disclaims beneficial ownership of the shares held
by the entities affiliated with Domain Associates referenced in
footnote (2) above, except to the extent of his pecuniary
interest therein.
(11)
Includes 383,473 shares issuable upon exercise of options
exercisable within 60 days of September 30, 2009.
(12)
Dr. Hove is affiliated with Venrock Associates.
Dr. Hove disclaims beneficial ownership of the shares held
by the entities affiliated with Venrock Associates referenced in
footnote (5) above, except to the extent of his pecuniary
interest therein.
(13)
Includes 921,173 shares issuable upon exercise of options
exercisable within 60 days of September 30, 2009.
(14)
Includes 90,000 shares issuable upon exercise of options
exercisable within 60 days of September 30, 2009 and
135,000 shares issuable upon exercise of warrants
exercisable within 60 days of September 30, 2009.
(15)
Mr. Tracy is affiliated with Intersouth Partners.
Mr. Tracy disclaims beneficial ownership of the shares held
by the entities affiliated with Intersouth Partners referenced
in footnote (3) above, except to the extent of his
pecuniary interest therein.
(16)
Mr. Youngren is affiliated with Polaris Venture Partners.
Mr. Youngren disclaims beneficial ownership of the shares
held by the entities affiliated with Polaris Venture Partners
referenced in footnote (4) above, except to the extent of
his pecuniary interest therein.
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acquisition of our company by means of a tender offer, a proxy
contest or otherwise; and
removal of our incumbent officers and directors.
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Shares Eligible for Sale
Comment
Shares sold in the offering
Freely tradable shares saleable under Rule 144 that are not
subject to the lock-up
Shares saleable under Rules 144 and 701 that are not subject to
a lock-up
Lock-up released, subject to extension; shares saleable under
Rules 144 and 701
Restricted securities held for one year or less
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1% of the number of shares of common stock then outstanding,
which will
equal shares
immediately after this offering; and
the average weekly trading volume of our common stock during the
four calendar weeks preceding the filing of a notice on
Form 144 with respect to the sale.
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a non-resident alien individual, other than certain former
citizens and residents of the United States;
a corporation, or other entity treated as a corporation for
U.S. federal income tax purposes, created or organized
under the laws of a jurisdiction other than the United States or
any state or political subdivision thereof;
an estate, other than an estate the income of which is subject
to U.S. federal income taxation regardless of its
source; or
a trust, other than if a court within the United States is able
to exercise primary supervision over the administration of the
trust and one or more U.S. persons have the authority to
control all substantial decisions of the trust.
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the gain is effectively connected with a trade or business of
the
non-U.S. holder
in the United States, subject to an applicable income tax treaty
providing otherwise; or
we are or have been a U.S. real property holding
corporation, as defined below, at any time within the
five-year period preceding the disposition or during the
non-U.S. holders
holding period, whichever period is shorter.
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Number
of Shares
Per Share
Total
Without
With
Without
With
Over-allotment
Over-allotment
Over-allotment
Over-allotment
$
$
$
$
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the information presented in this prospectus and otherwise
available to the underwriters;
the history of and the prospects for the industry in which we
compete;
the ability of our management;
the prospects for our future earnings;
the present state of our development and our current financial
condition;
the recent market prices of, and the demand for, publicly traded
common stock of generally comparable companies; and
the general condition of the securities markets at the time of
the offering.
Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a
specified maximum.
Over-allotment involves sales by the underwriters of shares in
excess of the number of shares the underwriters are obligated to
purchase, which creates a syndicate short position. The short
position may be either a covered short position or a naked short
position. In a covered short position, the number of shares
over-allotted by the underwriters is not greater than the number
of shares that they may purchase in the over-allotment option.
In a naked short position, the number of shares involved is
greater than the number of shares in the over-allotment option.
The underwriters may close out any covered short position by
either exercising their over-allotment option
and/or
purchasing shares in the open market.
Syndicate covering transactions involve purchases of the common
stock in the open market after the distribution has been
completed in order to cover syndicate short positions. In
determining the source of shares to close out the short
position, the underwriters will consider, among other things,
the price of shares available for purchase in the open market as
compared to the price at which they may purchase shares through
the over-allotment option. If the underwriters sell more shares
than could be covered by the over-allotment option, a naked
short position, the position can only be closed out by buying
shares in the open market. A naked short position is more likely
to be created if the underwriters are concerned that there could
be downward pressure on the price of the shares in the open
market after pricing that could adversely affect investors who
purchase in the offering.
126
Table of Contents
Penalty bids permit the representatives to reclaim a selling
concession from a syndicate member when the common stock
originally sold by the syndicate member is purchased in a
stabilizing or syndicate covering transaction to cover syndicate
short positions.
In passive market making, market makers in the common stock who
are underwriters or prospective underwriters may, subject to
limitations, make bids for or purchases of our common stock
until the time, if any, at which a stabilizing bid is made.
127
Table of Contents
to any legal entity that is authorized or regulated to operate
in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
to any legal entity that has two or more of (1) an average
of at least 250 employees during the last financial year;
(2) a total balance sheet of more than 43,000,000 and
(3) an annual net turnover of more than 50,000,000,
as shown in its last annual or consolidated accounts;
to fewer than 100 natural or legal persons (other than qualified
investors as defined below) subject to obtaining the prior
consent of the representatives for any such offer; or
in any other circumstances that do not require the publication
of a prospectus pursuant to Article 3 of the Prospectus
Directive.
released, issued, distributed or caused to be released, issued
or distributed to the public in France; or
used in connection with any offer for subscription or sale of
the shares to the public in France.
128
Table of Contents
to qualified investors (
investisseurs qualifiés
)
and/or
to a
restricted circle of investors (
cercle restreint
dinvestisseurs
), in each case investing for their own
account, all as defined in, and in accordance with
articles L.411-2,
D.411-1, D.411-2, D.734-1, D.744-1, D.754-1 and D.764-1 of the
French Code
monétaire et financier
;
to investment services providers authorized to engage in
portfolio management on behalf of third parties; or
in a transaction that, in accordance with article
L.411-2-II-1°-or-2°-or 3° of the French Code
monétaire et financier
and
article 211-2
of the General Regulations (
Règlement
Général
) of the
Autorité des Marchés
Financiers
, does not constitute a public offer (
appel
public à lépargn
e).
(a)
a fund for joint investments in trust (i.e., mutual fund), as
such term is defined in the Law for Joint Investments in Trust,
5754-1994,
or a management company of such a fund;
(b)
a provident fund as defined in Section 47(a)(2) of the
Income Tax Ordinance of the State of Israel, or a management
company of such a fund;
(c)
an insurer, as defined in the Law for Oversight of Insurance
Transactions,
5741-1981,
(d) a banking entity or satellite entity, as such terms are
defined in the Banking Law (Licensing),
5741-1981,
other than a joint
129
Table of Contents
services company, acting for their own account or for the
account of investors of the type listed in Section 15A(b)
of the Securities Law 1968;
(d)
a company that is licensed as a portfolio manager, as such term
is defined in Section 8(b) of the Law for the Regulation of
Investment Advisors and Portfolio Managers,
5755-1995,
acting on its own account or for the account of investors of the
type listed in Section 15A(b) of the Securities Law 1968;
(e)
a company that is licensed as an investment advisor, as such
term is defined in Section 7(c) of the Law for the
Regulation of Investment Advisors and Portfolio Managers,
5755-1995,
acting on its own account;
(f)
a company that is a member of the Tel Aviv Stock Exchange,
acting on its own account or for the account of investors of the
type listed in Section 15A(b) of the Securities Law 1968;
(g)
an underwriter fulfilling the conditions of Section 56(c)
of the Securities Law,
5728-1968;
(h)
a venture capital fund (defined as an entity primarily involved
in investments in companies which, at the time of investment,
(i) are primarily engaged in research and development or
manufacture of new technological products or processes and
(ii) involve above-average risk);
(i)
an entity primarily engaged in capital markets activities in
which all of the equity owners meet one or more of the above
criteria; and
(j)
an entity, other than an entity formed for the purpose of
purchasing shares of common stock in this offering, in which the
shareholders equity (including pursuant to foreign accounting
rules, international accounting regulations and
U.S. generally accepted accounting rules, as defined in the
Securities Law Regulations (Preparation of Annual Financial
Statements), 1993) is in excess of NIS 250 million.
a corporation (which is not an accredited investor (as defined
in Section 4A of the SFA)) the sole business of which is to
hold investments and the entire share capital of which is owned
by one or more individuals, each of whom is an accredited
investor; or
a trust (where the trustee is not an accredited investor) whose
sole purpose is to hold investments and each beneficiary of the
trust is an individual who is an accredited investor, shares,
debentures and units of shares and debentures of that
corporation or the beneficiaries rights and interest
(howsoever
130
Table of Contents
described) in that trust shall not be transferred within six
months after that corporation or that trust has acquired the
shares pursuant to an offer made under Section 275 of the
SFA except:
to an institutional investor (for corporations, under
Section 274 of the SFA) or to a relevant person defined in
Section 275(2) of the SFA, or to any person pursuant to an
offer that is made on terms that such shares, debentures and
units of shares and debentures of that corporation or such
rights and interest in that trust are acquired at a
consideration of not less than S$200,000 (or its equivalent in a
foreign currency) for each transaction, whether such amount is
to be paid for in cash or by exchange of securities or other
assets, and further for corporations, in accordance with the
conditions specified in Section 275 of the SFA;
where no consideration is or will be given for the
transfer; or
where the transfer is by operation of law.
131
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132
Page
F-2
F-3
F-4
F-5
F-6
F-8
F-1
Table of Contents
F-2
Table of Contents
F-3
Table of Contents
STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 2006, 2007, AND 2008
AND THE NINE MONTHS ENDED SEPTEMBER 30, 2008 AND 2009
F-4
Table of Contents
STATEMENTS OF CHANGES IN STOCKHOLDERS
DEFICIT
FOR THE YEARS ENDED DECEMBER 31, 2006, 2007, AND 2008
AND THE NINE MONTHS ENDED SEPTEMBER 30, 2009
Additional
Series C-1
Common Stock
Paid-In
Preferred
Common
Accumulated
Shares
Amount
Capital
Warrants
Warrants
Deficit
Total
(In thousands except share data)
4,886,560
$
49
$
2,193
$
$
58
$
(23,315
)
$
(21,015
)
(3,791
)
(3,791
)
350
350
46,748
28
28
(12,971
)
(12,971
)
4,933,308
49
2,571
58
(40,077
)
(37,399
)
(4,933
)
(4,933
)
185
185
222,627
3
111
114
(5,705
)
(5,705
)
5,155,935
52
2,867
58
(50,715
)
(47,738
)
(7,291
)
(7,291
)
(94,340
)
(1
)
(149
)
(150
)
750
750
5,000
6
6
(61,464
)
(61,464
)
5,066,595
51
3,474
58
(119,470
)
(115,887
)
(5,717
)
(5,717
)
127,119
1
149
150
1,472
1,472
13,125
6
6
355
(355
)
1
(1
)
354
354
(21,554
)
(21,554
)
5,206,839
$
52
$
4,339
$
1,472
$
57
$
(147,096
)
$
(141,176
)
F-5
Table of Contents
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 2006, 2007, AND 2008
AND FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2008 AND
2009
Nine Months Ended
Years Ended December 31,
September 30,
September 30,
2006
2007
2008
2008
2009
(In thousands)
(Unaudited)
$
(12,971
)
$
(5,705
)
$
(61,464
)
$
(47,935
)
$
(21,554
)
3,191
(5,733
)
129
147
241
172
1,048
(6
)
(1
)
10,454
4,083
5,295
253
185
750
630
354
17,809
17,809
150
(1,460
)
(1,551
)
(1,213
)
(2,459
)
462
120
181
615
902
(246
)
787
2,060
85
2,825
1,344
(24
)
24
24
(11
)
(18
)
540
368
365
(9,992
)
(10,435
)
(32,159
)
(23,581
)
(12,782
)
(10,792
)
(2,502
)
43
56
(30
)
(20,784
)
(12,937
)
(32,116
)
(23,525
)
(12,812
)
(443
)
(172
)
(640
)
(487
)
(58
)
(443
)
(172
)
(640
)
(487
)
(58
)
9,750
6,719
9,307
6,547
(640
)
(487
)
(58
)
15,802
(23
)
29,938
29,937
4,898
28
114
7
(150
)
(150
)
6
6
(11
)
(11
)
(10
)
(8
)
(8
)
15,819
80
29,784
29,785
4,897
4,342
(6,310
)
(2,972
)
5,773
(7,973
)
22,815
27,157
20,847
20,847
17,875
$
27,157
$
20,847
$
17,875
$
26,620
$
9,902
F-6
Table of Contents
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 2006, 2007, AND 2008
AND FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2008 AND
2009 (Continued)
Nine Months Ended
Years Ended December 31,
September 30,
September 30,
2006
2007
2008
2008
2009
(In thousands)
(Unaudited)
$
$
$
957
$
657
$
900
$
$
$
15,000
$
15,000
$
$
17
$
18
$
$
$
$
$
$
$
$
150
F-7
Table of Contents
AS OF DECEMBER 31, 2007 AND 2008 AND SEPTEMBER 30, 2009
AND
FOR THE YEARS ENDED DECEMBER 31, 2006, 2007, AND 2008 AND
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2008 (UNAUDITED)
AND 2009
1.
NATURE OF
OPERATIONS
2.
SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES
F-8
Table of Contents
F-9
Table of Contents
F-10
Table of Contents
Years Ended December 31,
Nine Months Ended September 30,
2006
2007
2008
2008
2009
(Unaudited)
23,817,559
23,817,559
23,817,559
23,817,559
23,817,559
13,491,317
24,302,903
24,302,903
24,302,903
24,302,903
15,540,345
14,056,756
19,744,246
433,939
867,878
11,122
102,924
79,010
107,069
51,465
755,884
3,356,381
2,666,991
3,553,533
37,360,341
48,887,468
67,120,112
64,923,219
72,827,127
F-11
Table of Contents
3.
DISCONTINUED
OPERATIONS
F-12
Table of Contents
F-13
Table of Contents
Years Ended December 31,
2006
2007
$
1,976
$
1,427
821
457
1,155
970
11,931
1,062
1,504
25
251
174
317
(12,848
)
(291
)
9,657
6,024
$
(3,191
)
$
5,733
$
(0.65
)
$
1.12
$
(2.00
)
$
(2.24
)
4,886,688
5,099,738
4.
FACTORS
AFFECTING OPERATIONS
F-14
Table of Contents
5.
PROPERTY
AND EQUIPMENT
December 31,
September 30,
2007
2008
2009
(In thousands)
$
286
$287
$290
239
272
283
160
470
470
12
12
12
73
366
40
770
1,407
1,095
373
611
798
$
397
$796
$297
6.
LICENSE
AGREEMENTS
F-15
Table of Contents
F-16
Table of Contents
7.
PSIVIDA
AGREEMENT
F-17
Table of Contents
8.
COMMITMENTS
F-18
Table of Contents
Years Ending
$
4,500
6,000
4,500
$
15,000
$
2
6
8
0
8
6
$
2
F-19
Table of Contents
December 31,
September 30,
2007
2008
2009
(In thousands)
$
42
$
42
$
42
(17
)
(27
)
(35
)
$
25
$
15
$
7
F-20
Table of Contents
9.
PREFERRED
STOCK
F-21
Table of Contents
Holders of the preferred stock are entitled to the number of
votes equal to the number of shares of common stock into which
such shares of preferred stock could then be converted and have
voting rights and powers equal to the voting rights and powers
of the common stock. In addition, the holders of the preferred
stock have the right, voting separately from common
stockholders, to elect five out of seven members of the
Companys Board of Directors. The remaining two members are
elected by both the common and preferred stockholders.
Dividends are cumulative and accrue on a daily basis at the rate
of 8% per annum beginning on the date of issuance and based on
the original issue price, $1.19 per share for the Series A
preferred stock, $1.31 per share for the Series B preferred
stock, and $1.52 per share for the Series C and
Series C-1 preferred stock, as adjusted for any stock
dividend, stock split, combination, or other event involving the
preferred stock. Dividends will accrue, whether or not declared,
annually and will be due and payable when and if declared by the
Board of Directors, upon a liquidating event, as defined, upon
redemption of the preferred stock, as defined, or on the date
that the preferred stock is otherwise acquired by the Company.
Accumulated, accrued, and unpaid dividends were:
December 31,
September 30,
2007
2008
2009
(In thousands)
$
6,040
$
8,177
$
9,775
4,096
6,652
8,558
1,881
3,676
39
$
10,136
$
16,710
$
22,048
Upon any liquidation, dissolution, or winding up of the Company,
the preferred stockholders are entitled to a liquidation
preference payment equal to (i) the sum of the liquidation
value ($1.19 per share for the Series A preferred stock,
$1.31 per share for the Series B preferred stock and $1.52
per share for the Series C and
Series C-1
preferred stock) plus all accumulated, accrued, and unpaid
dividends and (ii) the pro rata share of any remaining
amounts such holder would have been entitled to receive had such
holders
F-22
Table of Contents
shares been converted into common stock immediately prior to the
liquidation, dissolution, or winding up. The liquidation value
plus accumulated, accrued, and unpaid dividends were:
December 31,
September 30,
2007
2008
2009
(In thousands)
$
32,746
$
34,883
$
36,481
35,953
38,509
40,415
31,881
33,676
5,039
$
68,699
$
105,273
$
115,611
Each share is convertible, at the option of the holder, into one
share of common stock (subject to adjustments for events of
dilution). In addition, all shares of preferred stock are
automatically converted upon the completion of a public offering
of common shares yielding proceeds of at least $50,000,000 and a
price of at least five times the original issue price of the
Series A preferred stock of $1.19 per share (subject to
adjustments for events of dilution).
At any time subsequent to March 17, 2013, the holders of a
majority of the preferred stock may require the Company to
redeem all or any portion of the preferred stock. If the
preferred stock is redeemed, the redemption will occur in equal
installments over a three-year period. The price paid by the
Company to redeem the shares would be the greater of
(i) the original issue price, plus all accumulated,
accrued, and unpaid dividends, and (ii) the fair market
value of the preferred stock being redeemed at the time of the
redemption.
The holders of the preferred stock have the right but not the
obligation to participate proportionately in certain types of
future financings.
F-23
Table of Contents
December 31,
September 30,
2007
2008
2009
(In thousands)
$
32,280
$
34,199
$
35,895
35,710
37,963
39,948
30,855
32,798
2,616
$
67,990
$
103,017
$
111,257
10.
STOCK
OPTIONS
F-24
Table of Contents
Nine Months Ended
Years Ended December 31,
September 30,
2006
2007
2008
2009
Weighted
Weighted
Weighted
Weighted
Average
Average
Average
Average
Exercise
Exercise
Exercise
Exercise
Options
Price
Options
Price
Options
Price
Options
Price
1,518,364
$
0.60
4,313,493
$
0.46
4,827,330
$
0.44
6,663,052
$
0.53
3,242,975
0.39
1,409,345
0.41
1,835,722
0.75
924,267
1.18
(401,098
)
0.44
(672,881
)
0.46
(86,875
)
0.54
(46,748
)
0.60
(222,627
)
0.51
(13,125
)
0.50
4,313,493
0.46
4,827,330
0.44
6,663,052
0.53
7,487,319
0.61
1,443,126
0.50
1,917,094
0.48
3,131,576
0.46
4,422,177
0.49
$
0.24
$
0.26
$
0.51
$
1.01
Weighted
Weighted
Average
Average
Aggregate
Exercise
Contractual
Intrinsic
Shares
Price
Term
Value
(In thousands)
7,487,319
$
0.61
7.50 years
$
4,740
4,422,177
0.49
6.68 years
3,304
2,757,722
0.77
8.68 years
1,293
Nine Months Ended
Years Ended December 31,
September 30,
2006
2007
2008
2009
4.53
%
3.98
%
2.87
%
3.47
%
63.76
%
64.16
%
73.78
%
112.85
%
$ 0.39
$ 0.41
$ 0.75
$ 1.18
6.03 years
6.13 years
6.15 years
6.18 years
F-25
Table of Contents
Nine Months
Years Ended
Ended
December 31,
September 30,
2006
2007
2008
2009
(In thousands)
$
6
$
9
$
109
$
28
18
36
269
110
38
45
372
216
26
$
88
$
90
$
750
$
354
Options Outstanding
Options Exercisable
Weighted
Weighted
Average
Average
Remaining
Remaining
Number
Contractual
Number
Contractual
Outstanding
Life
Exercisable
Life
2,380,075
6.58
2,147,056
6.56
1,349,345
8.03
638,579
7.98
1,037,910
5.04
1,034,703
5.04
35,000
8.42
13,125
8.42
1,598,722
8.47
514,464
8.47
20,000
8.65
6,250
8.65
115,000
8.74
46,250
8.74
924,267
9.91
15,000
9.80
20,000
8.91
5,000
8.91
7,000
8.92
1,750
8.92
7,487,319
4,422,177
11.
COMMON
STOCK WARRANTS
F-26
Table of Contents
12.
STOCK
RESTRICTION AGREEMENTS
13.
INCOME
TAXES
Nine Months
Ended
Years Ended December 31,
September 30,
2006
2007
2008
2009
(In thousands)
$
4,262
$
1,877
$
17,119
$
5,053
106
18
2,202
589
4,368
1,895
19,321
5,642
(4,368
)
(1,895
)
(19,321
)
(5,642
)
$
$
$
$
F-27
Table of Contents
December 31,
September 30,
2007
2008
2009
(In thousands)
$
(65
)
$
(17
)
$
287
179
227
342
12,157
21,167
27,482
11,013
10,283
1,506
194
346
514
(13,777
)
(33,098
)
(38,740
)
$
$
$
Years Ended December 31,
Nine Months Ended
2006
2007
2008
September 30, 2009
Amount
Percent
Amount
Percent
Amount
Percent
Amount
Percent
(In thousands, except percentages)
$
(4,410
)
34.0
%
$
(1,940
)
34.0
%
$
(20,898
)
34.0
%
$
(7,328
)
34.0
%
(112
)
0.9
(31
)
0.5
(2,434
)
4.0
(854
)
4.0
152
(1.2
)
63
(1.1
)
4,226
(6.9
)
2,115
(9.8
)
2
13
(0.2
)
(160
)
0.3
(55
)
425
(2.0
)
4,368
(33.7
)
1,895
(33.2
)
19,321
(31.4
)
5,642
(26.2
)
$
%
$
%
$
%
$
%
14.
FAIR
VALUE MEASUREMENTS
F-28
Table of Contents
December 31, 2008
Level 1
Level 2
Level 3
Total
$
17,421
$
$
$
17,421
$
17,421
$
$
$
17,421
$
$
$
12,656
$
12,656
$
$
$
12,656
$
12,656
September 30, 2009
Level 1
Level 2
Level 3
Total
$
9,066
$
$
$
9,066
$
9,066
$
$
$
9,066
$
$
$
18,855
$
18,855
$
$
$
18,855
$
18,855
(1)
The carrying amounts approximate fair value due to the
short-term maturities of the cash and cash equivalents.
F-29
Table of Contents
(2)
The fair value of the beneficial conversion feature of preferred
stock (see note 9) is established using a probability
weighted expected return method (PWERM) and Black Scholes
valuation model. Significant inputs to the valuation include:
probability of various scenarios occurring, including the
potential for an initial public offering, sale of the Company or
its assets, decision to remain a private company or liquidation
of the Company;
fair value of common stock as determined under each of the
scenarios under the PWERM, adjusted for a lack of control and
lack of marketability discount;
volatility estimated as an average of volatilities of publicly
traded companies deemed similar to the Company in terms of
product composition, stage of lifecycle, capitalization, and
scope of operations;
exercise price and weighted-average expected life estimated
based on the underlying and the expected remaining life of the
underlying instrument;
risk-free interest rate estimated as the daily treasury yield
for the period that most closely approximates the
weighted-average expected life as the valuation date as
published by the United States Department of Treasury.
The method described above may produce a fair value calculation
that may not be indicative of net realizable value or reflective
of future fair values. Furthermore, while the Company believes
its valuation methods are appropriate, the use of different
methodologies or assumptions to determine the fair value of
certain financial instruments could result in a different fair
value measurement at the reporting date.
$
12,656
903
5,295
$
18,855
15.
EMPLOYEE
BENEFIT PLAN
F-30
Table of Contents
Table of Contents
ITEM 13.
OTHER
EXPENSES OF ISSUANCE AND DISTRIBUTION
$
4,464
8,500
*
*
*
*
*
*
*
$
*
*
To be completed in subsequent amendment
ITEM 14.
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
ITEM 15.
RECENT
SALES OF UNREGISTERED SECURITIES
II-1
Table of Contents
ITEM 16.
EXHIBITS AND
FINANCIAL STATEMENT SCHEDULES
1
.1
Form of Underwriting Agreement*
3
.1
Restated Certificate of Incorporation of Registrant, as amended
on various dates**
3
.2
Restated Certificate of Incorporation of Registrant to be
effective upon closing**
3
.3
Amended and Restated Bylaws of the Registrant**
3
.4
Amended and Restated Bylaws of the Registrant to be effective
upon closing**
4
.1
Reference is made to Exhibits 3.1, 3.2, 3.3 and 3.4
II-2
Table of Contents
II-3
Table of Contents
10
.23
Option Certificates Documenting Options Granted to Kenneth Green
under the 2004 Incentive Stock Plan and 2005 Incentive Stock
Plan
10
.24
Option Certificates Documenting Options Granted to Calvin W.
Roberts under the 2004 Incentive Stock Plan and 2005 Incentive
Stock Plan
10
.25
License Agreement, between Alimera Sciences, Inc. and Dainippon
Sumitomo Pharma Co., Ltd., dated November 4, 2007
23
.1
Consent of Deloitte & Touche LLP Independent
Registered Public Accounting Firm
23
.2
Consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP (contained in
Exhibit 5.1)*
24
.1
Power of Attorney**
Compensation Arrangement.
*
To be filed by amendment.
Confidential treatment has been requested for portions of this
document. The omitted portions of this document have been filed
by amendment with the Securities and Exchange Commission.
**
Previously filed.
ITEM 17.
UNDERTAKINGS
II-4
Table of Contents
By:
President and Chief Executive Officer
December 23, 2009
Chief Financial Officer and Treasurer
(Principal Financial and Accounting Officer)
December 23, 2009
Chairman of the Board of Directors,
Director
December 23, 2009
Director
December 23, 2009
Director
December 23, 2009
Director
December 23, 2009
Director
December 23, 2009
Director
December 23, 2009
*By:
Attorney-in-Fact
II-5
Table of Contents
Table of Contents
10
.20
Option Certificates Documenting Options Granted to Richard
Eiswirth under the 2004 Incentive Stock Plan and 2005 Incentive
Stock Plan
10
.21
Option Certificates Documenting Options Granted to David Holland
under the 2004 Incentive Stock Plan and 2005 Incentive Stock
Plan
10
.22
Option Certificates Documenting Options Granted to Susan Caballa
under the 2004 Incentive Stock Plan and 2005 Incentive Stock
Plan
10
.23
Option Certificates Documenting Options Granted to Kenneth Green
under the 2004 Incentive Stock Plan and 2005 Incentive Stock
Plan
10
.24
Option Certificates Documenting Options Granted to Calvin W.
Roberts under the 2004 Incentive Stock Plan and 2005 Incentive
Stock Plan
10
.25
License Agreement between Alimera Sciences, Inc. and Dainippon
Sumitomo Pharma Co., Ltd., dated November 4, 2007
23
.1
Consent of Deloitte & Touche LLP Independent
Registered Public Accounting Firm
23
.2
Consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP (contained in
Exhibit 5.1)*
24
.1
Power of Attorney**
Compensation Arrangement.
*
To be filed by amendment.
Confidential treatment has been requested for portions of this
document. The omitted portions of this document have been filed
with the Securities and Exchange Commission.
**
Previously filed.
Page | ||||
1. Restrictions on Transfer
|
2 | |||
1.1 Restrictive Legends
|
2 | |||
1.2 Notice of Proposed Transfers
|
3 | |||
|
||||
2. Registration Rights
|
3 | |||
2.1 Certain Definitions
|
3 | |||
2.2 Demand Registration
|
4 | |||
2.3 Piggyback Registration
|
6 | |||
2.4 Expenses of Registration
|
7 | |||
2.5 Obligations of the Company
|
8 | |||
2.6 Indemnification
|
9 | |||
2.7 Information by Holder
|
12 | |||
2.8 Transfer and Assignment of Rights
|
12 | |||
2.9 Form S-3
|
12 | |||
2.10 Delay of Registration
|
13 | |||
2.11 Limitations on Subsequent Registration Rights
|
13 | |||
2.12 Rule 144 Reporting
|
13 | |||
2.13 Market Stand-Off Agreement
|
13 | |||
2.14 Termination of Rights
|
14 | |||
|
||||
3. Rights of First Refusal
|
14 | |||
3.1 Certain Definitions
|
14 | |||
3.2 Right of First Refusal
|
15 | |||
3.3 Required Notices
|
15 | |||
3.4 Companys Right to Sell
|
16 | |||
3.5 Assignment of Rights of First Refusal
|
16 | |||
3.6 Expiration of Right
|
16 | |||
|
||||
4. Company Covenants
|
16 | |||
4.1 Affirmative Covenants
|
16 | |||
4.2 Negative Covenants
|
23 | |||
4.3 Expiration of Covenants
|
25 | |||
|
||||
5. Voting Agreement
|
25 | |||
5.1 Election of Directors
|
25 | |||
5.2 Binding Effect of Voting Agreement
|
25 | |||
5.3 Legends
|
25 | |||
5.4 Termination of Voting Agreement
|
26 | |||
|
||||
6. Prior Agreement
|
26 | |||
6.1 Amendment and Restatement of Prior Agreement
|
26 | |||
|
||||
7. Miscellaneous
|
26 |
i
Page | ||||
7.1 Governing Law
|
26 | |||
7.2 Successors and Assigns
|
26 | |||
7.3 Entire Agreement
|
26 | |||
7.4 Severability
|
26 | |||
7.5 Amendment and Waiver
|
27 | |||
7.6 Delays or Omissions
|
28 | |||
7.7 Notices, etc.
|
28 | |||
7.8 Attorneys Fees
|
29 | |||
7.9 Aggregation of Stock
|
29 | |||
7.10 Titles and Subtitles
|
29 | |||
7.11 Counterparts
|
29 |
ii
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
(a) | if to the Company, at: | ||
Alimera Sciences, Inc.
6120 Windward Parkway, Suite 290 Alpharetta, GA 30005 Attn: Chief Executive Officer Telephone: 678-990-5740 Fax: 678-990-5744 |
|||
With a copy to: | |||
Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP
610 Lincoln Street Waltham, MA 02451 Attn: Jay Hachigian, Esq. Telephone: 781-795-3550 Fax: 781-622-1622 |
28
29
COMPANY : | |||||
ALIMERA SCIENCES, INC. | |||||
|
|||||
|
By: | /s/ C. Daniel Myers | |||
|
|||||
|
Name: | C. Daniel Myers | |||
|
|||||
|
Title: | President and Chief Executive Officer | |||
|
INVESTORS: | |||||
|
|||||
VENROCK PARTNERS, L.P. | |||||
by its General Partner, Venrock Partners Management, LLC | |||||
|
|||||
VENROCK ASSOCIATES IV, L.P. | |||||
by its General Partner, Venrock Management IV, LLC | |||||
|
|||||
VENROCK ENTREPRENEURS FUND IV, L.P. | |||||
by its General Partner, VEF Management IV, LLC | |||||
|
|||||
|
By: | /s/ Anders Hove | |||
|
|||||
|
Name: | Anders Hove | |||
|
|||||
|
Title: | Member |
INVESTORS: | |||||
|
|||||
INTERSOUTH PARTNERS V, L.P. | |||||
|
|||||
|
By: |
Intersouth Associates V, L.P.,
its General Partner |
|||
|
|||||
|
By: | /s/ Philip Tracy | |||
|
|||||
|
Name: | Philip Tracy | |||
|
|||||
|
Title: | Member Acting Pursuant to Power of Attorney | |||
|
|||||
|
|||||
INTERSOUTH AFFILIATES V, L.P. | |||||
|
|||||
|
By: |
Intersouth Associates V, LLC,
its General Partner |
|||
|
|||||
|
By: | /s/ Philip Tracy | |||
|
|||||
|
Name: | Philip Tracy | |||
|
|||||
|
Title: | Member Acting Pursuant to Power of Attorney | |||
|
|||||
|
|||||
INTERSOUTH PARTNERS VI, L.P. | |||||
|
|||||
|
By: |
Intersouth Associates VI, LLC,
its General Partner |
|||
|
By: | /s/ Philip Tracy | |||
|
|||||
|
Name: | Philip Tracy | |||
|
|||||
|
Title: | Member Acting Pursuant to Power of Attorney | |||
|
INVESTORS:
INTERSOUTH PARTNERS VII, L.P. |
||||
By: | Intersouth Associates VII, L.P., | |||
its General Partner | ||||
By: | /s/ Philip Tracy | |||
Name: | Philip Tracy | |||
Title: | Member Acting Pursuant to Power of Attorney | |||
INVESTORS:
BAVP, L.P. |
||||
By: | BA Venture Partners VI, LLC, | |||
its general partner | ||||
By: | /s/ Mark Brooks | |||
Name: | Mark Brooks | |||
Title: | Managing Director | |||
INVESTORS:
G&H PARTNERS |
||||
By: | /s/ Jay K. Hachigian | |||
Name: | Jay K. Hachigian | |||
Title: | Partner | |||
INVESTORS:
POLARIS VENTURE PARTNERS IV, L.P. |
||||
By: | Polaris Venture Management Co. IV, L.L.C., | |||
its General Partner | ||||
By: | /s/ Bill E. Bilodeau | |||
Name: | William E. Bilodeau | |||
Title: | Attorney-in-fact | |||
POLARIS VENTURE PARTNERS
ENTREPRENEURS FUND IV, L.P. |
||||
By: | Polaris Venture Management Co. IV, L.L.C., | |||
its General Partner | ||||
By: | /s/ Bill E. Bilodeau | |||
Name: | William E. Bilodeau | |||
Title: | Attorney-in-fact | |||
INVESTORS:
DOMAIN PARTNERS VI, L.P. |
||||
By: | One Palmer Square Associates VI, L.L.C., | |||
its General Partner | ||||
By: | /s/ Lisa A. Kraeutler | |||
Name: | Lisa A. Kraeutler | |||
Title: | Attorney-in-fact | |||
DP VI ASSOCIATES, L.P.
|
||||
By: | One Palmer Square Associates VI, L.L.C., | |||
its General Partner | ||||
By: | /s/ Lisa A. Kraeutler | |||
Name: | Lisa A. Kraeutler | |||
Title: | Attorney-in-fact | |||
INVESTOR/COMMON HOLDER:
|
||||
/s/ Calvin Roberts | ||||
Dr. Calvin Roberts | ||||
COMMON STOCKHOLDERS:
|
||||
/s/ C. Daniel Myers | ||||
C. Daniel Myers | ||||
/s/ David Holland | ||||
David Holland | ||||
/s/ Alisa Hudzina | ||||
Alisa Hudzina | ||||
/s/ Susan H. Caballa | ||||
Susan Caballa | ||||
/s/ David Eitel | ||||
David Eitel | ||||
Name and Address | No. of Shares of Series A Stock | |||
Intersouth Partners V, L.P.
|
2,539,618 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
||||
|
||||
Intersouth Affiliates V, L.P.
|
116,096 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
||||
|
||||
Intersouth Partners VI, L.P.
|
2,655,715 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
E-1
Name and Address | No. of Shares of Series A Stock | |||
BAVP, L.P.
|
5,311,429 | |||
950 Tower Lane
Suite 700 Foster City, CA 94044 Attn: Mark Brooks Facsimile: (650) 378-6040 |
||||
|
||||
Domain Partners VI, L.P.
|
5,255,110 | |||
One Palmer Square, Suite 515
Princeton, NJ 08542 Attn: Brian Halak Facsimile: (609) 683-4581 |
||||
|
||||
DP VI Associates, L.P.
|
56,319 | |||
One Palmer Square, Suite 515
Princeton, NJ 08542 Attn: Brian Halak Facsimile: (609) 683-4581 |
||||
|
||||
Polaris Venture Partners IV, L.P.
|
5,219,317 | |||
1000 Winter Street, Suite 3350
Waltham, MA 02451 Attn: Bryce Youngren Fax: (781) 290-0880 |
||||
|
||||
Polaris Venture Partners Entrepreneurs Fund IV, L.P.
|
92,112 | |||
1000 Winter Street, Suite 3350
Waltham, MA 02451 Attn: Bryce Youngren Fax: (781) 290-0880 |
||||
|
||||
C&B Capital, L.P.
|
632,564 | |||
4200 Northside Parkway, N.W.
Building One, Suite 100 Atlanta, Georgia 30327 Attn: Theodore J. Bender, III |
||||
|
||||
Thomas L. Shields, Jr.
|
36,899 | |||
1750 W. Sussex
Atlanta, GA 30306 |
E-2
Name and Address | No. of Shares of Series A Stock | |||
BFG Investments, LLC
|
36,899 | |||
(Robert B. Braden)
931 Ponce de Leon Ave, NE Atlanta, GA 30306 |
||||
|
||||
BFG Investments, LLC
|
36,899 | |||
(Peter B. Fellman)
931 Ponce de Leon Ave, NE Atlanta, GA 30306 |
||||
|
||||
REDLOH Capital, LLC
|
36,899 | |||
3333 Riverwood Parkway,
Suite 400 Atlanta, GA 30339 Attn: J.C. Pendrey, Jr. |
||||
|
||||
Linda T. and Jimmy D. Veal
|
84,342 | |||
290 Osprey Place
Brunswick, GA 31525 |
||||
|
||||
Hugh S. Hill
|
50,605 | |||
4027 River Ridge Chase
Marietta, GA 30067 |
||||
|
||||
DC&M Partnership
|
36,899 | |||
41 Muscogee Ave. N.W.
Atlanta, GA 30305 Attn: David F. Walbert |
||||
|
||||
SOLFAM Trust
|
253,025 | |||
Philip Solomons, Tstee
5 Mad Anthony Lane Savannah, GA 31411 |
||||
|
||||
Plunkett Family, LP
|
36,899 | |||
L. Richard Plunkett, Managing Partner
196 Folds Road Carrollton, GA 30116 |
||||
|
||||
Paul Linck
|
36,899 | |||
419 Mill Creek Bend
Atlanta, GA 30307 |
E-3
Name and Address | No. of Shares of Series B Stock | |||
Venrock Associates IV, L.P.
|
7,628,696 | |||
2494 Sand Hill Road, Suite 200
Menlo Park, CA 94025 Attn: Anders Hove Facsimile: (650) 561-9180 |
||||
|
||||
Intersouth Partners V, L.P.
|
1,823,258 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
||||
|
||||
Intersouth Affiliates V, L.P.
|
83,914 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
E-4
Name and Address | No. of Shares of Series B Stock | |||
Intersouth Partners VI, L.P.
|
1,907,176 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
||||
|
||||
BAVP, L.P.
|
3,814,348 | |||
950 Tower Lane
Suite 700 Foster City, CA 94044 Attn: Mark Brooks Facsimile: (650) 378-6040 |
||||
|
||||
Domain Partners VI, L.P.
|
3,773,902 | |||
One Palmer Square, Suite 515
Princeton, NJ 08542 Attn: Brian Halak Facsimile: (609) 683-4581 |
||||
|
||||
DP VI Associates, L.P.
|
40,446 | |||
One Palmer Square, Suite 515
Princeton, NJ 08542 Attn: Brian Halak Facsimile: (609) 683-4581 |
||||
|
||||
Polaris Venture Partners IV, L.P.
|
3,744,138 | |||
1000 Winter Street, Suite 3350
Waltham, MA 02451 Attn: Bryce Youngren Fax: (781) 290-0880 |
E-5
Name and Address | No. of Shares of Series B Stock | |||
Polaris
Venture Partners Entrepreneurs Fund IV, L.P.
|
70,210 | |||
1000 Winter Street, Suite 3350
Waltham, MA 02451 Attn: Bryce Youngren Fax: (781) 290-0880 |
||||
|
||||
C&B Capital, L.P.
|
515,740 | |||
4200 Northside Parkway, N.W.
Building One, Suite 100 Atlanta, Georgia 30327 Attn: Theodore J. Bender, III |
||||
|
||||
Thomas L. Shields, Jr.
|
38,694 | |||
1750 W. Sussex
Atlanta, GA 30306 |
||||
|
||||
BFG Investments, LLC
|
38,694 | |||
(Robert B. Braden)
931 Ponce de Leon Ave, NE Atlanta, GA 30306 |
||||
|
||||
BFG Investments, LLC
|
38,694 | |||
(Peter B. Fellman)
931 Ponce de Leon Ave, NE Atlanta, GA 30306 |
||||
|
||||
REDLOH Capital, LLC
|
38,694 | |||
3333 Riverwood Parkway,
Suite 400 Atlanta, GA 30339 Attn: J.C. Pendrey, Jr. |
||||
|
||||
Linda T. and Jimmy D. Veal
|
88,433 | |||
290 Osprey Place
Brunswick, GA 31525 |
||||
|
||||
DC&M Partnership
|
38,694 | |||
41 Muscogee Ave. N.W.
Atlanta, GA 30305 Attn: David F. Walbert |
||||
|
E-6
Name and Address | No. of Shares of Series B Stock | |||
SOLFAM Trust
|
265,299 | |||
Philip Solomons, Tstee
5 Mad Anthony Lane Savannah, GA 31411 |
||||
|
||||
Plunkett Family, LP
|
38,694 | |||
L. Richard Plunkett, Managing Partner
196 Folds Road Carrollton, GA 30116 |
||||
|
||||
Paul Linck
|
38,694 | |||
419 Mill Creek Bend
Atlanta, GA 30307 |
||||
|
||||
Dr. Calvin Roberts
|
177,301 | |||
|
||||
Zachary Veal
|
22,108 | |||
138 Foxcreek Boulevard
Brunswick, GA 31523 |
||||
|
||||
Zachary Veal
|
22,108 | |||
138 Foxcreek Boulevard
Brunswick, GA 31523 |
||||
|
||||
Michel Benton
|
10,000 | |||
|
||||
Janice Dee Weber
|
10,000 | |||
|
||||
Sharon Louise Hill
|
13,060 | |||
4027 River Ridge Chase
Marietta, GA 30067 |
||||
|
||||
James Loftin
|
10,000 | |||
|
||||
Irene T. Kramer and Jerry D. Kramer
JTWROS
|
10,000 |
E-7
Shares of Series C Stock | Shares of Series C Stock | |||||||
Name and Address | First Tranche | Second Tranche | ||||||
Venrock Associates IV, L.P.
|
2,535,263 | 49,990 | ||||||
2494 Sand Hill Road, Suite 200
Menlo Park, CA 94025 Attn: Anders Hove Facsimile: (650) 561-9180 |
||||||||
|
||||||||
Venrock Entrepreneurs Fund IV, L.P.
|
62,291 | 1,228 | ||||||
2494 Sand Hill Road, Suite 200
Menlo Park, CA 94025 Attn: Anders Hove Facsimile: (650) 561-9180 |
||||||||
|
||||||||
Venrock Partners, L.P.
|
517,019 | 10,195 | ||||||
2494 Sand Hill Road, Suite 200
Menlo Park, CA 94025 Attn: Anders Hove Facsimile: (650) 561-9180 |
||||||||
|
||||||||
Intersouth Partners VII, L.P.
|
1,923,397 | 37,925 | ||||||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||||||
|
||||||||
with a copy to:
|
||||||||
|
||||||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
||||||||
|
E-8
Shares of Series C Stock | Shares of Series C Stock | |||||||
Name and Address | First Tranche | Second Tranche | ||||||
Intersouth Partners VI, L.P.
|
1,923,399 | 37,926 | ||||||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||||||
|
||||||||
with a copy to:
|
||||||||
|
||||||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
||||||||
|
||||||||
BAVP, L.P.
|
3,846,797 | 75,851 | ||||||
950 Tower Lane
Suite 700 Foster City, CA 94044 Attn: Mark Brooks Facsimile: (650) 378-6040 |
||||||||
|
||||||||
Domain Partners VI, L.P.
|
3,806,008 | 75,047 | ||||||
One Palmer Square, Suite 515
Princeton, NJ 08542 Attn: Brian Halak Facsimile: (609) 683-4581 |
||||||||
|
||||||||
DP VI Associates, L.P.
|
40,790 | 804 | ||||||
One Palmer Square, Suite 515
Princeton, NJ 08542 Attn: Brian Halak Facsimile: (609) 683-4581 |
||||||||
|
||||||||
Polaris Venture Partners IV, L.P.
|
3,776,009 | 74,455 | ||||||
1000 Winter Street, Suite 3350
Waltham, MA 02451 Attn: Bryce Youngren Fax: (781) 290-0880 |
E-9
Shares of Series C Stock | Shares of Series C Stock | |||||||
Name and Address | First Tranche | Second Tranche | ||||||
Polaris Venture Partners Entrepreneurs
|
70,789 | 1,396 | ||||||
Fund IV, L.P.
1000 Winter Street, Suite 3350 Waltham, MA 02451 Attn: Bryce Youngren Fax: (781) 290-0880 |
||||||||
|
||||||||
Dr. Calvin Roberts
|
213,699 | 4,214 | ||||||
|
||||||||
Janice Dee Weber
|
0 | 3,328 | ||||||
849 Chestnut Lake Drive NE
Marietta, GA 30068 |
||||||||
|
||||||||
REDLOH Capital, LLC
|
0 | 30,294 | ||||||
JC Pendrey, Jr.
3333 Riverwood Parkway, Suite 400 Atlanta, GA 30339 |
||||||||
|
||||||||
Jerry D. Kramer/Irene T. Kramer
|
0 | 3,328 | ||||||
3882 The Ascent NE
Atlanta, GA 30319 |
||||||||
|
||||||||
BFG Investments LLC (Braden)
|
0 | 30,294 | ||||||
Robert B. Braden
931 Ponce de Leon Avenue Atlanta, GA 30306 |
||||||||
|
||||||||
BFG Investments LLC (Fellman)
|
0 | 30,294 | ||||||
Robert B. Braden
931 Ponce de Leon Avenue Atlanta, GA 30306 |
||||||||
|
||||||||
Thomas L. Shields, Jr.
|
0 | 29,579 | ||||||
1750 W Sussex
Atlanta, GA 30306 |
||||||||
|
||||||||
C&B Capital II, L.P.
|
0 | 216,879 | ||||||
Edward S. Croft, III, its Manager
C&B Capital II GP, LLC, its General Partner c/o Croft & Bender LLC Building One, Suite 100 4200 Northside Parkway, NW Atlanta, GA 30327 |
E-10
Shares of Series C Stock | Shares of Series C Stock | |||||||
Name and Address | First Tranche | Second Tranche | ||||||
C&B Capital II (PF), L.P.
|
0 | 178,006 | ||||||
Edward S. Croft, III, its Manager
C&B Capital II GP, LLC, its General Partner c/o Croft & Bender LLC Building One, Suite 100 4200 Northside Parkway, NW Atlanta, GA 30327 |
||||||||
|
||||||||
James Loftin
|
0 | 6,656 | ||||||
6630 Chambrel Way
Sawanee, GA 30024 |
||||||||
|
||||||||
Sharon Louise Hill
|
0 | 40,563 | ||||||
4027 River Ridge Chase
Marietta, GA 30067 |
||||||||
|
||||||||
Michel Benton
|
0 | 3,328 | ||||||
802 Sterling Falls Circle
Canton, GA 30114 |
||||||||
|
||||||||
Linda T. and Jimmy D. Veal
|
0 | 32,908 | ||||||
290 Osprey Place
Brunswick, GA 31525 |
||||||||
|
||||||||
Daniel D. Veal
|
0 | 7,358 | ||||||
136 Foxcreek Boulevard
Brunswick, GA 31523 |
||||||||
|
||||||||
Zachry T. Veal
|
0 | 7,358 | ||||||
138 Foxcreek Boulevard
Brunswick, GA 31523 |
||||||||
|
||||||||
Paul Linck
|
0 | 29,579 | ||||||
419 Mill Creek Boulevard
Atlanta, GA 30307 |
||||||||
|
||||||||
G&H Partners
|
0 | 10,002 | ||||||
155 Constitution Drive
Menlo Park, CA 71429 |
E-11
Name and Address of Common Holder | No. of Shares of Common Stock | |||
Alisa Hudzina
|
100,000 | |||
Amanda Whittington and Scott Whittington,
JTWROS
|
2,500 | |||
Arthur Murray
|
25,000 | |||
Barry Dabbs
|
25,000 | |||
BFG Investments, LLC
|
18,448 | |||
Brian Burks
|
1,250 | |||
Brian Whitright
|
208,083 | |||
Bryan & Mary Grissett
|
50,000 | |||
Buddy King
|
250,000 | |||
Barry Burden and Michelle Howard Burden,
JTWROS
|
1,563 | |||
C&B Capital, LP
|
||||
C. Daniel Myers
|
1,100,000 | |||
Calvin Roberts
|
300,000 | |||
Charles Bradford Myers
|
10,000 | |||
Charles Myers
|
5,000 | |||
Chris Freund
|
8,334 | |||
Corissa Vossbrink
|
2,500 | |||
Daniel White
|
550,000 | |||
David Eitel
|
10,000 |
E-12
Name and Address of Common Holder | No. of Shares of Common Stock | |||
David Holland
|
400,000 | |||
David K. and Gail Z. Kinser
|
5,000 | |||
David Preston White
|
5,000 | |||
Davis Myers
|
20,000 | |||
DC&B Partnership
|
9,224 | |||
Deanna Magdich
|
20,000 | |||
Deborah Chafin and David Chafin,
Community Property
|
16,666 | |||
Domain Partners VI, LP
|
||||
Don Testerman
|
5,000 | |||
Evan Myers
|
20,000 | |||
Frances Kane
|
28,125 | |||
George Ritacco
|
8,333 | |||
Grayson Davis Myers
|
5,000 | |||
Greta Myers
|
5,000 | |||
Holly Reynerson and Jayme K. Reynerson,
as Community Property
|
2,500 | |||
J. Randall Carroll
|
100,000 | |||
James D. Loftin
|
10,000 | |||
James Seifert II
|
12,500 | |||
Jean Norris
|
3,563 | |||
Jeff Bradsha
|
10,000 | |||
Jeff German and Marianne German, JTWROS
|
12,500 |
E-13
Name and Address of Common Holder | No. of Shares of Common Stock | |||
Jeff Holden and Rhonda E. Holden,
Community Property with the Right of
Survivorship
|
3,594 | |||
Jeffrey Mason
|
10,000 | |||
Jennifer Burnette
|
5,000 | |||
Jessica Robinson
|
5,625 | |||
Jim Harris
|
8,333 | |||
Joan Kaimer (Trust)
|
50,000 | |||
Katherine Booms
|
100 | |||
Kari Kubala
|
2,500 | |||
Karen Hutton Powell and Matthew Blake
Powell, JTWROS
|
17,813 | |||
Karen Myers
|
15,000 | |||
Keith Jeremy Caballa
|
25,000 | |||
Keith Seifert Sr.
|
12,500 | |||
Kelly Seifert and Kevin Seifert, JTWROS
|
1,250 | |||
Kerry Jo Nantz
|
5,000 | |||
Kevin Carroll
|
10,000 | |||
Linda T. and Jimmy D. Veal
|
21,085 | |||
Mark Testerman
|
400,000 | |||
Mark Testerman and Sara Sue Testerman,
JTWROS
|
107,495 | |||
Nancy Boyd
|
5,000 | |||
Patrick Hickock
|
100,000 | |||
Paul David Kinser
|
5,000 | |||
|
E-14
Name and Address of Common Holder | No. of Shares of Common Stock | |||
Paul Linck
|
9,224 | |||
Plunkett Family LP
|
9,224 | |||
Randy Rhino
|
10,000 | |||
REDLOH Capital, LLC
|
9,224 | |||
Richard Lamar Wakefield
|
25,000 | |||
Robert & Nancy Sharp
|
25,000 | |||
Robert Thomas Cooksey
|
25,000 | |||
Rose Berube
|
2,500 | |||
Scott Kilburn
|
25,000 | |||
Sharon Louise Hill (fka, Hugh Hill)
|
52,651 | |||
SOLFAM Trust
|
363,256 | |||
Susan Caballa
|
175,000 | |||
Susan Liguori
|
25,000 | |||
Susan Thomspon
|
5,000 | |||
Thomas Davenport
|
25,000 | |||
Thomas L. Shields
|
9,224 | |||
Timothy Czerwionka and Rebekah
Czerwionka, as Community Property
|
2,500 | |||
Tony Catanzaro
|
25,000 | |||
Tracy Aiken
|
50,000 | |||
Tracy Puckett and Etienne Puckett, JTWROS
|
46,748 | |||
UBS Financial Services
|
25,000 | |||
Virginia Morris
|
5,000 | |||
White Family Trust
|
30,000 |
E-15
E-16
2
3
4
5
6
7
COMPANY
:
ALIMERA SCIENCES, INC. |
||||
By: |
/s/ C. Daniel Myers
|
|||
Name: | Dan Myers | |||
Title: | President and Chief Executive Officer | |||
INVESTORS:
INTERSOUTH PARTNERS V, L.P. |
||||
By: | Intersouth Associates V, L.P., | |||
its General Partner | ||||
By: | /s/ Philip Tracy | |||
Name: | Philip Tracy | |||
Title: | Member Acting Pursuant to Power of Attorney | |||
INTERSOUTH AFFILIATES V, L.P.
|
||||
By: | Intersouth Associates V, LLC, | |||
its General Partner | ||||
By: | /s/ Philip Tracy | |||
Name: | Philip Tracy | |||
Title: | Member Acting Pursuant to Power of Attorney | |||
INTERSOUTH PARTNERS VI, L.P.
|
||||
By: | Intersouth Associates VI, LLC, | |||
its General Partner | ||||
By: | /s/ Philip Tracy | |||
Name: | Philip Tracy | |||
Title: | Member Acting Pursuant to Power of Attorney | |||
INVESTORS:
INTERSOUTH PARTNERS VII, L.P. |
||||
By: | Intersouth Associates VII, L.P., | |||
its General Partner | ||||
By: | /s/ Philip Tracy | |||
Name: | Philip Tracy | |||
Title: | Member Acting Pursuant to Power of Attorney | |||
INVESTORS:
VENROCK PARTNERS, L.P. by its General Partner, Venrock Partners Management, LLC VENROCK ASSOCIATES IV, L.P. by its General Partner, Venrock Management IV, LLC VENROCK ENTREPRENEURS FUND IV, L.P. by its General Partner, VEF Management IV, LLC |
||||
By: | /s/ Anders Hove | |||
Name: | Anders Hove | |||
Title: | Member | |||
INVESTORS:
BAVP, L.P. |
||||
By: | BA Venture Partners VI, LLC, | |||
its general partner | ||||
By: | /s/ Mark Brooks | |||
Name: | Mark Brooks | |||
Managing Director | ||||
INVESTORS:
POLARIS VENTURE PARTNERS IV, L.P. |
||||
By: | Polaris Venture Management Co. IV, L.L.C., | |||
its General Partner | ||||
By: | /s/ Bill E. Bilodeau | |||
Name: | William E. Bilodeau | |||
Title: | Attorney-in-fact | |||
POLARIS VENTURE PARTNERS
ENTREPRENEURS FUND IV, L.P. |
||||
By: | Polaris Venture Management Co. IV, L.L.C., | |||
its General Partner | ||||
By: | /s/ Bill E. Bilodeau | |||
Name: | William E. Bilodeau | |||
Title: | Attorney-in-fact | |||
INVESTORS:
DOMAIN PARTNERS VI, L.P. |
||||
By: | One Palmer Square Associates VI, L.L.C., | |||
its General Partner | ||||
By: | /s/ Lisa A. Kraeutler | |||
Name: | Lisa A. Kraeutler | |||
Title: | Attorney-in-fact | |||
DP VI ASSOCIATES, L.P.
|
||||
By: | One Palmer Square Associates VI, L.L.C., | |||
its General Partner | ||||
By: | /s/ Lisa A. Kraeutler | |||
Name: | Lisa A. Kraeutler | |||
Title: | Attorney-in-fact | |||
INVESTORS:
G&H PARTNERS |
||||
By: | /s/ Jay K. Hachigian | |||
Name: | Jay K. Hachigian | |||
Title: | Partner | |||
INVESTOR/COMMON HOLDER:
|
||||
/s/ Calvin Roberts | ||||
Dr. Calvin Roberts | ||||
COMMON STOCKHOLDERS:
|
||||
/s/ C. Daniel Myers | ||||
C. Daniel Myers | ||||
/s/ David Holland | ||||
David Holland | ||||
/s/ Alisa Hudzina | ||||
Alisa Hudzina | ||||
/s/ Susan H. Caballa | ||||
Susan Caballa | ||||
/s/ David Eitel | ||||
David Eitel | ||||
Name and Address of Common Holder 1 | No. of Shares of Common Stock | |||
Alisa Hudzina
|
100,000 | |||
Amanda Whittington and Scott Whittington, JTWROS
|
2,500 | |||
Arthur Murray
|
25,000 | |||
Barry Dabbs
|
25,000 | |||
BFG Investments, LLC
|
18,448 | |||
Brian Burks
|
1,250 | |||
Brian Whitright
|
208,083 | |||
Bryan & Mary Grissett
|
50,000 | |||
Buddy King
|
250,000 | |||
Barry Burden and Michelle Howard Burden, JTWROS
|
1,563 | |||
C&B Capital, LP
C. Daniel Myers
|
1,100,000 | |||
Calvin Roberts
|
300,000 | |||
Charles Bradford Myers
|
10,000 | |||
Charles Myers
|
5,000 | |||
Chris Freund
|
8,334 | |||
Corissa Vossbrink
|
2,500 | |||
Daniel White
|
550,000 |
1 | Address as set forth in the Companys stock records. |
E-1
Name and Address of Common Holder 1 | No. of Shares of Common Stock | |||
David Eitel
|
10,000 | |||
David Hollan
|
400,000 | |||
David K. and Gail Z. Kinser
|
5,000 | |||
David Preston White
|
5,000 | |||
Davis Myers
|
20,000 | |||
DC&B Partnership
|
9,224 | |||
Deanna Magdich
|
20,000 | |||
Deborah Chafin and David Chafin, Community Property
|
16,666 | |||
Domain Partners VI, LP
|
||||
Don Testerman
|
5,000 | |||
Evan Myers
|
20,000 | |||
Frances Kane
|
28,125 | |||
George Ritacco
|
8,333 | |||
Grayson Davis Myers
|
5,000 | |||
Greta Myers
|
5,000 | |||
Holly Reynerson and Jayme K. Reynerson,
as Community Property
|
2,500 | |||
J. Randall Carroll
|
100,000 | |||
James D. Loftin
|
10,000 | |||
James Seifert II
|
12,500 | |||
Jean Norris
|
3,563 | |||
Jeff Bradsha
|
10,000 | |||
Jeff German and Marianne German, JTWROS
|
12,500 |
E-2
Name and Address of Common Holder 1 | No. of Shares of Common Stock | |||
Jeff Holden and Rhonda E. Holden, Community Property
with the Right of Survivorship
|
3,594 | |||
Jeffrey Mason
|
10,000 | |||
Jennifer Burnette
|
5,000 | |||
Jessica Robinson
|
5,625 | |||
Jim Harris
|
8,333 | |||
Joan Kaimer (Trust)
|
50,000 | |||
Katherine Booms
|
100 | |||
Kari Kubala
|
2,500 | |||
Karen Hutton Powell and Matthew Blake Powell, JTWROS
|
17,813 | |||
Karen Myers
|
15,000 | |||
Keith Jeremy Caballa
|
25,000 | |||
Keith Seifert Sr.
|
12,500 | |||
Kelly Seifert and Kevin Seifert, JTWROS
|
1,250 | |||
Kerry Jo Nantz
|
5,000 | |||
Kevin Carroll
|
10,000 | |||
Linda T. and Jimmy D. Veal
|
21,085 | |||
Mark Testerman
|
400,000 | |||
Mark Testerman and Sara Sue Testerman,
JTWROS
|
107,495 | |||
Nancy Boyd
|
5,000 | |||
Patrick Hickock
|
100,000 | |||
Paul David Kinser
|
5,000 |
E-3
Name and Address of Common Holder 1 | No. of Shares of Common Stock | |||
Paul Linck
|
9,224 | |||
Plunkett Family LP
|
9,224 | |||
Randy Rhino
|
10,000 | |||
REDLOH Capital, LLC
|
9,224 | |||
Richard Lamar Wakefield
|
25,000 | |||
Robert & Nancy Sharp
|
25,000 | |||
Robert Thomas Cooksey
|
25,000 | |||
Rose Berube
|
2,500 | |||
Scott Kilburn
|
25,000 | |||
Sharon Louise Hill (fka, Hugh Hill)
|
52,651 | |||
SOLFAM Trust
|
363,256 | |||
Susan Caballa
|
175,000 | |||
Susan Liguori
|
25,000 | |||
Susan Thomspon
|
5,000 | |||
Thomas Davenport
|
25,000 | |||
Thomas L. Shields
|
9,224 | |||
Timothy Czerwionka and Rebekah Czerwionka, as
Community Property
|
2,500 | |||
Tony Catanzaro
|
25,000 | |||
Tracy Aiken
|
50,000 | |||
Tracy Puckett and Etienne Puckett, JTWROS
|
46,748 | |||
UBS Financial Services
|
25,000 | |||
Virginia Morris
|
5,000 | |||
White Family Trust
|
30,000 |
E-4
Name and Address | Shares of Series A Stock | |||
Intersouth Partners V, L.P.
|
2,539,618 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
||||
|
||||
Intersouth Affiliates V, L.P.
|
116,096 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
E-5
Name and Address | Shares of Series A Stock | |||
Intersouth Partners VI, L.P.
|
2,655,715 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
||||
|
||||
BAVP, L.P.
|
5,311,429 | |||
950 Tower Lane
Suite 700 Foster City, CA 94044 Attn: Mark Brooks Facsimile: (650) 378-6040 |
||||
|
||||
Domain Partners VI, L.P.
|
5,255,110 | |||
One Palmer Square, Suite 515
Princeton, NJ 08542 Attn: Brian Halak Facsimile: (609) 683-4581 |
||||
|
||||
DP VI Associates, L.P.
|
56,319 | |||
One Palmer Square, Suite 515
Princeton, NJ 08542 Attn: Brian Halak Facsimile: (609) 683-4581 |
||||
|
||||
Polaris Venture Partners IV, L.P.
|
5,219,317 | |||
1000 Winter Street, Suite 3350
Waltham, MA 02451 Attn: Bryce Youngren Fax: (781) 290-0880 |
E-6
Name and Address | Shares of Series A Stock | |||
Polaris Venture Partners Entrepreneurs Fund IV, L.P.
|
92,112 | |||
1000 Winter Street, Suite 3350
Waltham, MA 02451 Attn: Bryce Youngren Fax: (781) 290-0880 |
||||
|
||||
C&B Capital, L.P.
|
632,564 | |||
4200 Northside Parkway, N.W.
Building One, Suite 100 Atlanta, Georgia 30327 Attn: Theodore J. Bender, III |
||||
|
||||
Thomas L. Shields, Jr.
|
36,899 | |||
1750 W. Sussex
Atlanta, GA 30306 |
||||
|
||||
BFG Investments, LLC
|
36,899 | |||
(Robert B. Braden)
931 Ponce de Leon Ave, NE Atlanta, GA 30306 |
||||
|
||||
BFG Investments, LLC
|
36,899 | |||
(Peter B. Fellman)
931 Ponce de Leon Ave, NE Atlanta, GA 30306 |
||||
|
||||
REDLOH Capital, LLC
|
36,899 | |||
3333 Riverwood Parkway,
Suite 400 Atlanta, GA 30339 Attn: J.C. Pendrey, Jr. |
||||
|
||||
Linda T. and Jimmy D. Veal
|
84,342 | |||
290 Osprey Place
Brunswick, GA 31525 |
||||
|
||||
Sharon Louise Hill
|
50,605 | |||
4027 River Ridge Chase
Marietta, GA 30067 |
||||
|
||||
DC&M Partnership
|
36,899 | |||
41 Muscogee Ave. N.W.
Atlanta, GA 30305 Attn: David F. Walbert |
E-7
Name and Address | Shares of Series A Stock | |||
SOLFAM Trust
|
253,025 | |||
Philip Solomons, Tstee
5 Mad Anthony Lane Savannah, GA 31411 |
||||
|
||||
Plunkett Family, LP
|
36,899 | |||
L. Richard Plunkett, Managing Partner
196 Folds Road Carrollton, GA 30116 |
||||
|
||||
Paul Linck
|
36,899 | |||
419 Mill Creek Bend
Atlanta, GA 30307 |
E-8
Name and Address | Shares of Series B Stock | |||
Venrock Associates IV, L.P.
|
6,209,758 | |||
2494 Sand Hill Road, Suite 200
Menlo Park, CA 94025 Attn: Anders Hove Facsimile: (650) 561-9180 |
||||
|
||||
Venrock Entrepreneurs Fund IV, L.P.
|
152,574 | |||
2494 Sand Hill Road, Suite 200
Menlo Park, CA 94025 Attn: Anders Hove Facsimile: (650) 561-9180 |
||||
|
||||
Venrock Partners, L.P.
|
1266,364 | |||
2494 Sand Hill Road, Suite 200
Menlo Park, CA 94025 Attn: Anders Hove Facsimile: (650) 561-9180 |
||||
|
||||
Intersouth Partners V, L.P.
|
1,823,258 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
E-9
Name and Address | Shares of Series B Stock | |||
Intersouth Affiliates V, L.P.
|
83,914 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
||||
|
||||
Intersouth Partners VI, L.P.
|
1,907,176 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
||||
|
||||
BAVP, L.P.
|
3,814,348 | |||
950 Tower Lane
Suite 700 Foster City, CA 94044 Attn: Mark Brooks Facsimile: (650) 378-6040 |
||||
|
||||
Domain Partners VI, L.P.
|
3,773,902 | |||
One Palmer Square, Suite 515
Princeton, NJ 08542 Attn: Brian Halak Facsimile: (609) 683-4581 |
E-10
Name and Address | Shares of Series B Stock | |||
DP VI Associates, L.P.
|
40,446 | |||
One Palmer Square, Suite 515
Princeton, NJ 08542 Attn: Brian Halak Facsimile: (609) 683-4581 |
||||
|
||||
Polaris Venture Partners IV, L.P.
|
3,744,138 | |||
1000 Winter Street, Suite 3350
Waltham, MA 02451 Attn: Bryce Youngren Fax: (781) 290-0880 |
||||
|
||||
Polaris Venture Partners Entrepreneurs Fund IV, L.P.
|
70,210 | |||
1000 Winter Street, Suite 3350
Waltham, MA 02451 Attn: Bryce Youngren Fax: (781) 290-0880 |
||||
|
||||
C&B Capital, L.P.
|
515,740 | |||
4200 Northside Parkway, N.W.
Building One, Suite 100 Atlanta, Georgia 30327 Attn: Theodore J. Bender, III |
||||
|
||||
Thomas L. Shields, Jr.
|
38,694 | |||
1750 W. Sussex
Atlanta, GA 30306 |
||||
|
||||
BFG Investments, LLC
|
38,694 | |||
(Robert B. Braden)
931 Ponce de Leon Ave, NE Atlanta, GA 30306 |
||||
|
||||
BFG Investments, LLC
|
38,694 | |||
(Peter B. Fellman)
931 Ponce de Leon Ave, NE Atlanta, GA 30306 |
E-11
Name and Address | Shares of Series B Stock | |||
REDLOH Capital, LLC
|
38,694 | |||
3333 Riverwood Parkway,
Suite 400 Atlanta, GA 30339 Attn: J.C. Pendrey, Jr. |
||||
|
||||
Linda T. and Jimmy D. Veal
|
44,217 | |||
290 Osprey Place
Brunswick, GA 31525 |
||||
|
||||
Sharon Louise Hill
|
13,060 | |||
4027 River Ridge Chase
Marietta, GA 30067 |
||||
|
||||
DC&M Partnership
|
38,694 | |||
41 Muscogee Ave. N.W.
Atlanta, GA 30305 Attn: David F. Walbert |
||||
|
||||
SOLFAM Trust
|
265,299 | |||
Philip Solomons, Tstee
5 Mad Anthony Lane Savannah, GA 31411 |
||||
|
||||
Plunkett Family, LP
|
38,694 | |||
L. Richard Plunkett, Managing Partner
196 Folds Road Carrollton, GA 30116 |
||||
|
||||
Paul Linck
|
38,694 | |||
419 Mill Creek Bend
Atlanta, GA 30307 |
||||
|
||||
Dr. Calvin Roberts
|
223,425 | |||
|
||||
Daniel D. Veal
|
22,108 | |||
136 Foxcreek Boulevard
Brunswick, GA 31523 |
||||
|
||||
Zachry T. Veal
|
22,108 | |||
138 Foxcreek Boulevard
Brunswick, GA 31523 |
E-12
Name and Address | Shares of Series B Stock | |||
Irene T. Kramer and Jerry D. Kramer JTWROS
|
10,000 | |||
3882 The Ascent NE
Atlanta, GA 30319 |
||||
|
||||
Janice Dee Weber
|
10,000 | |||
849 Chestnut Lake Drive NE
Marietta, GA 30068 |
||||
|
||||
James Loftin
|
10,000 | |||
6630 Chambrel Way
Sawanee, GA 30024 |
||||
|
||||
Michel Benton
|
10,000 | |||
802 Sterling Falls Circle
Canton, GA 30114 |
E-13
Name and Address | Shares of Series C Stock | |||
Venrock Associates IV, L.P.
|
2,585,253 | |||
2494 Sand Hill Road, Suite 200
Menlo Park, CA 94025 Attn: Anders Hove Facsimile: (650) 561-9180 |
||||
|
||||
Venrock Entrepreneurs Fund IV, L.P.
|
63,519 | |||
2494 Sand Hill Road, Suite 200
Menlo Park, CA 94025 Attn: Anders Hove Facsimile: (650) 561-9180 |
||||
|
||||
Venrock Partners, L.P.
|
527,214 | |||
2494 Sand Hill Road, Suite 200
Menlo Park, CA 94025 Attn: Anders Hove Facsimile: (650) 561-9180 |
||||
|
||||
Intersouth Partners VII, L.P.
|
1,961,322 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
E-14
Name and Address | Shares of Series C Stock | |||
Intersouth Partners VI, L.P.
|
1,961,325 | |||
3211 Shannon Road, Suite 610
Durham, NC 27707 Attn: Philip Tracy Facsimile: (919) 493-6649 |
||||
|
||||
with a copy to:
|
||||
|
||||
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300 Raleigh, NC 27607 Attn: Anthony L. Williams Telephone: 919-781-4000 Facsimile: 919-781-4865 |
||||
|
||||
BAVP, L.P.
|
3,922,648 | |||
950 Tower Lane
Suite 700 Foster City, CA 94044 Attn: Mark Brooks Facsimile: (650) 378-6040 |
||||
|
||||
Domain Partners VI, L.P.
|
3,881,055 | |||
One Palmer Square, Suite 515
Princeton, NJ 08542 Attn: Brian Halak Facsimile: (609) 683-4581 |
||||
|
||||
DP VI Associates, L.P.
|
41,594 | |||
One Palmer Square, Suite 515
Princeton, NJ 08542 Attn: Brian Halak Facsimile: (609) 683-4581 |
||||
|
||||
Polaris Venture Partners IV, L.P.
|
3,850,464 | |||
1000 Winter Street, Suite 3350
Waltham, MA 02451 Attn: Bryce Youngren Fax: (781) 290-0880 |
E-15
Name and Address | Shares of Series C Stock | |||
Polaris
Venture Partners Entrepreneurs Fund IV, L.P.
|
72,185 | |||
1000 Winter Street, Suite 3350
Waltham, MA 02451 Attn: Bryce Youngren Fax: (781) 290-0880 |
||||
|
||||
Dr. Calvin Roberts
|
217,913 | |||
|
||||
Janice Dee Weber
|
3,328 | |||
849 Chestnut Lake Drive NE
Marietta, GA 30068 |
||||
|
||||
REDLOH Capital, LLC
|
30,294 | |||
JC Pendrey, Jr.
3333 Riverwood Parkway, Suite 400 Atlanta, GA 30339 |
||||
|
||||
Irene T. Kramer and Jerry D. Kramer
|
3,328 | |||
JTWROS
3882 The Ascent NE Atlanta, GA 30319 |
||||
|
||||
BFG Investments LLC (Braden)
|
30,294 | |||
Robert B. Braden
931 Ponce de Leon Avenue Atlanta, GA 30306 |
||||
|
||||
BFG Investments LLC (Fellman)
|
30,294 | |||
Robert B. Braden
931 Ponce de Leon Avenue Atlanta, GA 30306 |
||||
|
||||
Thomas L. Shields, Jr.
|
29,579 | |||
1750 W Sussex
Atlanta, GA 30306 |
||||
|
||||
C&B Capital II, L.P.
|
216,879 | |||
Edward S. Croft, III, its Manager
C&B Capital II GP, LLC, its General Partner c/o Croft & Bender LLC Building One, Suite 100 4200 Northside Parkway, NW Atlanta, GA 30327 |
E-16
Name and Address | Shares of Series C Stock | |||
C&B Capital II (PF), L.P.
|
178,006 | |||
Edward S. Croft, III, its Manager
C&B Capital II GP, LLC, its General Partner c/o Croft & Bender LLC Building One, Suite 100 4200 Northside Parkway, NW Atlanta, GA 30327 |
||||
|
||||
James Loftin
|
6,656 | |||
6630 Chambrel Way
Sawanee, GA 30024 |
||||
|
||||
Sharon Louise Hill
|
40,563 | |||
4027 River Ridge Chase
Marietta, GA 30067 |
||||
|
||||
Michel Benton
|
3,328 | |||
802 Sterling Falls Circle
Canton, GA 30114 |
||||
|
||||
Linda T. and Jimmy D. Veal
|
32,908 | |||
290 Osprey Place
Brunswick, GA 31525 |
||||
|
||||
Daniel D. Veal
|
7,358 | |||
136 Foxcreek Boulevard
Brunswick, GA 31523 |
||||
|
||||
Zachry T. Veal
|
7,358 | |||
138 Foxcreek Boulevard
Brunswick, GA 31523 |
||||
|
||||
Paul Linck
|
29,579 | |||
419 Mill Creek Boulevard
Atlanta, GA 30307 |
||||
|
||||
G&H Partners
|
10,002 | |||
155 Constitution Drive
Menlo Park, CA 71429 |
E-17
1. | Amendment of Investor Rights Agreement . Upon execution of this Agreement by the IRA Requisite Parties, the Investor Rights Agreement shall be amended as follows: |
a. | A new exhibit, in the form attached hereto as Attachment 1, shall be added to the Investor Rights Agreement as Exhibit F thereto. | ||
b. | The parties to the Investor Rights Agreement shall be deemed to include the investors listed on Exhibit F thereto (as attached by operation hereof), which such parties shall be referred to for purposes of such agreement as the Series C-1 Investors. The definition of Investors therein shall be amended to include such Series C-1 Investors. | ||
c. | The definition of Investor Stock shall be amended to include shares of the Companys Series C-1 Preferred Stock, par value $0.01 per share, including shares issued or issuable upon exercise of warrants exercisable therefor. |
2. | Amendment of Stock Sale Agreement . Upon execution of this Agreement by the Stock Sale Requisite Parties, the Stock Sale Agreement shall be amended as follows: |
a. | A new exhibit, in the form attached hereto as Attachment 1, shall be added to the Stock Sale Agreement as Exhibit E thereto. | ||
b. | The parties to the Stock Sale Agreement shall be deemed to include the investors listed on Exhibit E thereto (as attached by operation hereof), which such parties shall be referred to for purposes of such agreement as the Series C-1 Investors. The definition of each of Investors and Stockholders shall be amended to include such Series C-1 Investors. | ||
c. | The definition of Preferred Stock shall be amended to include shares of the Companys Series C-1 Preferred Stock, par value $0.01 per share, including shares issued or issuable upon exercise of warrants exercisable therefor. |
3. | Roberts Pension Plan . |
a. | By its signature below, the Roberts Pension Plan hereby agrees, effective as of the date hereof, to be bound by and to become party to the Investor Rights Agreement and the Stock Sale Agreement, each as may be amended from time to time (including, without limitation, by this Agreement), in each case as a Series C-1 Investor. The Roberts Pension Plan further acknowledges that its signature page attached to this agreement shall be deemed a counterpart signature page to each of the Investor Rights Agreement and the Stock Sale Agreement and, as such, may be attached to each such agreement. | ||
b. | Each Stockholder hereby consents to the assignment by Dr. Roberts of his right under the Investor Rights Agreement to purchase Series C-1 Units to the Roberts Pension Plan; provided, however, that such consent is expressly conditioned on the execution and delivery by the Roberts Pension Plan of this Agreement. | ||
c. | Upon execution of this Agreement by each of (i) the IRA Requisite Parties, (ii) the Stock Sale Agreement Requisite Parties and (iii) the Roberts Pension Plan, each of Investor Rights Agreement and the Stock Sale Agreement shall be amended to include the Roberts Pension Plan as a party thereto, in each case as a Series C-1 Investor. |
4. | General . |
a. | Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties hereto. | ||
b. | Except as expressly provided herein, all provisions of each of the Investor Rights Agreement and the Stock Sale Agreement shall remain in full force and effect. | ||
c. | This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to Delaware conflict of law principles. | ||
d. | 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. |
COMPANY : | ||||||
|
||||||
ALIMERA SCIENCES, INC. | ||||||
|
||||||
|
By:
Name: Title: |
/s/ Richard Eiswirth, Jr.
Chief Financial Officer |
STOCKHOLDER : | ||||||
|
||||||
/s/ Calvin Roberts | ||||||
Dr. Calvin Roberts | ||||||
|
||||||
ROBERTS PENSION PLAN : | ||||||
|
||||||
CALVIN W. ROBERTS MD PC PENSION PLAN | ||||||
|
||||||
|
By:
Name: |
/s/ Calvin Roberts
|
||||
|
Title: | Trustee |
STOCKHOLDERS : | ||||||
|
||||||
VENROCK PARTNERS, L.P. | ||||||
by its General Partner, Venrock Partners
Management, LLC |
||||||
|
||||||
VENROCK ASSOCIATES IV, L.P.
by its General Partner, Venrock Management IV, LLC |
||||||
|
||||||
VENROCK ENTREPRENEURS FUND IV, L.P. | ||||||
by its General Partner, VEF Management IV, LLC | ||||||
|
||||||
|
By:
Name: |
/s/ Anders Hove
|
||||
|
Title: | Member |
STOCKHOLDERS : | ||||||
|
||||||
INTERSOUTH PARTNERS VII, L.P. | ||||||
|
||||||
|
By: | Intersouth Associates VII, L.P., | ||||
|
its General Partner | |||||
|
||||||
|
By:
Name: |
/s/ Philip Tracy
|
||||
|
Title: | Member, acting pursuant to Power of Attorney | ||||
|
||||||
INTERSOUTH PARTNERS V, L.P. | ||||||
|
||||||
|
By: | Intersouth Associates V, L.P., | ||||
|
its General Partner | |||||
|
||||||
|
By:
Name: |
/s/ Philip Tracy
|
||||
|
Title: | Member, acting pursuant to Power of Attorney | ||||
|
||||||
INTERSOUTH AFFILIATES V, L.P. | ||||||
|
||||||
|
By: | Intersouth Associates V, LLC, | ||||
|
its General Partner | |||||
|
||||||
|
By:
Name: |
/s/ Philip Tracy
|
||||
|
Title: | Member, acting pursuant to Power of Attorney |
STOCKHOLDERS : | ||||||
|
||||||
INTERSOUTH PARTNERS VI, L.P. | ||||||
|
||||||
|
By: | Intersouth Associates VI, LLC, | ||||
|
its General Partner | |||||
|
||||||
|
By:
Name: |
/s/ Philip Tracy
|
||||
|
Title: | Member, acting pursuant to Power of Attorney |
STOCKHOLDERS : | ||||||
|
||||||
BAVP, L.P. | ||||||
|
||||||
|
By: | Scale Venture Management I, LLC | ||||
|
Its: | general partner | ||||
|
||||||
/s/ Mark Brooks | ||||||
|
Name: | Mark Brooks | ||||
|
Title: | Managing Director |
STOCKHOLDERS : | ||||||
|
||||||
POLARIS VENTURE PARTNERS IV, L.P. | ||||||
|
||||||
|
By: | Polaris Venture Management Co. IV, L.L.C., | ||||
|
its General Partner | |||||
|
||||||
|
By:
Name: |
/s/ Bill E. Bilodeau
|
||||
|
Title | : Attorney-in-fact | ||||
|
||||||
POLARIS VENTURE PARTNERS
ENTREPRENEURS FUND IV, L.P. |
||||||
|
||||||
|
By: | Polaris Venture Management Co. IV, L.L.C., | ||||
|
its General Partner | |||||
|
||||||
|
By: | /s/ Bill E. Bilodeau | ||||
|
||||||
|
Name: | William E. Bilodeau | ||||
|
Title | : Attorney-in-fact |
STOCKHOLDERS : | ||||||
|
||||||
DOMAIN PARTNERS VI, L.P. | ||||||
|
||||||
|
By: | One Palmer Square Associates VI, L.L.C., | ||||
|
its General Partner | |||||
|
||||||
|
By:
Name: |
/s/ Kathleen K. Schoemaker
|
||||
|
Title: | Managing Member | ||||
|
||||||
DP VI ASSOCIATES, L.P. | ||||||
|
||||||
|
By: | One Palmer Square Associates VI, L.L.C., | ||||
|
its General Partner | |||||
|
||||||
|
By: | /s/ Kathleen K. Schoemaker | ||||
|
||||||
|
Name: | Kathleen K. Schoemaker | ||||
|
Title: | Managing Member |
STOCKHOLDERS : | ||||||
|
||||||
G&H PARTNERS | ||||||
|
||||||
|
By:
Name: |
/s/ Jonathan Gleason
|
||||
|
Title: | |||||
|
|
STOCKHOLDERS
:
|
||||
/s/ C. Daniel Myers | ||||
C. Daniel Myers | ||||
/s/ David Holland | ||||
David Holland | ||||
/s/ Alisa Hudzina | ||||
Alisa Hudzina | ||||
/s/ Susan H. Caballa | ||||
Susan Caballa | ||||
/s/ David Eitel | ||||
David Eitel | ||||
Series C-1 Shares | |||||||||||
Series C-1 Closing | Issuable upon | ||||||||||
Name of Investor | Shares | Warrant Exercise | |||||||||
Venrock Associates IV, L.P.
|
429,125 | 858,250 | |||||||||
Venrock Entrepreneurs Fund IV, L.P.
|
10,544 | 21,088 | |||||||||
Venrock Partners, L.P.
|
87,512 | 175,024 | |||||||||
Intersouth Partners VII, L.P.
|
421,257 | 842,514 | |||||||||
Intersouth Partners V, L.P.
|
219,787 | 439,574 | |||||||||
Intersouth Affiliates V, L.P.
|
10,074 | 20,148 | |||||||||
BAVP, L.P.
|
651,118 | 1,302,236 | |||||||||
Domain Partners VI, L.P.
|
644,214 | 1,288,428 | |||||||||
DP VI Associates, L.P.
|
6,904 | 13,808 | |||||||||
Polaris Venture Partners IV, L.P.
|
639,425 | 1,278,850 | |||||||||
Polaris Venture Partners
Entrepreneurs Fund IV, L.P.
|
11,693 | 23,386 | |||||||||
The Calvin W. Roberts MD PC Pension
Plan
|
46,000 | 92,000 | |||||||||
Janice Dee Weber
|
543 | 1,086 | |||||||||
REDLOH Capital, LLC
|
4,857 | 9,714 | |||||||||
BFG Investments LLC
|
12,960 | 25,920 | |||||||||
Thomas L. Shields, Jr.
|
4,828 | 9,656 | |||||||||
C&B Capital II, L.P.
|
35,355 | 70,710 | |||||||||
C&B Capital II (PF), L.P.
|
29,020 | 58,040 |
Series C-1 Shares
Series C-1 Closing
Issuable upon
Name of Investor
Shares
Warrant Exercise
1,107
2,214
543
1,086
7,818
15,636
1,201
2,402
1,201
2,402
3,622
7,244
10,000
20,000
Page | ||||
ARTICLE 1 DEFINITIONS
|
1 | |||
|
||||
ARTICLE 2 Intentionally omitted
|
16 | |||
|
||||
ARTICLE 3 DEVELOPMENT ACTIVITIES
|
16 | |||
3.1 General
|
16 | |||
3.2 Regulatory Approvals
|
18 | |||
3.3 Performance
|
19 | |||
3.4 Primary Contact Persons
|
19 | |||
3.5 Availability of Employees
|
19 | |||
3.6 Visit of Facilities
|
19 | |||
3.7 Subcontracts
|
20 | |||
3.8 Information Sharing
|
20 | |||
3.9 Records
|
20 | |||
3.10 Manufacturing for Clinical Supply Requirements
|
20 | |||
3.11 Technology Transfer by CDS
|
20 | |||
|
||||
ARTICLE 4 COMMERCIALIZATION
|
21 | |||
4.1 Commercialization of Product(s) in the Collaboration Field
|
21 | |||
4.2 Commercialization Budget
|
21 | |||
4.3 Diligence
|
22 | |||
4.4 Costs of Commercialization
|
24 | |||
4.5 Manufacturing for Commercial Supply Requirements
|
25 | |||
4.6 Product Recalls
|
25 | |||
|
||||
ARTICLE 5 GRANT OF RIGHTS
|
26 | |||
5.1 Grant of License by CDS
|
26 | |||
5.2 Grant of License by Alimera
|
26 | |||
5.3 Sublicenses and Subcontracts
|
26 | |||
5.4 Ownership of and Rights to Inventions
|
27 | |||
5.5 Limitation on Use
|
28 | |||
5.6 Reservation of Rights
|
28 | |||
5.7 No Grant of Other Technology or Patent Rights
|
29 |
-ii-
Page | ||||
5.8 Options to Licenses in the Collaboration Field
|
29 | |||
5.9 Clinical IP
|
30 | |||
5.10 Section 365(n) of the Bankruptcy Code
|
30 | |||
|
||||
ARTICLE 6 COSTS & REVENUES PRE AND POST PROFITABILITY DATE
|
31 | |||
6.1 License Fee
|
31 | |||
6.2 Milestone Payments
|
31 | |||
6.2A Payments on Execution of Amended and Restated
Agreement
|
31 | |||
6.2B Certain Alimera Note Payments and
Events
|
31 | |||
6.3 Development Costs
|
32 | |||
6.4 Revenues Prior to Profitability Date
|
32 | |||
6.5 Costs and Revenues After the Profitability Date
|
32 | |||
6.6 Revenues from Third Party Agreements
|
35 | |||
6.7 Records; Audits
|
36 | |||
|
||||
ARTICLE 7 INTELLECTUAL PROPERTY
|
37 | |||
7.1 CDS-Prosecuted Patent Rights
|
37 | |||
7.2 Abandonment
|
37 | |||
7.3 Alimera-Prosecuted Patent Rights
|
38 | |||
7.4 Information Disclosure; Cooperation
|
39 | |||
7.5 Employees and Sublicensees Assignment of Inventions
|
39 | |||
7.6 Infringement
|
39 | |||
7.7 Marking
|
42 | |||
7.8 Trademarks
|
42 | |||
7.9 UKRF Licenses and B&L Agreement
|
42 | |||
|
||||
ARTICLE 8 CONFIDENTIALITY
|
43 | |||
8.1 Confidentiality
|
43 | |||
8.2 Disclosure
|
43 | |||
8.3 Disclosure of Agreement
|
44 | |||
8.4 Disclosure of Product Achievements
|
44 | |||
|
||||
ARTICLE 9 REPRESENTATIONS AND WARRANTIES
|
44 | |||
9.1 Representations and Warranties of CDS
|
44 | |||
9.2 Representations and Warranties of Alimera
|
45 |
-iii-
Page | ||||
9.3 Warranty Disclaimer
|
46 | |||
9.4 Limited Liability
|
46 | |||
|
||||
ARTICLE 10 INDEMNITY
|
46 | |||
10.1 Cross Indemnity
|
46 | |||
10.2 Limitation on Indemnity Obligations
|
47 | |||
10.3 Procedure
|
47 | |||
10.4 Insurance
|
47 | |||
10.5 Product Liability Claims
|
48 | |||
|
||||
ARTICLE 11 TERM AND TERMINATION
|
48 | |||
11.1 Term
|
48 | |||
11.2 Termination for Default by Either Party
|
48 | |||
11.3 Intentionally omitted
|
49 | |||
11.4 Intentionally omitted
|
49 | |||
11.5 Termination for Abandonment
|
49 | |||
11.6 Effect of Expiration or Termination of the Agreement
|
50 | |||
11.7 Survival of Provisions Upon Expiration or Termination
|
50 | |||
|
||||
ARTICLE 12 MISCELLANEOUS
|
50 | |||
12.1 Interpretation
|
50 | |||
12.2 Assignment
|
51 | |||
12.3 Severability
|
51 | |||
12.4 Notices
|
51 | |||
12.5 Governing Law and Venue
|
52 | |||
12.6 Compliance with Applicable Laws
|
53 | |||
12.7 Dispute Resolution
|
53 | |||
12.8 Intentionally omitted
|
54 | |||
12.9 Entire Agreement
|
54 | |||
12.10 Headings
|
54 | |||
12.11 Independent Contractors
|
54 | |||
12.12 Waiver
|
54 | |||
12.13 Counterparts
|
54 |
-iv-
1
2
3
4
5
6
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
7
8
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
9
10
11
12
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
13
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
14
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
15
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
16
17
18
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
19
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
20
21
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
22
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
23
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
24
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
25
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
26
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
27
28
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
29
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
30
31
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
32
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
33
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
34
35
36
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
37
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
38
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
39
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
40
41
42
43
44
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
45
46
47
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
48
49
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
50
51
|
If to CDS: | pSivida, Inc. | ||
|
400 Pleasant Street | |||
|
Watertown, MA 02472 | |||
|
Attention: President | |||
|
Fax: (617)-926-5050 | |||
|
||||
|
With a copy to: | pSivida, Inc. | ||
|
400 Pleasant Street | |||
|
Watertown, MA 02472 | |||
|
Attention: General Counsel | |||
|
Fax: (617) 926-5050 | |||
|
||||
|
With a copy to: | Ropes & Gray LLP | ||
|
One International Place | |||
|
Boston, MA 02110 | |||
|
Attention: Susan Galli, Esq. | |||
|
Fax: (617) 951-7050 | |||
|
||||
|
If to Alimera: | Alimera Sciences, Inc. | ||
|
6120 Windward Parkway, Suite 290 | |||
|
Alpharetta, GA 30005 | |||
|
Attention: President | |||
|
Fax: (678) 990-5744 | |||
|
||||
|
With a copy to: |
Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP |
||
|
610 Lincoln Street | |||
|
Waltham, MA 02451 | |||
|
Attention: Jay Hachigian, Esq. | |||
|
Fax: (781) 622-1622 |
52
53
54
|
||||||||
PSIVIDA, INC. | ALIMERA SCIENCES, INC. | |||||||
|
||||||||
By:
Name: |
/s/ Lori Freedman
|
By:
Name: |
/s/ Richard S. Eiswirth, Jr.
|
|||||
Title:
|
VP, Corporate Affairs, | Title: | CFO | |||||
|
General Counsel and Secretary |
CDS EXISTING PATENT RIGHTS
EXCLUDED CDS PATENTS AND PATENT APPLICATIONS
CDS PATENT COST-SHARING COUNTRIES
EXCLUDED PRODUCT SPECIFICATIONS/DRAWINGS
UKRF LICENSES
SPECIFIED CDS DEVELOPMENT ACTIVITIES
INITIAL CDS DEVELOPMENT BUDGET
TERMS FOR OPTION LICENSE AGREEMENT
NOTE
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
i
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
ii
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
iii
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
iv
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
v
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
vi
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
vii
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
viii
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
i
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
i
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
ii
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
i
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
i
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
As provided in Section 4.3 of the Collaboration Agreement.
As provided in Section 5.4 of the Collaboration Agreement.
As provided in Section 5.5, 5.6 and 5.7 of the
Collaboration Agreement.
PATENT RIGHTS
|
||
|
||
[*]
|
||
|
||
PATENT MARKING
|
As provided in Section 7.7 of the Collaboration Agreement. | |
|
||
INDEMNITY
|
As provided for in Article 10, except [*] |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
|
||
REPRESENTATIONS AND
WARRANTIES |
As provided in Article 9 of the Collaboration Agreement. | |
|
||
CONFIDENTIALITY AND
MISCELLANEOUS |
As provided in Article 8 and Sections 12.1-12.8 and 12.10-12.13 of the Collaboration Agreement. |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
$15,000,000 | March 14, 2008 |
Term | Definition | |
Acceleration
|
Section 4.4 | |
Bankruptcy Code
|
Section 4.3.2 | |
Collaboration Agreement
|
Section 1 | |
Company
|
Preamble | |
Event of Default
|
Section 4.3 | |
Interest Payment Default
|
Section 4.1 | |
Liquidity Event Failure
|
Section 3.3 | |
Note
|
Section 1 | |
Noteholder
|
Preamble | |
Scheduled Payment Default
|
Section 4.2 |
If to the Company, to it at: |
|
Alimera Sciences, Inc. | |||
|
6120 Windward Parkway, Suite 290 | |||
|
Alpharetta, GA 30005 | |||
|
Attn: Chief Executive Officer | |||
|
Telephone: 678-990-5740 | |||
|
Fax: 678-990-5744 | |||
|
||||
With a copy to: | ||||
|
||||
|
Gunderson Dettmer Stough | |||
|
Villeneuve Franklin & Hachigian, LLP | |||
|
610 Lincoln Street | |||
|
Waltham, MA 02451 | |||
|
Attn: Jay Hachigian, Esq. | |||
|
Telephone: 781-795-3550 | |||
|
Fax: 781-622-1622 | |||
|
||||
If to the Noteholder, to it at : | ||||
|
||||
|
pSivida, Inc. | |||
|
400 Pleasant Street | |||
|
Watertown, MA 02472 | |||
|
Attn: Chief Financial Officer | |||
|
Telephone: 617-926-5000 | |||
|
Fax: 617-926-5050 | |||
|
||||
With a copy to: | ||||
|
||||
|
Ropes & Gray LLP | |||
|
One International Place | |||
|
Boston, MA 02110 | |||
|
Attn: Mary Weber, Esq. | |||
|
Telephone: 617-951-7000 | |||
|
Fax: 617-951-7050 |
ALIMERA SCIENCES, INC.
|
||||
By: | ||||
Name: | ||||
Title: |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions . |
Page | ||||
ARTICLE I DEFINITIONS
|
1 | |||
|
||||
1.1 Definitions
|
1 | |||
1.2 Other Definitions
|
5 | |||
1.3 Rules of Construction
|
6 | |||
|
||||
ARTICLE II SALE AND PURCHASE
|
7 | |||
|
||||
2.1 Transfer of Assets
|
7 | |||
2.2 Excluded Assets
|
8 | |||
2.3 Assumption of Liabilities
|
8 | |||
2.4 Excluded Liabilities
|
9 | |||
2.5 Consideration
|
10 | |||
2.6 Allocation of Consideration
|
10 | |||
2.7 Post-Closing Consideration
|
10 | |||
|
||||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER
|
12 | |||
|
||||
3.1 Organization, Power, Standing and Qualification
|
12 | |||
3.2 Power and Authority
|
12 | |||
3.3 Validity of Contemplated Transactions
|
12 | |||
3.4 Consents
|
12 | |||
3.5 Subsidiaries
|
13 | |||
3.6 Financial Statements; Undisclosed Liabilities
|
13 | |||
3.7 Intentionally Omitted
|
13 | |||
3.8 Equipment; Inventory; Sufficiency of Assets
|
13 | |||
3.9 Assigned Intellectual Property
|
13 | |||
3.10 IP Rights
|
15 | |||
3.11 Contracts
|
17 | |||
3.12 Restrictions on Purchased Assets
|
17 | |||
3.13 Suppliers
|
17 | |||
3.14 Litigation; Product Liability
|
17 | |||
3.15 Compliance with Laws and Permits
|
18 | |||
3.16 Conflicts of Interest
|
18 | |||
3.17 Brokers or Finders Fees
|
18 | |||
3.18 Insurance
|
18 | |||
3.19 Disclosure
|
18 | |||
|
||||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER
|
18 | |||
|
||||
4.1 Organization
|
18 | |||
4.2 Power and Authority
|
19 | |||
4.3 Validity of Contemplated Transactions
|
19 | |||
4.4 Consents
|
19 | |||
4.5 Brokers and Finders Fees
|
19 | |||
|
||||
ARTICLE V INTENTIONALLY OMITTED
|
19 |
- i -
Page | ||||
ARTICLE VI OTHER COVENANTS
|
19 | |||
|
||||
6.1 Reasonable Commercial Efforts
|
19 | |||
6.2 Laws Affecting Transfer of Permits
|
20 | |||
6.3 Public Announcements
|
20 | |||
6.4 Confidentiality
|
20 | |||
6.5 Transfer Taxes
|
20 | |||
6.6 HSR Filing
|
21 | |||
6.7 Cooperation Regarding Audits and Litigation
|
21 | |||
6.8 Insurance Claims
|
21 | |||
6.9 Additional Assurances
|
21 | |||
6.10 Covenant Not to Compete
|
22 | |||
6.11 Post-Closing Services
|
23 | |||
6.12 License of Know-How
|
23 | |||
6.13 Good Faith Negotiations Related to Sale of Soothe
®
|
23 | |||
ARTICLE VII CONDITIONS PRECEDENT TO CLOSING
|
24 | |||
|
||||
7.1 Conditions to Obligation of Buyer to Close
|
24 | |||
7.2 Conditions to Obligations of Seller to Close
|
25 | |||
ARTICLE VIII THE CLOSING
|
26 | |||
|
||||
8.1 Time and Place
|
26 | |||
8.2 Conduct of Closing
|
26 | |||
ARTICLE IX SURVIVAL AND INDEMNIFICATION
|
27 | |||
|
||||
9.1 Survival of Representations, Warranties and Covenants
|
27 | |||
9.2 Indemnification by Seller
|
27 | |||
9.3 Indemnification by Buyer
|
28 | |||
9.4 Procedure
|
28 | |||
9.5 No Subrogation
|
29 | |||
9.6 Sole Remedy
|
29 | |||
ARTICLE X MISCELLANEOUS
|
29 | |||
|
||||
10.1 Headings and References
|
29 | |||
10.2 Severability
|
30 | |||
10.3 Expenses
|
30 | |||
10.4 Notices
|
30 | |||
10.5 Waiver; Consents
|
31 | |||
10.6 Assignment
|
31 | |||
10.7 Governing Law
|
31 | |||
10.8 Parties in Interest
|
31 | |||
10.9 Submission to Jurisdiction
|
31 | |||
10.10 Counterparts
|
32 | |||
10.11 Entire Agreement; Amendments
|
32 |
- ii -
Exhibit 1.1-A
|
[*] Assignment, Assumption and Amendment Agreement | |
Exhibit 1.1-B
|
Patent Assignment | |
Exhibit 1.1-C
|
Trademark Assignment | |
Exhibit 2.1.4
|
Assigned Contracts | |
Exhibit 2.1.9
|
Equipment | |
Exhibit 2.6
|
Purchase Price Allocation Schedule (to be provided post-Closing) | |
Exhibit 6.11
|
Post-Closing Services | |
Exhibit 6.3-A
|
Form of Seller Initial Press Release | |
Exhibit 6.3-B
|
Form of Buyer Initial Press Release | |
Exhibit 7.1.6
|
Opinion of Counsel for Seller |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
- iii -
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
2
3
4
5
6
7
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
8
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
9
10
11
12
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
SELLER
ALIMERA SCIENCES, INC. |
||||
By: | /s/ Dan Myers | |||
Name: | Dan Myers | |||
Title: | President and Chief Executive Officer | |||
BUYER
BAUSCH & LOMB INCORPORATED |
||||
By: | /s/ Stephen C. McCluski | |||
Name: | Stephen C. McCluski | |||
Title: | Senior Vice President and Chief Financial Officer | |||
Solely for purposes of Section 6.10:
|
||||
/s/ Dan Myers | ||||
Dan Myers | ||||
33
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
BAUSCH & LOMB INCORPORATED | ||||||
|
||||||
|
By: | |||||
|
|
|||||
|
Print Name: | |||||
|
|
|||||
|
Print Title: | |||||
|
|
|||||
ALIMERA SCIENCES, INC. | ||||||
|
||||||
|
By: | |||||
|
|
|||||
|
Print Name: | |||||
|
|
|||||
|
Print Title: | |||||
|
|
|||||
|
[*] | |||||
|
||||||
|
By: | |||||
|
|
|||||
|
[*] | |||||
|
||||||
|
[*] |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
ALIMERA SCIENCES, INC.
|
||||||
|
By: | |||||
|
Name: |
|
||||
|
Title: |
|
||||
|
|
STATE OF
|
) | |||||
|
|
|||||
|
): SS.: | |||||
COUNTY OF
|
) | |||||
|
|
|
|
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
ALIMERA SCIENCES, INC.
|
||||||
|
By: | |||||
|
Name: |
|
||||
|
Title: |
|
||||
|
|
STATE OF
|
) | |||||
|
|
|||||
|
): SS.: | |||||
COUNTY OF
|
) | |||||
|
|
|
|
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
Bausch & Lomb News Media Contact:
|
Alimera Sciences Contact: | |
Barbara M. Kelley
|
Lisa Gibson Lake | |
585.338.5386
|
Fleishman-Hillard | |
bkelley@bausch.com
|
404-739-0152 | |
|
lisa.gibson@fleishman.com | |
Bausch & Lomb Investor Relations Contact:
|
||
Daniel L. Ritz
|
||
585.338.5802
|
||
dritz@bausch.com
|
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
Page | ||||
ARTICLE I DEFINITIONS
|
1 | |||
|
||||
1.1 Definitions
|
1 | |||
1.2 Other Definitions
|
- 6 - | |||
1.3 Rules of Construction
|
- 7 - | |||
|
||||
ARTICLE II SALE AND PURCHASE
|
- 8 - | |||
|
||||
2.1 Transfer of Assets
|
- 8 - | |||
2.2 Excluded Assets
|
- 9 - | |||
2.3 Assumption of Liabilities
|
- 9 - | |||
2.4 Excluded Liabilities
|
- 10 - | |||
2.5 Consideration
|
- 11 - | |||
2.6 Allocation of Consideration
|
- 11 - | |||
|
||||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER
|
- 11 - | |||
|
||||
3.1 Organization, Power, Standing and Qualification
|
- 11 - | |||
3.2 Power and Authority
|
- 11 - | |||
3.3 Validity of Contemplated Transactions
|
- 12 - | |||
3.4 Consents
|
- 12 - | |||
3.5 Subsidiaries
|
- 12 - | |||
3.6 Financial Statements; Undisclosed Liabilities
|
- 12 - | |||
3.7 Absence of Material Adverse Change
|
- 13 - | |||
3.8 Sufficiency of Assets
|
- 13 - | |||
3.9 Assigned Intellectual Property
|
- 13 - | |||
3.10 IP Rights
|
- 15 - | |||
3.11 Contracts
|
- 16 - | |||
3.12 Restrictions on Purchased Assets
|
- 17 - | |||
3.13 Suppliers
|
- 17 - | |||
3.14 Litigation; Product Liability
|
- 17 - | |||
3.15 Compliance with Laws and Permits
|
- 17 - | |||
3.16 Conflicts of Interest
|
- 17 - | |||
3.17 Brokers or Finders Fees
|
- 17 - | |||
3.18 Insurance
|
- 18 - | |||
3.19 Sellers Return Policy
|
- 18 - | |||
3.20 Disclosure
|
- 18 - | |||
|
||||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER
|
- 18 - | |||
|
||||
4.1 Organization
|
- 18 - | |||
4.2 Power and Authority
|
- 18 - | |||
4.3 Validity of Contemplated Transactions
|
- 18 - | |||
4.4 Consents
|
- 19 - | |||
4.5 Brokers and Finders Fees
|
- 19 - | |||
|
||||
ARTICLE V PRECLOSING COVENANTS OF SELLER
|
- 19 - |
- i -
Page | ||||
5.1 Access
|
- 19 - | |||
5.2 Conduct of Business
|
- 19 - | |||
5.3 Exclusivity
|
- 21 - | |||
5.4 Consents
|
- 21 - | |||
5.5 Pre-Closing Litigation Consultation
|
- 21 - | |||
5.6 Technical Transfer
|
- 21 - | |||
5.7 Monthly Calculation of Soothe
®
Net Sales
|
- 21 - | |||
|
||||
ARTICLE VI OTHER COVENANTS
|
- 21 - | |||
|
||||
6.1 Reasonable Commercial Efforts
|
- 21 - | |||
6.2 Laws Affecting Transfer of Permits
|
- 22 - | |||
6.3 Public Announcements
|
- 22 - | |||
6.4 Confidentiality
|
- 22 - | |||
6.5 Transfer Taxes
|
- 23 - | |||
6.6 HSR Filing
|
- 23 - | |||
6.7 Cooperation Regarding Audits and Litigation
|
- 23 - | |||
6.8 Insurance Claims
|
- 23 - | |||
6.9 Additional Assurances
|
- 23 - | |||
6.10 Covenant Not to Compete
|
- 24 - | |||
6.11 License of Know-How Not Exclusively Related to the Products
|
- 25 - | |||
6.12 Supplements
|
- 25 - | |||
|
||||
ARTICLE VII CONDITIONS PRECEDENT TO CLOSING
|
- 26 - | |||
|
||||
7.1 Conditions to Obligation of Buyer to Close
|
- 26 - | |||
7.2 Conditions to Obligations of Seller to Close
|
- 27 - | |||
|
||||
ARTICLE VIII THE CLOSING
|
- 28 - | |||
|
||||
8.1 Time and Place
|
- 28 - | |||
8.2 Conduct of Closing
|
- 28 - | |||
|
||||
ARTICLE IX SURVIVAL AND INDEMNIFICATION
|
- 29 - | |||
|
||||
9.1 Survival of Representations, Warranties and Covenants
|
- 29 - | |||
9.2 Indemnification by Seller
|
- 30 - | |||
9.3 Indemnification by Buyer
|
- 30 - | |||
9.4 Procedure
|
- 31 - | |||
9.5 No Subrogation
|
- 32 - | |||
9.6 Sole Remedy
|
- 32 - | |||
|
||||
ARTICLE X TERMINATION
|
- 32 - | |||
|
||||
10.1 Optional Termination
|
- 32 - | |||
10.2 Governmental Consents
|
- 33 - | |||
10.3 Effect of Termination
|
- 33 - | |||
|
||||
ARTICLE XI MISCELLANEOUS
|
- 34 - | |||
|
||||
11.1 Headings and References
|
- 34 - | |||
11.2 Severability
|
- 34 - | |||
11.3 Expenses
|
- 34 - |
- ii -
Page | ||||
11.4 Notices
|
- 34 - | |||
11.5 Waiver; Consents
|
- 35 - | |||
11.6 Assignment
|
- 35 - | |||
11.7 Governing Law
|
- 35 - | |||
11.8 Parties in Interest
|
- 36 - | |||
11.9 Submission to Jurisdiction
|
- 36 - | |||
11.10 Counterparts
|
- 36 - | |||
11.11 Entire Agreement; Amendments
|
- 36 - |
Exhibit 1.1-A
|
Assignment and Assumption Agreement | |
Exhibit 1.1-B
|
Bill of Sale | |
Exhibit 1.1-D
|
Patent Assignment | |
Exhibit 1.1-E
|
Trademark Assignment | |
Exhibit 1.1-F
|
Excluded Categories | |
Exhibit 2.1.4
|
Assigned Contracts | |
Exhibit 2.6
|
Purchase Price Allocation Schedule (to be provided post-Closing) | |
Exhibit 7.1.6
|
Opinion of Counsel for Seller | |
Exhibit 7.1.10
|
Final Soothe ® Net Sales Calculation (to be provided at Closing) |
- iii -
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
- 2 -
- 3 -
- 4 -
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
- 5 -
- 6 -
- 7 -
- 8 -
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
- 9 -
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
- 10 -
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
- 11 -
- 12 -
- 13 -
- 14 -
- 15 -
- 16 -
- 17 -
- 18 -
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
- 19 -
- 20 -
- 21 -
- 22 -
- 23 -
- 24 -
- 25 -
- 26 -
- 27 -
- 28 -
- 29 -
- 30 -
- 31 -
- 32 -
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
- 33 -
- 34 -
- 35 -
- 36 -
SELLER | ||||||
|
||||||
ALIMERA SCIENCES, INC. | ||||||
|
||||||
|
By: |
/s/ Dan Myers
|
||||
Name: Dan Myers | ||||||
Title: President and Chief Executive Officer | ||||||
|
||||||
BUYER | ||||||
|
||||||
BAUSCH & LOMB INCORPORATED | ||||||
|
||||||
|
By: |
/s/ Stephen C. McCluski
|
||||
Name: Stephen C. McCluski | ||||||
Title: Senior Vice President and Chief Financial Officer | ||||||
|
||||||
Solely for purposes of Section 6.10: | ||||||
|
||||||
/s/ Dan Myers | ||||||
Dan Myers |
- 37 -
ALIMERA SCIENCES, INC.
|
||||
By: | ||||
Name: | ||||
Title: | ||||
BAUSCH & LOMB INCORPORATED
|
||||
By: | ||||
Name: | ||||
Title: | ||||
ALIMERA SCIENCES, INC.
|
||||
By: | ||||
Name: | ||||
Title: | ||||
STATE OF
|
|
) | ||
|
):SS.: | |||
COUNTY OF
|
|
) |
|
|
ALIMERA SCIENCES, INC. | ||||||
|
||||||
|
By: | |||||
|
Name: |
|
||||
|
Title: |
|
||||
|
|
STATE OF
|
|
) | ||
|
): SS.: | |||
COUNTY OF
|
|
) |
|
|
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
ALIMERA SCIENCES, INC. | ||||||
|
||||||
|
By: | |||||
|
Name: |
|
||||
|
Title: |
|
||||
|
|
STATE OF
|
|
) | ||
|
): SS.: | |||
COUNTY OF
|
|
) |
|
|
2,921,821 |
Soothe
|
|||
77/067,219 |
Miscellaneous Design (Soothe
®
packaging)
|
|||
78/607,156 |
Soothe and design
|
|||
77,102,918 |
Soothe
|
|||
3,149,181 |
Restoryl
|
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Certain information has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portions. |
ARTICLE 1. DEFINITIONS
|
2 | |||
ARTICLE 2. GRANT OF LICENSE
|
8 | |||
ARTICLE 3. CONSIDERATION FOR LICENSE
|
12 | |||
ARTICLE 4. REPORTS AND ACCOUNTING
|
17 | |||
ARTICLE 6. DILIGENCE AND COMMERCIALIZATION
|
21 | |||
ARTICLE 7. PATENT PROSECUTION
|
22 | |||
ARTICLE 8. INFRINGEMENT
|
24 | |||
ARTICLE 9. LIMITED WARRANTY AND EXCLUSION OF WARRANTIES
|
26 | |||
ARTICLE 10. DAMAGES, INDEMNIFICATION AND INSURANCE
|
28 | |||
ARTICLE 11. CONFIDENTIALITY
|
30 | |||
ARTICLE 12. TERM AND TERMINATION
|
32 | |||
ARTICLE 13. ASSIGNMENT
|
35 | |||
ARTICLE 14. ARBITRATION
|
36 | |||
ARTICLE 15. MISCELLANEOUS
|
36 | |||
ARTICLE 16. NOTICES
|
39 | |||
APPENDIX A COMPANYS DEVELOPMENT PLAN
|
41 | |||
APPENDIX B LICENSED PATENTS
|
42 | |||
APPENDIX C U.S. GOVERNMENT LICENSE(S)
|
43 | |||
APPENDIX D AMENDMENT TERMS
|
44 | |||
APPENDIX E ISSUE OF EQUITY
|
47 | |||
APPENDIX F RUNNING ROYALTY PERCENTAGES
|
48 | |||
APPENDIX G MINIMUM ROYALTIES
|
49 | |||
APPENDIX H NON-ROYALTY PAYMENTS FROM SUBLICENSEES
|
50 | |||
APPENDIX I MILESTONE PAYMENTS
|
51 | |||
APPENDIX J LICENSE MAINTENANCE FEES
|
52 | |||
APPENDIX K DEVELOPMENT MILESTONES AND DATES
|
53 |
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
2
3
4
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
5
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
6
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
7
8
9
Anniversary of Effective Date | Option Maintenance Fee | |
2nd
|
[*] | |
3rd | [*] | |
4th | [*] | |
5th | [*] |
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
10
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
11
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
12
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
13
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
14
Calendar Year after first Final Regulatory Approval | ||
of a Licensed Product Approved Within the | ||
Licensed Field of Use in a Major Market Country | Minimum Royalty | |
|
||
Year 1 (1
st
full Calendar Year following first Final Regulatory Approval)
|
Not Applicable | |
|
||
Year 2
|
[*] | |
|
||
Year 3
|
[*] | |
|
||
Year 4 and subsequent years
|
[*] |
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
15
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
16
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
17
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
18
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
19
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
20
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
21
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
22
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
23
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
24
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
25
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
26
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
27
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
28
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
29
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
30
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
31
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
32
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
33
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
34
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
35
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
36
37
38
If to EMORY:
|
Emory University | |
|
Office of Technology Transfer | |
|
1599 Clifton Road NE, 4 th Floor | |
|
Mailstop 1599/001/1AZ | |
|
Atlanta, Georgia 30322 | |
|
ATTN: Director | |
|
Facsimile: (404) 727-1271 | |
|
||
If to ALIMERA:
|
Alimera Sciences, Inc. | |
|
6120 Windward Parkway, Suite 290 | |
|
Alpharetta, GA 30005 | |
|
Attn: Mr. Rick Eiswirth, Chief Financial Officer | |
|
Facsimile: (678) 990-5744 |
39
|
EMORY UNIVERSITY | ALIMERA SCIENCES, INC. | ||||
By:
|
/s/ [*] | |||||
|
||||||
Name:
|
[*] | By: | /s/ Richard S. Eiswirth, Jr. | |||
|
||||||
Title:
|
Associate Vice President for Research and | Name: | Richard S. Eiswirth, Jr. | |||
|
Director Office of Technology Transfer | Title: | Chief Financial Officer | |||
|
||||||
Date:
|
Date: | |||||
|
||||||
|
||||||
READ AND ACKNOWLEDGED | By: | /s/ Ken Green, Ph.D. | ||||
|
||||||
|
Name: | Ken Green, Ph.D. | ||||
By:
|
/s/ [*] | Title: | Sr. Vice President and Chief Scientific | |||
|
||||||
Name:
|
[*] | Officer | ||||
|
||||||
Date:
|
Date: | |||||
|
||||||
|
||||||
LIC.08.019 |
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
40
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
41
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
42
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
43
[*] | ||
[*]
|
[*] | |
[*]
|
[*] |
[*] | [*] | |
|
||
[*]
|
[*] | |
|
||
[*]
|
[*] | |
|
||
[*]
|
[*] |
[*] | [*] | |
|
||
[*]
|
[*] |
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
44
[*]
|
[*] | |
[*]
|
[*] | |
[*]
|
[*] |
[*] | [*] | |
|
||
[*]
|
[*] | |
[*]
|
[*] | |
[*]
|
[*] |
[*] | [*] | |
|
||
[*]
|
[*] | |
[*]
|
[*] | |
[*]
|
[*] | |
[*]
|
[*] | |
[*]
|
[*] | |
[*]
|
[*] |
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
45
[*]
|
[*] |
[*] | [*] | |
|
||
[*]
|
[*] | |
[*]
|
[*] | |
[*]
|
[*] |
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
46
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
47
(a) | For Sales of Licensed Products by ALIMERA and its Affiliates |
[*] | ||
[*]
|
[*] | |
[*]
|
[*] |
Notwithstanding the foregoing, such [*] royalty for Sales in countries in which a Valid Claim of the Licensed Patents do not exist shall not be payable by ALIMERA to EMORY until at least one Licensed Patent has issued in the United States. For the sake of clarity, the issuance of a Licensed Patent shall mean the issuance of a patent. The publication of a patent application shall not be deemed to be the issuance of a Licensed Patent. | ||
(b) | For sales of any Licensed Products by sublicensees of ALIMERA | |
25% of royalties received by ALIMERA from such sublicensees for sales of such Licensed Product | ||
[*]. |
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
48
Calendar Year after first Final Regulatory Approval | ||||
of a Licensed Product Approved Within the | ||||
Licensed Field of Use in a Major Market Country | Minimum Royalty | |||
|
||||
Year 1 (1
st
full Calendar Year following first Final Regulatory Approval)
|
$ | 250,000 | ||
Year 2
|
$ | 500,000 | ||
Year 3
|
$ | 1,000,000 | ||
Year 4 and subsequent years
|
$ | 2,500,000 |
49
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
50
Event Relating to a Licensed Product | Milestone Payment | |
|
||
[*]
|
[*] | |
[*]
|
[*] | |
[*]
|
[*] | |
[*]
|
[*] | |
[*]
|
[*] | |
[*]
|
[*] | |
[*]
|
[*] |
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
51
Effective Date Anniversary | License Maintenance Fee | |
|
||
[*]
|
[*] | |
[*]
|
[*] | |
[*]
|
[*] |
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
52
* |
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions. |
53
ARTICLE 1. DEFINITIONS
|
2 | |||
ARTICLE 2. GRANT OF LICENSE
|
10 | |||
ARTICLE 3. CONSIDERATION FOR LICENSE
|
14 | |||
ARTICLE 4. REPORTS AND ACCOUNTING
|
19 | |||
ARTICLE 6. DILIGENCE AND COMMERCIALIZATION
|
22 | |||
ARTICLE 7. PATENT PROSECUTION
|
23 | |||
ARTICLE 8. INFRINGEMENT
|
26 | |||
ARTICLE 9. LIMITED WARRANTY AND EXCLUSION OF WARRANTIES
|
28 | |||
ARTICLE 10. DAMAGES, INDEMNIFICATION AND INSURANCE
|
31 | |||
ARTICLE 11. CONFIDENTIALITY
|
33 | |||
ARTICLE 12. TERM AND TERMINATION
|
35 | |||
ARTICLE 13. ASSIGNMENT
|
38 | |||
ARTICLE 14. ARBITRATION
|
39 | |||
ARTICLE 15. MISCELLANEOUS
|
39 | |||
ARTICLE 16. NOTICES
|
42 | |||
APPENDIX A COMPANYS DEVELOPMENT PLAN
|
44 | |||
APPENDIX B LICENSED PATENTS
|
45 | |||
APPENDIX C U.S. GOVERNMENT LICENSE(S)
|
46 | |||
APPENDIX D AMENDMENT TERMS
|
47 | |||
APPENDIX E ISSUE OF EQUITY
|
50 | |||
APPENDIX F RUNNING ROYALTY PERCENTAGES
|
51 | |||
APPENDIX G MINIMUM ROYALTIES
|
52 | |||
APPENDIX H NON-ROYALTY PAYMENTS FROM SUBLICENSEES
|
53 | |||
APPENDIX I MILESTONE PAYMENTS
|
54 | |||
APPENDIX J LICENSE MAINTENANCE FEES
|
55 | |||
APPENDIX K DEVELOPMENT MILESTONES AND DATES
|
56 |
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
2
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
3
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
4
5
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
6
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
7
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
8
9
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
10
Anniversary of Effective Date | Option Maintenance Fee | |
2nd
|
[*] | |
3rd | [*] | |
4th | [*] | |
5th | [*] |
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
11
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
12
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
13
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
14
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
15
Calendar Year after first Final Regulatory Approval | ||||
of a Licensed Product Approved Within the | ||||
Licensed Field of Use in a Major Market Country | Minimum Royalty | |||
Year 1 (1
st
full Calendar Year following first Final Regulatory Approval)
|
Not Applicable |
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
16
Calendar Year after first Final Regulatory Approval | ||||
of a Licensed Product Approved Within the | ||||
Licensed Field of Use in a Major Market Country | Minimum Royalty | |||
Year 2
|
[*] | |||
Year 3
|
[*] | |||
Year 4 and subsequent years
|
[*] |
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
17
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
18
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
19
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
20
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
21
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
22
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
23
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
24
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
25
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
26
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
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If to EMORY:
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Emory University | |
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Office of Technology Transfer | |
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1599 Clifton Road NE, 4 th Floor | |
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Mailstop 1599/001/1AZ | |
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Atlanta, Georgia 30322 | |
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ATTN: Director | |
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Facsimile: (404) 727-1271 | |
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If to ALIMERA:
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Alimera Sciences, Inc. | |
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6120 Windward Parkway, Suite 290 | |
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Alpharetta, GA 30005 | |
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Attn: Mr. Rick Eiswirth, Chief Financial Officer | |
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Facsimile: (678) 990-5744 |
42
EMORY UNIVERSITY | ALIMERA SCIENCES, INC. | |||||
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By:
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/s/ [*] | By: | /s/ C. Daniel Myers | |||
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Name:
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[*] | Name: | C. Daniel Myers | |||
Title:
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Associate Vice President for Research and Director Office of Technology Transfer | Title: | President and Chief Executive Officer | |||
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Date:
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Date: | |||||
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READ AND ACKNOWLEDGED | ||||||
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By:
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/s/ [*] | By: | /s/ Ken Green, Ph.D. | |||
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Name:
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[*] | Name: | Ken Green, Ph.D. | |||
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Title: | Sr. Vice President and Chief Scientific Officer | ||||
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Date:
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Date: | |||||
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LIC.08.032 |
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
43
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
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47
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Non-royalty payments received from sublicensees under sublicenses granting rights under the Optioned Field of Use | ||||
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49
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
51
Calendar Year after first Final Regulatory Approval
of a Licensed Product Approved Within the Licensed Field of Use in a Major Market Country |
Minimum Royalty | |||
Year 1 (1
st
full Calendar Year following first Final Regulatory Approval)
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$ | 250,000 | ||
Year 2
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$ | 500,000 | ||
Year 3
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$ | 1,000,000 | ||
Year 4 and subsequent years
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$ | 2,500,000 |
52
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
53
Event Relating to a Licensed Product | Milestone Payment | |||
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
54
Effective Date Anniversary | License Maintenance Fee | |||
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* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
55
* | C ertain I nformation has been omitted and filed separately with the C ommission C onfidential treatment has been requested with respect to the omitted portions . |
56
|
ALIMERA SCIENCES, INC. | |
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By: /s/ Richard Eiswirth, Jr. | |
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||
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||
Acknowledged:
|
EMPLOYEE: | |
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||
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/s/ Dan Myers | |
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[Signature] | |
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||
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Date: 1/26/07 | |
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1 | Option has been transferred with respect to 187,500 shares to Deborah Myers pursuant to a Securities Transfer Agreement and Agreement to be Bound between the parties dated January 22, 2009. |
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(l) | 1 / 4 of the shares of Stock which are subject to this Option on 11/22/2006, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. |
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not |
include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
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ALIMERA SCIENCES, INC. | |
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By: /s/ Richard Eiswirth, Jr. | |
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Acknowledged:
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EMPLOYEE: | |
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/s/ Dan Myers | |
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[Signature] | |
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||
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Date: 1/18/08 | |
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1 | Option has been transferred with respect to 151,200 shares to Deborah Myers pursuant to a Securities Transfer Agreement and Agreement to be Bound between the parties dated January 22, 2009. |
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on December 13, 2008, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a) , then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. |
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
|
ALIMERA SCIENCES, INC. | |
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||
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By: /s/ Daniel H. White | |
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Daniel H. White
Vice President Finance and Business Development |
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|
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Acknowledged:
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EMPLOYEE: | |
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||
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/s/ Dan Myers | |
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[Signature] | |
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||
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Date: 9/21/04 | |
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1 | Option has been transferred with respect to 77,437 shares to Deborah Myers pursuant to a Securities Transfer Agreement and Agreement to be Bound between the parties dated January 22, 2009. |
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on the first anniversary of the Grant Date, provided Employee remains continuously employed by Alimera through the first anniversary of the Grant Date; and | ||
(2) | 1 / 12 of the shares of Stock which remain subject to this Option, and which do not vest on the first anniversary of the Grant Date, on the last day of each calendar quarter in the twelve calendar quarter period which starts on or after the first anniversary of the Grant Date, provided he or she remains continuously employed by Alimera through the last day of such calendar quarter. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the Committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
-2-
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires |
-3-
-4-
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ALIMERA SCIENCES, INC. | |
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||
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By: /s/ Richard Eiswirth | |
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|
||
Acknowledged:
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EMPLOYEE: | |
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||
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/s/ Dan Myers | |
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||
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[Signature] | |
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||
|
Date: 1/27/06 | |
|
1 | Option has been transferred with respect to 187,500 shares to Deborah Myers pursuant to a Securities Transfer Agreement and Agreement to be Bound between the parties dated January 22, 2009. |
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on 11/22/2006, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a) , then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not |
include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC.
|
||||
By: | /s/ Richard Eiswirth, Jr. |
Acknowledged: |
EMPLOYEE:
|
|||
/s/ Dan Myers | ||||
[Signature] |
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 31,704 of the shares of Stock which are subject to this Option on March 20, 2010, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; | ||
(2) | 31,704 of the shares of Stock which are subject to this Option on March 20, 2011, provided Employee remains continuously employed by Alimera through such date; and | ||
(3) | 42,529 of the shares of Stock which are subject to this Option on March 20, 2012, provided Employee remains continuously employed by Alimera through such date. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. |
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC.
|
||||
By: | /s/ Richard Eiswirth, Jr. |
Acknowledged:
EMPLOYEE |
||||
/s/ Dan Myers | ||||
[Signature] |
1 | Option has been transferred with respect to 136,091 shares to Deborah Myers pursuant to a Securities Transfer Agreement and Agreement to be Bound between the parties dated January 22, 2009. |
(a) | Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 170,114 of the shares of Stock which are subject to this Option on March 20, 2009, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; | ||
(2) | 127,585 of the shares of Stock which are subject to this Option in equal increments quarterly beginning on June 20, 2009 through December 20, 2009 provided he or she remains continuously employed by Alimera through the last day of each quarterly period; | ||
(3) | 10,824 of the shares of Stock which are subject to this Option on March 20, 2010, provided Employee remains continuously employed by Alimera through such date; | ||
(4) | 127,585 of the shares of Stock which are subject to this Option in equal increments quarterly beginning on June 20, 2010 through December 20, 2010 provided he or she remains continuously employed by Alimera through the last day of each quarterly period; | ||
(5) | 10,824 of the shares of Stock which are subject to this Option on March 20, 2011, provided Employee remains continuously employed by Alimera through such date; and | ||
(6) | 127,585 of the shares of Stock which are subject to this Option in equal increments quarterly beginning on June 20, 2011 through December 20, 2011 provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . Employees right to exercise all or any part of this Option shall expire no later than the seventh anniversary of the Grant Date. | ||
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera. |
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC.
|
||||
By: | /s/ Richard Eiswirth, Jr. |
Acknowledged: |
EMPLOYEE:
|
|||
/s/ Dan Myers | ||||
[Signature] | ||||
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 39,130 of the shares of Stock which are subject to this Option in seven equal increments quarterly beginning on February 25, 2012 through August 25, 2013 provided Employee remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other |
fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC.
|
||||
By: | /s/ Richard Eiswirth, Jr. |
Acknowledged: |
EMPLOYEE:
|
|||
/s/ Dan Myers | ||||
[Signature] | ||||
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 16,968 of the shares of Stock which are subject to this Option shall vest on the two year anniversary of the date the Investor Majority, as defined in the Series C-1 Preferred Stock and Warrant Purchase Agreement (the Purchase Agreement), deliver to the Company a Mandatory Exercise Election, as defined in the Purchase Agreement, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; | ||
(2) | 16,968 of the shares of Stock which are subject to this Option shall vest on the date three months from such Initial Vesting Date, provided Employee remains continuously employed by Alimera through such date; | ||
(3) | 2,860 of the shares of Stock which are subject to this Option shall vest on the date six months form such Initial Vesting Date, provided Employee remains continuously employed by Alimera through such date; and | ||
(4) | 84,842 of the shares of Stock which are subject to this Option shall vest quarterly in five equal increments beginning on the date twelve months from the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option |
shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. |
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC.
|
||||
By: | /s/ Richard Eiswirth, Jr. | |||
Acknowledged:
EMPLOYEE |
||||
/s/ Dan Myers | ||||
[Signature] |
(a) | Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 22,359 of the shares of Stock which are subject to this Option on August 25, 2010, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 27,950 of the shares of Stock which are subject to this Option in five equal increments quarterly beginning on November 25, 2010 through November 25, 2011, provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . Employees right to exercise all or any part of this Option shall expire no later than the seventh anniversary of the Grant Date. | ||
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC.
|
||||
By: | /s/ Richard Eiswirth, Jr. |
Acknowledged:
EMPLOYEE |
||||
/s/ Dan Myers | ||||
[Signature] |
(a) | Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 67,873 of the shares of Stock which are subject to this Option vest upon the one year anniversary of the date the Investor Majority, as defined in the Series C-1 Preferred Stock and Warrant Purchase Agreement (the Purchase Agreement), deliver to the Company a Mandatory Exercise Election, as defined in the Purchase Agreement, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; | ||
(2) | 50,905 of the shares of Stock which are subject to this Option shall vest in three equal quarterly increments beginning on the date three months from the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the last day of each quarterly period; | ||
(3) | 14,109 of the shares of Stock which are subject to this Option shall vest on the date eighteen months from the Initial Vesting Date, provided the Employee remains continuously employed by Alimera through such date; and | ||
(4) | 16,968 of the shares of Stock which are subject to this Option shall vest on the date twenty-one months from the Initial Vesting Date, provided the Employee remains continuously employed by Alimera through such date. |
(b) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of |
Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Dan Myers | ||
|
||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
/s/ Richard Eiswirth, Jr. | ||||
[Signature]
|
||||
|
||||
|
Date | 1/17/2006 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on 11/22/2007, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) |
Non-Vested Shares
. If Employees employment with Alimera terminates
for any reason whatsoever, including death, disability (as determined by
the committee) or retirement, while thee are any non-vested shares of
Stock subject to this Option under
§ 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. |
||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. |
include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Dan Myers | ||
|
||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
/s/ [ILLEGIBLE] | ||||
[Signature]
|
||||
|
||||
|
Date | 4/1/2008 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on March 20 2009, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. |
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Dan Myers | ||
|
||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
/s/ Richard Eiswirth | ||||
[Signature]
|
||||
|
||||
|
Date | 1/18/08 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on December 13, 2008, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. |
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock, If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Dan Myers | ||
|
||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
/s/ Richard Eiswirth | ||||
[Signature]
|
||||
|
||||
|
Date: | 1/27/2006 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on 10/31/2006, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. |
include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Dan Myers | ||
|
||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
/s/ Richard S. Eiswirth, Jr. | ||||
[Signature]
|
||||
|
||||
|
Date | 10/31/2005 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on the first anniversary of the Grant Date, provided Employee remains continuously employed by Alimera through the first anniversary of the Grant Date; and | ||
(2) | 1 / 12 of the shares of Stock which remain subject to this Option, and which do not vet on the first anniversary of the Grant Date, on the last day of each calendar quarter in the twelve calendar quarter period which starts on or after the first anniversary of the Grant Date, provided he or she remains continuously employed by Alimera through the last day of such calendar quarter. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. |
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||||||
|
||||||||
|
By: | /s/ Dan Myers | ||||||
|
||||||||
|
||||||||
Acknowledged: | EMPLOYEE: | |||||||
|
||||||||
/s/ Richard Eiswirth, Jr. | ||||||||
[Signature] | ||||||||
|
||||||||
Date: | 7/22/2008 | |||||||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to 62,500 of the shares of Stock which are subject to this Option in equal increments quarterly beginning on March 25, 2010 through June 25, 2012 provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
2
3
ALIMERA SCIENCES, INC. | ||||||||
|
||||||||
|
By: | /s/ Dan Myers | ||||||
|
||||||||
|
||||||||
Acknowledged:
EMPLOYEE: |
||||||||
|
||||||||
/s/ Richard Eiswirth, Jr. | ||||||||
[Signature] | ||||||||
|
||||||||
Date: | 7/22/2008 | |||||||
|
(a) | Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 25,000 of the shares of Stock which are subject to this Option on June 25, 2009, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 12,500 of the shares of Stock which are subject to this Option in equal increments quarterly beginning on September 25, 2009 through December 25, 2009 provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . Employees right to exercise all or any part of this Option shall expire no later than the seventh anniversary of the Grant Date. | ||
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
2
3
ALIMERA SCIENCES, INC. | ||||||
|
||||||
|
By: | /s/ Dan Myers | ||||
|
||||||
|
||||||
Acknowledged: | EMPLOYEE: | |||||
|
||||||
/s/ Richard Eiswirth, Jr. | ||||||
[Signature]
|
||||||
|
||||||
|
Date: September 11, 2009 | |||||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 4,721 of the shares of Stock which are subject to this Option on August 25, 2010, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 14,164 of the shares of Stock which are subject to this Option in twelve equal increments quarterly beginning on November 25, 2010 through August 25, 2013 provided Employee remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of |
Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||||
|
||||||
|
By: | /s/ Dan Myers | ||||
|
||||||
|
||||||
Acknowledged: | EMPLOYEE: | |||||
|
||||||
/s/ Richard Eiswirth, Jr. | ||||||
[Signature]
|
||||||
|
||||||
|
Date: September 11, 2009 | |||||
|
(a) | General Rule . General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1,257 of the shares of Stock which are subject to this Option on August 25, 2010, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3,771 of the shares of Stock which are subject to this Option in twelve equal increments quarterly beginning on November 25, 2010 through August 25, 2013 provided Employee remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of |
Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||||
|
||||||
|
By: | /s/ Dan Myers | ||||
|
||||||
|
||||||
Acknowledged: | EMPLOYEE: | |||||
|
||||||
/s/ Richard Eiswirth, Jr. | ||||||
[Signature]
|
||||||
|
||||||
|
Date: September 11, 2009 | |||||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 18,147 of the shares of Stock which are subject to this Option vest upon the one year anniversary of the date upon which the Investor Majority, as defined in the Series C-1 Preferred Stock and Warrant Purchase Agreement (the Purchase Agreement), deliver to the Company a Mandatory Exercise Election, as defined in the Purchase Agreement, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; | ||
(2) | 2,990 of the shares of Stock which are subject to this Option shall vest on the date three months from such Initial Vesting Date, provided Employee remains continuously employed by Alimera through such date; and | ||
(3) | 40,831 of the shares of Stock which are subject to this Option shall vest quarterly in nine equal increments beginning on the date twelve months from the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. |
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||||
|
||||||
|
By: | /s/ Dan Myers | ||||
|
||||||
|
||||||
Acknowledged: | ||||||
EMPLOYEE | ||||||
|
||||||
/s/ Richard Eiswirth, Jr. | ||||||
[Signature]
|
||||||
|
||||||
|
Date: September 11, 2009 | |||||
|
(a) | Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1,546 of the shares of Stock which are subject to this Option vest on the date fifteen months from the date upon which the Investor Majority, as defined in the Series C-1 Preferred Stock and Warrant Purchase Agreement (the Purchase Agreement), deliver to the Company a Mandatory Exercise Election, as defined in the Purchase Agreement, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 9,074 of the shares of Stock which are subject to this Option shall vest quarterly in two equal increments beginning on the date three months from the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Richard Eiswirth, Jr. | ||
|
||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
/s/ Dave Holland | ||||
[Signature]
|
||||
|
||||
|
Date: | January 23, 2007 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on 11/22/2006, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a) , then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not |
include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Richard Eiswirth, Jr. | ||
|
||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
/s/ David Holland | ||||
[Signature]
|
||||
|
||||
|
Date: | 3.31.08 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on March 20 2009, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. |
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Richard Eiswirth, Jr. | ||
|
||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
/s/ David Holland | ||||
[Signature]
|
||||
|
||||
|
Date: | 1/28/08 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on December 13, 2008, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. |
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Daniel H. White | ||
|
||||
Daniel H. White | ||||
Vice President Finance and Business Development | ||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
/s/ David R. Holland | ||||
[Signature]
|
||||
|
||||
|
Date: | 9/22/04 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on the first anniversary of the Grant Date, provided Employee remains continuously employed by Alimera through the first anniversary of the Grant Date; and | ||
(2) | 1 / 12 of the shares of Stock which remain subject to this Option, and which do not vest on the first anniversary of the Grant Date, on the last day of each calendar quarter in the twelve calendar quarter period which starts on or after the first anniversary of the Grant Date, provided he or she remains continuously employed by Alimera through the last day of such calendar quarter. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the Committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
-2-
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires |
-3-
-4-
ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Richard Eiswirth, Jr. | ||
|
||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
/s/ Dave Holland | ||||
[Signature]
|
||||
|
||||
|
Date: | January 27, 2006 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on 11/22/2006, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not |
include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||||
|
||||||
|
By: | /s/ Richard Eiswirth, Jr. | ||||
|
||||||
|
||||||
Acknowledged: | EMPLOYEE: | |||||
|
||||||
/s/ David Holland | ||||||
[Signature]
|
||||||
|
||||||
Date: September 11, 2009 |
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 5,813 of the shares of Stock which are subject to this Option on August 25, 2010, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 17,439 of the shares of Stock which are subject to this Option in twelve equal increments quarterly beginning on November 25, 2010 through August 25, 2013 provided Employee remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. |
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. |
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of |
Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||||
|
||||||
|
By: | /s/ Richard Eiswirth, Jr. | ||||
|
||||||
|
||||||
Acknowledged: | EMPLOYEE: | |||||
|
||||||
/s/ David Holland | ||||||
[Signature]
|
||||||
|
||||||
Date: September 11, 2009 |
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 17,645 of the shares of Stock which are subject to this Option vest upon the one year anniversary of the date upon which the Investor Majority, as defined in the Series C-1 Preferred Stock and Warrant Purchase Agreement (the Purchase Agreement), deliver to the Company a Mandatory Exercise Election, as defined in the Purchase Agreement, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 52,936 of the shares of Stock which are subject to this Option shall vest quarterly in twelve equal increments beginning on the date three months from the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of |
Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | |||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
||||
|
By: | /s/ Richard Eiswirth, Jr. | ||
|
||||
|
||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
|
||||
/s/ Susan H. Caballa | ||||
|
[Signature] | |||
|
||||
|
||||
|
Date: | 3 February 2006 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on 11/22/2006, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not |
include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
||||
|
By: | /s/ Richard Eiswirth, Jr. | ||
|
||||
|
||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
|
||||
/s/ Susan H. Caballa
|
||||
|
[Signature] | |||
|
||||
|
||||
|
Date: | 01/18/07 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on 11/22/2006, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control. If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate, | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not |
include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
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By: | /s/ Richard Eiswirth, Jr. | ||
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Acknowledged: | EMPLOYEE: | |||
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/s/ Susan H. Caballa | ||||
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[Signature] | |||
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Date: | 31 March 2008 | ||
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(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on March 20 2009, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. |
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
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By: | /s/ Daniel H. White | ||
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Daniel H. White | ||||
Vice President Finance and Business Development | ||||
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Acknowledged: | EMPLOYEE: | |||
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|
||||
/s/ Susan H. Caballa
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[Signature] | |||
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Date: | Sept. 22, 2004 | ||
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(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on the first anniversary of the Grant Date, provided Employee remains continuously employed by Alimera through the first anniversary of the Grant Date; and | ||
(2) | 1 / 12 of the shares of Stock which remain subject to this Option, and which do not vest on the first anniversary of the Grant Date, on the last day of each calendar quarter in the twelve calendar quarter period which starts on or after the first anniversary of the Grant Date, provided he or she remains continuously employed by Alimera through the last day of such calendar quarter. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the Committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
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(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires |
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ALIMERA SCIENCES, INC. | ||||
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By: | /s/ Richard Eiswirth, Jr. | ||
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Acknowledged: | EMPLOYEE: | |||
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/s/ Susan H. Caballa | ||||
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[Signature] | |||
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Date: | 18 January 2008 | ||
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(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on December 13, 2008, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. |
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
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By: | /s/ Richard Eiswirth, Jr. | ||
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|
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Acknowledged: | EMPLOYEE: | |||
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|
||||
/s/ Susan H. Caballa
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[Signature] | |||
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Date: | May 17, 2007 | ||
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(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on 03/01/2008, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the Initial Vesting Date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules , |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock, | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not |
include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
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By: | /s/ Dan Myers | ||
|
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Dan Myers | ||||
President, CEO | ||||
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|
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Acknowledged: | Susan H. Caballa | |||
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|
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/s/ Susan H. Caballa | ||||
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[Signature] | |||
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Date: | 2/18/05 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on the first anniversary of the Grant Date, provided Employee remains continuously employed by Alimera through the first anniversary of the Grant Date; and | ||
(2) | 1 / 12 of the shares of Stock which remain subject to this Option, and which do not vest on the first anniversary of the Grant Date, on the last day of each calendar quarter in the twelve calendar quarter period which starts on or after the first anniversary of the Grant Date, provided he or she remains continuously employed by Alimera through the last day of such calendar quarter. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the Committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
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(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires |
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ALIMERA SCIENCES, INC.
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By: | /s/ Richard Eiswirth, Jr. | |||
Acknowledged: |
EMPLOYEE:
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/s/ Susan H. Caballa | ||||
[Signature] | ||||
Date: September 24, 2009 | ||||
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 5,166 of the shares of Stock which are subject to this Option on August 25, 2010, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 15,498 of the shares of Stock which are subject to this Option in twelve equal increments quarterly beginning on November 25, 2010 through August 25, 2013 provided Employee remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of |
Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC.
|
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By: | /s/ Richard Eiswirth, Jr. | |||
Acknowledged: |
EMPLOYEE:
|
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/s/ Susan H. Caballa | ||||
[Signature] | ||||
Date: September 24, 2009 | ||||
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 15,681 of the shares of Stock which are subject to this Option vest upon the one year anniversary of the date upon which the Investor Majority, as defined in the Series C-1 Preferred Stock and Warrant Purchase Agreement (the Purchase Agreement), deliver to the Company a Mandatory Exercise Election, as defined in the Purchase Agreement, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 47,046 of the shares of Stock which are subject to this Option shall vest quarterly in twelve equal increments beginning on the date three months from the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of |
Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | |||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
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BY: | /s/ Richard Eiswirth, Jr. | ||
|
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Acknowledged: | EMPLOYEE: | |||
|
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/s/ Ken Green | ||||
[Signature]
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|
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Date: | Jan 19, 2007 | ||
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(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on 11/22/2007, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under §2(a) , then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not |
include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC | ||||
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BY: | Richard Eiswirth, Jr. | ||
|
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Acknowledged: | EMPLOYEE: | |||
|
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/s/ Ken Green | ||||
[Signature]
|
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|
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|
Date: | Feb. 3, 2005 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 . of the shares of Stock which are subject to this Option on 11/22/2006, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not |
include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
BY: | /s/ Richard Eiswirth, Jr. | ||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
/s/ Ken Green | ||||
[Signature]
|
||||
|
||||
|
Date: | Jan 19, 2007 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on 11/22/2006, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not |
include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
BY: | Richard Eiswirth, Jr. | ||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
/s/ Ken Green | ||||
[Signature]
|
||||
|
||||
|
Date: | 5/15/07 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on 03/01/2008, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the Initial Vesting Date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not |
include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Richard Eiswirth | ||
|
||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
/s/ Kenneth Green | ||||
[Signature]
|
||||
|
||||
|
Date: | Apr 4, 2008 | ||
|
(a) | General Rule. Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on March 20 2009, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. |
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
||||
|
By: | /s/ Daniel H. White | ||
|
||||
Daniel H. White | ||||
Vice President Finance and Business Development | ||||
|
||||
|
||||
Acknowledged: | EMPLOYEE | |||
|
||||
|
||||
/s/ Ken Green | ||||
|
[Signature] Ken Green | |||
|
||||
|
||||
|
Date: | Sept. 27, 2004 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on the first anniversary of the Grant Date, provided Employee remains continuously employed by Alimera through the first anniversary of the Grant Date; and | ||
(2) | 1 / 12 of the shares of Stock which remain subject to this Option, and which do not vest on the first anniversary of the Grant Date, on the last day of each calendar quarter in the twelve calendar quarter period which starts on or after the first anniversary of the Grant Date, provided he or she remains continuously employed by Alimera through the last day of such calendar quarter. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the Committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
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(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires |
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ALIMERA SCIENCES, INC. | ||||
|
||||
|
||||
|
By: | /s/ Daniel H. White | ||
|
||||
Daniel H. White | ||||
Vice President, Finance and Corporate Development | ||||
|
||||
|
||||
Acknowledged: | Ken Green, PhD | |||
|
||||
|
||||
/s/ Ken Green | ||||
[Signature] | ||||
|
||||
|
||||
|
Date: | 9/15/05 | ||
|
(a) | General Rule. Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(l) | 1 / 4 of the shares of Stock which are subject to this Option on the first anniversary of the Grant Date, provided Employee remains continuously employed by Alimera through the first anniversary of the Grant Date; and | ||
(2) | 1 / 12 of the shares of Stock which remain subject to this Option, and which do not vest on the first anniversary of the Grant Date, on the last day of each calendar quarter in the twelve calendar quarter period which starts on or after the first anniversary of the Grant Date, provided he or she remains continuously employed by Alimera through the last day of such calendar quarter. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the Committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
-2-
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires |
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ALIMERA SCIENCES, INC. | ||||
|
||||
|
||||
|
By: | Richard Eiswirth, Jr. | ||
|
||||
|
||||
|
||||
Acknowledged: | EMPLOYEE: | |||
|
||||
|
||||
/s/ Ken Green | ||||
|
[Signature] | |||
|
||||
|
||||
|
Date: | Jan 18, 2008 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 1 / 4 of the shares of Stock which are subject to this Option on December 13, 2008, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 3 / 4 of the shares of Stock which are subject to this Option in equal increments quarterly over three years beginning on the date three (3) months from the initial vesting date provided he or she remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while thee are any non-vested shares of Stock subject to this Option under § 2(a) , then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. |
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
By: | /s/ Richard Eiswirth, Jr. | |||
Acknowledged: | EMPLOYEE: | |||
/s/ Kenneth Green | ||||
[Signature] | ||||
Date: | September 11, 2009 | |||
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 7,750 of the shares of Stock which are subject to this Option on August 25, 2010, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 23,252 of the shares of Stock which are subject to this Option in twelve equal increments quarterly beginning on November 25, 2010 through August 25, 2013 provided Employee remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of |
Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC.
|
||||
By: | /s/ Richard Eiswirth, Jr. | |||
Acknowledged: |
EMPLOYEE:
|
|||
/s/ Kenneth Green | ||||
[Signature] | ||||
Date: | September 11, 2009 | |||
(a) | General Rule . Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 23,527 of the shares of Stock which are subject to this Option vest upon the one year anniversary of the date upon which the Investor Majority, as defined in the Series C-1 Preferred Stock and Warrant Purchase Agreement (the Purchase Agreement), deliver to the Company a Mandatory Exercise Election, as defined in the Purchase Agreement, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; | ||
(2) | 5,881 of the shares of Stock which are subject to this Option shall vest on the date three months from such Initial Vesting Date, provided Employee remains continuously employed by Alimera through such date; | ||
(3) | 1,065 of the shares of Stock which are subject to this Option shall vest on the date six months form such Initial Vesting Date, provided Employee remains continuously employed by Alimera through such date; and | ||
(4) | 52,936 of the shares of Stock which are subject to this Option shall vest quarterly in nine equal increments beginning on the date twenty-four months from the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the last day of each quarterly period. |
(b) | Option Expiration Rules . |
(1) | Non-Vested Shares . If Employees employment with Alimera terminates for any reason whatsoever, including death, disability (as determined by the committee) or retirement, while there are any non-vested shares of Stock subject to this Option under § 2(a), then immediately upon such termination of employment this Option shall expire and shall have no further force or effect and be null and void with respect to such non-vested shares of Stock. | ||
(2) | Vested Shares . Employees right to exercise all or any part of this Option which has vested under § 2(a) shall expire no later than the tenth anniversary of the Grant Date. However, if Employees employment with Alimera terminates before the tenth anniversary of the Grant Date, Employees right to exercise any part of this Option which has vested under § 2(a) shall expire and shall have no further force or effect and shall be null and void at the end of the ninety (90) day period which starts on the date his or her employment terminates. |
(c) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary or Alimera, and a transfer of employment between Alimera and any Affiliate, Parent or Subsidiary of Alimera or between any Affiliate, Parent or Subsidiary of Alimera shall not be treated as a termination of employment under the Plan or this Option Certificate. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC.
|
||||
By: | /s/ Richard Eiswirth, Jr. | |||
Acknowledged:
EMPLOYEE |
||||
/s/ Kenneth Green | ||||
[Signature] | ||||
Date: | September 11, 2009 | |||
(a) | Subject to § 2(b) and § 2(c), Employees right under this Option Certificate to exercise this Option shall vest with respect to: |
(1) | 4,817 of the shares of Stock which are subject to this Option vest on the date eighteen months from the anniversary of the date upon which the Investor Majority, as defined in the Series C-1 Preferred Stock and Warrant Purchase Agreement (the Purchase Agreement), deliver to the Company a Mandatory Exercise Election, as defined in the Purchase Agreement, the Initial Vesting Date, provided Employee remains continuously employed by Alimera through the Initial Vesting Date; and | ||
(2) | 5,882 of the shares of Stock which are subject to this Option shall vest on the date three months from the Initial Vesting Date, provided Employee remains continuously employed by Alimera through such date. |
Option Expiration Rules
. Employees right to exercise all or any part of
this Option shall expire no later than the seventh anniversary of the Grant
Date.
|
|||
(b) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera. | ||
(3) | Fractional Shares . Employees right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Employee exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Richard Eiswirth, Jr. | ||
|
||||
|
||||
Acknowledged: | DIRECTOR | |||
|
||||
/s/ Calvin Roberts | ||||
[Signature]
|
||||
|
||||
|
Date | 1/26/2007 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Directors right under this Option Certificate to exercise this Option is fully vested as of the date hereof. | ||
(b) |
Option Expiration Rules
. Directors right to exercise
all or any part of this
Option shall expire no later than the seventh anniversary of the Grant
Date. |
||
(a) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera. | ||
(3) | Fractional Shares . Directors right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Director exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires |
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ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Dan Myers | ||
|
||||
|
||||
Acknowledged: | DIRECTOR | |||
|
||||
/s/ Calvin Roberts | ||||
[Signature]
|
||||
|
||||
|
Date | 1/21/05 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Directors right under this Option Certificate to exercise this Option is fully vested as of the date hereof, | ||
(b) | Option Expiration Rules . Directors right to exercise all or any part of this Option shall expire no later than the seventh anniversary of the Grant Date. | ||
(a) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) |
Affiliates
. For purposes of this Option
Certificate, any reference to
Alimera shall include any Affiliate, Parent or Subsidiary of
Alimera. |
||
(3) | Fractional Shares . Directors right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Director exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires |
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ALIMERA SCIENCES, INC. | ||||
|
||||
|
By: | /s/ Dan Myers | ||
|
||||
|
||||
Acknowledged: | DIRECTOR | |||
|
||||
/s/ Calvin Roberts | ||||
[Signature]
|
||||
|
||||
|
Date | 9/29/05 | ||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Directors right under this Option Certificate to exercise this Option is fully vested as of the date hereof. | ||
(b) | Option Expiration Rules . Directors right to exercise all or any part of this Option shall expire no later than the seventh anniversary of the Grant Date. | ||
(a) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) |
Affiliates.
For purposes of this Option
Certificate, any reference to
Alimera shall include any Affiliate, Parent or Subsidiary of
Alimera. |
||
(3) | Fractional Shares . Directors right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Director exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires |
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ALIMERA SCIENCES, INC. | ||||||||
|
||||||||
|
By: | /s/ Richard Eiswirth, Jr. | ||||||
|
||||||||
|
||||||||
Acknowledged: | DIRECTOR | |||||||
|
||||||||
/s/ Calvin Roberts | ||||||||
[Signature] | ||||||||
|
||||||||
Date: | 7/28/2008 | |||||||
|
(a) | General Rule . Subject to § 2(b) and § 2(c), Directors right under this Option Certificate to exercise this Option is fully vested as of the date hereof. | ||
(b) | Option Expiration Rules . Directors right to exercise all or any part of this Option shall expire no later than the seventh anniversary of the Grant Date. | ||
(a) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera. | ||
(3) | Fractional Shares . Directors right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Director exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires. |
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ALIMERA SCIENCES, INC.
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By: | /s/ Richard Eiswirth, Jr. | |||
Acknowledged: |
DIRECTOR
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/s/ Calvin Roberts | ||||
[Signature] | ||||
Date: | August 24, 2009 | |||
(a) | General Rule . Subject to § 2(b) and § 2(c), Directors right under this Option Certificate to exercise this Option is fully vested as of the date hereof. | ||
(b) | Option Expiration Rules . Directors right to exercise all or any part of this Option shall expire no later than the seventh anniversary of the Grant Date. | ||
(a) | Special Rules . |
(1) | Change in Control . If there is a Change in Control of Alimera, this Option shall be subject to the provisions of § 14 of the Plan with respect to such Change in Control. | ||
(2) | Affiliates . For purposes of this Option Certificate, any reference to Alimera shall include any Affiliate, Parent or Subsidiary of Alimera. | ||
(3) | Fractional Shares . Directors right to exercise this Option shall not include a right to exercise this Option to purchase a fractional share of Stock. If Director exercises this Option on any date when this Option includes a fractional share of Stock, his or her exercise right shall be rounded down to the nearest whole share of Stock and the fractional share shall be carried forward until that fractional share together with any other fractional shares can be combined to equal a whole share of Stock or this Option expires |
1) | DSP hereby grants Alimera a worldwide, fully paid up, royalty free, non-exclusive and transferable license, with the right to sublicense, under the Patent Rights to research, develop, manufacture, make, have made, use, market, offer to sell, sell, import and otherwise exploit Licensed Product in the field of ophthalmology (the Initial License), provided that (i) Alimera shall not grant any sublicense under, nor transfer, the Initial License without giving a prior written notice to DSP, (ii) Alimera may grant a sublicense under, or transfer, the Initial License to an entity if and to the extent Alimera grants such entity the right to research, develop, manufacture, make, have made, use, market, offer to sell, sell, import or |
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otherwise exploit the Licensed Product, and (iii) DSP shall have no obligation to disclose or provide any information on its technology and/or know-how on manufacturing of [*] to Alimera, other than the information already disclosed by DSP to Alimera under the Non-Disclosure Agreement dated September 13, 2006 (the Non-Disclosure Agreement), until the Expanded License (as defined in Paragraph 3) below) is granted by DSP to Alimera under Paragraph 3). | ||
2) | Nothing herein shall be construed as an admission by Alimera, whether direct or indirect, immediate or remote: a) that there has been direct or contributory infringement of, or inducement to infringe, the Patent Rights, or b) that the Patent Rights are valid or enforceable. | |
3) | In addition, DSP hereby grants to Alimera, and Alimera hereby accepts, an option (the Option) to be granted a worldwide, non-exclusive and transferable license, with the right to sublicense, under the Patent Rights and DSPs relevant know-how to research, develop, manufacture, make, have made, use, market, offer to sell, sell, import and otherwise exploit any invention covered by the Patent Rights and DSPs relevant know-how in the field of ophthalmology (the Expanded License). Alimera may exercise the Option at any time during the period of this Agreement by giving a written notice to DSP, provided that both parties shall discuss in good faith the terms and conditions of the Expanded License and a separate license agreement containing agreed upon terms and conditions shall be concluded between the parties. | |
4) | In full consideration of DSPs agreement set forth in Paragraph 1) above and DSPs grant of the Option set forth in Paragraph 3) above, Alimera shall pay four hundred thousand United States Dollars (US$400,000) to DSP in two installments as set forth below. Alimera shall, within [*] days after each of (i) the execution of this Agreement and (ii) first regulatory approval for the Licensed Product in the USA by the U.S. Food and Drug Administration authorizing the marketing and sale of the Licensed Product in the USA, make a payment in the amount of two hundred thousand United States Dollars (US$200,000) to DSP. The payments shall be non-refundable and shall be made in United States Dollars by telegraphic |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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transfer to the bank account designated by DSP in writing. It is understood that the payments do not include any consideration to DSP for the Expanded License. In case Alimera fails to make any of the payments required hereunder by the due date, DSP will charge Alimera overdue interest at the lower of (i) interest accruing on any such unpaid balance at the average year-to-date rate London Inter-Bank Offering Rate (LIBOR) in effect from time to time plus [*] percent ([*]) per annum or (ii) the highest rate allowable under applicable law. | ||
5) | Alimera and DSP agree that all amounts payable under this Agreement shall be treated as royalties within the meaning of Article 12 of the Convention between the Government of the United States of America and the Government of Japan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (the Treaty). Any taxes imposed on DSP and required to be paid or withheld on account of amounts payable to DSP under this Agreement, if any, shall be deducted at the rates specified by applicable law from the amount due hereunder. Alimera shall provide DSP with documentation necessary to receive benefits of a tax treaty, if any. In addition, Alimera shall provide promptly to DSP receipts from the relevant government taxing authority evidencing payment of such tax. DSP hereby represents that (a) it is a resident of Japan within the meaning of Article 4 of the Treaty, (b) it is entitled to claim benefits under the Treaty, and (c) the amounts payable under this Agreement are not attributable to a permanent establishment of DSP in the United States of America within the meaning of Article 12(3) of the Treaty. DSP will deliver to Alimera without unreasonable delay after the signing of this Agreement a duly completed and signed Internal Revenue Service Form W-8BEN (attached hereto as Exhibit C) claiming a zero percent (0%) withholding rate under Article 12 of the Treaty on the amounts payable under this Agreement. | |
6) | DSP warrants that a) it has the exclusive right to enter into this Agreement, including the grant of the releases, license and option herein; b) there are no liens, conveyances, mortgages, assignments, encumbrances or other agreements or obligations that would prevent or impair the full and complete privileges granted pursuant to the full terms and conditions of this |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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Agreement and c) it has not entered into, and shall not enter into, any other agreements that would interfere with the rights and immunities granted herein by DSP. | ||
EXCEPT AS OTHERWISE PROVIDED HEREIN OR, IF APPLICABLE, IN THE SEPARATE LICENSE AGREEMENT FOR THE EXPANDED LICENSE, DSP MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO THE PATENT RIGHTS (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) OR THAT RESEARCH, DEVELOPMENT, MANUFACTURE, MARKETING, DISTRIBUTION, USE OR SALE OF THE LICENSED PRODUCT AND ANY OTHER PRODUCTS WILL NOT INFRINGE ANY PATENT RIGHTS, COPYRIGHT OR OTHER RIGHT OF ANY THIRD PARTY, OF ANY KIND OR NATURE WHATSOEVER. | ||
7) | DSP shall indemnify, defend and hold Alimera and any sublicensees and transferees of Alimera (the Indemnified Parties) harmless from and against any and all liabilities, damages, losses and costs and expenses, including, without limitation, reasonable attorneys fees and costs, which the Indemnified Parties may incur as a result of third party claims, demands, actions, suits or proceedings that arise from or relate to a breach by DSP of its representations and warranties hereunder. Alimera shall indemnify, defend and hold DSP harmless from and against any and all liabilities, damages, losses and costs and expenses, including, without limitation, reasonable attorneys fees and costs, which DSP may incur as a result of third party claims, demands, actions, suits or proceedings that arise from or relate to Alimeras research, development, manufacturing, marketing, distribution, use and/or sale of the Licensed Product, including, without limitation, any liabilities, losses or damages whatsoever with respect to death or injury to any individual or damage to any tangible property arising from the possession, use or operation of the Licensed Product by Alimera or any third party in any manner whatsoever, or with respect to any injury or damage caused by any product defect or negligence relating to the manufacture of the Licensed Product. The indemnifying partys obligations hereunder are conditioned on a) the party seeking indemnification providing prompt written notice thereof and reasonable |
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cooperation, information, and assistance in connection therewith and b) it having sole control and authority to defend, settle or compromise such claim, provided that any settlement of a claim that does not contain an unconditional release of the party seeking indemnification will require the prior written consent of such party. The indemnifying party shall not be responsible for any settlement it does not approve in writing. | ||
8) | This Agreement takes effect on the date first set forth above and shall continue in effect on a country-by-country basis until the expiration of the last to expire patent in each country. | |
9) | In the event that either party materially fails to fulfill or breaches the terms and conditions hereof, the other party shall give the defaulting party a written notice to remedy such material failure or breach within [*] ([*]) days. In case such material failure or breach is not remedied by the defaulting party within [*] ([*]) days after receipt of such notice, the complaining party may terminate this Agreement at its option upon written notice to the defaulting party. For the sake of clarity, in the case of Alimera as the defaulting party, this Paragraph shall apply only to Alimeras material failure to fulfill, or Alimeras material breach of, (a) its obligations under Paragraph 1) (i) and (ii) of this Agreement, (b) its payment obligations under Paragraph 4) of this Agreement, and (c) its obligations under the Non-Disclosure Agreement. | |
10) | In the event that Alimera contests the validity of the Patent Rights by itself or through any of its affiliates or any third party, DSP may at its discretion terminate this Agreement upon written notice to Alimera. For the purpose of this Paragraph 10), affiliate means an entity organized under the laws of a jurisdiction that controls, is controlled by or is under common control with Alimera for so long as such control exists. For the purpose of this Paragraph 10), control means the decision-making authority as to such entity, through ownership of equity, membership interests or contract. | |
11) | In the event of termination of this Agreement by DSP pursuant to Paragraph 9) or 10) above, the payments in Paragraph 2) which have not been made at the time of the termination shall become due and payable |
* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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immediately upon the termination. | ||
12) | Each party shall maintain in confidence, and shall not disclose to any third party, the existence and any terms and conditions of this Agreement (Information), except that each party may disclose the Information; |
a) | to its existing and prospective investors, | ||
b) | as required by a legally enforceable order or direction or other applicable law or regulation or to enforce this Agreement, | ||
c) | to the Internal Revenue Service or foreign equivalent, | ||
d) | to its attorneys, accountants or financial advisors, | ||
e) | as needed in any filings required by the United States Securities and Exchange Commission, other governmental authority or securities exchange, | ||
f) | to the extent the existence or any terms and conditions of this Agreement become publicly known without breach of this Agreement or | ||
g) | as approved in writing by the other party (such approval not to be unreasonably withheld); | ||
provided that the Information may be disclosed, i) to those who have such obligations of confidentiality substantially similar to those provided for herein in the event of a) and d) above, and ii) subject to a reasonable prior written notice to the other party in the event of b), c) and e) above. | |||
In addition, Alimera may disclose the Information to a prospective sublicensee, development and/or commercialization partner or acquirer, and DSP may disclose the Information to the Joint Owner and the company acting for and on behalf of the Joint Owner, provided that in each case, the Information may be disclosed to those who have such obligations of confidentiality substantially similar to those as provided for herein. |
13) | This Agreement may not be amended, changed or modified, or a provision thereof waived, except in a writing duly executed by both parties. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable. |
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14) | There are no representations, warranties, agreements or understandings between the parties with respect to the subject matter of this Agreement other than as specifically set forth in this Agreement. This Agreement states the entire agreement between the parties with respect to the subject matter hereof, and, except for the Non-Disclosure Agreement, supersedes all previous and contemporaneous agreements and understandings, if any, whether written or oral, between the parties with respect to the subject matter of this Agreement. | |
15) | The validity, construction, and performance of this Agreement shall be governed by laws of the State of New York, United States of America, without regard for the choice of law principles. Any difference or dispute between the parties arising out of or relating to this Agreement or any breach thereof shall be finally settled by arbitration held in the English language in New York City, the State of New York, United States of America in accordance with the Rules of Arbitration of the International Chamber of Commerce. The award of the arbitration shall be final and binding upon the parties hereto. Judgment upon such award may be entered in any court having jurisdiction thereof. This provision shall not preclude either party from seeking injunction or other equitable relief from a court of competent jurisdiction. | |
16) | This Agreement may be executed in one or more counterparts, each of which is an original, but taken together constituting one and the same instrument. Execution of a facsimile copy shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature. |
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* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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* | Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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