Exhibit
4.5


 


Form of Management Rights Letter


 


February [·], 2007


 


<insert name of
Investor>


<insert address>


 


Dear Sirs:


 


This letter will confirm
our agreement that, in connection with your investment in Ikaria Holdings, Inc.,
a Delaware corporation (the “Company”), pursuant to the Preferred Stock
Purchase Agreement, dated as of February [·], 2007, by and among the
Company, [·], a [·] (“Investor”), and the other purchasers of certain securities of
the Company (as such agreement may be amended from time to time, the “Preferred
Stock Purchase Agreement”), Investor will be entitled to the following
contractual management rights relating to the Company (collectively, the “Management
Rights”).


 


1.             Investor shall be entitled to routinely consult with and advise management
of the Company with respect to operations of the Company and its direct and
indirect subsidiaries, including all the Company’s business and financial
matters and management’s proposed annual operating plans, and management will
meet regularly during each year with representatives of Investor (the “Representatives”)
at the Company’s facilities at mutually agreeable times for such consultation
and advice, including to review progress in achieving said plans. The Company
shall give Investor reasonable advance written notice of any significant new
initiatives or material changes to existing operating plans of the Company and
its direct and indirect subsidiaries and shall afford Investor adequate time to
meet with management to consult on such initiatives or changes prior to
implementation. The Company agrees to give due consideration to the advice
given and any proposals made by Investor.


 


2.             Investor may inspect all documents, contracts, books, records, personnel,
offices and other facilities and properties of the Company and its direct and
indirect subsidiaries and, to the extent available to the Company after the
Company uses reasonable efforts to obtain them, the records of its legal
advisors and accountants, including the accountants’ work papers, and Investor
may make such copies and inspections thereof as Investor may reasonably
request. The Company shall furnish Investor with such financial and operating
data and other information with respect to the business and properties of the
Company and its direct and indirect subsidiaries as Investor may request.
Notwithstanding the foregoing, the Company shall be permitted to exclude
Investor from access to any materials to the extent that such exclusion is
reasonably necessary to preserve the attorney-client privilege. The Company
shall permit the Representatives to discuss the affairs, finances and accounts
of the Company and its direct and indirect subsidiaries with the principal
officers of the Company and to make proposals and furnish advice with respect
thereto to such persons.


 


3.             The Company shall deliver to Investor:


 

















 


(a)           as soon as available and in
any event within 45 days after the end of each of the first three quarters of
each fiscal year of the Company, consolidated balance sheets of the Company and
its direct and indirect subsidiaries as of the end of such period then ended,
and consolidated statements of income and cash flows of the Company and its
direct and indirect subsidiaries for the period then ended, in each case
prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis, except as otherwise noted therein
and subject to the absence of footnotes and to year-end adjustments;


 


(b)           as soon as available and in
any event within 120 days after the end of each fiscal year of the Company, a
consolidated balance sheet of the Company and its direct and indirect
subsidiaries as of the end of such year, and consolidated statements of income
and cash flows of the Company and its direct and indirect subsidiaries for the
year then ended, in each case prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis,
except as otherwise noted therein, together with an auditor’s report thereon of
a firm of established national reputation; and


 


(c)           to the extent the Company or
any direct or indirect subsidiary is required by law or pursuant to the terms
of any outstanding indebtedness of the Company or any direct or indirect
subsidiary to prepare such reports, any annual reports, quarterly reports and
other periodic reports pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, prepared by the Company or any
direct or indirect subsidiary as soon as available.


 


4.             Investor agrees, and shall
cause each its Representatives to agree, to hold in confidence and trust and
not use or disclose any confidential information provided to or learned by it
in connection with the exercise of Investor’s Management Rights under this letter
agreement, unless otherwise required by law or unless such confidential
information otherwise becomes publicly available or available to it other than
through this letter agreement.


 


5.             The rights set forth in this
letter agreement shall terminate and be of no further force or effect upon the
date Investor no longer holds any securities of the Company. The
confidentiality provisions hereof will survive any such termination.


 


6.             The rights set forth in this
letter agreement are intended to satisfy the requirement of contractual
management rights for purposes of qualifying Investor’s interests in the
Company as venture capital investments for purposes of the Department of Labor’s
“plan assets” regulations, and in the event that, after the date hereof, as a
result of any change in applicable law or regulation or a judicial or
administrative interpretation of applicable law or regulation, it is determined
that such rights are not satisfactory for such purpose, Investor and the
Company shall reasonably cooperate in good faith to agree upon mutually
satisfactory management rights which satisfy such regulations.


 


7.             The Company agrees that, at
any time after the date hereof, upon the request of Investor and in connection
with any sale or other transfer by Investor of its shares of preferred stock of
the Company, the Company shall: (i) provide each transferee with
management rights substantially similar to those provided to Investor under
this letter agreement, if such rights would facilitate the transferee’s ability
to meet or comply with any regulatory or legal requirement or standard,
including such rights as are necessary to cause the investment by the


 


2

















 


transferee
to constitute a “venture capital investment” for purposes of the Department of
Labor’s “plan assets regulation”, (ii) provide such transferee with such
other rights as may be reasonably necessary for such transferee to comply with
any other regulatory scheme to which such transferee may be subject and (iii) subject
to any applicable restrictions on transfer, take any actions reasonably
necessary to effectuate or facilitate such sale or transfer to such transferee.


 


8.             This letter agreement may not be amended, modified or canceled except by
written agreement of all parties hereto. This letter agreement is intended to
be a legal and binding obligation of Investor and the Company.


 


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


 


10.           By execution and delivery of this letter agreement, each of the parties
hereto hereby irrevocably and unconditionally (i) consents to submit to
the exclusive jurisdiction of the federal and state courts located in the State
of New York in New York County (collectively, the “Selected Courts”) for any action or proceeding arising out of or relating to this letter
agreement, and agrees not to commence any action or proceeding relating thereto
except in the Selected Courts (provided, that a party may commence any action or proceeding in a court other than
a Selected Court solely for the purpose of enforcing an order or judgment issued
by one of the Selected Courts); (ii) consents to service of any process,
summons, notice or document in any action or proceeding by registered
first-class mail, postage prepaid, return receipt requested or by nationally
recognized courier guaranteeing overnight delivery in accordance with Section 10.2
of the Preferred Stock Purchase Agreement and agrees that such service of
process shall be effective service of process for any action or proceeding
brought against it in any such Selected Court (provided, that nothing herein shall affect the right of any party hereto to serve
process in any other manner permitted by law); (iii) waives any objection
to the laying of venue of any action or proceeding arising out of this letter
agreement in the Selected Courts; and (iv) waives and agrees not to plead
or claim in any Selected Court that any such action or proceeding brought in
any such Selected Court has been brought in an inconvenient forum.


 


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


 


[Signature Page Follows]


 


3

















 


	
   

  	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
  IKARIA
  HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


 


	
  AGREED
  AND ACCEPTED THIS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [·] day of [·],
  2007

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  <insert
  name of Investor>

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title: