Exhibit
4.2


 


 


INTARCIA
THERAPEUTICS, INC.


 


AMENDED
AND RESTATED INVESTORS’ RIGHTS AGREEMENT


 


 


NOVEMBER
19, 2004


 


 





















 


TABLE OF
CONTENTS


 


	
   

  	
  Page

  
	
  1. REGISTRATION RIGHTS

  	
  2

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1. Definitions

  	
  2

  
	
   

  	
   

  	
   

  
	
   

  	
  1.2 Request for Registration

  	
  3

  
	
   

  	
   

  	
   

  
	
   

  	
  1.3 Company Registration

  	
  4

  
	
   

  	
   

  	
   

  
	
   

  	
  1.4 Obligations of the
  Company

  	
  4

  
	
   

  	
   

  	
   

  
	
   

  	
  1.5 Furnish Information

  	
  6

  
	
   

  	
   

  	
   

  
	
   

  	
  1.6 Expenses of Demand
  Registration

  	
  6

  
	
   

  	
   

  	
   

  
	
   

  	
  1.7 Expenses of
  Company Registration

  	
  7

  
	
   

  	
   

  	
   

  
	
   

  	
  1.8 Underwriting Requirements

  	
  7

  
	
   

  	
   

  	
   

  
	
   

  	
  1.9 Delay of Registration

  	
  8

  
	
   

  	
   

  	
   

  
	
   

  	
  1.10 Indemnification

  	
  8

  
	
   

  	
   

  	
   

  
	
   

  	
  1.11 Reports
  Under Securities Exchange Act of 1934

  	
  10

  
	
   

  	
   

  	
   

  
	
   

  	
  1.12 Form S-3 Registration

  	
  10

  
	
   

  	
   

  	
   

  
	
   

  	
  1.13 Assignment of
  Registration Rights

  	
  11

  
	
   

  	
   

  	
   

  
	
   

  	
  1.14
  Limitations on Subsequent Registration Rights

  	
  12

  
	
   

  	
   

  	
   

  
	
   

  	
  1.15 “Market Stand-Off”
  Agreement

  	
  12

  
	
   

  	
   

  	
   

  
	
   

  	
  1.16 Termination of
  Registration Rights

  	
  12

  
	
   

  	
   

  	
   

  
	
  2. COVENANTS OF THE COMPANY

  	
  13

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1 Delivery of
  Financial Statements

  	
  13

  
	
   

  	
   

  	
   

  
	
   

  	
  2.2 Inspection

  	
  13

  
	
   

  	
   

  	
   

  
	
   

  	
  2.3
  Termination of Information and Inspection Covenants

  	
  14

  
	
   

  	
   

  	
   

  
	
   

  	
  2.4 Right of First Offer

  	
  14

  
	
   

  	
   

  	
   

  
	
   

  	
  2.5 Waiver of
  Right of First Offer for Series D Preferred Stock

  	
  15

  
	
   

  	
   

  	
   

  
	
   

  	
  2.6 FIRPTA Compliance

  	
  15

  
	
   

  	
   

  	
   

  
	
   

  	
  2.7
  Proprietary Information and Inventions Agreements

  	
  16

  
	
   

  	
   

  	
   

  
	
   

  	
  2.8
  Termination of Certain Covenants and Rights.

  	
  16

  
	
   

  	
   

  	
   

  
	
   

  	
  2.9 Reimbursement
  of Directors’ Expenses.

  	
  16

  
	
   

  	
   

  	
   

  
	
   

  	
  2.10 Negative Covenants.

  	
  16

  
	
   

  	
   

  	
   

  
	
  3.
  MISCELLANEOUS

  	
  16

  
	
   

  	
   

  
	
   

  	
  3.1 Amendment and Restatement

  	
  16

  
	
   

  	
   

  	
   

  
	
   

  	
  3.2 Successors and Assigns

  	
  16

  
	
   

  	
   

  	
   

  
	
   

  	
  3.3 Governing Law

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  3.4 Counterparts

  	
  17

  



 


i





















 


	
   

  	
  3.5 Titles and Subtitles

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  3.6 Notices

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  3.7 Expenses

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  3.8 Amendments and Waivers

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  3.9 Future Investors

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  3.10 Severability

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  3.11 Aggregation of Stock

  	
  18

  
	
   

  	
   

  	
   

  
	
   

  	
  3.12 Delays or Omissions

  	
  18

  
	
   

  	
   

  	
   

  
	
   

  	
  3.13 Entire Agreement

  	
  18

  



 


ii





















 


INTARCIA THERAPEUTICS, INC.


 


AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT


 


THIS
AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (the “Agreement”) is made as of the 19th day of November, 2004, by and
among INTARCIA THERAPEUTICS, INC., a Delaware
corporation (the “Company”),
the holders of the Company’s Series A Preferred Stock (the “Series A Preferred”),
the Company’s Series B Preferred Stock (the “Series B Preferred”), the Company’s Series C
Preferred Stock (the “Series C
Preferred”) and the Company’s Series D Preferred Stock (the “Series D Preferred”)
(hereinafter referred to as the “Prior
Investors”) listed on Exhibit
A hereto, the purchasers of the Company’s Series E Preferred Stock
(the “Purchasers”)
listed on Exhibit A hereto, and S. MARK MORAN (“Moran”).
The Prior Investors and the Purchasers are referred to hereinafter as the “Investors”
and each individually as an “Investor.”


 


RECITALS


 


WHEREAS, the Company, the Prior Investors and Moran
are parties to that certain Amended and Restated Investors’ Rights Agreement
dated as of June 16, 2003 (the “Prior Agreement”) which granted certain registration and
other rights to the Prior Investors and to Moran;


 


WHEREAS, the Company, the Prior Investors and Moran
desire to amend and restate the Prior Agreement as set forth herein and to
receive the rights, and to be subject to the obligations, created pursuant to
this Agreement in lieu of the rights and obligations set forth in the Prior
Agreement;


 


WHEREAS,
the Company proposes to sell and issue up to ninety-nine million (99,000,000)
shares of Series E Preferred Stock (the “Series E
Preferred”) to the Purchasers pursuant to that certain Series E
Preferred Stock Purchase Agreement (the “Purchase
Agreement”) of even date herewith; and


 


WHEREAS,
in order to induce the Company to enter into the Purchase Agreement and to
induce the Purchasers to invest funds in the Company pursuant to the Purchase
Agreement, the Investors, Moran and the Company hereby agree to enter into this
Agreement to amend and restate the Prior Agreement and to set forth their
agreements and understanding with respect to the rights granted to Investors by
the Company.


 


NOW,
THEREFORE, in consideration of the above recitals and the
mutual covenants made herein, the parties hereby agree that the Prior Agreement
is hereby amended and restated to read in its entirety as follow:


 



















AGREEMENT


 


1.                                      REGISTRATION RIGHTS.


 


1.1                               Definitions.  For purposes of this Section 1:


 


(a)                                  The
term “Act” means the Securities Act
of 1933, as amended.


 


(b)                                  The
term “Form S-3” means such form
under the Act as in effect on the date hereof or any registration form under
the Act subsequently adopted by the SEC (as defined below) which permits
inclusion or incorporation of substantial information by reference to other
documents filed by the Company with the SEC.


 


(c)                                  The
term “Holder” means any person
owning or having the right to acquire Registrable Securities or any assignee
thereof in accordance with Section 1.13 hereof.


 


(d)                                  The
term “1934 Act” shall mean the
Securities Exchange Act of 1934, as amended.


 


(e)                                  The
term “Preferred Stock” shall mean
the Series A Preferred, the Series B Preferred, the Series C Preferred, the
Series D Preferred and the Series E Preferred.


 


(f)                                    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
Act, and the declaration or ordering of effectiveness of such registration
statement or document.


 


(g)                                 The
term “Registrable Securities” means
(i) the Common Stock issuable or issued upon conversion of the Series A
Preferred, the Series B Preferred, the Series C Preferred, the Series D
Preferred or the Series E Preferred, (ii) the shares of Common Stock issued to
Moran; provided, however, that such shares of
Common Stock referred to in this clause (ii) shall not be deemed Registrable
Securities and Moran shall not be deemed a Holder for the purposes of Sections
1.2, 1.12, 1.14 and 3.8 and (iii) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, option, right or other
security which is issued as) a dividend or other distribution with respect to,
in exchange for or in replacement of the shares referenced in (i) and (ii)
above, excluding in all cases, however, any Registrable Securities sold by a
person in a transaction in which his rights under this Section 1 are not
assigned, and provided that any such shares issued with respect to, in exchange
for or in replacement of the shares referenced in clause (ii) above shall not
be deemed Registrable Securities for the purposes of Sections 1.2, 1.12, 1.14
and 3.8.


 


(h)                                 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.


 


2





















 


(i)                                    The
term “SEC” shall mean the
Securities and Exchange Commission.


 


1.2                               Request for Registration.


 


(a)                                  If
the Company shall receive at any time after the earlier of (i) November 19,
2007, or (ii) three (3) months after the effective date of the first
registration statement for a public offering of securities of the Company
(other than a registration statement relating either to the sale of securities
to employees of the Company pursuant to a stock option, stock purchase or
similar plan or an SEC Rule 145 transaction), a written request from the
Holders of forty percent (40%) of the Registrable Securities then outstanding
that the Company file a registration statement under the Act covering the
registration of such percentage of the Registrable Securities then outstanding
where the anticipated aggregate offering price, net of underwriting discounts
and commissions, would exceed $10,000,000, then the Company shall:


 


(i)                                    within
ten (10) days of the receipt thereof, give written notice of such request to
all Holders; and


 


(ii)                                effect
as soon as practicable, and in any event within ninety (90) days of the receipt
of such request, the registration under the Act of all Registrable Securities
which the Holders request to be registered, subject to the limitations of
subsection 1.2(b), within twenty (20) days of the mailing of such notice by the
Company in accordance with Section 3.6.


 


(b)                                  If
the Holders initiating the registration request hereunder (“Initiating Holders”)
intend to distribute the Registrable Securities covered by their request by
means of an underwriting, they shall so advise the Company as a part of their request
made pursuant to subsection 1.2(a) and the Company shall include such
information in the written notice referred to in subsection 1.2(a).  The underwriter will be selected by the
Company and shall be reasonably acceptable to a majority in interest of the
Initiating Holders.  In such event, the
right of any Holder to include his Registrable Securities in such registration
shall be conditioned upon such Holder’s participation in such underwriting and
the inclusion of such Holder’s Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of the Initiating
Holders and such Holder) to the extent provided herein.  All Holders proposing to distribute their
securities through such underwriting shall (together with the Company as
provided in subsection 1.4(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting.  Notwithstanding any other
provision of this Section 1.2, if the underwriter advises the Initiating
Holders in writing that marketing factors require a limitation of the number of
shares to be underwritten, then the Initiating Holders shall so advise all
Holders of Registrable Securities which would otherwise be underwritten
pursuant hereto, and the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated among all Holders (other than
Moran) thereof, including the Initiating Holders, in proportion (as nearly as
practicable) to the amount of Registrable Securities of the Company owned by
each Holder; provided, however, that the
number of shares of Registrable Securities to be included in such underwriting
shall not be reduced unless all other securities are first entirely excluded
from the underwriting.


 


3





















 


(c)                                  Notwithstanding
the foregoing, if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 1.2, a certificate signed by
the Chief Executive Officer of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than one hundred twenty
(120) days after receipt of the request of the Initiating Holders; provided, however, that the Company may not utilize this
right more than one (1) time in any twelve (12) month period.


 


(d)                                  In
addition, the Company shall not be obligated to effect, or to take any action
to effect, any registration pursuant to this Section 1.2:


 


(i)                                    After
the Company has effected two (2) registrations pursuant to this Section 1.2 and
such registrations have been declared or ordered effective;


 


(ii)                                During
the period starting with the date sixty (60) days prior to the Company’s good
faith estimate of the date of filing of, and ending on a date one hundred
eighty (180) days after the effective date of, a registration subject to
Section 1.3 hereof; provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective; or


 


(iii)                            If
the Initiating Holders propose to dispose of shares of Registrable Securities
that may be immediately registered on Form S-3 pursuant to a request made
pursuant to Section 1.12 below.


 


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 or other securities under the 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, a 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 or a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities which are also being registered), 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 3.6, the Company shall, subject to the
provisions of Section 1.8, cause to be registered under the 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 reasonable best efforts to cause such registration 


 


4





















 


statement to become
effective, and, upon the request of the Holders of a majority of the
Registrable Securities registered thereunder, keep such registration statement
effective for a period of up to sixty (60) days or until the distribution
contemplated in the Registration Statement has been completed; provided, however, that (i) such sixty (60) day period shall
be extended for a period of time equal to the period the Holder refrains from
selling any securities included in such registration at the request of an
underwriter of Common Stock (or other securities) of the Company; and (ii) in
the case of any registration of Registrable Securities on Form S-3 which are
intended to be offered on a continuous or delayed basis, such sixty (60) day
period shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold, provided that Rule
415, or any successor rule under the Act, permits an offering on a continuous
or delayed basis, and provided further that applicable rules under the Act
governing the obligation to file a post-effective amendment permit, in lieu of
filing a post-effective amendment which (I) includes any prospectus required by
Section 10(a)(3) of the Act or (II) reflects facts or events representing a
material or fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be
included in (I) and (II) above to be contained in periodic reports filed
pursuant to Section 13 or 15(d) of the 1934 Act in the registration statement.


 


(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 Act with
respect to the disposition of all securities covered by such registration
statement.


 


(c)                                  Furnish
to the Holders such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the 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 reasonable 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, unless the Company is
already subject to service in such jurisdiction and except as may be required
by the Act.


 


(e)                                  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.


 


(f)                                    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 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.


 


5





















 


(g)                                 Cause
all such Registrable Securities registered pursuant hereunder to be listed on
each securities exchange or national quotation system which similar securities
issued by the Company are then listed.


 


(h)                                 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.


 


(i)                                    Use
its reasonable 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.


 


(a)                                  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.


 


(b)                                  The
Company shall have no obligation with respect to any registration requested
pursuant to Section 1.2 or Section 1.12 if, due to the operation of subsection
1.5(a), the number of shares or the anticipated aggregate offering price of the
Registrable Securities to be included in the registration does not equal or
exceed the number of shares or the anticipated aggregate offering price
required originally to trigger the Company’s obligation to initiate such
registration as specified in subsection 1.2(a) or subsection 1.12(b)(2),
whichever is applicable.


 


1.6                               Expenses of Demand Registration.  All reasonable and customary expenses, other
than underwriting discounts and commissions, incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers’
and accounting fees, fees and disbursements of counsel for the Company
(including reasonable fees and reasonable and customary disbursements of one
counsel for the selling Holders not to exceed $30,000), shall be borne by the
Company; provided, however, that the Company
shall not be required to pay for any expenses of any registration proceeding
begun pursuant to Section 1.2 if the registration request is subsequently
withdrawn at the request of the Holders of a majority of the Registrable 


 


6





















 


Securities to be registered (in which case all
participating holders shall bear such expenses in proportion to the number of
shares for which registration was requested), unless the Holders of a majority
of the Registrable Securities agree to forfeit their right to one demand
registration pursuant to Section 1.2; provided
further, that if at the time of such withdrawal, the Holders have
learned of a material adverse change in the condition, business, or prospects
of the Company from that known to the Holders at the time of their request and
have withdrawn the request with reasonable promptness following disclosure by
the Company of such material adverse change, then the Holders shall not be
required to pay any of such expenses and shall retain their rights pursuant to
Section 1.2.


 


1.7                               Expenses of Company Registration.  The Company shall bear and pay all reasonable
and customary expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as
provided in Section 1.13), including (without limitation) all registration,
filing, and qualification fees, printers and accounting fees relating or
apportionable thereto and the reasonable fees and reasonable and customary
disbursements of counsel for the selling Holders selected by them not to exceed
$30,000, but excluding underwriting discounts and commissions relating to
Registrable Securities.


 


1.8                               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 their sole discretion, will not jeopardize the
success of the offering by the Company (subject to the remainder of this
Section 1.8).  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 their sole discretion, 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 their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling Holders according to the
total amount of Registrable Securities entitled to be included therein owned by
each selling Holder or in such other proportions as shall mutually be agreed to
by such selling Holders) but in no event shall (i) the amount of securities of
the selling Holders included in the offering be reduced below thirty percent
(30%) of the total amount of securities included in such offering, unless such
offering is the initial public offering of the Company’s securities in which
case the selling Holders may be excluded if the underwriters make the
determination described previously in this sentence and no other stockholder’s
securities are included or (ii) notwithstanding (i) above, any shares being
sold by a stockholder exercising a demand registration right similar to that
granted in Section 1.2 be excluded from such offering.  For purposes of the parenthetical in the
preceding sentence concerning apportionment, for any selling Holder which is a
holder of Registrable Securities and which is a partnership, limited liability
company or corporation, the partners, retired partners, members, retired
members and stockholders of such holder, or the estates and family members of
any such partners, retired partners, members, retired members or stockholders
and any trusts for the benefit of any of the foregoing persons shall be deemed
to be a single selling Holder, and any 


 


7


















 


pro-rata reduction with respect to such selling Holder
shall be based upon the aggregate amount of shares carrying registration rights
owned by all entities and individuals included in such selling Holder, as
defined in this sentence.


 


1.9                               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.


 


1.10                        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
selling Holder, any underwriter (as defined in the Act) for such Holder and
each person, if any, who controls such selling Holder or underwriter within the
meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
or the 1934 Act, 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 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 to state therein a
material fact required to be stated therein, or necessary to make the
statements therein not misleading, or (iii) any violation by the Company of the
Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Act or the 1934 Act or any state securities law; and the
Company will pay to each such Holder, underwriter or controlling person, 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 1.10(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 in any such case for any such loss,
claim, damage, liability, or action to the extent (and only 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 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 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 Act, or the 1934 Act 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 specifically for use in connection with such
registration; and each such Holder will pay any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
subsection 1.10(b), in connection with investigating 


 


8





















 


or defending any such loss, claim, damage, liability,
or action; provided, however, that the indemnity
agreement contained in this subsection 1.10(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; and provided further, that, in no event shall any
indemnity under this subsection 1.10(b) exceed the net proceeds from the
offering received by such Holder.


 


(c)                                  Promptly
after receipt by an indemnified party under this Section 1.10 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 1.10, 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 reasonable and customary 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 material
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 1.10, 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 1.10.


 


(d)                                  If
the indemnification provided for in this Section 1.10 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.  The relative fault of the indemnifying party
and of the indemnified party shall be determined by reference to, among other
things, whether the 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.  In no event shall any
contribution under this subsection 1.10(d) exceed the net proceeds from
the Offering received by such Holder.


 


(e)                                  The
obligations of the Company and Holders under this Section 1.10 shall
survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.  No indemnifying party, in the defense of any
such claim or litigation, shall, except with the consent of each indemnified
party, which 


 


9





















 


consent shall not be unreasonably withheld, consent to
the entry of any judgment or enter into any settlement, which does not include
as an unconditional term thereof, the giving by the claimant or plaintiff to
such indemnified party of release from all liability in respect to such claim
or litigation.


 


1.11                        Reports Under Securities Exchange
Act of 1934.  With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
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 after ninety (90) days after the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public;


 


(b)                                  file
with the SEC in a timely manner all reports and other documents required of the
Company under the Act and the 1934 Act; and


 


(c)                                  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 (at any time after ninety (90) days
after the effective date of the first registration statement filed by the
Company), the Act and the 1934 Act (at any time after it has become subject to
such reporting requirements), or that it qualifies as a registrant whose
securities may be resold pursuant to Form S-3 (at any time after it so
qualifies), (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.


 


1.12                        Form S-3 Registration.  In case
the Company shall receive from any Holder or Holders a written request or
requests that the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, the Company will:


 


(a)                                  promptly
give written notice of the proposed registration, and any related qualification
or compliance, to all other Holders; and


 


(b)                                  as
soon as practicable, effect such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Holder’s or Holders’
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within 15
days after receipt of such written notice from the Company; provided, however, that the Company shall not be obligated
to effect any such registration, qualification or compliance, pursuant to this
section 1.12: (1) if Form S-3 is not available for such offering by the
Holders; (2) if the Holders, together with the holders of any other securities
of the Company entitled to 


 


10





















 


inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an aggregate price
to the public (net of any underwriters’ discounts or commissions) of less than
$1,000,000; (3) if the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental to
the Company and its stockholders for such Form S-3 Registration to be effected
at such time, in which event the Company shall have the right to defer the
filing of the Form S-3 registration statement for a period of not more than
sixty (60) days after receipt of the request of the Holder or Holders under
this Section 1.12; provided, however,
that the Company shall not utilize this right more than once in any twelve (12)
month period; (4) if the Company has, within the twelve (12) month period
preceding the date of such request, already effected two (2) registrations on
Form S-3 for the Holders pursuant to this Section 1.12; or (5) 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.


 


(c)                                  Subject
to the foregoing, the Company shall file a registration statement covering the
Registrable Securities and other securities so requested to be registered as
soon as practicable after receipt of the request or requests of the
Holders.  All expenses incurred in connection
with a registration requested pursuant to Section 1.12, including (without
limitation) all registration, filing, qualification, printer’s and accounting
fees and the reasonable fees and reasonable and customary disbursements of
counsel for the selling Holder or Holders and counsel for the Company, but
excluding any underwriters’ discounts or commissions associated with
Registrable Securities, shall be borne and paid by the Company.  Registrations effected pursuant to this
Section 1.12 shall not be counted as demands for registration or registrations
effected pursuant to Sections 1.2 or 1.3, respectively.


 


1.13                        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 such
securities who, after such assignment or transfer, holds at least one million
(1,000,000) shares of Registrable Securities (subject to appropriate adjustment
for stock splits, stock dividends, combinations and other recapitalizations), provided: (a) 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; (b) such transferee or
assignee agrees in writing to be bound by and subject to the terms and
conditions of this Agreement, including without limitation the provisions of
Section 1.15 below; and (c) 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 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 or limited liability company who
are partners, retired partners, members or retired members of such partnership
or limited liability company, respectively, (including spouses and ancestors,
lineal descendants and siblings of such persons or spouses who acquire
Registrable Securities by gift, will or intestate succession) shall be
aggregated together and with the partnership or limited liability company;
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 this Section 1.


 


11





















 


1.14                        Limitations on Subsequent
Registration Rights.  From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the Registrable Securities then
outstanding, enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow such holder or prospective
holder (a) to include such securities in any registration filed under Section
1.2 hereof, unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only to
the extent that the inclusion of his securities will not reduce the amount of
the Registrable Securities of the Holders which is included or (b) to make a
demand registration which could result in such registration statement being
declared effective prior to the earlier of either of the dates set forth in
subsection 1.2(a) or within one hundred twenty (120) days of the effective date
of any registration effected pursuant to Section 1.2.


 


1.15                        “Market Stand-Off” Agreement.  Each Holder hereby agrees that, during the
period of duration specified by the Company and an underwriter of common stock
or other securities of the Company, following the date of the first sale to the
public pursuant to an effective registration statement of the Company filed
under the Act, it shall not, to the extent requested by the Company and such
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase
or otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any securities of the Company held by it at any time during
such period except common stock included in such registration; provided, however, that:


 


(a)                                  such
agreement shall be applicable only to the Company’s initial underwritten
offering of its securities to the general public (the “IPO”);


 


(b)                                  all
officers and directors of the Company enter into similar agreements; and


 


(c)                                  such
market stand-off time period shall not exceed one hundred eighty (180) days.


 


In order to
enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Registrable Securities of each Holder (and the
shares or securities of every other person subject to the foregoing
restriction) until the end of such period.


 


1.16                        Termination of Registration Rights.  No Holder shall be entitled to exercise any
right provided for in this Section 1 (i) after five (5) years following the
consummation of the sale of securities pursuant to a registration statement
filed by the Company under the Act in connection with the initial firm
commitment underwritten offering of its securities to the general public, or (ii)
if the Holder owns less than one percent (1%) of the Registrable Securities and
can sell all Registrable Securities held by such Holder in any three (3) month
period without registration under SEC Rule 144.


 


12





















 


2.                                      COVENANTS OF THE COMPANY.


 


2.1                               Delivery of Financial Statements.  The Company shall deliver to each Investor:


 


(a)                                  as
soon as practicable, but in any event within one hundred twenty (120) days
after the end of each fiscal year of the Company, an income statement for such
fiscal year, a balance sheet of the Company and statement of stockholder’s
equity as of the end of such year, and a schedule as to the sources and
applications of funds for such year, such year-end financial reports to be in
reasonable detail, prepared in accordance with generally accepted accounting
principles (“GAAP”), and
audited and certified by independent public accountants of nationally
recognized standing selected by the Company;


 


(b)                                  as
soon as practicable, but in any event within forty-five (45) days after the end
of each of the first three (3) quarters of each fiscal year of the Company, an
unaudited profit or loss statement, schedule as to the sources and application
of funds for such fiscal quarter and an unaudited balance sheet as of the end
of such fiscal quarter;


 


(c)                                  as
soon as practicable, but in any event thirty (30) days prior to the end of each
fiscal year, a budget and business plan for the next fiscal year, prepared on a
monthly basis, including balance sheets and sources and applications of funds
statements for such months and, as soon as prepared, any other budgets or
revised budgets prepared by the Company;


 


(d)                                  such
other information relating to the financial condition, business, prospects or
corporate affairs of the Company as the Investor or any assignee of the
Investor may from time to time reasonably request, provided,
however, that the Company shall not be obligated under this
subsection (d) or any other subsection of Section 2.1 to provide information
which it deems in good faith to be a trade secret or similar confidential
information; and


 


(e)                                  with
respect to the financial statements called for in subsection (b) of this
Section 2.1, an instrument executed by the Chief Financial Officer or President
of the Company and certifying that such financials were prepared in accordance
with GAAP consistently applied with prior practice for earlier periods (with
the exception of footnotes that may be required by GAAP) and fairly present the
financial condition of the Company and its results of operation for the period
specified, subject to year-end audit adjustment, provided that the foregoing
shall not restrict the right of the Company to change its accounting principles
consistent with GAAP, if the Board of Directors determines that it is in the
best interest of the Company to do so.


 


2.2                               Inspection.  From time to time, the Company shall permit
each Investor, at such Investor’s sole expense, to visit and inspect the
Company’s properties, to examine its books of account and records and to
discuss the Company’s affairs, finances and accounts with its officers, all at
such reasonable times as may be requested by the Investor; provided,
however, that the Company shall not be obligated pursuant to this
Section 2.2 to provide access to any information which it reasonably considers
to be a trade secret or similar confidential information.  The Company will maintain true books and
records of account in which full and correct entries will be made of all its
business transactions.


 


13





















 


2.3                               Termination of Information and
Inspection Covenants.  The
covenants set forth in Sections 2.1 and 2.2 shall terminate as to Investors and
be of no further force or effect upon the earlier of (i) the Company’s IPO,
(ii) when the Company first becomes subject to the periodic reporting
requirements of Sections 12(g) or 15(d) of the 1934 Act or (iii) upon an “Asset Transfer” or “Acquisition” as each
is defined in the Company’s Certificate of Incorporation as in effect as of the
date hereof (a “Change
in Control”).


 


2.4                               Right of First Offer.  Subject
to the terms and conditions specified in this Section 2.4, the Company hereby
grants to each Major Investor (as hereinafter defined) a right of first offer
with respect to future sales by the Company of its Shares (as hereinafter
defined).  For purposes of this Section
2.4, a “Major Investor”
shall mean (i) any Investor who holds at least fifty percent (50%) of the
combined investment such Investor has made in the Company pursuant to that
certain Series A Preferred Stock Purchase Agreement among the Company and the
investors thereto, the Series B Preferred Stock Purchase Agreement among the
Company and the investors thereto, the Series C Preferred Stock Purchase
Agreement among the Company and the investors thereto, the Series D Preferred
Stock Purchase Agreement among the Company and the investors thereto and/or the
Purchase Agreement, and (ii) any person who holds or acquires at least ten
percent (10%) of the then outstanding shares of Preferred Stock issued pursuant
to such agreements.  For purposes of this
Section 2.4, an Investor includes any general partners, members and affiliates
of an Investor.  An Investor shall be
entitled to apportion the right of first offer hereby granted it among itself
and its partners, members and 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 Major Investor in
accordance with the following provisions:


 


(a)                                  The
Company shall deliver a notice by certified mail or courier service, such as
Federal Express, (“Notice”)
to the Major 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)                                  By
written notification received by the Company, within twenty (20) calendar days
after giving of the Notice, the Major 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 of the Preferred Stock then
held, by such Major Investor bears to the total number of shares of Common
Stock issued and held, or issuable upon conversion of the Preferred Stock then
held, by all the Major Investors.  The
Company shall promptly, in writing, inform each Major Investor which purchases
all the shares available to it (“Fully-Exercising
Investor”) of any other Major Investor’s failure to do
likewise.  During the ten (10) day period
commencing after such information is given, each Fully-Exercising Investor
shall be entitled to obtain that portion of the Shares not subscribed for by
the Major Investors which is equal to the proportion that the number of shares of
Common Stock issued and held, or issuable upon conversion of Preferred Stock
then held, by such Fully-Exercising Investor bears to the total number of
shares of Common Stock issued and held, or issuable upon conversion of the 


 


14





















 


Preferred Stock then held, by all Fully-Exercising
Investors who wish to purchase some of the unsubscribed shares.


 


(c)                                  If
all Shares referred to in the Notice are not elected to be obtained as provided
in subsection 2.4(b) hereof, the Company may, during the sixty (60) day period
following the expiration of the period provided in subsection 2.4(b) hereof,
offer the remaining unsubscribed portion of such 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, or if such agreement is not consummated within
thirty (30) days of the execution thereof, the right provided hereunder shall
be deemed to be revived and such Shares shall not be offered unless first
reoffered to the Major Investors in accordance herewith.


 


(d)                                  The
right of first offer in this paragraph 2.4 shall not be applicable to (i) the
issuance or sale of shares of Common Stock (or options therefor) to employees,
officers or directors of the Company with the approval of the Company’s board
of directors, (ii) the issuance of securities pursuant to the Company’s IPO, or
(iii) the issuance of securities pursuant to the conversion or exercise of
convertible or exercisable securities outstanding as of the date hereof.


 


(e)                                  The
right of first refusal set forth in this Section 2.4 may not be assigned or
transferred, except that (i) such right is assignable by each Holder to any
wholly owned subsidiary or parent of, or to any corporation or entity that is,
within the meaning of the Act, controlling, controlled by or under common
control with, any such Holder, and (ii) such right is assignable between and among
any of the Holders and (iii) such right is assignable with the consent of the
Company, which consent shall not be unreasonably withheld.


 


2.5                               Waiver of Right of First Offer for
Series E Preferred Stock.  In
accordance with Section 3.8 below, the Major Investors hereby consent to the
waiver of the Right of First Offer and any notice requirements set forth in
Section 2.4 above in connection with the sale and issuance of up to ninety-nine
million (99,000,000) shares of Series E Preferred.


 


2.6                               FIRPTA Compliance.   The
Company shall provide prompt notice to New Enterprise Associates 10,
Limited Partnership (“NEA 10”) following any “determination date” (as defined
in Treasury Regulation Section 1.897-2(c)(1)) on which the Company becomes
a United States real property holding corporation.  In addition, upon a written request by
NEA 10, the Company shall provide NEA 10 with a written statement
informing NEA 10 whether NEA 10’s interest in the Company constitutes
a United States real property interest. 
The Company’s determination shall comply with the requirements of
Treasury Regulation Section 1.897-2(h)(1) or any successor regulation, and
the Company shall provide timely notice to the Internal Revenue Service, in
accordance with and to the extent required by Treasury Regulation
Section 1.897-2(h)(2) or any successor regulation, that such statement has
been made.  The Company’s written
statement to NEA 10 shall be delivered to NEA 10 within 10 days
of NEA 10’s written request therefor. 
The Company’s obligation to furnish such written statement shall
continue notwithstanding the fact that a class of the Company’s stock may be
regularly traded on an established securities market or the fact that there is
no preferred stock then outstanding.


 


15





















 


2.7                               Proprietary Information and
Inventions Agreements.  The
Company will cause each person now or hereafter employed by it or any
subsidiary with access to confidential information to enter into a proprietary
information and inventions agreement substantially in the form approved by the
Board of Directors, and will cause, where appropriate, each consultant of the
Company or any subsidiary with access to confidential information to enter into
agreements containing customary and appropriate terms regarding such
confidential information.


 


2.8                               Termination of Certain Covenants
and Rights.  The covenants in
Sections 2.6 and 2.7, and the rights of first refusal in Section 2.4
shall terminate and be of no further force or effect upon the earlier of (i)
the consummation of an IPO or (ii) a Change in Control.


 


2.9                               Reimbursement of Directors’ Expenses.  Reimbursement for reasonable out-of-pocket
expenses of members of the Company’s Board of Directors relating to attendance
at the Company’s board meetings shall be made by the Company.


 


2.10                        Negative Covenants.  The
Company shall not, without the affirmative consent of a majority of the members
of the Board of Directors elected by the holders of Preferred Stock of the
Company (i) approve or adopt an annual budget of the Company, (ii) incur
indebtedness with an aggregate principal amount in excess of $500,000 (other
than indebtedness set forth in an annual budget approved in accordance with
this Section 2.10), (iii) make any capital expenditures in excess of $500,000
(other than those capital expenditures set forth in an annual budget approved
in accordance with this Section 2.10) or (iv) make or agree or commit to make
any expenditure in excess of $1,000,000 (unless such expenditure is specifically
set forth in the annual budget under which the Company is then operating and
which was approved in accordance with this Section 2.10).


 


3.                                      MISCELLANEOUS.


 


3.1                               Amendment and Restatement.  The Prior Agreement is hereby amended in
its entirety and restated herein. Such amendment and restatement is effective
upon execution of this Agreement by the Company and the Investors holding at
least a majority of the Registrable Securities held by all Investors (as the
term is defined in the Prior Agreement). Upon such execution, all provisions
of, rights granted and covenants made in the Prior Agreement are hereby
superceded in their entirety and shall have no further force or effect,
including any notice of or rights under such Prior Agreement. The rights and
covenants contained in this Agreement set forth the sole and entire agreement
among the Company and the holders of the Shares on the subject matter hereof
and supersede any and all rights granted and covenants made under any prior
agreements.


 


3.2                               Successors and Assigns.  Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities).  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,


 


16





















 


obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.


 


3.3                               Governing Law.  This Agreement shall be governed by and
construed under the laws of the State of Delaware.


 


3.4                               Counterparts.  This Agreement may be executed in two (2) or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


3.5                               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.


 


3.6                               Notices.  Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given (A) upon personal delivery to the party to be
notified, (B) when sent by confirmed telex or facsimile, if sent during normal
business hours of the recipient, if not, then on the next business day, (C)
upon deposit with the United States Post Office, by registered or certified mail,
postage prepaid or (D) two (2) days after deposit with a recognized overnight
delivery courier, specifying first or second-day delivery, with written
verification of receipt.  All
communications shall be sent and addressed to the party to be notified at the
address indicated for such party on the signature page hereof, or at such other
address as such party may designate by ten (10) days’ advance written notice to
the other parties.


 


3.7                               Expenses.  If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys’ fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.


 


3.8                               Amendments and Waivers.  Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the holders of a majority of the
Registrable Securities then outstanding. 
Any amendment or waiver effected in accordance with this paragraph shall
be binding upon each holder of any Registrable Securities then outstanding,
each future holder of all such Registrable Securities, and the Company.


 


3.9                               Future Investors.  The parties hereto agree that without the
further consent of any party hereto any future purchaser of shares of Series E
Preferred Stock pursuant to the Purchase Agreement shall acquire all rights
granted to Purchasers and be subject to all obligations of Purchasers under
this Agreement upon execution and delivery of this Agreement by such future
investor.


 


3.10                        Severability.  If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.


 


17


















 


3.11                        Aggregation of Stock.  All
shares of Registrable Securities 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.


 


3.12                        Delays or Omissions.  It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance  by another
party under this Agreement shall impair any such right, power or remedy, nor
shall it be construed to be a waiver of any such breach, default or
noncompliance, or any acquiescence therein, or of or in any similar breach,
default or noncompliance thereafter occurring. 
It is further agreed that any waiver, permit, consent or approval of any
kind or character on any party’s part of any breach, default or noncompliance
under this Agreement or any waiver on such party’s part of any provisions or
conditions of the 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 by
law, or otherwise afforded to any party, shall be cumulative and not
alternative.


 


3.13                        Entire Agreement.  This Agreement (including the Exhibits
hereto, if any) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.


 


 


[SIGNATURE
PAGES FOLLOW]


 


18





















 


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


 


	
  INTARCIA THERAPEUTICS, INC.

  	
   

  	
  INVESTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  VENROCK
  ASSOCIATES

  
	
  By:

  	
  /s/Karling Alice
  Leung

  	
   

  	
   

  
	
         Karling
  Alice Leung, President

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/Bryan Roberts

  
	
  Address: 2000 Powell
  Street, Suite 1640

               Emeryville,
  CA 94608

  	
   

  	
   

  	
  As a General Partner or
  Member

  
	
   

  	
   

  	
  Print Name:

  	
  Bryan Roberts

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  FOUNDER:

  	
   

  	
  VENROCK
  ASSOCIATES III, L.P., 

  
	
   

  	
   

  	
  by its General Partner,
  Venrock Management III LLC

  
	
   

  	
   

  	
   

  
	
  S. MARK MORAN

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/Bryan Roberts

  
	
   

  	
   

  	
   

  	
  As a General Partner or
  Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
  Bryan Roberts

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  VENROCK
  ENTREPRENEURS FUND III, L.P., by its General Partner, VEF
  Management III LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/Bryan Roberts

  
	
   

  	
   

  	
   

  	
  As a General Partner or
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
  Bryan Roberts

  
						



 


 


AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT

SIGNATURE PAGE


 





















 


	
   

  	
  NEW ENTERPRISE ASSOCIATES 10,
  LIMITED PARTNERSHIP 

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NEA Partners 10,
  Limited Partnership,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Eugene A. Trainor,
  III

  	
  ,
  General

  
	
   

  	
  Partner Eugene A. Trainor, III 

  Administrative General Partner &

  Chief Operating Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEA VENTURES 2003, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Pamela J. Clark

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Pamela J. Clark

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Vice President

  	
   

  
								



 


 


AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT

SIGNATURE PAGE


 





















 


	
   

  	
  Granite Global Ventures II L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Granite Global
  Ventures II L.L.C., its

  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Joel Kellman

  	
   

  
	
   

  	
   

  	
  Joel Kellman

  
	
   

  	
   

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GGV II Entrepreneurs Fund L.P.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  Granite Global
  Ventures II L.L.C., its

  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Joel Kellman

  	
   

  
	
   

  	
   

  	
  Joel Kellman

  
	
   

  	
   

  	
  Managing Director

  
					



 


 


AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT

SIGNATURE PAGE


 





















 


	
   

  	
  Alta
  California Partners II, L.P.

  
	
   

  	
   

  
	
   

  	
   

  	
  By:  Alta
  California Management Partners

  II, LLC., its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Alix Marduel

  	
   

  
	
   

  	
  Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Alta
  Embarcadero Partners II, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Elaine Walker Peny

  	
   

  
	
   

  	
  Under Power of Attorney

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Alta
  California Partners II, L.P. New

  Pool

  
	
   

  	
   

  
	
   

  	
   

  	
  By: Alta California
  Management Partners

  II, LLC., its General Partner

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Alix Marduel

  	
   

  
	
   

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Alta
  BioPharma Partners II, L.P.

  
	
   

  	
   

  
	
   

  	
  By: Alta BioPharma
  Management Partners

  II, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Alix Marduel

  	
   

  
	
   

  	
  Management Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Alta Embarcadero BioPharma

  Partners II, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Alix Marduel

  	
   

  
	
   

  	
  Manager

  
					



 


 


AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT

SIGNATURE PAGE


 





















 


	
   

  	
  InterWest
  Partners VI, L.P.

  
	
   

  	
   

  
	
   

  	
  InterWest Management
  Partners VI, L.L.C.

  Its General Partner

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Arnold Oronsky

  	
   

  
	
   

  	
           Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  InterWest
  Investors VI, L.P.

  
	
   

  	
   

  
	
   

  	
  InterWest Management
  Partners VI, L.L.C.

  Its General Partner

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Arnold Oronsky

  	
   

  
	
   

  	
           Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BVCF IV, L.P.

  
	
   

  	
   

  
	
   

  	
  By:   Adams
  Street Partners, LLC

  its general partner

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Craig S.
  Taylor

  	
   

  
	
   

  	
   

  	
  Craig S. Taylor

  
	
   

  	
   

  	
  Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Atwood-Edminster Trust, dated 4/2/00

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Brian Atwood

  	
   

  
	
   

  	
   

  	
  Brian Atwood,
  Trustee

  



 


 


AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT

SIGNATURE PAGE


 





















 


	
   

  	
   

  	
  BSI SA

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/P. Solari

  	
  /s/T. Streule

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
  P. Solari

  	
  T. Streule

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  Vice President

  	
  Ass. Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ontario Teachers Pension Plan Board

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/Terry Woodward

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name: 

  	
  Terry Woodward

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Portfolio Manager

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MOntagu
  Newhall Associates

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Pictet
  Funds Biotech

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/L. Ramsey

  	
  /s/Yves Martignier

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
  Laurent Ramsey Yves Martignier

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Director of the Management Company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  G
  Karin Privatstiftung

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Raiffeisen
  Centrobank AG

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
								



 


 


AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT

SIGNATURE PAGE


 





















 


	
   

  	
  SB
  Life Science Ventures I, L.P.

  
	
   

  	
  by its General
  Partner

  
	
   

  	
  SB Life Science
  Partners, L.P.

  
	
   

  	
  by its General
  Partner

  
	
   

  	
  SB Life Science
  Pte Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Kazuhiko Kasai,
  Director

  
	
   

  	
   

  
	
   

  	
  Bio21
  Venture Capital Corp.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Chih-Lung Shen

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Chih-Lung Shen

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
  Investor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Glynn
  Ventures V

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/John W. Glynn

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  John W. Glynn

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Partner

  
	
   

  	
   

  
	
   

  	
  GC&H Investments

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/John L. Cardoza

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
  John L. Cardoza

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Member

  
					



 


 


AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT

SIGNATURE PAGE


 





















 


	
   

  	
  Montagu
  Newhall Global Partners, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Montagu Newhall General
  Partner, L.P.

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/C. Ashton Newhall

  	
   

  
	
   

  	
   

  	
   

  	
  C. Ashton Newhall,
  Principal

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Montagu
  Newhall Global Partners II,

  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Montagu Newhall General
  Partner II, L.P.

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/C. Ashton Newhall

  	
   

  
	
   

  	
   

  	
   

  	
  C. Ashton Newhall,
  Principal

  
	
   

  	
   

  	
   

  
	
   

  	
  Montagu
  Newhall Global Partners II-A,

  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Montagu Newhall General
  Partner II, L.P.

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/C. Ashton Newhall

  	
   

  
	
   

  	
   

  	
   

  	
  C. Ashton Newhall,
  Principal

  
	
   

  	
   

  	
   

  
	
   

  	
  Montagu
  Newhall Global Partners II-B

  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Montagu Newhall General
  Partner II, L.P.

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/C. Ashton Newhall

  	
   

  
	
   

  	
   

  	
   

  	
  C. Ashton Newhall,
  Principal

  



 


 


AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT

SIGNATURE PAGE


 





















 


	
   

  	
  G. Samuel Zucker

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    /s/G.S. Zucker

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Howard Chao

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/Howard Chao

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  David Krinsky

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/David Krinsky

  	
   

  



 


 


AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT

SIGNATURE PAGE


 


















 


	
   

  	
  Pac-Link
  Fund

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FuYu
  Venture Capital Investment Corp.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Shin Sheng
  Venture Capital Investment

  Corp.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Tai
  Yuen Venture Capital Investment Corp.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Alliance
  Investment & Management Corp.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
											



 


 


AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT

SIGNATURE PAGE


 





















 


 


	
   

  	
  BRENTWOOD
  ASSOCIATES VII, L.P.

  
	
   

  	
   

  
	
   

  	
  Brentwood VII Ventures,
  L.P.,

  
	
   

  	
  Its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BRENTWOOD
  AFFILIATES FUND, L.P.

  
	
   

  	
   

  
	
   

  	
  Brentwood VII Ventures,
  L.P.,

  
	
   

  	
  Its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


 


AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT

SIGNATURE PAGE


 





















 


	
   

  	
  DELPHI
  VENTURES IV, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  Delphi Management
  Partners IV, L.L.C.,

  
	
   

  	
  Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DELPHI
  BIOINVESTMENTS IV, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  Delphi Management
  Partners IV, L.L.C.,

  
	
   

  	
  Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Managing Member

  



 


 


	
   

  	
  DELPHI
  VENTURES III, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DELPHI
  BIOINVESTMENTS III, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT

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  PACIFIC GROWTH ENTITIES

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANCO UNIONE DE CREDITO

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


	
   

  	
  BANK JULIUS BAER & CO.

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK JULIUS BAER & CO, LTD., ZURICH

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANQUE
  SCS ALLIANCE SA

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
					



 


 


AMENDED AND RESTATED
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  BAY CITY CAPITAL FUND II CO-INVESTMENT FUND, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
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  BAY
  CITY CAPITAL FUND II, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
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  BIM
  AZIONARIO GLOBALE

  
	
   

  	
   

  	
   

  
	
   

  	
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  BIM BILANCIATO

  
	
   

  	
   

  	
   

  
	
   

  	
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  PIERANGELO BOTTINELLI

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BSI LUGANO

  
	
   

  	
   

  
	
   

  	
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  CHARTER ADVISORS FUND IV, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
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  CHARTER ENTREPRENEURS FUND, IV, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
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  CHARTER VENTURES IV, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
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  NEAL R. CUTLER, M.D.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROBERT D. ENGLISH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABHAY VARMA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALBERTO MORALDO

  
	
   

  	
   

  
	
   

  	
   

  
					



 


 


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  ESPERIA PERFORMANCE FUND

  
	
   

  	
   

  	
   

  
	
   

  	
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  FIDURHONE DANIEL VOLLENWEIDER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
					



 


	
   

  	
  GARFIN SPA

  
	
   

  	
   

  	
   

  
	
   

  	
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  PHILIP HOWARD

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PHILIP AND SARAH HOWARD

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LGT BANK IN LIECHTENSTEIN AG

  
	
   

  	
   

  	
   

  
	
   

  	
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  LOMBARD ODIER DARIER HENTSCH & CIE

  
	
   

  	
   

  	
   

  
	
   

  	
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  RAHN & BODMER BANK ZURICH

  
	
   

  	
   

  	
   

  
	
   

  	
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  SCHWEIZERHALL INVESTMENT LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
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  TREFOIL S.A.

  
	
   

  	
   

  	
   

  
	
   

  	
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  TRIAXIS TRUST AG

  
	
   

  	
   

  
	
   

  	
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  URSULA VOLLENWEIDER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
					



 


 


AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT

SIGNATURE PAGE


 





















 


EXHIBIT A


 


SCHEDULE OF INVESTORS


 


VENROCK ASSOCIATES


attn: Bryan Roberts


2494 Sand Hill Road

Suite 200

Menlo Park, CA 94025


 


VENROCK ASSOCIATES III, L.P.


attn: Bryan Roberts


2494 Sand Hill Road

Suite 200

Menlo Park, CA 94025


 


VENROCK ENTREPRENEURS FUND III, L.P.


attn: Bryan Roberts


2494 Sand Hill Road

Suite 200

Menlo Park, CA 94025


 


NEW ENTERPRISE ASSOCIATES 10, LIMITED
PARTNERSHIP


attn: Mike Raab


2490 Sand Hill Road

Menlo Park, CA 94025


 


NEA VENTURES 2003, LIMITED
PARTNERSHIP


attn: Mike Raab


2490 Sand Hill Road

Menlo Park, CA 94025


 


GRANITE GLOBAL VENTURES II L.P.


attn: Joel Kellman


2494 Sand Hill Road, Suite 100


Menlo Park, CA 94025


 


GGV II ENTREPRENEURS FUND L.P.


attn: Joel Kellman


2494 Sand Hill Road, Suite 100


Menlo Park, CA 94025


 


ALTA CALIFORNIA PARTNERS II, L.P.


attn:  Elaine Penny


One Embarcadero Center, Suite 4050


San Francisco, CA  94111


 


ALTA CALIFORNIA PARTNERS II, L.P. NEW POOL


attn:  Elaine Penny


One Embarcadero Center, Suite 4050


San Francisco, CA  94111


 


ALTA EMBARCADERO PARTNERS II, LLC


attn:  Elaine Penny


One Embarcadero Center, Suite 4050


San Francisco, CA  94111


 


ALTA BIOPHARMA PARTNERS II, L.P.


attn:  Elaine Penny


One Embarcadero Center, Suite 4050


San Francisco, CA  94111


 


ALTA EMBARCADERO BIOPHARMA PARTNERS II, LLC


attn:  Elaine Penny


One Embarcadero Center, Suite 4050


San Francisco, CA  94111


 


ATWOOD-EDMINSTER TRUST, DATED 4/2/00


c/o Brian Atwood Trustee


90 Mossbridge Lane


Orinda, CA 94563


Los Angeles, CA 90025


 


BRENTWOOD ASSOCIATES VII, L.P.


attn: Hilary
Lottenberg, CFO


11150 Santa Monica
Blvd.


Suite 1200


Los Angeles, CA 90025


 


BRENTWOOD AFFILIATES FUND, L.P.


attn: Hilary
Lottenberg, CFO


11150 Santa Monica
Blvd.


Suite 1200


Los Angeles, CA 90025


 


AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

SCHEDULE OF INVESTORS


 





















 


DELPHI VENTURES IV, L.P.


attn: Matt Potter


3000 Sand Hill Road 

Bldg.  1, Suite 135 

Menlo Park, CA 94025


 


DELPHI BIOINVESTMENTS IV, L.P.


attn:  Matt Potter


3000 Sand Hill Road 

Bldg.  1, Suite 135 

Menlo Park, CA 94025


 


DELPHI VENTURES III, L.P.


attn: Matt Potter


3000 Sand Hill Road 

Bldg.  1, Suite 135 

Menlo Park, CA 94025


 


DELPHI BIOINVESTMENTS III, L.P.


attn: Matt Potter


3000 Sand Hill Road 

Bldg.  1, Suite 135 

Menlo Park, CA 94025


 


INTERWEST PARTNERS VI, L.P.


Attn: Arnold Oronsky


2710 Sand Hill Road


Second Floor


Menlo Park, CA  94025


 


INTERWEST INVESTORS VI, L.P.


attn: Arnold Oronsky


2710 Sand Hill Road


Second Floor


Menlo Park, CA  94025


 


GC&H INVESTMENTS


attn: James Kindler


One Maritime Plaza, 20th Floor


San Francisco, CA 94111


 


PACIFIC GROWTH ENTITIES


Four Maritime Plaza


San Francisco, CA 94111


 


BANCO UNIONE DE CREDITO


attn. Abhay Varma


Esperia Capital Management Limited


32 Dover St.


London WIX 3RA, England


 


BANK JULIUS BAER & CO.


attn:  Jean-Pierre Pfenninger


Bahnhofstrasse 36


CH-8010


Zurich, Switzerland


 


BANK JULIUS BAER & CO, LTD., ZURICH


attn. Bernhard Schurmann


Swisspartners Investment Network


AM Schanzengraben 23


Postfach 970


CH-8039


Zurich, Switzerland


 


BANQUE SCS ALLIANCE SA


attn: Andreas
Ruegg/Jaime Ballestro


11, route de
Florissant


Case postale 3733


CH-1211 Geneva 3


Switzerland


 


BAY CITY CAPITAL FUND II CO-INVESTMENT FUND, L.P.


attn. Kirby Bartlett, Vice President


750 Battery St., Suite 600


San Francisco, CA 94111


 


BAY CITY CAPITAL FUND II, L.P.


attn. Kirby Bartlett, Vice President


750 Battery St., Suite 600


San Francisco, CA 94111


 


BIM AZIONARIO GLOBALE


attn: Robert Contini


Bim Intermobilliare SGR S.P.A.


Via Buozzi 6


Torino 10121


Italy


 


BIM BILANCIATO


attn: Robert Contini


Bim Intermobilliare SGR S.P.A.


Via Buozzi 6


Torino 10121


Italy


 


AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

SCHEDULE OF INVESTORS


 


















 


PIERRANGELO BOTTINELLI


Residence Victoria A


App. No. 23


3962 Flontana


Switzerland


 


BSI LUGANO


attn: Pierre Botinelli


c/o Quaker Securities


8 Place Bel-Air


CH-1260 Nyon


Switzerland


 


BSI SA


attn: B. Ripamonti


Banca della Svizzera Italiana


Via Magatti 2


CH-6901 Lugano


Switzerland


 


CBG COMPAGNIE BANCAIRE GENEVE


attn: Th. Mory


Avenue de Rumine 20


1005 Lausanne


Switzerland


 


RAIFFEISEN CENTROBANK  AG


A1015 Wien


Tegetthoffstrasse 1 – Fifth Floor


Postfach 272


Vienna, Austria


 


CENTRUM BANK AG, VADUZ


attn: B. Ripamonti


Banca della Svizzera Italiana


Via Magatti 2


CH-6901 Lugano


Switzerland


 


CHARTER ADVISORS FUND IV, L.P.


attn. A. Barr Dolan


525 University Ave., Suite 1400


Palo Alto, CA 94301


 


CHARTER ENTREPRENEURS FUND IC, L.P.


attn. A. Barr Dolan


525 University Ave., Suite 1400


Palo Alto, CA 94301


 


CHARTER VENTURES IV, L.P.


attn. A. Barr Dolan


525 University Ave., Suite 1400


Palo Alto, CA 94301


 


NEAL R. CUTLER, M.D.


R.T. Alamo LLC


8501 Wilshire Blvd., Suite 318


Beverly Hills,CA 90211


 


ROBERT D. ENGLISH


Jasper, L.P.


605 Third Avenue, 19th Floor


New York, NY 10158


 


ESPERIA PERFORMANCE FUND


attn. Abhay Varma


Esperia Capital Management Limited


32 Dover St.


London WIX 3RA, England


 


ABHAY VARMA


Esperia Capital Management Limited


32 Dover St.


London WIX 3RA


England


 


ALBERTO MAROLDA


Esperia Capital Management Limited


32 Dover St.


London WIX 3RA


England


 


FIDURHONE S.A.


attn. Daniel Vollenweider


Rue Muzy, 8


Case Rive 3262


CH-1211 Geneva 3


Switzerland


 


AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

SCHEDULE OF INVESTORS


 





















 


GARFIN SPA


attn. Abhay Varma


Esperia Capital Management Limited


32 Dover St.


London WIX 3RA, England


 


PHILIP AND SARAH HOWARD


Esperia Capital Management Limited


45 Erpingham Road


London SW15 1BQ


 


PHILIP HOWARD


Esperia Capital Management Limited


45 Erpingham Road


London SW15 1BQ


 


KARIN PRIVATSTIFTUNG


attn. Thomas Honigsberger


M&A Privatbank AG


Rennpasse 6-8


1010 Vienna, Austria


 


LGT BANK IN LIECHTENSTEIN AG


attn: Pfiffner Lorenz


Herrengasse 12


FL-3490 Vaduz


Lichtenstein


Germany


 


LOMBARD ODIER DARIER HENTSCH & CIE


attn: Alexandre Meyer


11, rue de la Corraterie, 1211


Geneva 11,


Switzerland


 


MONTAGU NEWHALL GLOBAL PARTNERS, L.P.


attn: C. Ashton Newhall


4750 Owings Mills Blvd.

Owings Mills, MD 21117


 


MONTAGU NEWHALL GLOBAL PARTNERS II, L.P.


attn: C. Ashton Newhall


4750 Owings Mills Blvd.

Owings Mills, MD 21117


 


MONTAGU NEWHALL GLOBAL PARTNERS II-A, L.P.


attn: C. Ashton Newhall


4750 Owings Mills Blvd.

Owings Mills, MD 21117


 


MONTAGU NEWHALL GLOBAL PARTNERS, II-B,  L.P.


attn: C. Ashton Newhall


4750 Owings Mills Blvd.

Owings Mills, MD 21117


 


ONTARIO TEACHERS PENSION PLAN BOARD


attn:  Terry Woodward 


attn:  Michael Padfield


5650 Yonge Street


Toronto, ON M2M 4H5, Canada


 


PICTET FUNDS BIOTECH


attn. Michael Sjostrom


Bd Georges-Favon 29


CH-1204 Geneva


Switzerland


 


RAHN & BODMER BANK ZURICH


attn: Bernhard Shurman


Swisspartners Investment Network


AM Schanzengraben 23


Postfach 970


CH-8039


Zurich


Switzerland


 


SB LIFE SCIENCE VENTURES I, L.P.


c/o:  Softbank Corp, Group
Management


1-8-8 Shinkawa, ACROSS Building 2F


Chuo-ku, Tokyo 104-0033, Japan


attn: Yoshihito Osaki


 


with copy to:


SB LIFE SCIENCE EQUITY MANAGEMENT, LLC


attn: Joseph Chow, Managing Director


2180 Sand Hill Road, Suite 400


Menlo Park, CA 94025


 


AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

SCHEDULE OF INVESTORS


 





















 


BIO21 VENTURE CAPITAL CORP.


c/o Michael Huang


5th
Fl., No 143, Sec. 2, Min-Sheng East Road


Taipei, Taiwan, R.O.C.


 


GLYNN CAPITAL MANAGEMENT, LLC


attn: John W. Glynn, Jr.


3000 Sand Hill Road


Building 4, Suite 235


Menlo Park, CA 94025


 


SCHWEIZERHALL INVESTMENT LTD.


No. 1 Seaton Place – P.O. Box 641


St. Helier – Jersey


Channel Islands JE48YJ


 


TREFOIL, S.A.


attn: Joseph C. Lewis


Cay House


P.O. Box N776


Lyford Cay, New Providence


Bahamas


 


PAC-LINK FUND


c/o Pac-Link Management Corp.


attn: Beatrice Chen/Joyce Chen


14th Fl., 2. Tun Hwa South Road,
Sec. 2


Taipei, Taiwan, R.O.C.


 


FUYU VENTURE CAPITAL INVESTMENT CORP.


c/o Pac-Link Management Corp.


attn: Beatrice Chen/Joyce Chen


14th Fl., 2. Tun Hwa South Road,
Sec. 2


Taipei, Taiwan, R.O.C.


 


SHIN SHENG VENTURE CAPITAL INVESTMENT CORP.


c/o Pac-Link Management Corp.


attn: Beatrice Chen/Joyce Chen


14th Fl., 2. Tun Hwa South Road,
Sec. 2


Taipei, Taiwan, R.O.C.


 


TAI YUEN VENTURE CAPITAL INVESTMENT CORP.


c/o Pac-Link Management Corp.


attn: Beatrice Chen/Joyce Chen


14th Fl., 2. Tun Hwa South Road,
Sec. 2


Taipei, Taiwan, R.O.C.


 


ALLIANCE INVESTMENT & MANAGEMENT CORP.


c/o Pac-Link Management Corp.


attn: Beatrice Chen/Joyce Chen


14th Fl., 2. Tun Hwa South Road,
Sec. 2


Taipei, Taiwan, R.O.C.


 


TRIAXIS TRUST AG


attn: Hans-Peter John


Buerglistrasse 6


CH-8002 Zurich


Switzerland


 


URSULA VOLLENWEIDER


Chu du Marochon


1272 Genolier


Switzerland


 


JPMORGAN CHASE BANK AS CUSTODIAN TO
THE BVCF IV, L.P.


c/o Adams Street
Partners


attn: Craig Taylor


One North Wacker
Drive


Suite 2200


Chicago, IL 60606


 


AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

SCHEDULE OF INVESTORS