================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
KERAVISION, INC.
(Name of Issuer)
Common Stock
$.001 PAR VALUE
(Title of Class of Securities)
------------
49206110
(CUSIP Number)
Donaldson, Lufkin & Jenrette, Inc.
(Name of Persons Filing Statement)
Arthur S. Zuckerman
Donald, Lufkin & Jenrette
277 Park Avenue
New York, New York 10172
(212) 892-4866
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
June 12, 1998
(Date of Event which Requires Filing of
this Statement)
------------
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this Schedule
13D, and is filing this statement because of Rule 13d-1(b)(3) or (4), check
the following: [ ]
================================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 1 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sprout Capital VIII, L.P.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 2 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Associates VIII, L.P.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 3 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Capital Associates VIII, Inc.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 4 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Kroon 1994 Limited Partnership
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CT
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 5 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patrick J. Boroian
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 6 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Phillippe O. Chambon
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 -See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 7 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Robert E. Curry
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 8 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Robert Finzi
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 9 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Keith B. Geeslin
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 10 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Kathleen D. LaPorte
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 11 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Scott F. Meadow
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 12 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Arthur S. Zuckerman
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 13 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stephen Diamond
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 14 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Janet A. Hickey
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 15 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
LaPorte Investments, L.P.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CA
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 16 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Brian LaPorte
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 17 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Richard E. Kroon
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 18 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Mary Jane Kroon
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,270,860
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,270,860
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,270,860 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 19 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Capital Corporation
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,372,836
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,372,836
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,372,836 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.6% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 20 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donaldson, Lufkin & Jenrette, Inc.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,500,000
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,500,000
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,500,000 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.5% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC, CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 21 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Equitable Companies Incorporated
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 1,500,000
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,500,000
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,500,000 - See Item 5
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.5% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO, HC
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 22 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,500,000 - See Item 5 (not to be construed as an admission of
beneficial ownership)
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.5% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 23 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Finaxa
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,500,000 - See Item 5 (not to be construed as an admission of
beneficial ownership)
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.5% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 24 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances I.A.R.D. Mutuelle
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,500,000 - See Item 5 (not to be construed as an admission of
beneficial ownership)
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.5% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 25 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances Vie Mutuelle
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,500,000 - See Item 5 (not to be construed as an admission of
beneficial ownership)
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.5% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 26 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Courtage Assurance Mutuelle
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,500,000 - See Item 5 (not to be construed as an admission of
beneficial ownership)
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.5% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 27 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Conseil Vie Assurance Mutuelle
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,500,000 - See Item 5 (not to be construed as an admission of
beneficial ownership)
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.5% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 28 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Claude Bebear, as AXA Voting Trustee
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,500,000 - See Item 5 (not to be construed as an admission of
beneficial ownership)
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.5% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 29 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patrice Garnier, as AXA Voting Trustee
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,500,000 - See Item 5 (not to be construed as an admission of
beneficial ownership)
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.5% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
SCHEDULE 13D
- ------------------------- ------------------------
CUSIP No. 49206110 Page 30 of 60 Pages
- ------------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Henri de Clermont - Tonnerre, as AXA Voting Trustee
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
- -------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
-----------------------------------------------------
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON -----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,500,000 - See Item 5 (not to be construed as an admission of
beneficial ownership)
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.5% - See Item 5
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
===============================================================================
Item 1. Security and Issuer.
The class of equity securities to which this statement relates
is the common stock, $.001 par value per share (the "Shares"), of KeraVision,
Inc., a Delaware corporation (the "Company"). The principal executive offices
of the Company are located at 48630 Milmont Drive, Fremont, California 94538.
Item 2. Identity and Background.
This Schedule 13D is being filed jointly on behalf of the
following persons (collectively, the "Reporting Persons"): (1) Sprout Capital
VIII, L.P., a Delaware Limited Partnership (the "Sprout Fund"); (2) DLJ
Associates VIII, L.P., a Delaware Limited Partnership ("DLJ VIII"); (3) DLJ
Capital Associates VIII, Inc. ("DLJCA VIII"); (4) The Kroon 1994 Limited
Partnership, a Connecticut Limited Partnership ("Kroon"); (5) Patrick J.
Boroian; (6) Philippe O. Chambon; (7) Robert E. Curry; (8) Robert Finzi; (9)
Keith B. Geeslin; (10) Kathleen D. LaPorte; (11) Scott F. Meadow; (12) Arthur
S. Zuckerman; (13) Stephen Diamond; (14) Janet A. Hickey; (15) LaPorte
Investments, L.P., a California Limited Partnership; (16) Brian LaPorte; (17)
Richard E. Kroon; (18) Mary Jane Kroon; (19) DLJ Capital Corporation, a
Delaware Corporation ("DLJCC"); (20) Donaldson, Lufkin & Jenrette, Inc., a
Delaware Corporation ("DLJ"); (21) The Equitable Companies Incorporated, a
Delaware corporation ("EQ"); (22) AXA, a societe anonyme organized under
the laws of France ("AXA"); (23) Finaxa, a societe anonyme organized under the
laws of France; (24) AXA Assurances I.A.R.D. Mutuelle, a mutual insurance
company organized under the laws of France; (25) AXA Assurances Vie Mutuelle, a
mutual insurance company organized under the laws of France; (26) AXA Courtage
Assurance Mutuelle (formerly known as Uni Europe Assurance Mutuelle), a mutual
insurance company organized under the laws of France; (27) AXA Conseil Vie
Assurance Mutuelle (formerly known as Alpha Assurances Vie Mutuelle), a mutual
insurance company organized under the laws of France, and (28) Claude Bebear,
Patrice Garnier and Henri de Clermont-Tonnerre, trustees (the "AXA Voting
Trustees") of a voting trust (the "AXA Voting Trust") established pursuant to a
Voting Trust Agreement by and among AXA and the AXA Voting Trustees dated as of
May 12, 1992, and as amended, January 22, 1997.
DLJ VIII, DLJCA VIII, DLJCC and DLJ are collectively referred
to as the "DLJ Entities".
Kroon, Patrick J. Boroian, Philippe O. Chambon, Robert E.
Curry, Robert Finzi, Keith B. Geeslin, Kathleen D. LaPorte, Scott F. Meadow,
Arthur S. Zuckerman, Stephen Diamond, Janet A. Hickey, LaPorte Investments,
L.P., Brian LaPorte, Richard E. Kroon and Mary Jane Kroon are collectively
referred to as the "General Partners".
The Sprout Fund is a Delaware limited partnership which makes
investments for long term appreciation. DLJCC is the managing general partner
of the Sprout Fund. DLJCC makes all of the investment decisions on behalf of
the Sprout Fund.
DLJ VIII is a Delaware limited partnership which makes
investments for long term appreciation. DLJCA VIII is the general partner of
DLJ VIII. DLJCA VIII makes all of the investment decisions on behalf of DLJ
VIII.
DLJCA VIII is a Delaware corporation formed to make investments
for long term appreciation. As the general partner of DLJ VIII, DLJCA VIII
makes all of the investment decisions on behalf of DLJ VIII. DLJCA VIII is a
wholly owned subsidiary of DLJCC.
Kroon is a Connecticut limited partnership which makes
investments for long term appreciation. Kroon is one of the general partners
of DLJ VIII.
Patrick J. Boroian is a general partner of DLJ VIII and is a
citizen of the United States. He is employed by Sprout Group and his
principal occupation is venture capital investing.
Philippe O. Chambon is a general partner of DLJ VIII and is a
citizen of France. He is employed by Sprout Group and his principal
occupation is venture capital investing.
Robert E. Curry is a general partner of DLJ VIII and is a
citizen of the United States. He is employed by Sprout Group and his
principal occupation is venture capital investing.
Robert Finzi is a general partner of DLJ VIII and is a citizen
of the United States. He is employed by Sprout Group and his principal
occupation is venture capital investing.
Keith B. Geeslin is a general partner of DLJ VIII and is a
citizen of the United States. He is employed by Sprout Group and his
principal occupation is venture capital investing.
Kathleen D. LaPorte is a general partner of LaPorte
Investments, L.P. and is a citizen of the United States. She is employed by
Sprout Group and her principal occupation is venture capital investing.
Scott F. Meadow is a general partner of DLJ VIII and is a
citizen of the United States. He is employed by Sprout Group and his
principal occupation is venture capital investing.
Arthur S. Zuckerman is a general partner of DLJ VIII and is a
citizen of the United States. He is employed by Sprout Group and his
principal occupation is venture capital investing.
Stephen Diamond is a general partner of DLJ VIII and is a
citizen of the United States. He is employed by Sprout Group and his
principal occupation is venture capital investing.
Janet A. Hickey is a general partner of DLJ VIII and is a
citizen of the United States. She is employed by Sprout Group and her
principal occupation is venture capital investing.
LaPorte Investments, L.P. is a California limited partnership
which makes investments for long term appreciation. LaPorte Investments, L.P.
is a general partner of DLJ VIII.
Brian LaPorte is a general partner of LaPorte Investments, L.P.
and a citizen of the United States. He is employed by Xilinx Inc. and his
principal occupation is manager of national account sales.
Richard E. Kroon is a general partner of Kroon and a citizen of
the United States. He is employed by Sprout Group and his principal
occupation is venture capital investing.
Mary Jane Kroon is a general partner of Kroon and a citizen of
the United States. She is not employed.
DLJCC is a Delaware corporation formed to make investments in
industrial and other companies to participate in the management of venture
capital pools. DLJCC is a wholly owned subsidiary of DLJ.
DLJ is a publicly held Delaware corporation. DLJ directly owns
all of the capital stock of DLJCC. DLJ, acting on its own behalf or through
its subsidiaries, is a registered broker/dealer and registered investment
adviser engaged in investment banking, institutional trading and research,
investment management and financial and correspondent brokerage services.
EQ is a Delaware corporation and is a holding company. As of
October 27, 1998, EQ owned, directly or indirectly, 72.18% of DLJ.
AXA is a societe anonyme organized under the laws of France and
a holding company for an international group of insurance and related financial
services companies. As of March 1, 1998, approximately 59% of the outstanding
common stock of EQ was beneficially owned by AXA. For insurance regulatory
purposes, to insure that certain indirect minority shareholders of AXA will not
be able to exercise control over EQ and certain of its insurance subsidiaries,
the voting shares of EQ capital stock beneficially owned by AXA and its
subsidiaries have been deposited into the AXA Voting Trust. For additional
information regarding the AXA Voting Trust, reference is made to the Schedule
13D filed by AXA with respect to EQ. As of October 27, 1998, AXA directly
owned 1.5% of DLJ.
Finaxa is a societe anonyme organized under the laws of France
and is a holding company. As of July 31, 1998, Finaxa controlled directly and
indirectly approximately 20.6% of the issued ordinary shares (representing
approximately 17.1% of the voting power) of AXA.
Each of AXA Assurances I.A.R.D. Mutuelle, AXA Assurances Vie
Mutuelle, AXA Courtage Assurance Mutuelle, and AXA Conseil Vie Assurance
Mutuelle (collectively, the "Mutuelles AXA") is a mutual insurance company
organized under the laws of France. Each of the Mutuelles AXA is owned by
its policy holders. As of March 1, 1998, the Mutuelles AXA, as a group,
control approximately 62.1% of the issued shares (representing
approximately 74.0% of the voting power) of Finaxa. Including the ordinary
shares owned by Finaxa, on March 1, 1998, the Mutuelles AXA directly or
indirectly controlled 24.7% of the issued ordinary shares (representing
34.8% of the voting power) of AXA. Acting as a group, the Mutuelles AXA
control AXA and Finaxa.
Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre,
the AXA Voting Trustees, exercise all voting rights with respect to the shares
of EQ capital stock beneficially owned by AXA and its subsidiaries that have
been deposited in the AXA Voting Trust. The business address, citizenship and
present principal occupation of each of the AXA Voting Trustees are set forth
on Schedule F attached hereto.
The address of the principal business and office of each of the
DLJ Entities and the Sprout Funds is 277 Park Avenue, New York, New York
10172. The address of the principal business and principal office of EQ is
1290 Avenue of the Americas, New York, New York 10104.
The address of the principal business and principal office of
each of the General Partners is:
Patrick J. Boroian--c/o Sprout Group, 277 Park Ave., New York,
NY 10172;
Philippe O. Chambon--c/o Sprout Group, 3000 Sand Hill Rd.,
Building 3, Ste. 170 Menlo Park, CA 94025;
Robert E. Curry--c/o Sprout Group, 3000 Sand Hill Rd., Building
3, Ste. 170, Menlo Park, CA 94025;
Robert Finzi--c/o Sprout Group, 3000 Sand Hill Rd., Building 3,
Ste. 170, Menlo Park, CA 94025;
Keith B. Geeslin--c/o Sprout Group, 3000 Sand Hill Rd.,
Building 3, Ste. 170, Menlo Park, CA 94025;
Kathleen D. LaPorte-- c/o Sprout Group, 3000 Sand Hill Rd.,
Building 3, Ste. 170, Menlo Park, CA 94025;
Scott F. Meadow--520 Lake Cook Road, Suite 450, Deerfield, IL
60015;
Arthur S. Zuckerman--c/o Sprout Group, 3000 Sand Hill Rd.,
Building 3, Ste. 170, Menlo Park, CA 94025;
Stephen Diamond--c/o Sprout Group, 3000 Sand Hill Rd.,
Building 3, Ste. 170, Menlo Park, CA 94025;
Janet A. Hickey--c/o Sprout Group, 277 Park Avenue, New York,
NY 10172;
LaPorte Investments, L.P.--c/o Kathleen D. LaPorte, Sprout
Group, 2000 Sand Hill Rd., Building 3, Ste. 170, Menlo Park, CA 94025;
Brian LaPorte--c/o Kathleen D. LaPorte, Sprout Group, 2000 Sand
Hill Rd., Building 3, Ste. 170, Menlo Park, CA 94025;
Richard E. Kroon--c/o Sprout Group, 277 Park Avenue, New York,
NY 10172;
Mary Jane Kroon--c/o Richard E. Kroon, Sprout Group, 277 Park
Avenue, New York, NY 10172;
The Kroon 1994 Limited Partnership--c/o R. Kroon, Sprout Group,
277 Park Ave., New York, NY 10172;
The address of the principal business and principal office of
each of AXA and the AXA Voting Trustees is 9 Place Vendome, 75001 Paris,
France; of Finaxa is 23, avenue Matignon, 75008 Paris, France; of each of AXA
Assurances I.A.R.D. Mutuelle and AXA Assurances Vie Mutuelle is 21, rue de
Chateaudun, 75009 Paris, France; of AXA Courtage Assurance Mutuelle is 26, rue
Louis-le-Grande, 75002 Paris, France; and of AXA Conseil Vie Assurance
Mutuelle is Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11, 92042
Paris La Defense, France.
The name, business address, citizenship, present principal
occupation or employment and the name and business address of any corporation
or organization in which each such employment is conducted, of each executive
officer or member, as applicable, of the Board of Directors, the Supervisory
Board or the Conseil d'Administration (French analogue of a Board of
Directors) of DLJCA VIII, DLJCC, DLJ, Equitable, AXA, Finaxa and the Mutuelles
AXA are set forth on Schedules A through J, respectively, attached hereto.
During the past five (5) years, neither any of the Reporting
Persons nor, to the best knowledge of any of the Reporting Persons, any of the
other persons listed on Schedules A through J attached hereto, has been (i)
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to United
States federal or state securities laws or finding any violation with respect
to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The general and limited partners of the Sprout Fund contributed
$10,166,880 for 1,270,860 Shares. Such price was funded through internally
generated funds.
Item 4. Purpose of Transaction.
The Sprout Fund has acquired the Shares for general investment
purposes. The Sprout Fund reserves the right to change its business intent.
Subject to the agreements discussed herein or attached hereto, and to market
conditions and other factors, the Sprout Fund or other affiliates of DLJ may
acquire or dispose of Shares from time to time in the future. The Sprout Fund
may enter into agreements with third parties relating to acquisitions of
Shares, or open market, privately negotiated or other transactions. The
Sprout Fund may enter into agreements with management of the Company relating
to acquisitions of Shares by members of management, issuances of options to
management or may affect other similar agreements or transactions. Except as
set forth herein, The Sprout Fund has no plan or proposals which relate to or
would result in any of the transactions described in subparagraphs (a) through
(j) of Item 4 of Schedule 13D.
Pursuant to the Series B Convertible Preferred Stock Purchase
Agreement (the "Purchase Agreement") dated June 12, 1998 attached hereto as
Exhibit D and incorporated by reference herein, Sprout Capital VIII, L.P. and
certain of its affiliates and the other parties signatory thereto (the
"Investors"), acquired from the Company 562,500 shares of Series B Convertible
Preferred Stock, par value $0.001 per share (the "Series B Preferred Stock")
of the Company.
In order to issue the Series B Preferred Stock, the Company
filed a Certificate of Designation (the "Certificate of Designation") with the
State of Delaware on June 12, 1998, incorporated by reference herein and
attached hereto as Exhibit E.
Pursuant to the Certificate of Designation, each share of
Series B Preferred Stock is convertible, at the option of the holder at any
time after the issuance of such share, into such number of shares of common
stock as is determined by dividing $32.00 by the Conversion Price (as defined
in the Certificate of Designation) in effect on the date such share
certificate if surrendered for conversion. The initial Conversion Price is
the lower of $8.00 or, depending on the date of conversion, the average
closing price of shares of common stock on the Nasdaq National Market for each
of the first five and last five trading days of the three months immediately
prior to such date, subject to standard anti-dilution provisions.
Each share of Series B Preferred Stock shall be converted, at
the election of the Company, into shares of common stock at the Conversion
Price in effect at the time, at any time after June 12, 2000 if at the time of
such election the average closing price per share of the common stock on the
Nasdaq National Market for the immediately preceding twenty consecutive
trading days exceeds $16.00 per share (as adjusted for splits and
combinations). Pursuant to the Purchase Agreement, the Company has reserved
2,650,000 shares of common stock for issuance upon conversion of the Series B
Preferred Stock.
Pursuant to the Certificate of Designation, the Series B
Preferred Stock is redeemable at the option of the holders at any time after
June 12, 2003. Within thirty days after receipt by the Company of a written
request (a "Redemption Election") from the holders of not less than a majority
of the then outstanding Series B Preferred Stock that all or some of the
shares of such series held by such holders be redeemed, the Company shall, to
the extent it may lawfully do so, redeem the number of shares specified in the
Redemption Election by paying in cash therefor a sum per share equal to $32.00
per share of Series B Preferred Stock (as adjusted for stock splits and
combinations) plus all accrued but unpaid dividends on such shares.
Pursuant to the Certificate of Designation, the holder of each
share of Series B Convertible Preferred Stock shall have the right to one vote
for each share of common stock into which such Preferred Stock could then be
converted, and with respect to such vote, such holder shall have full voting
rights and powers equal to the voting rights and powers equal to the voting
rights and powers of the holders of common stock. As long as 300,000 shares
of Series B Convertible Preferred Stock remain outstanding (as adjusted for
stock splits and combinations), the holders of at least a majority of the
Series B Convertible Preferred Stock shall be entitled to elect one member of
the Board of Directors of the Company.
Item 5. Interest in Securities of the Issuer.
(a) and (b) The Sprout Fund, through its ownership of 317,715
shares of Series B Convertible Preferred Stock, has acquired and, for the
purpose of Rule 13d-3 promulgated under the Exchange Act, beneficially owns
1,270,860 Shares, representing approximately 8.9% of the outstanding Shares of
the Issuer.
Except as set forth in this Item 5(a), neither the Sprout Fund,
nor any other person controlling the Sprout Fund, nor, to the best of its
knowledge, any persons named in Schedule A hereto owns beneficially any Shares.
Except as set forth in this Item 5(a), no person other than the
Sprout Fund has the right to receive or the power to direct the receipt of
dividends from or the proceeds from the sale of the Series B Preferred Stock
owned beneficially by the Sprout Fund.
Each of the General Partners may be deemed for the purposes of
Rule 13d-3 under the Act, to beneficially own directly or indirectly the
Shares owned by the Sprout Fund. Each of the General Partners disclaims
beneficial ownership of such Shares.
DLJCC, through its ownership of 4,987 shares of Series B
Convertible Preferred Stock and as managing general partner of the Sprout Fund,
as general partner of Sprout CEO Fund, L.P. (an entity that owns less than 5%
of the common stock of the Issuer) and as general partner of Sprout Venture
Capital L.P. (an entity that owns less than 5% of the common stock of the
Issuer), may be deemed for the purpose of Rule 13d-3 of the Act, to
beneficially own 1,372,836 Shares representing approximately 9.6% of the
outstanding shares of the Issuer.
DLJ, as the ultimate parent of the manager of DLJ ESC II, L.P.
(an entity that owns less than 5% of the common stock of the Issuer), may be
deemed, for the purpose of Rule 13d-3 under the Act to beneficially own
127,164 Shares representing approximately 0.9% of the outstanding Shares of
the Issuer.
In addition, as the sole stockholder of DLJCC, DLJ may be
deemed, for purposes of Rule 13d-3 under the Act, to beneficially own
indirectly the Shares that may be deemed to be owned beneficially by DLJCC.
Because of EQ's ownership interest in DLJ, EQ may be deemed, for purposes of
Rule 13d-3 under the Act, to beneficially own indirectly the Shares that may
be deemed to be beneficially owned indirectly by DLJ. Each of DLJ and EQ
disclaims beneficial ownership of the Shares.
Because of AXA's ownership interests in EQ, and the AXA
Voting Trustees' power to vote the EQ shares placed in the AXA Voting Trust,
each of AXA and the AXA Voting Trustees may be deemed, for purposes of
Rule 13d-3 under the Act, to beneficially own indirectly the Shares that EQ
may be deemed to beneficially own indirectly. Because of the direct and
indirect ownership interest in AXA of Finaxa and the Mutuelles AXA, each
of Finaxa and the Mutuelles AXA may be deemed, for purposes of Rule 13d-3
under the Act, to beneficially own indirectly the Shares that AXA may be
deemed to beneficially own indirectly. AXA, Finaxa, the Mutuelles AXA, and
the AXA Voting Trustees expressly disclaim beneficial ownership of any of
the Shares.
(c) No transactions in the Shares have been effected since
October 15, 1998 by the Sprout Fund, any other person controlling the Sprout
Fund, or to the best of its knowledge, any of the persons named in Schedules
A-K.
(d) Inapplicable.
(e) Inapplicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
See responses to items 4 and 5.
The Company and the Investors have entered into an Investors'
Rights Agreement, attached hereto as Exhibit F and incorporated by reference,
which grants the Investors certain rights with respect to registration under
the Securities Act of 1933, as amended. Under the terms of the Investors'
Rights Agreement, within thirty days of the date of the Investors' Rights
Agreement (June 12, 1998), the Company was obligated to file with the SEC a
registration statement on Form S-3 covering all of the Registrable Securities.
Registrable Securities are defined as (i) the shares of common stock issuable
or issued upon conversion of the Series B Preferred Stock and (ii) any shares
of common stock of the Company issued as or by way of a dividend, a stock
split or other distribution with respect to, or in exchange for or in
replacement of, the shares listed in (i) or the Series B Preferred Stock or
any shares of common stock of the Company issued in connection with a
combination of shares, reclassification, recapitalization, merger,
consolidation or reorganization with respect to the shares listed in (i) or
the Series B Preferred Stock. The Company filed a registration statement on
Form S-3 covering the Registrable Securities on July 13, 1998.
The Investors' Rights Agreement also grants "piggy-back" rights
to the Investors to participate in certain registration statements filed by
the Company. All registration rights terminate after the earlier of (i) two
years after the date of the Investors' Rights Agreement or (ii) such time as
Rule 144 or another similar exemption under the Securities Act is available
for the sale of all of such Holder's shares during a three month period
without registration.
The Investors' Rights Agreement contains covenants regarding
the transfer of the Registrable Securities. The Company grants each Investor
a right of first offer with respect to future sales by the Company of its
shares. An investor who chooses to exercise the right of first offer may
designate as purchasers under such right itself or its partners or affiliates
in such proportions as it deems appropriate. Each time the Company proposes
to offer any shares of, or securities convertible into or exercisable for any
shares of, any class of its capital stock, the Company shall first make an
offering of such shares to each Investor who has exercised its option to
purchase. This right of first offer terminates (i) with respect to any
Investor whose shares of Series B Convertible Preferred Stock are converted
into shares of common stock of the Company, or (ii) when the Company shall
sell, convey, or otherwise dispose of or encumber all or substantially all of
its property or business or emerge into or consolidate with any other
corporation (other than a wholly-owned subsidiary corporation) or effect any
other transaction or series of related transactions in which more than fifty
percent (50%) of the voting power of the Company is disposed of.
Except for the Agreements described in this Schedule 13D, to
the best knowledge of the Sprout Fund, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) between the persons
enumerated in Item 2, and any other person, with respect to any securities of
the Issuer, including, but not limited to, transfer or voting of any of the
securities, finder's fees, joint ventures, loan or option arrangements, puts
or calls, guarantees or profits, division of profits or loss, or the giving or
withholding of proxies.
A copy of each of the Series B Convertible Preferred Stock
Purchase Agreement dated as of June 12, 1998 and the Investors' Rights
Agreement dated as of June 12, 1998 are attached hereto as Exhibits D and F,
respectively, and are incorporated herein by reference. The summaries of the
terms of the Series B Convertible Preferred Stock Purchase Agreement dated as
of June 12, 1998 and the Investors' Rights Agreement dated as of June 12, 1998
set forth herein are qualified in their entirety by reference to Exhibits D
and F, respectively.
Item 7. Material to be Filed as Exhibits.
SCHEDULE A Item 2 information for executive officers and
directors of DLJ Capital Associates VIII, Inc.
SCHEDULE B Item 2 information for executive officers and
directors of DLJ Capital Corporation
SCHEDULE C Item 2 information for executive officers and
directors of Donaldson, Lufkin & Jenrette, Inc.
SCHEDULE D Item 2 information for executive officers and
directors of The Equitable Companies Incorporated
SCHEDULE E Item 2 information for executive officers and
directors of AXA
SCHEDULE F Item 2 information for executive officers and
directors of FINAXA
SCHEDULE G Item 2 information for executive officers and
directors of AXA Assurances I.A.R.D. Mutuelle
SCHEDULE H Item 2 information for executive officers and
directors of AXA Assurances Vie Mutuelle
SCHEDULE I Item 2 information for executive officers and
directors of AXA Courtage Assurance Mutuelle
SCHEDULE J Item 2 information for executive officers and
directors of AXA Conseil Vie Assurance Mutuelle.
Exhibit A Joint Filing Agreement among the Reporting Persons
Exhibit B Powers of Attorney for Arthur S. Zuckerman.
Exhibit C Powers of Attorney for Alvin H. Fenichel.
Exhibit D Series B Convertible Preferred Stock Purchase
Agreement dated as of June 12, 1998.
Exhibit E Certificate of Designation of Rights, Preferences
and Privileges of Series B Convertible Preferred
Stock of KeraVision, Inc., as filed with the
Secretary of State of the State of Delaware on June
12, 1998.
Exhibit F Investors' Rights Agreement dated as of June 12,
1998.
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
99.A Joint Filing Agreement among the Reporting Persons
99.B Powers of Attorney for Arthur S. Zuckerman.
99.C Powers of Attorney for Alvin H. Fenichel.
99.D Series B Convertible Preferred Stock Purchase
Agreement dated as of June 12, 1998.
99.E Certificate of Designation of Rights, Preferences
and Privileges of Series B Convertible Preferred
Stock of KeraVision, Inc., as filed with the
Secretary of State of the State of Delaware on June
12, 1998.
99.F Investors' Rights Agreement dated as of June 12, 1998.
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
Sprout Capital VIII, L.P.
By DLJ Capital Corporation,
as Managing General Partner
By: /s/ Marjorie S. White
---------------------------------------
Name: Marjorie S. White
Title: Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
DLJ Associates VIII, L.P.
By DLJ Capital Associates VIII, Inc.
as General Partner
By: /s/ Marjorie S. White
---------------------------------------
Name: Marjorie S. White
Title: Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: December 30, 1998
DLJ Capital Associates VIII, Inc.
By: /s/ Marjorie S. White
---------------------------------------
Name: Marjorie S. White
Title: Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
The Kroon 1994 Limited Partnership
By Richard E. Kroon
its: General Partner
By: /s/ Arthur S. Zuckerman
---------------------------------------
Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
Patrick J. Boroian
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
Philippe O. Chambon
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
Robert E. Curry
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief of
the undersigned, the undersigned certifies that the information set forth in
this statement is true, complete and correct.
Date: December 30, 1998
Robert Finzi
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
Keith B. Geeslin
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
Kathleen D. LaPorte
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
Scott F. Meadow
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
Arthur S. Zuckerman
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
Stephen Diamond
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
Janet A. Hickey
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
LaPorte Investments, L.P.
By: Kathleen LaPorte
as General Partner
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
Title: Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
Brian LaPorte
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
Richard E. Kroon
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
Mary Jane Kroon
By: /s/ Arthur S. Zuckerman
---------------------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: December 30, 1998
DLJ Capital Corporation
By: /s/ Marjorie S. White
---------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: December 30, 1998
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Marjorie S. White
---------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
The Equitable Companies Incorporated
By: /s/ Alvin H. Fenichel
---------------------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and
Controller
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: December 30, 1998
AXA
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
AXA Conseil Vie Assurance Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA Voting
Trustee
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
---------------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
Schedule A
Executive Officers and Directors
of
DLJ Capital Associates VIII, Inc.
The names of the Directors and the names and titles of the
Executive Officers of DLJ Capital Associates VII, Inc. ("DLJCA") and their
business addresses and principal occupations are set forth below. If no
address is given, the Director's or Executive Officer's business address is
that of DLJCA at 277 Park Avenue, New York, New York 10172. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
DLJCA and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
------------------------ -----------------------------------------
* Richard E. Kroon President and Chief Executive Officer
Arthur Zuckerman Vice President
* Marjorie S. White Secretary; Vice President and Secretary,
Donaldson, Lufkin & Jenrette, Inc.
- ------------------
* Director
Schedule B
Executive Officers and Directors
of
DLJ Capital Corporation
The names of the Directors and the names and titles of the
Executive Officers of DLJ Capital Corporation ("DLJCC") and their business
addresses and principal occupations are set forth below. Each Director's or
Executive Officer's business address is that of DLJCC at 277 Park Avenue, New
York, New York 10172. Unless otherwise indicated, each occupation set forth
opposite an individual's name refers to DLJCC and each individual is a United
States citizen.
Name, Business Address Present Principal Occupation
------------------------ --------------------------------------------
* Richard E. Kroon President and Chief Executive Officer
* Anthony F. Daddino Vice President; Executive Vice President and
Chief Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Secretary; Vice President and Secretary,
Donaldson, Lufkin & Jenrette, Inc.
- ------------------
* Director
Schedule C
Executive Officers and Directors
of
Donaldson, Lufkin & Jenrette, Inc.
The names of the Directors and the names and titles of the
Executive Officers of Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and their
business addresses and principal occupations are set forth below. If no
address is given, the Director's or Executive Officer's business address is
that of DLJ at 277 Park Avenue, New York, New York 10172. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
DLJ and each individual is a United States citizen.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
------------------------ ------------------------------------------------------
<S> <C> <C>
* John S. Chalsty Chairman
* Joe L. Roby Chief Executive Officer and President
* Henri de Castries (1) Senior Executive Vice President Financial Services and
AXA Life Insurance Activities U.S. & U.K., AXA
23, avenue Matignon
75008 Paris, France
* Denis Duverne (1) Senior Vice President - International Life, AXA
AXA
23, avenue Matignon
75008 Paris, France
* Louis Harris Chairman and Chief Executive Officer, LH Research
LH Research (research)
152 East 38th Street
New York, New York 10016-2605
* Michael Hegarty Vice Chairman and Chief Operating Officer, The
The Equitable Life Assurance Society Equitable Companies Incorporated; President and Chief
of the United States Operating Officer, The Equitable Life Assurance
1290 Avenue of the Americas Society of the United States
New York, NY 10019
* Henri G. Hottingeur (2) Chairman and Chief Executive Officer, Banque
Banque Hottingeur Hottingeur (banking)
38, rue de Provence
75009 Paris, France
* W. Edwin Jarmain (3) President, Jarmain Group Inc. (private investment
Jarmain Group Inc. holding company)
Suite 2525, Box 36
121 King Street, West
Toronto, Ontario
M5H 3T9 Canada
* Francis Jungers Retired
19880 NW Nestucca Drive
Portland, Oregon 97229
* Edward D. Miller President and Chief Executive Officer,
1290 Avenue of the Americas The Equitable Companies Incorporated
New York, New York 10019
* W. J. Sanders, III Chairman and Chief Executive Officer, Advanced
Advanced Micro Devices, Inc. Micro Devices, Inc.
901 Thompson Place
Sunnyvale, CA 94086
* Stanley B. Tulin Executive Vice President and Chief Financial Officer,
The Equitable Companies Incorporated The Equitable Companies Incorporated
1290 Avenue of the Americas
New York, NY 10019
* John C. West Retired
Bothea, Jordan & Griffin
23B Shelter Cove
Hilton Head Island, SC 29928
* Hamilton E. James Managing Director
* Richard S. Pechter Managing Director
* Theodore P. Shen Managing Director
* Anthony F. Daddino Executive Vice President and Chief Financial Officer
- ------------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of Canada
(3) Citizen of Switzerland
</TABLE>
Schedule D
Executive Officers and Directors
of
The Equitable Companies Incorporated
The names of the Directors and the names and titles of the
Executive Officers of The Equitable Companies Incorporated ("EQ") and their
business addresses and principal occupations are set forth below. If no
address is given, the Director's or Executive Officer's business address is
that of EQ at 1290 Avenue of the Americas, New York, New York 10104. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to EQ and each individual is a United States citizen.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
------------------------ -----------------------------------------------------
<S> <C> <C>
* Claude Bebear (1) Chairman of the Executive Board, AXA
AXA
23, avenue Matignon
75008 Paris, France
* John S. Chalsty Chairman of the Board, Donaldson, Lufkin &
Donaldson, Lufkin & Jenrette, Inc. Jenrette, Inc.
277 Park Avenue
New York, NY 10172
* Francoise Colloc'h (1) Senior Executive Vice President, Group Human
AXA Resources and Communications, AXA
23, avenue Matignon
75008 Paris, France
* Henri de Castries (1) Vice Chairman of the Board; Senior Executive Vice
AXA President, Financial Services and Life Insurance
23, avenue Matignon Activities, AXA
75008 Paris, France
* Joseph L. Dionne Chairman of the Board, The McGraw-Hill Companies
The McGraw-Hill Companies (publishing)
1221 Avenue of the Americas
New York, NY 10020
* William T. Esrey Chairman of the Board and Chief Executive Officer,
Sprint Corporation Sprint Corporation (telecommunications)
P.O. Box 11315
Kansas City, MO 64112
* Jean-Rene Fourtou (1) Chairman of the Board and Chief Executive Officer,
Rhone-Poulenc S.A. Rhone-Poulenc S.A. (manufacturer of chemicals and
25 quai Paul Doumer agricultural products)
92408 Courbevoie Cedex
France
* Jacques Friedmann (1) Chairman of the Supervisory Board,
AXA AXA
9, Place Vendome
75001 Paris
France
Robert E. Garber Executive Vice President and General Counsel;
Executive Vice President and General Counsel, The
Equitable Life Assurance Society of the United States
* Donald J. Greene, Esq. Counselor-at-Law, Partner, LeBoeuf, Lamb, Greene
LeBoeuf, Lamb, Greene & MacRae, L.L.P. & MacRae, L.L.P. (law firm)
125 West 55th Street
New York, NY 10019
* Anthony J. Hamilton (2) Group Chairman and Chief Executive Officer, Fox-Pitt,
35 Wilson Street Kelton Group Limited (finance)
London, England EC2M 2SJ
* John T. Hartley Retired Chairman and Chief Executive Officer,
Harris Corporation currently Director, Harris Corporation (manufacturer
1025 Nasa Boulevard of electronic, telephone and copying systems)
Melbourne, FL 32919
* Michael Hegarty Vice Chairman of the Board and Chief Operating
The Equitable Life Assurance Society Officer, The Equitable Companies Incorporated;
of the United States President and Chief Operating Officer, The Equitable
1290 Avenue of the Americas Life Assurance Society of the United States
New York, NY 10019
* John H. F. Haskell, Jr. Director and Managing Director, Warburg Dillon
Warburg Dillon Read LLC Read LLC (investment banking firm)
535 Madison Avenue
New York, NY 10022
* Mary R. (Nina) Henderson President, Bestfoods Grocery (formerly CPC
CPC Specialty Markets Group Specialty Markets Group of CPC International, Inc.)
700 Sylvan Avenue (food manufacturer)
Englewood, NJ 07632
* W. Edwin Jarmain (3) President, Jarmain Group Inc. (private investment
Jarmain Group Inc. holding company)
Suite 2525
121 King Street West
Toronto, Ontario M5H 3T9
Canada
* Edward D. Miller President and Chief Executive Officer; Chairman of
the Board and Chief Executive Officer, The Equitable
Life Assurance Society of the United States
Peter D. Noris Executive Vice President and Chief Investment
Officer; Executive Vice President and Chief
Investment Officer, The Equitable Life Assurance
Society of the United States
* Didier Pineau-Valencienne(1) Chairman and Chief Executive Officer, Schneider
64-70, avenue Jean Baptiste Clement S.A. (electric equipment)
92646 Boulogne Cedex, France
* George J. Sella, Jr. Retired Chairman, President and Chief Executive
American Cyanamid Company Officer, American Cyanamid Company (manufacturer
P.O. Box 397 of pharmaceutical products and agricultural products)
Newton, NJ 07860
Jose Suquet Executive Vice President; Senior Executive Vice
President and Chief Distribution Officer; The
Equitable Life Assurance Society of the United States
Stanley B. Tulin Executive Vice President and Chief Financial Officer;
Vice Chairman of the Board and Chief Financial
Officer, The Equitable Life Assurance Society of the
United States
* Dave H. Williams Chairman and Chief Executive Officer, Alliance
Alliance Capital Capital Management Corp. (investment adviser)
Management Corporation
1345 Avenue of the Americas
New York, NY 10105
- ------------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of United Kingdom
(3) Citizen of Canada
</TABLE>
Schedule E
Executive Officers and Member of Supervisory Board
of
AXA
The names and titles of the Executive Officers and Supervisory
Board of AXA and their business addresses and principal occupations are set
forth below. If no address is given, the Member's business is 23, avenue
Matignon, 75008 Paris, France. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to AXA and each individual is a
citizen of the Republic of France.
Members of the Executive Committee
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
------------------------ -----------------------------------------------------
<S> <C> <C>
* Claude Bebear Chairman of the Executive Board
Donald Brydon (1) Senior Executive Vice President; Chief Executive
Officer, AXA Investment Managers
Henri de Castries Senior Executive Vice President, Financial Services
and Insurance Activities (U.S. and U.K.)
John Chalsty (2) Senior Executive Vice President; Chairman and Chief
Executive Officer, Donaldson, Lufkin & Jenrette, Inc.
(investment banking)
Francoise Colloc'h Senior Executive Vice President, Group Human
Resources and Communications
Jean-Pierre Gerard (3) Senior Executive Vice President; Chief Executive
Officer, Royale Belge (insurance)
Michael Hart (1) Senior Executive Vice President; Chief Executive
Officer, Sun Life & Provincial Holdings PLC
(insurance)
Denis Kessler Senior Executive Vice President, Insurance Activities
outside France, U.K. and the U.S.
Claas Kleyboldt (4) Senior Executive Vice President; Chairman of the
Executive Board of Colonia Konzern AG (insurance)
* Gerard de La Martiniere Senior Executive Vice President, Chief Financial
Officer
Jean-Louis Meunier Senior Executive Vice President, Chief Underwriting
Officer
Edward D. Miller (2) President and Chief Executive Officer, The Equitable
The Equitable Companies Incorporated Companies Incorporated and The Equitable Life
1290 Avenue of the Americas Assurance Society of the United States
New York, NY 10019
* Michel Pinault Senior Executive Vice President, Group
Administration
Claude Tendil Senior Executive Vice President, Chairman and Chief
Executive Officer - French Insurance Activities,
international risks, transnational insurance projects
and information systems policy
Geoff Tomlinson (5) Senior Executive Vice President; Managing Director,
National Mutual Holdings (insurance)
Dave H. Williams (2) Senior Executive Vice President; Chairman and Chief
Alliance Capital Management Corp. Executive Officer, Alliance Capital Management
1345 Avenue of the Americas Corporation (investment adviser)
New York, NY 10105
Mark Wood Senior Executive Vice President, Managing Director
Sun Life & Provincial Holdings
- ------------------
* Member of Executive Board
</TABLE>
Members of the Supervisory Board
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
- ---------------------------------------- ---------------------------------------------------------------------
<S> <C>
Jacques Friedmann Chairman of the Supervisory Board
9 Place Vendome
75008 Paris, France
Jean-Louis Beffa Chairman and Chief Executive Officer, Compagnie
"Les Miroirs" de St. Gobain (industry)
Cedex 27
92096 Paris La Defense, France
Antoine Bernheim General Partner, Lazard Freres et Cie (investment
121, Boulevard Haussman banking); Chairman, Assicurazioni Generali S.p.A.
75008 Paris, France (insurance)
Jacques Calvet Chairman of the Executive Board, Peugeot S.A. (auto
75, avenue de la Grande Armee manufacturer)
75116 Paris, France
Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis SCA
90, rue de Miromesnil (transportation)
75008 Paris, France
David Dautresme General Partner, Lazard Freres et Cie (investment
121, Boulevard Haussman banking)
75008 Paris, France
Guy Dejouany Honorary Chairman, Compagnie General des Eaux
52, rue d'Anjou (industry and services)
75008 Paris, France
Paul Desmarais (7) Chairman and Chief Executive Officer, Power
751, Square Victoria Corporation of Canada (industry and services)
Montreal Quebec
H3Y 3J7 Canada
Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-Poulenc S.A. (industry)
25, quai Paul Doumer
92408 Courbevoie Cedex
France
Michel Francois-Poncet Chairman of the Supervisory Board, Compagnie
3, rue d'Autin Financiere de Paribas (financial services and banking)
75002 Paris, France
Patrice Garnier Retired
Latreaumont
76360 Baretin, France
Anthony J. Hamilton (1) General Partner, Fox-Pitt, Kelton Group Limited
35 Wilson Street (finance)
London, England EC2M 2SJ
Henri Hottinguer (6) Chairman and Chief Executive Officer, Banque
38, rue de Provence Hottinguer (banking)
75009 Paris, France
Richard H. Jenrette (2) Senior Advisor, Donaldson, Lufkin & Jenrette, Inc.
c/o Donaldson, Lufkin & Jenrette, Inc. (investment banking)
277 Park Avenue
New York, New York 10172
Henri Lachmann Chairman and Chief Executive Officer, Strafor
56, rue Jean Giraudoux Facom (office furniture)
67000 Strasbourg, France
Gerard Mestrallet Chairman and Chief Executive Officer, Compagnie
1, rue d'Astorg de Suez (finance)
75008 Paris, France
Friedel Neuber Chairman of the Executive Board, WestDeutsche
Girozentrade Herzogstrasse 15 Landesbank (banking)
D40127 Dusseldorf, Germany
Alfred von Oppenheim (4) Chairman, Bank Oppenheim (banking)
Konsortium Oppenheim
Unter Sachsenrausen 4
50667 Koln, Germany
Michel Pebereau Chairman and Chief Executive Officer, Banque
16, Boulevard des Italiens Nationale de Paris (banking)
75009 Paris, France
Didier Pineau-Valencienne Chairman and Chief Executive Officer, Schneider
64-70, avenue Jean Baptiste Clement S.A. (electric equipment)
92646 Boulogne Cedex, France
Bruno Roger General Partner, Lazard Freres & Cie (investment
21, Boulevard Hausmann banking)
75008 Paris, France
Simone Rozes First Honorary President, Cour de Cassation
2, rue Villaret de Joyeuse (government)
75017 Paris, France
- ----------------
(1) Citizen of the United Kingdom
(2) Citizen of the United States of America
(3) Citizen of Belgium
(4) Citizen of Germany
(5) Citizen of Australia
(6) Citizen of Switzerland
(7) Citizen of Canada
</TABLE>
Schedule F
Executive Officers and
Members of Conseil d'Administration
of
FINAXA
The names of the Members of Conseil d'Administration and the
names and titles of the Executive Officers of Finaxa and their business
addresses and principal occupations are set forth below. If no address is
given, the Member's or Executive Officer's business address is that of Finaxa
at 23, avenue Matignon, 75008 Paris, France. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to Finaxa and each
individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------------------- ---------------------------------------------------------------------
<S> <C> <C>
* Claude Bebear Chairman and Chief Executive Officer; Chairman of
the Executive Board, AXA
* Henri de Castries Senior Executive Vice President, Financial Services
and Life Insurance Activities (U.S. & U.K.), AXA
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis SCA
90, rue de Miromesnil (transportation)
75008 Paris, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-Poulenc S.A. (industry)
25, quai Paul Doumer
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Hottinguer (1) Chairman and Chief Executive Officer, Banque
38, rue de Provence Hottinguer (banking)
75009 Paris, France
* Paul Hottinguer (1) Assistant Chairman and Chief Executive Officer,
38, rue de Provence Banque Hottinguer (banking)
75009 Paris, France
* Henri Lachmann Chairman and Chief Executive Officer, Strafor
56, rue Jean Giraudoux Facom (office furniture)
67000 Strasbourg, France
* Andre Levy-Lang Chief Executive Officer, Paribas
3, rue d'Antin (banking)
75002 Paris, France
Gerard de la Martiniere Chief Executive Officer; Senior Executive Vice
President, Chief Financial Officer, AXA
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
- ------------------
* Member, Conseil d'Administration
(1) Citizen of Switzerland
</TABLE>
Schedule G
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES I.A.R.D. MUTUELLE
The names of the Members of Conseil d'Administration and the
names and titles of the Executive Officers of AXA Assurances I.A.R.D. Mutuelle
and their business addresses and principal occupations are set forth below. If
no address is given, the Member's or Executive Officer's business address is
that of AXA Assurances I.A.R.D. Mutuelle at 21, rue de Chateaudun, 75009 Paris,
France. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to AXA Assurances I.A.R.D. Mutuelle and each
individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
------------------------------------ ---------------------------------------------------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA
75008 Paris, France
Jean-Luc Bertozzi Executive Officer
* Jean-Pierre Chaffin Manager, Federation de la Metallurgie (industry)
5, rue la Bruyere
75009 Paris, France
* Gerard Coutelle Retired
* Henri de Castries Senior Executive Vice President, Financial Services
23, avenue Matignon and Life Insurance Activities (U.S. & U.K.), AXA
75008 Paris, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-Poulenc S.A. (industry)
25, quai Paul Doumer
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Chairman and Chief Executive Officer, Strafor
56, rue Jean Giraudoux Facom (office furniture)
67000 Strasbourg, France
* Francois Richer Retired
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Claude Tendil Chief Executive Officer; Senior Executive Vice
President, French Insurance Activities, AXA
* Nicolas Thiery Chairman and Chief Executive Officer,
6 Cite de la Chapelle Etablissements Jaillard (management consulting)
75018 Paris, France
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti France
14, boulevard Industriel S.A. (coffee importing and processing)
76301 Sotteville les Rouen, France
- ------------------
* Member, Conseil d'Administration
</TABLE>
Schedule H
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the
names and titles of the Executive Officers of AXA Assurances Vie Mutuelle and
their business Addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Assurances Vie Mutuelle at 21, rue de Chateaudun, 75009 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Assurances Vie Mutuelle and each individual is a citizen of
the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
------------------------------------ ---------------------------------------------------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board, AXA
23, avenue Matignon
75008 Paris, France
Jean-Luc Bertozzi Executive Officer
* Jean-Pierre Chaffin Manager, Federation de la Metallurgie (industry)
5, rue la Bruyere
75009 Paris, France
* Henri de Castries Senior Executive Vice President, Financial Services
23, avenue Matignon and Life Insurance Activities (U.S. & U.K.), AXA
75008 Paris, France
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis SCA
90, rue de Miromesnil (transportation)
75008 Paris, France
* Gerard Coutelle Retired
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-Poulenc S.A. (industry)
25, quai Paul Doumer
92408 Courbevoie Cedex
France
* Henri Lachmann Vice Chairman; Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom (office furniture)
67000 Strasbourg, France
* Francois Richer Retired
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Claude Tendil Chief Executive Officer; Senior Executive Vice
President, French Insurance Activities, AXA
* Nicolas Thiery Chairman and Chief Executive Officer,
6 Cite de la Chapelle Etablissements Jaillard (management consulting)
75018 Paris, France
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti France
14, boulevard Industriel S.A. (coffee importing and processing)
76301 Sotteville les Rouen, France
- ------------------
* Member, Conseil d'Administration
</TABLE>
Schedule I
Executive Officers and
Members of Conseil d'Administration
of
AXA COURTAGE ASSURANCE MUTUELLE
The names of the Members of Conseil d'Administration and the names and titles
of the Executive Officers of AXA Courtage Assurance Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Courtage Assurance Mutuelle at 26, rue de Louis-le-Grand, 75002 Paris,
France. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to AXA Courtage Assurance Mutuelle and each
individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
----------------------------------------------- ---------------------------------------------------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board, AXA
23, avenue Matignon
75008 Paris, France
* Francis Cordier Chairman and Chief Executive Officer, Group Demay
rue Nicephore Niepce BP 232 76304 Sotteville Lesieur (food industry)
Les Rouen, France
* Gerard Coutelle Retired
* Henri de Castries Senior Executive Vice President, Financial Services
23, avenue Matignon and Life Insurance Activities (U.S. & U.K.), AXA
75008 Paris, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-Poulenc S.A. (industry)
25, quai Paul Doumer
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Vice Chairman; Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom (office furniture)
67000 Strasbourg, France
* Francis Magnan Chairman and Chief Executive Officer, Compagnie
50, boulevard des Dames Daher (air and sea transportation)
13002 Marseille, France
* Jean de Ribes Chairman and Chief Executive Officer, Banque
13, rue Notre Dame des Victoires 75008 Paris, Rivaud (banking)
France
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Jean-Paul Saillard Manager, AXA
23, avenue Matignon
75008 Paris, France
* Claude Tendil Chief Executive Officer; Senior Executive Vice
21, rue de Chateaudun President, French Insurance Activities, AXA
75009 Paris, France
- ----------------
* Member, Conseil d'Administration
</TABLE>
Schedule J
Executive Officers and
Members of Conseil d'Administration
of
AXA CONSEIL VIE ASSURANCE MUTUELLE
The names of the Members of Conseil d'Administration and the names and titles
of the Executive Officers of AXA Conseil Vie Assurance Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is
that of AXA Conseil Vie Assurance Mutuelle at Tour Franklin, 100/101 Terrasse
Boieldieu, Cedex 11, 92042 Paris La Defense, France. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers
to AXA Conseil Vie Assurance Mutuelle and each individual is a citizen of the
Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------------------- ---------------------------------------------------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board, AXA
23, avenue Matignon
75008 Paris, France
* Henri Brischoux Corporate Secretary; G.I.E. AXA France
21, rue de Chateaudun
75009 Paris, France
* Bernard Cornille Audit Manager, AXA Assurances
21, rue de Chateaudun
75009 Paris, France
* Henri de Castries Senior Executive Vice President, Financial Services
23, avenue Matignon and Life Insurance Activities (U.S. & U.K.), AXA
75008 Paris, France
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis SCA
90, rue de Miromesnil (transportation)
75008 Paris, France
* Claude Fath Executive Officer
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-Poulenc S.A. (industry)
25, quai Paul Doumer
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Vice Chairman; Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom (office furniture)
67000 Strasbourg, France
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Claude Tendil Chief Executive Officer; Senior Executive Vice
21, rue de Chateaudun President, French Insurance Activities, AXA
75009 Paris, France
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti France
14, boulevard Industriel S.A. (coffee importing and processing)
76301 Sotteville les Rouen,
France
- ------------------
* Member, Conseil d'Administration
</TABLE>
EXHIBIT A
Joint Filing Agreement
In accordance with Rule 13d-1(f) under the Securities Exchange
Act of 1934, as amended, each of the persons named below agrees to the joint
filing of a Statement on Schedule 13D (including amendments thereto) with
respect to the common stock, par value $.001, of KeraVision, Inc., a Delaware
corporation and further agrees that this Joint Filing Agreement be included as
an exhibit to such filings provided that, as contemplated by Section
13d-1(f)(l)(ii), no person shall be responsible for the completeness or
accuracy of the information concerning the other persons making the filing,
unless such person knows or has reason to believe that such information is
inaccurate. This Joint Filing may be executed in any number of counterparts,
all of which together shall constitute one and the same instrument.
Sprout Capital VIII, L.P.
by: DLJ Capital Corporation
its: Managing General Partner
By: /s/ Marjorie S. White
- ------------------------------
Name: Marjorie S. White
Title: Secretary
DLJ Associates VIII, L.P.
by: DLJ Associates VIII, Inc.
its: General Partner
By: /s/ Marjorie S. White
- ------------------------------
Name: Marjorie S. White
Title: Secretary
DLJ Capital Associates VIII, Inc.
By: /s/ Marjorie S. White
- ------------------------------
Name: Marjorie S. White
Title: Secretary
The Kroon 1994 Limited Partnership
by: Richard E. Kroon
its: General Partner
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
Patrick J. Boroian
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
Philippe O. Chambon
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
Robert E. Curry
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
Robert Finzi
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
Keith B. Geeslin
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
Kathleen D. LaPorte
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
Scott F. Meadow
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
Arthur S. Zuckerman
By:/s/ Arthur S. Zuckerman
- ------------------------------
Name: Arthur S. Zuckerman
Stephen Diamond
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
Janet A. Hickey
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
Brian LaPorte
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
Richard E. Kroon
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
Mary Jane Kroon
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
LaPorte Investments, L.P.
by: Kathleen D. LaPorte
its: General Partner
By: /s/ Arthur S. Zuckerman
---------------------------
Name: Arthur S. Zuckerman
Attorney-in-Fact
DLJ Capital Corporation
By: /s/ Marjorie S. White
- ------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Marjorie S. White
- ------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
The Equitable Companies Incorporated
By: /s/ Alvin H. Fenichel
- ------------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and Controller
AXA
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
AXA Conseil Vie Assurance Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA Voting Trustee
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
- ------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
EXHIBIT B
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints THOMAS E. SIEGLER, CLAIRE M. POWER and/or ARTHUR S. ZUCKERMAN as
his/her true and lawful attorney-in-fact and agent with full power of
substitution and re-substitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any and all documents relating to
any and all Securities and Exchange Commission filings which may be required,
by virtue of his/her interests in any of the various Sprout Group
Partnerships, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, thereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This power shall continue in effect until terminated in writing.
The Kroon 1994 Limited Partnership
/s/ Richard E. Kroon
----------------------------------
Richard E. Kroon
General Partner
Dated: 1/20/97
---------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints THOMAS E. SIEGLER, CLAIRE M. POWER and/or ARTHUR S. ZUCKERMAN as
his/her true and lawful attorney-in-fact and agent with full power of
substitution and re-substitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any and all documents relating to
any and all Securities and Exchange Commission filings which may be required,
by virtue of his/her interests in any of the various Sprout Group
Partnerships, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, thereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This power shall continue in effect until terminated in writing.
/s/ Patrick J. Boroian
----------------------------------
Patrick J. Boroian
Dated: 1/21/97
---------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints THOMAS E. SIEGLER, CLAIRE M. POWER and/or ARTHUR S. ZUCKERMAN as
his/her true and lawful attorney-in-fact and agent with full power of
substitution and re-substitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any and all documents relating to
any and all Securities and Exchange Commission filings which may be required,
by virtue of his/her interests in any of the various Sprout Group
Partnerships, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, thereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This power shall continue in effect until terminated in writing.
/s/ Philippe O. Chambon
----------------------------------
Philippe O. Chambon
Dated: 1/21/97
---------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints THOMAS E. SIEGLER, CLAIRE M. POWER and/or ARTHUR S. ZUCKERMAN as
his/her true and lawful attorney-in-fact and agent with full power of
substitution and re-substitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any and all documents relating to
any and all Securities and Exchange Commission filings which may be required,
by virtue of his/her interests in any of the various Sprout Group
Partnerships, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, thereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This power shall continue in effect until terminated in writing.
/s/ Robert E. Curry
----------------------------------
Robert E. Curry
Dated: 1/21/97
---------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints THOMAS E. SIEGLER, CLAIRE M. POWER and/or ARTHUR S. ZUCKERMAN as
his/her true and lawful attorney-in-fact and agent with full power of
substitution and re-substitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any and all documents relating to
any and all Securities and Exchange Commission filings which may be required,
by virtue of his/her interests in any of the various Sprout Group
Partnerships, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, thereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This power shall continue in effect until terminated in writing.
/s/ Robert Finzi
----------------------------------
Robert Finzi
Dated: 1/22/97
---------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints THOMAS E. SIEGLER, CLAIRE M. POWER and/or ARTHUR S. ZUCKERMAN as
his/her true and lawful attorney-in-fact and agent with full power of
substitution and re-substitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any and all documents relating to
any and all Securities and Exchange Commission filings which may be required,
by virtue of his/her interests in any of the various Sprout Group
Partnerships, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, thereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This power shall continue in effect until terminated in writing.
/s/ Keith B. Geeslin
----------------------------------
Keith B. Geeslin
Dated: 22 January 1997
---------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints THOMAS E. SIEGLER, CLAIRE M. POWER and/or ARTHUR S. ZUCKERMAN as
his/her true and lawful attorney-in-fact and agent with full power of
substitution and re-substitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any and all documents relating to
any and all Securities and Exchange Commission filings which may be required,
by virtue of his/her interests in any of the various Sprout Group
Partnerships, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, thereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This power shall continue in effect until terminated in writing.
/s/ Kathleen D. LaPorte
----------------------------------
Kathleen D. LaPorte
Dated: 1/28/97
---------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints THOMAS E. SIEGLER, CLAIRE M. POWER and/or ARTHUR S. ZUCKERMAN as
his/her true and lawful attorney-in-fact and agent with full power of
substitution and re-substitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any and all documents relating to
any and all Securities and Exchange Commission filings which may be required,
by virtue of his/her interests in any of the various Sprout Group
Partnerships, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, thereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This power shall continue in effect until terminated in writing.
/s/ Scott F. Meadow
----------------------------------
Scott F. Meadow
Dated: 1/21/97
---------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints MAJORIE WHITE, CLAIRE M. POWER and/or ARTHUR S.
ZUCKERMAN as its true and lawful attorney-in-fact and agent with full power
of substitution and re-substitution, for it and in its name, place and
stead, in any and all capacities, to sign any and all documents relating to
any and all Securities and Exchange Commission filings which may be
required, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as it might or could do in person, thereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This power shall continue in effect until terminated in writing.
By: /s/ Stephen M. Diamond
-----------------------------
Stephen M. Diamond
Dated: 6-23-98
---------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints THOMAS E. SIEGLER, CLAIRE M. POWER and/or ARTHUR S. ZUCKERMAN as
his/her true and lawful attorney-in-fact and agent with full power of
substitution and re-substitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any and all documents relating to
any and all Securities and Exchange Commission filings which may be required,
by virtue of his/her interests in any of the various Sprout Group
Partnerships, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, thereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This power shall continue in effect until terminated in writing.
/s/ Janet A. Hickey
----------------------------------
Janet A. Hickey
Dated: Jan. 20, 1997
---------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints MAJORIE WHITE, CLAIRE M. POWER and/or ARTHUR S. ZUCKERMAN as its
true and lawful attorney-in-fact and agent with full power of substitution and
re-substitution, for it and in its name, place and stead, in any and all
capacities, to sign any and all documents relating to any and all
Securities and Exchange Commission filings which may be required, granting
unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as it might or
could do in person, thereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
This power shall continue in effect until terminated in writing.
LaPorte Investments, L.P.
By: /s/ Kathleen D. LaPorte
-----------------------------
Kathleen D. LaPorte
General Partner
Dated: 6/22/98
---------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints MAJORIE WHITE, CLAIRE M. POWER and/or ARTHUR S. ZUCKERMAN as its
true and lawful attorney-in-fact and agent with full power of substitution and
re-substitution, for it and in its name, place and stead, in any and all
capacities, to sign any and all documents relating to any and all Securities
and Exchange Commission filings which may be required, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as it might or could do in
person, thereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
This power shall continue in effect until terminated in writing.
Brian LaPorte
By: /s/ Brian LaPorte
----------------------------------
Dated: Dec. 17, 1998
---------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints THOMAS E. SIEGLER, CLAIRE M. POWER and/or ARTHUR S. ZUCKERMAN as
his/her true and lawful attorney-in-fact and agent with full power of
substitution and re-substitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any and all documents relating to
any and all Securities and Exchange Commission filings which may be required,
by virtue of his/her interests in any of the various Sprout Group
Partnerships, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, thereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This power shall continue in effect until terminated in writing.
/s/ Richard E. Kroon
----------------------------------
Richard E. Kroon
Dated: 1/21/97
---------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints MAJORIE WHITE, CLAIRE M. POWER and/or ARTHUR S. ZUCKERMAN as its
true and lawful attorney-in-fact and agent with full power of substitution and
re-substitution, for it and in its name, place and stead, in any and all
capacities, to sign any and all documents relating to any and all Securities
and Exchange Commission filings which may be required, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as it might or could do in
person, thereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
This power shall continue in effect until terminated in writing.
Mary Jane Kroon
/s/ Mary Jane Kroon
----------------------------------
Dated: 12/17/98
---------------
EXHIBIT C
Power of Attorney
-----------------
AXA, a societe anonyme organized under the laws of the Republic of
France (the "Corporation"), hereby constitutes and appoints each of Richard
V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky,
acting singly, as the true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for the Corporation and in the
name, place and stead of the Corporation, in any and all capacities, to
execute for and on behalf of the Corporation, all Schedules 13D and
Schedules 13G as required by the Securities Exchange Act of 1934, as
amended, and any and all amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, the issuer and relevant stock exchanges
(individually, each a "Filing"); provided, however, that unless
specifically instructed in writing by the Corporation, this Power of
Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Corporation (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Corporation any Filing
with respect to (i) the Common Stock, par value $.01 per share, of The
Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Corporation hereby grants to such attorneys-in-fact and
agents of the Corporation full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the Corporation might or could, and hereby ratifies
and confirms all that said attorneys-in-fact and agents of the Corporation
or their substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 26 day of June, 1996.
AXA
By: /s/ Claude Bebear
----------------------------------
Name: Claude Bebear
Title: Chairman and CEO
Power of Attorney
-----------------
Finaxa, a societe anonyme organized under the laws of the Republic of
France (the "Corporation"), hereby constitutes and appoints each of Richard
V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky,
acting singly, as the true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for the Corporation and in the
name, place and stead of the Corporation, in any and all capacities, to
execute for and on behalf of the Corporation, all Schedules 13D and
Schedules 13G as required by the Securities Exchange Act of 1934, as
amended, and any and all amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, the issuer and relevant stock exchanges
(individually, each a "Filing"); provided, however, that unless
specifically instructed in writing by the Corporation, this Power of
Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Corporation (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Corporation any Filing
with respect to (i) the Common Stock, par value $.01 per share, of The
Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Corporation hereby grants to such attorneys-in-fact and
agents of the Corporation full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the Corporation might or could, and hereby ratifies
and confirms all that said attorneys-in-fact and agents of the Corporation
or their substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 26 day of June, 1996.
FINAXA
By: /s/ Claude Bebear
----------------------------------
Name: Claude Bebear
Title: Chairman and CEO
Power of Attorney
-----------------
AXA Assurances I.A.R.D. Mutuelle, a mutual insurance company organized
under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Corporation and in the name, place and stead of the
Corporation, in any and all capacities, to execute for and on behalf of the
Corporation, all Schedules 13D and Schedules 13G as required by the
Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in
writing by the Corporation, this Power of Attorney does not authorize any
of the above-listed attorneys-in-fact and agents of the Corporation (or any
person substituted or resubstituted therefor) to execute or file for or on
behalf of the Corporation any Filing with respect to (i) the Common Stock,
par value $.01 per share, of The Equitable Companies Incorporated, a
Delaware corporation, or (ii) the Units Representing Assignments of
Beneficial Ownership of Limited Partnership Interests in Alliance Capital
Management L.P., a Delaware limited partnership. The Corporation hereby
grants to such attorneys-in-fact and agents of the Corporation full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the
Corporation might or could, and hereby ratifies and confirms all that said
attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 26 day of June, 1996.
AXA ASSURANCES I.A.R.D. MUTUELLE
By: /s/ Claude Tendil
----------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Power of Attorney
-----------------
AXA Assurances Vie Mutuelle, a mutual insurance company organized under
the laws of the Republic of France (the "Corporation"), hereby constitutes and
appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and
Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for the Corporation
and in the name, place and stead of the Corporation, in any and all
capacities, to execute for and on behalf of the Corporation, all Schedules 13D
and Schedules 13G as required by the Securities Exchange Act of 1934, as
amended, and any and all amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, the issuer and relevant stock exchanges
(individually, each a "Filing"); provided, however, that unless specifically
instructed in writing by the Corporation, this Power of Attorney does not
authorize any of the above-listed attorneys-in-fact and agents of the
Corporation (or any person substituted or resubstituted therefor) to execute
or file for or on behalf of the Corporation any Filing with respect to (i) the
Common Stock, par value $.01 per share, of The Equitable Companies
Incorporated, a Delaware corporation, or (ii) the Units Representing
Assignments of Beneficial Ownership of Limited Partnership Interests in
Alliance Capital Management L.P., a Delaware limited partnership. The
Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 26 day of June, 1996.
AXA ASSURANCES VIE MUTUELLE
By: /s/ Claude Tendil
----------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Power of Attorney
-----------------
Uni Europe Assurance Mutuelle, a mutual insurance company organized
under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Corporation and in the name, place and stead of the
Corporation, in any and all capacities, to execute for and on behalf of the
Corporation, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and
relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power
of Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Corporation (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Corporation any Filing
with respect to (i) the Common Stock, par value $.01 per share, of The
Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 26 day of June, 1996.
UNI EUROPE ASSURANCE MUTUELLE
By: /s/ Claude Tendil
----------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Power of Attorney
-----------------
Alpha Assurances Vie Mutuelle, a mutual insurance company organized
under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Corporation and in the name, place and stead of the
Corporation, in any and all capacities, to execute for and on behalf of the
Corporation, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and
relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power
of Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Corporation (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Corporation any Filing
with respect to (i) the Common Stock, par value $.01 per share, of The
Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 26 day of June, 1996.
ALPHA ASSURANCES VIE MUTUELLE
By: /s/ Claude Tendil
----------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Power of Attorney
-----------------
Claude Bebear, as a Voting Trustee (the "Trustee"), pursuant to a Voting
Trust Agreement dated as of May 12, 1992, by and among AXA, a societe anonyme
organized under the laws of Republic of France, and the Voting Trustees
identified therein, hereby constitutes and appoints each of Richard V. Silver,
Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Trustee and in the name, place and stead of the
Trustee, in any and all capacities, to execute for and on behalf of the
Trustee, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and
relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Trustee, this Power of
Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Trustee (or any person substituted or resubstituted therefor) to
execute or file for or on behalf of the Trustee any Filing with respect to (i)
the Common Stock, par value $.01 per share, of The Equitable Companies
Incorporated, a Delaware corporation, or (ii) the Units Representing
Assignments of Beneficial Ownership of Limited Partnership Interests in
Alliance Capital Management L.P., a Delaware limited partnership. The Trustee
hereby grants to such attorneys-in-fact and agents of the Trustee full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the Trustee
might or could, and hereby ratifies and confirms all that said
attorneys-in-fact and agents of the Trustee or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Trustee, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 26 day of June, 1996.
By: /s/ Claude Bebear
----------------------------------
Name: Claude Bebear
Title: Voting Trustee
Power of Attorney
-----------------
Patrice Garnier, as a Voting Trustee (the "Trustee"), pursuant to a
Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a societe
anonyme organized under the laws of Republic of France, and the Voting Trustees
identified therein, hereby constitutes and appoints each of Richard V. Silver,
Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Trustee and in the name, place and stead of the
Trustee, in any and all capacities, to execute for and on behalf of the
Trustee, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and
relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Trustee, this Power of
Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Trustee (or any person substituted or resubstituted therefor) to
execute or file for or on behalf of the Trustee any Filing with respect to (i)
the Common Stock, par value $.01 per share, of The Equitable Companies
Incorporated, a Delaware corporation, or (ii) the Units Representing
Assignments of Beneficial Ownership of Limited Partnership Interests in
Alliance Capital Management L.P., a Delaware limited partnership. The Trustee
hereby grants to such attorneys-in-fact and agents of the Trustee full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the Trustee
might or could, and hereby ratifies and confirms all that said
attorneys-in-fact and agents of the Trustee or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Trustee, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 26 day of June, 1996.
By: /s/ Patrice Garnier
----------------------------------
Name: Patrice Garnier
Title: Voting Trustee
Power of Attorney
-----------------
Henri de Clermont-Tonnerre, as a Voting Trustee (the "Trustee"), pursuant
to a Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a
societe anonyme organized under the laws of Republic of France, and the Voting
Trustees identified therein, hereby constitutes and appoints each of Richard V.
Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly,
as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Trustee and in the name, place and
stead of the Trustee, in any and all capacities, to execute for and on behalf
of the Trustee, all Schedules 13D and Schedules 13G as required by the
Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, the
issuer and relevant stock exchanges (individually, each a "Filing"); provided,
however, that unless specifically instructed in writing by the Trustee, this
Power of Attorney does not authorize any of the above-listed attorneys-in-fact
and agents of the Trustee (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Trustee and Filing with
respect to (i) the Common Stock, par value $.01 per share, of The Equitable
Companies Incorporated, a Delaware corporation, or (ii) the Units Representing
Assignments of Beneficial Ownership of Limited Partnership Interests in
Alliance Capital Management L.P., a Delaware limited partnership. The Trustee
hereby grants to such attorneys-in-fact and agents of the Trustee full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the Trustee
might or could, and hereby ratifies and confirms all that said
attorneys-in-fact and agents of the Trustee or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Trustee, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 26 day of June, 1996.
By: /s/ Henri de Clermont-Tonnerre
----------------------------------
Name: Henri de Clermont-Tonnerre
Title: Voting Trustee
EXHIBIT D
KERAVISION, INC.
SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
June 12, 1998
TABLE OF CONTENTS
Page
1. Purchase and Sale of Preferred Stock.......................................1
1.1 Sale and Issuance of Series A Preferred Stock..........................1
1.2 Closing; Delivery......................................................1
2. Representations and Warranties of the Company..............................1
2.1 Organization, Good Standing and Qualification..........................2
2.2 Capitalization.........................................................2
2.3 Subsidiaries...........................................................3
2.4 Authorization..........................................................3
2.5 Valid Issuance of Securities...........................................4
2.6 Governmental Consents..................................................4
2.7 Litigation.............................................................4
2.8 SEC Documents; Financial Statements....................................4
2.9 Changes................................................................5
2.10 Title to Properties...................................................6
2.11 Tax Matters...........................................................7
2.12 No Material Defaults..................................................8
2.13 Patents and Trademarks................................................8
2.14 No Conflict...........................................................8
2.15 Securities Laws.......................................................8
2.16 Business..............................................................9
2.17 Certain Regulatory Matters............................................9
2.18 Registration Rights...................................................9
2.19 Disclosure............................................................9
2.20 Solvency; No Default..................................................9
2.21 Solvency; No Default..................................................9
3. Representations and Warranties of the Purchasers..........................10
3.1 Authorization.........................................................10
3.2 Purchase Entirely for Own Account.....................................10
3.3 Disclosure of Information.............................................10
3.4 Restricted Securities.................................................10
3.5 No Public Market......................................................11
3.6 Legends...............................................................11
3.7 Accredited Investor...................................................11
3.8 Foreign Investors.....................................................11
4. Conditions of the Purchasers' Obligations at Closing......................11
4.1 Representations and Warranties........................................12
4.2 Performance...........................................................12
4.3 Compliance Certificate................................................12
4.4 Qualifications........................................................12
4.5 Opinion of Company Counsel............................................12
4.6 Board of Directors....................................................12
4.7 Investors' Rights Agreement...........................................12
4.8 Certificate of Designation............................................12
5. Conditions of the Company's Obligations at Closing........................12
5.1 Representations and Warranties........................................13
5.2 Performance...........................................................13
5.3 Qualifications........................................................13
6. Miscellaneous.............................................................13
6.1 Survival of Warranties................................................13
6.2 Transfer; Successors and Assigns......................................13
6.3 Governing Law.........................................................13
6.4 Counterparts..........................................................13
6.5 Titles and Subtitles..................................................13
6.6 Notices...............................................................13
6.7 Finder's Fee..........................................................14
6.8 Attorney's Fees.......................................................14
6.9 Amendments and Waivers................................................14
6.10 Severability.........................................................14
6.11 Delays or Omissions..................................................15
6.12 Entire Agreement.....................................................15
6.13 Corporate Securities Law.............................................15
6.14 Confidentiality......................................................15
6.15 Exculpation Among Purchasers.........................................15
6.16 Waiver of Conflicts..................................................16
6.17 Publicity............................................................16
6.18 Expenses; Transfer Taxes.............................................16
KERAVISION, INC.
SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
This Series B Convertible Preferred Stock Purchase Agreement (the
"Agreement") is made as of the 12th day of June, 1998 by and between
KeraVision, Inc., a Delaware corporation (the "Company") and the investors
listed on Exhibit A attached hereto (each a "Purchaser" and together the
"Purchasers").
The parties hereby agree as follows:
1. Purchase and Sale of Preferred Stock.
1.1 Sale and Issuance of Series B Convertible Preferred Stock.
(a) The Company shall adopt and file with the Secretary
of State of the State of Delaware on or before the Closing (as defined below)
the Certificate of Designation of Rights, Preferences and Privileges of Series
B Convertible Preferred Stock in the form attached hereto as Exhibit B (the
"Certificate of Designation").
(b) Subject to the terms and conditions of this
Agreement, each Purchaser agrees to purchase at the Closing and the Company
agrees to sell and issue to each Purchaser at the Closing that number of shares
of Series B Convertible Preferred Stock set forth opposite each such
Purchaser's name on Exhibit A attached hereto at a purchase price of $32.00 per
share. The shares of Series B Convertible Preferred Stock issued to the
Purchaser pursuant to this Agreement shall be hereinafter referred to as the
"Stock."
1.2 Closing; Delivery.
(a) The purchase and sale of the Stock shall take place
at the offices of Venture Law Group, 2800 Sand Hill Road, Menlo Park,
California, at 10:00 a.m., on June 12, 1998, or at such other time and place as
the Company and the Purchasers mutually agree upon, orally or in writing (which
time and place are designated as the "Closing").
(b) At the Closing, the Company shall deliver to each
Purchaser a certificate, registered in such Purchaser's name, representing the
Stock being purchased thereby against payment of the purchase price therefor by
wire transfer to the Company's designated account or certified or cashier's
check drawn on a United States bank made payable to the order of KeraVision,
Inc.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to each Purchaser that, except as expressly indicated
on a Schedule of Exceptions attached hereto as Exhibit C (the "Schedule of
Exceptions"), which exceptions shall be deemed to be representations and
warranties as if made hereunder:
2.1 Organization, Good Standing and Qualification. Each of the
Company and its subsidiary is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation
and has all requisite corporate power and authority to own its property and
assets and to carry on its business. The Company and its subsidiary are duly
qualified to transact business and are in good standing in all jurisdictions
where such qualification is required, except for such failures to be so
qualified or in good standing as would not, individually or in the aggregate,
have a Material Adverse Effect on the Company or its subsidiary. For purposes
of this Agreement, a "Material Adverse Effect" or a "Material Adverse Change"
shall mean (i) any change in, or effect on, a specified entity that is, or is
reasonably likely to be, materially adverse to the condition (financial or
other), business, results of operations, prospects, assets, liabilities or
operations of the entity or on the ability of the entity to consummate any of
the transactions contemplated hereby, or (ii) any event or condition that
would, with or without the passage of time, constitute a "Material Adverse
Effect" or a "Material Adverse Change" as defined in clause (i) above. The
copies of the Certificate of Incorporation and Bylaws of the Company, as
amended to date, have been furnished to each Purchaser by the Company and are
correct and complete as so furnished.
2.2 Capitalization. The authorized capital of the Company will
consist, immediately prior to the Closing (unless another time period is
specified below), of:
(a) 2,000,000 shares of Preferred Stock, 30,000 shares of
which have been designated Series A Preferred Stock and 662,500 shares of which
have been designated Series B Convertible Preferred Stock, none of which are
issued and outstanding immediately prior to the Closing, and 100,000 of which
are reserved for the payment of dividends to holders of the Stock. The rights,
privileges and preferences of the Series B Convertible Preferred Stock are as
stated in the Certificate of Designation.
(b) 30,000,000 shares of Common Stock, 12,672,950 shares
of which are issued and outstanding as of May 31, 1998. All of the outstanding
shares of Common Stock have been duly authorized, fully paid and are
nonassessable and issued in compliance with all applicable federal and state
securities laws.
(c) The Company has reserved 2,650,000 shares of Common
Stock for issuance upon conversion of the Series B Convertible Preferred Stock.
The Company has reserved (i) 1,290,000 shares of Common Stock for issuance to
employees and consultants of the Company pursuant to its 1995 Stock Plan duly
adopted by the Board of Directors and approved by the Company stockholders (the
"1995 Stock Plan"), (ii) 200,000 shares of Common Stock for issuance to
employees of the Company pursuant to its 1995 Employee Stock Purchase Plan duly
adopted by the Board of Directors and approved by the Company stockholders (the
"ESPP"), (iii) 150,000 shares of Common Stock for issuance to employees of the
Company pursuant to its 1995 Directors Stock Option Plan duly adopted by the
Board of Directors and approved by the Company stockholders (the "Directors'
Plan") and (iv) 300,000 shares of Common Stock for issuance to employees and
consultants pursuant to its 1997 Stock Plan duly adopted by the Board of
Directors (the "1997 Stock Plan"). Of such reserved shares of Common Stock, as
of May 31, 1998, (i) 895,377 options to purchase shares have been granted under
the 1995 Stock Plan and 504,225 shares of Common Stock remain available for
issuance pursuant to the 1995 Stock Plan, (ii) 41,202 shares have been issued
under the ESPP and 158,798 shares of Common Stock remain available for issuance
pursuant to the ESPP, (iii) 84,500 options to purchase shares have been granted
under the Directors' Plan and 85,500 shares of Common Stock remain available
for issuance pursuant to the Directors' Plan, and (iv) 141,215 options to
purchase shares have been granted under the 1997 Stock Plan and 184,430 shares
of Common Stock remain available for issuance pursuant to the 1997 Stock Plan.
No shares of Common Stock or Preferred Stock are held in the Company's
treasury.
(d) Except for outstanding options issued pursuant to the
1995 Stock Plan, the 1997 Stock Plan, and the Director's Plan and outstanding
rights to purchase shares of Common Stock pursuant to the ESPP, there are no
outstanding securities, options, warrants, rights (including conversion or
preemptive rights and rights of first refusal or similar rights) or agreements,
orally or in writing, to purchase or acquire, or exchangeable for or
convertible into, any shares of the Company's capital stock. To the Company's
knowledge, there are no outstanding stockholder agreements, voting trusts,
proxies or other arrangements or understandings among the stockholders of the
Company relating to the voting of their respective shares.
2.3 Subsidiaries. The Company does not currently own or control,
directly or indirectly, any interest in any other corporation, association, or
other business entity. The Company is not a participant in any joint venture
or partnership.
2.4 Authorization. The Company has full power to execute, deliver
and perform this Agreement and the Investors' Rights Agreement, in the form
attached hereto as Exhibit D (the "Investors' Rights Agreement" and
collectively with this Agreement, the "Agreements"). All corporate action on
the part of the Company, its officers and directors necessary for the
authorization, execution and delivery of this Agreement and the Investors'
Rights Agreement, the performance of all obligations of the Company hereunder
and thereunder and the authorization, sale, issuance and delivery of the Stock
and the Common Stock issuable upon conversion of the Stock (together, the
"Securities") has been taken or will be taken prior to the Closing, and the
Agreements, when executed and delivered by the Company, shall constitute valid
and legally binding obligations of the Company, enforceable against the Company
in accordance with their terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws
of general application affecting enforcement of creditors' rights generally, as
limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies or (ii) to the extent the
indemnification provisions contained in the Investors' Rights Agreement may be
limited by applicable federal or state securities laws.
2.5 Valid Issuance of Securities. The Stock that is being issued
to the Purchasers hereunder, when issued, sold and delivered in accordance with
the terms hereof for the consideration expressed herein, will be duly and
validly issued and outstanding, fully paid and nonassessable, free of any
liens, encumbrances, preemptive rights or rights of first refusal, and free of
restrictions on transfer other than restrictions on transfer under this
Agreement, the Investors' Rights Agreement and applicable state and federal
securities laws. Based in part upon the representations of the Purchasers in
this Agreement and subject to the provisions of Section 2.6 below, the Stock
will be issued in compliance with all applicable federal and state securities
laws. The Common Stock issuable upon conversion of the Stock has been duly and
validly reserved for issuance, and upon issuance in accordance with the terms
of the Certificate of Designation, shall be duly and validly issued, fully paid
and nonassessable, free of any liens, encumbrances, preemptive rights or rights
of first refusal, and free of restrictions on transfer other than restrictions
on transfer under this Agreement, the Investors' Rights Agreement and
applicable federal and state securities laws and will be issued in compliance
with all applicable federal and state securities laws. The Common Stock
issuable upon conversion of the Stock will be subject to the rights provided in
the Company's Preferred Shares Rights Agreement dated August 18, 1997, to the
extent applicable, as described therein.
2.6 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the valid and lawful authorization,
execution and delivery by the Company of this Agreement or the Investors'
Rights Agreement, and the consummation of the transactions contemplated hereby
or thereby, or for or in connection with the valid and lawful authorization,
issuance, sale and delivery of the Stock and the Common Stock issuable upon
conversion of the Stock in accordance with this Agreement, other than filings
pursuant to Regulation D of the Securities Act of 1933, as amended (the
"Securities Act"), and the qualification (or taking of such action as may be
necessary to secure an exemption from qualification if available) of the offer
and sale of the Stock under all applicable state securities laws, which filings
and qualifications, if required, will be accomplished in a timely manner so as
to comply with such qualification or exemption from qualification requirements.
2.7 Litigation. There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Company and its subsidiary,
currently threatened against or affecting the Company or its subsidiary, its
business or its assets, nor is the Company or its subsidiary aware that there
is any basis for the foregoing. Neither the Company nor its subsidiary is a
party or subject to the provisions of any order, writ, injunction, judgment or
decree of any court or government agency or instrumentality. There is no
action, suit, proceeding or investigation by the Company or its subsidiary
currently pending or which the Company or its subsidiary intends to initiate.
2.8 SEC Documents; Financial Statements. Each complete or
partial statement, report, prospectus filed under the Securities Act of 1933,
as amended ("Securities Act"), is a true and complete copy of or excerpt from
such document as filed by the Company with the Securities and Exchange
Commission ("SEC") (the "Security Act Documents"). The Company has timely
filed all the documents that it was required to file with the SEC under the
Securities Exchange Act of 1934, as amended ("Exchange Act") (the "Exchange Act
Documents" and together with the Securities Act Documents, the "SEC
Documents"), since the date on which its Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998 was filed. As of their respective filing dates,
the SEC Documents complied in all material respects with the requirements of
the Exchange Act or the Securities Act, as applicable, and were duly and timely
filed with the SEC. None of the SEC Documents as of their respective dates
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading. The consolidated financial statements of the Company included in
the SEC Documents (the "Financial Statements") comply as to form in all
material respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto. Except as may
be indicated in the notes to the Financial Statements or, in the case of
unaudited statements, as permitted by Form 10-Q of the SEC, the Financial
Statements have been prepared in accordance with generally accepted accounting
principles consistently applied and fairly present the financial position of
the Company and its subsidiary at the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end adjustments).
2.9 Changes. Since March 31, 1998, there has not been:
(a) any change in the assets, liabilities, financial
condition or operating results of the Company or its subsidiary from that
reflected in the Financial Statements, except changes in the ordinary course of
business that have not been, in the aggregate, a Material Adverse Change for
the Company or its subsidiary;
(b) any damage, destruction or loss, whether or not
covered by insurance, materially and adversely affecting the business,
properties, prospects, or financial condition of the Company or its subsidiary;
(c) any waiver or compromise by the Company or its
subsidiary of a valuable right or of a material debt owed to it;
(d) any satisfaction or discharge of any lien, claim, or
encumbrance or payment of any obligation by the Company or its subsidiary,
except in the ordinary course of business and that is not material to the
business, properties, prospects or financial condition of the Company;
(e) any material change to a material contract or
agreement by which the Company or its subsidiary or any of their assets is
bound or subject;
(f) any material change in any compensation arrangement
or agreement with any employee, officer, director or stockholder;
(g) any sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets;
(h) any resignation or termination of employment of any
officer or key employee of the Company or its subsidiary; and neither the
Company nor its subsidiary is aware of any impending resignation or termination
of employment of any such officer or key employee;
(i) any mortgage, pledge, transfer of a security interest
in, or lien, created by the Company or its subsidiary, with respect to any of
its material properties or assets, except liens for taxes not yet due or
payable;
(j) any loans or guarantees made by the Company or its
subsidiary to or for the benefit of its employees, officers or directors, or
any members of their immediate families, other than travel advances and other
advances made in the ordinary course of its business;
(k) any declaration, setting aside or payment or other
distribution in respect to any of the capital stock of the Company or its
subsidiary, or any direct or indirect redemption, purchase, or other
acquisition of any of such stock by the Company or its subsidiary;
(l) to the Company's knowledge, any other event or
condition of any character that might have a Material Adverse Effect on the
Company or its subsidiary;
(m) any borrowing of or agreement to borrow any funds or
any material liability (contingent or otherwise) incurred by the Company or its
subsidiary, other than obligations incurred in the ordinary course of business
and consistent with past practice;
(n) any issuance of any stock, bonds or other securities
of the Company or its subsidiary or options, warrants or rights or agreements
or commitments to purchase or issue such securities or to grant such options,
warrants or rights, except for the granting of options to employees, directors
and consultants in the ordinary course of business and consistent with past
practice;
(o) any change in the accounting methods or practices
followed by the Company or its subsidiary; or
(p) any arrangement or commitment (contingent or
otherwise) by the Company or its subsidiary to do any of the things described
in this Section 2.9.
Since March 31, 1998, neither the Company nor its subsidiary has entered
into any transaction or arrangement except in the ordinary course of business
and consistent with past practice, or entered into any agreement (contingent or
otherwise) to do so.
2.10 Title to Properties. Except as disclosed in the Financial
Statements, the Company or its subsidiary has good and marketable title to, or
has a valid leasehold interest in, or a valid license for, all of the
properties and assets reflected in the Financial Statements, free and clear of
all mortgages, security interests, liens, restrictions or encumbrances
(collectively, "Liens") other than (i) liens for taxes not yet due and payable
and (ii) Liens which, individually or in the aggregate, do not materially
detract from the value of the property subject thereto or materially impair the
operations of the Company or its subsidiary, would not result in the occurrence
of a Material Adverse Change, and which have not arisen otherwise than in the
ordinary course of business.
2.11 Tax Matters.
(a) All taxes, including, without limitation, income,
excise, property, sales, transfer, use, franchise, payroll, employees' income
withholding and social security taxes imposed or assessed by the United States
or by any foreign country or by any state, municipality, subdivision or
instrumentality of the United States or of any foreign country, or by any other
taxing authority, which are due and payable by the Company or its subsidiary,
and all interest, penalties and additions thereon, whether disputed or not,
have been paid in full or are adequately reserved for in the Financial
Statements; all tax returns or other documents required to be filed in
connection therewith have been accurately prepared and duly and timely filed,
except for tax returns the non-filing of which in the aggregate would not have
a Material Adverse Effect on the Company or its subsidiary; and neither the
Company nor its subsidiary is the beneficiary of any extension of time within
which to file any such returns. Neither the Company nor its subsidiary has
been delinquent in the payment of any foreign or domestic tax, assessment or
governmental charge or deposit and has no tax deficiency or claim outstanding,
assessed or, to its knowledge, proposed against it, and there is no basis for
any such deficiency or claim. No issues have been raised (or are currently
pending) by the Internal Revenue Service or any other taxing authority in
connection with any of the returns and reports referred to above, and no
waivers of statutes of limitations have been given or requested with respect to
the Company or its subsidiary in connection therewith. The provisions for
taxes in the Financial Statements are sufficient for the payment of all accrued
and unpaid federal, state, county and local taxes of the Company or its
subsidiary.
(b) The Company is not now and has never been a "United
States real property holding corporation," as defined in Section 897(c)(2) of
the Internal Revenue Code of 1986, as amended (the "Code"), and Section
1.897-2(b) of the Regulations promulgated by the Internal Revenue Service, and
the Company has filed with the Internal Revenue Service all statements, if any,
with its United States income tax returns which are required under Section
1.897-2(h) of such Regulations.
(c) Neither the Company nor its subsidiary is a party to
or bound by any tax indemnity, tax sharing or tax allocation agreement.
(d) The Company is not presently a member of an
affiliated group of corporations within the meaning of Section 1504 of the
Code. The Company was formerly a member of an affiliated group of corporations
within the meaning of Section 1504 of the Code. As a former member of such
group, the Company did not assume any tax liability or asset under a tax
sharing arrangement for its share of a consolidated tax liability or a
consolidated tax loss, nor was there a tax liability or asset assumed upon
leaving the affiliated group.
2.12 No Material Defaults. Each of the Company and its subsidiary
is not in violation of or default under any provision of (a) its Certificate of
Incorporation or Bylaws or (b) any mortgage, indenture, lease or other
agreement or instrument, permit, concession, franchise or license to which it
is a party or by which it is bound or (c) any federal or state judgment, order,
decree, statue, law, ordinance, rule or regulation applicable to the Company,
except with respect to clauses (b) and (c) above, such violations or defaults
as would not have a Material Adverse Effect on the Company.
2.13 Patents and Trademarks. To its knowledge, and except as
disclosed in the SEC Documents, the Company and its subsidiary owns or
possesses sufficient legal rights to all patents, trademarks, service marks,
tradenames, copyrights, trade secrets, licenses, information and proprietary
rights and processes necessary for its business as now conducted and as
proposed to be conducted, without infringement of any rights of a third party.
Neither the Company nor its subsidiary has received any communications alleging
that it has violated or, by conducting its business as proposed, would violate
any of the patents, trademarks, service marks, tradenames, copyrights, trade
secrets or other proprietary rights or processes of any other person or entity,
which violation would have a Material Adverse Effect on the Company or its
subsidiary. Except as disclosed in the SEC Documents, neither the Company nor
its subsidiary has granted (nor has the Company or its subsidiary licensed from
a third party) any material rights to or licenses to its patents, trademarks,
service marks, tradenames, copyrights, trade secrets or other proprietary
rights or processes.
2.14 No Conflict. The execution and delivery of this Agreement
and the Investors' Rights Agreement do not, and the consummation of the
transactions contemplated hereby and thereby will not, (i) conflict with, or
result in any violation of, or default (with or without notice or lapse of
time, or both), or give rise to a right of termination, cancellation or
acceleration of any obligation or to a loss of a material benefit, under, any
provision of the Certificate of Incorporation or Bylaws of the Company or any
mortgage, indenture, lease or other agreement or instrument, permit,
concession, franchise, license, judgment, order, decree, statue, law,
ordinance, rule or regulation applicable to the Company, its properties or
assets, which conflict, violation, default or right would have a Material
Adverse Effect on the Company or (ii) result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties or assets
of the Company or the Securities.
2.15 Securities Laws. Assuming that the Purchasers'
representations and warranties contained in Section 3 of this Agreement are
true and correct, the offer, issuance and sale of the Securities are and will
be exempt from the registration and prospectus delivery requirements of the
Securities Act and have been registered or qualified (or are exempt from
registration and qualification) under the registration, permit or qualification
requirements of all applicable state securities laws.
2.16 Business. The Company and its subsidiary have complied in
all respects with all federal, state, local and foreign laws, ordinances,
regulations and orders applicable to the business of the Company and its
subsidiary as presently or previously conducted and as proposed to be
conducted, except where the noncompliance of which in the aggregate would not
have a Material Adverse Effect on the Company or its subsidiary. The Company
and its subsidiary have all federal, state, local and foreign governmental
licenses and permits that are required for the conduct of its business as
presently or previously conducted by the Company or its subsidiary, except
where the noncompliance of which in the aggregate would not have a Material
Adverse Effect on the Company or its subsidiary, which licenses and permits are
in full force and effect, and no violations are outstanding or uncured with
respect to any such licenses or permits and no proceeding is pending or, to the
knowledge of the Company or its subsidiary, threatened to revoke or limit any
thereof.
2.17 Certain Regulatory Matters. There are no unfulfilled
outstanding agreements with or commitments to the United States Department of
Health, Food and Drug Administration (the "FDA") or any other regulatory body
(domestic or foreign) of any kind or character with respect to any product sold
or contemplated to be sold by the Company or its subsidiary (the "Products");
there are no adverse regulatory actions by the FDA or any other foreign or
domestic regulatory body pending with respect to any Product; and neither the
Company nor its subsidiary has any knowledge or information with respect to the
initiation, pendency or threat by the FDA or other such regulatory body of any
adverse regulatory action that could affect any of the Products.
2.18 Registration Rights. The Company is not presently under
any obligation and has not granted any rights to register its securities under
the Securities Act with respect to any of its presently outstanding securities
or any of its securities that may hereafter be issued, which rights would be
implicated with respect to the registration contemplated by the Investors'
Rights Agreement and which rights have not been waived by the holders thereof.
2.19 Disclosure. Neither this Agreement, nor any other written
document, certificate, instrument or statement furnished or made available in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein and therein not misleading. There
is no fact known to the Company or its subsidiary materially affecting the
Company, its subsidiary or its business or the existence of which could have a
Material Adverse Effect on the Company or its subsidiary, which has not been
set forth in this Agreement or in the other documents, certificates,
instruments or statements furnished to each Purchaser by or on behalf of the
Company or its subsidiary.
2.20 Solvency; No Default. As of this date the Company and its
subsidiary have sufficient funds and cash flow to pay their debts and other
liabilities as they become due, and neither the Company nor its subsidiary is
in default with respect to any material debt or liability.
3. Representations and Warranties of the Purchasers. Each Purchaser
hereby represents and warrants to the Company that:
3.1 Authorization. Such Purchaser has full power and authority
to enter into this Agreement. The Agreements, when executed and delivered by
the Purchaser, will constitute valid and legally binding obligations of the
Purchaser, enforceable in accordance with their terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and any other laws of general application affecting enforcement of
creditors' rights generally, and as limited by laws relating to the
availability of a specific performance, injunctive relief, or other equitable
remedies or (ii) to the extent the indemnification provisions contained in the
Investors' Rights Agreement may be limited by applicable federal or state
securities laws.
3.2 Purchase Entirely for Own Account. This Agreement is made
with the Purchaser in reliance upon the Purchaser's representation to the
Company, which by the Purchaser's execution of this Agreement, the Purchaser
hereby confirms, that the Securities to be acquired by the Purchaser will be
acquired for investment for the Purchaser's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof.
3.3 Disclosure of Information. The Purchaser has had an
opportunity to discuss the Company's business, management, financial affairs
and the terms and conditions of the offering of the Stock with the Company's
management and has had an opportunity to review the Company's facilities. The
Purchaser understands that such discussions, as well as the Business Plan and
any other written information delivered by the Company to the Purchaser, were
intended to describe the aspects of the Company's business which it believes to
be material. The foregoing, however, does not limit or modify the
representations and warranties of the Company in Section 2 of this Agreement or
the right of the Purchasers to rely thereon.
3.4 Restricted Securities. The Purchaser understands that the
Securities have not been, and will not be, registered under the Securities Act,
by reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Purchaser's representations as
expressed herein. The Purchaser understands that the Securities are
"restricted securities" under applicable U.S. federal and state securities laws
and that, pursuant to these laws, the Purchaser must hold the Securities
indefinitely unless they are registered with the Securities and Exchange
Commission and qualified by state authorities, or an exemption from such
registration and qualification requirements is available. The Purchaser
acknowledges that the Company has no obligation to register or qualify the
Securities for resale except as set forth in the Investors' Rights Agreement.
The Purchaser further acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various requirements
including, but not limited to, the time and manner of sale, the holding period
for the Securities, and on requirements relating to the Company which are
outside of the Purchaser's control, and, subject to the Company's obligations
under the Investors' Rights Agreement, which the Company is under no obligation
and may not be able to satisfy.
3.5 No Public Market. The Purchaser understands that no public
market now exists for the Stock, and that the Company has made no assurances
that a public market will ever exist for the Stock.
3.6 Legends. The Purchaser understands that the Securities and
any securities issued in respect of or exchange for the Securities, may bear
one or all of the following legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN
A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS SOLD PURSUANT TO RULE 144 OF
SUCH ACT."
(b) Any legend set forth in the Investors' Rights
Agreement.
(c) Any legend required by the Blue Sky laws of any state
to the extent such laws are applicable to the shares represented by the
certificate so legended.
3.7 Accredited Investor. The Purchaser is an accredited investor
as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
3.8 Foreign Investors. If the Purchaser is not a United States
person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986,
as amended), such Purchaser hereby represents that it has satisfied itself as
to the full observance of the laws of its jurisdiction in connection with any
invitation to subscribe for the Stock or any use of this Agreement, including
(i) the legal requirements within its jurisdiction for the purchase of the
Stock, (ii) any foreign exchange restrictions applicable to such purchase,
(iii) any governmental or other consents that may need to be obtained, and (iv)
the income tax and other tax consequences, if any, that may be relevant to the
purchase, holding, redemption, sale, or transfer of the Stock. Such
Purchaser's subscription and payment for and continued beneficial ownership of
the Stock, will not violate any applicable securities or other laws of the
Purchaser's jurisdiction.
4. Conditions of the Purchasers' Obligations at Closing. The
obligations of each Purchaser to the Company under this Agreement are subject
to the fulfillment, on or before the Closing, of each of the following
conditions, unless otherwise waived in writing by each Purchaser:
4.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true and correct in
all material respects (disregarding for this purpose any qualifications with
respect to materiality), on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of the date
of the Closing.
4.2 Performance. The Company shall have performed and complied
with all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
4.3 Compliance Certificate. The Vice President, Finance and
Administration and Chief Financial Officer of the Company shall deliver to the
Purchasers at the Closing a certificate certifying that the conditions
specified in Sections 4.1, 4.2 and 4.4 have been fulfilled.
4.4 Qualifications. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale
of the Stock pursuant to this Agreement shall be obtained and effective as of
the Closing.
4.5 Opinion of Company Counsel. The Purchasers shall have
received from Venture Law Group, counsel for the Company, an opinion, dated as
of the Closing, in substantially the form of Exhibit E.
4.6 Board of Directors. As of the Closing, the number of
authorized directors shall be eight (8) members, and the Board shall be
comprised of Charles Crocker, John R. Gilbert, Kathleen La Porte, Lawrence A.
Lehmkuhl, Thomas M. Loarie, Kshitij Mohan, Arthur M. Pappas and Steven N.
Weiss.
4.7 Investors' Rights Agreement. The Company and each Purchaser
shall have executed and delivered the Investors' Rights Agreement in
substantially the form attached as Exhibit D.
4.8 Certificate of Designation. The Company shall have filed the
Certificate of Designation in substantially the form attached as Exhibit B with
the Secretary of State of Delaware on or prior to the Closing Date, which shall
continue to be in full force and effect as of the Closing Date.
5. Conditions of the Company's Obligations at Closing. The
obligations of the Company to each Purchaser under this Agreement are subject
to the fulfillment, on or before the Closing, of each of the following
conditions, unless otherwise waived in writing:
5.1 Representations and Warranties. The representations and
warranties of each Purchaser contained in Section 3 shall be true and correct
in all material respects on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of the
Closing.
5.2 Performance. All covenants, agreements and conditions
contained in this Agreement to be performed by the Purchasers on or prior to
the Closing shall have been performed or complied with in all material
respects.
5.3 Qualifications. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale
of the Stock pursuant to this Agreement shall be obtained and effective as of
the Closing.
6. Miscellaneous.
6.1 Survival of Warranties. Unless otherwise set forth in this
Agreement, the warranties, representations and covenants of the Company and the
Purchasers contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement for a period of two (2) years
following the Closing and shall in no way be affected by an investigation of
the subject matter thereof made by or on behalf of the Company or any such
Purchaser.
6.2 Transfer; Successors and Assigns. 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. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
6.3 Governing Law. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
6.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
6.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.6 Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or
forty-eight (48) hours after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, addressed to the party to be notified at
such party's address as set forth on the signature page or Exhibit A hereto, or
as subsequently modified by written notice, and (a) if to the Company, with a
copy to Edmund S. Ruffin, Jr., Venture Law Group, 2800 Sand Hill Road, Menlo
Park, CA 94025 or (b) if to the Purchasers, with a copy to Scott Dettmer,
Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, 155 Constitution
Drive, Menlo Park, California 94025 and to Office of the General Counsel,
Johnson & Johnson, One Johnson & Johnson Plaza, New Brunswick, New Jersey
08933.
6.7 Finder's Fee. Except for the fees and expenses owed by the
Company to Cowen & Company, each party represents that it neither is nor will
be obligated for any finder's fee or commission in connection with this
transaction. Each Purchaser agrees to indemnify and to hold harmless the
Company from any liability for any commission or compensation in the nature of
a finder's fee (and the costs and expenses of defending against such liability
or asserted liability) for which each Purchaser or any of its officers,
employees, or representatives is responsible. The Company agrees to indemnify
and hold harmless each Purchaser from any liability for any commission or
compensation in the nature of a finder's fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Company
or any of its officers, employees or representatives is responsible.
6.8 Attorney's Fees. If any action at law or in equity
(including arbitration) is necessary to enforce or interpret the terms of any
of the Agreements, the prevailing party shall be entitled to reasonable
attorney's fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
6.9 Amendments and Waivers. Any term of this Agreement may be
amended or waived only with the written consent of (i) the Company, (ii) the
holders of a majority of the shares of Common Stock issuable or issued upon
conversion of the Stock and each Purchaser adversely affected in a manner
different than the other Purchasers and (iii) Johnson & Johnson Development
Corporation if its obligations hereunder are materially increased by such
amendment. Any amendment or waiver effected in accordance with this Section
6.9 shall be binding upon the Purchasers and each transferee of the Stock (or
the Common Stock issuable upon conversion thereof), each future holder of all
such securities, and the Company.
6.10 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(a) such provision shall be excluded from this Agreement, (b) the balance of
the Agreement shall be interpreted as if such provision were so excluded and
(c) the balance of the Agreement shall be enforceable in accordance with its
terms.
6.11 Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to any party under this Agreement, upon any
breach or default of any other party under this Agreement, shall impair any
such right, power or remedy of such non-breaching or non-defaulting party nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party of any breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Agreement or by law or otherwise
afforded to any party, shall be cumulative and not alternative.
6.12 Entire Agreement. This Agreement, and the documents referred
to herein constitute the entire agreement between the parties hereto pertaining
to the subject matter hereof, and any and all other written or oral agreements
relating to the subject matter hereof existing between the parties hereto are
expressly canceled.
6.13 Corporate Securities Law. THE SALE OF THE SECURITIES WHICH
ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER
OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES
OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO
THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED
UPON THE QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
6.14 Confidentiality. Each party hereto agrees that, except with
the prior written permission of the other party, and except as any Purchaser
may be required to disclose under ERISA, it shall at all times keep
confidential and not divulge, furnish or make accessible to anyone any
confidential information, knowledge or data concerning or relating to the
business or financial affairs of the other parties to which such party has been
or shall become privy by reason of this Agreement, discussions or negotiations
relating to this Agreement, the performance of its obligations hereunder or the
ownership of Stock purchased hereunder. The provisions of this Section 6.14
shall be in addition to, and not in substitution for, the provisions of any
separate nondisclosure agreement executed by the parties hereto with respect to
the transactions contemplated hereby.
6.15 Exculpation Among Purchasers. Each Purchaser acknowledges
that it is not relying upon any person, firm or corporation, other than the
Company and its officers and directors, in making its investment or decision to
invest in the Company. Each Purchaser agrees that no Purchaser nor the
respective controlling persons, officers, directors, partners, agents, or
employees of any Purchaser shall be liable to any other Purchaser for any
action heretofore or hereafter taken or omitted to be taken by any of them in
connection with the purchase of the Securities, except as provided in the
Investors' Rights Agreement.
6.16 Waiver of Conflicts. Each party to this Agreement
acknowledges that Venture Law Group, counsel for the Company, has in the past
performed and may continue to perform legal services for certain of the
Purchasers in matters unrelated to the transactions described in this
Agreement, including the representation of such Purchasers in venture capital
financings and other matters. Accordingly, each party to this Agreement hereby
(a) acknowledges that they have had an opportunity to ask for information
relevant to this disclosure; and (b) gives its informed consent to Venture Law
Group's representation of certain of the Purchasers in such unrelated matters
and to Venture Law Group's representation of the Company in connection with
this Agreement and the transactions contemplated hereby.
6.17 Publicity. No party shall originate any publicity, news
release or other public announcement, written or oral (a "Release"), whether
relating to the performance under this Agreement or the existence of any
arrangement between the parties, without the prior written consent of the other
parties, except where such Release is required by law (in which event, the
Purchasers shall be consulted by the Company in connection with any such
Release prior to its release and shall be provided with a copy thereof);
provided that the parties hereby agree that a Release substantially in the form
attached hereto as Exhibit F shall be released by the Company as promptly as
practicable following the execution of this Agreement.
6.18 Expenses; Transfer Taxes. Upon closing, the Company shall
reimburse the reasonable fees and expenses of Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, L.L.P., not to exceed $20,000, incurred in
connection with all transactions leading up to and including the Closing.
Except as provided in the foregoing sentence, each party shall pay its own fees
and expenses (including the fees of any attorneys, accountants, investment
bankers or others engaged by such party) in connection with this Agreement and
the transactions contemplated hereby whether or not the transactions
contemplated hereby are consummated. Notwithstanding the foregoing, the
Company shall pay, and shall indemnify and hold harmless the Purchasers from
and against, all sales, use, transfer or similar taxes imposed as a result of
the transactions contemplated by this Agreement.
[Signature Page Follows]
The parties have executed this Series B Convertible Preferred
Stock Purchase Agreement as of the date first written above.
COMPANY:
KeraVision, Inc.
By: /s/Mark Fischer-Colbrie
-------------------------------
Name: Mark Fischer-Colbrie
-----------------------------
(print)
Title: VP Finance/Admin; CFO
----------------------------
PURCHASERS:
DLJ Capital Corp.
By: /s/Kathleen D. LaPorte
-------------------------------
Name: Kathleen D. LaPorte
-----------------------------
Title: General Partner and
Attorney in Fact
----------------------------
DLJ ESC II, L.P.
By: DLJ LBO Plans Management
Corporation
Its: Manager
By: /s/Kathleen D. LaPorte
-------------------------------
Name: Kathleen D. LaPorte
-----------------------------
Title: Attorney In Fact
----------------------------
Sprout Capital VIII, L.P.
By: DLJ Capital Corp.
Its: Managing General Partner
By:/s/Kathleen D. LaPorte
-------------------------------
Name: Kathleen D. LaPorte
-----------------------------
Title: General Partner and
Attorney in Fact
----------------------------
Sprout Venture Capital, L.P.
By: DLJ Capital Corp.
Its: Managing General Partner
By: /s/Kathleen D. LaPorte
-------------------------------
Name: Kathleen D. LaPorte
-----------------------------
Title: General Partner and
Attorney in Fact
----------------------------
The Sprout CEO Fund, L.P.
By: DLJ Capital Corp.
Its: General Partner
By: /s/Kathleen D. LaPorte
-------------------------------
Name: Kathleen D. LaPorte
-----------------------------
Title: General Partner and
Attorney in Fact
----------------------------
Johnson & Johnson Development
Corporation
By: /s/Blair M. Flicker
-------------------------------
Name: Blair M. Flicker
-----------------------------
Title: Vice President
----------------------------
GMI/DRI INVESTMENT TRUST
By: /s/David B. Van Benschoten
-------------------------------
Name: David B. Van Benschoten
-----------------------------
Title: Executive Secretary -
Benefit Finance Committee
of General Mills,
Inc. as Named
Financial Fiduciary
----------------------------
Special Situations Private
Equity Fund, LP
By: /s/Austin Marxe
-------------------------------
Name: Austin Marxe
-----------------------------
Title: Managing Director
----------------------------
Special Situations Fund III, LP
By: /s/Austin Marxe
-------------------------------
Name: Austin Marxe
-----------------------------
Title: Managing Director
----------------------------
Special Situations Cayman Fund, LP
By: /s/Austin Marxe
-------------------------------
Name: Austin Marxe
-----------------------------
Title: Managing Director
----------------------------
EXHIBITS
Exhibit A - Schedule of Purchasers
Exhibit B - Form of Certificate of Designation of Incorporation
Exhibit C - Schedule of Exceptions to Representations and Warranties
Exhibit D - Form of Investors' Rights Agreement
Exhibit E - Form of Legal Opinion of Venture Law Group
Exhibit F - Form of Press Release
Number of Purchase
Purchaser Shares Price
- ------------------------------------------- ------------- ---------------
DLJ Capital Corporation 4,987 $159,584
3000 Sand Hill Road, Bldg. 3, Suite 170
Menlo Park, CA 94025
Phone: (650) 234-2700
Fax: (650) 234-2779
DLJ ESC II, L.P. 31,791 $1,017,312
3000 Sand Hill Road, Bldg. 3, Suite 170
Menlo Park, CA 94025
Phone: (650) 234-2700
Fax: (650) 234-2779
Sprout Capital VIII, L.P. 317,715 $10,166,880
3000 Sand Hill Road,
Bldg. 3, Suite 170
Menlo Park, CA 94025
Phone: (650) 234-2700
Fax: (650) 234-2779
Sprout Venture Capital, L.P. 19,063 $610,016
3000 Sand Hill Road, Bldg. 3, Suite 170
Menlo Park, CA 94025
Phone: (650) 234-2700
Fax: (650) 234-2779
The Sprout CEO Fund, L.P. 1,444 $46,208
3000 Sand Hill Road, Bldg. 3, Suite 170
Menlo Park, CA 94025
Phone: (650) 234-2700
Fax: (650) 234-2779
Johnson & Johnson Development 93,750 $3,000,000
Corporation
One Johnson & Johnson Plaza
New Brunswick, New Jersey 08933
Attn: President
GMI/DRI INVESTMENT TRUST 31,250 $1,000,000
P.O. Box 1113
Minneapolis, MN 55440
CED: No. 136
(612) 540-3289
(612) 540-7384
Attn: Daralyn Peifer
Special Situations Private Equity Fund, LP 31,250 $1,000,000
153 E. 53rd Street
New York, New York 10022
Attn: Mr. Steve Becker
Special Situations Fund III, LP 23,437 $749,984
153 E. 53rd Street
New York, New York 10022
Attn: Mr. Steve Becker
Special Situations Cayman Fund, LP 7,813 $250,016
CIBC Bank
Edward Street
P.O. Box 694
Grand Cayman, Cayman Islands
British West Indies
Attn: Mr. Scott Summerville
Total 562,500 $18,000,000
EXHIBIT E
CERTIFICATE OF DESIGNATION OF RIGHTS, PREFERENCES
AND PRIVILEGES OF
SERIES B CONVERTIBLE PREFERRED STOCK
OF
KERAVISION, INC.
Pursuant to Section 151 of the General Corporation Law of the State of Delaware
We, Mark Fischer-Colbrie and Michael W. Hall, the Vice President,
Finance and Administration and Chief Financial Officer and the Secretary,
respectively, of KeraVision, Inc., a Delaware corporation (the "Corporation"),
in accordance with the provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by
the Certificate of Incorporation of the said Corporation, the Board of Directors
on June 9, 1998 adopted the following resolution creating a series of shares of
Preferred Stock designated as Series B Convertible Preferred Stock:
"RESOLVED, that pursuant to the authority vested in the Board of
Directors of the corporation by the Certificate of Incorporation, the Board of
Directors does hereby provide for the issue of a Series of Preferred Stock,
$0.001 par value, of the Corporation, to be designated "Series B Convertible
Preferred Stock", initially consisting of Six Hundred and Sixty Two Thousand
Five Hundred (662,500) shares and to the extent that the designations, powers,
preferences and relative and other special rights and the qualifications,
limitations and restrictions of the Series B Convertible Preferred Stock are not
stated and expressed in the Certificate of Incorporation, does hereby fix and
herein state and express such designations, powers, preferences and relative and
other special rights and the qualifications, limitations and restrictions
thereof, as follows (all terms used herein which are defined in the Certificate
of Incorporation shall be deemed to have the meanings provided therein):
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series B Participating Preferred Stock", par value $0.001 per
share, and the number of shares constituting such series shall be Six Hundred
Sixty Two Thousand and Five Hundred (662,500).
Section 2. Dividends and Distributions. Subject to the rights of series
of Preferred Stock which may from time to time come into existence, the holders
of shares of Series B Convertible Preferred Stock shall be entitled to receive
dividends, out of any assets legally available therefor, prior and in preference
to any declaration or payment of any dividend (payable other than in Common
Stock or other securities and rights convertible into or entitling the holder
thereof to receive, directly or indirectly, additional shares of Common Stock of
the Corporation) on the Common Stock of the Corporation, payable on the last day
of the Corporation's fiscal quarter in which any dividend is declared, when, as
and if declared by the Board of Directors, at the rate of $2.24 per share (as
adjusted for stock splits and combinations) per annum, payable, at the election
of the Corporation, in either cash or shares of Series B Convertible Preferred
Stock, the number of shares of which shall equal the amount of any such dividend
divided by the product of (i) the average closing price of the Company's Common
Stock on the Nasdaq National Market for each of the twenty (20) trading days
prior to the declaration of such dividend multiplied by (ii) four (4). Such
dividends shall accrue on each share from June 12, 1998 and shall accrue from
day to day, whether or not earned or declared. Such dividends shall be paid as
soon as practicable at the end of each quarter in either cash or shares of
Series B Convertible Preferred Stock as described above. Without limiting the
foregoing, such dividends shall be cumulative so that, if such dividends in
respect of any current quarterly dividend period, at the annual rate specified
above, shall not have been paid the deficiency shall first be fully paid before
any dividend or other distribution shall be paid on or declared and set apart
for the Common Stock. Any accumulation of dividends on the Series B Convertible
Preferred Stock shall not bear interest. Cumulative dividends with respect to a
share of Series B Convertible Preferred Stock which are accrued, payable and/or
in arrears shall, upon conversion of such share to Common Stock, subject to the
rights of series of Preferred Stock which may from time to time come into
existence, be paid to the extent assets are legally available therefor and any
amounts for which assets are not legally available shall be paid promptly as
assets become legally available therefor; any partial payment will be made pro
rata among the holders of such shares. In the event that the holders of the
Corporation's Common Stock are entitled to receive any dividend (payable other
than in Common Stock or other securities and rights convertible into or
entitling the holder thereof to receive, directly or indirectly, additional
shares of Common Stock of the Corporation), the holders of Series B Convertible
Preferred Stock shall be entitled to receive such dividend as if the shares of
Series B Convertible Preferred Stock had converted to Common Stock immediately
prior to the declaration of such dividend.
Section 3. Liquidation and Merger Preference.
(A) Liquidation, Dissolution or Winding Up. Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation (a "Liquidation"), no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Convertible Preferred Stock unless,
prior thereto, the holders of shares of Series B Convertible Preferred Stock
shall have received an amount equal to accrued and unpaid dividends and
distributions thereon (the "Accrued Dividends"), whether or not declared, to the
date of such payment, plus an amount equal to $32 per share (as adjusted for
stock splits and combinations) and, in the event such payment is made on or
before June 12, 2000, an amount equal to $4.48 per share, less (i) the Accrued
Dividends and (ii) dividends previously paid pursuant to Section 2 above (other
than pursuant to the last sentence of Section 2), provided that, in the event of
a Change in Control (as defined in Section 3(B)(i) below) in which the value of
the consideration received by the holders of the Common Stock of the Corporation
exceeds $16 per share (as adjusted for stock splits and combinations and as
determined pursuant to Section 3(B)(ii) below), then the holders of Preferred
Stock shall receive only the Accrued Dividends plus $32 per share (as adjusted
for stock splits and combinations), and provided further that in the event the
Corporation does not have sufficient assets, subject to the rights of series of
Preferred Stock which may from time to time come into existence, the amount
required to be paid under this Section 3 shall equal the value of the amount of
available assets divided by the number of outstanding shares of Series B
Convertible Preferred Stock (the "Series B Liquidation Preference").
(B) Certain Acquisitions.
(i) Deemed Liquidation. For purposes of this
Section 3, a Liquidation shall be deemed to occur if the Corporation shall sell,
convey, or otherwise dispose of or encumber all or substantially all of its
property or business or merge into or consolidate with any other corporation
(other than a wholly-owned subsidiary corporation) or effect any other
transaction or series of related transactions that results in the transfer of
fifty percent (50%) or more of the outstanding voting power of the Corporation
or in which the stockholders of the Corporation immediately prior to such
transaction or series of transactions own less than fifty percent (50%) of the
Corporation's voting power immediately after such transaction or series of
transactions (a "Change in Control").
(ii) Valuation of Consideration. In the event of
a Change in Control, if the consideration received by the Corporation is other
than cash, its value will be deemed its fair market value as determined in good
faith by the Corporation's Board of Directors. Notwithstanding the foregoing,
any securities shall be valued as follows:
(A) Securities not subject to investment
letter or other similar restrictions on free marketability:
(1) If traded on a securities
exchange or The Nasdaq National Market, the value shall be deemed to be the
average of the closing prices of the securities on such exchange over the thirty
(30) day period ending three (3) days prior to the closing;
(2) If actively traded over-
the-counter, the value shall be deemed to be the average of the closing bid or
sale prices (whichever is applicable) over the thirty (30) day period ending
three (3) days prior to the closing; and
(3) If there is no active public
market, the value shall be the fair market value thereof, as determined in good
faith by the Corporation's Board of Directors.
(B) The method of valuation of securities
subject to investment letter or other restrictions on free marketability (other
than restrictions arising solely by virtue of a stockholder's status as an
affiliate or former affiliate) shall be to make an appropriate discount from the
market value determined as above in Section 3(B)(ii)(A) to reflect the
approximate fair market value thereof, as determined in good faith by the
Corporation's Board of Directors.
(iii) Notice of Transaction. The Corporation shall
give each holder of record of Series B Convertible Preferred Stock written
notice of such impending transaction not later than ten business (10) days prior
to the stockholders' meeting called to approve such transaction, or ten business
(10) days prior to the closing of such transaction, whichever is earlier, and
shall also notify such holders in writing of the final approval of such
transaction. The first of such notices shall describe the material terms and
conditions of the impending transaction and the provisions of this Section 3,
and the Corporation shall thereafter give such holders prompt notice of any
material changes. The transaction shall in no event take place sooner than ten
business (10) days after the Corporation has given the first notice provided for
herein or sooner than ten business (10) days after the Corporation has given
notice of any material changes provided for herein; provided, however, that such
periods may be shortened upon the written consent of the holders of Preferred
Stock that are entitled to such notice rights or similar notice rights and that
represent at least a majority of the voting power of all then outstanding shares
of such Preferred Stock.
(iv) Effect of Noncompliance. In the event the
requirements of this Section 3(B) are not complied with, the Corporation shall
forthwith either cause the closing of the transaction to be postponed until such
requirements have been complied with, or cancel such transaction, in which event
the rights, preferences and privileges of the holders of the Series B
Convertible Preferred Stock shall revert to and be the same as such rights,
preferences and privileges existing immediately prior to the closing of the
transaction.
Section 4. Conversion. The holders of the Series B Convertible
Preferred Stock shall have conversion rights as follows (the "Conversion
Rights"):
(A) Right to Convert. Subject to Section 4(C), each share of
Series B Convertible Preferred Stock shall be convertible, at the option of the
holder thereof, at any time after the date of issuance of such share, at the
office of the Corporation or any transfer agent for such stock, into such number
of fully paid and nonassessable shares of Common Stock as is determined by
dividing $32.00 by the Conversion Price applicable to such share, determined as
hereafter provided, in effect on the date the certificate is surrendered for
conversion. The initial Conversion Price per share of Series B Convertible
Preferred Stock shall be set as of the earlier of (i) June 12, 2000 (the
"Anniversary Date"), upon written request by the holders of a majority of the
outstanding Series B Convertible Preferred Stock on or before July 10, 2000,
(ii) the date immediately preceding a Liquidation or Change of Control prior to
the Anniversary Date as defined herein (the "Liquidation Date"), (iii) the date
the holder thereof elects to convert such Series B Convertible Preferred Stock
or (iv) the date the Corporation elects to convert such Series B Convertible
Preferred Stock pursuant to Section 4(B) below. The initial Conversion Price
shall be the lower of (i) $8.00, or (ii) if the price is set as of the
Anniversary Date or the Liquidation Date, the average closing price of shares of
the Corporation's Common Stock on the Nasdaq National Market (or equivalent
exchange) for each of the first five (5) and last five (5) trading days of the
three (3) months immediately prior to such date, subject to adjustment as set
forth in Section 4(D) without regard to whether the event giving rise to such
adjustment occurs prior to or after the time at which the initial Conversion
Price is set.
(B) Automatic Conversion. Each share of Series B Convertible
Preferred Stock shall be converted, at the election of the Corporation, into
shares of Common Stock at the Conversion Price at the time in effect for such
share at any time after June 12, 2000, if at the time of such election the
average closing price per share of the Corporation's Common Stock on the Nasdaq
National Market (or equivalent exchange) for the immediately preceding twenty
(20) consecutive trading days exceeds $16 per share (as adjusted for stock
splits and combinations).
(C) Mechanics of Conversion. Before any holder of Series B
Convertible Preferred Stock shall be entitled to convert the same into shares of
Common Stock, such holder shall surrender the certificate or certificates
therefor, duly endorsed, at the office of the Corporation or of any transfer
agent for the Series B Convertible Preferred Stock, and shall give written
notice to the Corporation at its principal corporate office, of the election to
convert the same and shall state therein the name or names in which the
certificate or certificates for shares of Common Stock are to be issued. The
Corporation shall, as soon as practicable thereafter, issue and deliver at such
office to such holder of Series B Convertible Preferred Stock, or to the nominee
or nominees of such holder, a certificate or certificates for the number of
shares of Common Stock to which such holder shall be entitled as aforesaid. Such
conversion shall be deemed to have been made immediately prior to the close of
business (i) on the date of such surrender of the shares of such series of
Preferred Stock to be converted or (ii) in case of a conversion pursuant to
Section 4(B), on the date the Corporation delivers notice of its intent to
effect an automatic conversion pursuant to Section 4(B). The person or persons
entitled to receive the shares of Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such shares
of Common Stock as of such date.
(D) Conversion Price Adjustments of Preferred Stock for
Certain Dilutive Issuances, Splits and Combinations. The Conversion Price of the
Series B Convertible Preferred Stock shall be subject to adjustment from time to
time as follows:
(i) Issuance of Additional Stock below Purchase
Price. If the Corporation shall issue, after the date upon which any shares of
Series B Convertible Preferred Stock were first issued (the "Purchase Date"),
any Additional Stock (as defined below) without consideration or for a
consideration per share less than the Conversion Price for such Series B
Convertible Preferred Stock in effect immediately prior to the issuance of such
Additional Stock, the Conversion Price for such Series B Convertible Preferred
Stock in effect immediately prior to each such issuance shall automatically be
adjusted as set forth in this Section 4(D)(i), unless otherwise provided in this
Section 4(D)(i).
(A) Adjustment Formula. Whenever the
Conversion Price is adjusted pursuant to this Section 4(D)(i), the new
Conversion Price shall be determined by multiplying the Conversion Price then in
effect by a fraction, (x) the numerator of which shall be the number of shares
of Common Stock outstanding immediately prior to such issuance (the "Outstanding
Common") plus the number of shares of Common Stock that the aggregate
consideration received by the Corporation for such issuance would purchase at
such Conversion Price then in effect for such series; and (y) the denominator of
which shall be the number of shares of Outstanding Common plus the number of
shares of such Additional Stock. For purposes of the foregoing calculation, the
term "Outstanding Common" shall include shares of Common Stock deemed issued
pursuant to Section 4(D)(i)(E) below.
(B) Definition of "Additional Stock". For
purposes of this Section 4(D)(i), "Additional Stock" shall mean any shares of
Common Stock issued (or deemed to have been issued pursuant to Section
4(D)(i)(E)) by the Corporation after the Purchase Date) other than
(1) Common Stock issued pursuant
to a transaction described in Section 4(D)(iii) hereof,
(2) Shares of Common Stock
issuable or issued to employees, consultants or directors of the Corporation
directly or pursuant to stock option plans or restricted stock plans approved by
the Board of Directors of the Corporation,
(3) Capital stock, or options or
warrants to purchase capital stock, issued to financial institutions or lessors
in connection with commercial credit arrangements, equipment financings or
similar transactions,
(4) Shares of Common Stock or
Preferred Stock issuable upon exercise of warrants outstanding as of the
Purchase Date,
(5) Capital stock or warrants or
options to purchase capital stock issued in connection with bona fide
acquisitions, mergers or similar transactions, the terms of which are approved
by the Board of Directors of the Corporation, and
(6) Shares of Common Stock
issued or issuable upon conversion of the Series B Convertible Preferred Stock.
(C) No Fractional Adjustments. No
adjustment of the Conversion Price for the Series B Convertible Preferred Stock
shall be made in an amount less than one cent per share, provided that any
adjustments which are not required to be made by reason of this sentence shall
be carried forward and shall be either taken into account in any subsequent
adjustment made prior to three years from the date of the event giving rise to
the adjustment being carried forward, or shall be made at the end of three years
from the date of the event giving rise to the adjustment being carried forward.
(D) Determination of Consideration. In the
case of the issuance of Common Stock for cash, the consideration shall be deemed
to be the amount of cash paid therefor before deducting any reasonable
discounts, commissions or other expenses allowed, paid or incurred by the
Corporation for any underwriting or otherwise in connection with the issuance
and sale thereof. In the case of the issuance of the Common Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair value thereof as determined in good faith by
the Board of Directors irrespective of any accounting treatment.
(E) Deemed Issuances of Common Stock.
In the case of the issuance (whether before, on or after the applicable Purchase
Date) of options to purchase or rights to subscribe for Common Stock, securities
by their terms convertible into or exchangeable for Common Stock or options to
purchase or rights to subscribe for such convertible or exchangeable securities,
the following provisions shall apply for all purposes of this Section 4(D)(i):
(1) The aggregate maximum
number of shares of Common Stock deliverable upon exercise (assuming the
satisfaction of any conditions to exercisability, including without limitation,
the passage of time, but without taking into account potential antidilution
adjustments) of such options to purchase or rights to subscribe for Common Stock
shall be deemed to have been issued at the time such options or rights were
issued and for a consideration equal to the consideration (determined in the
manner provided in Section 4(D)(i)(D)), if any, received by the Corporation upon
the issuance of such options or rights plus the minimum exercise price provided
in such options or rights (without taking into account potential antidilution
adjustments) for the Common Stock covered thereby.
(2) The aggregate maximum number
of shares of Common Stock deliverable upon conversion of or in exchange
(assuming the satisfaction of any conditions to convertibility or
exchangeability, including, without limitation, the passage of time, but without
taking into account potential antidilution adjustments) for any such convertible
or exchangeable securities or upon the exercise of options to purchase or rights
to subscribe for such convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been issued at the time
such securities were issued or such options or rights were issued and for a
consideration equal to the consideration, if any, received by the Corporation
for any such securities and related options or rights (excluding any cash
received on account of accrued interest or accrued dividends), plus the minimum
additional consideration, if any, to be received by the Corporation (without
taking into account potential antidilution adjustments) upon the conversion or
exchange of such securities or the exercise of any related options or rights
(the consideration in each case to be determined in the manner provided in
Section 4(D)(i)(D)).
(3) In the event of any change
in the number of shares of Common Stock deliverable or in the consideration
payable to the Corporation upon exercise of such options or rights or upon
conversion of or in exchange for such convertible or exchangeable securities,
including, but not limited to, a change resulting from the antidilution
provisions thereof, the Conversion Price of the Series B Convertible Preferred
Stock, to the extent in any way affected by or computed using such options,
rights or securities, shall be recomputed to reflect such change, but no further
adjustment shall be made for the actual issuance of Common Stock or any payment
of such consideration upon the exercise of any such options or rights or the
conversion or exchange of such securities.
(4) Upon the expiration of any
such options or rights, the termination of any such rights to convert or
exchange or the expiration of any options or rights related to such convertible
or exchangeable securities, the Conversion Price of the Series B Convertible
Preferred Stock, to the extent in any way affected by or computed using such
options, rights or securities or options or rights related to such securities,
shall be recomputed to reflect the issuance of only the number of shares of
Common Stock (and convertible or exchangeable securities which remain in effect)
actually issued upon the exercise of such options or rights, upon the conversion
or exchange of such securities or upon the exercise of the options or rights
related to such securities.
(5) The number of shares of
Common Stock deemed issued and the consideration deemed paid therefor pursuant
to Sections 4(D)(i)(E)(1) and 4(D)(i)(E)(2) shall be appropriately adjusted to
reflect any change, termination or expiration of the type described in either
Section 4(D)(i)(E)(3) or 4(D)(i)(E)(4).
(F) No Increased Conversion Price. Not-
withstanding any other provisions of this Section 4(D)(i), except to the limited
extent provided for in Sections 4(D)(i)(E)(3) and 4(D)(i)(E)(4), no adjustment
of the Conversion Price pursuant to this Section 4(D)(i) shall have the effect
of increasing the Conversion Price above the Conversion Price in effect
immediately prior to such adjustment.
(ii) Stock Splits and Dividends. In the event
the Corporation should at any time or from time to time after the Purchase Date
fix a record date for the effectuation of a split or subdivision of the
outstanding shares of Common Stock or the determination of holders of Common
Stock entitled to receive a dividend or other distribution payable in additional
shares of Common Stock or other securities or rights convertible into, or
entitling the holder thereof to receive directly or indirectly, additional
shares of Common Stock (hereinafter referred to as "Common Stock Equivalents")
without payment of any consideration by such holder for the additional shares of
Common Stock or the Common Stock Equivalents (including the additional shares of
Common Stock issuable upon conversion or exercise thereof), then, unless the
holders of Series B Convertible Preferred Stock receive a pro rata portion of
such dividends on a basis as if they had converted immediately prior to such
dividend, as of such record date (or the date of such dividend distribution,
split or subdivision if no record date is fixed), the Conversion Price of the
Series B Convertible Preferred Stock shall be appropriately decreased so that
the number of shares of Common Stock issuable on conversion of each share of
such series shall be increased in proportion to such increase of the aggregate
of shares of Common Stock outstanding and those issuable with respect to such
Common Stock Equivalents with the number of shares issuable with respect to
Common Stock Equivalents determined from time to time in the manner provided for
deemed issuances in Section 4(D)(i)(E).
(iii) Reverse Stock Splits. If the number of
shares of Common Stock outstanding at any time after the Purchase Date is
decreased by a combination of the outstanding shares of Common Stock, then,
following the record date of such combination, the Conversion Price for the
Series B Convertible Preferred Stock shall be appropriately increased so that
the number of shares of Common Stock issuable on conversion of each share of
such series shall be decreased in proportion to such decrease in outstanding
shares.
(E) Other Distributions. In the event the Corporation shall
declare a distribution payable in securities of other persons, evidences of
indebtedness issued by the Corporation or other persons, assets (excluding cash
dividends) or options or rights not referred to in Section 4(D)(iii), then, in
each such case for the purpose of this Section 4(E), the holders of Series B
Convertible Preferred Stock shall be entitled to a proportionate share of any
such distribution as though they were the holders of the number of shares of
Common Stock of the Corporation into which their shares of Preferred Stock are
convertible as of the record date fixed for the determination of the holders of
Common Stock of the Corporation entitled to receive such distribution.
(F) Recapitalizations. If at any time or from time to time
there shall be a recapitalization of the Common Stock (other than a subdivision,
combination or merger or sale of assets transaction provided for elsewhere in
Section 3 or this Section 4) provision shall be made so that the holders of the
Series B Convertible Preferred Stock shall thereafter be entitled to receive
upon conversion of such Preferred Stock the number of shares of stock or other
securities or property of the Corporation or otherwise, to which a holder of
Common Stock deliverable upon conversion would have been entitled on such
recapitalization. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 4 with respect to the rights of
the holders of such Preferred Stock after the recapitalization to the end that
the provisions of this Section 4 (including adjustment of the Conversion Price
then in effect and the number of shares purchasable upon conversion of such
Preferred Stock) shall be applicable after that event and be as nearly
equivalent as practicable to what such holder would be entitled had the
recapitalization not been effected.
(G) No Impairment. The Corporation will not, by amendment of
its Certificate of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but will at all times in good faith assist in the
carrying out of all the provisions of this Section 4 and in the taking of all
such action as may be necessary or appropriate in order to protect the
Conversion Rights of the holders of Preferred Stock against impairment.
(H) No Fractional Shares and Certificate as to Adjustments.
(i) No fractional shares shall be issued upon
the conversion of any share or shares of the Series B Convertible Preferred
Stock, and the number of shares of Common Stock to be issued shall be rounded to
the nearest whole share. The number of shares issuable upon such conversion
shall be determined on the basis of the total number of shares of Series B
Convertible Preferred Stock the holder is at the time converting into Common
Stock and the number of shares of Common Stock issuable upon such aggregate
conversion.
(ii) Upon the occurrence of each adjustment or
readjustment of the Conversion Price of Series B Convertible Preferred Stock
pursuant to this Section 4, the Corporation, at its expense, shall promptly
compute such adjustment or readjustment in accordance with the terms hereof and
prepare and furnish to each holder of such Preferred Stock a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon which
such adjustment or readjustment is based. The Corporation shall, upon the
written request at any time of any holder of Series B Convertible Preferred
Stock, furnish or cause to be furnished to such holder a like certificate
setting forth (A) such adjustment and readjustment, (B) the Conversion Price for
the Series B Convertible Preferred Stock at the time in effect, and (C) the
number of shares of Common Stock and the amount, if any, of other property which
at the time would be received upon the conversion of a share of the Series B
Convertible Preferred Stock.
(I) Notices of Record Date. In the event of any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, the Corporation
shall mail to each holder of Series B Convertible Preferred Stock, at least ten
(10) days prior to the date specified therein, a notice specifying the date on
which any such record is to be taken for the purpose of such dividend,
distribution or right, and the amount and character of such dividend,
distribution or right.
(J) Reservation of Stock Issuable Upon Conversion. The
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock, solely for the purpose of effecting the
conversion of the shares of the Series B Convertible Preferred Stock, such
number of its shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding shares of such series of Preferred
Stock; and if at any time the number of authorized but unissued shares of Common
Stock shall not be sufficient to effect the conversion of all then outstanding
shares of such series of Preferred Stock, in addition to such other remedies as
shall be available to the holder of such Preferred Stock, the Corporation will
take such corporate action as may, in the opinion of its counsel, be necessary
to increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purposes, including, without limitation,
engaging in best efforts to obtain the requisite stockholder approval of any
necessary amendment to this Certificate of Incorporation.
(K) Notices. Any notice required by the provisions of this
Section 4 to be given to the holders of shares of Series B Convertible Preferred
Stock shall be deemed given if deposited in the United States mail, postage
prepaid, and addressed to each holder of record at his address appearing on the
books of the Corporation.
Section 5. Redemption.
(A) Redemption Date and Price. Subject to the rights of series
of Preferred Stock which may from time to time come into existence, at any time
after June 12, 2003, but on a date (the "Redemption Date") within thirty (30)
days after receipt by the Corporation of a written request (a "Redemption
Election") from the holders of not less than a majority of the then outstanding
Series B Convertible Preferred Stock that all or some of the shares of such
series held by such holders be redeemed, the Corporation shall, to the extent it
may lawfully do so, redeem the number of shares specified in the Redemption
Election and any additional shares tendered pursuant to Section 5(B) below in
accordance with the procedures set forth in this Section 5 by paying in cash
therefor a sum per share equal to $32 per share of Series B Convertible
Preferred Stock (as adjusted for stock splits and combinations) plus all accrued
but unpaid dividends on such shares (the "Redemption Price").
(B) Procedure. Subject to the rights of series of Preferred
Stock which may from time to time come into existence, within fifteen (15) days
following its receipt of the Redemption Election, the Corporation shall mail a
written notice, first class postage prepaid, to each holder of record (at the
close of business on the business day next preceding the day on which notice is
given) of Series B Convertible Preferred Stock at the address last shown on the
records of the Corporation for such holder, notifying such holder of the
redemption to be effected, the Redemption Date, the applicable Redemption Price,
the place at which payment may be obtained and calling upon such holder to
surrender to the Corporation, in the manner and at the place designated, such
holder's certificate or certificates representing the shares that such holder
desires to be redeemed (the "Redemption Notice"). The Redemption Date shall be
at least seven (7) days after the date of mailing of the Redemption Notice. Any
holder of Series B Convertible Preferred Stock who has not made a Redemption
Election and who wishes to have some or all of its shares redeemed shall provide
written notice to the Corporation on or before three (3) days prior to the
Redemption Date, specifying the number of shares of Series B Convertible
Preferred Stock such holder wishes to be redeemed. Except as provided in Section
5(C), on or after the Redemption Date, each holder of Series B Convertible
Preferred Stock to be redeemed shall surrender to the Corporation the
certificate or certificates representing such shares, in the manner and at the
place designated in the Redemption Notice, and thereupon the Redemption Price of
such shares shall be payable to the order of the person whose name appears on
such certificate or certificates as the owner thereof and each surrendered
certificate shall be canceled. In the event less than all the shares represented
by any such certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares.
(C) Effect of Redemption; Insufficient Funds. From and after
the Redemption Date, unless there shall have been a default in payment of the
Redemption Price, all rights of the holders of shares of Series B Convertible
Preferred Stock designated for redemption in the Redemption Notice (except the
right to receive the Redemption Price without interest upon surrender of their
certificate or certificates) shall cease with respect to such shares, and such
shares shall not thereafter be transferred on the books of the Corporation or be
deemed to be outstanding for any purpose whatsoever. Subject to the rights of
series of Preferred Stock which may from time to time come into existence, if
the funds of the Corporation legally available for redemption of shares of
Series B Convertible Preferred Stock on any Redemption Date are insufficient to
redeem the total number of shares of Series B Convertible Preferred Stock to be
redeemed on such date, those funds which are legally available will be used to
redeem the maximum possible number of such shares ratably among the holders of
such shares to be redeemed based upon the total Redemption Price applicable to
each such holder's shares of Series B Convertible Preferred Stock which are
subject to redemption on such Redemption Date. The shares of Series B
Convertible Preferred Stock not redeemed shall remain outstanding and entitled
to all the rights and preferences provided herein. Subject to the rights of
series of Preferred Stock which may from time to time come into existence, at
any time thereafter when additional funds of the Corporation are legally
available for the redemption of shares of Series B Convertible Preferred Stock,
such funds will immediately be used to redeem the balance of the shares which
the Corporation has become obliged to redeem on any Redemption Date but which it
has not redeemed.
Section 6. Voting Rights. Except as otherwise expressly provided herein
or by law, the holder of each share of Series B Convertible Preferred Stock
shall have the right to one vote for each share of Common Stock into which such
Preferred Stock could then be converted, and with respect to such vote, such
holder shall have full voting rights and powers equal to the voting rights and
powers of the holders of Common Stock, and shall be entitled, notwithstanding
any provision hereof, to notice of any stockholders' meeting in accordance with
the bylaws of the Corporation, and shall be entitled to vote, together with
holders of Common Stock, with respect to any question upon which holders of
Common Stock have the right to vote. Fractional votes shall not, however, be
permitted and any fractional voting rights available on an as-converted basis
(after aggregating all shares into which shares of Series B Convertible
Preferred Stock held by each holder could be converted) shall be rounded to the
nearest whole number (with one-half being rounded upward). Notwithstanding
anything to the contrary contained herein, so long as 300,000 shares of Series B
Convertible Preferred Stock remain outstanding (as adjusted for stock splits and
combinations), the holders of a majority of the Series B Convertible Preferred
Stock shall be entitled to elect one (1) member of the Board of Directors of the
Corporation.
Section 7. Protective Provisions. Subject to the rights of series of
Preferred Stock which may from time to time come into existence, so long as at
least 30,000 shares of Series B Convertible Preferred Stock are outstanding (as
adjusted for stock splits, stock dividends and combinations), the Corporation
shall not without first obtaining the approval (by vote or written consent, as
provided by law) of the holders of at least a majority of the then outstanding
shares of Series B Convertible Preferred Stock, voting together as a class:
(A) alter or change the rights, preferences or privileges of
the shares of Series B Convertible Preferred Stock so as to affect adversely the
shares of such series;
(B) increase or decrease (other than by redemption or
conversion) the total number of authorized shares of Series B Convertible
Preferred Stock;
(C) authorize or issue, or obligate itself to issue, any other
equity security, including any other security convertible into or exercisable
for any equity security, having a preference over the Series B Convertible
Preferred Stock with respect to voting, dividends or conversion; or
(D) reclassify the shares of Common Stock or any other shares
of any class of capital stock hereafter created junior to the Series B
Convertible Preferred Stock into shares of any class or series of capital stock
(i) ranking either as to payment of dividends, distributions of assets or
redemptions, prior to the Series B Convertible Preferred Stock, or (ii) which in
any manner adversely affects the holders of Series B Convertible Preferred
Stock.
Section 8. Reacquired Shares. Any shares of Series B Convertible
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 9. Ranking. The Series B Convertible Preferred Stock shall rank
senior to the Corporation's Series A Preferred Stock, Common Stock and, unless
the terms of any such class or series shall provide otherwise, all other classes
of capital stock or series of the Corporation's Preferred Stock as to dividend
rights, rights of liquidation, winding up or dissolution.
Section 10. Amendment. This Certificate of Designation shall not
be amended without the affirmative vote of the holders of a majority of the
outstanding shares of Series B Convertible Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and do affirm the foregoing as true under the penalties of perjury this 12th
day of June, 1998.
/s/ Mark Fischer-Colbrie
-------------------------------------
Mark Fischer-Colbrie, Vice President,
Finance and Administration and
Chief Financial Officer
ATTEST:
/s/ Michael W. Hall
- ---------------------------
Michael W. Hall, Secretary
EXHIBIT F
KERAVISION, INC.
INVESTORS' RIGHTS AGREEMENT
This Investors' Rights Agreement (the "Agreement") is made as of the
12th day of June, 1998, by and among KeraVision, Inc., a Delaware corporation
(the "Company"), the investors listed on Exhibit A hereto, each of which is
herein referred to as an "Investor."
RECITALS
The Company and the Investors have entered into a Series B Convertible
Preferred Stock Purchase Agreement (the "Purchase Agreement") of even date
herewith pursuant to which the Company desires to sell to the Investors and the
Investors desire to purchase from the Company shares of the Company's Series B
Convertible Preferred Stock. A condition to the Investors' obligations under the
Purchase Agreement is that the Company and the Investors enter into this
Agreement in order to provide the Investors with (i) certain rights to register
shares of the Company's Common Stock issuable upon conversion of the Series B
Convertible Preferred Stock held by the Investors and (ii) a right of first
offer with respect to certain issuances by the Company of its securities. The
Company and the Investors each desire to induce the Investors to purchase shares
of Series B Convertible Preferred Stock pursuant to the Purchase Agreement by
agreeing to the terms and conditions set forth herein.
AGREEMENT
The parties hereby agree as follows:
1. Registration Rights. The Company and the Investors covenant
and agree as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities Act
of 1933, as amended (the "Securities Act"), and the declaration or ordering of
effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means (i)
the shares of Common Stock issuable or issued upon conversion of the Series B
Convertible Preferred Stock and (ii) any other shares of Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) or by way of a dividend, a stock
split or other distribution with respect to, or in exchange for or in
replacement of, the shares listed in (i) or the Series B Convertible Preferred
Stock or any shares of Common Stock of the Company issued in connection with a
combination of shares, reclassification, recapitalization, merger, consolidation
or reorganization with respect to the shares listed in (i) or the Series B
Convertible Preferred Stock; provided, however, that the foregoing definition
shall exclude in all cases any Registrable Securities sold by a person in a
transaction in which his or her rights under this Agreement are not assigned.
Notwithstanding the foregoing, Common Stock or other securities shall only be
treated as Registrable Securities if and so long as they have not been (A) sold
to or through a broker or dealer or underwriter in a public distribution or a
public securities transaction, or (B) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions, and restrictive legends
with respect thereto, if any, are removed upon the consummation of such sale;
(c) The number of shares of "Registrable
Securities then outstanding" shall be determined by the number of shares of
Common Stock outstanding which are, and the number of shares of Common Stock
issuable pursuant to then exercisable or convertible securities which are,
Registrable Securities;
(d) The term "Holder" means any person owning or
having the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.11 of this Agreement;
(e) The term "Form S-1" means such form under
the Securities Act as in effect on the date hereof or any successor form under
the Securities Act;
(f) The term "Form S-3" means such form under
the Securities Act as in effect on the date hereof or any successor form under
the Securities Act; and
(g) The term "SEC" means the Securities and
Exchange Commission.
1.2 Form S-3 and Form S-1 Registration.
(a) Within thirty (30) days after the date hereof,
the Company shall file with the SEC a registration statement on Form S-3
covering all of the Registrable Securities and use its best efforts thereafter
to effect such registration and all such qualifications and compliances as may
be necessary and as would permit or facilitate the sale and distribution of all
of the Registrable Securities; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance pursuant
to this Section 1.2(a): (i) if Form S-3 is not available for such offering by
the Holders; or (ii) in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent to service
of process in effecting such registration, qualification or compliance.
(b) In the event that a registration on Form S-3
is not available to the Company or if the effectiveness of the Form S-3 is
suspended or terminated at any time within the two (2) year period following the
date hereof, then the Company shall give written notice to all Holders and shall
use its best efforts to effect as soon as practicable the registration on Form
S-1 of all Registrable Securities which the Holders request to be registered
pursuant to such request and all such qualifications and compliances as may be
necessary and as would permit or facilitate the sale and distribution of all of
the Registrable Securities requested to be registered; provided, however, that
the Company shall not be obligated to effect any such registration,
qualification or compliance pursuant to this Section 1.2(b): (i) if Form S-1 is
not available for such offering by the Holders; (ii) after the Company has
effected two (2) registrations pursuant to this Section 1.2(b) and such
registrations have been declared or ordered effective; (iii) if one registration
pursuant to this Section 1.2(b) has been filed within the previous six (6)
months of the date upon which a demand pursuant to this Section 1.2(b) has been
made and has been declared or ordered effective; (iv) after the second
anniversary of the date hereof; or (v) in any particular jurisdiction in which
the Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance.
1.3 Company Registration. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock under the Securities Act in connection with the public offering of such
securities solely for cash (other than a registration relating solely to the
sale of securities to participants in a Company stock plan or a transaction
covered by Rule 145 under the Securities Act, a registration in which the only
stock being registered is Common Stock issuable upon conversion of debt
securities which are also being registered, or any registration on any form
which does not include substantially the same information as would be required
to be included in a registration statement covering the sale of the Registrable
Securities), the Company shall, at such time, promptly give each Holder written
notice of such registration. Upon the written request of each Holder given
within twenty (20) days after mailing of such notice by the Company in
accordance with Section 3.3, the Company shall, subject to the provisions of
Section 1.7, cause to be registered under the Securities Act all of the
Registrable Securities that each such Holder has requested to be registered.
1.4 Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective and keep such
registration statement effective until two (2) years after the date hereof.
(b) Prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement until two (2) years
after the date hereof.
(c) Furnish to the Holders (and to each
underwriter, if any) such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
(e) Before filing the registration statement or
prospectus, or amendments or supplements thereto, furnish to counsel selected by
the participating Holders copies of such documents proposed to be filed which
shall be subject to the reasonable approval of such counsel.
(f) In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement.
(g) Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing and promptly file such amendments and supplements as may be
necessary so that, as thereafter delivered to such Holders of such Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading and use its best efforts to cause each such amendment and supplement
to become effective.
(h) Cause all such Registrable Securities
registered pursuant hereunder to be listed on each securities exchange on which
similar securities issued by the Company are then listed.
(i) Provide a transfer agent and registrar for
all Registrable Securities registered pursuant hereunder and a CUSIP number for
all such Registrable Securities, in each case not later than the effective date
of such registration.
(j) Use its best efforts to furnish, at the
request of any Holder requesting registration of Registrable Securities pursuant
to this Section 1, on the date that such Registrable Securities are delivered to
the underwriters for sale in connection with a registration pursuant to this
Section 1, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(ii) a letter dated such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
1.5 Furnish Information. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities.
1.6 Expenses of Registration. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications of Registrable Securities pursuant to
Sections 1.2 or 1.3 for each Holder (which right may be assigned as provided in
Section 1.11), including (without limitation) all registration, filing, and
qualification fees, printers' and accounting fees and fees and disbursements of
counsel for the Company shall be borne by the Company.
1.7 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in good faith will not jeopardize the
success of the offering by the Company. If the total amount of securities,
including Registrable Securities, requested by stockholders to be included in
such offering exceeds the amount of securities sold other than by the Company
that the underwriters determine in good faith is compatible with the success of
the offering, then the Company shall be required to include in the offering only
that number of such securities, including Registrable Securities, which the
underwriters determine in good faith will not jeopardize the success of the
offering (the securities so included to be apportioned pro rata among the
selling stockholders according to the total amount of securities entitled to be
included therein owned by each selling stockholder or in such other proportions
as shall mutually be agreed to by such selling stockholders) but in no event
shall the amount of securities of the selling Holders included in the offering
be reduced below twenty-five percent (25%) of the total amount of securities
included in such offering. For purposes of the preceding parenthetical
concerning apportionment, for any selling stockholder which is a holder of
Registrable Securities and which is a partnership or corporation, the partners,
retired partners and stockholders of such holder, or the estates and family
members of any such partners and retired partners and any trusts for the benefit
of any of the foregoing persons shall be deemed to be a single "selling
stockholder," and any pro-rata reduction with respect to such "selling
stockholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling stockholder," as defined in this sentence.
1.8 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.9 Indemnification. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company
will indemnify and hold harmless each Holder, any underwriter (as defined in the
Securities Act) for such Holder and each person, if any, who controls such
Holder or underwriter within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and each officer,
director, employee or agent thereof, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law; and the Company will pay to each
such Holder, underwriter or controlling person and each officer, director,
employee or agent thereof, as incurred, any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 1.9(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable to any Holder,
underwriter or controlling person for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder,
underwriter or controlling person.
(b) To the extent permitted by law, each selling
Holder will severally (and not jointly) indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed the registration
statement, each person, if any, who controls the Company within the meaning of
the Securities Act, any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such underwriter or
other Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will pay, as incurred, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this subsection 1.9(b), in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 1.9(b) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Holder, which
consent shall not be unreasonably withheld; provided, that in no event shall any
indemnity under this subsection 1.9(b) exceed the net proceeds from the offering
received by such Holder, except in the case of willful fraud by such Holder.
(c) Promptly after receipt by an indemnified party
under this Section 1.9 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.9,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.9, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.9.
(d) If the indemnification provided for in this
Section 1.9 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations; provided, that in no event shall any contribution by a Holder
under this subsection 1.9(d) exceed the net proceeds from the offering received
by such Holder, except in the case of willful fraud by such Holder. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) The obligations of the Company and Holders
under this Section 1.9 shall survive the completion of any offering of
Registrable Securities in a registration statement under this Section 1, and
otherwise (and, to the extent permitted by law, any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
of such indemnified party).
1.10 Reports Under Securities Exchange Act of 1934. With a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Securities Act and any other rule or regulation of the SEC that may at
any time permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available,
as those terms are understood and defined in SEC Rule 144 at all times;
(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the Exchange Act, as is
necessary to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities;
(c) file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act; and
(d) furnish to any Holder, so long as the Holder
owns any Registrable Securities, forthwith upon request (i) a written statement
by the Company that it has complied with the reporting requirements of SEC Rule
144, the Securities Act and the Exchange Act or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3, (ii) a copy of
the most recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information as may
be reasonably requested in availing any Holder of any rule or regulation of the
SEC which permits the selling of any such securities without registration or
pursuant to such form.
1.11 Assignment of Registration Rights. The rights to cause
the Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of at least 100,000 shares or all of such securities, provided the
Company is, within a reasonable time after such transfer, furnished with written
notice of the name and address of such transferee or assignee and the securities
with respect to which such registration rights are being assigned; and provided,
further, that such assignment shall be effective only if immediately following
such transfer the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act. For the purposes of determining
the number of shares of Registrable Securities held by a transferee or assignee,
the holdings of transferees and assignees of a partnership who are partners or
retired partners of such partnership (including spouses and ancestors, lineal
descendants and siblings of such partners or spouses who acquire Registrable
Securities by gift, will or intestate succession) shall be aggregated together
and with the partnership; provided that all assignees and transferees who would
not qualify individually for assignment of registration rights shall have a
single attorney-in-fact for the purpose of exercising any rights, receiving
notices or taking any action under Section 1.
1.12 Termination of Registration Rights. No Holder shall be
entitled to exercise any right provided for in this Section 1 after the earlier
of (i) two (2) years after the date hereof or (ii) such time as Rule 144 or
another similar exemption under the Securities Act is available for the sale of
all of such Holder's shares during a three (3) month period without
registration.
1.13 Restrictions on and Procedure for Sales. Each Investor
shall comply with following procedures:
(a) If any Investor shall propose to sell any
Registrable Securities pursuant to a registration statement filed by the Company
pursuant to Section 1.2 or 1.3, the Investor shall notify the Company of its
intent to do so at least three (3) full business days prior to such sale (the
"Notice of Sale"), and the provision of the Notice of Sale to the Company shall
conclusively be deemed to establish an agreement by such Investor to comply with
the registration provisions herein described. The Notice of Sale shall be deemed
to constitute a representation that any information previously supplied by such
Investor is accurate as of the date of such Notice of Sale.
(b) The Notice of Sale in substantially the form
attached as Exhibit B shall be delivered to the Company at the address shown on
Exhibit A in writing in accordance with Section 3.3. However, the Investor may
give the Notice of Sale orally by telephoning Mark Fischer-Colbrie or the then
current Chief Financial Officer of the Company at (510) 353-3000. An oral Notice
of Sale shall be deemed to have been received only at such time as the selling
Investor speaks directly with Mr. Fischer-Colbrie (or such then current Chief
Financial Officer). In addition, an oral Notice of Sale shall only be deemed
effective if it is followed by a written Notice of Sale received by the Company
by personal delivery or facsimile within twenty-four (24) hours after giving the
oral Notice of Sale.
(c) Unless the Company has notified the selling
Investor in writing that the Company will not refuse the sale of Registrable
Securities identified in a Notice of Sale pursuant to this Section 1.13(c), at
any time within such three (3) business-day period, the Company may refuse to
permit the Investor to sell any Restricted Securities; provided, however, that
in order to exercise this right, the Company must deliver a certificate in
writing from an officer of the Company to the Investor to the effect that a
delay in such sale is necessary because a sale pursuant to the Registration
Statement in its then current form could constitute a violation of the federal
securities laws. In no event shall such delay exceed ten (10) trading days;
provided, however, that if, prior to the expiration of such ten (10) trading day
period, the Company delivers a certificate in writing from an officer of the
Company to the Investor to the effect that the Board of Directors of the Company
has determined in reasonable good faith that a further delay in such sale beyond
such ten (10) trading day period is necessary because a sale pursuant to such
Registration Statement in its then current form could constitute a violation of
the federal securities laws, the Company may refuse to permit such Investor to
resell any Shares for an additional period not to exceed ten (10) trading days.
The Company shall not exercise this right of delay for more than twenty (20)
consecutive trading days or for more than thirty (30) trading days in any six
(6) month period, provided, however, that in the event the ability of the
Investors to sell Registrable Securities under the Form S-3 or Form S-1 is
delayed or suspended for any reason during the two-year period following the
date hereof, the aggregate thirty (30) trading day limitation shall be reduced
by the number of trading days the Investors are restricted from selling the
Registrable Securities.
(d) Unless the Company delivers a certificate in
writing to the selling Investor pursuant to Section 1.13(c), the selling
Investor shall have thirty (30) trading days after the Notice of Sale in which
to complete the transaction identified in the Notice of Sale (the "Trading
Window"). Any period of delay pursuant to Section 1.13(c) shall extend the
Trading Window on a day by day basis.
2. Right of First Offer. Subject to the terms and conditions specified
in this Section 2, the Company hereby grants to each Investor (as hereinafter
defined) a right of first offer with respect to future sales by the Company of
its Shares (as hereinafter defined). An Investor who chooses to exercise the
right of first offer may designate as purchasers under such right itself or its
partners or affiliates in such proportions as it deems appropriate. Each time
the Company proposes to offer any shares of, or securities convertible into or
exercisable for any shares of, any class of its capital stock ("Shares"), the
Company shall first make an offering of such Shares to each Investor in
accordance with the following provisions:
(a) The Company shall deliver a notice by
certified mail ("Notice") to the Investors stating (i) its bona fide intention
to offer such Shares, (ii) the number of such Shares to be offered, and (iii)
the price and terms, if any, upon which it proposes to offer such Shares.
(b) Within 15 calendar days after delivery of the
Notice, the Investor may elect to purchase or obtain, at the price and on the
terms specified in the Notice, up to that portion of such Shares which equals
the proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion and exercise of all convertible or exercisable
securities then held, by such Investor bears to the total number of shares of
Common Stock then outstanding (assuming full conversion and exercise of all
convertible or exercisable securities). The Company shall promptly, in writing,
inform each Investor that purchases all the shares available to it (each, a
"Fully-Exercising Investor") of any other Investor's failure to do likewise.
During the ten (10)-day period commencing after receipt of such information,
each Fully-Exercising Investor shall be entitled to obtain that portion of the
Shares for which Investors were entitled to subscribe but which were not
subscribed for by the Investors that is equal to the proportion that the number
of shares of Common Stock issued and held, or issuable upon conversion and
exercise of all convertible or exercisable securities then held, by such
Fully-Exercising Investor bears to the total number of shares of Common Stock
then outstanding (assuming full conversion and exercise of all convertible or
exercisable securities).
(c) The Company may, during the 45-day period
following the expiration of the period provided in subsection 2(b) hereof, offer
and sell the remaining unsubscribed portion of the Shares to any person or
persons at a price not less than, and upon terms no more favorable to the
offeree than those specified in the Notice. If the Company does not enter into
an agreement for the sale of the Shares within such period and if such agreement
is not consummated within such period, the right provided hereunder shall be
deemed to be revived and such Shares shall not be offered unless first reoffered
to the Investors in accordance herewith.
(d) The right of first offer in this paragraph 2
shall not be applicable (i) to the issuance or sale of shares of Common Stock
(or options therefor) to employees, consultants and directors, pursuant to plans
or agreements approved by the Board of Directors, (ii) to the issuance of
securities pursuant to the conversion or exercise of convertible or exercisable
securities, (iii) to the issuance of securities in connection with a bona fide
business acquisition of or by the Company, whether by merger, consolidation,
sale of assets, sale or exchange of stock or otherwise, (iv) to the issuance of
securities to financial institutions or lessors in connection with commercial
credit arrangements, equipment financings, or similar transactions or (v) to the
issuance of the Series A Participating Preferred Stock.
(e) Notwithstanding the foregoing, the right of
first offer in this Section 2 shall terminate (i) with respect to any Investor
whose shares of Series B Convertible Preferred Stock are converted into shares
of Common Stock of the Company, or (ii) when the Company shall sell, convey, or
otherwise dispose of or encumber all or substantially all of its property or
business or merge into or consolidate with any other corporation (other than a
wholly-owned subsidiary corporation) or effect any other transaction or series
of related transactions in which more than fifty percent (50%) of the voting
power of the Company is disposed of.
3. Miscellaneous.
3.1 Successors and Assigns. Except as otherwise provided in
this Agreement, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties (including transferees of any of the Series B Convertible
Preferred Stock or any Common Stock issued upon conversion thereof). Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2 Amendments and Waivers. Any term of this Agreement may be
amended or waived only with the written consent of (i) the Company, (ii) the
holders of a majority of the Registrable Securities then outstanding, and (iii)
Johnson & Johnson Development Corporation if its obligations hereunder are
materially increased by such amendment. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each future holder of all
such Registrable Securities and the Company.
3.3 Notices. Unless otherwise provided, any notice required or
permitted by this Agreement shall be in writing and shall be deemed sufficient
upon delivery, when delivered personally or by overnight courier or sent by
telegram or fax, or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed to
the party to be notified at such party's address or fax number as set forth on
the signature page on Exhibit A hereto or as subsequently modified by written
notice.
3.4 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(a) such provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
3.5 Governing Law. This Agreement and all acts and
transactions pursuant hereto shall be governed, construed and interpreted in
accordance with the laws of the State of California, without giving effect to
principles of conflicts of laws.
3.6 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.7 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.8 Aggregation of Stock. All shares of the Preferred Stock
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
[Signature Page Follows]
The parties have executed this Investors' Rights Agreement as of the
date first above written.
COMPANY:
KeraVision, Inc.
By: /s/ Mark Fischer-Colbrie
----------------------------------------
Name: Mark Fischer-Colbrie
----------------------------------------
(print)
Title: VP-Finance/Admin; CFO
----------------------------------------
INVESTORS:
DLJ Capital Corp.
By: /s/ Kathleen D. LaPorte
--------------------------------------
Name: Kathleen D. LaPorte
---------------------------------------
Title: General Partner and Attorney in Fact
---------------------------------------
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation
Its: Manager
By: /s/ Kathleen D. LaPorte
-----------------------------------------
Name: Kathleen D. LaPorte
-----------------------------------------
Title: Attorney in Fact
-----------------------------------------
Sprout Capital VIII, L.P.
By: DLJ Capital Corp.
Its: Managing General Partner
By: /s/ Kathleen D. LaPorte
-----------------------------------------
Name: Kathleen D. LaPorte
-----------------------------------------
Title: General Partner and Attorney in Fact
-----------------------------------------
Sprout Venture Capital, L.P.
By: DLJ Capital Corp.
Its: Managing General Partner
By: /s/ Kathleen D. LaPorte
-----------------------------------------
Name: Kathleen D. LaPorte
-----------------------------------------
Title: General Partner and Attorney in Fact
-----------------------------------------
The Sprout CEO Fund, L.P.
By: DLJ Capital Corp.
Its: General Partner
By: /s/ Kathleen D. LaPorte
-----------------------------------------
Name: Kathleen D. LaPorte
-----------------------------------------
Title: General Partner and Attorney in Fact
-----------------------------------------
Johnson & Johnson Development
Corporation
By: /s/ Blair M. Flicker
-----------------------------------------
Name: Blair M. Flicker
-----------------------------------------
Title: Vice President
-----------------------------------------
GMI/DRI INVESTMENT TRUST
By: /s/ David B. Van Benschoten
-----------------------------------------
Name: David B. Van Benschoten
-----------------------------------------
Title: Executive Secretary - Benefit
Finance Committee of General Mills,
Inc., as Named Financial Fiduciary
-----------------------------------------
Special Situations Private Equity Fund, LP
By: /s/ Austin Marxe
-----------------------------------------
Name: Austin Marxe
-----------------------------------------
Title: Mg. Dir.
-----------------------------------------
Special Situations Fund III, LP
By: /s/ Austin Marxe
-----------------------------------------
Name: Austin Marxe
-----------------------------------------
Title: Mg. Dir.
-----------------------------------------
Special Situations Cayman Fund, LP
By: /s/ Austin Marxe
-----------------------------------------
Name: Austin Marxe
-----------------------------------------
Title: Mg. Dir.
-----------------------------------------
EXHIBIT A
Number of Purchase
Purchaser Shares Price
- ------------------------------------------- ------------- ---------------
DLJ Capital Corporation 4,987 $159,584
3000 Sand Hill Road, Bldg. 3, Suite 170
Menlo Park, CA 94025
Phone: (650) 234-2700
Fax: (650) 234-2779
DLJ ESC II, L.P. 31,791 $1,017,312
3000 Sand Hill Road, Bldg. 3, Suite 170
Menlo Park, CA 94025
Phone: (650) 234-2700
Fax: (650) 234-2779
Sprout Capital VIII, L.P. 317,715 $10,166,880
3000 Sand Hill Road,
Bldg. 3, Suite 170
Menlo Park, CA 94025
Phone: (650) 234-2700
Fax: (650) 234-2779
Sprout Venture Capital, L.P. 19,063 $610,016
3000 Sand Hill Road, Bldg. 3, Suite 170
Menlo Park, CA 94025
Phone: (650) 234-2700
Fax: (650) 234-2779
The Sprout CEO Fund, L.P. 1,444 $46,208
3000 Sand Hill Road, Bldg. 3, Suite 170
Menlo Park, CA 94025
Phone: (650) 234-2700
Fax: (650) 234-2779
Johnson & Johnson Development 93,750 $3,000,000
Corporation
One Johnson & Johnson Plaza
New Brunswick, New Jersey 08933
Attn: President
GMI/DRI INVESTMENT TRUST 31,250 $1,000,000
P.O. Box 1113
Minneapolis, MN 55440
CID: No. 136
(612) 540-3289
(612) 540-7384
Attn: Daralyn Peifer
Special Situations Private Equity Fund, LP 31,250 $1,000,000
153 E. 53rd Street
New York, New York 10022
Attn: Mr. Steve Becker
Special Situations Fund III, LP 23,437 $749,984
153 E. 53rd Street
New York, New York 10022
Attn: Mr. Steve Becker
Special Situations Cayman Fund, LP 7,813 $250,016
CIBC Bank
Edward Street
P.O. Box 694
Grand Cayman, Cayman Islands
British West Indies
Attn: Mr. Scott Summerville
Total 562,500 $18,000,000
EXHIBIT B
KERAVISION, INC.
NOTICE OF SALE
Pursuant to Section 1. 13 of the Investors' Rights Agreement dated as
of ___, 1998 among KeraVision, Inc. (the "Company"), the undersigned and
certain stockholders of the Company, the undersigned hereby gives notice to the
Company of the undersigned's intent to sell ____ shares of the Company's Common
Stock registered pursuant to the Registration Statement on Form S-3 (File No.
33-____).
Dated: , 199- By:
----------------- --------------------------------
(signature)
Name:
------------------------------
(print)
Title:
-----------------------------
(if applicable)
[Note: This Notice of Sale must be completed and delivered (via personal
delivery or facsimile) to the Chief Financial Officer of the Company at least
three (3) business days prior to sale of the shares of the Company's Common
Stock registered pursuant to the Registration Statement.] [GRAPHIC OMITTED]
