exv4w1



 





Exhibit 4.1




OREXIGEN THERAPEUTICS, INC.




REGISTRATION RIGHTS WAIVER AND AMENDMENT




January 6, 2008




     Reference is made to the Second Amended and Restated Investors’ Rights Agreement (the
“Investors’ Rights Agreement”), dated as of November 20, 2006, by and among Orexigen Therapeutics,
Inc. (the “Company”) and the investor parties thereto (the “Holders”). All capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms in the Investors’
Rights Agreement.



     Whereas, the Company is preparing a Registration Statement on Form S-1 for filing
within one hundred and twenty (120) days hereof (the “Registration Statement”) with the U.S.
Securities and Exchange Commission in connection with a proposed public offering of the Company’s
Common Stock (the “Offering”);



     Whereas, the Holders are entitled to certain rights related to the registration of
Registrable Securities of the Company, as set forth in the Investors’ Rights Agreement, including
without limitation, the registration rights set forth in Section 1.3 (Company Registration) thereof
(the “Registration Rights”);



     Whereas, the Company is providing this Registration Rights Waiver and Amendment to
notify the Holders of its intention to file the Registration Statement and to request that the
Holders waive their Registration Rights and related notice rights as provided herein with respect
to the Registration Statement;



     Whereas, pursuant to Rule 144 under the Securities Act of 1933, as amended (the
“Securities Act”), the Holders may, subject to certain restrictions, sell the Company’s securities
without registering them under the Securities Act; and



     Whereas, pursuant to the terms of the Investors’ Rights Agreement, this Registration
Rights Waiver and Amendment shall be effective upon its execution by the Company and the Holders of
at least two-thirds of the Registrable Securities currently outstanding.



     Now, Therefore, in consideration of the foregoing and in order to enable the Company
to file the Registration Statement and proceed with the Offering, the undersigned Holders hereby
agree with the Company as follows:



1. Waiver of Registration Rights.




     The undersigned Holders hereby waive, for and on behalf of all Holders, the Registration
Rights and all other related or similar rights under the Investors’ Rights Agreement with respect
to the Registration Statement, including, without limitation, any amendments and supplements
thereto and combined registration statements therewith, except with respect to the shares of Common
Stock to be offered by certain stockholders solely pursuant the Underwriters’ over-allotment option
in connection with the Offering as set forth on Exhibit A hereto (the “Over-allotment
Shares”). It is understood that no assurance is made that the Underwriters will elect to exercise
such over-allotment option or that the Over-allotment Shares will ultimately be sold.



 









 





2. Waiver of Notice.




     The undersigned Holders hereby waive, for and on behalf of all Holders, the right to any
notice under the Investors’ Rights Agreement with respect to the Registration Statement, including,
without limitation, any amendments and supplements thereto and combined registration statements
therewith.



3. Amendment to Investors’ Rights Agreement 




     Section 1.16 (Termination of Registration Rights) of the Investors’ Rights Agreement is hereby
amended and restated to read in its entirety as follows:




     “1.16 Termination of Registration Rights. No Holder shall be entitled
to exercise any right provided for in this Section 1 upon the earlier of the
following to occur: (i) six (6) years following the consummation of the sale of
securities pursuant to an IPO or (ii) the date when all of the Registrable
Securities held by such Holder may be sold in a transaction or series of
transactions within one trading day pursuant to Rule 144 (including Rule 144(k))
under the Act.”



     Section 4.7 (Amendment and Waivers) of the Investors’ Rights Agreement is hereby amended and
restated to read in its entirety as follows:




     “4.7 Amendment 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 Investors holding at least two-thirds of the
Registrable Securities then entitled to registration under Section 1 above. Any
amendment or waiver effected in accordance with this Section shall be binding upon
each holder of any Registrable Securities then outstanding, each future holder of
all such Registrable Securities, and the Company.”



4. Miscellaneous.




     This Registration Rights Waiver and Amendment may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall constitute the same Registration
Rights Waiver and Amendment. This Registration Rights Waiver and Amendment is being signed by each
undersigned Holder with respect to all Registrable Securities held by the same, as a stockholder of
the Company and for all other purposes with respect to this Registration Rights Waiver and
Amendment. This Registration Rights Waiver and Amendment is irrevocable and shall be effective
with respect to each of the undersigned Holders and all affiliates, successors, heirs, personal
representatives, and assigns of the undersigned Holders.



[Signature Pages Follow]




 









 





     In Witness Whereof, each of the undersigned Holders has executed this Registration
Rights Waiver and Amendment as of the date first written above.



	 	 	 	 	 
	 	HOLDERS:



SCALE VENTURE PARTNERS II, LP



By:    Scale Venture Management II, LLC,

            its general partner

 

 	 
	 	By:  	                                              /s/ Louis C. Bock
 	 
	 	 	Louis C. Bock 	 
	 	 	Managing Director 	 
	 




 









 





     In Witness Whereof, each of the undersigned Holders has executed this Registration
Rights Waiver and Amendment as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	HOLDERS:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Domain Partners V, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	One Palmer Square Associates V, L.L.C. 


its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Kathleen K. Schoemaker	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Kathleen K. Schoemaker,	 	 
	 

	 	 	 	 	 	Managing Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	DP V Associates, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	One Palmer Square Associates V, L.L.C. 

Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Kathleen K. Schoemaker	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Kathleen K. Schoemaker,	 	 
	 

	 	 	 	 	 	Managing Member	 	 







 











 





     In Witness Whereof, each of the undersigned Holders has executed this Registration
Rights Waiver and Amendment as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	HOLDERS:
	 
	 	 	 	 	 	 	 	 
	 	 	Sofinnova Venture Partners VI, L.P.

as nominee for

Sofinnova Venture Partners VI, L.P.

Sofinnova Venture Partners VI GmbH & Co. K.G.

Sofinnova Venture Affiliâtes VI, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Sofinnova Management VI, L.L.C.	 	 
	 	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Michael. F. Powell	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Michael F. Powell	 	 
	 

	 	 	 	 	 	Managing Member	 	 






 









 





     In Witness Whereof, each of the undersigned Holders has executed this Registration
Rights Waiver and Amendment as of the date first written above.



	 	 	 	 	 
	 	HOLDERS:





KPCB Holdings, Inc.,

as nominee

 	 
	 	By:  	/s/ Joseph S. Lacob
 	 
	 	 	Joseph S. Lacob 	 
	 	 	Senior Vice President 	 



 









 





     In Witness Whereof, each of the undersigned Holders has executed this Registration
Rights Waiver and Amendment as of the date first written above.



	 	 	 	 	 
	 

	 	HOLDERS:
	 
	 	 	 	 
	 	 	MONTREUX EQUITY PARTNERS II SBIC, LP
	 
	 	 	 	 
	 

	 	By:
	 	Montreux Equity Management II SBIC, LLC, its General Partner
	 
	 	 	 	 
	 

	 	By: 
	 	/s/ Daniel K. Turner III
	 

	 	 	 	 
	 

	 	Name: Daniel K. Turner, III
	 
	 	 	 	 
	 

	 	Title: 
	Managing Member
	 
	 	 	 	 
	 	 	MONTREUX EQUITY PARTNERS III SBIC, LP
	 
	 	 	 	 
	 

	 	By:
	 	Montreux Equity Management III SBIC, LLC, its General Partner
	 
	 	 	 	 
	 

	 	By: 
	 	/s/ Daniel K. Turner
	 

	 	 	 	 
	 

	 	Name: Daniel K. Turner, III
	 
	 	 	 	 
	 

	 	Title: 
	Managing Member






 









 





	 	 	 	 	 
	Acknowledged and Agreed:
	Orexigen Therapeutics, Inc.
	 
	 	 	 	 
	By:

	 	/s/ Heather D. Turner	 	 
	 

	 	 	 	 
	Name: Heather D. Turner
	Title: Vice President, General Counsel and Secretary







 









 








Exhibit A




Over-allotment Shares




	 	 	 	 	 
	Stockholder	 	Number of Shares*	 
	Funds affiliated with Sofinnova Venture Partners VI, L.P.
	 	 	425,000	 
	Scale Venture Partners II, LP
	 	 	425,000	 
	Eckard Weber, M.D.
	 	 	200,000	 
	 
	 	 	 
	Total
	 	 	1,050,000	 








 




			
	*	 	Subject to increase not to exceed 20% pursuant to any Rule 462(b) Registration
Statement deemed advisable by the underwriters for the Offering.