Exhibit
4.2


 


EXECUTION COPY


 


COMMON STOCKHOLDERS AGREEMENT, dated as of February 22,
2007, among Ikaria Holdings, Inc., a Delaware corporation, and each of the
Persons listed on the signature pages hereto under the heading “Stockholder”
(each, a “Stockholder”, and collectively, the “Stockholders”),
and such other Persons who are signatories hereto on the date hereof or who
will become signatories hereto from time to time as provided for herein.


 


WHEREAS, the Stockholder is a holder of
shares of Ikaria Common Stock;


 


WHEREAS, pursuant to an Agreement
and Plan of Merger, dated as of February 22, 2007 (the “Merger
Agreement”), among the Company, Ikaria Merger Sub Inc., a Delaware
corporation and a wholly owned subsidiary of the Company, and Ikaria, Inc.,
a Delaware corporation (“Ikaria”), Ikaria Merger Sub Inc. will be merged
with and into Ikaria, with Ikaria the surviving entity, and the Stockholders
will, in the merger, receive shares of Common Stock in exchange for their
shares of Ikaria Common Stock;


 


WHEREAS, pursuant to a Preferred
Stock Purchase Agreement, dated as of February 22, 2007 (the “Preferred
Stock Purchase Agreement”), by and among the Company, Ikaria, the NMP
Entities, and certain stockholders of Ikaria, the NMP Entities and such
stockholders are purchasing shares of Series B Preferred Stock and certain
of them are acquiring shares of the Series C Preferred Stock of the
Company.


 


WHEREAS, pursuant to a Sale and
Purchase Agreement, dated as of February 22, 2007 (the “Sale and
Purchase Agreement”), by and among Linde Gas, Inc., a Delaware
corporation, certain affiliates of Linde Gas, Inc., the Company, Ikaria
Acquisition Inc., a Delaware corporation and a wholly owned subsidiary of the
Company, and Ikaria, Linde Gas, Inc., is selling all of the membership
interests in INO Therapeutics LLC, a Delaware limited liability company, to
Ikaria Acquisition Inc. in exchange for cash and shares of Series B
Preferred Stock and Series C Preferred Stock of the Company.


 


WHEREAS, the Company and the
Stockholders wish to provide for certain arrangements with respect to the
Stockholders’ rights to hold and dispose of their shares of Common Stock.


 


WHEREAS, to induce the Company to
execute and deliver the Merger Agreement, the Preferred Stock Purchase
Agreement and the Sale and Purchase Agreement, and to consummate the
transactions contemplated thereby, the Stockholders have agreed to be bound by
the provisions set forth in this Agreement.


 


NOW, THEREFORE, the parties
hereto agree as follows:


 


Section 1. Definitions.


 


1.1           “Affiliate”
means, with respect to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person.


 

















 


1.2           “Affiliate
Securities” means any securities issued by an Affiliate of the Company.


 


1.3           “Agreement”
means this Stockholders’ Agreement, as may be amended, restated, supplemented
or modified from time to time.


 


1.4           “Board”
means the board of directors of the Company.


 


1.5           “Call”
has the meaning ascribed to such term in Section 3.2(a).


 


1.6           “Call
Period” means (i) in the case of the termination for Cause of the
employment of a Stockholder who is an Employee, six months following the date
of such termination, or (ii) in the case of the breach or violation by a
Stockholder of any obligation under a Non-Competition Agreement, six months
following the date that the Company has actual knowledge of such breach or
violation; provided, that, in the case of each of (i) and (ii), if
the Stockholder holds stock options during such six-month period, then, as to
such the shares of Common Stock acquired upon the exercise of such stock
options, the Call Period shall be the six-month period commencing on the date
on which such stock options has been exercised for Common Stock.


 


1.7           “Call
Price” has the meaning ascribed to such term in Section 3.2(a).


 


1.8           “Called
Shares” has the meaning ascribed to such term in Section 3.2(c).


 


1.9           “Capital
Stock” means the Common Stock and the Preferred Stock.


 


1.10         “Capital
Transaction” means any Stock Dividend, recapitalization (including any
special dividend or distribution), reclassification, spin-off, partial
liquidation or similar capital adjustments (including through merger or
consolidation).


 


1.11         “Cause”
(i) means, if an Employee is a party to an employment, consulting or
severance agreement with the Company or one of its subsidiaries, the occurrence
of any circumstances defined as “Cause” in any such agreement, or (ii) if
an Employee is not a party to an employment, consulting or severance agreement with
the Company or one of its subsidiaries, has the meaning set forth in the 2007
Stock Option Plan; provided, however, that, prior to the
termination of an Employee for Cause, the Company shall provide such Employee
with written notice that the Board intends to meet to consider the Employee’s
termination for Cause and the grounds constituting Cause.


 


1.12         “Closing”
has the meaning ascribed to such term in Section 3.2(c).


 


1.13         “Closing
Price” of a share of Common Stock means, on any day, the last reported
sales price for such Common Stock on such day or, in the event no such sale
takes place on such day, the average of the closing bid and asked prices for
such Common Stock, in each case on the New York Stock Exchange or, if such
Common Stock is not then listed or admitted to trading on such exchange, on the
principal national securities exchange on which such Common Stock is listed or
admitted to trading, or, if such Common Stock is not listed or admitted to
trading on any such exchange, the average of the highest reported bid and
lowest reported asked prices for such Common Stock as furnished by the National
Association of Securities Dealers through the 


 

















 


National Association of Securities Dealers Automated Quotation System (“Nasdaq”)
(or a similar organization if Nasdaq is no longer reporting such information).


 


1.14         “Common
Stock” means any shares of common stock, par value $0.01 per share, of the
Company, whether voting or nonvoting, but excluding any shares of Common Stock
issued upon conversion of any shares of Preferred Stock.  There shall be included within the term
Common Stock any common stock now or hereafter authorized to be issued, and any
and all securities of any kind whatsoever of the Company which may be issued
after the date hereof in respect of, or in exchange for, shares of Common Stock
pursuant to a Capital Transaction or otherwise.


 


1.15         “Company”
means Ikaria Holdings, Inc., a Delaware corporation, and shall include any
successor thereto by merger, consolidation, acquisition of substantially all
the assets thereof, or otherwise.


 


1.16         “Compensatory
Equity” means, as to any Employee, Convertible Securities granted to such
Employee for services performed in respect of the Company or any of its
subsidiaries (including, without limitation, options granted pursuant to the
2007 Stock Option Plan).


 


1.17         “Contemplated
Transactions” means the transactions contemplated by the Merger Agreement,
the Preferred Stock Purchase Agreement and the Sale and Purchase Agreement.


 


1.18         “Convertible
Securities” means (i) any options or warrants to purchase or other
rights to acquire Common Stock, (ii) any securities by their terms
convertible into or exchangeable for Common Stock, and (iii) any options
or warrants to purchase or other rights to acquire any such convertible or
exchangeable securities.


 


1.19         “Employee”
means any Stockholder who is as of the date hereof, or becomes after the date
hereof, an employee of, or a consultant or independent contractor to, the
Company or a subsidiary of the Company.


 


1.20         “Expenses
of Sale” means all expenses incurred by the Preferred Stock Holders and
their Affiliates in connection with any Transaction to the extent that such
expenses are not paid or reimbursed by the Company.


 


1.21         “Fair
Market Value” of a share of Common Stock means the fair market value per
share of such Common Stock as determined in accordance with Section 3.2(e).


 


1.22         “Family
Member” has the meaning ascribed to such term in Section 3.1(b)(i).


 


1.23         “Ikaria”
has the meaning ascribed to such term in the recitals.


 


1.24         “Ikaria
Common Stock” means the common stock, $0.0001 par value, of Ikaria.


 


1.25         “Investor
Stockholders Agreement” means the Investor Stockholders Agreement, dated as
of the date hereof, by and among the Company and the Preferred Stock Holders
who are signatories thereto on the date thereof or who will become signatories
thereto from time to time 


 

















 


as provided for therein, as such agreement may be amended, restated,
supplemented or modified from time to time; any reference herein to a section
thereof shall be to such section as the same may be amended, restated,
supplemented or modified from time to time.


 


1.26         “Legal
Representative” means the guardian, executor, administrator or other legal
representative of the Stockholder.  All
references herein to a Stockholder who is an individual shall be deemed to
include references to such Stockholder’s Legal Representative, if any, unless
the context otherwise requires.


 


1.27         “Majority
Stockholders” means, at any time, Stockholders holding a majority of the
voting power represented by the shares of Common Stock and Preferred Stock then
held by all Stockholders.


 


1.28         “Merger
Agreement” has the meaning ascribed to such term in the recitals.


 


1.29         “NMP
Entities” means New Mountain Partners II, L.P., a Delaware limited
partnership, New Mountain Affiliated Investors II, L.P., a Delaware limited
partnership, and Allegheny New Mountain Partners, L.P., a Delaware limited
partnership.


 


1.30         “Non-Competition
Agreement” means any employment or other agreement between the Stockholder
and the Company or any of its subsidiaries that contains non-competition,
non-solicitation or confidentiality restrictions on such Stockholder.


 


1.31         “Notice
Date” means the date of delivery by the Company of written notice of its
election to exercise its right to purchase shares of Common Stock from a
Stockholder pursuant to Section 3.2(a).


 


1.32         “Permitted
Transferee” has the meaning ascribed to such term in Section 3.1(b).


 


1.33         “Person”
means an individual, a corporation, a partnership, a limited liability company,
an association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.


 


1.34         “Preferred
Stock” means the Series A Preferred Stock and the Series B
Preferred Stock or either of them.


 


1.35         “Preferred
Stock Holder” means any holder of Preferred Stock.


 


1.36         “Preferred
Stock Purchase Agreement” has the meaning ascribed to such term in the
recitals.


 


1.37         “Public
Offering” means a public offering of Common Stock pursuant to a
registration statement (other than a Form S-8 or successor forms) filed
with, and declared effective by, the Securities and Exchange Commission.


 


1.38         “Release
Date” means the later to occur of (i) the 18-month anniversary of the
closing of the Contemplated Transactions and (ii) the initial Public
Offering.


 





















 


1.39         “Representative”
has the meaning ascribed to such term in Section 4.13(b).


 


1.40         “Restricted
Period” has the meaning ascribed to such term in Section 3.6.


 


1.41         “Sale
and Purchase Agreement” has the meaning ascribed to such term in the
recitals.


 


1.42         “Sale
Obligations” means any liabilities and obligations (including, without
limitation, liabilities and obligations for indemnification, amounts paid into
escrow and post-closing adjustments) incurred by the Preferred Stock Holders
and their Affiliates in connection with any Transaction; provided, that
the Sale Obligations of any Stockholder shall not exceed the amount of
consideration received by such Stockholder in such Transaction.


 


1.43         “Scheduled
Closing Date” has the meaning ascribed to such term in Section 3.2(c).


 


1.44         “Section 3.3
Notice” has the meaning ascribed to such term in Section 3.3(a).


 


1.45         “Selected
Courts” has the meaning ascribed to such term in Section 4.3(b).


 


1.46         “Series A
Preferred Stock” means any share of the Series A Convertible Preferred
Stock, $0.01 par value per share, of the Company.


 


1.47         “Series B
Preferred Stock” means any share of the Series B Convertible Preferred
Stock, $0.01 par value per share, of the Company.


 


1.48         “Stock
Dividend” means any stock split, stock dividend, reverse stock split or
similar transaction which changes the number of outstanding shares of Common
Stock of the Company.


 


1.49         “Stockholder”
has the meaning ascribed to such term in the preamble.


 


1.50         “Transaction”
means any sale pursuant to Section 3.3 or any transaction pursuant to Section 3.4.


 


1.51         “Transfer”
has the meaning ascribed to such term in Section 3.1(a).


 


1.52         “2007
Stock Option Plan” means the stock option plan of the Company being adopted
by the Company in connection with the Contemplated Transactions.


 


Section 2. Stock Certificate Legend.


 


2.1           All
certificates representing Common Stock held by the Stockholders (unless
registered under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder) shall bear the following legend:


 


“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE 


 

















 


STATE SECURITIES LAWS.  THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT OR LAWS AND EXCEPT IN ACCORDANCE
WITH THE PROVISIONS OF A STOCKHOLDERS’ AGREEMENT WITH THE COMPANY, A COPY OF
WHICH IS AVAILABLE FOR INSPECTION AT THE OFFICES OF THE COMPANY.”


 


Section 3. Rights and Restrictions on Common Stock.


 


3.1           No
Sale or Transfer.


 


(a)           Prior
to the Release Date, no Stockholder shall sell, transfer, assign, exchange,
pledge, encumber or otherwise dispose of any Common Stock held by such
Stockholder or grant any option or right to purchase such Common Stock or any
legal or beneficial interest therein or enter into any swap, hedge or other
arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of any Common Stock held by such Stockholder (each, a
“Transfer”), except (i) to the Company in accordance with the terms
of Section 3.2, (ii) to a third party or third parties in accordance
with Section 3.3 or 3.4 or (iii) as provided for in subsection (b) below.


 


(b)           Each
Stockholder may Transfer any of its Common Stock, but only to:


 


(i)            any spouse, child (whether natural
or adopted) or grandchild of such Stockholder (any such person, a “Family
Member”);


 


(ii)           any corporation or partnership which
is controlled solely by such Stockholder; or


 


(iii)          a trust solely for the benefit of such
Stockholder or any Family Member, the trustees of which are solely such
Stockholder and/or a corporation or partnership which is controlled solely by
such Stockholder (each Person to whom shares of Common Stock are
Transferred in accordance with this Section 3.1(b) being herein
referred to as the “Permitted Transferee”); provided, that, for
any Transfer to the Permitted Transferee to be effective hereunder (and for the
transferee to be deemed a Permitted Transferee hereunder), the Permitted
Transferee shall execute and deliver a written agreement (which may be in the
form of a counterpart hereto) satisfactory to the Company by which it agrees to
be bound by all of the terms of this Agreement applicable to such Stockholder
as if the Permitted Transferee originally had been a party hereto; and provided,
further, that for any Transfer to a Permitted Transferee that is the
spouse of a Stockholder to be effective hereunder, the Permitted Transferee
shall execute and deliver a written agreement satisfactory to the Company
providing for rights of repurchase (at a price determined by the Board in good
faith) by the Stockholder or the Company in the event of a divorce between such
spouse and such Stockholder; and provided, further, that any
Permitted Transferee pursuant to paragraph (b)(ii) 


 





















 


or b(iii) of this Section 3.1
shall agree in writing to Transfer any shares of Common Stock which it may own
back to the Stockholder from whom the Common Stock was Transferred if at any
time it ceases to meet the criteria for a Permitted Transferee set forth in the
applicable paragraph.  A Permitted
Transferee may Transfer any shares of Common Stock back to the Stockholder from
whom the Common Stock was Transferred or to any Person who would be a Permitted
Transferee of such Stockholder, subject to compliance by such Person with this Section 3.1(b),
and upon such compliance such Person shall likewise be a Permitted
Transferee.  Any reference herein to a
Stockholder shall be to both the Permitted Transferee and the Stockholder from
and after the date the transfer is effected in accordance with this Section 3.1
(b).  Without limiting the generality of
the foregoing, the provisions of Section 3.2 shall be likewise applicable
to any Permitted Transferee, commencing upon the date that such Person becomes
a Permitted Transferee, for the respective periods they apply to the
Stockholder.


 


3.2           Effect
of Certain Events.


 


(a)           If
(i) the employment of a Stockholder who is an Employee is terminated by
the Company or one of its subsidiaries for Cause, or (ii) a Stockholder
breaches or violates any obligation of such Stockholder under any
Non-Competition Agreement to which such Stockholder is a party, including
without limitation any obligation not to compete with the Company or any of its
subsidiaries, any obligation not to solicit employees of the Company or any of
its subsidiaries or any obligation not to disclose confidential or proprietary
information involving the Company or any of its subsidiaries, irrespective of
whether such Stockholder is an Employee at the time of such breach or
violation, the Company shall have the right, at its option, exercisable by
delivery of written notice to such Stockholder during the Call Period, to
purchase all or any portion of the shares of Common Stock held by such
Stockholder at the time such written notice is delivered or acquired after the
date such written notice is delivered upon exercise of any stock options held
by such Stockholder (a “Call”). 
The purchase price per share of any shares of Common Stock purchased
pursuant to this Section 3.2(a) shall be equal to the Fair Market
Value of such share of Common Stock as of the business day immediately
preceding the date on which the Closing occurs (the “Call Price”).


 


(b)           All
shares of Common Stock held by any Stockholder that the Company does not
purchase pursuant to the provisions of Section 3.2(a) shall continue
to be subject to the provisions of this Agreement (including Sections 3.1, 3.3(b) and
3.4), other than Section 3.3(a).


 


(c)           Subject
to Section 3.2(d), the closing (the “Closing”) of any purchase of
shares of Common Stock which the Company has elected to purchase pursuant to Section 3.2(a) (the
“Called Shares”) shall take place at the principal office of the Company
on the later of (i) fifteen business days after the Notice Date
and (ii) if such Stockholder has died, is permanently disabled or has been
adjudicated an incompetent on or prior to the date of the Closing, ten days
after the appointment of a Legal Representative (or, in each case, if such day
is not a business day, then the first business day thereafter) (such later
date, the “Scheduled Closing Date”). 
At the Closing, such Stockholder shall sell, convey, transfer, assign
and deliver to the Company all right, title and interest in and to the Called
Shares, which shall constitute (and, at the Closing, such Stockholder shall
represent, warrant and certify the same to the Company in 


 





















 


writing) good and unencumbered title to such shares, free and clear of
all liens, security interests, encumbrances and adverse claims of any kind and
nature (other than those in favor of the Company pursuant to this Agreement),
and shall deliver to the Company a certificate representing the shares duly
endorsed for transfer, or accompanied by appropriate stock transfer powers duly
executed, and with all necessary transfer tax stamps affixed thereto at the
expense of such Stockholder, and the Company shall deliver to such Stockholder,
in full payment of the purchase price for the Called Shares, either a wire
transfer to an account designated by such Stockholder or a cashier’s, certified
or official bank check payable to the order of such Stockholder (the method of
payment to be at the option of the Company), in an amount equal to the Call
Price multiplied by the aggregate number of Called Shares.  Notwithstanding anything herein to the
contrary, from and after the Notice Date, such Stockholder shall not have any
rights with respect to any of the Called Shares (including any rights pursuant
to Sections 3.3 and 3.4), except to receive the purchase price therefor.


 


(d)           Notwithstanding
the provisions of Section 3.2(c), if the Company exercises its option to
purchase Called Shares, but the Company is prohibited from effecting the
Closing on the Scheduled Closing Date by any contractual obligation of the
Company or any of its Affiliates, the terms of any Capital Stock or applicable
law, then the Closing shall take place on the first practicable date on which
none of the foregoing prohibitions is applicable.  If at any time the foregoing prohibitions
shall cease to be applicable to any portion of the Called Shares not purchased,
then the Company shall purchase such portion on the first practicable date on
which the Company is permitted to do so.


 


(e)           If,
as of the business day immediately preceding the date on which the Closing
occurs, the Common Stock is listed or traded in a manner referred to in the definition
of “Closing Price”, then the Fair Market Value per share of such Stockholder’s
Common Stock shall equal the Closing Price of such Common Stock as of the
business day immediately preceding the date on which the Closing occurs;
otherwise, the Fair Market Value per share of such Stockholder’s Common Stock
shall be the per share fair market value of such Common Stock as of such
business day as determined in good faith by the Board, and such determination
shall be final and binding on the Company and the Stockholder.


 


3.3           Participation
in Public Offering of Common Stock.


 


(a)           If
the Preferred Stock Holders propose to sell all or any portion of their shares
of Common Stock owned by the Preferred Stock Holders in a Public Offering in
connection with the exercise of their registration rights under the Investor
Stockholders Agreement, and the managing underwriter(s) advises the
Company in writing of its belief that, after taking into account the securities
which the Company and the Preferred Stock Holders have requested to be included
in such Public Offering, additional shares of Common Stock may be included in
such Public Offering without adversely affecting the Public Offering or
requiring the Preferred Stock Holders to reduce their participation in the Public
Offering, then each Stockholder shall be entitled to participate
proportionately in such Public Offering by selling in the Public Offering the
lesser of (x) such number of shares of Common Stock as, in the belief of
the managing underwriter(s), would not adversely affect such Public Offering or
require the Preferred Stock Holders to reduce their participation in the Public
Offering and (y) the same percentage of such Stockholder’s shares of
Common Stock as the Preferred Stock Holders are 


 





















 


selling of their shares of Common Stock in the Public Offering
(determined on the basis of the aggregate number of shares of Common Stock
owned and the aggregate number of shares of Common Stock being sold by the
Preferred Stock Holders (assuming conversion, exchange or exercise of all
Convertible Securities held by the Preferred Stock Holders and such Stockholder
other than Compensatory Equity)).  If the
Stockholders shall be entitled to participate in a Public Offering pursuant to
the previous sentence, then the Company shall notify each Stockholder in
writing of the Preferred Stock Holders’ intention to effect such Public
Offering at least ten business days, or such shorter time as the Company deems
practicable, before the effective date of the registration statement relating
to such Public Offering (the “Section 3.3 Notice”).  If the Stockholder wishes to participate in
such Public Offering, such Stockholder shall notify the Company in writing
within three business days after receipt of the Section 3.3 Notice of such
Stockholder’s intention to participate in such Public Offering, including the
number of shares with respect to which such Stockholder will so
participate.  Any failure by a
Stockholder to so notify the Company within such three business-day period
shall be deemed an election by such Stockholder not to participate in such
Public Offering with respect to any of such Stockholder’s shares of Common
Stock.  If any Stockholder sells any
shares pursuant to this Section 3.3, such Stockholder shall pay and be
responsible for such Stockholder’s proportionate share of the Expenses of Sale
and the Sale Obligations, including indemnifying the underwriters of such
Public Offering, on a proportionate basis, to the same extent as the Preferred
Stock Holders are required to indemnify such underwriters.  If any Stockholder sells any shares pursuant
to this Section 3.3, such Stockholder shall be entitled to all of the
rights and be bound by all of the obligations of a “Participating Holder” under
Section 2.1(g), the first sentence of Section 2.2(b), Section 2.3(a)(iii),
Section 2.3(a)(vi), Section 2.3(a)(viii) (to the extent such
section relates to the provision of an earnings statement), Section 2.3(a)(xix),
Section 2.3(a)(xx), the last two sentences of Section 2.4(a), the last
two sentences of Section 2.4(b), and Section 2.6 of the Investor
Stockholders Agreement, and shall be entitled to all of the rights and be bound
by all of the obligations of a “Holder” under Sections 2.2(b), 2.3(c) and
2.6 of the Investor Stockholders Agreement.


 


(b)           In
connection with any proposed Public Offering of the Company, whether by any of
the Preferred Stock Holders or the Company or otherwise, and whether or not
such Stockholder is participating therein, each Stockholder agrees (i) to
supply any information reasonably requested by the Company in connection with
the preparation of a registration statement and/or any other documents relating
to such Public Offering, (ii) to execute and deliver any agreements and
instruments reasonably requested by the Company to effectuate such Public
Offering, including an underwriting agreement, a custody agreement and a “hold
back” agreement pursuant to which the Stockholder will agree not to sell or
purchase any securities of the Company (whether or not such securities are
otherwise governed by this Agreement) for the same period of time following the
Public Offering as is agreed to by the Preferred Stock Holders with respect to
themselves and (iii) to otherwise comply with the provisions of Section 2
of the Investor Stockholders Agreement applicable to the Participating Holders
(as defined therein).  If the Company
requests that the Stockholder take any of the actions referred to in clause
(i), (ii) or (iii) of the previous sentence, the Stockholder shall
take such action promptly but in any event within five days following the date
of such request.


 


3.4           Required
Participation in Sale of Securities by the NMP Entities.  Notwithstanding any other provision of this
Agreement to the contrary, if the NMP Entities shall 


 





















 


propose to sell (including by exchange, in a business combination or
otherwise) at least 80% of their shares of Series B Preferred Stock to a
third party in the same transaction or transactions (which would represent,
together with any other shares of Capital Stock proposed to be transferred
(including pursuant to the exercise by the NMP Entities of their rights under Section 7.4 of the
Investor Stockholders Agreement), more than 50% of the outstanding Capital
Stock) or the Company proposes to sell or otherwise transfer for value all or
substantially all of the stock, assets or business (whether by merger, sale or
otherwise) of the Company to a third party, then (i) the NMP Entities at
their option may require, in the case of a sale of Capital Stock by the NMP
Entities, that each Stockholder sell a proportionate amount of such Stockholder’s
shares of Common Stock (which shall be the same proportion as the proportion of
the aggregate number of shares sold by the NMP Entities to the aggregate number
of shares owned by the NMP Entities) and waive any appraisal right that it may
have in connection with the Transaction and (ii) in any case, if
stockholder approval of the Transaction is required and the Company’s
stockholders are entitled to vote thereon, that each Stockholder vote all of
such Stockholder’s shares of Common Stock in favor of such Transaction.  Any sale of shares of Common Stock by a
Stockholder pursuant to this Section 3.4 shall, subject to Section 3.5,
be for the same consideration per share, on substantially the same terms and
subject to substantially the same conditions as the sale of shares of Capital
Stock owned by the NMP Entities.  Each
Stockholder that sells any shares of Common Stock pursuant to this Section 3.4
shall pay and be responsible for such Stockholder’s proportionate share of the
Expenses of Sale and the Sale Obligations.


 


3.5           Exceptions.  Notwithstanding anything contained to the
contrary in Section 3.4,


 


(a)           in
connection with a sale by the NMP Entities pursuant to Section 3.4 where
the consideration in such sale consists of or includes securities, if the sale
of such securities to the Stockholder would require either a registration
statement under the Securities Act of 1933, as amended, or preparation of a
disclosure statement pursuant to Regulation D (or any successor regulation)
under the Securities Act of 1933, as amended, or a similar provision of any
state securities law, and such registration statement or disclosure statement
is not otherwise being prepared in connection with the sale, then, at the
option of the NMP Entities, the Stockholder may receive, in lieu of such
securities, the fair market value of such securities in cash, as determined in
good faith by the Board, whose determination shall be final and binding;


 


(b)           the
consideration per share received by a Stockholder in any sale pursuant to Section 3.4
which is not a sale of all of the outstanding Capital Stock shall be adjusted
as between the Preferred Stock Holders and the holders of Common Stock if the
sale involves both Preferred Stock and Common Stock, which adjustment shall be
as determined in good faith by the Board, whose determination shall be final
and binding; and


 


(c)           in
no event shall any Stockholder be obligated pursuant to Section 3.4 to
assume any joint liabilities or obligations with respect to any other party, or
to make representations, warranties or covenants that are more expansive or
otherwise less favorable to the Stockholder than those made by any other
similarly situated Company security holder in such Transaction.


 


3.6           Limitation
on Sale of Securities.  If the
Company receives a request for registration pursuant to an underwritten
offering of registrable securities pursuant to Section 2.1 


 





















 


or 2.2 of the Investor Stockholders Agreement (and if such a request is
being implemented or has not been withdrawn or abandoned), each Stockholder
agrees that, to the extent requested in writing by the managing underwriter(s),
it will not effect any public or private offer, sale, distribution or other
disposition of any Common Stock during the 180-day period in the case of an
initial public offering of Common Stock (or such shorter period as the managing
underwriter(s) may require), or the 90-day period in the case of any other
underwritten offering (or such shorter period as the managing underwriter(s) may
require), in each case beginning on the effective date of such registration
statement and excluding shares of Common Stock covered by the registration
statement filed in connection with such underwritten offering (such periods of
time being herein referred to as the “Restricted Period”), provided that
each Stockholder has received prior written notice of such offering and provided,
further, that, in connection with such underwritten offering, each officer
and director of the Company is subject to restrictions substantially equivalent
to those imposed on the Stockholders, and provided, further,
that, if (A) the Company issues an earnings release or material news or a
material event relating to the Company occurs during the last 17 days of the
relevant Restricted Period, or (B) prior to the expiration of the relevant
Restricted Period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the relevant Restrictive
Period, the restrictions imposed by this Section 3.6 shall continue to
apply until the expiration of the 18-day period beginning on the issuance of
the earnings release or the occurrence of the material news or material event.


 


Section 4. Miscellaneous.


 


4.1           Distributions.  In the event of any dividend, distribution or
exchange paid or made in respect of the Common Stock consisting of Affiliate
Securities, (a) the restrictions and rights with respect to the Common
Stock that are contained in this Agreement shall be applicable to the Affiliate
Securities without further action of the parties (with the references to Common
Stock being deemed references to the Affiliate Securities and the references to
the Company being deemed references to the Affiliate), and (b) as a
condition precedent to the receipt of the Affiliate Securities by a
Stockholder, such Stockholder shall enter into a stockholders’ agreement
containing terms substantially equivalent to those contained herein with
respect to the Affiliate Securities (but reflecting the economics of the
dividend, distribution or exchange and the capitalization of the
Affiliate).  The Board, in good faith,
shall determine such terms and its determination shall be final and binding on
such Stockholder.


 


4.2           Further
Assurances.  Each party hereto shall
cooperate with each other party, shall do and perform or cause to be done and
performed all further acts and things, and shall execute and deliver all other
agreements, certificates, instruments, and documents as any other party hereto
reasonably may request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions
contemplated hereby.


 


4.3           Governing
Law; Venue; Service of Process; Waiver of Jury Trials.


 


(a)           Governing
Law.  This Agreement shall be
construed and enforced in accordance with, and the rights and obligations of
the parties hereto shall be governed by, the laws of the State of New York,
without giving effect to the conflicts of law principles thereof.


 














 


(b)           Venue
and Service of Process.  By execution
and delivery of this Agreement, each of the parties hereto hereby irrevocably
and unconditionally (i) consents to submit to the exclusive jurisdiction
of the federal and state courts located in the State of New York in New York
County (collectively, the “Selected Courts”) for any action or
proceeding arising out of or relating to this Agreement and the transactions
contemplated hereby, and agrees not to commence any action or proceeding
relating thereto except in the Selected Courts, provided, that, a party
may commence any action or proceeding in a court other than a Selected Court
solely for the purpose of enforcing an order or judgment issued by one of the
Selected Courts; (ii) consents to service of any process, summons, notice
or document in any action or proceeding by registered first-class mail, postage
prepaid, return receipt requested or by nationally recognized courier
guaranteeing overnight delivery in accordance with Section 4.6 and agrees
that such service of process shall be effective service of process for any
action or proceeding brought against it in any such court, provided,
that, nothing herein shall affect the right of any party hereto to serve
process in any other manner permitted by law; (iii) waives any objection
to the laying of venue of any action or proceeding arising out of this
Agreement or the transactions contemplated hereby in the Selected Courts; and (iv) waives
and agrees not to plead or claim in any court that any such action or proceeding
brought in any such Selected Court has been brought in an inconvenient forum.


 


(c)           Waiver of Jury Trial.  With respect to any action or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby, each of the parties hereby irrevocably, to the extent not prohibited by
applicable law that cannot be waived, waives, and covenants that it will not
assert (whether as plaintiff, defendant or otherwise),
any right to trial by jury in any action arising in whole or in part under or
in connection with this Agreement or the transactions contemplated hereby,
whether now existing or hereafter arising, and whether sounding in contract,
tort or otherwise, and agrees that any of them may file a copy of this
paragraph with any court as written evidence of the knowing, voluntary and
bargained-for agreement among the parties irrevocably to waive its right to
trial by jury in any action or proceeding whatsoever between them relating to
this Agreement or the transactions contemplated hereby.  Such action or proceeding shall instead be
tried in a Selected Court by a judge sitting without a jury.


 


4.4           Remedies.  Each party hereby agrees that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with its specific terms or was otherwise
breached and further agree that money damages or other remedy at law would not
be a sufficient or adequate remedy for any breach or violation of, or a default
under, this Agreement by it and that, in addition to all other remedies
available to the other parties, each of them shall be entitled to an injunction
restraining such breach, violation or default or threatened breach, violation
or default and to any other equitable relief, including, without limitation,
specific performance of the terms and provisions of this Agreement.  Any requirements for the securing or posting
of any bond with respect to such remedy are hereby waived by each of the
parties hereto.  Each party hereby
further agrees that, in the event of any action for an injunction or other
equitable remedy in respect of such breach or enforcement of specific
performance, it will not assert the defense that a remedy at law would be
adequate.  In any action or proceeding
brought to enforce any provision of this Agreement or where any provision
hereof is validly asserted as a defense, the successful party to such action or



 





















 


proceeding shall be entitled to recover, to the extent permitted by
applicable law, attorneys’ fees in addition to its costs and expenses and any
other available remedy.


 


4.5           Severability.  Whenever possible, each provision or portion
of any provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law but the invalidity or unenforceability
of any provision or portion of any provision of this Agreement in any
jurisdiction shall not affect the validity or enforceability of the remainder
of this Agreement in that jurisdiction or the validity or enforceability of this
Agreement, including, without limitation, that provision or portion of any
provision, in any other jurisdiction.  In
addition, should a court or arbitrator determine that any provision or portion
of any provision of this Agreement is not reasonable or valid, either in period
of time, geographical area, or otherwise, the parties hereby agree that such
provision should be interpreted and enforced to the maximum extent which such
court or arbitrator deems reasonable or valid.


 


4.6           Notice.  Unless otherwise provided herein, all
notices, requests, demands, claims and other communications provided for under
the terms of this Agreement shall be in writing.  Any notice, request, demand, claim or other
communication hereunder shall be sent by (i) personal delivery (including,
without limitation, receipted courier service) or overnight delivery service to
the intended recipient at the address set forth below, (ii) facsimile
during normal business hours, with confirmation of receipt, to the number of
the intended recipient as set forth below, (iii) reputable commercial
overnight delivery service courier to the intended recipient at the address set
forth below or (iv) registered or certified mail, return receipt
requested, postage prepaid and addressed to the intended recipient as set forth
below:


 


(a)           If
to the Company, to:


 


Ikaria Holdings, Inc.  

c/o New Mountain Capital, L.L.C.  

787 Seventh Avenue 

New York, NY 10019 

Attention: David Shaw 

Facsimile: (212) 582-2277


 


(b)           If
to a Stockholder, to the address for such Stockholder set forth in the books
and records of the Company, and if to the Legal Representative, to such Person
at the address of which the Company is notified in accordance with this Section 4.6.


 


(c)           In all cases,
with a copy to (which shall not constitute notice):


 


c/o New Mountain Capital, L.L.C. 


787 Seventh Avenue 

New York, NY 10019 

Attention: Alok Singh 

Facsimile: (212) 582-2277



and


 

















 


Fried, Frank, Harris, Shriver &  Jacobson LLP 

One New York Plaza 

New York, NY 10004 

Attention: Aviva F. Diamant, Esq.  

Facsimile: (212) 859-4000



and



Heller Ehrman LLP 

701 Fifth Avenue, Suite 6100 

Seattle, WA 98104 

Attention: Sonya Erickson, Esq.  

Facsimile: (206) 515-8888


 


All such notices, requests, consents and other
communications shall be deemed to have been given when received.  Any party may change its facsimile number or
its address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other parties hereto
notice in the manner then set forth in this Section 4.6.


 


4.7           Binding
Effect; Assignment; Third-Party Beneficiaries.  This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and any of
their respective successors, personal representatives and permitted assigns who
agree in writing to be bound by the terms hereof.  Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any Stockholder without
the prior written consent of the Company. 
In addition, each of the NMP Entities shall be a third party beneficiary
of Sections 3.3(b), 3.4 and 3.5 of this Agreement and shall be entitled to
enforce such Sections of this Agreement.


 


4.8           Amendments
and Waivers.  This Agreement and any
of the provisions hereof may be amended, waived (either generally or in a
particular instance and either retroactively or prospectively), modified or
supplemented, in whole or in part, only by written agreement signed by the
Company and the Majority Stockholders; provided, that any amendment,
waiver or modification of, or supplement to, Section 3.3, 3.4 or 3.5 may
be effected only with the consent of the NMP Entities; and provided, further,
that, the observance of any provision of this Agreement may be waived in
writing by the party that will lose the benefit of such provision as a result
of such waiver.  The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a further or continuing waiver of such breach or as a waiver of
any other or subsequent breach, except as otherwise explicitly provided for in
such waiver.  The waiver by any party
hereto of a breach of any provision of this Agreement by any Stockholder shall
not operate or be construed as a waiver of such breach by any other
Stockholder, except as otherwise explicitly provided for in such waiver.  Except as otherwise expressly provided
herein, no failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder, or otherwise available in
respect hereof at law or in equity, shall operate as a waiver thereof, nor
shall any single or partial exercise of such right, power or remedy by such
party preclude any other or further exercise thereof or the exercise of any
other right, power or remedy.  The
Company may require any prospective holder of Common Stock after the date
hereof to execute a counterpart signature page to this Agreement 


 





















 


agreeing to be bound by the provisions of this Agreement as a “Stockholder,”
and the execution of such a counterpart signature page to this Agreement
by such prospective holder shall only require consent of the Company, which
shall be evidenced by the Company’s execution of the counterpart signature page (provided,
that nothing in this Section 4.8 shall relieve the Company of any
obligation to obtain any requisite approval of the Board or any other approval
required by it under the terms of any contract to which it is a party prior to
taking any action set forth in this Section 4.8).  Notwithstanding anything contained in this
Agreement to the contrary, each Stockholder hereby acknowledges and agrees that
no Stockholder shall have any right to enforce this Agreement against any other
Stockholder or compel or seek to compel the Company or the NMP Entities to
enforce any of their respective rights under this Agreement against any other
Stockholder, and such right of the Company and the NMP Entities to enforce
their respective rights under this Agreement against any Stockholder shall be
solely and exclusively vested in the Company and the NMP Entities (and their
respective successors and assigns), respectively.  Without limiting the generality of the
foregoing, each Stockholder hereby acknowledges and agrees that (i) the
Company (and its successors and assigns) shall have the sole and exclusive
right to waive any rights of the Company hereunder and compliance by any
Stockholder with any provision hereof and to provide any Stockholder with terms
relating to such rights that are different from (including, without limitation,
terms that are more favorable or less favorable than) the terms provided in
this Agreement to any other Stockholder, and (ii) the NMP Entities (and
its successors and assigns) shall have the sole and exclusive right to waive
any rights of the NMP Entities hereunder and compliance by any Stockholder with
any provision hereof and to provide any Stockholder with terms relating to such
rights that are different from (including, without limitation, terms that are
more favorable or less favorable than) the terms provided in this Agreement to
any other Stockholder.


 


4.9           Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.


 


4.10         Entire
Agreement.  This Agreement, and, to
the extent referred to herein, the Investor Stockholders Agreement, constitute
the entire agreement, and supersede all prior agreements and understandings,
oral and written, between the parties hereto with respect to the subject matter
hereof.


 


4.11         Withholding.  The Company shall have the right to deduct
from any amount payable under this Agreement any taxes required by applicable
law to be withheld.  Each Stockholder
agrees to indemnify the Company against any federal, state and local
withholding taxes for which the Company may be liable in connection with such
Stockholder’s acquisition, ownership or disposition of any Common Stock.


 


4.12         No
Right to Continued Employment.  This
Agreement shall not confer upon any Stockholder any right with respect
employment by the Company or any Affiliate thereof, nor shall it interfere in
any way with the right of the Company or any Affiliate thereof to terminate
such Stockholder’s employment at any time.


 





















 


4.13         Possession
of Certificates; Power of Attorney.


 


(a)           In
order to provide for the safekeeping of the certificates representing the
shares of Common Stock held by the Stockholders pursuant hereto and to
facilitate the enforcement of the terms and conditions hereof, at any time
requested by the Company, (i) each Stockholder shall redeliver to the
Company, and the Company shall retain physical possession of, all certificates
representing shares of Common Stock held by such Stockholder pursuant hereto
and (ii) each Stockholder shall deliver to the Company an undated stock
power, duly executed in blank, for each such certificate.  Each Stockholder shall be relieved of any
obligation otherwise imposed by this Agreement to deliver certificates representing
shares of Common Stock if the same are in the custody of the Company.


 


(b)           Each
Stockholder hereby irrevocably appoints the Representative as the Stockholder’s
true and lawful agent and attorney-in-fact, with full powers of substitution,
to act in the Stockholder’s name, place and stead, to do or refrain from doing
all such acts and things, and to execute and deliver all such documents, as the
Representative shall deem necessary or appropriate in connection with a Public
Offering of securities of the Company, including pursuant to Section 3.3,
or a sale pursuant to Section 3.2 or 3.4, including, without in any way
limiting the generality of the foregoing, in the case of a sale pursuant to Section 3.4,
but subject to the limitations set forth in Section 3.5, to execute and
deliver on behalf of such Stockholder a purchase and sale agreement and any
other agreements and documents that the Representative deems necessary in
connection with any such sale, and in the case of a Public Offering, to execute
and deliver on behalf of such Stockholder an underwriting agreement, a “hold
back” agreement and, if the Stockholder is participating in the Public
Offering, a custody agreement, an underwriting agreement, a power of attorney
and in each case any other agreements and documents that the Representative
deems necessary in connection with any such Public Offering, and in the case of
any sale pursuant to Section 3.4 and any Public Offering pursuant to Section 3.3(a),
to receive on behalf of such Stockholder the proceeds of the sale or Public
Offering of such Stockholder’s shares, to hold back from any such proceeds any
amount that the Representative deems necessary to reserve against such
Stockholder’s share of any Expenses of Sale and Sale Obligations and to pay such
Expenses of Sale and Sale Obligations. 
Such Stockholder hereby ratifies and confirms all that the
Representative shall do or cause to be done by virtue of its appointment as
such Stockholder’s agent and attorney-in-fact. 
In acting for such Stockholder pursuant to the appointment set forth in
this Section 4.13(b), the Representative shall not be responsible to such
Stockholder for any loss or damage such Stockholder may suffer by reason of the
performance by the Representative of its duties under this Agreement, except
for loss or damage arising from willful violation of law or gross negligence by
the Representative in the performance of its duties hereunder.  The appointment of the Representative shall
be deemed coupled with an interest and as such shall be irrevocable and shall
survive the death, incompetency, mental illness or insanity of such
Stockholder, and any person dealing with the Representative may conclusively
and absolutely rely, without inquiry, upon any act of the Representative as the
act of such Stockholder in all matters referred to in this Section 4.13(b).  Notwithstanding anything herein to the
contrary, no authority is hereby granted to the Representative (a) to
elect whether the Stockholder shall participate in a Public Offering pursuant
to Section 3.3(a), or (b) to cause any Stockholder to assume any
joint liabilities or obligations with respect to any other party, or to make
representations, warranties or covenants that are more expansive or otherwise
less favorable to the Stockholder than those made by any 


 





















 


other similarly situated Company security holder in such
Transaction.  For purposes of this
Agreement, the “Representative” shall mean (i) as applied to Section 3.2,
the Secretary of the Company or such other person designated by the
Board, and (ii) as applied to Sections 3.3, 3.4 and 3.5, the NMP Entities.


 


4.14         General
Interpretive Principles.  Whenever
used in this Agreement, except as otherwise expressly provided or unless the
context otherwise requires, any noun or pronoun shall be deemed to include the
plural as well as the singular and to cover all genders.  The headings of the sections, paragraphs,
subparagraphs, clauses and subclauses of this Agreement are for convenience of
reference only and shall not in any way affect the meaning or interpretation of
any of the provisions hereof.  Unless
otherwise specified, the terms “hereof’, “herein” and similar terms refer to
this Agreement as a whole, and references herein to Sections refer to Sections
of this Agreement.  Words of inclusion
shall not be construed as terms of limitation herein, so that references to “include”,
“includes” and “including” shall not be limiting and shall be regarded as references to
non-exclusive and non-characterizing illustrations.  Any action required to be taken “within” a
specified time period following the occurrence of an event shall be required to
be taken no later than 5:00 PM, New York City time, on the last day of the time
period, which shall be calculated starting with the day immediately following
the date of the event.


 


4.15         Termination.  This Agreement, and all of the rights and
obligations of the parties hereto, shall terminate without further action of
the parties upon the termination of the Preferred Stock Purchase Agreement.


 

















 


IN WITNESS WHEREOF, this Common Stockholders
Agreement has been signed by or on behalf of each of the parties hereto, all as
of the date first above written.


 


	
   

  	
  IKARIA HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alok Singh

  
	
   

  	
   

  	
  Name: Alok Singh

  
	
   

  	
   

  	
  Title:   President

  



 


[SIGNATURE PAGE TO IKARIA
HOLDINGS, INC. COMMON STOCKHOLDERS AGREEMENT]


 

















 


IN WITNESS WHEREOF, this Common Stockholders
Agreement has been signed by or on behalf of each of the
parties hereto, all as of the date first above written.


 


	
   

  	
  INDIVIDUAL STOCKHOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENTITY STOCKHOLDER:

  
	
   

  	
   

  
	
   

  	
  Fred Hutchinson Cancer Research Center

  
	
   

  	
  (Print Legal Name of
  Stockholder Entity)

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Douglas J. Shaeffer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  V.P. & General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
  Douglas J. Shaeffer

  
				



 


[SIGNATURE
PAGE TO IKARIA HOLDINGS, INC. COMMON STOCKHOLDERS AGREEMENT]


 

















 


IN WITNESS WHEREOF, this Common Stockholders
Agreement has been signed by or on behalf of each of the parties hereto, all as
of the date first above written.


 


	
   

  	
  INDIVIDUAL STOCKHOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Michael L. Morrison

  
	
   

  	
  Name: Michael L. Morrison

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENTITY STOCKHOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Print Legal Name of
  Stockholder Entity)

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
					



 


[SIGNATURE PAGE TO ITL HOLDINGS, INC. COMMON
STOCKHOLDERS AGREEMENT]


 

















 


The undersigned acknowledges that the
undersigned has read the foregoing Common Stockholders Agreement between the
Company and the undersigned’s spouse, understands that the undersigned’s spouse
holds shares of Common Stock subject to the provisions of such
Agreement and agrees to be bound by the foregoing Agreement.


 


 


	
   

  	
  /s/ Katherine Morrison

  
	
   

  	
  Individual’s Spouse: Katherine M. Morrison

  



 


[SIGNATURE PAGE TO ITL HOLDINGS, INC. COMMON
STOCKHOLDERS AGREEMENT]


 














 


IN WITNESS WHEREOF, this Common Stockholders
Agreement has been signed by or on behalf of each of the parties hereto,
all as of the date first
above written.


 


	
   

  	
  INDIVIDUAL STOCKHOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Flemming Ornskov

  
	
   

  	
  Name: Flemming Ornskov

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENTITY STOCKHOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Print Legal Name of
  Stockholder Entity)

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
					



 


[SIGNATURE
PAGE TO IKARIA HOLDINGS, INC. COMMON STOCKHOLDERS AGREEMENT]


 

















 


IN WITNESS WHEREOF, this Common
Stockholders Agreement has been signed by or on behalf of
each of the parties hereto, all as of the date first above written.


 


	
   

  	
  INDIVIDUAL STOCKHOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Mark Roth

  
	
   

  	
  Name:  Mark Roth

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENTITY STOCKHOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Print Legal Name of
  Stockholder Entity)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
					



 


[SIGNATURE
PAGE TO IKARIA HOLDINGS, INC. COMMON STOCKHOLDERS AGREEMENT]


 

















 


The undersigned acknowledges that the
undersigned has read the foregoing Common
Stockholders Agreement between the Company and the undersigned’s
spouse, understands that the undersigned’s spouse holds shares of
Common Stock subject to the provisions of such Agreement
and agrees to be bound by the foregoing
Agreement


 


 


	
   

  	
  /s/ Illegible

  
	
   

  	
  Individual’s Spouse

  



 


[SIGNATURE
PAGE TO IKARIA HOLDINGS, INC. COMMON STOCKHOLDERS AGREEMENT]


 

















 


IN WITNESS WHEREOF, this Common Stockholders
Agreement has been signed by or on behalf of each of the parties hereto, all as of the date first
above written.


 


	
   

  	
  INDIVIDUAL STOCKHOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Kevin Tomaselli

  
	
   

  	
  Name:  Kevin Tomaselli

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENTITY STOCKHOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Print Legal Name of
  Stockholder Entity)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
					



 


[SIGNATURE
PAGE TO IKARIA HOLDINGS, INC. COMMON STOCKHOLDERS AGREEMENT]


 

















 


The undersigned acknowledges that the
undersigned has read the foregoing Common Stockholders Agreement between the
Company and the undersigned’s spouse, understands that the undersigned’s spouse
holds shares of Common Stock subject to the provisions of such Agreement and
agrees to be bound by the foregoing Agreement.


 


 


	
   

  	
  /s/ Taddie Tomaselli

  
	
   

  	
  Individual’s Spouse

  



 


[SIGNATURE
PAGE TO ITL HOLDINGS, INC. COMMON STOCKHOLDERS AGREEMENT]


 

















 


IN WITNESS WHEREOF, this Common
Stockholders Agreement has been signed by or on behalf of
each of the parties hereto, all as of the date first above written.


 


	
   

  	
  INDIVIDUAL STOCKHOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Lynne Zydowsky

  
	
   

  	
  Name:  Lynne Zydowsky

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ENTITY STOCKHOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Print Legal Name of
  Stockholder Entity)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  
					



 


[SIGNATURE PAGE TO IKARIA
HOLDINGS, INC. COMMON STOCKHOLDERS AGREEMENT]


 














 


AMENDMENT NO. 1 TO THE COMMON STOCKHOLDERS AGREEMENT


 


This
Amendment No. 1 to the Common Stockholders Agreement (this “Amendment”)
is entered into as of October 15, 2010, among (i) Ikaria, Inc.
(formerly, Ikaria Holdings, Inc.), a Delaware corporation (the “Company”)
and each of the signatories who are party thereto (the “Stockholders”).


 


INTRODUCTION


 


The
Company and the Stockholders have entered into the Common Stockholders
Agreement dated as of February 22, 2007 (the “Common Stockholders
Agreement”).


 


Pursuant
to Section 4.8 of the Common Stockholders Agreement, any amendment of the
Common Stockholders Agreement requires the written agreement of the Company and
majority of the voting power represented by the shares of capital stock then
held by all Stockholders, including New Mountain Partners II, L.P., a Delaware
limited partnership, New Mountain Affiliated Investors II, L.P., a Delaware
limited partnership, and Allegheny New Mountain Partners, L.P., a Delaware
limited partnership.


 


The
signatories to this Amendment hold the requisite number of shares to effect the
amendment of the Common Stockholders Agreement.


 


The
Company and the Stockholders therefore agree as follows:


 


1.             Capitalized
Terms.  All capitalized, undefined
terms used in this Amendment shall have the meanings assigned thereto in the
Common Stockholders Agreement.


 


2.             Amendments.


 


(a)           All references to “Ikaria Holdings, Inc.” in the
Common Stockholders Agreement are hereby be deleted and replaced with “Ikaria, Inc.”


 


(b)           Section 3.2(a) of the Common Stockholders
Agreement is hereby deleted in its entirety and replaced with the following:


 


“(a)         If, prior to the  consummation of the sale of shares pursuant to a
registration statement relating to the  Company’s initial public offering of common stock (the
“IPO Closing”), (i) the employment of a Stockholder who is an
Employee is terminated by the Company or one of its subsidiaries for Cause, or (ii) a
Stockholder breaches or violates any obligation of such Stockholder under any
Non-Competition Agreement to which such Stockholder is a party, including
without limitation any obligation not to compete with the Company or any of its
subsidiaries, any obligation not to solicit employees of the Company or any of
its subsidiaries or any obligation not to disclose confidential or proprietary
information involving the Company or any of its subsidiaries, irrespective of
whether such Stockholder is an Employee at the time of such breach or
violation, the Company shall have the right, at its option, exercisable by
delivery of written 


 

















 


notice to such Stockholder during the Call Period, to purchase all or
any portion of the shares of Common Stock held by such Stockholder at the time
such written notice is delivered or acquired after the date such written notice
is delivered upon exercise of any stock options held by such Stockholder (a “Call”).  The purchase price per share of any shares of
Common Stock purchased pursuant to this Section 3.2(a) shall be equal
to the Fair Market Value of such share of Common Stock as of the business day
immediately preceding the date on which the Closing occurs (the “Call Price”).  Notwithstanding anything to the contrary in
this Section 3.2(a), in the event the Company has the right, as a result
of such termination, breach or violation, to purchase such share of Common
Stock pursuant to any other agreement or other instrument executed by a
Stockholder and/or the Company (including any restricted stock, stock option,
or stock unit award) (an “Other Instrument”), (A) for a lesser price, the
Call Price shall be such lower price and (B) for a longer period, the Call
Period shall be such longer period, provided that the Call Price shall be the
price for which the Company has the right to purchase such share of Common
Stock pursuant to such Other Instrument. 
The  provisions set forth in this Section 3.2(a) and
the portion of any other provision of this Agreement  that cross-references this Section 3.2(a) shall
terminate and be of no further force or effect from and after the IPO Closing.”


 


(c)           Section 3.2(e) of the Common Stockholders
Agreement is hereby deleted in its entirety and replaced with the following:


 


“(e)         The Fair Market Value per share of such Stockholder’s Common
Stock shall be the per share fair market value of such Common Stock as of the
business day immediately preceding the date on which the Closing occurs as
determined in good faith by the Board, and such determination shall be final
and binding on the Company and the Stockholder.”


 


(d)           The first sentence of Section 3.4 of the Common
Stockholders Agreement is hereby amended to add the following text immediately
after “Notwithstanding any other provision of this Agreement to the contrary,”
and immediately prior to “if the NMP Entities shall propose to sell...”: “at any
time prior to the Section 7.4 Termination Date as such term is defined in
the Investor Stockholders Agreement,”.


 


(e)           Section 4.6(a) of the Common Stockholders
Agreement is hereby deleted in its entirety and replaced with the following:


 


“(a)         If to the Company, to:


 


Ikaria, Inc.


6 State Route 173 

Clinton, New Jersey  08809 

Facsimile:  (866) 670-3623


Attention:  Matthew
M. Bennett, Senior Vice President, Legal and

Corporate Development”


 


2

















 


(f)            Section 4.6(c) of the Common Stockholders
Agreement is hereby deleted in its entirety and replaced with the following:


 


“(c)         In all cases, with a copy to (which
shall not constitute notice):


 


Fried,
Frank, Harris, Shriver & Jacobson LLP 

One New York Plaza 

New York, New York  10004 

Facsimile:  (212) 859-4000 

Attention:  Aviva F. Diamant, Esq.


 


and


 


Wilmer Cutler Pickering Hale and Dorr LLP

60 State Street

Boston, Massachusetts 02109

Facsimile: (617) 526-5000

Attention: Lia Der Marderosian, Esq.”


 


3.             Effective
Date.  This Amendment shall become
effective as of the date first written above.


 


4.             Interpretation.  All references in the Common Stockholders
Agreement to “this Agreement” shall mean the Common Stockholders Agreement as
amended by this Amendment.


 


5.             Effect
of Amendment.  Except as expressly
provided herein, the Common Stockholders Agreement shall be and remain in full
force and effect.


 


6.             Governing
Law.  This Amendment shall be
construed and enforced in accordance with, and the rights and obligations of
the parties hereto shall be governed by, the laws of the State of New York,
without giving effect to the conflicts of law principles thereof.


 


7.             Counterparts.  This Amendment may be executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument


 


[Remainder
of page intentionally left blank]


 


3

















 


IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed and
delivered by their respective officers thereunto duly authorized.


 


	
   

  	
  IKARIA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Matthew M. Bennett

  
	
   

  	
   

  	
  Name:
  Matthew M. Bennett

  
	
   

  	
   

  	
  Title:
  Senior Vice President and Secretary

  



 


	
   

  	
  NEW
  MOUNTAIN PARTNERS II, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  New
  Mountain Investments II, L.L.C.,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven B. Klinsky

  
	
   

  	
   

  	
  Steven
  B. Klinsky, Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEW
  MOUNTAIN AFFILIATED

  
	
   

  	
  INVESTORS
  II, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  New
  Mountain Investments II, L.L.C.,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven B. Klinsky

  
	
   

  	
   

  	
  Steven
  B. Klinsky, Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALLEGHENY
  NEW MOUNTAIN

  
	
   

  	
  PARTNERS,
  L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  New
  Mountain Investments II, L.L.C.,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven B. Klinsky

  
	
   

  	
   

  	
  Steven
  B. Klinsky, Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ARCH
  VENTURE FUND VI, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  ARCH
  Venture Partners VI, L.P.,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
  By:

  	
  ARCH
  Venture Partners VI, LLC,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert Nelsen

  
	
   

  	
   

  	
  Robert
  Nelsen, Managing Director

  



 

















 


	
   

  	
  VENROCK
  PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Venrock
  Partners Management, LLC,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bryan E. Roberts

  
	
   

  	
   

  	
  Bryan
  E. Roberts, General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VENROCK ASSOCIATES IV, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Venrock
  Management IV, LLC

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bryan E. Roberts

  
	
   

  	
   

  	
  Bryan
  E. Roberts, General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VENROCK ENTREPENEURS FUND IV, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  VEF
  Management IV, LLC,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bryan E. Roberts

  
	
   

  	
   

  	
  Bryan
  E. Roberts, Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LINDE
  NORTH AMERICA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: