exv4w2






Exhibit 4.2




CLOVIS ONCOLOGY, INC.




INVESTOR RIGHTS AGREEMENT




May 15, 2009





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Section 1 DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	1.1 Certain Definitions
	 	 	1	 
	 
	 	 	 	 
	Section 2 REGISTRATION RIGHTS
	 	 	5	 
	 
	 	 	 	 
	2.1 Requested Registration
	 	 	5	 
	2.2 Company Registration
	 	 	7	 
	2.3 Registration on Form S-3
	 	 	9	 
	2.4 Expenses of Registration
	 	 	9	 
	2.5 Registration Procedures
	 	 	10	 
	2.6 Indemnification
	 	 	12	 
	2.7 Information by Holder
	 	 	14	 
	2.8 Restrictions on Transfer
	 	 	15	 
	2.9 Rule 144 Reporting
	 	 	16	 
	2.10 Market Stand-Off Agreement
	 	 	17	 
	2.11 Delay of Registration
	 	 	17	 
	2.12 Transfer or Assignment of Registration Rights
	 	 	18	 
	2.13 Limitations on Subsequent Registration Rights
	 	 	18	 
	2.14 Termination of Registration Rights
	 	 	18	 
	 
	 	 	 	 
	Section 3 COVENANTS OF THE COMPANY
	 	 	18	 
	 
	 	 	 	 
	3.1 Basic Financial Information and Inspection Rights
	 	 	18	 
	3.2 Confidentiality
	 	 	19	 
	3.3 Vesting of Stock Options
	 	 	19	 
	3.4 Termination of Covenants
	 	 	20	 
	 
	 	 	 	 
	Section 4 RIGHT OF FIRST REFUSAL
	 	 	20	 
	 
	 	 	 	 
	4.1 Right of First Refusal to Significant Holders
	 	 	20	 
	 
	 	 	 	 
	Section 5 MISCELLANEOUS
	 	 	22	 
	 
	 	 	 	 
	5.1 Amendment
	 	 	22	 
	5.2 Notices
	 	 	22	 
	5.3 Governing Law
	 	 	24	 
	5.4 Successors and Assigns
	 	 	24	 
	5.5 Entire Agreement
	 	 	24	 
	5.6 Delays or Omissions
	 	 	24	 
	5.7 Severability
	 	 	24	 
	5.8 Titles and Subtitles
	 	 	24	 
	5.9 Counterparts
	 	 	25	 
	5.10 Execution and Delivery
	 	 	25	 
	5.11 Jurisdiction; Venue
	 	 	25	 
	5.12 Further Assurances
	 	 	25	 
	5.13 Termination Upon Change of Control
	 	 	25	 
	5.14 Conflict
	 	 	25	 
	5.15 Attorneys’ Fees
	 	 	25	 
	5.16 Aggregation of Stock
	 	 	25	 
	5.17 Additional Investors
	 	 	25	 
	5.18 Jury Trial
	 	 	26	 






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CLOVIS ONCOLOGY, INC.

INVESTOR RIGHTS AGREEMENT



          This Investor Rights Agreement (this “Agreement”) is dated as of May 15, 2009, and is between
Clovis Oncology, Inc., a Delaware corporation (the “Company”), and the persons and entities listed
on Exhibit A and their permitted transferees and assigns (each, an “Investor” and collectively, the
“Investors”), and the persons listed on Exhibit B and their permitted transferees and assigns
(each, a “Founder” and collectively, the “Founders”).



RECITALS



          The Investors are parties to the Series A-1, A-2, B and C Preferred Stock Purchase Agreement
of even date herewith, among the Company and the investors listed on the Schedule of Investors
thereto (as the same may be amended from time to time, the “Purchase Agreement”), and it is a
condition to the closing of the sale of the Series A-1 Preferred Stock, Series A-2 Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock (collectively, the “Preferred Stock”) to such
Investors that the Investors and the Company execute and deliver this Agreement.


          The parties therefore agree as follows:



SECTION 1




DEFINITIONS



     1.1 Certain Definitions. As used in this Agreement, the following terms shall have the
meanings set forth below:




     (a) “Change of Control” means either (i) the acquisition of the Company by another
entity by means of any transaction or series of related transactions (including, without
limitation, any stock acquisition, reorganization, merger or consolidation, but excluding
any sale of stock for capital raising purposes) other than a transaction or series of
related transactions in which the holders of the voting securities of the Company
outstanding immediately prior to such transaction continue to retain (either by such voting
securities remaining outstanding or by such voting securities being converted into voting
securities of the surviving entity), as a result of shares in the Company held by such
holders prior to such transaction, at least fifty percent (50%) of the total voting power
represented by the outstanding voting securities of the Company or such other surviving or
resulting entity (or if the Company or such other surviving or resulting entity is a
wholly-owned subsidiary immediately following such acquisition, its parent) immediately
after such transaction; or (ii) a sale, lease, transfer or exclusive license or other
disposition, in a single transaction or series of related transactions, of all or
substantially all of the assets of the Company and its subsidiaries taken as a whole, except
where such sale, lease, transfer, exclusive license or other disposition is to a wholly
owned subsidiary of the Company.




     (b) “Commission” shall mean the Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act.



 









 






     (c) “Common Stock” means the common stock, par value $.001 per share, of the Company.




     (d) “Conversion Stock” shall mean shares of Common Stock issued upon conversion of the
Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series B Preferred Stock and Series
C Preferred Stock.




     (e) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, or any
similar successor federal statute and the rules and regulations thereunder, all as the same
shall be in effect from time to time.




     (f) “Founders” shall have the meaning set forth in the Preamble.




     (g) “Holder” shall mean any Investor or Founder who holds Registrable Securities and
any holder of Registrable Securities to whom the registration rights conferred by this
Agreement have been duly and validly transferred in accordance with Section 2.12 of this
Agreement.




     (h) “Indemnified Party” shall have the meaning set forth in Section 2.6(c).




     (i) “Indemnifying Party” shall have the meaning set forth in Section 2.6(c).




     (j) “Initial Closing” shall mean the date of the initial sale of shares of the
Company’s Series A-1 Preferred Stock pursuant to the Purchase Agreement.




     (k) “Initiating Holders” shall mean any Holder or Holders who in the aggregate hold not
less than fifty-five percent (55%) of the outstanding Registrable Securities (on an as
converted basis).




     (l) “Investors” shall have the meaning set forth in the Preamble.




     (m) “New Securities” shall have the meaning set forth in Section 4.1(a).




     (n) “Other Shares” means other securities of the Company which are held by Persons who,
by virtue of agreements with the Company, are entitled to include their securities in any
such registration.




     (o) “Participating Holders” shall have the meaning set forth in Section 2.5.




     (p) “Person” means any individual, corporation, limited liability company, partnership,
firm, joint venture, association, joint-stock company, trust, unincorporated organization,
governmental entity or other entity.




     (q) “Preferred 55% Majority-in-Interest” shall mean the holders of at least 55% of the
 shares of Preferred Stock (voting as a single class on an as-converted basis).




     (r) “Preferred Stock” shall have the meaning set forth in the Recitals.




     (s) “Purchase Agreement” shall have the meaning set forth in the Recitals.



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     (t) “Qualified Public Offering” shall mean a bona fide, firm commitment underwritten
public offering pursuant to an effective registration statement filed under the Securities
Act, covering the offer and sale of the Company’s Common Stock, provided that (A)
the offering price per share of Common Stock is not less than two (2) times the price of the
latest series of Preferred Stock issued by the Company prior to such offering (as adjusted
for stock dividends, combinations, subdivisions or stock splits with respect to such shares)
and (B) the aggregate gross proceeds to the Company are greater than $50,000,000 (prior to
deductions for underwriting commissions and offering expenses), provided,
further that either or both of the conditions set forth in clauses (A) and (B) may
be waived by the holders of at least fifty-five percent (55%) of the shares of Preferred
Stock issued and outstanding (voting as a single class and on an as-converted basis), in
which case such public offering shall be deemed a Qualified Public Offering.




     (u) “Registrable Securities” shall mean (i) any shares of Common Stock held or
hereinafter acquired by the Investors or Founders, (ii) shares of Common Stock issued or
issuable upon conversion of the Shares and (iii) any shares of Common Stock issued as a
dividend or other distribution with respect to, or in exchange for or in replacement of, the
 shares of Common Stock referenced in (i) above; provided, however, that Registrable
Securities shall not include any shares of Common Stock described above which have
previously been registered or which have been sold to the public either pursuant to a
registration statement or Rule 144, or which have been sold in a private transaction in
which the transferor’s rights under this Agreement are not validly assigned in accordance
with this Agreement; provided, further, that for purposes of Section 2.1,
the shares of Common Stock issued to the Founders (other than any shares of Common Stock
issued upon conversion of the Shares held by them, if any), shall not be deemed Registrable
Securities and the Founders shall not be deemed Holders.




     (v) The terms “register,” “registered” and “registration” shall refer to a registration
effected by preparing and filing a registration statement in compliance with the Securities
Act and applicable rules and regulations thereunder, and the declaration or ordering of the
effectiveness of such registration statement.




     (w) “Registration Expenses” shall mean all expenses incurred in effecting any
registration pursuant to this Agreement, including, without limitation, all registration,
qualification, and filing fees, printing expenses, escrow fees, fees and disbursements of
counsel for the Company, fees and disbursements for one special counsel for the Holders in
an amount not to exceed $50,000, blue sky fees and expenses, and expenses of any regular or
special audits incident to or required by any such registration, but shall not include
Selling Expenses.




     (x) “Restricted Securities” shall mean any Registrable Securities required to bear the
first legend set forth in Section 2.8(c).




     (y) “Right of First Refusal and Co-Sale Agreement” means that certain Right of First
Refusal and Co-Sale Agreement, dated as of the date hereof, by and among the Company and the
stockholders party thereto, as the same may be amended from time to time.



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     (z) “Rule 144” shall mean Rule 144 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar successor rule
that may be promulgated by the Commission.




     (aa) “Rule 145” shall mean Rule 145 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar successor rule
that may be promulgated by the Commission




     (bb) “Rule 415” shall mean Rule 415 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar successor rule
that may be promulgated by the Commission.




     (cc) “Securities Act” shall mean the Securities Act of 1933, as amended, or any similar
successor federal statute and the rules and regulations thereunder, all as the same shall be
in effect from time to time.




     (dd) “Selling Expenses” shall mean all underwriting discounts, selling commissions and
stock transfer taxes applicable to the sale of Registrable Securities and fees and
disbursements of counsel for any Holder (other than the fees and disbursements of one
special counsel to the Holders as set forth in the definition of “Registration Expenses”).




     (ee) “Series A-1 Preferred Stock” shall mean the shares of Series A-1 Preferred Stock
issued pursuant to the Purchase Agreement.




     (ff) “Series A-2 Preferred Stock” shall mean the shares of Series A-2 Preferred Stock
issued pursuant to the Purchase Agreement.




     (gg) “Series B Preferred Stock” shall mean the shares of Series B Preferred Stock
issued pursuant to the Purchase Agreement.




     (hh) “Series C Preferred Stock” shall mean the shares of Series C Preferred Stock
issued pursuant to the Purchase Agreement.




     (ii)
“Shares” shall mean the shares of the
Company’s Preferred Stock.

     (jj) “Significant Holders” shall have the meaning set forth in Section 3.1.




     (kk) “Voting Agreement” means that certain Voting Agreement, dated as of the date
hereof, by and among the Company and the stockholders party thereto, as the same may be
amended from time to time.




     (ll) “Withdrawn Registration” shall mean a forfeited demand registration under Section
2.1 in accordance with the terms and conditions of Section 2.4.



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SECTION 2




REGISTRATION RIGHTS



     2.1 Requested Registration.


          (a) Request for Registration. Subject to the conditions set forth in this
Section 2.1, if the Company shall receive from Initiating Holders a written request signed by such
Initiating Holders that the Company effect any registration with respect to all or a part of the
Registrable Securities owned by such Initiating Holders (which request shall state the number of
shares of Registrable Securities to be disposed of by such Initiating Holders), the Company will:




          (i) promptly give written notice of the proposed registration to all other Holders; and




          (ii) as soon as practicable, file a registration statement with the Commission and use
its commercially reasonable efforts to effect such registration (including, without
limitation, filing post-effective amendments, appropriate qualifications under applicable
blue sky or other state securities laws, and appropriate compliance with the Securities Act)
and to permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any Holder or Holders joining in such request as are
specified in a written request received by the Company within twenty (20) days after written
notice from the Company is mailed or delivered pursuant to Section 2.1(a)(i) above.


          (b) Limitations on Requested Registration. The Company shall not be obligated to
effect, or to take any action to effect, any such registration pursuant to this Section 2.1:




          (i) Prior to the earlier of (A) the five (5) year anniversary of the date of this
Agreement or (B) one hundred eighty (180) days following the effective date of the first
registration statement filed by the Company covering an underwritten offering of any of its
securities to the general public;




          (ii) If the Initiating Holders, together with the holders of any other securities of
the Company entitled to inclusion in such registration statement, propose to sell
Registrable Securities and such other securities (if any), the aggregate net proceeds of
which (after deduction for underwriter’s discounts and expenses related to the issuance) are
less than $30,000,000;




          (iii) In any particular jurisdiction in which the Company would be required to execute
a general consent to service of process in effecting such registration, qualification, or
compliance, unless the Company is already subject to service in such jurisdiction and except
as may be required by the Securities Act;



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          (iv) After the Company has initiated two (2) such registrations pursuant to this
Section 2.1 (counting for these purposes only (x) registrations which have been declared or
ordered effective and pursuant to which securities have been sold, and (y) Withdrawn
Registrations);




          (v) During the period starting with the date sixty (60) days prior to the Company’s
good faith estimate of the date of filing of, and ending on a date one hundred eighty (180)
days after the effective date of, a Company-initiated registration (or ending on the
subsequent date on which all market stand-off agreements applicable to the offering have
terminated); provided that the Company is actively employing in good faith commercially
reasonable efforts to cause such registration statement to become effective; or




          (vi) If the Initiating Holders propose to dispose of shares of Registrable Securities
that may be registered on Form S-3 pursuant to a request made under Section 2.3.


          (c) Deferral. If (i) in the good faith judgment of the board of directors of the
Company, the filing of a registration statement covering the Registrable Securities would be
materially detrimental to the Company and the board of directors of the Company concludes, as a
result, that it is in the best interests of the Company to defer the filing of such registration
statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by
the President of the Company stating that in the good faith judgment of the board of directors of
the Company, it would be materially detrimental to the Company for such registration statement to
be filed in the near future and that it is, therefore, in the best interests of the Company to
defer the filing of such registration statement, then (in addition to the limitations set forth in
Section 2.1(b) above) the Company shall have the right to defer such filing for a period of not
more than one hundred eighty (180) days after receipt of the request of the Initiating Holders,
and, provided further, that the Company shall not defer its obligation in this manner more than
twice in any twelve-month period.


          (d) Underwriting. If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so advise the Company
as a part of their request made pursuant to this Section 2.1 and the Company shall include such
information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of
any Holder to include all or any portion of its Registrable Securities in a registration pursuant
to this Section 2.1 shall be conditioned upon such Holder’s participation in an underwriting and
the inclusion of such Holder’s Registrable Securities to the extent provided herein. The Company
shall (together with all Holders proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by a majority in interest of the
Initiating Holders, which underwriters are reasonably acceptable to the Company.


          Notwithstanding any other provision of this Section 2.1, if the underwriters advise the
Initiating Holders in writing that marketing factors require a limitation on the number of shares
to be underwritten, the number of Registrable Securities that may be so included shall be allocated
among all Holders requesting to include Registrable Securities in such registration




6









 









statement based
on the pro rata percentage of Registrable Securities held by such Holders, on an as-converted
basis.



          If a person who has requested inclusion in such registration as provided above does not agree
to the terms of any such underwriting, such person may elect to withdraw therefrom by providing
written notice to the Company, the underwriter and the Initiating Holders. The securities so
withdrawn shall also be withdrawn from registration. If securities are so withdrawn from the
registration and if the number of securities to be included in such registration was previously
reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall
then offer to all Holders who have retained rights to include securities in the registration the
right to include additional Registrable Securities in the registration in an aggregate amount equal
to the number of securities so withdrawn, with such shares to be allocated among such Holders
requesting additional inclusion, as set forth above.


          If the underwriter has not limited the number of Registrable Securities or other securities to
be underwritten, the Company and officers and directors of the Company (whether or not such Persons
have registration rights pursuant to Section 2.1 hereof) may include its or their securities for
its or their own account in such registration if the managing underwriter or underwriters so agrees
and if the number of Registrable Securities and other securities which would otherwise have been
included in such registration and underwriting will not thereby be limited.



     2.2 Company Registration.




          (a) Company Registration. If the Company shall determine to register any of its
securities either for its own account or the account of a security holder or holders (other than a
registration pursuant to Section 2.1 or 2.3, a registration relating solely to employee benefit
plans, a registration relating to the offer and sale of debt securities, a registration relating to
a corporate reorganization or other Rule 145 transaction, or a registration on any registration
form that does not permit secondary sales), the Company will:




          (i) promptly give written notice of the proposed registration to all Holders; and




          (ii) use its commercially reasonable efforts to include in such registration (and any
related qualification under blue sky laws or other compliance, subject to Section
2.1(b)(iii)), except as set forth in Section 2.2(b) below, and in any underwriting involved
therein, all of such Registrable Securities as are specified in a written request or
requests made by any Holder or Holders received by the Company within ten (10) days after
written notice from the Company is mailed or delivered pursuant to Section 2.2(a)(i) above.
Such written request may specify all or a part of a Holder’s Registrable Securities.


          (b) Underwriting. If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so advise the Holders as a
part of the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any
Holder to registration pursuant to this Section 2.2 shall be conditioned upon such Holder’s




7









 








participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall (together with the Company and the other holders of securities of
the Company with registration rights to participate therein distributing their securities through
such underwriting) enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected by the Company.



          Notwithstanding any other provision of this Section 2.2, if the underwriters advise the
Company in writing that marketing factors require a limitation on the number of shares to be
underwritten, the underwriters may (subject to the limitations set forth below) limit the number of
Registrable Securities to be included in the registration and underwriting. The Company shall so
advise all holders of securities requesting registration, and the number of shares of securities
that are entitled to be included in the registration and underwriting shall be allocated, as
follows: (i) first, to the Company for securities being sold for its own account, (ii) second, to
the Holders requesting to include Registrable Securities in such registration statement and other
holders of Other Shares who by contractual right demanded such registration pro rata based on the
number of Registrable Securities and such Other Shares requested to be registered by each such
Holder and other holder, and (iii) third, to the shareholders requesting to include Other Shares in
such registration statement pro rata based on the number of Other Shares requested to be registered
by each such holder.


          Notwithstanding the foregoing, no such reduction shall reduce the value of the Registrable
Securities of the Holders included in such registration below twenty-five percent (25%) of the
total value of the securities included in such registration, unless such offering is the Company’s
Qualified Public Offering and such registration does not include shares of any other selling
stockholders (excluding shares registered for the account of the Company), in which event any or
all of the Registrable Securities of the Holders may be excluded.


          If a person who has requested inclusion in such registration as provided above does not agree
to the terms of any such underwriting, such person shall be excluded therefrom by written notice
from the Company or the underwriter. The Registrable Securities or other securities so excluded
shall also be withdrawn from such registration. If securities are so withdrawn from the
registration and if the number of securities of Registrable Securities to be included in such
registration was previously reduced as a result of marketing factors pursuant to Section 2.2(b),
the Company shall then offer to all persons who have retained the right to include securities in
the registration the right to include additional securities in the registration in an aggregate
amount equal to the number of securities so withdrawn, with such shares to be allocated among the
persons requesting additional inclusion, in the manner set forth above.


          (c) Right to Terminate Registration. The Company shall have the right to terminate or
withdraw any registration initiated by it under this Section 2.2 prior to the effectiveness of such
registration whether or not any Holder has elected to include securities in such registration.




8











 





     2.3 Registration on Form S-3.



          (a) Request for Form S 3 Registration. After its Initial Public Offering, the Company
shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any
comparable or successor form or forms. After the Company has qualified for the use of Form S-3, in
addition to the rights contained in the foregoing provisions of this Section 2 and subject to the
conditions set forth in this Section 2.2, if the Company shall receive from a Holder or Holders of
Registrable Securities a written request that the Company effect any registration on Form S 3 or
any similar short form registration statement with respect to all or part of the Registrable
Securities (which request shall state the number of shares of Registrable Securities to be disposed
of and the intended methods of disposition of such shares by such Holder or Holders), the Company
will take all such action with respect to such Registrable Securities as required by Section
2.1(a)(i) and 2.1(a)(ii).



          (b) Limitations on Form S 3 Registration. The Company shall not be obligated to
effect, or take any action to effect, any such registration pursuant to this Section 2.3:




          (i) In the circumstances described in either Sections 2.1(b)(iii) or 2.1(b)(v);




          (ii) If the Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) on Form S-3 at an aggregate price to the public of less than
$2,500,000; or




          (iii) Within one hundred eighty (180) days of the effective date of the most recent
registration pursuant to this Section 2.3 in which Registrable Securities held by the
Initiating Holders could have been included for sale or distribution.



          (c) Deferral. The provisions of Section 2.1(c) shall apply to any registration
pursuant to this Section 2.2.



          (d) Underwriting. If the Holders of Registrable Securities requesting registration
under this Section 2.3 intend to distribute the Registrable Securities covered by their request by
means of an underwriting, the provisions of Section 2.1(d) shall apply to such registration.
Notwithstanding anything contained herein to the contrary, registrations effected pursuant to this
Section 2.3 shall not be counted as requests for registration or registrations effected pursuant to
Section 2.1.



     2.4 Expenses of Registration. All Registration Expenses incurred in connection with
registrations pursuant to Sections 2.1, 2.2, and 2.3 shall be borne by the Company.
Notwithstanding the foregoing, the Company shall not be required to pay for any Registration
Expenses for any registration begun pursuant to Section 2.1 or Section 2.3 if the registration
request is subsequently withdrawn at the request of the applicable Initiating Holders (in which
case the Initiating Holders shall bear such expenses), unless, in the case of a registration
requested under Section 2.1, the Initiating Holders agree to forfeit their right to one
registration pursuant to Section 2.1; provided, however, in the event that a withdrawal by the
Holders is based upon a material adverse change in the business of the Company that is different
from the



9









 




information known or available (upon request from the Company or otherwise) to the Holders
requesting registration at the time of their request for registration under Section 2.1 and the
Holders have withdrawn the request with reasonable promptness following disclosure by the Company
of such material adverse change, then such registration shall not be treated as a counted
registration for purposes of Section 2.1. All Selling Expenses relating to securities registered
on behalf of the Holders shall be borne by the holders of securities included in such registration
pro rata among each other on the basis of the number of Registrable Securities so registered.




     2.5 Registration Procedures. In the case of each registration effected by the Company
pursuant to Section 2, the Company will keep the Holders participating in such registration (the
“Participating Holders”) advised in writing as to the initiation of each registration and as to the
completion thereof. At its expense, the Company will use its commercially reasonable efforts to:




     (a) Keep such registration effective for a period of ending on the earlier of the date
which is sixty (60) days from the effective date of the registration statement or such time
as the Participating Holders have completed the distribution described in the registration
statement relating thereto;




     (b) 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 request for registration is submitted
to the Company in accordance with Section 2.3, (i) if so requested, file an automatic shelf
registration statement (as defined in Rule 405 under the Securities Act) (an “automatic
shelf registration statement”) to effect such registration;




     (c) Prepare and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration statement for the
period set forth in subsection (a) above;




     (d) Furnish such number of prospectuses, including any preliminary prospectuses, and
other documents incident thereto, including any amendment of or supplement to the
prospectus, as a Participating Holder from time to time may reasonably request;




     (e) Use its reasonable best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of such
jurisdiction as shall be reasonably requested (in light of such Participating Holder’s
intended plan of distribution) by the Participating Holders; provided, that the Company
shall not be required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states or
jurisdictions;




     (f) Notify each seller of Registrable Securities covered by such registration statement
at any time when a prospectus relating thereto is required to be delivered under



10









 






the Securities Act of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances then existing,
and following such notification promptly prepare and furnish to such seller a reasonable
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 shares, 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 light of the
circumstances then existing;




     (g) If at any time when the Company is required to re-evaluate its WKSI status for
purposes of an automatic shelf registration statement used to effect a request for
registration in accordance with Section 2.2(a)(i) the Company determines that it is not a
WKSI, (ii) the registration statement is required to be kept effective in accordance with
this Agreement, and (iii) the registration rights of the applicable Participating Holders
have not terminated, promptly amend the registration statement onto a form the Company is
then eligible to use or file a new registration statement on such form, and keep such
registration statement effective in accordance with the requirements otherwise applicable
under this Agreement;




     (h) If (i) a registration made pursuant to a shelf registration statement is required
to be kept effective in accordance with this Agreement after the third anniversary of the
initial effective date of the shelf registration statement and (ii) the registration rights
of the applicable Participating Holders have not terminated, file a new registration
statement with respect to any unsold Registrable Securities subject to the original request
for registration prior to the end of the three year period after the initial effective date
of the shelf registration statement, and keep such registration statement effective in
accordance with the requirements otherwise applicable under this Agreement;




     (i) Use its commercially reasonable efforts to obtain, on the date that such
Registrable Securities are delivered to the underwriters for sale, if such securities are
being sold through underwriters, if any, (i) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public offering,
addressed to the underwriters and (ii) a “comfort” letter dated as of such date, from the
independent certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriters;




     (j) Provide a transfer agent and registrar for all Registrable Securities registered
pursuant to such registration statement and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such registration;




     (k) Otherwise use its commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security holders, as soon
as reasonably practicable, an earnings statement covering the period of at



11









 






least twelve months, but not more than eighteen months, beginning with the first month
after the effective date of the Registration Statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act;




     (l) Cause all such Registrable Securities registered pursuant hereunder to be listed on
each securities exchange or trading system on which similar securities issued by the Company
are then listed; and




     (m) In connection with any underwritten offering pursuant to a registration statement
filed pursuant to Section 2.1, enter into an underwriting agreement in form reasonably
necessary to effect the offer and sale of Common Stock, provided such underwriting agreement
contains reasonable and customary provisions, and provided further, that each Holder
participating in such underwriting shall also enter into and perform its obligations under
such an agreement.



     Each Holder of the Registrable Securities, upon receipt of any notice from the Company of any
event of the kind described in Section 2.5(f) hereof, shall forthwith discontinue disposition of
the Registrable Securities pursuant to the registration statement covering such Registrable
Securities until such Holder’s receipt of the copies of the supplemented or amended prospectus
contemplated by Section 2.5(f) hereof, and, if so directed by the Company, such Holder shall
deliver to the Company all copies, other than permanent file copies then in such Holder’s
possession, of the prospectus covering such Registrable Securities at the time of receipt of such
notice.



     2.6 Indemnification.



          (a) To the extent permitted by law, the Company will indemnify and hold harmless each
Participating Holder, each of its officers, directors, partners and advisors and each person
controlling such Participating Holder within the meaning of Section 15 of the Securities Act, with
respect to each registration, qualification or compliance effected pursuant to this Section 2, and
each underwriter, if any, and each person who controls within the meaning of Section 15 of the
Securities Act any underwriter, against all expenses, claims, losses, damages and liabilities (or
actions, proceedings or settlements in respect thereof) arising out of or based on: (i) any untrue
statement (or alleged untrue statement) of a material fact contained or incorporated by reference
in any registration statement, any prospectus included in the registration statement, any issuer
free writing prospectus (as defined in Rule 433 of the Securities Act), any issuer information (as
defined in Rule 433 of the Securities Act) filed or required to be filed pursuant to Rule 433(d)
under the Securities Act or any other document incident to any such registration, qualification or
compliance prepared by or on behalf of the Company or used or referred to by the Company, (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 (in the case of any prospectus or issuer
freewriting prospectus, in light of the circumstances under which they were made not misleading),
or (iii) any violation (or alleged violation) by the Company of the Securities Act, any state
securities laws or any rule or regulation thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any offering covered by such
registration, qualification or compliance, and the Company will reimburse each of the Persons
listed above, for any legal and any other expenses



12









 




reasonably incurred in connection with investigating and defending or settling any such claim,
loss, damage, liability or action; provided that the Company will not be liable in any such case to
the extent that any such claim, loss, damage, liability, or action arises out of or is based on any
untrue statement or omission based upon written information furnished to the Company by such
Participating Holder, any of such Participating Holder’s officers, directors, partners, legal
counsel or accountants, any person controlling such Participating Holder, such underwriter or any
person who controls any such underwriter, and stated to be specifically for use therein; and
provided, further that, the indemnity agreement contained in this Section 2.6(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement
is effected without the consent of the Company (which consent shall not be unreasonably withheld).




          (b) To the extent permitted by law, each Participating Holder will, if Registrable Securities
held by such Participating Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify and hold harmless the Company, each of its
directors, officers, partners, advisors and each underwriter, if any, of the Company’s securities
covered by such a registration statement, each person who controls the Company or such underwriter
within the meaning of Section 15 of the Securities Act, each other such Participating Holder, and
each of their officers, directors, partners, and advisors and each person controlling each other
such Participating Holder, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on: (i) any untrue statement (or alleged untrue statement)
of a material fact contained or incorporated by reference in any prospectus, offering circular or
other document (including any related registration statement, notification, or the like) incident
to any such registration, qualification or compliance, or (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 (in the case of any prospectus or issuer freewriting prospectus, in light of
the circumstances under which they were made not misleading), and will reimburse the Persons listed
above for any legal or other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular or other document
in reliance upon and in conformity with written information furnished to the Company by such
Participating Holder and stated to be specifically for use therein; provided, however, that the
obligations of such Participating Holder hereunder shall not apply to amounts paid in settlement of
any such claims, losses, damages or liabilities (or actions in respect thereof) if such settlement
is effected without the consent of such Participating Holder (which consent shall not be
unreasonably withheld); and provided that in no event shall any indemnity under this Section 2.6
exceed the net proceeds from the offering received by such Participating Holder, except in the case
of fraud or willful misconduct by such Participating Holder.



          (c) Each party entitled to indemnification under this Section 2.6 (the “Indemnified Party”)
shall give notice to the party required to provide indemnification (the “Indemnifying Party”)
promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying Party who shall conduct
the defense of such claim or any litigation resulting



13









 




therefrom shall be approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such party’s expense; and
provided further that the failure of any Indemnified Party to give notice as provided herein shall
not relieve the Indemnifying Party of its obligations under this Section 2.6, unless the
Indemnifying Party is materially prejudiced thereby. No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party may reasonably
request in writing and as shall be reasonably required in connection with the defense of such claim
and litigation resulting therefrom.




          (d) If the indemnification provided for in this Section 2.6 is held by a court of competent
jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim,
damage, or expense referred to herein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the
Indemnified Party on the other in connection with the statements or omissions that resulted in such
loss, liability, claim, damage, or expense as well as any other relevant equitable considerations.
The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the Indemnifying Party
or by the Indemnified Party and the parties’ relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission. No person or entity will be required
under this Section 2.6(d) to contribute any amount in excess of the net proceeds from the offering
received by such person or entity, except in the case of fraud or willful misconduct by such person
or entity. No person or entity guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.



          (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection with the
underwritten public offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.



     2.7 Information by Holder. Each Participating Holder of Registrable Securities shall furnish
to the Company such information regarding such Participating Holder and the distribution proposed
by such Participating Holder as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification, or compliance referred to
in this Section 2.



14









 





     2.8 Restrictions on Transfer.



          (a) In addition to any other restrictions on transfer that a holder of a certificate
representing Registrable Securities may be bound by, the holder of each certificate representing
Registrable Securities by acceptance thereof agrees to comply in all respects with the provisions
of this Section 2.8. Each Holder agrees not to make any sale, assignment, transfer, pledge or
other disposition of all or any portion of the Restricted Securities, or any beneficial interest
therein, unless and until the transferee thereof has agreed in writing for the benefit of the
Company to take and hold such Restricted Securities subject to, and to be bound by, the terms and
conditions set forth in this Agreement, including, without limitation, this Section 2.8 and Section
2.10, and:




          (i) There is then in effect a registration statement under the Securities Act covering
such proposed disposition and the disposition is made in accordance with the registration
statement; or




          (ii) The Holder shall have given prior written notice to the Company of the Holder’s
intention to make such disposition and shall have furnished the Company with a detailed
description of the manner and circumstances of the proposed disposition, and, if requested
by the Company, the Holder shall have furnished the Company, at the Company’s expense, with
(i) an opinion of counsel reasonably satisfactory to the Company to the effect that such
disposition will not require registration of such Restricted Securities under the Securities
Act or (ii) a “no action” letter from the Commission to the effect that the transfer of such
securities without registration will not result in a recommendation by the staff of the
Commission that action be taken with respect thereto, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities in accordance
with the terms of the notice delivered by the Holder to the Company.



          (b) Notwithstanding the provisions of Section 2.8(a), no such registration statement, or
opinion of counsel, or “no action” letter shall be necessary for (i) a transfer not involving a
change in beneficial ownership, or (ii) transactions involving the distribution without
consideration of Restricted Securities by any Holder to (x) a parent, subsidiary or other affiliate
of the Holder, if the Holder is a corporation, (y) any of the Holder’s partners, members or other
equity owners, or retired partners, retired members or other equity owners, or to the estate of any
of the Holder’s partners, members or other equity owners or retired partners, retired members or
other equity owners, or (z) a venture capital fund that is controlled by or under common control
with one or more general partners or managing members of, or shares the same management company
with, the Holder; provided, in each case, that the Holder shall give written notice to the Company
of the Holder’s intention to effect such disposition and shall have furnished the Company with a
detailed description of the manner and circumstances of the proposed disposition.



15









 





          (c) Each certificate representing Registrable Securities shall (unless otherwise permitted by
the provisions of this Agreement) be stamped or otherwise imprinted with a legend substantially
similar to the following (in addition to any legend required under applicable state securities
laws):




THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES.
THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS
PURSUANT TO REGISTRATION OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES
MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.




THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO (1) RESTRICTIONS ON
TRANSFERABILITY AND RESALE, INCLUDING A LOCK-UP PERIOD IN THE EVENT OF A PUBLIC
OFFERING, AS SET FORTH IN AN INVESTOR RIGHTS AGREEMENT, AND (2) VOTING RESTRICTIONS
AS SET FORTH IN A VOTING AGREEMENT AMONG THE COMPANY AND THE ORIGINAL HOLDERS OF
THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE
COMPANY.



          The Holders consent to the Company making a notation on its records and giving instructions to
any transfer agent of the Restricted Securities in order to implement the restrictions on transfer
established in this Section 2.8.



          (d) The first legend referring to federal and state securities laws identified in Section
2.8(c) stamped on a certificate evidencing the Restricted Securities and the stock transfer
instructions and record notations with respect to the Restricted Securities shall be removed and
the Company shall issue a certificate without such legend to the holder of Restricted Securities if
(i) those securities are registered under the Securities Act, or (ii) the holder provides the
Company with an opinion of counsel reasonably acceptable to the Company to the effect that a sale
or transfer of those securities may be made without registration or qualification. The second
legend shall be removed upon the earlier of (i) the termination of this Agreement and (ii) such
time as the shares represented thereby cease to be Registrable Securities.



     2.9 Rule 144 Reporting. With a view to making available the benefits of certain rules and
regulations of the Commission that may permit the sale of the Restricted Securities to the public
without registration, the Company agrees to use its commercially reasonable efforts to:




     (a) Make and keep adequate current public information with respect to the Company
available in accordance with Rule 144 under the Securities Act, at all times



16









 






from and after ninety (90) days following the effective date of the first registration
under the Securities Act filed by the Company for an offering of its securities to the
general public;




     (b) File with the Commission in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act at any time after it
has become subject to such reporting requirements; and




     (c) So long as a Holder owns any Restricted Securities, furnish to the Holder forthwith
upon written request a written statement by the Company as to its compliance with the
reporting requirements of Rule 144 (at any time from and after ninety (90) days following
the effective date of the first registration statement filed by the Company for an offering
of its securities to the general public), and of the Securities Act and the Exchange Act (at
any time after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and documents so
filed as a Holder may reasonably request in availing itself of any rule or regulation of the
Commission allowing a Holder to sell any such securities without registration.



     2.10 Market Stand-Off Agreement. If requested by the Company and an underwriter of Common
Stock (or other securities) of the Company, each Holder shall not sell, lend, offer, pledge or
otherwise transfer, make any short sale of, grant any option for the purchase of, or enter into any
hedging, swap or similar transaction or arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of any share of Common Stock (or other securities) of
the Company held by such Holder (other than those included in the registration) during the one
hundred eighty (180) day period following the effective date of the registration statement for the
Company’s initial public offering filed under the Securities Act (or such other period as may be
requested by the Company or an underwriter to accommodate regulatory restrictions on (i) the
publication or other distribution of research reports and (ii) analyst recommendations and
opinions, including, but not limited to, the restrictions contained in NASD Rule 2711(f)(4) or NYSE
Rule 472(f)(4), or any successor provisions or amendments thereto), provided that: all executive
officers and directors of the Company are bound by and have entered into similar agreements. The
obligations described in this Section 2.10 shall not apply to a registration relating solely to
employee benefit plans on Form S-l or Form S-8 or similar forms that may be promulgated in the
future, or a registration relating solely to a transaction on Form S-4 or similar forms that may be
promulgated in the future. The Company may impose stop-transfer instructions and may stamp each
such certificate with the second legend set forth in Section 2.8(c) with respect to the shares of
Common Stock (or other securities) subject to the foregoing restriction until the end of such one
hundred eighty (180) day (or other) period. Each Holder agrees to execute a market standoff
agreement with said underwriters in customary form consistent with the provisions of this Section
2.10.



     2.11 Delay of Registration. No Holder shall have any right to take any action to restrain,
enjoin, or otherwise delay any registration as the result of any controversy that might arise with
respect to the interpretation or implementation of this Section 2.



17









 





     2.12 Transfer or Assignment of Registration Rights. The rights to cause the Company to
register securities granted to a Holder by the Company under this Section 2 may be transferred or
assigned by a Holder; provided that (i) such transfer or assignment of Registrable Securities is
effected in accordance with the terms of Section 2.8, the Right of First Refusal and Co-Sale
Agreement, and applicable securities laws, (ii) the Company is given written notice prior to said
transfer or assignment, stating the name and address of the transferee or assignee and identifying
the securities with respect to which such registration rights are intended to be transferred or
assigned and (iii) the transferee or assignee of such rights assumes in writing the obligations of
such Holder under this Agreement, including without limitation the obligations set forth in Section
2.10. No such transfer or assignment shall increase the number of aggregate registrations required
to be effected by the Company pursuant to Section 2.1.



     2.13 Limitations on Subsequent Registration Rights. From and after the date of this
Agreement, the Company shall not, without the prior written consent of Holders holding fifty-five
percent (55%) of the Registrable Securities, enter into any agreement with any holder or
prospective holder of any securities of the Company giving such holder or prospective holder any
registration rights the terms of which are pari passu with or senior to the registration rights
granted to the Holders hereunder.



     2.14 Termination of Registration Rights. The right of any Holder to request registration or
inclusion in any registration pursuant to Sections 2.1, 2.2 or 2.3 shall terminate as to any Holder
on the earlier of (i) such date, on or after the closing of the Company’s first registered public
offering of Common Stock, on which all shares of Registrable Securities held or entitled to be held
upon conversion by such Holder could be sold pursuant to Rule 144 during any ninety (90) day
period, (ii) all of the Registrable Securities held by such Holder have been sold in a registration
pursuant to the Securities Act or any exemption therefrom, and (iii) five (5) years after the
closing of the Initial Public Offering.



SECTION 3




COVENANTS OF THE COMPANY



          The Company hereby covenants and agrees, as follows:




     3.1 Basic Financial Information and Inspection Rights.



          (a) Basic Financial Information. The Company will furnish the following reports to
each Investor who owns at least 250,000 shares of Preferred Stock or Common Stock of the Company
(as presently constituted and subject to subsequent adjustments for stock splits, stock dividends,
reverse stock splits and the like) (the “Significant Holders”):





          (i) As soon as practicable after the end of each fiscal year of the Company, and in any
event within one hundred twenty (120) days after the end of each fiscal year of the Company,
a consolidated balance sheet of the Company and its subsidiaries, if any, as at the end of
such fiscal year, and consolidated statements of income and cash flows of the Company and
its subsidiaries, if any, for such year,



18









 






prepared in accordance with U.S. generally accepted accounting principles consistently
applied, certified by the Chief Financial Officer of the Company;




          (ii) As soon as practicable after the end of the first, second and third quarterly
accounting periods in each fiscal year of the Company, and in any event within forty-five
(45) days after the end of the first, second, and third quarterly accounting periods in each
fiscal year of the Company, an unaudited consolidated balance sheet of the Company and its
subsidiaries, if any, as of the end of each such quarterly period, and unaudited
consolidated statements of income and cash flows of the Company and its subsidiaries, if
any, for such period, prepared in accordance with U.S. generally accepted accounting
principles consistently applied, subject to changes resulting from normal year-end audit
adjustments;




          (iii) Beginning on October 1, 2009, as soon as practicable after the end of each
monthly accounting period in each fiscal year of the Company, and in any event within thirty
(30) days after the end of each monthly accounting period in each fiscal year of
the Company, an unaudited consolidated balance sheet of the Company and its subsidiaries, if
any, as of the end of each such monthly period, and unaudited consolidated statements of
income and cash flows of the Company and its subsidiaries, if any, for such period, prepared
in accordance with U.S. generally accepted accounting principles consistently applied,
subject to changes resulting from normal year-end audit adjustments.




          (iv) As soon as practicable before the beginning of each fiscal year of the Company,
and in any event no later than thirty (30) days before the beginning of each fiscal year of
the Company, an annual business plan and budget for such upcoming fiscal year approved by
the Board of Directors of the Company.



     3.2 Confidentiality. Anything in this Agreement to the contrary notwithstanding, no Investor
by reason of this Agreement shall have access to any trade secrets or classified information of the
Company. The Company shall not be required to comply with any information rights of Section 3 in
respect of any Holder whom the Company reasonably determines to be a competitor or an officer,
employee, director or holder of more than two percent (2%) of a competitor. Each Investor
acknowledges that the information received by them pursuant to this Agreement may be confidential
and for its use only, and it will not use such confidential information in violation of the
Exchange Act or reproduce, disclose or disseminate such information to any other person (other than
its employees or agents having a need to know the contents of such information, and its attorneys),
except in connection with the exercise of rights under this Agreement, unless the Company has made
such information available to the public generally or such Holder is required by law or regulation
to disclose such information. Each Investor further acknowledges and understands that any
information will not be utilized by the Investor in connection with purchases and sales of the
Company’s securities except in compliance with applicable state and federal antifraud statutes.



     3.3 Vesting of Stock Options. The Company hereby covenants that, unless approved by the
Company’s Board of Directors, including at least a majority of the Preferred Designees (as defined
in the Voting Agreement), all stock options granted pursuant to the Company’s 2009



19









 




Equity Incentive Plan to new employees and consultants following the date of this Agreement
shall be subject to the following vesting schedule: 12/48 of the shares shall vest upon the one (1)
year anniversary of the vesting commencement date, and an additional 1/48 shall vest upon each
subsequent one (1) month anniversary thereafter until all such shares have vested upon the four (4)
year anniversary of the vesting commencement date, provided on all such dates, the optionee remains
a Service Provider, as defined in the 2009 Equity Incentive Plan.




     3.4 Termination of Covenants. The covenants set forth in this Section 3 shall terminate and
be of no further force and effect upon the earliest to occur of (i) the closing of the Company’s
Qualified Public Offering, (ii) the dissolution or winding up of the Company, or (iii) immediately
prior to the effective date of a Change of Control.



SECTION 4




RIGHT OF FIRST REFUSAL



     4.1 Right of First Refusal to Significant Holders. The Company hereby grants to each
Significant Holder, the right of first refusal to purchase its pro rata share of New Securities (as
defined in this Section 4.1(a)) that the Company may, from time to time, propose to sell and issue
after the date of this Agreement. A Significant Holder’s pro rata share, for purposes of this
right of first refusal, is equal to the ratio of (a) the number of shares of Preferred Stock owned
by such Significant Holder immediately prior to the issuance of New Securities (assuming full
conversion of the Shares and full conversion or exercise of all outstanding convertible securities,
rights, options and warrants held by said Significant Holder) to (b) the total number of shares of
Preferred Stock outstanding immediately prior to the issuance of New Securities (assuming full
conversion of the Shares and full conversion or exercise of all outstanding convertible securities,
rights, options and warrants of the Company).



          (a) “New Securities” shall mean any capital stock (including Common Stock and/or Preferred
Stock) of the Company whether now authorized or not, and rights, convertible securities, options or
warrants to purchase such capital stock, and securities of any type whatsoever that are, or may
become, exercisable or convertible into capital stock; provided that the term “New Securities” does
not include:




          (i) the Shares and the Conversion Stock;




          (ii) securities issued or issuable to employees, officers or directors of, or
consultants or advisors to the Company or any subsidiary pursuant to stock grants,
restricted stock purchase agreements, option plans, purchase plans, incentive programs or
similar arrangements not to exceed 1,500,000 until Series A-2 Preferred Stock are issued and
outstanding, 3,000,000 until Series B Preferred Stock are issued and outstanding, and
5,750,000 after Series B Preferred Stock are issued and outstanding (each as adjusted for
Recapitalizations), or such greater number as may be approved by the Board of Directors, shares of Common Stock or options, warrants or other rights to purchase Common Stock net of
any stock repurchases or expired or terminated options pursuant to the terms of any option
plan, restricted stock purchase agreement or similar arrangement;




20












 






          (iii) securities issued pursuant to the conversion or exercise of any outstanding
convertible or exercisable securities as of this date of this Agreement;




          (iv) securities issued or issuable as a dividend or distribution on Preferred Stock of
the Company or pursuant to any event for which adjustment is made pursuant to paragraph
4(e), 4(f) or 4(g) of the certificate of incorporation of the Company;




          (v) securities offered pursuant to an Qualified Public Offering;




          (vi) securities issued or issuable pursuant to the acquisition of another corporation
by the Company by merger, purchase of substantially all of the assets or other
reorganization or to a joint venture agreement, provided, that such issuances are approved
by the Board of Directors of the Company;




          (vii) securities issued or issuable to banks, equipment lessors or other financial
institutions pursuant to a commercial leasing or debt financing transaction approved by the
Board of Directors of the Company;




          (viii) securities issued or issuable in connection with sponsored research,
collaboration, technology license, development, OEM, marketing, product license or other
similar agreements or strategic partnerships approved by the Board of Directors of the
Company not substantially for equity investment purposes;




          (ix) securities issued to suppliers or third party service providers in connection with
the provision of goods or services pursuant to transactions approved by the Board of
Directors of the Company;




          (x) securities of the Company which are otherwise excluded by the affirmative unanimous
vote of the Board of Directors of the Company;




          (xi) any other securities that the holders of at least fifty-five percent (55%) of the
then outstanding Shares (voting as a single class and on an as-converted basis) consent to
the exclusion of such issuance from the definition of “New Securities”; and




          (xii) any right, option or warrant to acquire any security convertible into the
securities excluded from the definition of New Securities pursuant to subsections (i)
through (xi) above.



          (b) In the event the Company proposes to undertake an issuance of New Securities, it shall
give each Significant Holder written notice of its intention, describing the type of New
Securities, and their price and the general terms upon which the Company proposes to issue the
same. Each Significant Holder shall have ten (10) days after any such notice is mailed to agree to
purchase such Significant Holder’s pro rata share of such New Securities for the price and upon the
terms specified in the notice by giving written notice to the Company, in substantially the form
attached as Schedule 1, and stating therein the quantity of New Securities to be purchased.







21









 








          (c) In the event the Holders fail to exercise fully the right of first refusal within said ten
(10) day period (the “Election Period”), the Company shall have ninety (90) days thereafter to sell
or enter into an agreement (pursuant to which the sale of New Securities covered thereby shall be
closed, if at all, within ninety (90) days from the date of said agreement) to sell that portion of
the New Securities with respect to which the Significant Holders’ right of first refusal option set
forth in this Section 4.1 was not exercised, at a price and upon terms no more favorable to the
purchasers thereof than specified in the Company’s notice to Significant Holders delivered pursuant
to Section 4.1(b). In the event the Company has not sold such New Securities within such ninety
(90) day period following the Election Period, or such ninety (90) day period following the date of
said agreement, the Company shall not thereafter issue or sell any New Securities without first
again offering such securities to the Significant Holders in the manner provided in this Section
4.1.




          (d) The right of first refusal set forth in this Section 4 shall terminate upon, and shall not
be applicable to (i) immediately prior to Qualified Public Offering, (ii) upon the dissolution or
winding-up of the Company, or (iii) upon a Change of Control.




SECTION 5




MISCELLANEOUS



     5.1 Amendment. Except as expressly provided herein, neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by a written instrument
referencing this Agreement and signed by (i) the Company and (ii) a Preferred 55%
Majority-in-Interest; provided, however, that Investors purchasing Shares in a
Closing under the Purchase Agreement after the Initial Closing (as such terms are defined in the
Purchase Agreement) shall become parties to this Agreement by executing a counterpart of this
Agreement, without any amendment of this Agreement pursuant to this paragraph or any consent or
approval of any other Investor, and shall be deemed an “Investor” hereunder; provided,
further, that any amendment to Sections 1.1(g), 1.1(u), 2 (other than Section 2.1) or 5.1
which disproportionately and adversely affects the rights of the Founders in a manner different
from the Investors shall require the consent of the holder or holders of a majority of the Common
Stock held by the Founders; and provided, further, that if any amendment, waiver,
discharge or termination operates in a manner that treats any Investor or Founder different from
other Investors or Founders, as the case may be, the consent of such Investor or Founder shall also
be required for such amendment, waiver, discharge or termination. Any such amendment, waiver,
discharge or termination effected in accordance with this paragraph shall be binding upon each
Investor and Founder and each future holder of all such securities of such Investor or Founder, as
the case may be. Each Investor acknowledges that by the operation of this paragraph, the holders
of at least fifty-five percent (55%) of the Preferred Stock (voting as a single class on an
as-converted basis) will have the right and power to diminish or eliminate all rights of such
Investor under this Agreement.



     5.2 Notices. All notices and other communications required or permitted hereunder shall be in
writing and shall be mailed by registered or certified mail, postage prepaid, sent by facsimile or
electronic mail (if to an Investor, Founder or Holder) or otherwise delivered by hand, messenger or
courier service addressed:



22









 






     (a) if to an Investor, to the Investor’s address, facsimile number or electronic mail
address as shown in the Company’s records, as may be updated in accordance with the
provisions hereof, with a copy (which shall not constitute notice) to Elton Satusky, c/o
Wilson, Sonsini, Goodrich and Rosati, Professional Corporation, at 650 Page Mill Road, Palo
Alto, California, 94304, facsimile: (650) 493-6811, email: esatusky@wsgr.com;




     (b) if to any Holder, to such address, facsimile number or electronic mail address as
shown in the Company’s records, or, until any such Holder so furnishes an address, facsimile
number or electronic mail address to the Company, then to the address of the last holder of
such shares for which the Company has contact information in its records; or




     (c) if to any Founder, to such address, facsimile number or electronic mail address as
shown in the Company’s records, or, until any such Founder so furnishes an address,
facsimile number or electronic mail address to the Company, then to the address of the last
holder of such shares for which the Company has contact information in its records; or




     (d) if to the Company, to the attention of the Chief Executive Officer or Chief
Financial Officer of the Company at such current address as the Company shall have furnished
to the Investors, Founders or Holders, with a copy (which shall not constitute notice) to
Peter H. Jakes, William H. Gump, c/o Willkie Farr and Gallagher LLP, 787 7th Avenue, New
York, NY 10019-6099 facsimile: (212) 728-8111, email: pjakes@willkie.com, wgump@willkie.com.



          Each such notice or other communication shall for all purposes of this Agreement be treated as
effective or having been given (i) if delivered by hand, messenger or courier service, when
delivered (or if sent via a nationally-recognized overnight courier service, freight prepaid,
specifying next-business-day delivery, one business day after deposit with the courier), or (ii) if
sent via mail, at the earlier of its receipt or five days after the same has been deposited in a
regularly-maintained receptacle for the deposit of the United States mail, addressed and mailed as
aforesaid, or (iii) if sent via facsimile, upon confirmation of facsimile transfer or, if sent via
electronic mail, upon confirmation of delivery when directed to the relevant electronic mail
address, if sent during normal business hours of the recipient, or if not sent during normal
business hours of the recipient, then on the recipient’s next business day.




          Subject to the limitations set forth in Delaware General Corporation Law §232(e), each
Investor, Founder and Holder consents to the delivery of any notice to stockholders given by the
Company under the Delaware General Corporation Law or the Company’s certificate of incorporation or
bylaws by (i) facsimile telecommunication to the facsimile number set forth on Exhibit A (or to any
other facsimile number for the Investor, Founder or Holder in the Company’s records), (ii)
electronic mail to the electronic mail address set forth on Exhibit A (or to any other electronic
mail address for the Investor, Founder or Holder in the Company’s records), (iii) posting on an
electronic network together with separate notice to the Investor, Founder or Holder of such
specific posting or (iv) any other form of electronic transmission (as defined in the Delaware
General Corporation Law) directed to the Investor, Founder or Holder.





23









 







This consent may be revoked by an Investor, Founder or Holder by written notice to the Company
and may be deemed revoked in the circumstances specified in Delaware General Corporation Law §232.




     5.3 Governing Law. This Agreement shall be governed in all respects by the internal laws of
the State of Delaware as applied to agreements entered into among Delaware residents to be
performed entirely within Delaware, without regard to principles of conflicts of law.



     5.4 Successors and Assigns. This Agreement, and any and all rights, duties and obligations
hereunder, shall not be assigned, transferred, delegated or sublicensed by any Investor or Founder
without the prior written consent of the Company. Any attempt by an Investor or Founder without
such permission to assign, transfer, delegate or sublicense any rights, duties or obligations that
arise under this Agreement shall be void. Subject to the foregoing and except as otherwise
provided herein, the provisions of this Agreement shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the parties hereto.



     5.5 Entire Agreement. This Agreement and the exhibits hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects hereof. No party
hereto shall be liable or bound to any other party in any manner with regard to the subjects hereof
or thereof by any warranties, representations or covenants except as specifically set forth herein.



     5.6 Delays or Omissions. Except as expressly provided herein, no delay or omission to
exercise any right, power or remedy accruing to any party to this Agreement upon any breach or
default of any other party under this Agreement shall impair any such right, power or remedy of
such non-defaulting party, nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor
shall any waiver of any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this Agreement, or any waiver on
the part of any party of any provisions or conditions of this Agreement, must be in writing and
shall be effective only to the extent specifically set forth in such writing. All remedies, either
under this Agreement or by law or otherwise afforded to any party to this Agreement, shall be
cumulative and not alternative.



     5.7 Severability. If any provision of this Agreement becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such
provision in its entirety, to the extent necessary, shall be severed from this Agreement, and such
court will replace such illegal, void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the same economic, business and
other purposes of the illegal, void or unenforceable provision. The balance of this Agreement
shall be enforceable in accordance with its terms.



     5.8 Titles and Subtitles. The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this Agreement. All



24









 




references in this Agreement to sections, paragraphs and exhibits shall, unless otherwise
provided, refer to sections and paragraphs hereof and exhibits attached hereto.




     5.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be enforceable against the parties that execute such counterparts, and all of which together
shall constitute one instrument.



     5.10 Execution and Delivery. A facsimile or other reproduction of this Agreement may be
executed by one or more parties hereto and delivered by such party by facsimile or any similar
electronic transmission device pursuant to which the signature of or on behalf of such party can be
seen. Such execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto agree to execute and deliver an
original of this Agreement as well as any facsimile, telecopy or other reproduction hereof.



     5.11 Jurisdiction; Venue. With respect to any disputes arising out of or related to this
Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the state courts in
the State of Delaware (or in the event of exclusive federal jurisdiction, the district courts in
Delaware). Each of the parties hereto also agrees that the jurisdiction over the person of such
parties and the subject matter of such dispute shall be effected by the mailing of process or other
papers in connection with any such action in the manner provided for in Section 5 or in such other
manner as may be lawful, and that service in such manner shall constitute valid and sufficient
service of process.



     5.12 Further Assurances. Each party hereto agrees to execute and deliver, by the proper
exercise of its corporate, limited liability company, partnership or other powers, all such other
and additional instruments and documents and do all such other acts and things as may be necessary
to more fully effectuate this Agreement.



     5.13 Termination Upon Change of Control. Notwithstanding anything to the contrary herein,
this Agreement (excluding any then existing obligations) shall terminate upon a Change of Control.



     5.14 Conflict. In the event of any conflict between the terms of this Agreement and the
Company’s certificate of incorporation or its bylaws, the terms of the Company’s certificate of
incorporation or its bylaws, as the case may be, will control.



     5.15 Attorneys’ Fees. In the event that any suit or action is instituted to enforce any
provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from
the losing party such reasonable fees and expenses of attorneys and accountants, which shall
include, without limitation, all fees, costs and expenses of appeals.



     5.16 Aggregation of Stock. All securities held or acquired by affiliated entities (including
affiliated venture capital funds) or persons shall be aggregated together for purposes of
determining the availability of any rights under this Agreement.



     5.17 Additional Investors. Notwithstanding anything to the contrary contained herein, if the
Company shall issue additional shares of Preferred Stock, any holder of such shares



25









 




of Preferred Stock shall be required to become a party to this Agreement by executing and
delivering an additional counterpart signature page to this Agreement and shall thereupon be deemed
an “Investor” hereunder.




     5.18 Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT.



(signature page follows)




26









 






          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.




	 	 	 	 	 
	 	COMPANY:



CLOVIS ONCOLOGY, INC.

A Delaware corporation

 	 
	 	By:  	/s/ Patrick J. Mahaffy
 	 
	 	 	Patrick J. Mahaffy 	 
	 	 	President and Chief Executive Officer 	 



(Signature page to the Investor Rights Agreement)




 









 








          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.




	 	 	 	 	 
	 	INVESTOR:



ProQuest Investments IV, L.P.


by: ProQuest Associates IV LLC

its General Partner

 	 
	 	By: 	/s/ Pasquale DeAngelis
 	 
	 	 	Pasquale DeAngelis 	 
	 	 	Managing Member 	 
	 
	 	 	Phone: (609) 919-3567

Fax: (609) 375-1047
	 



(Signature page to the Investor Rights Agreement)






 









 








          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.




	 	 	 	 	 
	 	INVESTOR:



Frazier Healthcare VI, LP
 	 
	 	By  	FHM VI, LP, its general partner
 	 
	 	By  	 FHM VI, LLC, its general partner 	 
	 
	 	By  	                                              /s/ Thomas S. Hodge
 	 
	 	 	Thomas S. Hodge, Manager 	 



(Signature page to the Investor Rights Agreement)





 









 








          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.




	 	 	 	 	 
	 	INVESTORS:



New Enterprise Associates 13, Limited Partnership
 	 
	 	By:  	NEA Partners 13, Limited Partnership, its general partner
 	 
	 	By:  	  NEA 13 GP, LTD, its general partner 	 
	 
	 	By:  	                                       Q A G S , Director
 	 
	 
	 	NEA Ventures 2009, Limited Partnership

 	 
	 	By:  	Pamela J. Clark, its general partner
 	 


(Signature page to the Investor Rights Agreement)


 











 





     The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.



	 	 	 	 	 
	 	INVESTORS:



Aberdare Ventures IV, L.P.

 	 
	 	By:  	                       Aberdare GP IV, L.L.C., its
 	 
	 	 	General Partner 	 
	 
	 	By:  	                       /s/ Paul H. Klingenstein
 	 
	 	 	Paul H. Klingenstein, Manager 	 
	 	 	 	 
	 
	 	Aberdare Partners IV, L.P.

 	 
	 	By:  	                       Aberdare GP IV, L.L.C., its
 	 
	 	 	General Partner 	 
	 
	 	By:  	                       /s/ Paul H. Klingenstein
 	 
	 	 	Paul H. Klingenstein, Manager 	 



(Signature page to the Investor Rights Agreement)







 









 









     The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.



	 	 	 	 	 
	 	INVESTORS:



Domain Partners VII, L.P.

 	 
	 	By:  	                       One Palmer Square Associates VII, L.L.C.,
 	 
	 	 	its General Partner 	 
	 
	 	By:  	                       /s / Kathleen K. Schoemaker
 	 
	 	 	Kathleen K. Schoemaker 	 
	 	 	Managing Member 	 
	 
	 	 	Address: 	 One Palmer Square

Suite 515

Princeton, NJ 08542

 
	 
	 	DP VII Associates, L.P.

 	 
	 	By:  	                       One Palmer Square Associates VII, L.L.C.
 	 
	 	 	its General Partner 	 
	 
	 	By:  	                       /s / Kathleen K. Schoemaker
 	 
	 	 	Kathleen K. Schoemaker 	 
	 	 	Managing Member 	 
	 
	 	 	Address: 	One Palmer Square

Suite 515

Princeton, NJ 08542




(Signature page to the Investor Rights Agreement)







 









 









          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.



	 	 	 	 	 
	 	INVESTORS:


Versant Venture Capital IV, L.P.
 	 
	 	By:  	                      Versant Ventures IV, LLC, its General Partner
 	 
	 
	 	By:  	           /s/ Brian G. Atwood
 	 
	 	 	Name:  	Brian G. Atwood 	 
	 	 	Title:  	Managing Director 	 
	 
	 	Versant Side Fund IV, L.P.
 	 
	 	By:  	                      Versant Ventures IV, LLC, its General Partner
 	 
	 
	 	By:  	           /s/ Brian G. Atwood
 	 
	 	 	Name:  	Brian G. Atwood 	 
	 	 	Title:  	Managing Director 	 



(Signature page to the Investor Rights Agreement)







 









 









          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.



	 	 	 	 	 
	 	INVESTOR:



Abingworth Bioventures V LP, acting by its

manager Abingworth LLP

 	 
	 	By:  	/s/ James Abell
 	 
	 	 	Name:  	James Abell 	 
	 	 	Title:  	Partner 	 



(Signature page to the Investor Rights Agreement)





 









 









          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.



	 	 	 	 	 
	 	INVESTOR:

 	 
	 	/s/ Patrick J. Mahaffy
 	 
	 	Patrick J. Mahaffy 	 



(Signature page to the Investor Rights Agreement)






 









 









          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.



	 	 	 	 	 
	 	INVESTOR:

 	 
	 	/s/ Edward J. McKinley
 	 
	 	Edward J. McKinley 	 



(Signature page to the Investor Rights Agreement)





 









 









          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.



	 	 	 	 	 
	 	INVESTOR:

 	 
	 	/s/ Thorlef Spickschen
 	 
	 	Dr. Thorlef Spickschen 	 



(Signature page to the Investor Rights Agreement)




 









 









          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.



	 	 	 	 	 
	 	INVESTOR:

 	 
	 	/s/ Andrew R. Allen
 	 
	 	Andrew R. Allen 	 
	 	 	 



 









 






	 	 	 	 	 




          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.



	 	 	 	 	 
	 	INVESTOR:

 	 
	 	/s/ Gillian C. Ivers-Read
 	 
	 	Gillian C. Ivers-Read 	 
	 	 	 



 









 






	 	 	 	 	 




          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.



	 	 	 	 	 
	 	INVESTOR:

 	 
	 	/s/ Erle T. Mast
 	 
	 	Erle T. Mast 	 
	 	 	 



 









 






	 	 	 	 	 




          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.



	 	 	 	 	 
	 	INVESTOR:

 	 
	 	/s/ Cynthia Y. Scott
 	 
	 	Cynthia Y. Scott 	 
	 	 	 



 









 






	 	 	 	 	 




          The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.



	 	 	 	 	 
	 	INVESTOR:



MICHAEL & DEANNE BORER FAMILY 

TRUST DATED DECEMBER 7, 2001

 	 
	 	By:  	/s/ Michael Borer
 	 
	 	 	Name:  	Michael Borer 	 
	 	 	Title:  	Treasurer 	 



 









 






	 	 	 	 	 




     The parties are signing this Investor Rights Agreement as of the date stated in the
introductory clause.



	 	 	 	 	 
	 	FOUNDERS:

 	 
	 	/s/ Patrick J. Mahaffy
 	 
	 	Patrick J. Mahaffy 	 
	 
	 	                           /s/ Erle T. Mast
 	 
	 	Erle T. Mast 	 
	 
	 	                         /s/ Gillian C. Ivers-Read
 	 
	 	Gillian C. Ivers-Read 	 
	 
	 	                         /s/ Andrew R. Allen
 	 
	 	Andrew R. Allen 	 
	 	 	 
	 




 












 





EXHIBIT A




INVESTORS



Versant Venture Capital IV, L.P.

Attn: Brian Atwood

3000 Sand Hill Road 4/210

Menlo Park, CA 94025

Phone: 650-233-7877

Fax: 650-854-9513




Versant Side Fund IV, L.P.

Attn: Brian Atwood

3000 Sand Hill Road 4/210

Menlo Park, CA 94025

Phone: 650-233-7877

Fax: 650-854-9513




Aberdare Ventures IV, L.P.

Attn: Paul H. Klingenstein

One Embarcadero Center, Suite 4000

San Francisco, CA 94111

Phone: 415-392-7442

Fax: 415-392-4264




Aberdare Partners IV, L.P.

Attn: Paul H. Klingenstein

One Embarcadero Center, Suite 4000

San Francisco, CA 94111

Phone: 415-392-7442

Fax: 415-392-4264




Abingworth Bioventures V, L.P.

Attn: Jonathan MacQuitty

3000 Sand Hill Road

Bldg. 4, Suite 135

Menlo Park, CA 94025

Phone: 650-926-0600

Fax: 650-926-9782




Domain Partners VII, L.P.

Attn: Kathleen K. Schoemaker

One Palmer Square, Suite 515

Princeton, NJ 08542

Phone: 609-683-5656

Fax: 609-683-9789




 









 





DP VII Associates, L.P.

Attn: Kathleen K. Schoemaker

One Palmer Square, Suite 515

Princeton, NJ 08542

Phone: 609-683-5656

Fax: 609-683-9789




NEA Ventures 2009, Limited Partnership

Attn: Louis Citron

1119 St. Paul Street

Baltimore, MD 21202

Phone: (410) 244-0115

Fax: (410) 752-7721




New Enterprise Associates 13, Limited Partnership

Attn: Louis Citron

1119 St. Paul Street

Baltimore, MD 21202

Phone: (410) 244-0115

Fax: (410) 752-7721




Frazier Healthcare VI, LP

Attn: Alan Frazier

601 Union Street, Two Union Square, Suite 3200

Seattle, WA 98101

Phone: 206-621-7200

Fax: 206-621-1848




ProQuest Investments IV, L.P.

Attn: Pasquale DeAngelis

90 Nassau Street

Fifth Floor

Princeton, NJ 08542

Phone: (609) 919-3567

Fax: (609) 919-3570




Edward J. McKinley

1482 East Valley Road, Suite 678

Montecito, CA 93108-1200

Phone: 269 426 0800

Email: ejm@mckinley.uk.com




Patrick J. Mahaffy

1006 6th Street

Boulder, CO 80302

Phone: 720 427 9101

Email: pjm@mahaffyconstruction.com




 









 





Dr. Thorlef Spickschen

Traubenweg 25, D-64342

Seeheim, Germany

Phone: 49-6257-9628-47

Fax: 49-6257-9628-48




Erle T. Mast

6701 Niwot Hills Drive

Niwot, CO 80503

Phone: 720-220-9122

Email: etmast@comcast.net




Gillian C. Ivers-Read

802 Neon Forest Circle

Longmont, CO 80504

Phone: 303-485-6044

E-mail: gilljuan@yahoo .com




Andrew R. Allen

2665 Leavenworth Street

San Francisco, CA 94133

Phone: 510-610-8684

Email: andrew.allen@talk21.com




Cynthia Y. Scott

845 5th Street

Boulder, CO 80302

Phone: 303 444 5540

Email: scottmahaffyclan@gmail.com




Michael & Deanne Borer Family Trust Dated December 7, 2001

Attn: Michael Borer

806 N. Rios Avenue

Solana Beach, CA 92075-1250

Email: mborerxcel@yahoo.com




 









 





EXHIBIT B




FOUNDERS



Patrick J. Mahaffy

1006 6th Street

Boulder, CO 80302

Phone: 720 427 9101

Email: pjm@mahaffyconstruction.com




Erle T. Mast

6701 Niwot Hills Drive

Niwot, CO 80503

Phone: 720-220-9122

Email: etmast@comcast.net




Gillian C. Ivers-Read

802 Neon Forest Circle

Longmont, CO 80504

Phone: 303-485-6044

E-mail: gilljuan@yahoo .com




Andrew R. Allen

2665 Leavenworth Street

San Francisco, CA 94133

Phone: 510-610-8684

Email: andrew.allen@talk21.com




 









 





SCHEDULE 1




NOTICE AND WAIVER/ELECTION OF

RIGHT OF FIRST REFUSAL



          I do hereby waive or exercise, as indicated below, my rights of first refusal under the
Investor Rights Agreement dated as of [_____________] (the “Agreement”):





	1.	 	Waiver of [___] days’ notice period in which to exercise right of first refusal: (please
check only one)






	 	(      )	 	 WAIVE in full, on behalf of all Holders, the [___]-day
notice period provided to exercise my right of first refusal granted under the
Agreement.
	 
	 	(      )	 	 DO NOT WAIVE the notice period described above.






	2.	 	Issuance and Sale of New Securities: (please check only one)






	 	(      )	 	 WAIVE in full the right of first refusal granted under the
Agreement with respect to the issuance of the New Securities.
	 
	 	(      ) 	 	 ELECT TO PARTICIPATE in $__________ (please provide amount)
in New Securities proposed to be issued by Clovis Oncology, Inc., a Delaware
corporation, representing LESS than my pro rata portion of the aggregate of
$[_______] in New Securities being offered in the financing.
	 
	 	(      )	 	 ELECT TO PARTICIPATE in $__________ in New Securities
proposed to be issued by Clovis Oncology, Inc., a Delaware corporation,
corporation, representing my FULL pro rata portion of the aggregate of
$[_______] in New Securities being offered in the financing.




Date: ________________




	 	 	 

	 

	 	 
	 

	 	(Print investor name)
	 
	 	 
	 

	 	 
	 

	 	(Signature)
	 
	 	 
	 

	 	 
	 

	 	(Print name of signatory, if signing for an entity)
	 
	 	 
	 

	 	 
	 

	 	(Print title of signatory, if signing for an entity)






This is neither a commitment to purchase nor a commitment to issue the New Securities described
above. Such issuance can only be made by way of definitive documentation related to such issuance.
The company will supply you with such definitive documentation upon request or if you indicate
that you would like to exercise your first offer rights in whole or in part.