Exhibit 4.3


 


AMENDED AND RESTATED
INVESTOR STOCKHOLDERS AGREEMENT


 


by and among


 


IKARIA, INC.,


 


NEW MOUNTAIN PARTNERS II, L.P.,


 


NEW MOUNTAIN AFFILIATED INVESTORS II, L.P.,


 


ALLEGHENY NEW MOUNTAIN PARTNERS, L.P.,


 


ARCH VENTURE FUND VI, L.P.,


 


VENROCK PARTNERS, L.P.,


 


VENROCK ASSOCIATES IV, L.P.,


 


VENROCK ENTREPRENEURS FUND IV, L.P.,


 


5AM VENTURES LLC,


 


5AM CO-INVESTORS LLC,


 


ARAVIS VENTURE I L.P.,


 


BLACK POINT GROUP, LP,


 


LINDE NORTH AMERICA, INC.,


 


and


 


CERTAIN OTHER PERSONS WHO ARE SIGNATORIES HERETO


 


dated as of


 


September 9, 2010


 

















 


AMENDED
AND RESTATED INVESTOR STOCKHOLDERS AGREEMENT, dated as of September 9,
2010, by and among (i) Ikaria, Inc. (formerly Ikaria Holdings, Inc.),
a Delaware corporation, (ii) 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, (iii) ARCH Venture Fund VI, L.P., a Delaware limited
partnership (“ARCH”), (iv) Venrock Partners, L.P., a Delaware
limited partnership, Venrock Associates IV, L.P., a Delaware limited
partnership, and Venrock Entrepreneurs Fund IV, L.P., a Delaware limited
partnership (collectively, “Venrock”), (v) 5AM Ventures LLC, a
Delaware limited liability company, 5AM Co-Investors LLC, a Delaware limited
liability company, and Aravis Venture I L.P, a Cayman Islands limited
partnership (collectively, “5AM”), (vi) Black Point Group, LP, a
Delaware limited partnership (“Black Point”), (vii) Linde North America, Inc.
(the successor to Linde Gas Inc.), a Delaware corporation (“Linde”, and
together with the NMP Entities (as defined below), ARCH, Venrock, 5AM and Black
Point, the “Investors”), and (viii) such other Holders who are
signatories hereto or who become signatories hereto from time to time as
provided for herein.


 


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 (“Merger
Sub”), and Ikaria Research, Inc. (formerly, Ikaria, Inc.), a
Delaware corporation (“Ikaria”), Merger Sub, immediately prior to the
consummation of the INO Acquisition, merged with and into Ikaria, with Ikaria
the surviving entity (the “Ikaria Merger”), and the stockholders of
Ikaria by virtue of the Ikaria Merger became stockholders of the Company.


 


WHEREAS,
pursuant to a Preferred Stock Purchase Agreement, dated as of February 22,
2007 (the “Preferred Stock Purchase Agreement”), by and among the NMP
Entities, Ikaria, the stockholders of Ikaria who are signatories to the
Preferred Stock Purchase Agreement, certain other Persons listed on the
Investor Schedule thereto and the Company, the NMP Entities, ARCH, Venrock, 5AM
and Black Point purchased shares of Series B Preferred Stock and certain
of them acquired shares of Series C Preferred Stock.


 


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


 


WHEREAS,
in connection with the Ikaria Merger and INO Acquisition, the Company and the
Holders entered into an Investor Stockholders Agreement, dated as of the
Effective Date (the “Original Investor Stockholders Agreement”).


 


WHEREAS,
the Company and the Holders desire to amend certain provisions of the Original
Stockholders Agreement.


 

















 


WHEREAS,
pursuant to Section 10.1 of the Original Investor Stockholders Agreement,
any amendment of the Original Investor Stockholders Agreement requires the
written agreement of the Company and the Holders of a majority of the Series A
Preferred Stock and Series B Preferred Stock, considered as a single
class, which majority shall include the NMP Entities and at least one
additional holder of Series B Preferred Stock other than the NMP Entities,
holding in the aggregate at least 10% of the then outstanding Series B
Preferred Stock.


 


WHEREAS,
the signatories to this Amended and Restated Investor Stockholders Agreement
hold the requisite number of shares to effect the amendment of the Original
Investor Stockholders Agreement and desire to amend and restate the Original
Stockholders Agreement in its entirety.


 


NOW
THEREFORE, the parties hereto agree as follows:


 


SECTION 1.                                Definitions.  As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:


 


1.1.                              “Accredited Investor”
has the meaning ascribed to it in Rule 501(a) under the Securities
Act.


 


1.2.                              “Affiliate” means,
with respect to any Person, any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified
Person (and for this purpose, the term “control” means the power to direct the
management and policies of such Person (directly or indirectly), whether
through ownership of voting securities, by contract or otherwise (and the terms
“controlling” and “controlled” have meanings correlative to the foregoing)).


 


1.3.                              “ARCH” has the
meaning set forth in the preamble.


 


1.4.                              “ARCH Director” has
the meaning set forth in Section 9.1(d).


 


1.5.                              “Balance of the Offered
Stock” has the meaning set forth in Section 7.2(e).


 


1.6.                              “Beneficially Own” or
“Beneficially Owned” means beneficially own or beneficially owned, as
applicable, as determined under Rule 13d-3 promulgated under the Exchange
Act.


 


1.7.                              “Black Point” has the
meaning set forth in the preamble.


 


1.8.                              “Board” means the
board of directors of the Company as it may be composed from time to time in
accordance with the terms hereof, the Certificate of Incorporation, the Company’s
bylaws (as then in effect) and the DGCL.


 


1.9.                              “Business Day” means
any day other than a Saturday, Sunday, or any federal or State of New York or
Washington holiday or day on which banks are required or authorized to close in
New York, New York or Seattle, Washington, or, with respect to the matters set
forth in Section 2, any day on which the SEC is required or authorized to
close.  If any period expires on a day
which is not a Business Day or any event or condition is required by 


 


2

















 


the
terms of this Agreement to occur or be fulfilled on a day which is not a
Business Day, such period shall expire or such event or condition shall occur
or be fulfilled, as the case may be, on the next succeeding Business Day.


 


1.10.                        “Capital Stock” means
the Common Stock and the Preferred Stock, or either of them.


 


1.11.                        “C-1 A Preferred” has
the meaning ascribed to such term in the 2010 Certificate of Incorporation.


 


1.12.                        “C-1A Termination Time”
has the meaning ascribed to such term in the 2010 Certificate of Incorporation..


 


1.13.                        “C-1B Preferred” has
the meaning ascribed to such term in the 2010 Certificate of Incorporation.


 


1.14.                        “C-1B Termination Time”
has the meaning ascribed to such term in the 2010 Certificate of Incorporation.


 


1.15.                        “C-1C Preferred” has
the meaning ascribed to such term in the 2010 Certificate of Incorporation.


 


1.16.                        “C-1C Termination Time”
has the meaning ascribed to such term in the 2010 Certificate of
Incorporation..


 


1.17.                        “C-2 Preferred” has
the meaning ascribed to such term in the 2010 Certificate of Incorporation.


 


1.18.                        “C-2 Termination Time”
has the meaning ascribed to such term in the 2010 Certificate of
Incorporation..


 


1.19.                        “C-3 Preferred” has
the meaning ascribed to such term in the 2010 Certificate of Incorporation.


 


1.20.                        “C-3 Termination Time”
has the meaning ascribed to such term in the 2010 Certificate of
Incorporation..


 


1.21.                        “C-4 Preferred” has
the meaning ascribed to such term in the 2010 Certificate of Incorporation.


 


1.22.                        “C-4 Termination Time”
has the meaning ascribed to such term in the 2010 Certificate of
Incorporation..


 


1.23.                        “Certificate of
Incorporation” means the Certificate of Incorporation of the Company, as in
effect at a given time.


 


1.24.                        “Closing” means the
date of closing of the Investors’ investment in the Company, which investment,
in the case of Linde, is pursuant to the Sale and Purchase 


 


3

















 


Agreement
and, in the case of the other Investors, is pursuant to the Preferred Stock
Purchase Agreement.


 


1.25.                        “Committee Termination
Date” has the meaning set forth in Section 9.2.


 


1.26.                        “Common Stock” means
any shares of common stock, par value $0.01 per share, of the Company, now or
hereafter authorized to be issued, and any and all securities of any kind
whatsoever of the Company or any successor thereof which may be issued on or
after the Effective Date in respect of, in exchange for, or upon conversion of
shares of Common Stock pursuant to a merger, consolidation, stock split,
reverse split, stock dividend, recapitalization of the Company or otherwise.


 


1.27.                        “Common Stockholders
Agreement” means the common stockholders agreement, dated February 22,
2007, by and among the Company and certain holders of common stock of Ikaria,
as such agreement may be amended from time to time.


 


1.28.                        “Company” means
Ikaria, Inc. (formerly, Ikaria Holdings, Inc.), a Delaware
corporation, and shall, to the extent this Agreement survives, include any
successor thereto by merger, consolidation, acquisition of substantially all
the assets thereof, or otherwise.


 


1.29.                        “Convertible Securities”
means the Preferred Stock, any other securities by their terms convertible
into, or exchangeable or exercisable for, Common Stock (directly or
indirectly), and any other rights to acquire Common Stock.


 


1.30.                        “Credit Agreement”
means the Credit Agreement, dated as of May 14, 2010, by and among Ikaria
Acquisition, the Company, the lenders party thereto and Credit Suisse, as the
administrative agent and collateral agent, as in effect on the date hereof.


 


1.31.                        “Definitive Agreements”
means this Agreement, the Merger Agreement, the Preferred Stock Purchase
Agreement, the Sale and Purchase Agreement, the Certificate of Incorporation,
and any other agreements listed on Schedule 1 hereto, in each case, as in
effect on the Effective Date.


 


1.32.                        “Definitive Purchase
Agreement” has the meaning set forth in Section 6.4(a).


 


1.33.                        “Demand Exercise Notice”
has the meaning set forth in Section 2.1(a).


 


1.34.                        “Demand Registration”
has the meaning set forth in Section 2.1(h).


 


1.35.                        “Designated Directors”
means, at a time of determination, the NMP Directors, the ARCH Director, the
Venrock Director and/or the Linde Director, if any.


 


1.36.                        “DGCL” means the
General Corporation Law of the State of Delaware.


 


1.37.                        “Effective Date”
means March 28, 2007.


 


1.38.                        “Election Notice” has
the meaning set forth in Section 5.3.


 


4

















 


1.39.                        “End Date” has the
meaning set forth in Section 6.4(b).


 


1.40.                        “Entity” means any
general partnership, limited partnership, limited liability partnership,
limited liability company, corporation, joint venture, trust, business trust,
cooperative, association, foreign trust, foreign business organization or any
similar legal entity.


 


1.41.                        “Exchange Act” means
the Securities Exchange Act of 1934, as amended, or any similar federal
statute, and the rules and regulations of the SEC thereunder, all as the
same shall be in effect at the time. 
Reference to a particular section of the Exchange Act shall include a
reference to the comparable section, if any, of any such similar federal
statute.


 


1.42.                        “Expenses of Sale”
means all expenses incurred by the Holders and their respective Affiliates in
connection with any sale pursuant to Section 7.3 or transaction pursuant
to Section 7.4 to the extent that such expenses are not paid or reimbursed
by the Company.


 


1.43.                        “Family Member” has
the meaning set forth in Section 7.1(c)(i).


 


1.44.                        “FINRA” means the
Financial Industry Regulatory Authority, Inc. or any successor Person.


 


1.45.                        “First Registration
Rights Assignor” has the meaning set forth in Section 10.2(b).


 


1.46.                        “Form S-3” means
a Form S-3 registration statement under the Securities Act, and any
successor or similar form thereto.


 


1.47.                        “Governmental Authority”
means any nation or government, any supranational, foreign or domestic federal,
state, county, municipal or other political instrumentality or subdivision
thereof and any foreign or domestic Person or body exercising executive,
legislative, judicial, regulatory, administrative or taxing functions of or
pertaining to government, including any court.


 


1.48.                        “Governmental Consent”
means any consent, license, approval or authorization of, or registration,
declaration or filing with, any Governmental Authority.


 


1.49.                        “Holder” means any Series A
Holder or Series B Holder.


 


1.50.                        “Holder Demand” has
the meaning set forth in Section 2.1(a).


 


1.51.                        “IG Company” means
any of the following six companies, their respective controlled Affiliates, or
the successors of any such companies or Affiliates with respect to the business
conducted by them as of November 30, 2006: (i) Air Liquide, (ii) Praxair, Inc.,
(iii) Air Products and Chemicals, Inc., (iv) Airgas, Inc., (v) Taiyo
Nippon Sanso Corporation, and (vi) Messer Group GmbH.


 


1.52.                        “IG Offer” has the
meaning set forth in Section 6.1.


 


1.53.                        “IG Offer Notice” has
the meaning set forth in Section 6.2.


 


5

















 


1.54.                        “Ikaria Merger” has
the meaning set forth in the recitals.


 


1.55.                        “Indebtedness” means
all obligations and indebtedness (i) for borrowed money (other than trade
debt and other accrued current liabilities or obligations incurred in the
ordinary course of business); (ii) evidenced by a note, bond, debenture or
similar instrument; (iii) created or arising under any capital lease,
conditional sale, earn out or other arrangement for the deferral of purchase
price of any property; (iv) under letters of credit, banker’s acceptances
or similar credit transactions; (v) for any other Person’s obligation or
indebtedness of the same type as any of the foregoing, whether as obligor,
guarantor or otherwise; (vi) for interest on any of the foregoing and (vii) for
any premiums, prepayment or termination fees, expenses or breakage costs due
upon prepayment of any of the foregoing.


 


1.56.                        “indemnified party”
means any Person seeking indemnification pursuant to Section 2.6.


 


1.57.                        “indemnifying party”
means any Person from whom indemnification is sought pursuant to Section 2.6.


 


1.58.                        “Indemnitees” has the
meaning set forth in Section 2.6(a).


 


1.59.                        “Independent Directors”
has the meaning set forth in Section 9.1(g).


 


1.60.                        “Initiating Holders”
means the party or parties delivering a Holder Demand as provided for under Section 2.1(a).


 


1.61.                        “INO Acquisition” has
the meaning set forth in the recitals.


 


1.62.                        “Intended Method of
Distribution” has the meaning set forth in Section 2.1(a).


 


1.63.                        “Investors” has the
meaning set forth in the preamble.


 


1.64.                        “Issuance Notice” has
the meaning set forth in Section 5.2.


 


1.65.                        “Last Election Date”
has the meaning set forth in Section 5.3.


 


1.66.                        “Last Transfer Election
Date” has the meaning set forth in Section 7.2(d).


 


1.67.                        “Linde” has the
meaning set forth in the preamble.


 


1.68.                        “Linde AG” has the
meaning set forth in the recitals.


 


1.69.                        “Linde Director” has
the meaning set forth in Section 9.1(f).


 


1.70.                        “Linde Election Date”
has the meaning set forth in the Section 6.3.


 


1.71.                        “Linde Election Notice”
has the meaning set forth in the Section 6.3.


 


1.72.                        “Linde Sale” has the
meaning set forth in Section 7.3(b).


 


6

















 


1.73.                        “Liquidation” has the
meaning ascribed to it in Article VIII, Section 4(a), of the 2010
Certificate of Incorporation (and shall include any deemed Liquidation
contemplated by the last sentence of such Section 4(a)).


 


1.74.                        “Losses” has the
meaning set forth in Section 2.6(a).


 


1.75.                        “Majority Participating
Holders” means, at any time, Participating Holders holding more than 50% of
the Registrable Securities proposed to be included in any offering of
Registrable Securities by such Participating Holders pursuant to Section 2.1
or Section 2.2.


 


1.76.                        “Material Adverse Effect”
on a Person means any material adverse change in, or material adverse effect
on, the assets (including intangible assets), liabilities, business, prospects
or condition, financial or otherwise, of such Person.


 


1.77.                        “Merger Agreement”
has the meaning set forth in the recitals.


 


1.78.                        “NMP A Director” has the
meaning set forth in Section 9.1(a).


 


1.79.                        “NMP B Director” has
the meaning set forth in Section 9.1(b).


 


1.80.                        “NMP C Director” has
the meaning set forth in Section 9.1(c).


 


1.81.                        “NMP Director” means
any of the NMP A Director, the NMP B Director or the NMP C Director.


 


1.82.                        “NMP Entity” means,
at a time of determination, any of 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, or any Affiliate of any of the foregoing, in each case
only if such Person holds Capital Stock at such time.


 


1.83.                        “NMP Holder” means,
at a time of determination, any of the NMP Entities and any Persons to whom any
shares of Capital Stock were transferred by an NMP Holder in compliance with
the terms hereof, other than in a public offering or in a sale pursuant to Rule 144
promulgated by the SEC under the Securities Act, in each case only if such
Person holds Capital Stock at such time.


 


1.84.                        “Observer” has the
meaning set forth in Section 9.3.


 


1.85.                        “Offered Percentage”
means, as to any Series B Holder at any time of determination, the
percentage obtained by dividing (a) the number of shares of Series B
Preferred Stock Beneficially Owned by such Series B Holder at such time
(including any Series B Preferred Stock of such Series B Holder that
has been converted into Common Stock if such Common Stock is still Beneficially
Owned by such Series B Holder or a Permitted Transferee) by (b) the
aggregate number of shares of Series B Preferred Stock held by all
Series B Holders at such time (including any Series B Preferred Stock
of any Series B Holder that has been converted into Common Stock if such
Common Stock is still Beneficially Owned by such Series B Holder or a
Permitted Transferee); provided that, (A) for purposes of 


 


7

















 


calculating
Offered Percentages for Section 7.2, if the Offered Stock being sold by
the Transferring Holder consists of Series B Preferred Stock, then the
shares of Series B Preferred Stock owned by the Transferring Holder shall
be excluded from the number of shares of Series B Preferred Stock referred
to in clause (b); and (B) for purposes of calculating Offered Percentages
for Section 7.3, if the Offered Stock being sold by the Transferring
Holder consists of Series A Preferred Stock, then the number of shares of Series A
Preferred Stock owned by the Transferring Holder shall be added to the number
of shares of Series B Preferred Stock referred to in clause (b).


 


1.86.                        “Offered Securities”
has the meaning set forth in Section 5.1(a).


 


1.87.                        “Offered Stock” has
the meaning set forth in Section 7.2(a).


 


1.88.                        “Original Holder”
means any Person that acquired shares of Preferred Stock on the Effective Date
in the Transactions and whose name is listed on Schedule 2 hereto under the
caption “Original Series A Holder” or “Original Series B Holder”.


 


1.89.                        “Original Investor
Stockholders Agreement” has the meaning set forth in the recitals.


 


1.90.                        “Outside Closing Date”
has the meaning set forth in Section 6.4(a).


 


1.91.                        “Participating Holder”
means any Holder participating in any offering of Registrable Securities
pursuant to Section 2.1 or Section 2.2.


 


1.92.                        “Participating Holder Cap”
has the meaning set forth in Section 2.4(a).


 


1.93.                        “Partner Distribution”
has the meaning set forth in Section 2.1(a).


 


1.94.                        “Permitted Issuances”
means (i) the granting of options to purchase shares of Common Stock
pursuant to the Company’s 2007 Stock Option Plan or 2010 Stock Option Plan (x) in
exchange for options to purchase common stock of Ikaria pursuant to the Merger
Agreement or (y) which grants have received the Requisite Approval or been
approved by the Board (or a committee thereof), including the approval of at
least one NMP Director (provided at least one NMP Director is a member of the
Board), (ii) the granting of rights under any other equity incentive plan,
provided the adoption of such plan has received the Requisite Approval and the
grant of such rights has received the Requisite Approval or been approved by
the Board (or a committee thereof), including the approval of at least one NMP
Director (provided at least one NMP Director is a member of the Board), (iii) the
issuance of any shares of Common Stock pursuant to a stock dividend or upon any
stock split or other subdivision of shares of the Company’s capital stock, (iv) the
issuance of any shares of Common Stock or Convertible Securities as
consideration for the acquisition by the Company or any subsidiary of the
Company of another business entity or interest therein (including, without
limitation, a joint venture or strategic alliance) by merger, stock purchase,
purchase of substantially all the assets or other business combination or
investment, or (v) the issuance of any shares of Common Stock or
Convertible Securities to directors, officers, employees or consultants of the
Company in connection with their service as directors of the Company, their
employment by the Company or their service as a consultant to or officer of the
Company, which issuance, in the case of each of 


 


8

















 


the
foregoing clauses (iii) through (v), received the Requisite Approval, or (vi) the
issuance of Common Stock upon the exercise or conversion of any Convertible
Securities outstanding on the Effective Date or where the issuance was a
Permitted Issuance.


 


1.95.                        “Permitted Transferee”
has the meaning set forth in Section 7.1.


 


1.96.                        “Person” means any
individual, Entity, or Governmental Authority, and the heirs, executors,
administrators, legal representatives, successors and assigns of the “Person”
when the context so permits.


 


1.97.                        “Postponement Period”
has the meaning set forth in Section 2.1(j).


 


1.98.                        “Pre-emptive Rights
Percentage” means, as to any Series B Holder at any time of
determination, the percentage obtained by dividing (a) the sum of (x) the
number of shares of Series B Preferred Stock Beneficially Owned by such Series B
Holder at such time and (y) the number of shares of Series A
Preferred Stock Beneficially Owned by such Series B Holder at such time
(including any Series B Preferred Stock and any Series A Preferred
Stock of such Series B Holder that has been converted into Common Stock if
such Common Stock is still Beneficially Owned by such Series B Holder or a
Permitted Transferee) by (b) the aggregate number of shares of Series B
Preferred Stock and Series A Preferred Stock held by all Series B
Holders at such time (including any Series B Preferred Stock and any Series A
Preferred Stock of any Series B Holder that has been converted into Common
Stock if such Common Stock is still Beneficially Owned by such Series B
Holder or a Permitted Transferee).


 


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


 


1.100.                  “Preferred Stock Purchase Agreement”
has the meaning set forth in the recitals.


 


1.101.                  “Purchase Notice” has the meaning set
forth in Section 5.3.


 


1.102.                  “QIPO Effective Time” has the meaning
ascribed to such term in the 2010 Certificate of Incorporation.


 


1.103.                  “Quarterly Outstanding Common Shares”
has the meaning ascribed to such term in the 2010 Certificate of Incorporation.


 


1.104.                  “Refused Securities” has the meaning
set forth in Section 5.1(b).


 


1.105.                  “Refused Stock” has the meaning set
forth in Section 7.2(b).


 


1.106.                  “Registrable Securities” means any
shares of Common Stock issued upon conversion of any shares of Preferred Stock
held by a Holder.  For purposes of this
Agreement, a Person will be deemed to be a Holder of Registrable Securities
whenever such Person has the right to acquire, directly or indirectly, such
Registrable Securities upon conversion, exercise or exchange of any Convertible
Securities, whether or not such acquisition has actually been effected, and
such Person shall not be required to convert, exercise or exchange such
Convertible 


 


9

















 


Security
(or otherwise acquire such Registrable Security) to participate on any
registered offering hereunder until the closing of such offering.  As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when (a) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (b) such
securities shall have been sold to the public pursuant to Rule 144 under
the Securities Act or (c) such securities shall have ceased to be
outstanding.


 


1.107.                  “Registration Expenses” means all fees
and expenses incurred in connection with the Company’s performance of or
compliance with Section 2, including, without limitation, (i) all
registration, filing and applicable SEC fees, FINRA fees, national securities
exchange or inter-dealer quotation system fees, and fees and expenses of
complying with state securities or blue sky laws (including, without
limitation, fees and disbursements of counsel to the underwriters and the
Participating Holders in connection with “blue sky” qualification of the
Registrable Securities and determination of their eligibility for investment
under the laws of the various jurisdictions), (ii) all printing (including,
without limitation, printing certificates for the Registrable Securities in a
form eligible for deposit with The Depository Trust Company and printing
preliminary and final prospectuses), word processing, duplicating, telephone
and facsimile expenses, and messenger and delivery expenses, (iii) all
fees and disbursements of counsel for the Company and of its independent public
accountants, including, without limitation, the expenses of “cold comfort”
letters or any special audits required by, or incident to, such registration, (iv) all
reasonable fees and expenses of one law firm or other counsel (separate from
counsel to the Company) selected by the Majority Participating Holders, (v) all
reasonable fees and expenses of one firm of accountants (separate from the
Company’s accountants) selected by the Majority Participating Holders, (vi) all
fees and expenses of any special experts or other Persons retained by the
Company in connection with any registration, (vii) Securities Act
liability insurance or similar insurance if the Company so desires or the
underwriters so require in accordance with then-customary underwriting
practices, (viii) all applicable rating agency fees with respect to the
Registrable Securities, (ix) all fees and expenses of a Qualified
Independent Underwriter (as such term is defined in FINRA Rule 2720) and
its counsel, (x) all fees and disbursements of the underwriters (other
than underwriting discounts and commissions), and (xi) all expenses
incurred in connection with promotional efforts or “roadshows”; provided,
however, that Registration Expenses shall exclude, and the Participating
Holders shall (severally, in respect of the securities sold by such
Participating Holder in connection with such registration) pay, all underwriting
discounts and commissions in respect of the Registrable Securities being
registered for such Participating Holders.


 


1.108.                  “Registration Rights Assignor” has the
meaning set forth in Section 10.2(b).


 


1.109.                  “Requisite Approval” means the
approval of the Board (or a committee thereof) and, if required by one or more
of Sections 4.1, 4.2, 4.3, 4.4 and 4.5, the approval or approvals set forth in
the applicable Section or Sections.


 


1.110.                  “Restricted Period” has the meaning
set forth in Section 2.7(b).


 


1.111.                  “Sale and Purchase Agreement” has the
meaning set forth in the recitals.


 


10














 


1.112.      “Sale
Election Notice” has the meaning set forth in Section 7.3(a).


 


1.113.      “Sale
Notice” has the meaning set forth in Section 7.3(a).


 


1.114.      “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 Holders and their
Affiliates in connection with any sale pursuant to Section 7.3 or
transaction pursuant to Section 7.4; provided that the Sale
Obligations of any Holder shall not exceed the amount of consideration (net of
expenses) received by such Holder in any such sale or transaction.


 


1.115.      “SEC”
means the Securities and Exchange Commission or any other federal agency at the
time administering the Securities Act.


 


1.116.      “Second
Registration Rights Assignor” has the meaning set forth in Section 10.2(b).


 


1.117.      “Section 2.1
Sale Amount” has the meaning set forth in Section 2.1(i).


 


1.118.      “Section 2.2
Sale Amount” has the meaning set forth in Section 2.2(c).


 


1.119.      “Section 4
Termination Date” means the earliest date on which (i) the sale of
shares pursuant to a registration statement relating to the Company’s initial
public offering of Common Stock has been consummated and (ii) the
aggregate amount of Capital Stock then Beneficially Owned by the NMP Holders
constitutes less than 15% of the Quarterly Outstanding Common Shares.


 


1.120.      “Section 7.4
Termination Date” means the earliest date on which (i) the sale of
shares pursuant to a registration statement relating to the Company’s initial
public offering of Common Stock has been consummated and (ii) the
aggregate amount of Capital Stock then Beneficially Owned by the NMP Holders
constitutes less than 20% of the Quarterly Outstanding Common Shares.


 


1.121.      “Securities
Act” means the Securities Act of 1933, as amended, or any similar federal
statute, and the rules and regulations of the SEC thereunder, all as the
same shall be in effect at the time. 
References to a particular section of the Securities Act shall include a
reference to the comparable section, if any, of any such similar federal
statute.


 


1.122.      “Selected
Courts” has the meaning set forth in Section 10.4(b).


 


1.123.      “Seller”
has the meaning set forth in Section 6.4(a).


 


1.124.      “Series A
Holder” means, at a time of determination, any Person that acquired Series A
Preferred Stock on the Effective Date in the Transactions and who has executed
this Agreement (and whose name is listed on Schedule 2 hereto under the caption
“Series A Holder”), any Permitted Transferee of such Person that acquires Series A
Preferred Stock on or after the Effective Date, and any other Person that
acquires Series A Preferred Stock after the Effective Date and that has
executed a written agreement (which may be in the form of 


 


11

















 


a
counterpart to this Agreement) satisfactory to the Company agreeing to be bound
by this Agreement as a Series A Holder, in each case only if such Person
holds Capital Stock at such time.


 


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


 


1.126.      “Series B
Holder” means, at a time of determination, any Person that acquired Series B
Preferred Stock on the Effective Date in the Transactions (and whose name is
listed on Schedule 2 hereto under the caption “Series B Holder”), any
Permitted Transferee of such Person that acquires Series B Preferred Stock
on or after the Effective Date, and any other Person that acquires Series B
Preferred Stock after the Effective Date and that has executed a written
agreement (which may be in the form of a counterpart to this Agreement)
satisfactory to the Company agreeing to be bound by this Agreement as a Series B
Holder, in each case only if such Person holds Capital Stock at such time.


 


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


 


1.128.      “Series C
Holder” means any holder of Series C Preferred Stock.


 


1.129.      “Series C
Preferred Stock” means any shares of the Series C Special Voting
Convertible Preferred Stock, $0.01 par value per share, of the Company.


 


1.130.      “Third
Party” means, with respect to any Holder that is an Entity, any Person
other than an Affiliate of such Holder, and, with respect to any Holder that is
an individual, any Person other than a Family Member, or an Affiliate of a
Family Member, of such Holder.


 


1.131.      “Third
Party Portion of the Offered Stock” has the meaning set forth in Section 7.2(e).


 


1.132.      “Transactions”
has the meaning set forth in Section 8.1(a).


 


1.133.      “Transfer”
has the meaning set forth in Section 7.1.


 


1.134.      “Transfer
Election Notice” has the meaning set forth in Section 7.2(d).


 


1.135.      “Transfer
Notice” has the meaning set forth in Section 7.2(c).


 


1.136.      “Transfer
Purchase Notice” has the meaning set forth in Section 7.2(d).


 


1.137.      “Transferring
Holder” has the meaning set forth in Section 7.2(a).


 


1.138.      “2007
Stock Option Plan” means the Company’s 2007 Stock Option Plan, as in effect
on the Effective Date, and as it may have been or may be amended, from time to
time, with the Requisite Approval.


 


12

















 


1.139.      “2010
Certificate of Incorporation” means the Restated Certificate of
Incorporation of the Company filed with the Secretary of State of the State of
Delaware on September 10, 2010, as in effect immediately following such
filing.


 


1.140.      “2010
Stock Option Plan” means the Company’s 2010 Amended and Restated Long Term
Incentive Plan, as in effect on May 6, 2010, and as it may have been or
may be amended, from time to time, with the Requisite Approval.


 


1.141.      “Venrock”
has the meaning set forth in the preamble.


 


1.142.      “Venrock
Director” has the meaning set forth in Section 9.1(e).


 


1.143.      “WKSI”
has the meaning set forth in Section 2.3(d).


 


SECTION 2.           Registration Under Securities Act.


 


2.1.          Registration
on Demand.


 


(a)           Demand.  At
any time (subject to the provisions of Section 4 in the case of an initial
public offering) or from time to time, the Series B Holders holding a
majority of the Series B Preferred Stock (including any Series B
Preferred Stock of any Series B Holder that has been converted into Common
Stock if such Common Stock is still Beneficially Owned by such Series B
Holder or a Permitted Transferee), or, at any time or from time to time after
an initial public offering, the Series A Holders holding a majority of the
Series A Preferred Stock (including any Series A Preferred Stock of
any Series A Holder that has been converted into Common Stock if such
Common Stock is still Beneficially Owned by such Series A Holder or a
Permitted Transferee), may require the Company to effect the registration under
the Securities Act of all or part of their Registrable Securities, by
delivering a written request (a “Holder Demand”) therefor to the Company
specifying the number of shares of Registrable Securities to be registered and
the intended method of distribution thereof. 
As promptly as practicable, but no later than 10 Business Days after
receipt of a Holder Demand, the Company shall give written notice (the “Demand
Exercise Notice”) of the Holder Demand to all Holders.  Each non-Initiating Holder shall have the
option, within 20 Business Days after the receipt of the Demand Exercise Notice
(or within 15 Business Days if, at the request of the Initiating Holders, the
Company states in such written notice or gives telephonic notice to each
Holder, with written confirmation to follow promptly thereafter, that (i) such
registration will be on Form S-3 and (ii) such shorter period of time
is required because of a planned filing date) to request, in writing, that the
Company include in such registration any Registrable Securities held by such
non-Initiating Holder (which request shall specify the maximum number of
Registrable Securities desired to be disposed of by such non-Initiating
Holder).  The Company shall as
expeditiously as possible (but in any event within 80 Business Days of receipt
of a Holder Demand), use its best efforts to effect the registration under the
Securities Act of the Registrable Securities which the Company has been so
requested to register by the Initiating Holders and by any other Holders in a
written response to a Demand Exercise Notice. 
The Company shall (i) use its best efforts to effect the
registration of Registrable Securities for distribution in accordance with the
intended method of distribution set forth in a written request delivered by the
Majority Participating Holders (the “Intended Method of Distribution”),
which may include, at the option of such 


 


13

















 


Majority Participating Holders, a distribution of
Registrable Securities to, and resale of such Registrable Securities by, the
partners of such Holder or Holders (a “Partner Distribution”), and (ii) if
requested by the Majority Participating Holders, obtain acceleration of the
effective date of the registration statement relating to such registration.


 


(b)           Registration Statement Form.  Registrations under this Section 2.1
shall be on such appropriate form of the SEC (i) as shall be selected by
the Majority Participating Holders and as shall be reasonably acceptable to the
Company and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the Intended Method of Distribution, including,
without limitation, a continuous or delayed basis offering pursuant to Rule 415
under the Securities Act.  The Company
agrees to include in any such registration statement all information which, in
the opinion of counsel to the Participating Holders and counsel to the Company,
is necessary or desirable to be included therein.


 


(c)           Partner Distributions.  If the Intended Method of Distribution
includes a Partner Distribution, then the Company shall, at the request of any
Participating Holder seeking to effect a Partner Distribution, file any
prospectus supplement or post-effective amendments and shall otherwise take any
action necessary to include such language, if such language was not included in
the initial registration statement, or revise such language if deemed necessary
by such Participating Holder, to effect such Partner Distribution.


 


(d)           Expenses. 
The Company shall pay, and shall be responsible for, all Registration
Expenses in connection with any registration requested pursuant to this Section 2.1.  Notwithstanding the foregoing, the provisions
of this Section 2.1(d) shall be deemed amended to the extent
necessary to cause these expense provisions to comply with “blue sky” laws of
each state or the securities laws of any other jurisdiction in the United
States and its territories in which the offering is made.


 


(e)           Effective Registration Statement.  A registration requested pursuant to this Section 2.1
shall not be deemed a Demand Registration (including, without limitation, for
purposes of Section 2.1(h)) unless a registration statement with respect
thereto has become effective and has been kept continuously effective for a
period of at least 180 days (or such shorter period which shall terminate when
all the Registrable Securities covered by such registration statement have been
sold pursuant thereto) or, if such registration statement relates to an
underwritten offering, such longer period as in the opinion of counsel for the
underwriter or underwriters a Prospectus is required by law to be delivered in
connection with sales of Registrable Securities by an underwriter or
dealer.  Should a Demand Registration not
become effective due to the failure of an Initiating Holder to perform its
obligations under this Agreement, or in the event the Initiating Holders
withdraw or do not pursue the request for the Demand Registration as provided
for in Section 2.1(g) (in each of the foregoing cases, provided
that at such time the Company is in compliance in all material respects with
its obligations under this Agreement), then such Demand Registration shall be
deemed to have been effected (including, without limitation, for purposes of Section 2.1(h));
provided, that, if (i) the Demand Registration does not
become effective or is withdrawn because a material adverse change has
occurred, or is reasonably likely to occur, in the condition (financial or
otherwise), prospects, business, assets or results of operations of the Company
or any of its material subsidiaries subsequent to the date of the delivery of
the Demand Exercise Notice, (ii) after the Demand 


 


14

















 


Registration has become effective, such registration
is interfered with by any stop order, injunction, or other order or requirement
of the SEC or other governmental agency or court, (iii) the Demand
Registration is withdrawn at the request of the Majority Participating Holders
due to the advice of the managing underwriter(s) that the Registrable
Securities covered by the registration statement could not be sold in such
offering within a price range acceptable to the Majority Participating Holders,
(iv) the Demand Registration is withdrawn for any reason at any time during
a Postponement Period or within ten days thereafter, or (v) the
Participating Holders reimburse the Company for any and all Registration
Expenses incurred by the Company in connection with such request for a Demand
Registration that was withdrawn or not pursued, then the Demand Registration
shall not be deemed to have been effected and will not count as a Demand
Registration.


 


(f)            Selection of Underwriters.  The underwriters of each underwritten
offering of the Registrable Securities pursuant to this Section 2.1 shall
be selected by the Majority Participating Holders, provided that such
underwriters shall be reasonably acceptable to the Company.


 


(g)           Right to Withdraw. 
Any Participating Holder shall have the right to withdraw its request
for inclusion of Registrable Securities in any registration statement pursuant
to this Section 2.1 at any time prior to the effective date of such
registration statement by giving written notice to the Company of its request
to withdraw.  Upon receipt of notices
from the Majority Participating Holders to such effect, the Company shall cease
all efforts to obtain effectiveness of the applicable registration statement,
and whether the Initiating Holders’ request for registration pursuant to this Section 2.1
shall be counted as a Demand Registration for purposes of Section 2.1(h) shall
be determined in accordance with Section 2.1(e).


 


(h)           Limitations on Registration on Demand.  The Company shall be required to effect eight
registrations in the aggregate pursuant to this Section 2.1, of which (i) the
Series B Holders holding a majority of the Series B Preferred Stock
(including any Series B Preferred Stock of any Series B Holder that
has been converted into Common Stock if such Common Stock is still Beneficially
Owned by such Series B Holder or a Permitted Transferee), determined at
the time the particular demand for registration is made, shall be entitled to
require the Company to effect one registration for the initial public offering
of Common Stock (subject to the provisions of Section 4), (ii) after
an initial public offering of Common Stock, the Series B Holders holding a
majority of the Series B Preferred Stock (including any Series B
Preferred Stock of any Series B Holder that has been converted into Common
Stock if such Common Stock is still Beneficially Owned by such Series B
Holder or a Permitted Transferee), determined at the time the particular demand
for registration is made, shall be entitled to require the Company to effect
five registrations in the aggregate, and (iii) after an initial public
offering of Common Stock, the Series A Holders holding a majority of the Series A
Preferred Stock (including any Series A Preferred Stock of any Series A
Holder that has been converted into Common Stock if such Common Stock is still
Beneficially Owned by such Series A Holder or a Permitted Transferee),
determined at the time the particular demand for registration is made, shall be
entitled to require the Company to effect two registrations in the aggregate
(each registration pursuant to clause (i), (ii) or (iii), a “Demand
Registration”); provided, however, that the Company shall not
be required to effect a Demand Registration until at least 90 days after the
effective date of any other registration statement filed by the Company
pursuant to a previous 


 


15

















 


Demand Registration. 
The aggregate offering value of the shares to be registered pursuant to
any Demand Registration shall be at least $25 million (determined as of the
date the demand is made), unless the registration is of the balance of the
Registrable Securities held by the Series B Holders or the Series A
Holders, in which case the aggregate offering value of the shares to be
registered shall be at least $5 million for a registration on Form S-1 or
$1 million for a registration on Form S-3. 
If a Holder Demand is made with respect to shares of Series A
Preferred Stock (including Common Stock issued upon the conversion thereof) or Series B
Preferred Stock (including Common Stock issued upon the conversion thereof), as
applicable, but, by reason of the cut-back provisions of Section 2.1(i) no
shares of such series of Preferred Stock (including Common Stock issued upon
the conversion thereof) are included in the registration, then such
registration shall not count as a Demand Registration for purposes of clause (ii) or
clause (iii), as applicable, of this Section 2.1(h).


 


(i)            Priority in Registrations on Demand.  Whenever the Company effects a registration
pursuant to this Section 2.1 in connection with an underwritten offering
by Holders, no securities other than Registrable Securities and securities
being sold by the Company for its own account, shall be included among the
securities covered by such registration unless the Majority Participating
Holders consent in writing to the inclusion therein of such other securities,
which consent may be withheld or may be made subject to terms and conditions
determined by the Majority Participating Holders, all in their sole discretion.  If any registration pursuant to this Section 2.1
involves an underwritten offering and the managing underwriter(s) of such
offering shall inform the Company in writing of its belief that the number of
Registrable Securities requested to be included in such offering pursuant to
this Section 2.1, either alone or when added to the number of any other
securities to be included in such offering, would materially adversely affect
such offering, then the Company shall include in such offering, to the extent
of the number and type which the Company is so advised can be sold in (or
during the time of) such offering without so materially adversely affecting
such offering (the “Section 2.1 Sale Amount”), (i) the
securities proposed by the Company to be sold for its own account; (ii) thereafter,
to the extent the Section 2.1 Sale Amount is not exceeded, the Registrable
Securities issued or issuable upon conversion of the Series B Preferred
Stock and requested by the Series B Holders that are Participating Holders
(provided that if all of such Registrable Securities requested by such Series B
Holders may not be included, such Series B Holders shall be entitled to
participate on a pro rata basis based on the aggregate number of shares of such
Registrable Securities requested by such Series B Holders to be
registered); (iii) thereafter, to the extent the Section 2.1 Sale
Amount is not exceeded, the Registrable Securities issued or issuable upon
conversion of the Series A Preferred Stock and requested by the Series A
Holders that are Participating Holders (provided that if all of such
Registrable Securities requested by such Series A Holders may not be
included, such Series A Holders shall be entitled to participate on a pro
rata basis based on the aggregate number of shares of such Registrable
Securities requested by such Series A Holders to be registered); and (iv) thereafter,
to the extent the Section 2.1 Sale Amount is not exceeded, any other
securities of the Company requested to be included by Company stockholders
holding other such registration rights.


 


(j)            Postponement. 
The Company shall be entitled once in any twelve-month period to
postpone for a reasonable period of time (but not exceeding 90 days) (the “Postponement
Period”) the filing of any registration statement required to be prepared
and filed by it pursuant to this Section 2.1, if the Company determines,
in its reasonable judgment upon 


 


16

















 


advice of counsel, as authorized by a resolution of
its Board, that such registration and offering would require premature
disclosure of any material financing, material corporate reorganization or
other material transaction involving the Company, and promptly gives the
Participating Holders written notice of such determination, containing a
specific statement of the reasons for such postponement and an approximation of
the anticipated delay.


 


2.2.          Incidental
Registration.


 


(a)           Right to Include Registrable Securities.  If the Company at any time proposes to
register any of its equity securities under the Securities Act by registration
on Form S-1, S-2 or S-3, or any successor or similar form(s) (except
registrations (i) pursuant to Section 2.1, (ii) solely for
registration of equity securities in connection with an employee benefit plan
or dividend reinvestment plan on Form S-8 or any successor form thereto or
(iii) in connection with any acquisition, merger or other business
combination transaction on Form S-4 or any successor form thereto),
whether or not for sale for the Company’s own account, the Company will, each
such time, give prompt written notice (but in no event less than 30 days prior
to the initial filing of a registration statement with respect thereto) to each
of the Holders of its intention to do so and such notice shall offer the
Holders the opportunity to register under such registration statement up to
such number of Registrable Securities as each such Holder may request in
writing.  Upon the written request of any
of the Holders (which request shall specify the maximum number of Registrable
Securities desired to be disposed of by such Holder), made as promptly as
practicable and, in any event, within 20 Business Days after the receipt of any
such notice (or within 15 Business Days if the Company states in such written
notice or gives telephonic notice to each Holder, with written confirmation to
follow promptly thereafter, that (i) such registration will be on Form S-3
and (ii) such shorter period of time is required because of a planned
filing date), the Company shall include in such registration under the
Securities Act all Registrable Securities which the Company has been so
requested to register by each Holder (subject to the provisions of Section 2.2(c));
provided, however, that if, at any time after giving written
notice of its intention to register any equity securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register, or to
delay registration of, such equity securities, the Company shall give written
notice of such determination and its reasons therefor to the Holders and (i) in
the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from any obligation of the Company to pay the
Registration Expenses in connection therewith as provided for in Section 2.2(d)),
without prejudice, however, to the rights of the Holders to request that such
registration be effected as a registration under Section 2.1 and (ii) in
the case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities for the same period as the delay in
registering such other equity securities. 
No registration effected under this Section 2.2 shall relieve the
Company of its obligation to effect any registration upon request under Section 2.1.


 


(b)           Right to Withdraw; Option to Participate in Shelf
Takedowns.  Any Holder shall have the
right to withdraw its request for inclusion of Registrable Securities in any
registration statement pursuant to this Section 2.2 at any time prior to
the effective date of such registration statement by giving written notice to
the Company of its request to withdraw. 
In the event that the Holder has requested inclusion of Registrable
Securities in a shelf 


 


17

















 


registration, the Holder shall have the right, but
not the obligation, to participate in any offering of the Company’s equity
securities under such shelf registration.


 


(c)           Priority in Incidental Registrations.  If any registration pursuant to this Section 2.2
involves an underwritten offering and the managing underwriter(s) of such
offering shall inform the Company in writing of its belief that the number of
Registrable Securities requested to be included in such offering, when added to
the number of other equity securities to be offered in such offering, would
materially adversely affect such offering, then the Company shall include in
such offering, to the extent of the number and type which the Company is so
advised can be sold in (or during the time of) such offering without so
materially adversely affecting such offering (the “Section 2.2 Sale
Amount”), (i) all of the securities proposed by the Company to be sold
for its own account; (ii) thereafter, to the extent the Section 2.2
Sale Amount is not exceeded, the Registrable Securities issued or issuable upon
conversion of the Series B Preferred Stock and requested by the Series B
Holders that are Participating Holders (provided that if all of such
Registrable Securities requested by such Series B Holders may not be
included, such Series B Holders shall be entitled to participate on a pro
rata basis based on the aggregate number of shares of such Registrable
Securities requested by such Series B Holders to be registered); (iii) thereafter,
to the extent the Section 2.2 Sale Amount is not exceeded, the Registrable
Securities issued or issuable upon conversion of the Series A Preferred
Stock and requested by the Series A Holders that are Participating Holders
(provided that if all of such Registrable Securities requested by such Series A
Holders may not be included, such Series A Holders shall be entitled to participate
on a pro rata basis based on the aggregate number of shares of such Registrable
Securities requested by such Series A Holders to be registered); and (iv) thereafter,
to the extent the Section 2.2 Sale Amount is not exceeded, any other
securities of the Company requested to be included by Company stockholders
holding other such registration rights.


 


(d)           Expenses. 
The Company shall pay, and shall be responsible for, all Registration
Expenses in connection with any registration requested pursuant to this Section 2.2.  Notwithstanding the foregoing, the provisions
of this Section 2.2(d) shall be deemed amended to the extent
necessary to cause these expense provisions to comply with “blue sky” laws of
each state or the securities laws of any other jurisdiction in the United
States and its territories in which the offering is made.


 


(e)           Selection of Underwriters.  The underwriters of each underwritten
offering of the Registrable Securities pursuant to this Section 2.2 shall
be selected by the Majority Participating Holders, provided that such
underwriters shall be reasonably acceptable to the Company.


 


(f)            Plan of Distribution; Partner Distributions.  Any participation by Holders in a
registration by the Company shall be in accordance with the Company’s plan of
distribution, but shall include, upon the written request of such Holder or
Holders, a Partner Distribution. 
Notwithstanding anything contained herein to the contrary, the Company
shall, at the request of any Holder seeking to effect a Partner Distribution,
file any prospectus supplement or post-effective amendments and otherwise take
any action necessary to include such language, if such language was not
included in the initial registration statement, or revise such language if
deemed reasonably necessary by such Holder to effect such Partner Distribution.


 


18

















 


2.3.          Registration
Procedures.


 


(a)           If and whenever the Company is required to effect the
registration of any Registrable Securities under the Securities Act pursuant to
either Section 2.1 or Section 2.2, the Company shall as expeditiously
as possible:


 


(i)            prepare
and file with the SEC as soon as practicable (and in the case of a demand
pursuant to Section 2.1, within 45 days after receipt by the Company of a
Demand Exercise Notice, unless the Majority Participating Holders and the
Company agree to a different date) a registration statement on an appropriate
registration form of the SEC for the disposition of such Registrable Securities
in accordance with the Intended Method of Distribution (including, without
limitation, a Partner Distribution) which registration statement shall comply
as to form in all material respects with the requirements of the applicable
form and include all financial statements required by the SEC to be filed
therewith, and thereafter use its best efforts to cause such registration
statement to become and remain effective (A) with respect to an
underwritten offering, for a period of at least 180 days (or such shorter or longer
period which shall terminate when all the Registrable Securities covered by
such registration statement have been sold pursuant thereto) or, if such
registration statement relates to an underwritten offering, such longer period
as in the opinion of counsel for the underwriter or underwriters a Prospectus
is required by law to be delivered in connection with sales of Registrable
Securities by an underwriter or dealer, and (B) with respect to a shelf
registration, until the later of (1) the sale of all Registrable
Securities thereunder and (2) the earlier of the 10th anniversary of the
date of this Agreement and the third anniversary of the effective date of such
shelf registration;


 


(ii)           prepare
and file with the SEC any amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary
to keep such registration statement effective and to comply with the provisions
of the Securities Act with respect to the disposition of all Registrable
Securities covered by such registration statement in accordance with the
Intended Method of Distribution by the Participating Holders set forth in such
registration statement for such period as provided for in Section 2.3(a)(i) above;


 


(iii)          furnish,
without charge, to each Participating Holder and each underwriter such number
of conformed copies of such registration statement and of each such amendment
and supplement thereto (in each case including, without limitation, all
exhibits), such number of copies of the prospectus contained in such
registration statement (including, without limitation, each preliminary
prospectus and summary prospectus) and any other prospectus filed under Rule 424
under the Securities Act, in conformity with the requirements of the Securities
Act, and such other documents, as the Majority Participating Holders and such
underwriters may reasonably request (it being understood that the Company
consents to the use of such prospectus or any amendment or supplement thereto
by each Participating Holder and the underwriters in connection with the
offering and sale of the Registrable Securities covered by such prospectus or
any amendment or supplement thereto);


 


(iv)          use
its best efforts (A) to register or qualify all Registrable Securities and
other securities covered by such registration statement under such state
securities or blue sky laws where an exemption is not available and as the
Majority Participating Holders 


 


19

















 


or
any managing underwriter shall request, (B) to keep such registration or
qualification in effect for so long as such registration statement remains in
effect, and (C) to take any and all other actions which may be necessary
or advisable to enable the Participating Holders or underwriters to consummate
the disposition in such jurisdictions of the securities to be sold by the
Participating Holders or underwriters, except that the Company shall not for
any such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not, but for the requirements
of this Section 2.3(a)(iv), be obligated to be so qualified;


 


(v)           use
its best efforts to cause all Registrable Securities covered by such
registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary in the opinion of
counsel to the Company and counsel to the Participating Holders to consummate
the disposition of such Registrable Securities;


 


(vi)          use
its best efforts to furnish to each Participating Holder and each underwriter a
signed counterpart of (A) an opinion of counsel for the Company and (B) a
“comfort” letter signed by the independent public accountants who have
certified the Company’s financial statements included or incorporated by
reference in such registration statement, in each case, addressed to each
Participating Holder and each underwriter covering matters with respect to such
registration statement (and the prospectus included therein) as such Majority
Participating Holders and managing underwriter(s) shall request;


 


(vii)         promptly
notify each Participating Holder and each managing underwriter (A) when
such registration statement, any pre-effective amendment, the prospectus or any
prospectus supplement related thereto or post-effective amendment to such
registration statement has been filed, and, with respect to such registration
statement or any post-effective amendment, when the same has become effective; (B) of
the receipt by the Company of any comments from the SEC or receipt of any
request by the SEC for additional information with respect to any registration
statement or the prospectus related thereto or any request by the SEC for
amending or supplementing the registration statement and the prospectus used in
connection therewith; (C) of the issuance by the SEC of any stop order
suspending the effectiveness of such registration statement or the initiation
of any proceedings for that purpose; (D) of the receipt by the Company of
any notification with respect to the suspension of the qualification of any of
the Registrable Securities for sale under the securities or blue sky laws of
any jurisdiction or the initiation of any proceeding for such purpose; and (E) at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, upon discovery that, or upon the happening of any event as
a result of which, the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, in the light of the circumstances under
which they were made, and in the case of this clause (E), promptly prepare and
furnish, at the Company’s expense, to each Participating Holder and each
managing underwriter a number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include 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 not misleading in
the light of the circumstances under which they were made; and (F) at any
time 


 


20

















 


when
the representations and warranties of the Company contemplated by Section 2.4(a) or
(b) cease to be true and correct;


 


(viii)        otherwise
comply with all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as practicable (and in any event
within 16 months after the effective date of the registration statement), an
earnings statement covering the period of at least 12 consecutive months beginning
with the first full calendar month after the effective date of such
registration statement, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;


 


(ix)           provide
and cause to be maintained a transfer agent and registrar for all Registrable
Securities covered by such registration statement from and after a date not
later than the effective date of such registration statement;


 


(x)            (A) use
its best efforts to cause all Registrable Securities covered by such
registration statement to be listed on the principal securities exchange on
which similar securities issued by the Company are then listed (if any), if the
listing of such Registrable Securities is then permitted under the rules of
such exchange, or (B) if no similar securities are then so listed, use its
best efforts to cause all such Registrable Securities to be listed on a
national securities exchange;


 


(xi)           deliver
promptly to counsel to the Participating Holders and each underwriter, if any,
participating in the offering of the Registrable Securities, copies of all
correspondence between the SEC and the Company, its counsel or auditors and all
memoranda relating to discussions with the SEC or its staff with respect to
such registration statement;


 


(xii)          use
its best efforts to obtain the withdrawal of any order suspending the
effectiveness of the registration statement;


 


(xiii)         provide
a CUSIP number for all Registrable Securities, no later than the effective date
of the registration statement, and provide the applicable transfer agents with
printed certificates for the Registrable Securities which are in a form
eligible for deposit with The Depository Trust Company;


 


(xiv)        cause
its officers and employees to participate in, and to otherwise facilitate and
cooperate with, the preparation of the registration statement and prospectus
and any amendments or supplements thereto (including, without limitation,
participating in meetings, drafting sessions, due diligence sessions and the marketing
of the Registrable Securities covered by the registration statement (including,
without limitation, participation in “road shows”)) taking into account the
Company’s business needs;


 


(xv)         enter
into and perform its obligations under such customary agreements (including,
without limitation, if applicable, an underwriting agreement as provided for in
Section 2.4) and take such other actions as the Majority Participating
Holders or managing underwriter(s) shall reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;


 


21














 


(xvi)        promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter(s) or Majority Participating
Holders reasonably request to be included therein relating to the plan of
distribution with respect to such Registrable Securities; and make all required
filings of such prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment;


 


(xvii)       cooperate
with each Participating Holder and each underwriter, and their respective
counsel, in connection with any filings required to be made with The NASDAQ
Stock Market, the New York Stock Exchange, or any other securities exchange on
which such Registrable Securities are traded or will be traded;


 


(xviii)      promptly
prior to the filing of any document which is to be incorporated by reference
into the registration statement or the prospectus contained therein (after the
initial filing of such registration statement) provide copies of such document
to counsel for the Participating Holders and to each managing underwriter, and
make the Company’s representatives available for discussion of such document
and make such changes in such document concerning the Participating Holders
prior to the filing thereof as counsel for such Participating Holders or
underwriters may reasonably request;


 


(xix)         furnish
to each Participating Holder and each managing underwriter(s), without charge,
at least one signed copy of the registration statement and any post-effective
amendments thereto, including, without limitation, financial statements and
schedules, all documents incorporated therein by reference and all exhibits
(including, without limitation, those incorporated by reference);


 


(xx)          cooperate
with the Participating Holders and the managing underwriter(s) to
facilitate the timely preparation and delivery of certificates not bearing any
restrictive legends representing the Registrable Securities to be sold, and cause
such Registrable Securities to be issued in such denominations and registered
in such names in accordance with the underwriting agreement prior to any sale
of Registrable Securities to the underwriters or, if not an underwritten
offering, in accordance with the instructions of the Participating Holders at
least five Business Days prior to any sale of Registrable Securities and
instruct any transfer agent or registrar of Registrable Securities to release
any stop transfer orders in respect thereof;


 


(xxi)         to
the extent required by the rules and regulations of FINRA, retain a
Qualified Independent Underwriter, which shall be reasonably acceptable to the
Majority Participating Holders; and


 


(xxii)        take
no direct or indirect action prohibited by Regulation M under the Exchange Act;
provided, however, that to the extent that any prohibition is
applicable to the Company, the Company will take such action as is necessary to
make any such prohibition inapplicable.


 


(b)           Each Participating Holder agrees that upon receipt of any
notice from the Company of the happening of any event of the kind described in Section 2.3(a)(vii)(C) or
(E), each Participating Holder will, to the extent appropriate, discontinue its
disposition of 


 


22

















 


Registrable Securities pursuant to the registration
statement relating to such Registrable Securities until, in the case of Section 2.3(a)(vii)(C),
its receipt of notice from the Company that such stop order or suspension of
effectiveness is no longer in effect, and in the case of Section 2.3(a)(vii)(E),
its receipt of the copies of the supplemented or amended prospectus
contemplated by Section 2.3(a)(vii)(E) and, if so directed by the
Company, will deliver to the Company (at the Company’s expense) all copies,
other than permanent file copies, then in its possession, of the prospectus
relating to such Registrable Securities current at the time of receipt of such
notice.  If the disposition by a Participating
Holder of its securities is discontinued pursuant to the foregoing sentence,
the Company shall extend the period of effectiveness of the registration
statement by the number of days during the period from and including the date
of the giving of such notice to and including the date when the Participating
Holder shall have received (in the case of Section 2.3(a)(vii)(C)) notice
that such stop order or suspension of effectiveness is no longer in effect, or
(in the case of Section 2.3(a)(vii)(E)) copies of the supplemented or
amended prospectus contemplated by Section 2.3(a)(vii)(E); and, if the
Company shall not so extend such period, the Participating Holder’s request
pursuant to which such registration statement was filed shall not be counted
for purposes of the requests for registration to which the Participating Holder
is entitled pursuant to Section 2.1. 
If for any other reason the effectiveness of any registration statement
filed pursuant to Section 2.1 or Section 2.2 is suspended or
interrupted prior to the expiration of the time period regarding the
maintenance of the effectiveness of such registration statement required by Section 2.3(a)(i) so
that Registrable Securities may not be sold pursuant thereto, the applicable
time period shall be extended by the number of days equal to the number of days
during the period beginning with the date of such suspension or interruption to
and ending with the date when the sale of Registrable Securities pursuant to
such registration statement may be resumed.


 


(c)           If any such registration statement or comparable statement
under “blue sky” laws refers to any Holder by name or otherwise as the holder
of any securities of the Company, then such Holder shall have the right to
require (i) the insertion therein of language, in form and substance
satisfactory to such Holder and the Company, to the effect that the holding by
such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the Company’s securities covered
thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Company, or (ii) in the
event that such reference to such Holder by name or otherwise is not in the
judgment of the Company, as advised by counsel, required by the Securities Act
or any similar federal statute or any state “blue sky” or securities law then
in force, the deletion of the reference to such Holder.


 


(d)           To the extent the Company is a well-known seasoned issuer
(as defined in Rule 405 under the Securities Act) (a “WKSI”) at the
time any Holder Demand is submitted to the Company, and such Holder Demand
requests that the Company file an automatic shelf registration statement (as
defined in Rule 405 under the Securities Act) on Form S-3, the
Company shall file an automatic shelf registration statement which covers those
Registrable Securities which are requested to be registered.  The Company shall use its best efforts to
remain a WKSI (and not become an ineligible issuer (as defined in Rule 405
under the Securities Act)) during the period during which such automatic shelf
registration statement is required to remain effective.  If the Company does not pay the filing fee
covering the Registrable Securities at the time the automatic shelf
registration statement is filed, the Company agrees to 


 


23

















 


pay such fee at such time or times as the
Registrable Securities are to be sold. 
If the automatic shelf registration statement has been outstanding for
at least three years, at the end of the third year the Company shall refile a
new automatic shelf registration statement covering the Registrable
Securities.  If at any time when the
Company is required to re-evaluate its WKSI status the Company determines that
it is not a WKSI, the Company shall use its best efforts to refile the shelf
registration statement on Form S-3 and, if such form is not available, Form S-1,
and keep such registration statement effective during the period during which
such registration statement is required to be kept effective.


 


2.4.          Underwritten
Offerings.


 


(a)           Demanded Underwritten Offerings.  If requested by the underwriters for any
underwritten offering by the Participating Holders pursuant to a registration
requested under Section 2.1, the Company shall enter into a customary
underwriting agreement with the managing underwriter(s) selected by the
Majority Participating Holders (in accordance with Section 2.1(f)).  Such underwriting agreement shall be
reasonably satisfactory in form and substance to the Majority Participating
Holders and the Company and shall contain such representations and warranties
by, and such other agreements on the part of, the Company and such other terms
as are generally prevailing in agreements of that type, including, without
limitation, customary provisions relating to indemnification and contribution
which are no less favorable to the recipient than those provided in Section 2.6.  Each Participating Holder shall be a party to
such underwriting agreement and may, at its option, require that any or all of
the representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made to
and for the benefit of each Participating Holder and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of each
Participating Holder.  No Participating
Holder shall be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Participating Holder, its ownership of
and title to the Registrable Securities, and its intended method of
distribution; and any liability of any Participating Holder to any underwriter
or other Person under such underwriting agreement shall be limited to liability
arising from breach of its representations and warranties and shall be limited
to an amount equal to the proceeds (net of expenses and underwriting discounts
and commissions) that it derives from such registration (its “Participating
Holder Cap”), except in the case of willful fraud by such Participating
Holder.


 


(b)           Incidental Underwritten Offerings.  In the case of a registration pursuant to Section 2.2,
if the Company shall have determined to enter into an underwriting agreement in
connection therewith, all of the Registrable Securities to be included in such
registration shall be subject to such underwriting agreements.  The Participating Holders may, at their
option, require that any or all of the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of the Participating
Holders and that any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement be conditions precedent to
the obligations of the Participating Holders. 
None of the Participating Holders shall be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding 


 


24

















 


such Participating Holder, its ownership of and
title to the Registrable Securities and its intended method of distribution;
and any liability of any Participating Holder to any underwriter or other
Person under such underwriting agreement shall be limited to liability arising
from breach of its representations and warranties and shall be limited to its
Participating Holder Cap, except in the case of willful fraud by such
Participating Holder.


 


(c)           Participation in Underwritten Registrations.  In the case of an underwritten registration
pursuant to Section 2.1 or Section 2.2, the Company may, by written
notice from time to time, require the Participating Holders (i) to furnish
the Company such information regarding such Participating Holders and the
distribution of the Registrable Securities reasonably required to enable the
Company to comply with the requirements of applicable laws or regulations in
connection with such registration and (ii) to complete and execute all
customary questionnaires, powers of attorney, custody agreements, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.  The
Company shall not be obligated to effect the registration of any Registrable
Securities of a particular Participating Holder unless such information and
documents regarding such Participating Holder and the distribution of such
Participating Holder’s Registrable Securities is provided to the Company.


 


2.5.          Preparation;
Reasonable Investigation.  In
connection with the preparation and filing of each registration statement under
the Securities Act pursuant to this Agreement, the Company will give the
Participating Holders, the managing underwriter(s), and their respective
counsel, accountants and other representatives and agents the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the SEC, and each amendment thereof or
supplement thereto or comparable statements under securities or blue sky laws of
any jurisdiction, and give each of the foregoing parties access to its books
and records, all financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries, and such opportunities to
discuss the business of the Company and its subsidiaries with their respective
directors, officers and employees and the independent public accountants who
have certified the Company and its subsidiaries’ financial statements, and
supply all other information and respond to all inquiries requested by such
Participating Holders, managing underwriter(s), or their respective counsel,
accountants or other representatives or agents in connection with such
registration statement, as shall be necessary or appropriate, in the opinion of
counsel to such Participating Holder or managing underwriter(s), to conduct a
reasonable investigation within the meaning of the Securities Act, and the
Company shall not file any registration statement or amendment thereto or any
prospectus or supplement thereto to which the Majority Participating Holders or
the managing underwriter(s) shall object.


 


2.6.          Indemnification.


 


(a)           Indemnification by the Company.  The Company agrees that in the event of any
registration of any Registrable Securities under the Securities Act, the
Company shall, and hereby does, indemnify and hold harmless, to the fullest
extent permitted by law, (i) each of the Holders and their Affiliates, (ii) each
of the Holders’ and their Affiliates’ respective Affiliates, officers,
directors, successors, assigns, members, partners, stockholders, employees,
advisors, representatives, and agents, (iii) each other Person who
participates as an underwriter or Qualified Independent Underwriter in the
offering or sale of such securities, (iv) each Person 


 


25

















 


who controls (within the meaning of the Securities
Act or the Exchange Act) any of the Persons listed in clauses (i), (ii), (iii) or
(iv), and (v) any representative (legal or otherwise) of any of the
Persons listed in clauses (i), (ii), (iii) or (iv) (collectively, the
“Indemnitees”), from and against any losses, penalties, fines, liens,
judgments, suits, claims, damages, costs and expenses (including, without
limitation, expenses of enforcement of this Section 2.6(a) or 2.6(f),
all attorney’s fees and any amounts paid in any settlement effected in
compliance with Section 2.6(e)) or liabilities, joint or several (or
actions or proceedings, whether commenced or threatened, in respect thereof,
and whether or not such Indemnitee is a party thereto) (“Losses”), to
which such Indemnitee has become or may become subject under the Securities Act
or otherwise, insofar as such Losses arise out of, relate to or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such securities were registered under
the Securities Act, or any preliminary prospectus, final prospectus or summary
prospectus contained therein, any amendment or supplement thereto, or any
documents incorporated by reference therein, (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (iii) any
violation by the Company of the underwriting agreement contemplated by Section 2.4
(if applicable) or any federal, state or common law rule or regulation
applicable to the Company and relating to action required of, or inaction by,
the Company in connection with any such registration, and the Company shall
reimburse such Indemnitee for any legal or any other fees or expenses incurred
by it in connection with investigating or defending any such Loss; provided
that the Company shall not be liable to an Indemnitee to the extent that any
such Loss arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement, or document incorporated by reference, in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Indemnitee specifically for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement.


 


(b)           Indemnification by Participating Holders.  As a condition to including any Registrable
Securities in any registration statement, the Company shall have received an
undertaking reasonably satisfactory to it from each Participating Holder so
including any Registrable Securities to, severally and not jointly, indemnify
and hold harmless, to the fullest extent permitted by law, (i) the
Company, each director and officer of the Company, and each other Person, if
any, who controls the Company (within the meaning of the Securities Act or
Exchange Act) and (ii) any underwriters of the Registrable Securities,
their officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act or the Exchange Act), from and against any
Losses to which such indemnified parties have become or may become subject
under the Securities Act or otherwise, insofar as such Losses arise out of,
relate to or are based upon any statement or alleged statement in or omission
or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, but only to the extent such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished by such Participating Holder
to the Company specifically for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement, and such Participating Holder shall reimburse such indemnified
party for any reasonable legal or any other 


 


26

















 


fees or expenses reasonably incurred by them in
connection with investigating or defending any such Loss; provided, however,
that no Participating Holder shall have any liability under clause (ii) above
to an underwriter or its officers, directors or controlling Persons if the
written information furnished by such Participating Holder was corrected, such
corrected information was included in a subsequent prospectus which was timely
delivered to such underwriter, and such underwriter failed to deliver such
corrected prospectus to the purchaser of the Registrable Securities.  Each Participating Holder shall also
indemnify and hold harmless all other prospective sellers and Participating
Holders, their respective Affiliates, officers, directors, successors, assigns,
members, partners, stockholders, employees, advisors, representatives, and
agents, and each Person who controls (within the meaning of the Securities Act
or the Exchange Act) any such seller or Participating Holder to the same extent
as provided above with respect to indemnification of the Company and
underwriters.  Notwithstanding the
foregoing, the aggregate liability of a Participating Holder under this Section 2.6(b) shall
be limited to its Participating Holder Cap in respect of the offering giving
rise to such liability, except in the case of willful fraud by such
Participating Holder.


 


(c)           Notices of Claims. 
Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in Section 2.6(a) or
Section 2.6(b), such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to
such indemnifying party of the commencement of such action or proceeding; provided,
however, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under Section 2.6(a) or Section 2.6(b), except to the extent
that the indemnifying party is actually and materially prejudiced by such
failure to give notice, and shall not relieve the indemnifying party from any
liability which it may have to the indemnified party otherwise than under this Section 2.6.


 


(d)           Defense of Claims. 
In case any such action or proceeding is brought against an indemnified
party, except as provided for in the next sentence, the indemnifying party
shall be entitled to participate therein and assume the defense thereof,
jointly with any other indemnifying party, with counsel reasonably satisfactory
to such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by the indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party for any legal expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
costs of investigation and the indemnified party shall be entitled to
participate in such defense at its own expense. 
If (i) the indemnifying party fails to notify the indemnified party
in writing, within 15 days after the indemnified party has given notice of the
action or proceeding, that the indemnifying party will indemnify the
indemnified party from and against all Losses the indemnified party may suffer
resulting from, arising out of, relating to, in the nature of, or caused by the
claim, (ii) the indemnifying party fails to provide the indemnified party
with evidence acceptable to the indemnified party that the indemnifying party
will have the financial resources to defend against the claim or proceeding and
fulfill its indemnification obligations hereunder, (iii) after electing to
participate in and assume the defense of such action or proceeding, the
indemnifying party fails to defend diligently the action or proceeding within
10 Business Days after receiving notice of such failure from such indemnified
party, (iv) such indemnified party reasonably shall have concluded (upon
advice of its counsel) that there may be one or more legal 


 


27

















 


defenses available to such indemnified party or
other indemnified parties which are not available to the indemnifying party, or
(v) if such indemnified party reasonably shall have concluded (upon advice
of its counsel) that, with respect to such claims, the indemnified party and
the indemnifying party may have different, conflicting, or adverse legal
positions or interests then, in any such case, the indemnified party shall have
the right to assume or continue its own defense and the indemnifying party
shall be liable for any fees and expenses therefor.


 


(e)           Consent to Entry of Judgment and Settlements.  No indemnifying party shall be liable for any
settlement of any action or proceeding effected without its written consent,
which consent shall not be unreasonably withheld, provided, that, in the
case where the indemnifying party shall have failed to take any of the actions
listed in clauses (i), (ii) or (iii) of the last sentence of Section 2.6(d),
the indemnified party shall have the right to compromise or settle such action
on behalf of and for the account, expense, and risk of the indemnifying party
and the indemnifying party will remain responsible for any Losses the
indemnified party may suffer resulting from, arising out of, relating to, in
the nature of, or caused by the action or proceeding to the fullest extent
provided in this Section 2.6.  No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an
unconditional release of the indemnified party from all liability arising out
of such action or claim, (B) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party and (C) does not require any action other than the payment of money
by the indemnifying party.


 


(f)            Contribution. 
If for any reason the indemnification provided for in Sections 2.6(a), (b) or
(g) is unavailable to an indemnified party or insufficient in respect of
any Losses referred to therein, then, in lieu of the amount paid or payable
under Sections 2.6(a), (b) or (g), the indemnifying party shall contribute
to the amount paid or payable by the indemnified party as a result of such Loss
(i) in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand, and the indemnified party on the other,
with respect to the statements or omissions which resulted in such Loss, as
well as any other relevant equitable considerations, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law
or if the allocation provided in this clause (ii) provides a greater
amount to the indemnified party than clause (i) above, in such proportion
as shall be appropriate to reflect not only the relative fault but also the
relative benefits received by the indemnifying party and the indemnified party
from the offering of the securities covered by such registration statement as
well as any other relevant equitable considerations.  The relative fault shall be determined by a
Selected Court with reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the indemnifying
party or the indemnified party and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission.  The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this Section 2.6(f) were to be determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in the preceding sentence of this Section 2.6(f).  No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to 


 


28

















 


contribution from any Person who was not guilty of
such fraudulent misrepresentation.  The
amount paid or payable by an indemnified party as a result of the Losses
referred to in Sections 2.6(a), (b) or (g) shall be deemed to
include, subject to the limitations set forth in Sections 2.6(a), (b) and
(g), any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.  Notwithstanding anything in this Section 2.6(f) to
the contrary, no Participating Holder shall be required to contribute any
amount in excess of its Participating Holder Cap in respect of the offering to
which the Losses of the indemnified parties relate, except in the case of
willful fraud by such Participating Holder.


 


(g)           Other Indemnification.  Indemnification and contribution similar to
that specified in the preceding subsections of this Section 2.6 (with
appropriate modifications) shall be given by the Company and each Participating
Holder (subject to its Participating Holder Cap) with respect to any required
registration or other qualification of securities under state or blue sky law
or regulation.  The indemnification
agreements contained in this Section 2.6 shall be in addition to any other
rights to indemnification or contribution which any indemnified party may have
pursuant to law or contract and shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Indemnitee
or other indemnified party and shall survive the transfer of any of the
Registrable Securities by any such party.


 


(h)           Indemnification Payments.  The indemnification and contribution required
by this Section 2.6 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills
are received or a Loss is incurred, but such payments shall not be required to
be made more frequently than monthly.


 


2.7.          Limitation
on Sale of Securities.


 


(a)           For the Company and Others.  If the Company receives a request for
registration pursuant to an underwritten offering of Registrable Securities
pursuant to Section 2.1 or 2.2, and if such a request is being implemented
or has not been withdrawn or abandoned, the Company agrees that (i) the
Company shall not effect any public or private offer, sale, distribution or
other disposition of any of its equity securities or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company or effect any registration of any of such securities under the
Securities Act (in each case, other than (x) as part of such registration,
(y) option grants to employees pursuant to the Company’s 2007 Stock Option
Plan or the 2010 Stock Option Plan, which grants received the Requisite
Approval or the approval of the Board (or a committee thereof), including the
approval of at least one NMP Director (provided at least one NMP Director is a
member of the Board), or the grant of other rights under any other equity
incentive plan, the adoption of which plan received the Requisite Approval and
which grants received the Requisite Approval, or the approval of the Board (or
a committee thereof), including the approval of at least one NMP Director
(provided at least one NMP Director is a member of the Board), and (z) as
a registration using Form S-8 or any successor or similar form which is
then in effect), whether or not for sale for its own account, during the period
beginning on the date the Company receives such request until 180 days after
the effective date of such registration (or such shorter period as the managing
underwriter(s) may require) and (ii) the Company shall use its best
efforts to obtain from each of its officers, directors and Beneficial Owners of
5% or more of Common Stock, an agreement not to effect any public or private
offer, sale, distribution or other disposition of Common Stock or 


 


29

















 


Convertible Securities during the period referred to
in clause (i) of this paragraph. 
The Company agrees to cause each Beneficial Owner of Common Stock or
Convertible Securities purchased or otherwise acquired from the Company (other
than in a public offering) at any time after the date of this Agreement to agree
not to effect any public or private offer, sale, distribution or other
disposition of any such securities during the period referred to in clause (i) of
the preceding sentence.


 


(b)           For the Holders. 
If the Company receives a request for registration pursuant to an
underwritten offering of Registrable Securities pursuant to Section 2.1 or
2.2 (and if such a request is being implemented or has not been withdrawn or
abandoned), each Holder 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 Registrable Securities or Convertible
Securities (other than as a part of such registration) during the 180-day
period in the case of an initial public offering of Common Stock, or the 90-day
period in the case of any other underwritten offering, in each case beginning
on the effective date of such registration statement (or such shorter period as
the managing underwriter(s) may require) (the “Restricted Period”),
provided that:


 


(i)            each
Holder has received the written notice required by Section 2.1(a) or
2.2(a), as applicable,


 


(ii)           in
connection with such underwritten offering, each officer and director of the
Company is subject to restrictions substantially equivalent to those imposed on
the Holders, and


 


(iii)          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 Restricted
Period, or (B) prior to the expiration of the Restricted Period, the
Company announces that it will release earnings results during the 16-day
period beginning on the last day of the Restricted Period, the restrictions
imposed by this clause (b) 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.


 


2.8.          No
Required Sale.  Nothing in this
Agreement shall be deemed to create an independent obligation on the part of
any of the Holders to sell any Registrable Securities pursuant to any effective
registration statement.


 


2.9.          Rule 144;
Rule 144A; Regulation S.  The
Company covenants that, at its own expense, it will file the reports required
to be filed by it under the Securities Act and the Exchange Act, and it will
take such further action as any Holder may reasonably request, all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rules 144, 144A or Regulation S
under the Securities Act or (ii) any similar rule or regulation
hereafter adopted by the SEC.  Upon the
request of a Holder, the Company, at its own expense, will promptly deliver to
such Holder (i) a written statement as to whether it has complied with
such requirements (and such Holder shall be entitled to rely upon the accuracy
of such written statement), (ii) a copy of the most recent annual or
quarterly report of the Company and (iii) such 


 


30

















 


other
reports and documents as such Holder may reasonably request in order to avail
itself of any rule or regulation of the SEC allowing it to sell any
Registrable Securities without registration.


 


2.10.        Adjustments.  In the event of any change in the
capitalization of the Company as a result of any stock split, stock dividend,
reverse split, combination, recapitalization, merger, consolidation, or
otherwise, the provisions of this Section 2 shall be appropriately
adjusted.  The Company agrees that it
shall not effect or permit to occur any combination or subdivision of shares
which would adversely affect the ability of the Holders to include any Registrable
Securities in any registration contemplated by this Agreement or the
marketability of such Registrable Securities in any such registration.  Subject to Section 4, the Company agrees
that it will take all steps necessary to effect a combination or subdivision of
shares if, in the judgment of the Majority Participating Holders or managing
underwriter(s), such combination or subdivision would enhance the marketability
of the Registrable Securities.


 


SECTION 3.           Subsequent Registration Rights; No Inconsistent
Agreements.


 


3.1.          Limitations
on Subsequent Registration Rights. 
From and after the date of this Agreement until the Holders shall no
longer hold any Registrable Securities, the Company shall not enter into an
agreement that grants a holder or prospective holder of any securities of the
Company demand or incidental registration rights that by their terms are not
subordinate (including with respect to matters relating to priority of
participation in the event the size of the offering is cut back) to the
registration rights granted to the Holders in this Agreement.  In addition, if after the date of this
Agreement the Company enters into any agreement with respect to the
registration of any of its equity securities in compliance with the foregoing sentence,
and any of the terms contained therein are more favorable to, or less
restrictive on, the other party thereto than the terms and conditions contained
in this Agreement (insofar as they are applicable) with respect to the Holders,
then the terms of this Agreement shall immediately be deemed to have been
amended without further action by the Company or the Holders so that the
Holders shall be entitled to the benefit of any such more favorable or less
restrictive terms or conditions.


 


3.2.          No
Inconsistent Agreements.  The Company
will not, on or after the date of this Agreement, enter into any agreement with
respect to its securities which is inconsistent with the rights granted to the
Holders in Section 2 or otherwise conflicts with the provisions of Section 2,
other than any customary lock-up agreement with the underwriters in connection
with any offering effected hereunder, pursuant to which the Company shall agree
not to register for sale, and the Company shall agree not to sell or otherwise
dispose of, Common Stock or any Convertible Securities for a specified period
(not to exceed 180 days) following such offering.  The Company warrants that the rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with any other agreements to which the Company is a party or by
which it is bound.  Other than this
Agreement and the Common Stockholders Agreement, the Company is not bound by
any agreement with respect to its securities granting any registration rights
to any Person.


 


SECTION 4.           Negative Covenants.


 


4.1.          (a)           In addition to any requirements
imposed by the DGCL, the Company shall not, and shall cause each of its
subsidiaries not to, take any of the following 


 


31

















 


actions
without the prior written approval of a majority of the votes entitled to be
cast by the Investors in respect of their shares of Series A Preferred
Stock, Series B Preferred Stock and Common Stock, voting together as a
single class:


 


(i)            consolidate
or merge into or with any other Person, sell, lease, or transfer all or
substantially all of its assets or capital stock to another Person, or enter
into any other similar business combination transaction, or effect a
Liquidation (other than (x) any such transaction entered into solely
between the Company and one or more of its wholly owned subsidiaries or between
one or more wholly owned subsidiaries of the Company, (y) a liquidation,
dissolution or winding-up of a wholly owned subsidiary, or (z) the INO
Acquisition and Ikaria Merger);


 


(ii)           authorize,
issue, sell, offer for sale or solicit offers to buy (by merger or otherwise)
any shares of Common Stock or any Convertible Securities or any other equity or
debt securities or rights to acquire any equity or debt securities of the
Company or any of its subsidiaries, other than (1) issuances of shares of Series B
Preferred Stock (and the issuance of Common Stock upon the conversion thereof)
and Series C Preferred Stock pursuant to the Preferred Stock Purchase
Agreement, (2) issuances of shares of Common Stock, Series A
Preferred Stock, and warrants, options or other rights to purchase Common Stock
or Series A Preferred Stock (and the issuance of Common Stock upon the
conversion of such Series A Preferred Stock or upon exercise of such
warrants, options or other rights) pursuant to the Merger Agreement to holders
of Ikaria securities in the Ikaria Merger upon surrender of those securities, (3) issuances
of shares of Series B Preferred Stock (and the issuance of Common Stock
upon the conversion thereof) and Series C Preferred Stock to effect the
INO Acquisition pursuant to the Sale and Purchase Agreement, (4) the
granting of options to purchase shares of Common Stock (and the issuance of
Common Stock upon the exercise thereof) pursuant to the Company’s 2007 Stock
Option Plan or 2010 Stock Option Plan, in exchange for options to purchase
common stock of Ikaria pursuant to the Merger Agreement, or which grants have
received the Requisite Approval or been approved by the Board (or a committee
thereof), including the approval of at least one NMP Director (provided at
least one NMP Director is a member of the Board), (5) the granting of
other rights pursuant to any other equity incentive plan, the adoption of which
plan received the Requisite Approval and which grants have received the
Requisite Approval or been approved by the Board (or a committee thereof),
including the approval of at least one NMP Director (provided at least one NMP
Director is a member of the Board), (6) the issuance of any equity or debt
securities by a wholly owned subsidiary of the Company to the Company or to
another wholly owned subsidiary of the Company or the issuance of any debt
securities by the Company to a wholly owned subsidiary of the Company, or (7) the
issuance of Common Stock upon the conversion of the Series C Preferred
Stock;


 


(iii)          except
for (A) borrowings and other extensions of credit on the date of Closing
to fund the transactions contemplated by the Sale and Purchase Agreement and (B) borrowings
and other extensions of credit for working capital and other general corporate
purposes in the maximum aggregate amount provided for under the Credit
Agreement incur, create, suffer to exist, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect
to any Indebtedness, or refinance any Indebtedness (including by amendment of
the Credit Agreement), other than (x) Indebtedness incurred by a wholly
owned subsidiary of the Company to the Company or to another wholly owned 


 


32

















 


subsidiary
of the Company or by the Company to a wholly owned subsidiary of the Company or
(y) Indebtedness (other than borrowings and other extensions of credit
under the Credit Agreement) which is permitted by the Credit Agreement to be
outstanding;


 


(iv)          effect
any stock dividend, stock split or other subdivision or combination of shares
of the Company’s capital stock or other recapitalization of the Company;


 


(v)           effect
any redemption, retirement, purchase or other acquisition, directly or
indirectly, of any shares of the Company’s capital stock, other than the
repurchase of shares of Common Stock at the lesser of cost or fair market value
thereof from employees, officers, directors or consultants of or other persons
performing services for the Company or any subsidiary pursuant to agreements
under which the Company has the option to repurchase such shares upon the
occurrence of certain events, such as the termination of employment, or through
the exercise of any right of first refusal, which repurchase does not exceed
$100,000 in any one instance or $250,000 in the aggregate in any fiscal year;


 


(vi)          effect
an initial public offering of any securities of the Company;


 


(vii)         hire
or replace any of the Company’s chief executive officer, chief financial
officer or next two most senior executives (as determined by the Board), or
materially amend the level or form of compensation or benefits payable to, or
other compensation arrangements of, any such officer;


 


(viii)        acquire
any assets other than in the ordinary course of business, including, without
limitation, acquiring any ownership interest in any other Person, or acquire
assets in the ordinary course of business in excess of $5 million for the
Company and its subsidiaries in the aggregate in any fiscal year, other than
the INO Acquisition and the Ikaria Merger;


 


(ix)           adopt
any annual budget or annual business plan or materially amend any such budget
or business plan if adopted;


 


(x)            pay
or declare any dividend or distribution on any shares of its capital stock
(other than dividends from a wholly owned subsidiary to its parent company);


 


(xi)           authorize
or amend any employee option or incentive plan;


 


(xii)          amend,
repeal or change (whether by merger or otherwise) any of the provisions of the
2010 Certificate of Incorporation or bylaws; or


 


(xiii)         agree
or otherwise commit to take any of the actions set forth in any of clauses (i) through
(xii) of this Section 4.1 (unless such agreement or commitment is
expressly conditioned on obtaining the requisite approval of Investors set
forth above).


 


(b)           The provisions of this Section 4.1 shall terminate on
the consummation of the sale of shares pursuant to a registration statement
relating to the Company’s initial public offering of Common Stock.


 


33














 


4.2.          At
any time prior to the Section 4 Termination Date, the Company shall not,
and shall cause each of its subsidiaries not to, without the prior written
approval of the NMP Entities:


 


(a)           take any of the actions set forth in Section 4.1
(other than clauses (viii), (ix) and (xi) thereof (and clause (xiii) insofar
as it relates to any of the foregoing clauses)); or


 


(b)           agree or otherwise commit to take any of such actions set
forth in clause (a) of this Section 4.2 (unless such agreement or
commitment is expressly conditioned on obtaining the approval of the NMP
Entities).


 


4.3.          The
Company shall not, and shall cause each of its subsidiaries not to, enter into
any transaction with an Affiliate of the Company without the prior written
approval of a majority of either (i) the disinterested members of the
Board, or (ii) if a stockholder vote is required under applicable law or
an Investor vote is required pursuant to the provisions of Section 4.1 or
there are no disinterested members of the Board, a majority of the votes
entitled to be cast by the disinterested holders of the capital stock of the
Company, or by the disinterested Investors, as applicable (in each case, voting
as a single class), except for the transactions consummated from time to time
pursuant to the Definitive Agreements, provided that the payment of any
management or advisory fee to an Affiliate of the Company shall require the
approval of a majority of the disinterested Designated Directors.


 


4.4.          The
Company shall not, and shall cause each of its subsidiaries not to, take any of
the following actions (whether by amendment to such Entity’s governing
documents, merger or otherwise) without the prior written approval of a
majority of the votes entitled to be cast by the Series A Holders, voting
as a separate class:


 


(a)           amend, repeal or change the rights, preferences or
privileges of the shares of Series A Preferred Stock (as in effect
immediately after the Closing) in any manner that would affect adversely the
shares of Series A Preferred Stock in a manner different from the effect
on shares of any other class or series of capital stock of the Company;


 


(b)           increase or decrease (other than by conversion of the Series A
Preferred Stock into Common Stock) the total number of authorized shares of Series A
Preferred Stock; or


 


(c)           agree or otherwise commit to take any of the actions set
forth in clause (a) or (b) of this Section 4.4 (unless such
agreement or commitment is expressly conditioned on obtaining the requisite
approval of the Series A Holders set forth above).


 


4.5.          The
Company shall not, and shall cause each of its subsidiaries not to, take any of
the following actions (whether by amendment to such Entity’s governing
documents, merger or otherwise) without the prior written approval of a majority
of the votes entitled to be cast by the Series B Holders, voting as a
separate class:


 


(a)           amend, repeal or change the rights, preferences or
privileges of the shares of Series B Preferred Stock (as in effect
immediately after the Closing ) in any manner 


 


34

















 


that would affect adversely the shares of Series B
Preferred Stock in a manner different from the effect on shares of any other
classes or series of capital stock of the Company;


 


(b)           create, authorize the creation of, or issue any other
security convertible into or exercisable for any equity security having rights,
preferences or privileges senior to or on parity with the Series B
Preferred Stock;


 


(c)           increase or decrease (other than by conversion of the Series B
Preferred Stock into Common Stock) the total number of authorized shares of Series B
Preferred Stock; or


 


(d)           agree or otherwise commit to take any of the actions set
forth in any of clauses (a) through (c) of this Section 4.5
(unless such agreement or commitment is expressly conditioned on obtaining the
requisite approval of the Series B Holders set forth above).


 


SECTION 5.           Rights of First Offer to Purchase Offered Securities.


 


5.1.          Rights
of First Offer to Purchase Offered Securities.


 


(a)           Offered Securities. 
Except for Permitted Issuances, if, at any time after the Effective
Date, the Company desires to sell (including, without limitation, out of
treasury) any shares of Common Stock, any Convertible Securities or any other
equity securities of the Company or rights to acquire such equity securities
(collectively, the “Offered Securities”), such issuance shall be subject
to the right of first offer to purchase of each Series B Holder, as set
forth in this Section 5.  The right
of first offer granted by this Section 5 with respect to any sale of
Offered Securities shall not obviate the requirement that the Company obtain
the Requisite Approval for such sale pursuant to Section 4.


 


(b)           Right of First Offer.  The Company shall offer to sell to each Series B
Holder, and each Series B Holder shall have the right, but not the
obligation, to purchase from the Company, that number of such Offered
Securities equal to the aggregate number of such Offered Securities proposed to
be issued by the Company multiplied by such Series B Holder’s Pre-emptive
Rights Percentage.  If any Series B
Holder shall decline to purchase all of its Pre-emptive Rights Percentage of
the Offered Securities (the securities which any Series B Holder shall
have declined to purchase pursuant to its rights under this Section 5.1(b) being
referred to herein as the “Refused Securities”), then


 


(i)            in
the case of a proposed sale to a strategic investor (but subject to the
provisions of Section 5.5(c)), the Company shall be entitled to sell the
Refused Securities to such strategic investor within the time period set forth
in, and otherwise in compliance with, the provisions of Section 5.4; and


 


(ii)           in
the case of a proposed sale to a Person other than a strategic investor, each Series B
Holder that has elected to purchase its Pre-emptive Rights Percentage of such
Offered Securities may also purchase the aggregate number of Refused Securities
multiplied by such Series B Holder’s Pre-emptive Rights Percentage; and
the allocation of Refused Securities set forth in this Section 5.1(b) shall
be repeated with respect to 


 


35

















 


any
Refused Securities not allocated for purchase until all Refused Securities have
been allocated for purchase by Series B Holders or until no Series B
Holders desire to purchase additional Refused Securities.


 


5.2.          Issuance
Notice.  The Company shall give each Series B
Holder written notice of any proposed issuance of Offered Securities, which
notice shall set forth any proposed terms and conditions of such issuance,
including, at a minimum, the amount of the Offered Securities proposed to be
issued, the proposed purchase price therefor, the timing and method of payment
of the purchase price and whether the sale is proposed to be to a strategic
investor and, if then known, the identity thereof (the “Issuance Notice”).


 


5.3.          Election
Notice.  Each Series B Holder
shall be entitled to purchase its portion of the Offered Securities, as
determined pursuant to Section 5.1(b), at the same price, on the same
terms and at the same time as the Offered Securities are proposed to be issued
to the other Series B Holders (which shall be at no greater price and on
no less favorable terms to the Series B Holder than were set forth in the
Issuance Notice) by the delivery of a written notice to the Company, within 15
Business Days after the delivery of the Issuance Notice (such 15th Business Day, the “Last Election Date”),
of the Series B Holder’s election to purchase such Offered Securities (the
“Election Notice”).  Any Series B
Holder that fails to timely deliver an Election Notice shall be deemed to have
declined to purchase all of its Pre-emptive Rights Percentage of the Offered
Securities.  Each Election Notice shall
set forth the maximum number of Offered Securities which such Series B
Holder desires to purchase (which number may be greater or less than such Series B
Holder’s Pre-emptive Rights Percentage, in order to give effect to Section 5.1(b)(ii))
and such Election Notice shall constitute a binding commitment by such Series B
Holder to purchase up to the number of Offered Securities set forth in its
Election Notice, which commitment may not be revoked without the written
consent of the Company.  In allocating
the Refused Securities pursuant to Section 5.1(b)(ii), the Company shall
not allocate to any Series B Holder a number of Offered Securities that
would result in such Series B Holder’s being required to purchase a
greater number of Offered Securities than that set forth in such Series B
Holder’s Election Notice, without the consent of such Series B
Holder.  The Company shall give written
notice to each Series B Holder which has timely delivered an Election
Notice of the number of Offered Securities which such Series B Holder shall
be required to purchase (the “Purchase Notice”), which Purchase Notice
shall be delivered to each Series B Holder within five Business Days
following the Last Election Date.  The
closing of the purchase of the Offered Securities shall take place on the date
set forth in the Purchase Notice, which shall be the same date for all Series B
Holders that are purchasing Offered Securities and shall be a date that is no
earlier than 15 Business Days following the date of the Purchase Notice, unless
all such purchasing Series B Holders otherwise agree (provided that, if
regulatory approval is required to be obtained by any Series B Holder,
then the closing of the purchase by such Series B Holder shall take place
on the later of the date set forth in the Purchase Notice and five Business
Days following receipt of regulatory approval).


 


5.4.          Terms
of Purchase and Sale; Revival of Rights. 
If the Series B Holders elect to purchase less than all of the
Offered Securities, then, subject to the provisions of Section 5.5(c), the
Company may sell all or a portion of the remaining Offered Securities to one or
more other Persons (which must be a strategic investor, if the Issuance Notice
stated that the sale of the Offered Securities is proposed to be to a strategic
investor), for at least the same price and on no 


 


36

















 


less
favorable terms to the Company than were set forth in the Issuance Notice,
within 90 days following the Last Election Date.  If the Company does not consummate the sale
of all or part of the remaining Offered Securities to one or more of such
Persons within such time period, the rights provided in this Section 5
shall be deemed to be revived with respect to the Offered Securities that were
not so purchased, and such Offered Securities may not be sold unless first
re-offered to the Series B Holders in accordance with this Section 5.


 


5.5.          Additional
Provisions.


 


(a)           Exercise of Rights. 
Notwithstanding anything to the contrary in this Section 5, no Series B
Holder shall have any rights pursuant to Section 5.1 with respect to any
Offered Securities unless such Series B Holder (i) is an Accredited
Investor and (ii) elects to purchase a number of such Offered Securities
(which may be less than such Series B Holder’s full Pre-emptive Rights
Percentage) which is at least equal to the lesser of (x) the number of
such Offered Securities which will require an investment of $500,000 and (y) the
aggregate number of such Offered Securities multiplied by such Series B
Holder’s Pre-emptive Rights Percentage.


 


(b)           No Waiver; Breach. 
The election by any Series B Holder not to exercise its rights to
purchase any Offered Securities under this Section 5 in any instance shall
not affect such Series B Holder’s right to participate in any subsequent
proposed issuance of Offered Securities. 
Any issuance of Offered Securities by the Company without first giving
the Series B Holders the rights set forth in this Section 5 shall be
void and of no force and effect, and the Company shall not register such
issuance on its books and records.


 


(c)           Right of First Offer.  In the event that the Company proposes to
sell all or any portion of the Refused Securities to an IG Company, the Company
must first offer to sell to Linde and Linde AG, and Linde and Linde AG shall
have the right, but not the obligation, to purchase all or any portion of the
Refused Securities proposed to be sold to the IG Company on the terms and
conditions, and at the purchase price, set forth in the Issuance Notice, and in
accordance with the provisions (including the provisions as to timing, with the
reference to IG Offer Notice being instead a reference to the written notice by
the Company to Linde and Linde AG that the Company proposes to sell Refused
Securities to an IG Company) set forth in Section 6, as though the sale of
the Refused Securities were a transaction described in Section 6.1.


 


5.6.          Termination.  The provisions of this Section 5 shall
terminate on the consummation of the sale of shares pursuant to a registration
statement relating to the Company’s initial public offering of Common Stock and
shall not be applicable with respect to the sale of any securities of the
Company in such initial public offering.


 


SECTION 6.           Rights of First Refusal to Purchase the Company.


 


6.1.          Rights
of First Refusal.  If, at any time,
the Company (or any holder of Capital Stock of the Company) receives a bona
fide offer from an IG Company to purchase the Company, whether by means of the
purchase of all or substantially all of the assets or Capital Stock of the
Company, a merger, a consolidation or other business combination, which the
Company desires to accept (an “IG Offer”), the Company shall offer to
sell to Linde and Linde 


 


37

















 


AG
(all references to Linde in this Section 6 being to each of Linde and
Linde AG), and Linde shall have the right, but not the obligation, to purchase,
the Company on the same terms and subject to the same conditions as are
contained in the IG Offer and on the terms and subject to the conditions set
forth in this Section 6.


 


6.2.          Notice
of Offer.  Upon receipt of an IG
Offer, the Company shall promptly provide Linde with written notice of the IG
Offer, which notice shall set forth in reasonable detail the proposed terms and
conditions of the IG Offer, including, without limitation, the structure of the
transaction, the amount and form of the purchase price, and a summary of any
other material terms of the proposed purchase (including, without limitation,
the timing of the closing, any conditions to the IG Company’s obligation to
consummate the purchase, and any financial and other material post-closing
obligations of the Company or its stockholders and of the IG Company) (the “IG
Offer Notice”).  Any portion of the
purchase price proposed in the IG Offer which is not in the form of cash or
securities of a class which is publicly traded shall be valued by an
independent valuation or appraisal firm selected by the Company, and any
portion of the purchase price proposed in the IG Offer which is in the form of
securities of a class which is publicly traded shall be valued at the average
of the closing prices for the 10 trading days preceding the date of the IG
Offer Notice.


 


6.3.          Notice
of Exercise.  Linde shall be entitled
to purchase the Company on the terms and subject to the conditions set forth in
the IG Offer Notice by the delivery of a written notice to the Company, within
30 days after the delivery of the IG Offer Notice (the date such election is
made, the “Linde Election Date”), of Linde’s election to do so (the “Linde
Election Notice”).  The Linde
Election Notice, if timely delivered, shall constitute a binding commitment by
Linde to purchase the Company on the terms and subject to the conditions set
forth in the IG Offer Notice and on the terms and subject to the conditions set
forth in this Section 6 (provided, that if, but only to the extent,
the IG Offer included any non-cash consideration, Linde may substitute non-cash
consideration having the same value, determined in the same manner as specified
in Section 6.2 for valuing any non-cash consideration forming part of the
IG Offer), which commitment may not be revoked without the written consent of
the Company.


 


6.4.          Terms
of Purchase and Sale.


 


(a)           Following the delivery of the Linde Election Notice, the
Company (or if the purchase is structured as a purchase of Capital Stock, the
Company or the holders of a majority of the outstanding Capital Stock, or both
(individually and collectively, the “Seller”)) and Linde shall endeavor
to enter into a definitive purchase agreement (the “Definitive Purchase
Agreement”) providing for the purchase by Linde of the Company on the terms
and subject to the conditions set forth in the IG Offer Notice (subject to Section 6.3),
and the closing of the purchase shall take place within five Business Days
after receipt of all regulatory approvals without which the purchase may not be
legally consummated, but in any event within nine months of the date of the
signing of the Definitive Purchase Agreement (the day that is nine months from
the date of signing of the Definitive Purchase Agreement, the “Outside
Closing Date”).  The Seller may at
any time prior to executing the Definitive Purchase Agreement determine not to
proceed with the proposed transaction, in which event the transaction shall be 


 


38

















 


abandoned and the Company may not be sold to an IG
Company without first complying with the provisions of this Section 6.


 


(b)           The Seller and Linde shall negotiate in good faith the
terms of a Definitive Purchase Agreement and any ancillary agreements related
thereto, and if the Seller and Linde fail to enter into a Definitive Purchase
Agreement within 45 days following the Linde Election Date (such 45th day, the “End
Date”), then the Definitive Purchase Agreement shall be deemed to have been
rejected by Linde.  In that event, for a
period of six months following the End Date the Seller shall be free to enter
into a definitive purchase agreement with the IG Company, in a form no less
favorable to the Seller than the form last proposed by the Seller and rejected
or deemed rejected by Linde, and for a purchase price (determined as set forth
in Section 6.2, if applicable) which is not less than the purchase price
set forth in the IG Offer Notice, and the Seller shall have nine months
following the entry into such definitive purchase agreement to consummate the
purchase thereunder.  If a definitive
purchase agreement complying with the terms of this paragraph (b) is not
entered into with the IG Company within such six-month period, or the purchase
thereunder is not consummated within such nine-month period, then the rights of
Linde provided in this Section 6 shall be deemed to be revived, and the
Company may not be sold to an IG Company without first complying with the
provisions of this Section 6.


 


(c)           If the Seller and Linde enter into a Definitive Purchase
Agreement, but the closing thereunder does not occur (x) by the Outside
Closing Date for reasons other than the breach of the Definitive Purchase
Agreement by the Seller, or (y) because Linde breaches its obligation to
close or breaches any other provision of the Definitive Purchase Agreement as a
result of which the Seller is permitted to terminate the Definitive Purchase
Agreement, then Linde shall, as of the Outside Date or date of breach by Linde,
as applicable, be deemed to have forfeited all its rights under this Section 6,
and the provisions of this Section 6 shall no longer apply, either to the
IG Offer or to any other proposed sale of the Company to an IG Company.


 


(d)           If Linde fails to timely deliver a Linde Election Notice
or notifies the Company that it is declining to purchase the Company on the
terms and subject to the conditions set forth in the IG Offer Notice, then the
Seller shall be free to accept the IG Offer, provided that if a
definitive purchase agreement is not entered into with the IG Company on terms
and subject to conditions no less favorable to the Seller than the terms and
conditions set forth in the IG Offer Notice within the six-month anniversary of
(x) the last date on which Linde could have timely delivered a Linde
Election Notice or (y) the date Linde notifies the Company that it is
declining to purchase the Company, as applicable, or if the purchase thereunder
is not consummated within nine months following the entry into such definitive
purchase agreement, then the rights of Linde provided in this Section 6
shall be deemed to be revived, and the Company may not be sold to an IG Company
without first complying with the provisions of this Section 6.


 


6.5.          Recusal.  The Linde Director shall recuse himself or
herself from all deliberations of the Board relating to any offer received by
an IG Company to purchase the Company or any exercise by Linde of its rights
under this Section 6.


 


39

















 


6.6.          Termination.  The provisions of this Section 6 shall
terminate on the consummation of the sale of shares pursuant to a registration
statement relating to the Company’s initial public offering of Common Stock.


 


SECTION 7.           Rights and Restrictions on Capital Stock.


 


7.1.          No
Sale or Transfer of Capital Stock. 
No Holder shall sell, transfer, assign, exchange, pledge, encumber or
otherwise dispose of any Capital Stock held by such Holder or grant any option
or right to purchase such Capital 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 Capital
Stock held by such Holder (each, a “Transfer”), except that:


 


(a)           a Holder may convert shares of Preferred Stock or Series C
Preferred Stock into Common Stock;


 


(b)           an Original Holder that is an Entity may Transfer any of
its shares of Capital Stock to any Affiliate of such Original Holder;


 


(c)           an Original Holder that is an individual may Transfer any
of his or her shares of Capital Stock to:


 


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


 


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


 


(iii)          a
trust solely for the benefit of such Original Holder or any Family Member, the
trustees of which are solely such Original Holder and/or a corporation or
partnership which is controlled solely by such Original Holder;


 


(d)           a Holder may sell Registrable Securities in a public
offering effected pursuant to Section 2.1 or 2.2;


 


(e)           following the 18-month anniversary of the Closing, a
Holder may sell shares of Preferred Stock to a Third Party or Third Parties
subject to compliance with Sections 7.2 and 7.3;


 


(f)            following the 18-month anniversary of the Closing, a
Holder may sell shares of Preferred Stock in exercise of its rights under Section 7.3;


 


(g)           a Holder may sell shares of Capital Stock if required by Section 7.4;


 


(h)           a Holder that has executed the Common Stockholders
Agreement may sell any shares of Common Stock that are subject to the
provisions of the Common Stockholders Agreement pursuant to and in compliance
with the provisions of Section 3 thereof;


 


40

















 


(i)            following the consummation of the sale of shares pursuant
to a registration statement relating to the Company’s initial public offering
of Common Stock, any Holder may distribute to its partners, members or other
equity holders shares of Common Stock into which its shares of Preferred Stock
or Series C Preferred Stock were converted (subject to any applicable
lock-up agreement entered into between such Holder and the underwriters in
connection with any offering of debt or equity securities of the Company or
rights to acquire such debt or equity securities); and


 


(j)            following the consummation of the sale of shares pursuant
to a registration statement relating to the Company’s initial public offering
of Common Stock, any of the NMP Entities, ARCH, Venrock and Linde may sell
shares of Common Stock into which its shares of Preferred Stock or Series C
Preferred Stock were converted (subject to any applicable securities laws
and/or lock-up agreement entered into between such Holder and the underwriters
in connection with any offering of debt or equity securities of the Company or
rights to acquire such debt or equity securities);


 


(each
Person to whom shares are Transferred pursuant to clause (b), (c), (e) or (f) above
being referred to herein as a “Permitted Transferee”); provided,
that, for any Transfer to a 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 to this Agreement) satisfactory to the Company
by which it agrees to be bound, as a Series A Holder or a Series B
Holder, as applicable, by all of the terms of this Agreement as if it had
originally been a party hereto; and provided, further, that for
any Transfer to a Permitted Transferee that is a spouse of an Original Holder
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 Original
Holder or the Company in the event of a divorce between such spouse and such
Original Holder; and provided, further, that any Permitted
Transferee pursuant to paragraph (b), (c)(ii) or (c)(iii) of this Section 7.1
shall agree in writing to Transfer any shares of Capital Stock which it may own
back to the Original Holder 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 Capital Stock back to the Original Holder thereof or to any Person
who would be a Permitted Transferee of the Original Holder, subject to
compliance by such Person with this Section 7.1, and, upon such
compliance, such Person shall likewise be a Permitted Transferee.


 


7.2.          Right
of First Offer.


 


(a)           If, at any time following the 18-month anniversary of the
Closing, a Holder (a “Transferring Holder”) desires to sell any shares
of its Preferred Stock to a Third Party (the “Offered Stock”), other
than in a registered public offering pursuant to Section 2.1 or 2.2 or
pursuant to clause (b), (c), (f) or (g) of Section 7.1, such
sale shall be subject to the right of first offer of each Series B Holder
as set forth in this Section 7.2.


 


(b)           The Transferring Holder shall offer to sell to each Series B
Holder, and each Series B Holder shall have the right, but not the
obligation, to purchase from the Transferring Holder, that number of shares of
Offered Stock equal to the aggregate number of 


 


41

















 


shares of Offered Stock proposed to be sold by the
Transferring Holder multiplied by such Series B Holder’s Offered
Percentage.  If any Series B Holder
shall decline to purchase all of its Offered Percentage of the Offered Stock
(the stock which any Series B Holder shall have declined to purchase
pursuant to its rights under this Section 7.2(b) being referred to
herein as the “Refused Stock”), each Series B Holder that has
elected to purchase its Offered Percentage of such Offered Stock may also
purchase the aggregate number of shares of Refused Stock multiplied by such Series B
Holder’s Offered Percentage; and the allocation of Refused Stock set forth in
this Section 7.2(b) shall be repeated with respect to any shares of
Refused Stock not allocated for purchase until all shares of Refused Stock have
been allocated for purchase by Series B Holders or until no Series B
Holder desires to purchase additional Refused Stock.


 


(c)           The Transferring Holder shall give each Series B
Holder at least 30 days prior written notice of any proposed sale of Offered
Stock, which notice shall set forth the proposed terms and conditions of such
sale, but shall include, at a minimum, the amount of the Offered Stock proposed
to be sold, the proposed purchase price therefor and the timing and method of payment
of the purchase price (the “Transfer Notice”).  The Transfer Notice shall also state that the
Series B Holders will have the right to participate, pursuant to Section 7.3,
in any sale by the Transferring Holder of any Offered Stock that is not sold to
the Series B Holders pursuant to Section 7.2.


 


(d)           Each Series B Holder shall be entitled to purchase
its portion of the Offered Stock, as determined pursuant to Section 7.2(b),
at the same price, on the same terms and at the same time as the Offered Stock
is proposed to be sold to the other Series B Holders, which shall be at no
lower price and on no less favorable terms to such Series B Holders than
were set forth in the Transfer Notice, by the delivery of a written notice to
the Transferring Holder, within 10 Business Days after the delivery of the
Transfer Notice (such 10th Business Day, the “Last Transfer Election
Date”), of the Series B Holder’s election to purchase such Offered
Stock (the “Transfer Election Notice”). 
Any Series B Holder that fails to timely deliver a Transfer
Election Notice shall be deemed to have declined to purchase all of its Offered
Percentage of the Offered Stock.  Each
Transfer Election Notice shall set forth the maximum number of shares of
Offered Stock which such Series B Holder desires to purchase, which number
may be greater or less than such Series B Holder’s Offered Percentage, and
such Transfer Election Notice shall constitute a binding commitment by such Series B
Holder to purchase up to the number of shares of Offered Stock set forth in its
Transfer Election Notice, which commitment may not be revoked without the
written consent of the Transferring Holder. 
In allocating the Refused Stock pursuant to Section 7.2(b), the
Transferring Holder shall not allocate to any Series B Holder a number of
shares of Offered Stock that would result in such Series B Holder’s being
required to purchase a greater number of shares of Offered Stock than that set
forth in such Series B Holder’s Transfer Election Notice, without the
consent of such Series B Holder. 
The Transferring Holder shall give written notice to each Series B
Holder which has timely delivered a Transfer Election Notice of the number of
shares of Offered Stock which such Series B Holder shall be required to
purchase (the “Transfer Purchase Notice”), which Transfer Purchase
Notice shall be delivered to each Series B Holder within five Business
Days following the Last Transfer Election Date. 
The closing of the purchase of the Offered Stock shall take place on the
date set forth in the Transfer Purchase Notice, which shall be the same date
for all Series B Holders that are purchasing Offered Stock and shall be a
date that is no earlier than 15 Business Days following the date of the
Transfer Purchase Notice, unless all such 


 


42

















 


purchasing Series B Holders otherwise agree (provided
that, if regulatory approval is required to be obtained by any Series B
Holder, then the closing of the purchase by such Series B Holder shall
take place on the later of the date set forth in the Transfer Purchase Notice
and five Business Days following receipt of regulatory approval).  At such closing, the Transferring Holder
shall deliver to each purchaser of shares of Offered Stock (x) a written instrument
in which the Transferring Holder shall represent and warrant that it is
conveying to such purchaser good and valid title to such shares, free and clear
of all liens, security interests, encumbrances and adverse claims of any kind
and nature (other than those pursuant to this Agreement), and (y) the
certificates representing such 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 the
Transferring Holder.


 


(e)           If the entire amount of Offered Stock is not subscribed
for by one or more of the Series B Holders (including, for avoidance of
doubt, Permitted Transferees), the Transferring Holder may offer the shares of
Offered Stock that have not been subscribed for by the Series B Holders
(the “Balance of the Offered Stock”) to a Third Party.  If the Third Party advises the Transferring
Holder that it only wishes to purchase the original amount of Offered Stock,
then, at the option of the Transferring Holder, (x) the right of first
offer contained in this Section 7.2 shall not apply to the proposed sale
of the Offered Stock, and the Transferring Holder shall be free to sell all,
but not less than all, of the shares of Offered Stock to a single Third Party,
or (y) the Transferring Holder may consummate the sale of the shares of
Offered Stock subscribed for by the Series B Holders as set forth in
paragraph (d) of this Section 7.2 and either retain or sell to one or
more Third Parties all or a portion of the Balance of the Offered Stock.  If the Third Party advises the Transferring
Holder that it is willing to purchase less than the original amount of Offered
Stock but wishes to purchase a greater number of shares than the Balance of the
Offered Stock (such greater number of shares being referred to as the “Third
Party Portion of the Offered Stock”), then the number of shares to be
purchased by the Series B Holders shall be reduced so as to enable the
Third Party to purchase the Third Party Portion of the Offered Stock (in which
case the Transferring Holder may retain or sell to one or more Third Parties
the Third Party Portion of the Offered Stock and, if the Third Party Portion of
the Offered Stock is sold to such Third Party or Third Parties, the
Transferring Holder shall sell the remaining portion of the Offered Stock to
the Series B Holders that subscribed for shares of Offered Stock in
accordance with their allocations as the same may have been reduced pursuant to
this sentence).  Any sale to the Third
Party shall be for at least the same price and on no less favorable terms to
the Transferring Holder than were set forth in the Transfer Notice and no later
than the 60th day following the Last Transfer Election Date, and subject to compliance
with Section 7.3.  If the
Transferring Holder does not consummate such sale by such 60th day, the rights provided in this Section 7.2
shall be deemed to be revived with respect to the Offered Stock (or remaining
shares of Offered Stock, as applicable), and such Offered Stock (or remaining
shares of Offered Stock, as applicable) may not be sold unless first re-offered
to the Series B Holders in accordance with this Section 7.2.  Any Offered Stock purchased by any Series B
Holder or such other Person or Persons shall be subject to the same rights and
restrictions contained in this Agreement with respect to the Series B
Preferred Stock or Series A Preferred Stock, as applicable, and, if the
purchaser is a Person other than a Holder, it shall be a condition of such sale
that such person execute and deliver a written agreement (which may be in the
form of a counterpart to this Agreement) satisfactory to the Company by which
such Person agrees to be bound, as a Series A


 


43














 


Holder or Series B Holder, as applicable, by
all of the terms of this Agreement as if such Person had originally been a
party hereto.


 


(f)            Notwithstanding anything in
this Agreement to the contrary, a Transferring Holder may not Transfer any
Offered Stock to a Third Party that is an IG Company without the prior written
consent of Linde, which it may give or withhold at its discretion.


 


(g)           The election by any Series B
Holder not to exercise its rights to purchase any Offered Stock under this Section 7.2
in any one instance shall not affect such Series B Holder’s right to
participate in any subsequent proposed sale of Offered Stock.  Any sale of Offered Stock by a Transferring
Holder without first giving the Series B Holders the rights set forth in
this Section 7.2 shall be void and of no force and effect, and the Company
shall not register such sale on the books and records of the Company.


 


7.3.          Participation in Sales of Preferred Stock.


 


(a)           Each Series B Holder,
at such Series B Holder’s option, may participate proportionately in any
sale by a Transferring Holder to a Third Party pursuant to Section 7.2(e) of
any of the shares of Offered Stock that were not sold to the Series B
Holders pursuant to Section 7.2, and the provisions of Section 7.2
shall not apply to such participation. 
In addition to the statement required to be included in the Transfer
Notice, the Transferring Holder shall give written notice to each Series B
Holder, at least 20 Business Days before the closing of any such proposed sale,
of its intention to effect such a sale to a Third Party, which notice shall set
forth the identity of the Third Party, the number of shares of Offered Stock
being sold and the nature and per share amount of consideration to be paid by
the Third Party and shall be accompanied by a copy of the definitive agreements
governing such sale (the “Sale Notice”). 
If the Offered Stock consists of Series B Preferred Stock, then
each Series B Holder (including the Transferring Holder) shall have the
right to sell up to that number of shares of its Series B Preferred Stock
equal to the number of shares set forth in the notice multiplied by such Series B
Holder’s Offered Percentage.  If the
Offered Stock consists of Series A Preferred Stock, then each Series B
Holder shall have the right to sell up to that number of shares of its Series B
Preferred Stock equal to the number of shares set forth in the notice
multiplied by such Series B Holder’s Offered Percentage, and the number of
shares of Offered Stock being sold by the Transferring Holder shall be reduced
accordingly.  Any sale by a Series B
Holder pursuant to this Section 7.3 shall, subject to the provisions of Section 7.5,
be for the same consideration per share, on the same terms and subject to the
same conditions as the sale of shares of Preferred Stock by the Transferring
Holder.  Each Series B Holder shall
give the Transferring Holder written notice, within 10 Business Days after the
delivery of the Sale Notice, of such Series B Holder’s election to
participate in the proposed sale (the “Sale Election Notice”).  Any Series B Holder that fails to timely
deliver a Sale Election Notice shall be deemed to have declined to participate
in the sale with respect to any of its shares of Series B Preferred
Stock.  Each Sale Election Notice shall
set forth the maximum number of shares of Series B Preferred Stock which
such Series B Holder desires to sell, and such Sale Election Notice shall
constitute a binding commitment by such Series B Holder to sell up to the
number of shares of Series B Preferred Stock set forth in its Sale
Election Notice, which commitment may not be revoked without the written
consent of the Transferring Holder.  If a
Series B Holder sells any shares of Series B 


 


44

















 


Preferred Stock pursuant to this Section 7.3,
such Series B Holder shall pay and be responsible for its proportionate
share of the Expenses of Sale and the Sale Obligations.


 


(b)           Notwithstanding the
provisions of Section 7.3(a), from and after the second anniversary of the
Closing, in the event Linde is the Transferring Holder in a sale pursuant to Section 7.2(e) (a
“Linde Sale”), then the NMP Entities shall not be entitled to
participate in Linde’s sale of its Series B Preferred Stock in the Linde
Sale, provided that (x) each of the NMP Entities shall be entitled
to participate in the sale by any other Series B Holder that has elected
to sell shares of its Series B Preferred Stock in the Linde Sale for up to
that number of shares of Series B Preferred Stock equal to the number of
shares of Series B Preferred Stock that would otherwise (absent the
provisions of this clause (x)) be sold by such other Series B Holder in
the Linde Sale, based on the amount set forth in such Series B Holder’s
Sale Election Notice, multiplied by the NMP Entity’s Offered Percentage (it
being understood that such participation by the NMP Entities shall not reduce
the number of shares that may be sold by Linde in the Linde Sale, but only the
number of shares that may be sold by the other Series B Holders in the
Linde Sale), and (y) to the extent that any Series B Holder other
than Linde (and other than the NMP Entities) declines to participate in the
Linde Sale, then Linde (to the extent of any remaining shares of Capital Stock
held by it) and the NMP Entities shall be entitled to participate in the Linde
Sale for up to that number of shares that such non-participating Series B
Holder declined to sell in the Linde Sale, with Linde (on the one hand) being
allowed to participate for up to 50% of such amount and all of the NMP Entities
(on the other hand) being allowed to participate for up to the balance.  Linde shall timely provide the NMP Entities
with all information necessary to enable the NMP Entities timely to exercise
their rights under this Section 7.3(b).


 


7.4.          Required Participation in Sale of Capital Stock.  Notwithstanding any other provision of this
Agreement to the contrary, at any time prior to the Section 7.4
Termination Date, 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 (or Common Stock into which their shares of Series B
Preferred Stock converted) to a Third Party in the same transaction or series of
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 this Section 7.4), more than 50% of the
outstanding Capital Stock) or the Company proposed 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
the NMP Entities at their option may require (x) in the case of a sale of
Capital Stock by the NMP Entities, that each Holder sell a proportionate amount
of such Holder’s shares of Capital 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 (y) in
any case, if stockholder approval of the transaction is required and the
Company’s stockholders are entitled to vote thereon, that each Holder vote all
of such Holder’s shares of Capital Stock in favor of such transaction, and in
the event that either or both of clauses (x) and (y) apply, the
provisions of Sections 7.2 and 7.3 shall not apply to the sale by the NMP
Entities or any Holder of their shares of Capital Stock in such
transaction.  Any sale of shares of
Capital Stock by a Holder pursuant to this Section 7.4 shall, subject to
the provisions of Section 7.5, be for the same consideration per share, on
substantially the same terms and subject to substantially the same 


 


45

















 


conditions
as the sale of shares of Capital Stock owned by the NMP Entities.  Each Holder that sells any shares of Capital
Stock pursuant to this Section 7.4 shall pay and be responsible for such
Holder’s proportionate share of the Expenses of Sale and the Sale
Obligations.  The provisions set forth in
this Section 7.4 and the portion of any other provision of this Agreement
that cross-references this Section 7.4 shall terminate and be of no
further force or effect on the Section 7.4 Termination Date.


 


7.5.          Exceptions.  Notwithstanding anything contained to the
contrary in Section 7.3 or 7.4,


 


(a)           if the sale by any Holder
requires regulatory approval before the purchase and sale of such Holder’s
securities can be consummated, the purchase agreement must provide either for
multiple closings or for the closing of all of the sales when the last
regulatory approval has been obtained, as the purchaser may elect,


 


(b)           if the consideration in the
sale pursuant to Section 7.3 or 7.4 consists of or includes securities,
and the sale of such securities to a Holder would require either a registration
statement under the Securities Act, or preparation of a disclosure statement
pursuant to Regulation D (or any successor regulation) under the Securities
Act, 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 such Holder may (at the option of the Transferring Holder
or the NMP Entities, as applicable) be paid, 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,


 


(c)           the consideration per share
received by a Holder in any sale pursuant to Section 7.3 or 7.4 which is
not a sale of all of the outstanding Capital Stock shall be adjusted as between
the Series A Holders and the Series B Holders if the sale involves
both series of Preferred Stock, which adjustment shall be as agreed upon by the
Holders of a majority of the shares of Series A Preferred Stock and the
Holders of a majority of the shares of Series B Preferred Stock participating
in such sale or, if no agreement is reached on or before the 10th day preceding
the scheduled closing date for such sale, then as determined in good faith by
the Board, whose determination shall be final and binding, and


 


(d)           in no event shall any Holder
be obligated by Section 7.3 or 7.4 to assume any joint liabilities or
obligations with respect to any other Holder.


 


7.6.          No Sale or Transfer of Series C Preferred Stock.  Until the QIPO Effective Time, no Series C
Holder shall Transfer any shares of Series C Preferred Stock held by such Series C
Holder, except that:


 


(a)           one or more of the NMP
Entities may Transfer all or any portion of the shares of its Series C
Preferred Stock in conjunction with a Transfer by it, in accordance with Section 7.1,
of at least 33 1/3% of the shares of Series B Preferred Stock then held by
it, and


 


(b)           each Series C Holder
(other than the NMP Entities) may Transfer all of the shares of its Series C
Preferred Stock in conjunction with a Transfer by it, in 


 


46

















 


accordance with Section 7.1, of more than 50%
of the shares of Series B Preferred Stock then held by such Series C
Holder.


 


From
and after the QIPO Effective Time, no Series C Holder shall Transfer any
shares of Series C Preferred Stock held by such Series C Holder
except as expressly permitted by the Certificate of Incorporation.


 


SECTION 8.           Representations and Warranties.


 


8.1.          Each party severally represents and warrants to the
other parties hereto as follows:


 


(a)           Such party, if it is an
Entity, has been duly formed and is validly existing and, to the extent such
concept is recognized under the laws of its jurisdiction of organization, in
good standing under the laws of its jurisdiction of organization.  Such party has full power and authority to
execute and deliver this Agreement and the other Definitive Agreements to which
it is a party, to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated by this Agreement, the Preferred Stock
Purchase Agreement, the INO Acquisition and the Ikaria Merger (the “Transactions”).


 


(b)           Such party has duly
authorized the execution and delivery of this Agreement and the other
Definitive Agreements to which it is a party and the performance of its
obligations hereunder and thereunder. 
This Agreement and each of the other Definitive Agreements to which such
party is a party constitute the valid and legally binding obligation of such
party, enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
arrangement, moratorium and other laws of general applicability relating to or
affecting creditors’ rights and to general equity principles.


 


(c)           The execution, delivery and
performance by such party of this Agreement and the other Definitive Agreements
to which it is a party, and the consummation of the Transactions, will not
conflict with, or cause or result in any violation of or default under any
provision of, (i) the formation documents of such party, if it is an
Entity, or (ii) any contract, agreement, indenture or other legally
binding commitment, any governmental license, permit or other authorization, or
any law applicable to such party or any of its properties or assets, the result
of which, with respect to items identified in this clause (ii), would (either
individually or in the aggregate) have a Material Adverse Effect on the Company, Ikaria
or INO.


 


(d)           No Governmental Consents are
required to be obtained or made by such party in connection with the execution,
delivery, performance, validity and enforceability of this Agreement or any
other Definitive Agreements to which it is a party, other than (i) the
Governmental Consents listed under its name on Schedule 3, and (ii) other
Governmental Consents, the lack of which would not, individually or in the
aggregate, have a Material Adverse Effect on the Company, Ikaria or
INO.  No party has the right to require
that the Company effect the registration of any Capital Stock owned by it
except for the rights contained in this Agreement.


 


SECTION 9.           Voting Agreement.


 


47

















 


9.1.          Election of Directors.  From and after the Effective Date, the
Company shall use its best efforts to cause the individuals designated from
time to time as described below to be nominated and elected as directors of the
Company at each annual or special meeting held, or pursuant to any written
consent solicited, for the election of directors of the Company.


 


(a)           Article X of the 2010
Certificate of Incorporation provides that the holders of C-1A Preferred shall
be entitled to elect one member of the Board (such director, if any, the “NMP
A Director”) until the C-1A Termination Time.


 


(b)           Article X of the 2010
Certificate of Incorporation provides that the holders of C-1B Preferred shall
be entitled to elect one member of the Board (such director, if any, the “NMP
B Director”) until the C-1B Termination Time.


 


(c)           Article X of the 2010
Certificate of Incorporation provides that the holders of C-1C Preferred shall
be entitled to elect one member of the Board (such director, if any, the “NMP
C Director”) until the C-1C Termination Time.


 


(d)           Article X of the 2010
Certificate of Incorporation provides that the holders of C-2 Preferred shall
be entitled to elect one member of the Board (such director, if any, the “ARCH
Director”) until the C-2 Termination Time.


 


(e)           Article X of the 2010
Certificate of Incorporation provides that the holders of C-3 Preferred shall
be entitled to elect one member of the Board (such director, if any, the “Venrock
Director”) until the C-3 Termination Time.


 


(f)            Article X of the 2010
Certificate of Incorporation provides that the holders of C-4 Preferred shall
be entitled to elect one member of the Board (such director, if any, the “Linde
Director”) until the C-4 Termination Time.


 


(g)           The Board shall be comprised
of up to four directors in addition to the Designated Directors, three of whom
shall be individuals who are not officers, employees, managing members or
general partners of, or otherwise Affiliated with, any of the Investors or
officers or employees of the Company or any of its subsidiaries, or a Family
Member of any of the foregoing (the “Independent Directors”), and the
fourth shall be either the then-serving chief executive officer of the Company
or an Independent Director.  The members
of the Board other than the Designated Directors shall be elected by a majority
of the votes cast by the holders of the Series A Preferred Stock, Series B
Preferred Stock and Common Stock, voting together as a single class.  The provisions set forth in this Section 9.1(g) shall
terminate on the consummation of the sale of shares pursuant to a registration
statement relating to the Company’s initial public offering of Common Stock.


 


9.2.          Board Committees.  The Board shall establish committees of the
Board, including, without limitation, (i) an Audit Committee, whose
members, until consummation of the sale of shares pursuant to a registration
statement relating to the Company’s initial public offering of Common Stock,
shall be determined by the Series B Holders and shall include the Linde
Director (provided the Linde Director is a member of the Board), (ii) a
Compensation Committee, the chair of which shall be an NMP Director (who shall
initially be Alok Singh and provided at least one NMP Director is a member of
the Board) and whose members shall include 


 


48

















 


either
the ARCH Director or the Venrock Director (provided at least one of the ARCH
Director or Venrock Director is a member of the Board), and (iii) a
Nominating Committee, whose members shall include the ARCH Director (who shall
initially be Robert Nelsen and provided the ARCH Director is a member of the
Board), the Venrock Director (who shall initially be Bryan Roberts and provided
the Venrock Director is a member of the Board) and more than one NMP Director
(provided at least two NMP Directors are members of the Board and if only one NMP
Director is a member of the Board, then the Nominating Committee shall include
such NMP Director).  If other committees
of the Board are established from time to time, at least one NMP Director
(provided at least one NMP Director is a member of the Board) and either the
ARCH Director or the Venrock Director (provided at least one of the ARCH
Director or Venrock Director is a member of the Board) shall be a member of
each such committee as well.  In the
event a pricing committee is established in connection with any proposed
initial public offering, the Linde Director (provided the Linde Director is a
member of the Board) shall be a member of such committee.  Each individual named in this Section 9.2
as a committee member shall hold office until his successor is elected and
qualified or until his earlier resignation or removal in accordance with this Section 9
and the Certificate of Incorporation. 
With respect to each committee, the Board shall designate the members
not provided for in this Section 9.2, any of whom may, at the option of
the Board, be a Designated Director not otherwise serving as a member of such
committee by virtue of this Section 9.2. 
Unless earlier terminated, the provisions set forth in this Section 9.2
shall terminate and be of no further force or effect on the earliest date
following the consummation of the sale of shares pursuant to a registration
statement relating to the Company’s initial public offering of Common Stock on
which the Company is no longer a “controlled company” as such term is defined
by the rules of the principal securities exchange on which securities of
the Company are then-listed (such date, the “Committee Termination Date”).  Within one day following the Designated
Director’s being advised by the Company that the Committee Termination Date has
occurred, any Designated Director serving as a member of a committee by virtue
of this Section 9.2, shall offer to tender his or her resignation from
such committee to the Board. The Board will accept or reject such resignation,
or take other action with respect to such resignation, within 90 days after the
Committee Termination Date. No NMP Director shall participate in the Board’s
determination with respect to any NMP Director’s resignation. The ARCH
Director, the Linde Director or the Venrock Director shall not participate in
the Board’s determination with respect to the resignation of the ARCH Director,
the Linde Director or the Venrock Director, respectively.


 


9.3.          Observer Rights.  So long as they continue to hold any shares
of Capital Stock, Dr. Mark Roth, Mr. Andrew Schwab and a
representative of the Fred Hutchinson Cancer Research Center (each, an “Observer”)
shall be entitled to attend any and all Board meetings in a non-voting observer
capacity; provided, that this Section 9.3 shall terminate on the
consummation of the sale of shares pursuant to a registration statement
relating to the Company’s initial public offering of Common Stock.  The Company shall provide each Observer with
copies of all notices, minutes, consents and other material that it provides to
its directors; provided, however, that the Company reserves the
right to withhold any information and to exclude any Observer from any meeting
or portion thereof if (i) access to such information or attendance at such
meeting could (based on the advice of counsel) adversely affect the
attorney-client privilege between the Company and its counsel, (ii) the
Board determines in good faith that fiduciary requirements under applicable law
would prohibit attendance by the Observer or 


 


49

















 


(iii) the
Board determines in good faith that exclusion of the Observer is advisable in
order to preserve the confidentiality of any information to be presented.


 


9.4.          Compensation.  None of the Designated Directors nor any
director who is an officer or employee of the Company shall be entitled to
compensation from the Company for serving as a director of the Company; provided,
however, that such directors shall be entitled to be reimbursed by the
Company for their out-of-pocket expenses incurred in connection with their
attendance at meetings of the Board and any committee thereof.


 


9.5.          Vacancies; Removal.  If any Designated Director shall cease to
serve as a director of the Company for any reason, the vacancy resulting
thereby shall be filled by a director nominated by the Person who is entitled
to designate such Designated Director. 
Each Holder agrees that it shall not vote any shares of Capital Stock
which it may own in favor of a resolution in respect of the removal of a
Designated Director unless that resolution has been put forward by the Person
having the right to designate such Designated Director pursuant to Section 9.1,
in which case each Holder shall vote in favor of such resolution.


 


9.6.          Directors’ Indemnification.  The Certificate of Incorporation and bylaws
of the Company shall, to the fullest extent permitted by law, provide for
indemnification of, and advancement of expenses to, and limitation of the
personal liability of, the directors of the Company or such other person or
persons, if any, who, pursuant to a provision of such Certificate of
Incorporation, exercise or perform any of the powers or duties otherwise
conferred or imposed upon such directors, which provisions shall not be
amended, repealed or otherwise modified in any manner adverse to the directors
until at least six years following the date that the parties are no longer
entitled to designate directors pursuant to this Section 9 and, with
respect to any director, until at least six years following the date such
Person ceases to serve as a director of the Company (including following the
sale of the Company).


 


9.7.          Voting Agreement.  From and after the Effective Date, at each
meeting of stockholders of the Company at which the election of members of the
Board is on the agenda (or any written consent in lieu of a meeting thereof),
each Holder shall take all necessary or desirable action within its control
(including, without limitation, voting all of the voting securities of the
Company over which such Holder has voting control) so as to effectuate the
terms of this Section 9.  The voting
agreements contained in this Section 9 are coupled with an interest and
may not be revoked during the term of this Agreement.  For the avoidance of doubt, the voting
agreements contained in this Section 9 shall terminate with respect to the
NMP A Director, the NMP B Director, the NMP C Director, the ARCH Director, the
Venrock Director or the Linde Director at the C-1A Termination Time, C-1B
Termination Time, C-1C Termination Time, C-2 Termination Time, the C-3
Termination Time or the C-4 Termination Time, respectively.


 


9.8.          Change in Number of Directors.  The Company may, by resolution of the Board, (i) decrease
the number of directors comprising the Board, but not below the number of
directors then in office and not below the number that would, prior to the C-1A
Termination Time, C-1B Termination Time, C-1C Termination Time, C-2 Termination
Time, C-3 Termination Time or C-4 Termination Time, as applicable, prevent the
holders of C-1A Preferred, C-1B Preferred, C-1C Preferred, C-2 Preferred, C-3
Preferred or C-4 Preferred, 


 


50

















 


respectively,
from electing their Designated Director, and (ii) increase the number of
directors comprising the Board, in each case, (x) prior to the C-1C
Termination Time, by the vote of a majority of the Designated Directors elected
by the holders of the C-1A Preferred (if any), C-1B Preferred (if any) and C-1C
Preferred and the vote of a majority of the other members of the Board and (y) from
and after the C-1C Termination Time, by the vote of a majority of the members
of the Board.


 


SECTION 10.         Miscellaneous.


 


10.1.        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, by written agreement of the Company and the Holders of a majority of the
Series A Preferred Stock and Series B Preferred Stock considered as a
single class (which majority shall include the NMP Entities and one or more Series B
Holders other than the NMP Entities or any Affiliate thereof (other than
Affiliates solely by virtue of owning Preferred Stock) holding in the aggregate
at least 10% of the then outstanding Series B Preferred Stock (any
reference in this Section 10.1 to Series A Preferred Stock and to Series B
Preferred Stock shall include the Common Stock into which Series A
Preferred Stock or Series B Preferred Stock, as applicable, has been
converted if such Common Stock is still Beneficially Owned by such Holder or a
Permitted Transferee); provided, however, that (A) any
amendment, waiver, modification or supplement of (i) Sections 5.5(c), 6,
7.2(f) and 7.3(b), (ii) any other provision of this Agreement that
cross-references any of the foregoing Sections if the effect thereof is to
amend, waive, modify or supplement any of the foregoing Sections, or (iii) any
provision of this clause (A), shall also require the written agreement of
Linde; (B) any amendment, waiver, modification or supplement hereof the
direct result of which is to materially adversely affect any Holder, or class
or series of Holders, in a manner that is materially different from the manner
in which the other Holders are affected shall also require the consent of the
Holder, or a majority of the Holders (measured by the number of shares of the
class or series owned), so differently affected; (C) any amendment,
waiver, modification or supplement of Section 9.3 that adversely affects
any Observer shall also require the written agreement of such Observer; and (D) the
observance of any provision of this Agreement may be waived, but only 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.  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 execution of
a counterpart signature page to this Agreement (in lieu of any required
written agreement) by any Person acquiring shares of Preferred Stock after the
Effective Date shall only require the consent of the Company and shall not be
deemed an amendment to this Agreement so long as such acquisition was effected
in compliance with the provisions of this Agreement, including receipt of any
applicable Requisite Approval. 
Notwithstanding the foregoing, a Holder’s rights under this Section 10.1
shall terminate as of the first time such Holder Beneficially Owns no shares of
Capital Stock.


 


51

















 


10.2.        Assignment; Third Party Beneficiaries.


 


(a)           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.  The Company may not assign any of its rights
or delegate any of its duties under this Agreement.  Any Holder may, at its election and at any
time or from time to time, assign its rights and delegate its duties under this
Agreement, in whole or in part, to a Permitted Transferee of such Holder if the
Transfer is effected in compliance with the provisions of this Agreement; provided,
that, no such assignment shall be binding upon the Company or obligate the
Company to any such Permitted Transferee unless and until the Permitted
Transferee delivers to the Company (i) a written notice stating the name
and address of the Permitted Transferee and identifying the securities with
respect to which such rights are being assigned, and (ii) an executed copy
of the written agreement (which may be in the form of a counterpart to this
Agreement) satisfactory to the Company by which such Permitted Transferee
agrees to be bound, as a Series A Holder or a Series B Holder, as
applicable, by the terms of this Agreement to the same extent as if such
Permitted Transferee had originally been a party hereto, and provided, further,
that no such assignment shall relieve the Holder from its obligations under
this Agreement, and the Holder shall be responsible for any action by its
Permitted Transferee in breach of this Agreement.  Each Indemnitee shall be a third party
beneficiary of Section 2.6 and shall be entitled to enforce the provisions
thereof directly.  Each of Dr. Mark
Roth, Mr. Andrew Schwab or the Fred Hutchinson Cancer Research Center
shall be a third party beneficiary of Section 9.3 and shall be entitled to
enforce the provisions thereof directly. 
Each Person who serves as a member of the Board from and after the
Effective Date shall be a third party beneficiary of Section 9.6 and shall
be entitled to enforce the provisions thereof directly.


 


(b)           Notwithstanding anything to the contrary under Section 10.2(a):


 


(i)            any of the NMP Entities, ARCH, Venrock and Linde
Entity (a “Registration Rights Assignor”) may assign its rights and delegate
its duties solely with respect to Section 2 of this Agreement to a Person
(any such Person, a “First Registration Rights Assignee”) who purchases, in a
private transaction, at least 2,000,000 shares of Registrable Securities
(subject to adjustment for any stock split, stock dividend, reverse split,
combination, recapitalization, merger, consolidation, or similar change in
capitalization) from such Registration Rights Assignor pursuant to Section 7.1(j);
provided, that, no such assignment shall be binding upon the Company or
obligate the Company to any such First Registration Rights Assignee unless and
until such First Registration Rights Assignee delivers to the Company (A) a
written notice stating the name and address of such First Registration Rights
Assignee and identifying the Registrable Securities with respect to which such
rights are being assigned, and (B) an executed copy of the written
agreement (which may be in the form of a counterpart to this Agreement)
satisfactory to the Company by which such First Registration Rights Assignee
agrees to be bound as a Series B Holder for purposes of Sections 2, 7.4
and 10 of this Agreement to the same extent as if such First Registration
Rights Assignee had originally been a party hereto, and provided, further, that
no such assignment shall relieve such Registration Rights Assignor from its
obligations under this Agreement, and such Registration Rights Assignor shall
be responsible for any action by such First Registration Rights Assignee in
breach of this Agreement; and


 


52

















 


(ii)           any First Registration Rights Assignee for which an
assignment pursuant to clause (i) above has become binding upon the
Company as set forth therein may assign its rights and delegate its duties
solely with respect to Section 2 of this Agreement to a Person (any such
Person, a “Second Registration Rights Assignee”) who purchases, in a private
transaction, at least 2,000,000 shares of Registrable Securities (subject to
adjustment for any stock split, stock dividend, reverse split, combination,
recapitalization, merger, consolidation, or similar change in capitalization)
from such First Registration Rights Assignee; provided, that, no such
assignment shall be binding upon the Company or obligate the Company to any
such Second Registration Rights Assignee unless and until such Second
Registration Rights Assignee delivers to the Company (i) a written notice
stating the name and address of such Second Registration Rights Assignee and
identifying the Registrable Securities with respect to which such rights are
being assigned, and (ii) an executed copy of the written agreement (which
may be in the form of a counterpart to this Agreement) satisfactory to the
Company by which such Second Registration Rights Assignee agrees to be bound as
a Series B Holder for purposes of Sections 2, 7.4 and 10 of this Agreement
to the same extent as if such Second Registration Rights Assignee had
originally been a party hereto, and provided, further, that no such assignment
shall relieve such First Registration Rights Assignee or the applicable
Registration Rights Assignor from its obligations under this Agreement, and
such First Registration Rights Assignee or the applicable Registration Rights
Assignor shall be jointly and severally responsible for any action by such
Second Registration Rights Assignee in breach of this Agreement.


 


For
the avoidance of doubt, a Second Registration Rights Assignee shall not have
the right to assign its rights or delegate its duties with respect to Section 2
of this Agreement to any other Person.


 


10.3.        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 of the intended recipient, with confirmation of receipt,
to the number of the intended recipient as set forth below, (iii) internationally
recognized 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, Inc.


6
Route 173


Clinton,
NJ 08809


Facsimile:
(866) 670-3623


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


 


53

















 


(b)           If to Linde,
to:


 


Linde  AG 


Leopoldstrasse
252


80807
Munich 


Germany



Facsimile:  +49 89 35 757-1505 


Attention:  Mr. Juergen Nowicki, Head of Finance &
Control


 


(c)           If to any of
the NMP Entities, to such NMP Entity:


 


c/o
New Mountain Capital, LLC 


787
Seventh Avenue, 49th Floor 


New
York, New York  10019 


Facsimile:  (212) 582-2277 


Attention:
Mr. Alok Singh


 


(d)           If to ARCH, to:


 


ARCH
Venture Fund VI, L.P.


c/o
ARCH Venture Partners 


2325
3rd Street, Suite 407 


San
Francisco, California  94107 


Facsimile:  (415) 565-7107 


Attention:  Mr. Robert Nelsen


 


(e)           If to any of
Venrock, to such party:


 


c/o
Venrock Associates 


3340
Hillview Avenue 


Palo
Alto, California  94304 


Facsimile:  (650) 561-9180 


Attention:  Mr. Bryan Roberts


 


(f)            If to any of
5AM, to such party:


 


c/o
5AM Ventures LLC 


3000
Sand Hill Road 


Building
4, Suite 230 


Menlo
Park, California  94025 


Facsimile:  (650) 233-8923 


Attention:  Mr. Andrew Schwab


 


(g)           If to Black
Point, to:


 


Black
Point Group, LP 


542
Black Point Road 


Scarborough,
Maine  04074 


Facsimile:  (207) 883-9313 


Attention:  Mr. David Shaw


 


54

















 


(h)           In each case,
with a copy to (which shall not constitute notice):


 


Freshfields
Bruckhaus Deringer LLP 

520 Madison Avenue, 34th Floor 

New York, New York  10022 

Facsimile:  (212) 277-4001 

Attention:  Matthew F. Herman, Esq.


 


and


 


The
BOC Group 

575 Mountain Avenue 

Murray Hill, New Jersey  07974 

Facsimile:  (908) 464-2234 

Attention:  General Counsel


 


and


 


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.


 


and


 


O’Melveny &
Myers LLP 

2765 Sand Hill Road 

Menlo Park, California  94025 

Facsimile:  (650) 473-2601 

Attention:  Sam Zucker, Esq.


 


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.


 


55














 


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


 


(a)                                  Governing Law.  This Agreement (and all matters arising
hereunder) shall be construed and enforced in accordance with, and the rights
and obligations of the parties hereto shall be governed by, the law of the
State of New York; provided that the provisions of Section 9 (and
all matters arising thereunder) shall be construed and enforced in accordance
with, and the rights and obligations of the parties hereto under Section 9
shall be governed by, the law of the State of Delaware.


 


(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 internationally recognized courier
requesting the earliest date and time of delivery in accordance with Section 10.3
hereof 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.


 


10.5.                        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 


 


56

















 


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 (including, without limitation, the indemnification provisions
hereof), 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.


 


10.6.                        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.


 


10.7.                        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.


 


10.8.                        Entire
Agreement.  This
Agreement and the other Definitive Agreements constitute the entire agreement
among the parties hereto, and supersede all prior agreements and
understandings, oral and written, among the parties hereto, with respect to the
subject matter hereof.


 


10.9.                        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.  Any such counterpart may be delivered by
facsimile transmission.


 


10.10.                  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 


 


57

















 


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 to 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. 
Whenever this Agreement specifies that a vote or the agreement of the
Holders of one of the series of Preferred Stock is required to be obtained
together with the vote or agreement of the other series of Preferred Stock, or
together with the vote or agreement of the other series of Preferred Stock and
the vote or agreement of the Common Stock, then such vote or agreement shall be
calculated as though each share of such Preferred Stock had been converted into
the number of shares of Common Stock into which it was then convertible, and
whenever the vote or agreement of a series of Preferred Stock is required to be
obtained on a separate class basis, then the vote or agreement shall be
calculated as though each share of such series of Preferred Stock were one
share of stock.


 


10.11.                  Legends.  Each certificate representing shares of
Capital Stock or Series C Preferred Stock held by any Holder, Series C
Holder or any Permitted Transferee shall bear the following legend:


 


“THE
SHARES EVIDENCED HEREBY ARE SUBJECT TO AN INVESTOR STOCKHOLDERS AGREEMENT BY
AND AMONG THE CORPORATION AND CERTAIN STOCKHOLDERS OF THE CORPORATION (A COPY
OF WHICH MAY BE OBTAINED FROM THE CORPORATION), AND BY ACCEPTING ANY
INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO
AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID INVESTOR
STOCKHOLDERS AGREEMENT.”


 


58

















 


IN
WITNESS WHEREOF, the parties have caused this Agreement 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

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  INVESTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  NEW
  MOUNTAIN PARTNERS II, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

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

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven B. Klinsky

  
	
   

  	
   

  	
  Name:

  	
  Steven
  B. Klinsky

  
	
   

  	
   

  	
  Title:

  	
  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

  
	
   

  	
   

  	
  Name:

  	
  Steven
  B. Klinsky

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ALLEGHENY
  NEW MOUNTAIN PARTNERS, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

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

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven B. Klinsky

  
	
   

  	
   

  	
  Name:

  	
  Steven
  B. Klinsky

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Member

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  INVESTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  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

  
	
   

  	
   

  	
  Name:

  	
  Robert
  Nelsen

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  INVESTORS:

  
	
   

  	
   

  
	
   

  	
  VENROCK
  PARTNERS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Venrock
  Partners Management, LLC,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bryan E. Roberts

  
	
   

  	
   

  	
  Name:

  	
  Bryan
  E. Roberts

  
	
   

  	
   

  	
  Title:

  	
  General
  Partner

  
	
   

  	
   

  
	
   

  	
  VENROCK
  ASSOCIATES IV, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Venrock
  Management IV, LLC,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bryan E. Roberts

  
	
   

  	
   

  	
  Name:

  	
  Bryan
  E. Roberts

  
	
   

  	
   

  	
  Title:

  	
  General
  Partner

  
	
   

  	
   

  
	
   

  	
  VENROCK
  ENTREPRENEURS FUND IV, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  VEF
  Management IV, LLC,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bryan E. Roberts

  
	
   

  	
   

  	
  Name:

  	
  Bryan
  E. Roberts

  
	
   

  	
   

  	
  Title:

  	
  General
  Partner

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  INVESTORS:

  
	
   

  	
   

  
	
   

  	
  5AM
  VENTURES LLC, by its Manager

  
	
   

  	
  5AM
  CO-INVESTORS LLC, by its Manager

  
	
   

  	
   

  
	
   

  	
  5AM
  Partners LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Andrew
  J. Schwab, Managing Director

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 














 


	
   

  	
  INVESTOR:

  
	
   

  	
   

  
	
   

  	
  ARAVIS VENTURE I L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Aravis
  General Partner Ltd,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Andrew
  J. Schwab

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  INVESTOR:

  
	
   

  	
   

  
	
   

  	
  BLACK
  POINT GROUP, LP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David
  Shaw

  
	
   

  	
   

  	
  Title:

  	
  MP

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  INVESTOR:

  
	
   

  	
   

  
	
   

  	
  LINDE
  NORTH AMERICA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark D. Weller

  
	
   

  	
   

  	
  Name:

  	
  Mark
  D. Weller

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
  BENNETT
  M. SHAPIRO AND FREDERICKA F. SHAPIRO, JTROS

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Bennett
  M. Shapiro

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Fredericka
  F. Shapiro

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  David
  Shaw

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
  FRED
  HUTCHINSON CANCER RESEARCH CENTER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Douglas
  J. Shaeffer

  
	
   

  	
   

  	
  Title:

  	
  V.P. &
  General Counsel

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
  VAUGHN
  AND PATRICIA KAILIAN TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Vaughn
  Kailian

  
	
   

  	
   

  	
  Title:

  	
  Trustee

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
  WILBUR
  H. GANTZ III REVOCABLE TRUST DATED 2/18/94

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Wilbur
  H. Gantz

  
	
   

  	
   

  	
  Title:

  	
  Trustee

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 














 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
  WASHINGTON
  RESEARCH FOUNDATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Ronald
  S. Howell

  
	
   

  	
   

  	
  Title:

  	
  CEO

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
  ALTITUDE
  LIFE SCIENCES VENTURES, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David
  Maki

  
	
   

  	
   

  	
  Title:

  	
  Member

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Steven
  Gillis

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
  ALEXANDRIA
  EQUITIES, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  ALEXANDRIA
  REAL ESTATE

  EQUITIES, INC., a Maryland

  corporation, managing member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Etsuko
  Mason

  
	
   

  	
   

  	
   

  	
  Vice
  President

  Treasurer &

  Assistant Secretary

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Charles
  Homcy, M.D.

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
  HELEN
  C. PURNELL

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Lucy
  Kratovil, by Power of Attorney dated

  January 15, 2003

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Flemming
  Ornskov

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDERS:

  
	
   

  	
   

  
	
   

  	
  THE
  GETZUG FAMILY TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Steve
  Getzug

  
	
   

  	
   

  	
  Title:

  	
  Trustee

  



 


[SIGNATURE
PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 














 


	
   

  	
  HOLDERS:

  
	
   

  	
   

  
	
   

  	
  JENNIFER
  BROWN AND IAN AYRES, JTROS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Jennifer
  G. Brown

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Ian
  Ayres

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
  BENNETT
  M. SHAPIRO, M.D.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  



 


[SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS STOCKHOLDERS
AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
  WILBUR
  GANTZ

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:  Wilbur Gantz

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
  DEFIANT
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Jim
  Roberts

  
	
   

  	
  Title:

  	
  Manager

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:  Steven McKnight, Ph.D.

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  Dan Gottschling

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
  NANCY
  WEINTRAUB

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  L.
  Weintraub, Attorney in fact

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Nancy
  S. Weintraub

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]


 

















 


	
   

  	
  HOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  Meng Chao Yao

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  Ching Ho Chnag

  



 


[SIGNATURE PAGE TO AMENDED
AND RESTATED INVESTORS STOCKHOLDERS AGREEMENT]