exv10w2






Exhibit 10.2




REGISTRATION RIGHTS AGREEMENT




          This Registration Rights Agreement (this “Agreement”) is made and entered into as of December
17, 2008, by and among Ardea Biosciences, Inc., a Delaware corporation (the “Company”), and the
several purchasers signatory hereto (each a “Purchaser” and collectively, the “Purchasers”).




          This Agreement is made pursuant to the Securities Purchase Agreement, dated as of the date
hereof between the Company and each Purchaser (the “Purchase Agreement”).




          NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the Company and each of the Purchasers agree as follows:




     1. Definitions. Capitalized terms used and not otherwise defined herein that are
defined in the Purchase Agreement shall have the meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms shall have the following meanings:



          “Advice” shall have the meaning set forth in Section 6(e).




          “Affiliate” means, with respect to any person, any other person which directly or indirectly
controls, is controlled by, or is under common control with, such person.




          “Business Day” means a day, other than a Saturday or Sunday, on which banks in New York City
are open for the general transaction of business.




          “Closing” has the meaning set forth in the Purchase Agreement.




          “Closing Date” has the meaning set forth in the Purchase Agreement.




          “Commission” means the Securities and Exchange Commission.




          “Common Stock” means the common stock of the Company, par value $0.001 per share, and any
securities into which such common stock may hereinafter be reclassified.




          “Effective Date” means the date that the Registration Statement filed pursuant to Section 2(a)
is first declared effective by the Commission.




          “Effectiveness Deadline” means, with respect to the Initial Registration Statement or the New
Registration Statement, the 90th calendar day following the Closing Date (or, in the
event the Commission reviews and has written comments to the Initial Registration Statement or the
New Registration Statement, the 120th calendar day following the Closing Date);
provided, however, that if the Company is notified by the Commission that a Registration Statement
will not be reviewed or is no longer subject to further review and comments, the Effectiveness
Deadline as to such Registration Statement shall be the 10th Trading Day following the
date on which the Company is so notified if such date precedes the dates otherwise required above;
provided, further, that if the Effectiveness Deadline falls on a Saturday, Sunday or other day that
the Commission is closed for business, the Effectiveness Deadline shall be extended to the next
Business Day on which the Commission is open for business.




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          “Effectiveness Period” shall have the meaning set forth in Section 2(b).




          “Event” shall have the meaning set forth in Section 2(c).




          “Event Date” shall have the meaning set forth in Section 2(c).




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.




          “Filing Deadline” means, with respect to the Initial Registration Statement required to be
filed pursuant to Section 2(a), the 30th calendar day following the Closing Date,
provided, however, that if the Filing Deadline falls on a Saturday, Sunday or other day that the
Commission is closed for business, the Filing Deadline shall be extended to the next Business Day
on which the Commission is open for business.




          “Holder” or “Holders” means the holder or holders, as the case may be, from time to time of
Registrable Securities.




          “Indemnified Party” shall have the meaning set forth in Section 5(c).




          “Indemnifying Party” shall have the meaning set forth in Section 5(c).




          “Initial Registration Statement” means the initial Registration Statement filed pursuant to
Section 2(a) of this Agreement.




          “Liquidated Damages” shall have the meaning set forth in Section 2(c).




          “Losses” shall have the meaning set forth in Section 5(a).




          “New York Courts” means the state and federal courts sitting in the City of New York, Borough
of Manhattan.




          “Person” means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any kind.




          “Principal Market” means the Trading Market on which the Common Stock is primarily listed on
and quoted for trading, which, as of the Closing Date, shall be the NASDAQ Global Market.




          “Proceeding” means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition), whether commenced or
threatened.




          “Prospectus” means the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by a Registration Statement,
and all other amendments and supplements to the Prospectus, including post-effective amendments,
and all material incorporated by reference or deemed to be incorporated by reference in such
Prospectus.




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          “Registrable Securities” means all of (i) the Shares and (ii) any securities issued or
issuable upon any stock split, dividend or other distribution, recapitalization or similar event
with respect to the foregoing, provided, that the Holder has completed and delivered to the Company
a Selling Stockholder Questionnaire; and provided, further, that Shares shall cease to be
Registrable Securities upon the earliest to occur of the following: (A) sale pursuant to a
Registration Statement or Rule 144 under the Securities Act (in which case, only such security sold
shall cease to be a Registrable Security); or (B) becoming eligible for sale by the Holder pursuant
to Rule 144 without being subject to the volume limitations of Rule 144(e) (or any successor rule)
or the manner of sale limitations of Rule 144(f) and following the expiration of the one-year
holding requirement under Rule 144(b)(1)(i) and Rule 144(d).




          “Registration Statement” means any one or more registration statements of the Company filed
under the Securities Act that covers the resale of any of the Registrable Securities pursuant to
the provisions of this Agreement (including without limitation the Initial Registration Statement,
the New Registration Statement and any Remainder Registration Statements), amendments and
supplements to such Registration Statements, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by reference in such
Registration Statements.




          “Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.




          “Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.




          “Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.




          “SEC Guidance” means (i) any publicly-available written or oral guidance, comments,
requirements or requests of the Commission staff and (ii) the Securities Act.




          “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.




          “Selling Stockholder Questionnaire” means a questionnaire in the form attached as Annex
B hereto, or such other form of questionnaire as may reasonably be adopted by the Company from
time to time.




          “Shares” means the shares of Common Stock issued or issuable to the Purchasers pursuant to the
Purchase Agreement or upon exercise of the Warrants issued pursuant to the Purchasers pursuant to
the Purchase Agreement.




          “Trading Day” means (i) a day on which the Common Stock is listed or quoted and traded on its
Principal Market (other than the OTC Bulletin Board), or (ii) if the Common Stock is not listed on
a Trading Market (other than the OTC Bulletin Board), a day on which the Common Stock is traded in
the over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if the Common Stock is
not quoted on any Trading Market, a day on which the Common Stock is quoted in the over-the-counter
market as reported in the “pink sheets” by Pink Sheets LLC (or any similar organization or agency
succeeding to its functions of reporting prices); provided, that in the event that the Common



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Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day
shall mean a Business Day.




          “Trading Market” means whichever of the New York Stock Exchange, the American Stock Exchange,
the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market or OTC
Bulletin Board on which the Common Stock is listed or quoted for trading on the date in question.




     2. Registration.



          (a) On or prior to the Filing Deadline, the Company shall prepare and file with the Commission
a Registration Statement covering the resale of all of the Registrable Securities not already
covered by an existing and effective Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the
Registrable Securities, by such other means of distribution of Registrable Securities as the
Holders may reasonably specify (the “Initial Registration Statement”). The Initial Registration
Statement shall be on Form S-3 (except if the Company is then ineligible to register for resale the
Registrable Securities on Form S-3, in which case such registration shall be on another appropriate
form in accordance with Section 2(e)) and shall contain (except if otherwise required pursuant to
written comments received from the Commission upon a review of such Registration Statement) the
“Plan of Distribution” section attached hereto as Annex A. Notwithstanding the
registration obligations set forth in this Section 2, in the event the Commission informs the
Company that all of the Registrable Securities cannot, as a result of the application of Rule 415,
be registered for resale as a secondary offering on a single registration statement, the Company
agrees to promptly (i) inform each of the holders thereof, (ii) use its commercial reasonable
efforts to file amendments to the Initial Registration Statement as required by the Commission
and/or (iii) withdraw the Initial Registration Statement and file a new registration statement (a
"New Registration Statement”), in either case covering the maximum number of Registrable Securities
permitted to be registered by the Commission, on Form S-3 or such other form available to register
for resale the Registrable Securities as a secondary offering; provided, however, that prior to
filing such amendment or New Registration Statement, the Company shall be obligated to use its
commercially reasonable efforts to advocate with the Commission for the registration of all of the
Registrable Securities in accordance with the SEC Guidance, including without limitation, the
Manual of Publicly Available Telephone Interpretations D.29. In the event the Company amends the
Initial Registration Statement or files a New Registration Statement, as the case may be, under
clauses (ii) or (iii) above, the Company will use its commercially reasonable efforts to file with
the Commission, as promptly as allowed by Commission or staff guidance provided to the Company or
to registrants of securities in general, one or more registration statements on Form S-3 or such
other form available to register for resale those Registrable Securities that were not registered
for resale on the Initial Registration Statement, as amended, or the New Registration Statement
(the “Remainder Registration Statements”).




          (b) The Company shall use its commercially reasonable efforts to cause each Registration
Statement to be declared effective by the Commission as soon as practicable and, with respect to
the Initial Registration Statement or the New Registration Statement, as applicable, no later than
the Effectiveness Deadline (including filing with the Commission a request for acceleration of
effectiveness in accordance with Rule 461 promulgated under the Securities Act within five (5)
Business Days after the date that the Company is notified (orally or in writing, whichever is
earlier) by the Commission that such Registration Statement will not be “reviewed,” or not be
subject to further review and the effectiveness of such Registration Statement may be accelerated)
and shall use its commercially reasonable efforts to keep each Registration Statement continuously
effective under the Securities Act until the earlier of (i) such time as all of the Registrable
Securities covered by such Registration Statement have been publicly sold by the Holders or (ii)
the date that all Registrable Securities covered by such



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Registration Statement may be sold by pursuant to Rule 144, or any successor thereto without
being subject to the volume limitations of Rule 144(e) or the manner of sale limitations of Rule
144(f) and following the expiration of the one-year holding requirement under Rule 144(b)(1)(i) and
Rule 144(d) (the “Effectiveness Period”). The Company shall request effectiveness of a
Registration Statement as of 5:00 p.m. New York City time on a Trading Day. The Company shall
promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the
effectiveness of a Registration Statement on or before one (1) Trading Day after the day the
Company telephonically confirms effectiveness with the Commission, which confirmation shall be the
date requested for effectiveness of a Registration Statement. The Company shall, by 9:30 a.m. New
York City Time on the 2nd Trading Day after the Effective Date, file a final Prospectus with the
Commission, as required by Rule 424(b). Notwithstanding any other provision of this Agreement and
subject to the payment of liquidated damages in Section 2(c), if any SEC Guidance sets forth a
limitation of the number of Registrable Securities permitted to be registered on a particular
Registration Statement (and notwithstanding that the Company used diligent efforts to advocate with
the Commission for the registration of all or a greater number of Registrable Securities) any
required cutbacks of Shares shall be applied to the Purchasers pro-rata in accordance with the
number of such Shares sought to be included in such Registration Statement by reference to such
Purchaser’s (and in the case of a subsequent transfer the initial Purchaser’s) aggregate
Subscription Amount relative to all Purchasers’ Subscription Amounts, and first to the shares of
Common Stock issuable upon exercise of the Warrants.




          (c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to
the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as
applicable, is not declared effective by the Commission (or otherwise does not become effective)
for any reason on or prior to the Effectiveness Deadline or (iii) after its Effective Date, (A)
such Registration Statement ceases for any reason (including without limitation by reason of a stop
order, or the Company’s failure to update the Registration Statement), but excluding the inability
of any Holder to sell the Registrable Securities covered thereby due to market conditions, to
remain continuously effective as to all Registrable Securities for which it is required to be
effective or (B) the Holders are not permitted to utilize the Prospectus therein to resell such
Registrable Securities, in the case of (A) and (B), for an aggregate of more than twenty (20)
consecutive Trading Days or for more than an aggregate of forty (40) Trading Days during any twelve
(12) month period (which need not be consecutive), other than as a result of a breach of this
Agreement by a Holder or a Holder’s failure to return a Selling Stockholder Questionnaire within
the time period provided by Section 2(c) hereof (any such failure or breach in clauses (i) through
(iii) above being referred to as an “Event,” and, for purposes of clauses (i) or (ii), the date on
which such Event occurs, or for purposes of clause (iii), the date on which such twenty (20)
consecutive day or forty (40) Trading Day period (as applicable) is exceeded, being referred to as
“Event Date”), then in lieu of any other rights the Holders may have hereunder or under applicable
law, within five (5) Trading Days of each such Event Date and each monthly anniversary of each such
Event Date (if the applicable Event shall not have been cured by such date) until the applicable
Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and
not as a penalty (“Liquidated Damages”), equal to 1.0% of the aggregate purchase price paid by such
Holder pursuant to the Purchase Agreement for any Registrable Securities then held by such Holder
(which remedy shall be exclusive of any other remedies available under this Agreement or under
applicable law). The parties agree that (1) in no event shall the Company be liable in any 30-day
period for Liquidated Damages under this Agreement in excess of 1.0% of the aggregate purchase
price paid by the Holders pursuant to the Purchase Agreement and (2) the maximum aggregate
Liquidated Damages payable to a Holder under this Agreement shall be six percent (6%) of the
aggregate purchase price paid by such Holder pursuant to the Purchase Agreement. If the Company
fails to pay any Liquidated Damages pursuant to this Section in full within five (5) Business Days
after the date payable, the Company will pay interest thereon at a rate of 1.5% per month (or such
lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily
from the date such Liquidated Damages are due until such amounts, plus all such interest thereon,
are paid in



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full. The Liquidated Damages pursuant to the terms hereof shall apply on a daily pro-rata
basis for any portion of a month prior to the cure of an Event, except in the case of the first
Event Date. In the event that the Company registers some but not all of the Registrable
Securities, the 1.0% of liquidated damages referred to above for any monthly period shall be
reduced to equal the percentage determined by multiplying 1.0% by a fraction, the numerator of
which shall be the number of Registrable Securities for which there is not an effective
Registration Statement at such time and the denominator of which shall be the number of Registrable
Securities at such time. The Effectiveness Deadline for a Registration Statement shall be extended
without default or liquidated damages hereunder in the event that the Company’s failure to obtain
the effectiveness of the Registration Statement on a timely basis results from (i) the failure of a
Purchaser to timely provide the Company with information requested by the Company and necessary to
complete the Registration Statement in accordance with the requirements of the Securities Act (in
which the Effectiveness Deadline would be extended with respect to Registrable Securities held by
such Purchaser) or (ii) events or circumstances that are not in any way attributable to the
Company.




          (d) Each Holder agrees to furnish to the Company a completed Selling Stockholder Questionnaire
not more than five (5) Trading Days following the date of this Agreement. Each Holder further
agrees that it shall not be entitled to be named as a selling security holder in the Registration
Statement or use the Prospectus for offers and resales of Registrable Securities at any time,
unless such Holder has returned to the Company a completed and signed Selling Stockholder
Questionnaire. If a Holder of Registrable Securities returns a Selling Stockholder Questionnaire
after the deadline specified in the previous sentence, the Company shall use its commercially
reasonable efforts to take such actions as are required to name such Holder as a selling security
holder in the Registration Statement or any pre-effective or post-effective amendment thereto and
to include (to the extent not theretofore included) in the Registration Statement the Registrable
Securities identified in such late Selling Stockholder Questionnaire. Each Holder acknowledges and
agrees that the information in the Selling Stockholder Questionnaire will be used by the Company in
the preparation of the Registration Statement and hereby consents to the inclusion of such
information in the Registration Statement.




          (e) In the event that Form S-3 is not available for the registration of the resale of
Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable
Securities on another appropriate form and (ii) undertake to register the Registrable Securities on
Form S-3 promptly after such form is available, provided that the Company shall maintain the
effectiveness of the Registration Statement then in effect until such time as a Registration
Statement on Form S-3 covering the Registrable Securities has been declared effective by the
Commission.




     3. Registration Procedures



          In connection with the Company’s registration obligations hereunder, the Company shall:




          (a) Not less than five (5) Trading Days prior to the filing of a Registration Statement and
not less than one (1)Trading Day prior to the filing of any related Prospectus or any amendment or
supplement thereto (except for Annual Reports on Form 10-K, and Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K and any similar or successor reports), the Company shall, furnish to
the Holder copies of such Registration Statement, Prospectus or amendment or supplement thereto, as
proposed to be filed, which documents will be subject to the review of such Holder (it being
acknowledged and agreed that if a Holder does not object to or comment on the aforementioned
documents within such five (5) Trading Day or one (1) Trading Day period, as the case may be, then
the Holder shall be deemed to have consented to and approved the use of such documents). The
Company shall not file any Registration Statement or amendment or supplement thereto in a form to
which a Holder



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reasonably objects in good faith, provided that, the Company is notified of such objection in
writing within the five (5) Trading Day or one (1) Trading Day period described above, as
applicable.




          (b) (i) Prepare and file with the Commission such amendments (including post-effective
amendments) and supplements, to each Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement continuously effective as to the
applicable Registrable Securities for its Effectiveness Period and prepare and file with the
Commission such additional Registration Statements in order to register for resale under the
Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended
or supplemented by any required Prospectus supplement (subject to the terms of this Agreement),
and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond as promptly as
reasonably practicable to any comments received from the Commission with respect to each
Registration Statement or any amendment thereto and, as promptly as reasonably possible, provide
the Holders true and complete copies of all correspondence from and to the Commission relating to
such Registration Statement that pertains to the Holders as “Selling Stockholders” but not any
comments that would result in the disclosure to the Holders of material and non-public information
concerning the Company; and (iv) comply with the provisions of the Securities Act and the Exchange
Act with respect to the disposition of all Registrable Securities covered by a Registration
Statement until such time as all of such Registrable Securities shall have been disposed of
(subject to the terms of this Agreement) in accordance with the intended methods of disposition by
the Holders thereof as set forth in such Registration Statement as so amended or in such Prospectus
as so supplemented; provided, however, that each Purchaser shall be responsible for the delivery of
the Prospectus to the Persons to whom such Purchaser sells any of the Shares (including in
accordance with Rule 172 under the Securities Act), and each Purchaser agrees to dispose of
Registrable Securities in compliance with the plan of distribution described in the Registration
Statement and otherwise in compliance with applicable federal and state securities laws. In the
case of amendments and supplements to a Registration Statement which are required to be filed
pursuant to this Agreement (including pursuant to this Section 3(b)) by reason of the Company
filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Exchange Act,
the Company shall have incorporated such report by reference into such Registration Statement, if
applicable, or shall file such amendments or supplements with the Commission on the same day on
which the Exchange Act report which created the requirement for the Company to amend or supplement
such Registration Statement was filed.




          (c) Notify the Holders (which notice shall, pursuant to clauses (iii) through (vi) hereof, be
accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have
been made) as promptly as reasonably practicable (and, in the case of (i)(A) below, not less than
three (3) Trading Days prior to such filing, in the case of (iii) and (iv) below, not more than one
(1) Trading Day after such issuance or receipt, in the case of (v) below, not less than one (1)
Trading Day after a determination by the Company that the financial statements in any Registration
Statement have become ineligible for inclusion therein and, in the case of (vi) below, not more
than one (1) Trading Day after the occurrence or existence of such development) and (if requested
by any such Person) confirm such notice in writing no later than one (1) Trading Day following the
day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to a
Registration Statement is proposed to be filed; (B) when the Commission notifies the Company
whether there will be a “review” of such Registration Statement and whenever the Commission
comments in writing on any Registration Statement (in which case the Company shall provide to the
Holders true and complete copies of all comments that pertain to the Holders as a “Selling
Stockholder” or to the “Plan of Distribution” and all written responses thereto, but not
information that the Company believes would constitute material and non-public information); and
(C) with respect to each Registration Statement or any post-effective amendment, when the same has
become effective; (ii) of any request by the Commission or any other Federal or state governmental
authority for amendments or supplements to a Registration Statement or Prospectus or for additional
information that pertains to the Holders as “Selling Stockholders” or the




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“Plan of Distribution”; (iii) of the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the effectiveness of a Registration Statement
covering any or all of the Registrable Securities or the initiation of any Proceedings for that
purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; (v) of the
occurrence of any event or passage of time that makes the financial statements included in a
Registration Statement ineligible for inclusion therein or any statement made in such Registration
Statement or Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires any revisions to such Registration
Statement, Prospectus or other documents so that, in the case of such Registration Statement or the
Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus, form of prospectus or supplement thereto, in light of the
circumstances under which they were made), not misleading; and (vi) the occurrence or existence of
any pending development with respect to the Company that the Company believes may be material and
that, in the determination of the Company, makes it not in the best interest of the Company to
allow continued availability of a Registration Statement or Prospectus, provided, that any and all
of such information shall remain confidential to each Holder until such information otherwise
becomes public, unless disclosure by a Holder is required by law; provided, further, that
notwithstanding each Holder’s agreement to keep such information confidential, the Holders make no
acknowledgement that any such information is material, non-public information.




          (d) Use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any
suspension of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, as soon as practicable.




          (e) If requested by a Holder, furnish to such Holder, without charge, at least one conformed
copy of each Registration Statement and each amendment thereto and all exhibits to the extent
requested by such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission; provided, that the Company shall
have no obligation to provide any document pursuant to this clause that is available on the
Commission’s EDGAR system.




          (f) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable
efforts to register or qualify or cooperate with the selling Holders in connection with the
registration or qualification (or exemption from the registration or qualification) of such
Registrable Securities for the resale by the Holder under the securities or Blue Sky laws of such
jurisdictions within the United States as any Holder reasonably requests in writing, to keep each
registration or qualification (or exemption therefrom) effective during the Effectiveness Period
and to do any and all other acts or things reasonably necessary to enable the disposition in such
jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that
the Company shall not be required to qualify generally to do business in any jurisdiction where it
is not then so qualified, subject the Company to any material tax in any such jurisdiction where it
is not then so subject or file a general consent to service of process in any such jurisdiction.




          (g) If requested by a Holder, cooperate with such Holder to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be delivered to a transferee
pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by
the Purchase Agreement and under law, of all restrictive legends, and to enable such Registrable
Securities to be in such denominations and registered in such names as any such Holders may
reasonably request.




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          (h) Following the occurrence of any event contemplated by Section 3(c)(iii)-(vi), as promptly
as reasonably practicable, prepare a supplement or amendment, including a post-effective amendment,
to the affected Registration Statements or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, no Registration Statement nor any Prospectus will
contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of any Prospectus, form of
prospectus or supplement thereto, in light of the circumstances under which they were made), not
misleading.




          (i) Comply with all applicable rules and regulations of the Commission.




          (j) The Company may require each selling Holder to furnish to the Company a certified
statement as to (i) the number of shares of Common Stock beneficially owned by such Holder any
Affiliate thereof, (ii) any Financial Industry Regulatory (“FINRA”) affiliations, (iii) any natural
persons who have the power to vote or dispose of the common stock and (iv) any other information as
may be requested by the Commission, FINRA or any state securities commission. During any periods
that the Company is unable to meet its obligations hereunder with respect to the registration of
the Registrable Securities because any Holder fails to furnish such information within three (3)
Trading Days of the Company’s request, any liquidated damages that are accruing at such time as to
such Holder only shall be tolled and any Event that may otherwise occur solely because of such
delay shall be suspended as to such Holder only, until such information is delivered to the
Company.




          (k) The Company shall cooperate with any registered broker through which a Holder proposes to
resell its Registrable Securities in effecting a filing with FINRA pursuant to FINRA Rule 5110 as
reasonably requested by an such Holder, and the Company shall pay the filing fee required for the
first such filing within five (5) Trading Days of the request therefor.




     4. Registration Expenses. All fees and expenses incident to the Company’s performance
of or compliance with its obligations under this Agreement (excluding any underwriting discounts
and selling commissions and all legal fees and expenses of legal counsel for any Holder) shall be
borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration
Statement. The fees and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation, fees and expenses
(A) with respect to filings required to be made with any Trading Market on which the Common Stock
is then listed for trading, (B) with respect to compliance with applicable state securities or Blue
Sky laws (including, without limitation, fees and disbursements of counsel for the Company in
connection with Blue Sky qualifications or exemptions of the Registrable Securities and
determination of the eligibility of the Registrable Securities for investment under the laws of
such jurisdictions as requested by the Holders) and (C) if not previously paid by the Company
pursuant to Section 3(k) hereof, with respect to any filing that may be required to be made by an
broker through which a Holder intends to make sales of Registrable Securities with FINRA pursuant
to FINRA Rule 5110, so long as the broker is receiving no more than a customary brokerage
commission in connection with such sale, (ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities and of printing prospectuses if the
printing of prospectuses is reasonably requested by the Holders of a majority of the Registrable
Securities included in the Registration Statement), (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability
insurance, if the Company so desires such insurance, and (vi) fees and expenses of all other
Persons retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be responsible for all of its
internal expenses incurred in connection with the consummation of the transactions contemplated by
this Agreement (including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual audit and the



9









 




fees and expenses incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder. In no event shall the Company be responsible for any
underwriting, broker or similar fees or commissions of any Holder or, except to the extent provided
for in the Transaction Documents, any legal fees or other costs of the Holders.




     5. Indemnification.



          (a) Indemnification by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify, defend and hold harmless each Holder, the officers,
directors, agents, partners, members, managers, stockholders, Affiliates and employees of each of
them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) and the officers, directors, partners, members, managers,
stockholders, agents and employees of each such controlling Person, to the fullest extent permitted
by applicable law, from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of preparation and investigation and reasonable
attorneys’ fees) and expenses (collectively, “Losses”), as incurred, that arise out of or are based
upon any untrue or alleged untrue statement of a material fact contained in any Registration
Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in
any preliminary prospectus, or arising out of or relating to any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, or (ii) any violation or alleged
violation by the Company of the Securities Act, Exchange Act, any state securities law, any “blue
sky” laws of any jurisdiction in which Registrable Securities are offered or any rule or regulation
thereunder relating to the offer or sale of the Registrable Securities pursuant to a Registration
Statement or any violation of this Agreement except to the extent, but only to the extent, that (A)
such untrue statements, alleged untrue statements, omissions or alleged omissions are based upon
information regarding such Holder furnished in writing to the Company by such Holder expressly for
use therein, or to the extent that such information relates to such Holder or such Holder’s
proposed method of distribution of Registrable Securities and was reviewed and approved by such
Holder expressly for use in a Registration Statement, such Prospectus or such form of Prospectus or
in any amendment or supplement thereto (it being understood that the Holder has approved Annex
A hereto for this purpose), (B) in the case of an occurrence of an event of the type specified
in Section 3(c)(iii)-(vi), related to the use by a Holder of an outdated or defective Prospectus
after the Company has notified such Holder in writing that the Prospectus is outdated or defective
and prior to the receipt by such Holder of the Advice contemplated and defined in Section 6(e)
below, but only if and to the extent that following the receipt of the Advice the misstatement or
omission giving rise to such Loss would have been corrected or (C) any such Losses arise out of the
Purchaser’s (or any other indemnified Person’s) failure to send or give a copy of the Prospectus or
supplement (as then amended or supplemented), if required pursuant to Rule 172 under the Securities
Act (or any successor rule), to the Persons asserting an untrue statement or alleged untrue
statement or alleged untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such statement or omission was
corrected in such Prospectus or supplement. The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding arising from or in connection with the
transactions contemplated by this Agreement of which the Company is aware. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on behalf of an
Indemnified Party (as defined in Section 5(c)) and shall survive the transfer of the Registrable
Securities by the Holders.




          (b) Indemnification by Holders. Each Holder shall, notwithstanding any termination of
this Agreement, severally and not jointly, indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person who controls the Company (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents
or



10









 






employees of such controlling Persons, to the fullest extent permitted by applicable law, from
and against all Losses, as incurred, arising out of or are based solely upon (x) such Holder’s
failure to comply with the prospectus delivery requirements of the Securities Act or (y) any untrue
or alleged untrue statement of a material fact contained in any Registration Statement, any
Prospectus, or any form of prospectus, or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements therein (in the
case of any Prospectus, or any form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading (i) to the extent, but only to the extent,
that such untrue statements or omissions are based solely upon information regarding such Holder
furnished in writing to the Company by such Holder expressly for use therein or (ii) to the extent
that such information relates to such Holder or such Holder’s proposed method of distribution of
Registrable Securities and was reviewed and approved by such Holder expressly for use in a
Registration Statement (it being understood that the Holder has approved Annex A hereto for
this purpose), such Prospectus or such form of Prospectus or in any amendment or supplement thereto
or (iii) in the case of an occurrence of an event of the type specified in Section 3(c)(iii)-(vi),
to the extent, but only to the extent, related to the use by such Holder of an outdated or
defective Prospectus after the Company has notified such Holder in writing that the Prospectus is
outdated or defective and prior to the receipt by such Holder of the Advice contemplated in Section
6(e). In no event shall the liability of any selling Holder hereunder be greater in amount than
the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.




          (c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or
asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such
Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying
Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all reasonable fees and expenses incurred in connection with defense thereof; provided,
that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying
Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent
that such failure shall have materially and adversely prejudiced the Indemnifying Party.




          An Indemnified Party shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified Party and the Indemnifying Party,
and such Indemnified Party shall have been advised by counsel that a conflict of interest exists if
the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which
case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have
the right to assume the defense thereof and such counsel shall be at the expense of the
Indemnifying Party); provided, that the Indemnifying Party shall not be liable for the fees and
expenses of more than one separate firm of attorneys at any time for all Indemnified Parties. The
Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without
its written consent, which consent shall not be unreasonably withheld, delayed or conditioned. No
Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party from all liability on
claims that are the subject matter of such Proceeding.




11









 








          Subject to the terms of this Agreement, all fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid
to the Indemnified Party, as incurred, within twenty (20) Trading Days of written notice thereof to
the Indemnifying Party; provided, that the Indemnified Party shall promptly reimburse the
Indemnifying Party for that portion of such fees and expenses applicable to such actions for which
such Indemnified Party is not entitled to indemnification hereunder). The failure to deliver
written notice to the Indemnifying Party within a reasonable time of the commencement of any such
action shall not relieve such Indemnifying Party of any liability to the Indemnified Party under
this Section 5, except to the extent that the Indemnifying Party is prejudiced in its ability to
defend such action.




          (d) Contribution. If the indemnification under Sections 5(a) or 5(b) is unavailable
to an Indemnified Party, then each Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such
Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions, statements or omissions that resulted
in such Losses as well as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such action,
statement or omission. The amount paid or payable by a party as a result of any Losses shall be
deemed to include, subject to the limitations set forth in this Agreement, any reasonable
attorneys’ or other reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in accordance with its
terms.




          The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 5(d) were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually
received by such Holder from the sale of the Registrable Securities subject to the Proceeding
exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.




          The indemnity and contribution agreements contained in this Section are in addition to any
liability that the Indemnifying Parties may have to the Indemnified Parties and are not in
diminution or limitation of the indemnification provisions under the Purchase Agreement.




     6. Miscellaneous.



          (a) Remedies. In the event of a breach by the Company or by a Holder of any of their
obligations under this Agreement, each Holder or the Company, as the case may be, in addition to
being entitled to exercise all rights granted by law and under this Agreement, including recovery
of damages, will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees



12









 






that, in the event of any action for specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.




          (b) No Piggyback on Registrations. Neither the Company nor any of its security
holders (other than the Holders in such capacity pursuant hereto) may include securities of the
Company in a Registration Statement other than the Registrable Securities and the Company shall not
prior to the Effective Date enter into any agreement other than the Purchase Agreement and this
Agreement providing any such right to any of its security holders. The Company shall not, from the
date hereof until the date that is 60 days after the Effective Date of the Registration Statement,
prepare and file with the Commission a registration statement relating to an offering for its own
account under the Securities Act of any of its equity securities other than a registration
statement on Form S-8 or, in connection with an acquisition, on Form S-4.




          (c) Compliance. Each Holder covenants and agrees that it will comply with the
prospectus delivery requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to a Registration Statement and shall sell the Registrable
Securities only in accordance with a method of distribution described in the Registration
Statement.




          (d) Suspension of Trading. At any time after the Registrable Securities are covered by
an effective Registration Statement, the Company may deliver to the Holders of such Registrable
Securities a certificate (the “Suspension Certificate”) approved by the Chief Executive Officer or
Chief Financial Officer of the Company and signed by an officer of the Company stating that the
effectiveness of and sales of Registrable Securities under the Registration Statement would:




               (i) materially interfere with any transaction that would require the Company to prepare
financial statements under the Securities Act that the Company would otherwise not be required to
prepare in order to comply with its obligations under the Exchange Act, or



               (ii) require public disclosure of a material transaction or event prior to the time such
disclosure might otherwise be required.


Upon receipt of a Suspension Certificate by Holders of Registrable Securities, such Holders of
Registrable Securities shall refrain from selling or otherwise transferring or disposing of any
Registrable Securities then held by such Holders for a specified period of time (a “Suspension
Period”) that is customary under the circumstances (not to exceed thirty (30) calendar days).
Notwithstanding the foregoing sentence, the Company shall be permitted to cause Holders of
Registrable Securities to so refrain from selling or otherwise transferring or disposing of any
Registrable Securities on only two (2) occasions during each twelve (12) consecutive month period
that the Registration Statement remains effective with no less than twenty (20) calendar days in
between Suspension Periods. The Company may impose stop transfer instructions to enforce any
required agreement of the Holders under this Section 6(d).




          (e) Discontinued Disposition. By its acquisition of Registrable Securities, each
Holder agrees that, upon receipt of a notice from the Company of the occurrence of any event of the
kind described in Section 3(c)(iii)-(vi), such Holder will forthwith discontinue disposition of
such Registrable Securities under a Registration Statement until it is advised in writing (the
"Advice”) by the Company that the use of the applicable Prospectus (as it may have been
supplemented or amended) may be resumed. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph. The Company agrees and acknowledges that any periods
during which the Holder is required to discontinue the disposition of the Registrable Securities
hereunder shall be subject to the provisions of Section 2(c) as qualified by Section 3(a).




13









 








          (f) No Inconsistent Agreements. Other than as described in the SEC Reports (as
defined in the Purchase Agreement), neither the Company nor any of its Subsidiaries has entered, as
of the date hereof, nor shall the company or any of its Subsidiaries, on or after the date hereof,
enter into any agreement with respect to its securities, that would have the effect of impairing
the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions
hereof.




          (g) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified, supplemented or waived unless the same
shall be in writing and signed by the Company and Holders holding a majority of the then
outstanding Registrable Securities. Notwithstanding the foregoing, a waiver or consent to depart
from the provisions hereof with respect to a matter that relates exclusively to the rights of
Holders and that does not directly or indirectly affect the rights of other Holders may be given by
Holders of all of the Registrable Securities to which such waiver or consent relates; provided,
however, that the provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the immediately preceding sentence.




          (h) Termination. The registration rights provided to the Holders of Registrable
Securities hereunder, and the Company’s obligation to keep the Registration Statements effective,
shall terminate at such time as there are no Registrable Securities outstanding. Notwithstanding
the foregoing, Section 2(c), Section 4, Section 5, Section 6(i), Section 6(l), Section 6(m),
Section 6(n), Section 6(o) and Section 6(p) shall survive the termination of this Agreement.




          (i) Notices. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be delivered as set forth in the Purchase Agreement.




          (j) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and shall inure to the
benefit of each Holder. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement. The Company may not assign its rights or obligations hereunder without
the prior written consent of all the Holders of the then outstanding Registrable Securities (other
than by merger or consolidation or to an entity which acquires the Company including by way of
acquiring all or substantially all of the Company’s assets). The rights of the Holders hereunder,
including the right to have the Company register Registrable Securities pursuant to this Agreement,
may be assigned by each Holder to transferees or assignees of all or any portion of the Registrable
Securities, but only if (i) the Holder agrees in writing with the transferee or assignee to assign
such rights and related obligations under this Agreement, and for the transferee or assignee to
assume such obligations, and a copy of such agreement is furnished to the Company within a
reasonable time after such assignment, (ii) the Company is, within a reasonable time after such
transfer or assignment, 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 transferred or
assigned, (iii) at or before the time the Company received the written notice contemplated by
clause (ii) of this sentence, the transferee or assignee agrees in writing with the Company to be
bound by all of the provisions contained herein and (iv) the transferee is an “accredited
investor,” as that term is defined in Rule 501 of Regulation D.




          (k) Execution and Counterparts. This Agreement may be executed in two or more
counterparts, each of which when so executed shall be deemed to be an original and, all of which
taken together shall constitute one and the same Agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart. In the event that any signature is delivered
by facsimile transmission or by e-



14









 






mail delivery of a “.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or “.pdf” signature were the original thereof.




          (l) Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be determined in accordance with the provisions of the
Purchase Agreement.




          (m) Cumulative Remedies. The remedies provided herein are cumulative and not
exclusive of any other remedies provided by law.




          (n) Severability. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their good faith reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties
that they would have executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or unenforceable.




          (o) Headings. The headings in this Agreement are for convenience only and shall not
limit or otherwise affect the meaning hereof.




          (p) Independent Nature of Purchasers’ Obligations and Rights. The obligations of each
Purchaser under this Agreement are several and not joint with the obligations of any other
Purchaser hereunder, and no Purchaser shall be responsible in any way for the performance of the
obligations of any other Purchaser hereunder. The decision of each Purchaser to purchase the
Shares and the Warrants pursuant to the Transaction Documents has been made independently of any
other Purchaser. Nothing contained herein or in any other agreement or document delivered at any
closing, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to
constitute the Purchasers as a partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Purchasers are in any way acting in concert with respect
to such obligations or the transactions contemplated by this Agreement. Each Purchaser
acknowledges that no other Purchaser has acted as agent for such Purchaser in connection with
making its investment hereunder and that no Purchaser will be acting as agent of such Purchaser in
connection with monitoring its investment in the Shares and Warrants or enforcing its rights under
the Transaction Documents. Each Purchaser shall be entitled to protect and enforce its rights,
including, without limitation, the rights arising out of this Agreement, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any Proceeding for such
purpose. The Company acknowledges that each of the Purchasers has been provided with the same
Registration Rights Agreement for the purpose of closing a transaction with multiple Purchasers and
not because it was required or requested to do so by any Purchaser.




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



	 	 	 	 	 
	 	ARDEA BIOSCIENCES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	Barry D. Quart, Pharm. D. 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 



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



	 	 	 	 	 	 	 
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	 	 	AUTHORIZED SIGNATORY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:

Title:
	 	 
	 
	 	 	 	 	 	 
	 	 	ADDRESS FOR NOTICE	 	 






	 	 	 	 	 	 	 
	 

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	 	Street:	 	 	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 	 	 
	 

	 	City/State/Zip:	 	 	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 	 	 
	 

	 	Attention:	 	 	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 	 	 
	 

	 	Tel:	 	 	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 	 	 
	 

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Annex A




PLAN OF DISTRIBUTION




     We are registering the shares of Common Stock issued to the selling stockholders to permit the
resale of these shares of Common Stock by the holders of the shares of Common Stock from time to
time after the date of this prospectus. We will not receive any of the proceeds from the sale by
the selling stockholders of the shares of Common Stock. We will bear all fees and expenses
incident to our obligation to register the shares of Common Stock.



     The selling stockholders may sell all or a portion of the shares of Common Stock beneficially
owned by them and offered hereby from time to time directly or through one or more underwriters,
broker-dealers or agents. If the shares of Common Stock are sold through underwriters or
broker-dealers, the selling stockholders will be responsible for underwriting discounts or
commissions or agent’s commissions. The shares of Common Stock may be sold on any national
securities exchange or quotation service on which the securities may be listed or quoted at the
time of sale, in the over-the-counter market or in transactions otherwise than on these exchanges
or systems or in the over-the-counter market and in one or more transactions at fixed prices, at
prevailing market prices at the time of the sale, at varying prices determined at the time of sale,
or at negotiated prices. These sales may be effected in transactions, which may involve crosses or
block transactions. The selling stockholders may use any one or more of the following methods when
selling shares:




	 	•	 	ordinary brokerage transactions and transactions in which the broker-dealer solicits
purchasers;
	 
	 	•	 	block trades in which the broker-dealer will attempt to sell the shares as agent but
may position and resell a portion of the block as principal to facilitate the
transaction;
	 
	 	•	 	purchases by a broker-dealer as principal and resale by the broker-dealer for its
account;
	 
	 	•	 	an exchange distribution in accordance with the rules of the applicable exchange;
	 
	 	•	 	privately negotiated transactions;
	 
	 	•	 	settlement of short sales entered into after the effective date of the registration
statement of which this prospectus is a part;
	 
	 	•	 	broker-dealers may agree with the selling stockholders to sell a specified number of
such shares at a stipulated price per share;
	 
	 	•	 	through the writing or settlement of options or other hedging transactions, whether
such options are listed on an options exchange or otherwise;
	 
	 	•	 	a combination of any such methods of sale; and
	 
	 	•	 	any other method permitted pursuant to applicable law.





     The selling stockholders also may resell all or a portion of the shares in open market
transactions in reliance upon Rule 144 under the Securities Act, as permitted by that rule, or
Section 4(1) under the Securities Act, if available, rather than under this prospectus, provided
that they meet the criteria and conform to the requirements of those provisions.



 









 





     Broker-dealers engaged by the selling stockholders may arrange for other broker-dealers to
participate in sales. If the selling stockholders effect such transactions by selling shares of
Common Stock to or through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of discounts, concessions or
commissions from the selling stockholders or commissions from purchasers of the shares of Common
Stock for whom they may act as agent or to whom they may sell as principal. Such commissions will
be in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the
case of an agency transaction will not be in excess of a customary brokerage commission in
compliance with NASD Rule 2440; and in the case of a principal transaction a markup or markdown in
compliance with NASD IM-2440.



     In connection with sales of the shares of Common Stock or otherwise, the selling stockholders
may enter into hedging transactions with broker-dealers or other financial institutions, which may
in turn engage in short sales of the shares of Common Stock in the course of hedging in positions
they assume. The selling stockholders may also sell shares of Common Stock short and if such short
sale shall take place after the date that this Registration Statement is declared effective by the
Commission, the selling stockholders may deliver shares of Common Stock covered by this prospectus
to close out short positions and to return borrowed shares in connection with such short sales.
The selling stockholders may also loan or pledge shares of Common Stock to broker-dealers that in
turn may sell such shares, to the extent permitted by applicable law. The selling stockholders may
also enter into option or other transactions with broker-dealers or other financial institutions or
the creation of one or more derivative securities which require the delivery to such broker-dealer
or other financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction). Notwithstanding the foregoing, the selling
stockholders have been advised that they may not use shares registered on this registration
statement to cover short sales of our common stock made prior to the date the registration
statement, of which this prospectus forms a part, has been declared effective by the SEC.



     The selling stockholders may, from time to time, pledge or grant a security interest in some
or all of the shares of Common Stock owned by them and, if they default in the performance of their
secured obligations, the pledgees or secured parties may offer and sell the shares of Common Stock
from time to time pursuant to this prospectus or any amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act of 1933, as amended, amending, if
necessary, the list of selling stockholders to include the pledgee, transferee or other successors
in interest as selling stockholders under this prospectus. The selling stockholders also may
transfer and donate the shares of Common Stock in other circumstances in which case the
transferees, donees, pledgees or other successors in interest will be the selling beneficial owners
for purposes of this prospectus.



     The selling stockholders and any broker-dealer or agents participating in the distribution of
the shares of Common Stock may be deemed to be “underwriters” within the meaning of Section 2(11)
of the Securities Act in connection with such sales. In such event, any commissions paid, or any
discounts or concessions allowed to, any such broker-dealer or agent and any profit on the resale
of the shares purchased by them may be deemed to be underwriting commissions or discounts under the
Securities Act. Selling Stockholders who are “underwriters” within the meaning of Section 2(11) of
the Securities Act will be subject to the applicable prospectus delivery requirements of the
Securities Act including Rule 172 thereunder and may be subject to certain statutory liabilities
of, including but not limited to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under
the Securities Exchange Act of 1934, as amended, or the Exchange Act.



     Each selling stockholder has informed the Company that it is not a registered broker-dealer
and does not have any written or oral agreement or understanding, directly or indirectly, with any
person to distribute the Common Stock. Upon the Company being notified in writing by a selling
stockholder that any material



 









 




arrangement has been entered into with a broker-dealer for the sale of common stock through a
block trade, special offering, exchange distribution or secondary distribution or a purchase by a
broker or dealer, a supplement to this prospectus will be filed, if required, pursuant to Rule
424(b) under the Securities Act, disclosing (i) the name of each such selling stockholder and of
the participating broker-dealer(s), (ii) the number of shares involved, (iii) the price at which
such the shares of Common Stock were sold, (iv) the commissions paid or discounts or concessions
allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct
any investigation to verify the information set out or incorporated by reference in this
prospectus, and (vi) other facts material to the transaction. In no event shall any broker-dealer
receive fees, commissions and markups, which, in the aggregate, would exceed eight percent (8%).




     Under the securities laws of some states, the shares of Common Stock may be sold in such
states only through registered or licensed brokers or dealers. In addition, in some states the
shares of Common Stock may not be sold unless such shares have been registered or qualified for
sale in such state or an exemption from registration or qualification is available and is complied
with.



     There can be no assurance that any selling stockholder will sell any or all of the shares of
Common Stock registered pursuant to the shelf registration statement, of which this prospectus
forms a part.



     Each selling stockholder and any other person participating in such distribution will be
subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which
may limit the timing of purchases and sales of any of the shares of Common Stock by the selling
stockholder and any other participating person. Regulation M may also restrict the ability of any
person engaged in the distribution of the shares of Common Stock to engage in market-making
activities with respect to the shares of Common Stock. All of the foregoing may affect the
marketability of the shares of Common Stock and the ability of any person or entity to engage in
market-making activities with respect to the shares of Common Stock.



     We will pay all expenses of the registration of the shares of Common Stock pursuant to the
registration rights agreement, including, without limitation, Securities and Exchange Commission
filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however,
that each selling stockholder will pay all underwriting discounts and selling commissions, if any
and any related legal expenses incurred by it. We will indemnify the selling stockholders against
certain liabilities, including some liabilities under the Securities Act, in accordance with the
registration rights agreements, or the selling stockholders will be entitled to contribution. We
may be indemnified by the selling stockholders against civil liabilities, including liabilities
under the Securities Act, that may arise from any written information furnished to us by the
selling stockholders specifically for use in this prospectus, in accordance with the related
registration rights agreements, or we may be entitled to contribution.



 









 





Annex B




Ardea Biosciences, Inc.




SELLING STOCKHOLDER NOTICE AND QUESTIONNAIRE




     The undersigned holder of shares of the common stock, par value $0.001 per share of Ardea
Biosciences, Inc. (the “Company”) issued pursuant to a certain Securities Purchase Agreement by and
among the Company and the Purchasers named therein, dated as of December 17, 2008 (the
“Agreement”), understands that the Company intends to file with the Securities and Exchange
Commission a registration statement on Form S-3 (except if the Company is ineligible to register
for resale the Registrable Securities on Form S-3, in which case such registration shall be on
another appropriate form, the “Resale Registration Statement”) for the registration and the resale
under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Registrable
Securities in accordance with the terms of the Agreement. All capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Agreement.



     In order to sell or otherwise dispose of any Registrable Securities pursuant to the Resale
Registration Statement, a holder of Registrable Securities generally will be required to be named
as a selling stockholder in the related prospectus or a supplement thereto (as so supplemented, the
“Prospectus”), deliver the Prospectus to purchasers of Registrable Securities (which delivery may
be deemed to have been made as set forth in Rule 172 under the Securities Act) and be bound by the
provisions of the Agreement (including certain indemnification provisions, as described below).
Holders must complete and deliver this Notice and Questionnaire in order to be named as selling
stockholders in the Prospectus. Holders of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire within five (5) Trading Days following the date of the
Agreement (1) will not be named as selling stockholders in the Resale Registration Statement or the
Prospectus and (2) may not use the Prospectus for resales of Registrable Securities.



     Certain legal consequences arise from being named as a selling stockholder in the Resale
Registration Statement and the Prospectus. Holders of Registrable Securities are advised to
consult their own securities law counsel regarding the consequences of being named or not named as
a selling stockholder in the Resale Registration Statement and the Prospectus.



NOTICE




     The undersigned holder (the “Selling Stockholder”) of Registrable Securities hereby gives
notice to the Company of its intention to sell or otherwise dispose of Registrable Securities owned
by it and listed below in Item (3), unless otherwise specified in Item (3), pursuant to the Resale
Registration Statement. The undersigned, by signing and returning this Notice and Questionnaire,
understands and agrees that it will be bound by the terms and conditions of this Notice and
Questionnaire and the Agreement.



     The undersigned hereby provides the following information to the Company and represents and
warrants that such information is accurate and complete:



QUESTIONNAIRE





	1.	 	Name.






	 	(a)	 	Full Legal Name of Selling Stockholder:
	 
	 	 	 	 





 









 












	 	 	 	 







	 	(b)	 	Full Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities Listed in Item 3 below are held:
	 
	 	 	 	 

	 
	 	(c)	 	Full Legal Name of Natural Control Person (which means a natural person who
directly or indirectly alone or with others has power to vote or dispose of the
securities covered by the questionnaire):
	 
	 
	 	 	 	 






2. Address for Notices to Selling Stockholder:




	 	 	 
	 
	 
	 	 
	 
	 
	 	 
	 
	Telephone:
	 	 
	 

	 	 
	Fax:
	 	 
	 

	 	 
	Contact Person:
	 	 
	 

	 	 





	 	 	 
	E-mail address of Contact Person:
	 	 
	 

	 	 





3. Beneficial Ownership of Registrable Securities Issuable Pursuant to the Agreement:





	 	(a)	 	Type and Number of Registrable Securities beneficially owned and issued
pursuant to the Agreement:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	(b)	 	Number of shares of Common Stock to be registered pursuant to this Notice for
resale:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 






4. Broker-Dealer Status:





	 	(a)	 	Are you a broker-dealer?





Yes o      No o





	 	(b)	 	If “yes” to Section 4(a), did you receive your Registrable Securities as compensation
for investment banking services to the Company?





Yes o      No o




 









 








	 	 	 
	Note:

	 	If no, the Commission’s staff has indicated that you should be
identified as an underwriter in the Registration Statement.







	 	(c)	 	Are you an affiliate of a broker-dealer?





Yes o      No o





	 	Note: If yes, provide a narrative explanation below:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	(c)	 	If you are an affiliate of a broker-dealer, do you certify that you bought the
Registrable Securities in the ordinary course of business, and at the time of the
purchase of the Registrable Securities to be resold, you had no agreements or
understandings, directly or indirectly, with any person to distribute the Registrable
Securities?





Yes o      No o





	 	Note: If no, the Commission’s staff has indicated that you should be
identified as an underwriter in the Registration Statement.





5. Beneficial Ownership of Other Securities of the Company Owned by the Selling Stockholder.





	 	 	 	Except as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable Securities
listed above in Item 3.
	 
	 	 	 	Type and amount of other securities beneficially owned:
	 
	 	 	 	 

	 
	 	 	 	 






6. Relationships with the Company:





	 	 	 	Except as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity securities of the
undersigned) has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
	 
	 	 	 	State any exceptions here:
	 
	 	 	 	 

	 
	 	 	 	 






 









 





7. Plan of Distribution:





	 	 	 	The undersigned has reviewed the form of Plan of Distribution attached as Annex A to the
Registration Rights Agreement, and hereby confirms that, except as set forth below, the
information contained therein regarding the undersigned and its plan of distribution is
correct and complete.
	 
	 	 	 	State any exceptions here:
	 
	 	 	 	 

	 
	 	 	 	 






***********



The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the
information provided herein that may occur subsequent to the date hereof and prior to the effective
date of any applicable Resale Registration Statement. All notices hereunder and pursuant to the
Agreement shall be made in writing, by hand delivery, confirmed or facsimile transmission,
first-class mail or air courier guaranteeing overnight delivery at the address set forth below. In
the absence of any such notification, the Company shall be entitled to continue to rely on the
accuracy of the information in this Notice and Questionnaire.



By signing below, the undersigned consents to the disclosure of the information contained herein in
its answers to Items (1) through (7) above and the inclusion of such information in the Resale
Registration Statement and the Prospectus. The undersigned understands that such information will
be relied upon by the Company in connection with the preparation or amendment of any such
Registration Statement and the Prospectus.



By signing below, the undersigned acknowledges that it understands its obligation to comply, and
agrees that it will comply, with the provisions of the Exchange Act and the rules and regulations
thereunder, particularly Regulation M in connection with any offering of Registrable Securities
pursuant to the Resale Registration Statement. The undersigned also acknowledges that it
understands that the answers to this Questionnaire are furnished for use in connection with
Registration Statements filed pursuant to the Registration Rights Agreement and any amendments or
supplements thereto filed with the Commission pursuant to the Securities Act.



The undersigned hereby acknowledges and is advised of the following Interpretation A.65 of the July
1997 SEC Manual of Publicly Available Telephone Interpretations regarding short selling:



“An Issuer filed a Form S-3 registration statement for a secondary offering of common stock which
is not yet effective. One of the selling stockholders wanted to do a short sale of common stock
“against the box” and cover the short sale with registered shares after the effective date. The
issuer was advised that the short sale could not be made before the registration statement become
effective, because the shares underlying the short sale are deemed to be sold at the time such sale
is made. There would, therefore, be a violation of Section 5 if the shares were effectively sold
prior to the effective date.”



By returning this Questionnaire, the undersigned will be deemed to be aware of the foregoing
interpretation.



I confirm that, to the best of my knowledge and belief, the foregoing statements (including without
limitation the answers to this Questionnaire) are correct.




 









 




IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Questionnaire to be
executed and delivered either in person or by its duly authorized agent.




	 	 	 	 	 	 	 	 	 	 	 
	Dated:	 	 	 	Beneficial Owner: 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	Title:	 	 	 	 





PLEASE FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL
BY OVERNIGHT MAIL, TO:



Ethan E. Christensen

Cooley Godward Kronish LLP

4401 Eastgate Mall

San Diego, California 92121

Tel: (858) 550-6076

Fax: (858) 550-6420

Email: echristensen@cooley.com