Exhibit 4.3


 


EXECUTION COPY


 


INVESTOR
STOCKHOLDERS AGREEMENT


 


by and among


 


IKARIA HOLDINGS, INC.,


 


NEW MOUNTAIN PARTNERS II,
L.P.,


 


NEW MOUNTAIN AFFILIATED
INVESTORS II, L.P.,


 


ALLEGHENY NEW MOUNTAIN
PARTNERS, L.P.,


 


ARCH VENTURE FUND VI, L.P.,


 


VENROCK PARTNERS, L.P.,


 


VENROCK ASSOCIATES IV, L.P.,


 


VENROCK ENTREPRENEURS FUND
IV, L.P.,


 


5AM VENTURES LLC,


 


5AM CO-INVESTORS LLC,


 


ARAVIS VENTURE I L.P.,


 


BLACK POINT GROUP, LP,


 


LINDE GAS INC.,


 


and


 


CERTAIN OTHER PERSONS WHO
ARE SIGNATORIES HERETO


 


dated as of


 


March 28, 2007


 

















 


INVESTOR STOCKHOLDERS
AGREEMENT, dated as of March 28, 2007, by and among (i) Ikaria
Holdings, Inc., a Delaware corporation, (ii) New Mountain Partners
II, L.P., a Delaware limited partnership, New Mountain Affiliated Investors II,
L.P., a Delaware limited partnership, and Allegheny New Mountain Partners,
L.P., a Delaware limited partnership (collectively, the “NMP Entities”),
(iii) ARCH Venture Fund VI, L.P., a Delaware limited partnership (“ARCH”),
(iv) Venrock Partners, L.P., a Delaware limited partnership, Venrock
Associates IV, L.P., a Delaware limited partnership, and Venrock Entrepreneurs
Fund IV, L.P., a Delaware limited partnership (collectively, “Venrock”),
(v) 5AM Ventures LLC, a Delaware limited liability company, 5AM Co-Investors
LLC, a Delaware limited liability company, and Aravis Venture I L.P, a Cayman
Islands limited partnership (collectively, “5AM”), (vi) Black Point
Group, LP, a Delaware limited partnership (“Black Point”), (vii) Linde
Gas Inc., a Delaware corporation (“Linde”, and together with the NMP
Entities, ARCH, Venrock, 5AM and Black Point, the “Investors”), and (viii) such
other Holders who are signatories hereto on the date hereof or who will become
signatories hereto from time to time as provided for herein.


 


WHEREAS, pursuant to an
Agreement and Plan of Merger, dated as of February 22, 2007 (the “Merger
Agreement”), among the Company, Ikaria Merger Sub Inc., a Delaware
corporation and a wholly owned subsidiary of the Company (“Merger Sub”),
and Ikaria, Inc., a Delaware corporation (“Ikaria”), Merger Sub,
immediately prior to the consummation of the INO Acquisition, is being merged
with and into Ikaria, with Ikaria the surviving entity (the “Ikaria Merger”),
and the stockholders of Ikaria will by virtue of the Ikaria Merger become
stockholders of the Company.


 


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


 


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


 


NOW THEREFORE, the parties
hereto agree as follows:


 


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


 


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


 

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


1.9.          “Business Day” means any day other than a Saturday,
Sunday, or any federal or State of New York or Washington holiday or day on
which banks are required or authorized to close in New York, New York or
Seattle, Washington, or, with respect to the matters set forth in Section 2,
any day on which the SEC is required or authorized to close.  If any period expires on a day which is not a
Business Day or any event or condition is required by the terms of this
Agreement to occur or be fulfilled on a day which is not a Business Day, such
period shall expire or such event or condition shall occur or be fulfilled, as
the case may be, on the next succeeding Business Day.


 


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


 


1.11.        “Certificate of Incorporation” means the Amended and
Restated Certificate of Incorporation of the Company, as it may be amended,
restated, supplemented or modified from time to time.


 


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


 


1.13.        “Common Stock” means any shares of common stock, par
value $0.01 per share, of the Company, now or hereafter authorized to be
issued, and any and all securities of any kind whatsoever of the Company or any
successor thereof which may be issued on or after the date hereof in respect
of, in exchange for, or upon conversion of shares of Common Stock 


 


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pursuant to a merger, consolidation, stock split, reverse split, stock
dividend, recapitalization of the Company or otherwise.


 


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


 


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


 


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


 


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


 


1.18.        “Credit Agreement” means the Credit Agreement, dated
as of the date hereof, by and among Ikaria Acquisition, the Company, the
lenders party thereto and Credit Suisse, as the administrative agent and
collateral agent.


 


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


 


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


 


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


 


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


 


1.23.        “Designated Directors” has the meaning set forth in Section 9.1(d).


 


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


 


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


 


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


 


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


 


1.28.        “Exchange Act” means the Securities Exchange Act of
1934, as amended, or any similar federal statute, and the rules and
regulations of the SEC thereunder, all as the same 


 


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shall be in effect at the time. 
Reference to a particular section of the Exchange Act shall include a
reference to the comparable section, if any, of any such similar federal
statute.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


1.44.        “Independent Directors” has the meaning set forth in Section 9.1(e).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


1.54.        “Linde Director” has the meaning set forth in Section 9.1(d).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


1.63.        “NASD” means National Association of Securities
Dealers, Inc.


 


1.64.        “Nasdaq” has the meaning set forth in Section 2.3(a)(x).


 


1.65.        “NMP Directors” has the meaning set forth in Section 9.1(a).


 


1.66.        “NMP Entities” has the meaning set forth in the
preamble.


 


1.67.        “NMP Holder” means any of the NMP Entities and any
Persons to whom any shares of Capital Stock were transferred by an NMP Holder
in compliance with the terms hereof, other than in a public offering or in a
sale pursuant to Rule 144 promulgated by the SEC under the Securities Act.


 


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


 


1.69.        “Offered Percentage” means, as to any Series B
Holder at any time of determination, the percentage obtained by dividing (a) the
number of shares of Series B Preferred Stock Beneficially Owned by such Series B
Holder at such time (including any Series B Preferred Stock of such Series B
Holder that has been converted into Common Stock if such Common Stock is still
Beneficially Owned by such Series B Holder or a Permitted Transferee) by (b) the
aggregate number of shares of Series B Preferred Stock held by all Series B
Holders at such time (including any Series B Preferred Stock of any Series B
Holder that has been converted into Common Stock if such Common Stock is still
Beneficially Owned by such Series B Holder or a Permitted Transferee); provided
that, (A) for purposes of calculating Offered Percentages for Section 7.2,
if the Offered Stock being sold by the Transferring Holder consists of Series B
Preferred Stock, then the shares of Series B Preferred Stock owned by the
Transferring Holder shall be excluded from the number of shares of Series B
Preferred Stock referred to in clause (b); and (B) for purposes of
calculating Offered Percentages for Section 7.3, if the Offered Stock
being sold by the Transferring Holder consists of Series A Preferred
Stock, then the number of shares of Series A Preferred Stock owned by the
Transferring Holder shall be added to the number of shares of Series B
Preferred Stock referred to in clause (b).


 


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


 


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


 


1.72.        “Original Holder” means any Person that is acquiring
shares of Preferred Stock on the date hereof in the Contemplated Transactions
and whose name is listed on Schedule 2 hereto under the caption “Original Series A
Holder” or “Original Series B Holder”.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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of any Series B Holder that has been converted into Common Stock
if such Common Stock is still Beneficially Owned by such Series B Holder
or a Permitted Transferee).


 


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


 


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


 


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


 


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


 


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


 


1.87.        “Registrable Securities” means any shares of Common
Stock issued upon conversion of any shares of Preferred Stock held by a
Holder.  For purposes of this Agreement,
a Person will be deemed to be a Holder of Registrable Securities whenever such
Person has the right to acquire, directly or indirectly, such Registrable
Securities upon conversion, exercise or exchange of any Convertible Securities,
whether or not such acquisition has actually been effected, and such Person
shall not be required to convert, exercise or exchange such Convertible
Security (or otherwise acquire such Registrable Security) to participate on any
registered offering hereunder until the closing of such offering.  As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when (a) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (b) such
securities shall have been sold to the public pursuant to Rule 144 under
the Securities Act or (c) such securities shall have ceased to be
outstanding.


 


1.88.        “Registration Expenses” means all fees and expenses
incurred in connection with the Company’s performance of or compliance with Section 2,
including, without limitation, (i) all registration, filing and applicable
SEC fees, NASD fees, national securities exchange or inter-dealer quotation
system fees, and fees and expenses of complying with state securities or blue
sky laws (including, without limitation, fees and disbursements of counsel to
the underwriters and the Participating Holders in connection with “blue sky”
qualification of the Registrable Securities and determination of their
eligibility for investment under the laws of the various jurisdictions), (ii) all
printing (including, without limitation, printing certificates for the
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and printing preliminary and final prospectuses), word processing,
duplicating, telephone and facsimile expenses, and messenger and delivery
expenses, (iii) all fees and disbursements of counsel for the Company and
of its independent public accountants, including, without limitation, the
expenses of “cold comfort” letters or any special audits required by, or
incident to, such registration, (iv) all reasonable fees and expenses of
one law firm or other counsel (separate from counsel to the Company) selected
by the Majority Participating Holders, (v) all reasonable fees and
expenses of one firm of accountants (separate from the Company’s accountants)
selected by the Majority Participating Holders, (vi) all fees and expenses
of any special experts or other Persons retained by the Company in connection
with any registration, (vii) Securities 


 


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Act liability insurance or similar insurance if the Company so desires
or the underwriters so require in accordance with then-customary underwriting
practices, (viii) all applicable rating agency fees with respect to the
Registrable Securities, (ix) all fees and expenses of a Qualified
Independent Underwriter (as such term is defined in Schedule E to the By-Laws
of the NASD) and its counsel, (x) all fees and disbursements of the
underwriters (other than underwriting discounts and commissions), and (xi) all
expenses incurred in connection with promotional efforts or “roadshows”; provided,
however, that Registration Expenses shall exclude, and the Participating
Holders shall (severally, in respect of the securities sold by such
Participating Holder in connection with such registration) pay, all underwriting
discounts and commissions in respect of the Registrable Securities being
registered for such Participating Holders.


 


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


 


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


 


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


 


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


 


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


 


1.94.        “Sale Obligations” means any liabilities and
obligations (including, without limitation, liabilities and obligations for
indemnification, amounts paid into escrow and post-closing adjustments)
incurred by the Holders and their Affiliates in connection with any sale
pursuant to Section 7.3 or transaction pursuant to Section 7.4; provided
that the Sale Obligations of any Holder shall not exceed the amount of
consideration (net of expenses) received by such Holder in any such sale or
transaction.


 


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


 


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


 


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


 


1.98.        “Section 4 Termination Date” means the earliest
date on which (i) the aggregate amount of Series B Preferred Stock then
Beneficially Owned by the NMP Holders (including any Series B Preferred
Stock of any of the NMP Holders that has been converted into Common Stock if
the Common Stock is still Beneficially Owned by an NMP Holder) constitutes less
than 50% of the aggregate amount of Series B Preferred Stock Beneficially
Owned by the NMP Holders immediately following the Closing or (ii) the
aggregate amount of Capital Stock then Beneficially Owned by the NMP Holders
constitutes less than 20% of the outstanding Capital Stock.


 


1.99.        “Securities Act” means the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of
the SEC thereunder, all as the same shall 


 


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be in effect at the time. 
References to a particular section of the Securities Act shall include a
reference to the comparable section, if any, of any such similar federal
statute.


 


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


 


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


 


1.102.      “Series A Holder” means any
Person that is acquiring Series A Preferred Stock on the date hereof in
the Contemplated Transactions and who has executed this Agreement (and whose
name is listed on Schedule 2 hereto under the caption “Series A Holder”),
any Permitted Transferee of such Person that acquires Series A Preferred
Stock on or after the date hereof, and any other Person that acquires Series A
Preferred Stock after the date hereof and that has executed a written agreement
(which may be in the form of a counterpart to this Agreement) satisfactory to
the Company agreeing to be bound by this Agreement as a Series A Holder.


 


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


 


1.104.      “Series B Holder” means any
Person that is acquiring Series B Preferred Stock on the date hereof in
the Contemplated Transactions (and whose name is listed on Schedule 2 hereto
under the caption “Series B Holder”), any Permitted Transferee of such
Person that acquires Series B Preferred Stock on or after the date hereof,
and any other Person that acquires Series B Preferred Stock after the date
hereof and that has executed a written agreement (which may be in the form of a
counterpart to this Agreement) satisfactory to the Company agreeing to be bound
by this Agreement as a Series B Holder.


 


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


 


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


 


1.107.      “Series C Preferred Stock”
means any shares of the Series C Non- Convertible Preferred Stock, $0.01
par value per share, of the Company.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


1.115.      “2007 Stock Option Plan” means the
Company’s 2007 Stock Option Plan, as in effect on the date hereof, and as it
may be amended, from time to time, with the Requisite Approval.


 


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


 


1.117.      “Venrock Director” has the meaning
set forth in Section 9.1(c).


 


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


 


SECTION 2.           Registration Under Securities Act.


 


2.1.          Registration on Demand.


 


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


 


11

















 


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


 


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


 


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


 


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


 


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


 


12

















 


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


 


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


 


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


 


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


 


13

















 


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


 


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


 


(j)            Postponement. 
The Company shall be entitled once in any twelve-month period to
postpone for a reasonable period of time (but not exceeding 90 days) (the “Postponement
Period”) the filing of any registration statement required to be prepared
and filed by it pursuant to this Section 2.1, if the Company determines,
in its reasonable judgment upon advice of counsel, as authorized by a
resolution of its Board, that such registration and offering would require
premature disclosure of any material financing, material corporate
reorganization or other material transaction involving the Company, and
promptly gives the Participating 


 


14

















 


Holders written notice of such determination, containing a specific
statement of the reasons for such postponement and an approximation of the
anticipated delay.


 


2.2.          Incidental Registration.


 


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


 


(b)           Right to Withdraw; Option to Participate in Shelf
Takedowns.  Any Holder shall have the
right to withdraw its request for inclusion of Registrable Securities in any
registration statement pursuant to this Section 2.2 at any time prior to
the effective date of such registration statement by giving written notice to
the Company of its request to withdraw. 
In the event that the Holder has requested inclusion of Registrable
Securities in a shelf registration, the Holder shall have the right, but not
the obligation, to participate in any offering of the Company’s equity
securities under such shelf registration.


 


15

















 


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


 


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


 


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


 


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


 


16

















 


2.3.          Registration Procedures.


 


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


 


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


 


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


 


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


 


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


 


17

















 


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


 


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


 


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


 


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


 


18

















 


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


 


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


 


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


 


(x)            (A) use its best efforts to cause all Registrable Securities
covered by such registration statement to be listed on the principal securities
exchange on which similar securities issued by the Company are then listed (if
any), if the listing of such Registrable Securities is then permitted under the
rules of such exchange, or (B) if no similar securities are then so
listed, use its best efforts to (1) cause all such Registrable Securities
to be listed on a national securities exchange or (2) secure designation
of all such Registrable Securities as a National Association of Securities
Dealers, Inc. Automated Quotation System (“Nasdaq”) “national
market system security” within the meaning of Rule 11Aa2-1 of the SEC or (3) failing
that, to secure Nasdaq authorization for such shares and, without limiting the
generality of the foregoing, to arrange for at least two market makers to
register as such with respect to such shares with the NASD;


 


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


 


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


 


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


 


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


 


19














 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(xxii)        take no direct or indirect action
prohibited by Regulation M under the Exchange Act; provided, however,
that to the extent that any prohibition is applicable 


 


20

















 


to the Company, the Company will take such action as is necessary to
make any such prohibition inapplicable.


 


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


 


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


 


(d)           To the extent the Company is a well-known seasoned issuer
(as defined in Rule 405 under the Securities Act) (a “WKSI”) at the
time any Holder Demand is submitted to the Company, and such Holder Demand
requests that the Company file an automatic shelf registration statement (as
defined in Rule 405 under the Securities Act) on Form 


 


21

















 


S-3, the Company shall file an automatic shelf registration statement
which covers those Registrable Securities which are requested to be
registered.  The Company shall use its
best efforts to remain a WKSI (and not become an ineligible issuer (as defined
in Rule 405 under the Securities Act)) during the period during which such
automatic shelf registration statement is required to remain effective.  If the Company does not pay the filing fee
covering the Registrable Securities at the time the automatic shelf
registration statement is filed, the Company agrees to pay such fee at such
time or times as the Registrable Securities are to be sold.  If the automatic shelf registration statement
has been outstanding for at least three years, at the end of the third year the
Company shall refile a new automatic shelf registration statement covering the
Registrable Securities.  If at any time
when the Company is required to re-evaluate its WKSI status the Company
determines that it is not a WKSI, the Company shall use its best efforts to
refile the shelf registration statement on Form S-3 and, if such form is
not available, Form S-1, and keep such registration statement effective
during the period during which such registration statement is required to be
kept effective.


 


2.4.          Underwritten Offerings.


 


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


 


(b)           Incidental Underwritten Offerings.  In the case of a registration pursuant to Section 2.2,
if the Company shall have determined to enter into an underwriting agreement in
connection therewith, all of the Registrable Securities to be included in such
registration shall be subject to such underwriting agreements.  The Participating Holders may, at their
option, require that any or all of the representations and warranties by, and
the other 


 


22

















 


agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of the Participating
Holders and that any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement be conditions precedent to
the obligations of the Participating Holders. 
None of the Participating Holders shall be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such Participating Holder, its ownership of and title to the Registrable
Securities and its intended method of distribution; and any liability of any
Participating Holder to any underwriter or other Person under such underwriting
agreement shall be limited to liability arising from breach of its
representations and warranties and shall be limited to its Participating Holder
Cap, except in the case of willful fraud by such Participating Holder.


 


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


 


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


 


23

















 


2.6.          Indemnification.


 


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


 


(b)           Indemnification by Participating Holders.  As a condition to including any Registrable
Securities in any registration statement, the Company shall have received an
undertaking reasonably satisfactory to it from each Participating Holder so
including any Registrable Securities to, severally and not jointly, indemnify
and hold harmless, to the fullest extent permitted by law, (i) the
Company, each director and officer of the Company, and each other Person, if
any, who controls the Company (within the meaning of the Securities Act or
Exchange Act) and (ii) any underwriters of the Registrable Securities,
their officers and directors and each Person who controls such underwriters
(within the meaning of the Securities Act or the Exchange Act), from and
against any Losses to which such indemnified parties have 


 


24

















 


become or may become subject under the Securities Act or otherwise,
insofar as such Losses arise out of, relate to or are based upon any statement
or alleged statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, but only to the
extent such statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished by
such Participating Holder to the Company specifically for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement, and such Participating
Holder shall reimburse such indemnified party for any reasonable legal or any
other fees or expenses reasonably incurred by them in connection with
investigating or defending any such Loss; provided, however, that
no Participating Holder shall have any liability under clause (ii) above
to an underwriter or its officers, directors or controlling Persons if the
written information furnished by such Participating Holder was corrected, such
corrected information was included in a subsequent prospectus which was timely
delivered to such underwriter, and such underwriter failed to deliver such
corrected prospectus to the purchaser of the Registrable Securities.  Each Participating Holder shall also
indemnify and hold harmless all other prospective sellers and Participating
Holders, their respective Affiliates, officers, directors, successors, assigns,
members, partners, stockholders, employees, advisors, representatives, and
agents, and each Person who controls (within the meaning of the Securities Act
or the Exchange Act) any such seller or Participating Holder to the same extent
as provided above with respect to indemnification of the Company and
underwriters.  Notwithstanding the
foregoing, the aggregate liability of a Participating Holder under this Section 2.6(b) shall
be limited to its Participating Holder Cap in respect of the offering giving
rise to such liability, except in the case of willful fraud by such
Participating Holder.


 


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


 


(d)           Defense of Claims. 
In case any such action or proceeding is brought against an indemnified
party, except as provided for in the next sentence, the indemnifying party
shall be entitled to participate therein and assume the defense thereof,
jointly with any other indemnifying party, with counsel reasonably satisfactory
to such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by the indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party for any legal expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
costs of investigation and the indemnified party shall be entitled to
participate in such defense at its own expense. 
If (i) the indemnifying party fails to notify the indemnified party
in writing, within 15 days after the indemnified party has given notice of the
action or proceeding, 


 


25

















 


that the indemnifying party will indemnify the indemnified party from
and against all Losses the indemnified party may suffer resulting from, arising
out of, relating to, in the nature of, or caused by the claim, (ii) the
indemnifying party fails to provide the indemnified party with evidence
acceptable to the indemnified party that the indemnifying party will have the
financial resources to defend against the claim or proceeding and fulfill its
indemnification obligations hereunder, (iii) after electing to participate
in and assume the defense of such action or proceeding, the indemnifying party
fails to defend diligently the action or proceeding within 10 Business Days
after receiving notice of such failure from such indemnified party, (iv) such
indemnified party reasonably shall have concluded (upon advice of its counsel)
that there may be one or more legal defenses available to such indemnified
party or other indemnified parties which are not available to the indemnifying
party, or (v) if such indemnified party reasonably shall have concluded
(upon advice of its counsel) that, with respect to such claims, the indemnified
party and the indemnifying party may have different, conflicting, or adverse
legal positions or interests then, in any such case, the indemnified party
shall have the right to assume or continue its own defense and the indemnifying
party shall be liable for any fees and expenses therefor.


 


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


 


(f)            Contribution. 
If for any reason the indemnification provided for in Sections 2.6(a), (b) or
(g) is unavailable to an indemnified party or insufficient in respect of
any Losses referred to therein, then, in lieu of the amount paid or payable
under Sections 2.6(a), (b) or (g), the indemnifying party shall contribute
to the amount paid or payable by the indemnified party as a result of such Loss
(i) in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand, and the indemnified party on the other,
with respect to the statements or omissions which resulted in such Loss, as
well as any other relevant equitable considerations, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law
or if the allocation provided in this clause (ii) provides a greater
amount to the indemnified party than clause (i) above, in such proportion
as shall be appropriate to reflect not only the relative fault but also the
relative benefits received by the indemnifying party and the indemnified party
from the offering of the securities covered by such registration statement as
well as any other relevant equitable considerations.  The relative fault shall be determined by a 


 


26

















 


Selected Court with reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the indemnifying party or the indemnified party and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission.  The
parties hereto agree that it would not be just and equitable if contributions
pursuant to this Section 2.6(f) were to be determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the preceding sentence of
this Section 2.6(f).  No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.  The amount paid or payable by an indemnified
party as a result of the Losses referred to in Sections 2.6(a), (b) or (g) shall
be deemed to include, subject to the limitations set forth in Sections 2.6(a), (b) and
(g), any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.  Notwithstanding anything in this Section 2.6(f) to
the contrary, no Participating Holder shall be required to contribute any
amount in excess of its Participating Holder Cap in respect of the offering to
which the Losses of the indemnified parties relate, except in the case of
willful fraud by such Participating Holder.


 


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


 


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


 


2.7.          Limitation on Sale of Securities.


 


(a)           For the Company and Others.  If the Company receives a request for
registration pursuant to an underwritten offering of Registrable Securities
pursuant to Section 2.1 or 2.2, and if such a request is being implemented
or has not been withdrawn or abandoned, the Company agrees that (i) the
Company shall not effect any public or private offer, sale, distribution or
other disposition of any of its equity securities or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company or effect any registration of any of such securities under the
Securities Act (in each case, other than (x) as part of such registration,
(y) option grants to employees pursuant to the Company’s 2007 Stock Option
Plan, which grants received the Requisite Approval or the approval of the Board
(or a committee thereof), including the approval of at least one NMP Director,
or the grant of other rights under any other equity incentive plan, the
adoption of which plan received the Requisite Approval and which grants
received the Requisite Approval or the approval of the Board (or a committee 


 


27

















 


thereof), including the approval of at least one NMP Director, and (z) as
a registration using Form S-8 or any successor or similar form which is
then in effect), whether or not for sale for its own account, during the period
beginning on the date the Company receives such request until 180 days after
the effective date of such registration (or such shorter period as the managing
underwriter(s) may require) and (ii) the Company shall use its best
efforts to obtain from each of its officers, directors and Beneficial Owners of
5% or more of Common Stock, an agreement not to effect any public or private
offer, sale, distribution or other disposition of Common Stock or Convertible
Securities during the period referred to in clause (i) of this
paragraph.  The Company agrees to cause
each Beneficial Owner of Common Stock or Convertible Securities purchased or
otherwise acquired from the Company (other than in a public offering) at any
time after the date of this Agreement to agree not to effect any public or
private offer, sale, distribution or other disposition of any such securities
during the period referred to in clause (i) of the preceding sentence.


 


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


 


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


 


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


 


(iii)          if (A) the Company issues an earnings release, or
material news or a material event relating to the Company occurs, during the
last 17 days of the Restricted Period, or (B) prior to the expiration of
the Restricted Period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the Restricted
Period, the restrictions imposed by this clause (b) shall continue to
apply until the expiration of the 18-day period beginning on the issuance of
the earnings release or the occurrence of the material news or material event.


 


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


 


2.9.          Rule 144; Rule 144A; Regulation S.  The Company covenants that, at its own
expense, it will file the reports required to be filed by it under the
Securities Act and the Exchange Act, and it will take such further action as
any Holder may reasonably request, all to 


 


28

















 


the extent required from time to time to
enable such Holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rules 144,
144A or Regulation S under the Securities Act or (ii) any similar rule or
regulation hereafter adopted by the SEC. 
Upon the request of a Holder, the Company, at its own expense, will
promptly deliver to such Holder (i) a written statement as to whether it
has complied with such requirements (and such Holder shall be entitled to rely
upon the accuracy of such written statement), (ii) a copy of the most
recent annual or quarterly report of the Company and (iii) such other
reports and documents as such Holder may reasonably request in order to avail
itself of any rule or regulation of the SEC allowing it to sell any
Registrable Securities without registration.


 


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


 


SECTION 3.           Subsequent Registration Rights; No
Inconsistent Agreements.


 


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


 


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


 


29














 


the Company is not bound by any agreement with respect to its
securities granting any registration rights to any Person.


 


SECTION 4.           Negative Covenants.


 


4.1.          (a)           In addition to any
requirements imposed by the DGCL, the Company shall not, and shall cause each
of its subsidiaries not to, take any of the following actions without the prior
written approval of a majority of the votes entitled to be cast by the
Investors in respect of their shares of Series A Preferred Stock, Series B
Preferred Stock and Common Stock, voting together as a single class:


 


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


 


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


 


(iii)          except for borrowings and
other extensions of credit on the date of Closing to fund the transactions
contemplated by the Sale and Purchase Agreement and subsequent borrowings and
other extensions of credit for working capital and other general 


 


30

















 


corporate purposes in the maximum aggregate amount provided for under
the Credit Agreement as in effect on the date hereof, incur, create, suffer to
exist, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to any Indebtedness, or
refinance any Indebtedness (including by amendment of the Credit Agreement),
other than (x) Indebtedness incurred by a wholly owned subsidiary of the
Company to the Company or to another wholly owned subsidiary of the Company or
by the Company to a wholly owned subsidiary of the Company or (y) Indebtedness
(other than borrowings and other extensions of credit under the Credit
Agreement) which is permitted by the Credit Agreement to be outstanding
immediately after the consummation of the Contemplated Transactions;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


31

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


32

















 


4.5.          The Company shall not, and
shall cause each of its subsidiaries not to, take any of the following actions
(whether by amendment to such Entity’s governing documents, merger or
otherwise) without the prior written approval of (i) a majority of the
votes entitled to be cast by the Series B Holders, voting as a separate
class, and (ii) either (A) Linde or (B) one or more other Series B
Holders (other than the NMP Entities or any Affiliate thereof (other than
Affiliates solely by virtue of owning Preferred Stock)) which then Beneficially
Own, in the aggregate, at least 5% of the outstanding Series B Preferred
Stock (provided that this clause (ii) shall cease to be applicable on the
second anniversary of the Closing):


 


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


 


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


 


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


 


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


 


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


 


5.1.          Rights of First Offer to
Purchase Offered Securities.


 


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


 


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


 


33

















 


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


 


(ii)           in the case of a proposed
sale to a Person other than a strategic investor, each Series B Holder
that has elected to purchase its Pre-emptive Rights Percentage of such Offered
Securities may also purchase the aggregate number of Refused Securities
multiplied by such Series B Holder’s Pre-emptive Rights Percentage; and
the allocation of Refused Securities set forth in this Section 5.1(b) shall
be repeated with respect to any Refused Securities not allocated for purchase
until all Refused Securities have been allocated for purchase by Series B
Holders or until no Series B Holders desire to purchase additional Refused
Securities.


 


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


 


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


 


34

















 


purchasing Series B Holders otherwise agree (provided that, if
regulatory approval is required to be obtained by any Series B Holder,
then the closing of the purchase by such Series B Holder shall take place
on the later of the date set forth in the Purchase Notice and five Business
Days following receipt of regulatory approval).


 


5.4.          Terms of Purchase and Sale;
Revival of Rights.  If the Series B
Holders elect to purchase less than all of the Offered Securities, then,
subject to the provisions of Section 5.5(c), the Company may sell all or a
portion of the remaining Offered Securities to one or more other Persons (which
must be a strategic investor, if the Issuance Notice stated that the sale of
the Offered Securities is proposed to be to a strategic investor), for at least
the same price and on no less favorable terms to the Company than were set
forth in the Issuance Notice, within 90 days following the Last Election
Date.  If the Company does not consummate
the sale of all or part of the remaining Offered Securities to one or more of
such Persons within such time period, the rights provided in this Section 5
shall be deemed to be revived with respect to the Offered Securities that were
not so purchased, and such Offered Securities may not be sold unless first
re-offered to the Series B Holders in accordance with this Section 5.


 


5.5.          Additional Provisions.


 


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


 


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


 


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


 


5.6.          Termination.  The provisions of this Section 5 shall
terminate on the consummation of the sale of shares pursuant to a registration
statement relating to the 


 


35

















 


Company’s initial public offering of Common Stock and shall not be
applicable with respect to the sale of any securities of the Company in such
initial public offering.


 


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


 


6.1.          Rights of First Refusal.  If, at any time, the Company (or any holder
of Capital Stock of the Company) receives a bona fide offer from an IG Company
to purchase the Company, whether by means of the purchase of all or
substantially all of the assets or Capital Stock of the Company, a merger, a
consolidation or other business combination, which the Company desires to
accept (an “IG Offer”), the Company shall offer to sell to Linde and
Linde AG (all references to Linde in this Section 6 being to each of Linde
and Linde AG), and Linde shall have the right, but not the obligation, to
purchase, the Company on the same terms and subject to the same conditions as
are contained in the IG Offer and on the terms and subject to the conditions
set forth in this Section 6.


 


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


 


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


 


6.4.          Terms of Purchase and Sale.


 


(a)           Following the delivery of
the Linde Election Notice, the Company (or if the purchase is structured as a
purchase of Capital Stock, the Company or the holders of a majority of the
outstanding Capital Stock, or both (individually and collectively, the “Seller”))



 


36

















 


and Linde shall endeavor to enter into a definitive purchase agreement
(the “Definitive Purchase Agreement”) providing for the purchase by
Linde of the Company on the terms and subject to the conditions set forth in
the IG Offer Notice (subject to Section 6.3), and the closing of the
purchase shall take place within five Business Days after receipt of all
regulatory approvals without which the purchase may not be legally consummated,
but in any event within nine months of the date of the signing of the
Definitive Purchase Agreement (the day that is nine months from the date of
signing of the Definitive Purchase Agreement, the “Outside Closing Date”).  The Seller may at any time prior to executing
the Definitive Purchase Agreement determine not to proceed with the proposed
transaction, in which event the transaction shall be abandoned and the Company
may not be sold to an IG Company without first complying with the provisions of
this Section 6.


 


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


 


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


 


(d)           If Linde fails to timely
deliver a Linde Election Notice or notifies the Company that it is declining to
purchase the Company on the terms and subject to the conditions set forth in
the IG Offer Notice, then the Seller shall be free to accept the IG Offer, provided
that if a definitive purchase agreement is not entered into with the IG Company
on terms and subject to conditions no less favorable to the Seller than the
terms and conditions set forth in the IG Offer Notice within the six-month
anniversary of (x) the last date on which Linde could have timely
delivered a Linde Election Notice or (y) the date Linde notifies the
Company that it is declining to purchase the Company, as applicable, or if the
purchase thereunder is not consummated within nine months following the entry
into such definitive purchase agreement, then the rights of Linde provided in
this Section 6 shall be deemed to be revived, and the 


 


37

















 


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


 


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


 


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


 


SECTION 7.           Rights and Restrictions on
Capital Stock.


 


7.1.          No Sale or Transfer of
Capital Stock.  No Holder
shall sell, transfer, assign, exchange, pledge, encumber or otherwise dispose
of any Capital Stock held by such Holder or grant any option or right to
purchase such Capital Stock or any legal or beneficial interest therein or
enter into any swap, hedge or other arrangement that transfers, in whole or in
part, any of the economic consequences of ownership of any Capital Stock held
by such Holder (each, a “Transfer”), except that:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


38














 


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


 


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


 


(each Person to whom shares are Transferred pursuant
to clause (b), (c), (e) or (f) above being referred to herein as a “Permitted
Transferee”); provided, that, for any Transfer to a Permitted
Transferee to be effective hereunder (and for the transferee to be deemed a
Permitted Transferee hereunder), the Permitted Transferee shall execute and
deliver a written agreement (which may be in the form of a counterpart to this
Agreement) satisfactory to the Company by which it agrees to be bound, as a Series A
Holder or a Series B Holder, as applicable, by all of the terms of this
Agreement as if it had originally been a party hereto; and provided, further,
that for any Transfer to a Permitted Transferee that is a spouse of an Original
Holder to be effective hereunder, the Permitted Transferee shall execute and
deliver a written agreement satisfactory to the Company providing for rights of
repurchase (at a price determined by the Board in good faith) by the Original
Holder or the Company in the event of a divorce between such spouse and such
Original Holder; and provided, further, that any Permitted
Transferee pursuant to paragraph (b), (c)(ii) or (c)(iii) of this Section 7.1
shall agree in writing to Transfer any shares of Capital Stock which it may own
back to the Original Holder if at any time it ceases to meet the criteria for a
Permitted Transferee set forth in the applicable paragraph.  A Permitted Transferee may Transfer any
shares of Capital Stock back to the Original Holder thereof or to any Person
who would be a Permitted Transferee of the Original Holder, subject to
compliance by such Person with this Section 7.1, and, upon such
compliance, such Person shall likewise be a Permitted Transferee.


 


7.2.          Right of First Offer.


 


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


 


(b)           The Transferring Holder
shall offer to sell to each Series B Holder, and each Series B Holder
shall have the right, but not the obligation, to purchase from the Transferring
Holder, that number of shares of Offered Stock equal to the aggregate number of
shares of Offered Stock proposed to be sold by the Transferring Holder
multiplied by such Series B Holder’s Offered Percentage.  If any Series B Holder shall decline to
purchase all of its Offered Percentage of the Offered Stock (the stock which
any Series B Holder shall have declined to purchase pursuant to its rights
under this Section 7.2(b) being referred to herein as the “Refused
Stock”), each Series B Holder that has elected to purchase its Offered
Percentage of such Offered Stock may also purchase the aggregate number of
shares of Refused Stock multiplied by such Series B Holder’s Offered
Percentage; and the allocation of Refused Stock set forth in this Section 7.2(b) shall
be repeated with respect to any shares of Refused Stock not 


 


39

















 


allocated for purchase until all shares of Refused Stock have been
allocated for purchase by Series B Holders or until no Series B
Holder desires to purchase additional Refused Stock.


 


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


 


(d)           Each Series B Holder
shall be entitled to purchase its portion of the Offered Stock, as determined
pursuant to Section 7.2(b), at the same price, on the same terms and at
the same time as the Offered Stock is proposed to be sold to the other Series B
Holders, which shall be at no lower price and on no less favorable terms to
such Series B Holders than were set forth in the Transfer Notice, by the
delivery of a written notice to the Transferring Holder, within 10 Business
Days after the delivery of the Transfer Notice (such 10th Business Day, the “Last Transfer Election
Date”), of the Series B Holder’s election to purchase such Offered
Stock (the “Transfer Election Notice”). 
Any Series B Holder that fails to timely deliver a Transfer
Election Notice shall be deemed to have declined to purchase all of its Offered
Percentage of the Offered Stock.  Each
Transfer Election Notice shall set forth the maximum number of shares of
Offered Stock which such Series B Holder desires to purchase, which number
may be greater or less than such Series B Holder’s Offered Percentage, and
such Transfer Election Notice shall constitute a binding commitment by such Series B
Holder to purchase up to the number of shares of Offered Stock set forth in its
Transfer Election Notice, which commitment may not be revoked without the
written consent of the Transferring Holder. 
In allocating the Refused Stock pursuant to Section 7.2(b), the Transferring
Holder shall not allocate to any Series B Holder a number of shares of
Offered Stock that would result in such Series B Holder’s being required
to purchase a greater number of shares of Offered Stock than that set forth in
such Series B Holder’s Transfer Election Notice, without the consent of
such Series B Holder.  The
Transferring Holder shall give written notice to each Series B Holder
which has timely delivered a Transfer Election Notice of the number of shares
of Offered Stock which such Series B Holder shall be required to purchase
(the “Transfer Purchase Notice”), which Transfer Purchase Notice shall
be delivered to each Series B Holder within five Business Days following
the Last Transfer Election Date.  The
closing of the purchase of the Offered Stock shall take place on the date set
forth in the Transfer Purchase Notice, which shall be the same date for all Series B
Holders that are purchasing Offered Stock and shall be a date that is no
earlier than 15 Business Days following the date of the Transfer Purchase
Notice, unless all such purchasing Series B Holders otherwise agree (provided
that, if regulatory approval is required to be obtained by any Series B
Holder, then the closing of the purchase by such Series B Holder shall
take place on the later of the date set forth in the Transfer Purchase Notice
and five Business Days following receipt of regulatory approval).  At such closing, the Transferring Holder
shall deliver to each purchaser of shares of Offered Stock (x) a written
instrument in which the Transferring Holder shall represent and warrant that it
is conveying to such purchaser good and valid title to such shares, free and
clear of all liens, security interests, encumbrances and adverse claims of any
kind and nature (other than those pursuant to this Agreement), and (y) 


 


40

















 


the certificates representing such shares duly endorsed for transfer,
or accompanied by appropriate stock transfer powers duly executed, and with all
necessary transfer tax stamps affixed thereto at the expense of the
Transferring Holder.


 


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


 


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


 


(g)           The election by any Series B
Holder not to exercise its rights to purchase any Offered Stock under this Section 7.2
in any one instance shall not affect such 


 


41

















 


Series B Holder’s right to participate in any subsequent proposed
sale of Offered Stock.  Any sale of
Offered Stock by a Transferring Holder without first giving the Series B
Holders the rights set forth in this Section 7.2 shall be void and of no
force and effect, and the Company shall not register such sale on the books and
records of the Company.


 


7.3.          Participation in Sales of
Preferred Stock.


 


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


 


(b)           Notwithstanding the
provisions of Section 7.3(a), from and after the second anniversary of the
Closing, in the event Linde is the Transferring Holder in a sale pursuant to Section 7.2(e) (a
“Linde Sale”), then the NMP Entities shall not be entitled to
participate in Linde’s sale of its Series B Preferred Stock in the Linde
Sale, provided that (x) each of the NMP Entities shall be entitled
to participate in the sale by any other Series B Holder that has elected
to sell shares of its Series B Preferred Stock in the Linde Sale for up to
that number of shares of Series B Preferred Stock equal to the number of
shares of Series B Preferred 


 


42

















 


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


 


7.4.          Required Participation in
Sale of Series B Preferred Stock.  Notwithstanding any other provision of this
Agreement to the contrary, if the NMP Entities shall propose to sell (including
by exchange, in a business combination or otherwise) at least 80% of their
shares of Series B Preferred Stock to a Third Party in the same
transaction or series of transactions (which would represent, together with any
other shares of Capital Stock proposed to be transferred (including pursuant to
the exercise by the NMP Entities of their rights under this Section 7.4),
more than 50% of the outstanding Capital Stock) or the Company proposed to sell
or otherwise transfer for value all or substantially all of the stock, assets
or business (whether by merger, sale or otherwise) of the Company to a Third
Party, then the NMP Entities at their option may require (x) in the case
of a sale of Capital Stock by the NMP Entities, that each Holder sell a
proportionate amount of such Holder’s shares of Capital Stock (which shall be
the same proportion as the proportion of the aggregate number of shares sold by
the NMP Entities to the aggregate number of shares owned by the NMP Entities),
and waive any appraisal right that it may have in connection with the
transaction and (y) in any case, if stockholder approval of the
transaction is required and the Company’s stockholders are entitled to vote
thereon, that each Holder vote all of such Holder’s shares of Capital Stock in
favor of such transaction, and in the event that either or both of clauses (x) and
(y) apply, the provisions of Sections 7.2 and 7.3 shall not apply to the
sale by the NMP Entities or any Holder of their shares of Capital Stock in such
transaction.  Any sale of shares of
Capital Stock by a Holder pursuant to this Section 7.4 shall, subject to
the provisions of Section 7.5, be for the same consideration per share, on
substantially the same terms and subject to substantially the same conditions
as the sale of shares of Capital Stock owned by the NMP Entities.  Each Holder that sells any shares of Capital
Stock pursuant to this Section 7.4 shall pay and be responsible for such
Holder’s proportionate share of the Expenses of Sale and the Sale Obligations.


 


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


 


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


 


43

















 


(b)           if the consideration in the
sale pursuant to Section 7.3 or 7.4 consists of or includes securities,
and the sale of such securities to a Holder would require either a registration
statement under the Securities Act, or preparation of a disclosure statement
pursuant to Regulation D (or any successor regulation) under the Securities
Act, or a similar provision of any state securities law, and such registration
statement or disclosure statement is not otherwise being prepared in connection
with the sale, then such Holder may (at the option of the Transferring Holder
or the NMP Entities, as applicable) be paid, in lieu of such securities, the
fair market value of such securities in cash, as determined in good faith by
the Board, whose determination shall be final and binding,


 


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


 


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


 


7.6.          No Sale or Transfer of Series C
Preferred Stock.  No Series C
Holder shall Transfer any shares of Series C Preferred Stock held by such Series C
Holder, except that:


 


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


 


(b)           each Series C Holder
(other than the NMP Entities) may Transfer all of the shares of its Series C
Preferred Stock in conjunction with a Transfer by it, in accordance with Section 7.1,
of more than 50% of the shares of Series B Preferred Stock then held by
such Series C Holder.


 


SECTION 8.           Representations and
Warranties.


 


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


 


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


 


44

















 


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


 


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


 


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


 


SECTION 9.           Voting Agreement.


 


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


 


(a)           Article X of the
Certificate of Incorporation provides that the holders of the Series C-1
Non-Convertible Preferred Stock, $0.01 par value per share, of the Company
shall be entitled to elect three members of the Board (the “NMP Directors”).  The NMP Entities hereby designate Steven
Klinsky, Alok Singh and Michael Flaherman to serve as the NMP Directors, each
to hold office until his successor is elected and qualified or until his
earlier resignation or removal in accordance with this Section 9 and the
Certificate of Incorporation.


 


(b)           Article X of the
Certificate of Incorporation provides that the holders of Series C-2
Non-Convertible Preferred Stock, $0.01 par value per share, of the Company
shall be entitled to elect one member of the Board (the “ARCH Director”).  ARCH hereby designates Robert Nelsen to serve
as the ARCH Director, to hold office until his 


 


45

















 


successor is elected and qualified or until his earlier resignation or
removal in accordance with this Section 9 and the Certificate of Incorporation.


 


(c)           Article X of the
Certificate of Incorporation provides that the holders of Series C-3
Non-Convertible Preferred Stock, $0.01 par value per share, of the Company
shall be entitled to elect one member of the Board (the “Venrock Director”).  Venrock hereby designates Bryan Roberts to
serve as the Venrock Director, to hold office until his successor is elected
and qualified or until his earlier resignation or removal in accordance with
this Section 9 and the Certificate of Incorporation.


 


(d)           Article X of the
Certificate of Incorporation provides that the holders of Series C-4
Non-Convertible Preferred Stock, $0.01 par value per share, of the Company
shall be entitled to elect one member of the Board (the “Linde Director”
and, together with the NMP Directors, the ARCH Director and the Venrock
Director, the “Designated Directors”). 
Linde hereby designates Dr. Aldo Belloni to serve as the Linde
Director, to hold office until his successor is elected and qualified or until
his earlier resignation or removal in accordance with this Section 9 and
the Certificate of Incorporation.


 


(e)           The Board shall be comprised
of up to four directors in addition to the Designated Directors, three of whom
shall be individuals who are not officers, employees, managing members or
general partners of, or otherwise Affiliated with, any of the Investors or
officers or employees of the Company or any of its subsidiaries, or a Family
Member of any of the foregoing (the “Independent Directors”), and the
fourth shall be either David Shaw or the then-serving chief executive officer
of the Company or an Independent Director. 
David Shaw shall initially serve as the fourth director, to hold office
until his successor is elected and qualified or until his earlier resignation
or removal in accordance with this Section 9 and the Certificate of
Incorporation.  The members of the Board
other than the Designated Directors shall be elected by a majority of the votes
cast by the holders of the Series A Preferred Stock, Series B
Preferred Stock and Common Stock, voting together as a single class.


 


9.2.          Board Committees.  The Board shall establish committees of the
Board, including, without limitation, (i) an Audit Committee, whose
members shall be determined by the Series B Holders and shall include,
until consummation of the sale of shares pursuant to a registration statement
relating to the Company’s initial public offering of Common Stock, the Linde
Director, (ii) a Compensation Committee, the chair of which shall be an
NMP Director (who shall initially be Alok Singh) and whose members shall
include either the ARCH Director or the Venrock Director, and (iii) a
Nominating Committee, whose members shall include the ARCH Director (who shall
initially be Robert Nelsen), the Venrock Director (who shall initially be Bryan
Roberts) and more than one NMP Director. 
If other committees of the Board are established from time to time, at
least one NMP Director and either the ARCH Director or the Venrock Director
shall be a member of each such committee as well.  In the event a pricing committee is
established in connection with any proposed initial public offering, the Linde
Director shall be a member of such committee. 
Each individual named in this Section 9.2 as a committee member
shall hold office until his successor is elected and qualified or until his
earlier resignation or removal in accordance with this Section 9 and the
Certificate of Incorporation.  With
respect to each committee, the Board shall designate the members not provided
for in this 


 


46

















 


Section 9.2, any of whom may, at the option of the Board, be a
Designated Director not otherwise serving as a member of such committee by
virtue of this Section 9.2.


 


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


 


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


 


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


 


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


 


9.7.          Voting Agreement.  From and after the date hereof, at each
meeting of stockholders of the Company at which the election of members of the
Board is on the agenda (or any written consent in lieu of a meeting thereof),
each Holder shall take all necessary or desirable action within its control
(including, without limitation, voting all of the voting 


 


47

















 


securities of the Company over which such Holder has voting control) so
as to effectuate the terms of this Section 9.  The voting agreements contained in this Section 9
are coupled with an interest and may not be revoked during the term of this
Agreement.


 


9.8.          Change in Number of
Directors.  The Company
may, by resolution of the Board, (i) decrease the number of directors
comprising the Board, but not below the number of directors then in office and
not below the number that would prevent any Series C Holder from electing
its Designated Director or Directors, and (ii) increase the number of
directors comprising the Board, and fill any vacancy created thereby, by the
vote of a majority of the NMP Directors and a majority of the directors that
are not NMP Directors.


 


SECTION 10.         Miscellaneous.


 


10.1.        Amendments and Waivers.  This Agreement and any of the provisions
hereof may be amended, waived (either generally or in a particular instance and
either retroactively or prospectively), modified or supplemented, in whole or
in part, by written agreement of the Company and the Holders of a majority of
the Series A Preferred Stock and Series B Preferred Stock considered
as a single class (which majority shall include the NMP Entities and one or
more Series B Holders other than the NMP Entities or any Affiliate thereof
(other than Affiliates solely by virtue of owning Preferred Stock) holding in
the aggregate at least 10% of the then outstanding Series B Preferred
Stock (including any Series B Preferred Stock of such Series B Holder
that has been converted into Common Stock if such Common Stock is still
Beneficially Owned by such Series B Holder or a Permitted Transferee); provided,
however, that (A) any amendment, waiver, modification or supplement
of (i) Sections 5.5(c), 6, 7.2(f) and 7.3(b), (ii) any other
provision of this Agreement that cross-references any of the foregoing Sections
if the effect thereof is to amend, waive, modify or supplement any of the
foregoing Sections, or (iii) any provision of this clause (A), shall also
require the written agreement of Linde; (B) any amendment, waiver,
modification or supplement hereof the direct result of which is to materially
adversely affect any Holder, or class or series of Holders, in a manner that is
materially different from the manner in which the other Holders are affected
shall also require the consent of the Holder, or a majority of the Holders
(measured by the number of shares of the class or series owned), so differently
affected; (C) any amendment, waiver, modification or supplement of Section 9.3
that adversely affects any Observer shall also require the written agreement of
such Observer; and (D) the observance of any provision of this Agreement
maybe waived, but only in writing, by the party that will lose the benefit of
such provision as a result of such waiver. 
The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a further or continuing waiver
of such breach or as a waiver of any other or subsequent breach, except as
otherwise explicitly provided for in such waiver.  Except as otherwise expressly provided
herein, no failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder, or otherwise available in
respect hereof at law or in equity, shall operate as a waiver thereof, nor
shall any single or partial exercise of such right, power or remedy by such
party preclude any other or further exercise thereof or the exercise of any
other right, power or remedy.  The
execution of a counterpart signature page to this Agreement (in lieu of
any required written agreement) by any Person acquiring shares of Preferred
Stock after the date hereof shall only require the consent of the Company and
shall not be deemed an amendment to this Agreement so long as such


 


48














 


acquisition was effected in compliance with the provisions of this
Agreement, including receipt of any applicable Requisite Approval.


 


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


 


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


 


(a)           If to the Company, to:


 


Ikaria Holdings, Inc.

c/o New Mountain Capital, LLC

787 Seventh Avenue 

New York, NY  10019 

Facsimile:  (212) 582-2277 

Attention:  Mr. Alok Singh


 


49

















 


(b)           If to Linde, to:


 


Linde  AG 

Leopoldstrasse 252

80807 Munich 

Germany 

Facsimile:  +49 89 35 757-1505 

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


 


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


 


c/o New Mountain Capital,
LLC 

787 Seventh Avenue, 49th Floor 

New York, New York  10019 

Facsimile:  (212) 582-2277 

Attention: Mr. Alok Singh


 


(d)           If to ARCH, to:


 


ARCH Venture Fund VI, L.P.

c/o ARCH Venture Partners 

2325 3rd Street, Suite 407 

San Francisco, California  94107 

Facsimile:  (415) 565-7107 

Attention:  Mr. Robert Nelsen


 


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


 


c/o Venrock Associates 

2494 Sand Hill Road 

Menlo Park, California  94025 

Facsimile:  (650) 561-9180 

Attention:  Mr. Bryan Roberts


 


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


 


c/o 5AM Ventures LLC 

3000 Sand Hill Road 

Building 4, Suite 230 

Menlo Park, California  94025 

Facsimile:  (650) 233-8923 

Attention:  Mr. Andrew Schwab


 


(g)           If to Black Point, to:


 


Black Point Group, LP 

542 Black Point Road 

Scarborough, Maine  04074 


 


50

















 


Facsimile:  (207) 883-9313 

Attention:  Mr. David Shaw


 


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


 


Freshfields Bruckhaus
Deringer LLP 

520 Madison Avenue, 34th Floor 

New York, New York  10022 

Facsimile:  (212) 277-4001 

Attention:  Matthew F. Herman, Esq.


 


and


 


The BOC Group 

575 Mountain Avenue 

Murray Hill, New Jersey  07974 

Facsimile:  (908) 464-2234 

Attention:  General Counsel


 


and


 


Fried, Frank, Harris,
Shriver & Jacobson LLP 

One New York Plaza 

New York, New York  10004 

Facsimile:  (212) 859-4000 

Attention:  Aviva F. Diamant, Esq.


 


and


 


Heller Ehrman LLP 

701 Fifth Avenue, Suite 6100 

Seattle, Washington  98104 

Facsimile:  (206) 515-8888 

Attention: Sonya Erickson, Esq.


 


and


 


O’Melveny & Myers
LLP 

2765 Sand Hill Road 

Menlo Park, California  94025 

Facsimile:  (650) 473-2601 

Attention:  Sam Zucker, Esq.


 


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


 


51

















 


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


 


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


 


(b)           Venue and Service of Process.  By execution and delivery of this Agreement,
each of the parties hereto hereby irrevocably and unconditionally (i) consents
to submit to the exclusive jurisdiction of the federal and state courts located
in the State of New York in New York County (collectively, the “Selected
Courts”‘) for any action or proceeding arising out of or relating to this
Agreement and the transactions contemplated hereby, and agrees not to commence
any action or proceeding relating thereto except in the Selected Courts, provided,
that, a party may commence any action or proceeding in a court other than a Selected
Court solely for the purpose of enforcing an order or judgment issued by one of
the Selected Courts; (ii) consents to service of any process, summons,
notice or document in any action or proceeding by registered first-class mail,
postage prepaid, return receipt requested or by internationally recognized
courier requesting the earliest date and time of delivery in accordance with Section 10.3
hereof and agrees that such service of process shall be effective service of
process for any action or proceeding brought against it in any such court, provided,
that, nothing herein shall affect the right of any party hereto to serve
process in any other manner permitted by law; (iii) waives any objection
to the laying of venue of any action or proceeding arising out of this
Agreement or the transactions contemplated hereby in the Selected Courts; and (iv) waives
and agrees not to plead or claim in any court that any such action or
proceeding brought in any such Selected Court has been brought in an
inconvenient forum.


 


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


 


10.5.        Remedies.  Each party hereby agrees that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with its specific terms or was otherwise
breached and further agree that money damages or other remedy at law would not
be a sufficient or adequate remedy for any breach or violation of, or a default
under, this Agreement by it and that, in addition to all other remedies
available to the 


 


52

















 


other parties, each of them shall be entitled to an injunction
restraining such breach, violation or default or threatened breach, violation
or default and to any other equitable relief, including, without limitation,
specific performance of the terms and provisions of this Agreement.  Any requirements for the securing or posting
of any bond with respect to such remedy are hereby waived by each of the
parties hereto.  Each party hereby
further agrees that, in the event of any action for an injunction or other
equitable remedy in respect of such breach or enforcement of specific
performance, it will not assert the defense that a remedy at law would be
adequate.  In any action or proceeding
brought to enforce any provision of this Agreement (including, without
limitation, the indemnification provisions hereof), or where any provision
hereof is validly asserted as a defense, the successful party to such action or
proceeding shall be entitled to recover, to the extent permitted by applicable
law, attorneys’ fees in addition to its costs and expenses and any other
available remedy.


 


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


 


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


 


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


 


10.9.        Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.  Any such counterpart may be delivered by
facsimile transmission.


 


10.10.      General Interpretive
Principles.  Whenever
used in this Agreement, except as otherwise expressly provided or unless the
context otherwise requires, any noun or pronoun shall be deemed to include the
plural as well as the singular and to cover all genders.  The headings of the sections, paragraphs,
subparagraphs, clauses and subclauses of this Agreement are for convenience of
reference only and shall not in any way affect the meaning or interpretation of
any of the provisions hereof.  Unless
otherwise specified, the terms “hereof,” “herein” and similar terms refer to
this Agreement as a whole, and references herein to Sections 


 


53

















 


refer to Sections of this Agreement. 
Words of inclusion shall not be construed as terms of limitation herein,
so that references to “include”, “includes” and “including” shall not be
limiting and shall be regarded as references to non-exclusive and
non-characterizing illustrations.  Any
action to required to be taken “within” a specified time period following the
occurrence of an event shall be required to be taken no later than 5:00 PM, New
York City time, on the last day of the time period, which shall be calculated
starting with the day immediately following the date of the event.  Whenever this Agreement specifies that a vote
or the agreement of the Holders of one of the series of Preferred Stock is
required to be obtained together with the vote or agreement of the other series
of Preferred Stock, or together with the vote or agreement of the other series
of Preferred Stock and the vote or agreement of the Common Stock, then such
vote or agreement shall be calculated as though each share of such Preferred
Stock had been converted into the number of shares of Common Stock into which
it was then convertible, and whenever the vote or agreement of a series of
Preferred Stock is required to be obtained on a separate class basis, then the
vote or agreement shall be calculated as though each share of such series of
Preferred Stock were one share of stock.


 


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


 


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


 


54

















 


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


 


	
   

  	
  IKARIA HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Matthew Holt

  
	
   

  	
   

  	
  Name: Matthew Holt

  
	
   

  	
   

  	
  Title: Vice President and
  Secretary

  



 


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  INVESTORS:

  
	
   

  	
   

  
	
   

  	
  NEW MOUNTAIN PARTNERS II,
  L.P.

  
	
   

  	
   

  
	
   

  	
  By:

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

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven B. Klinsky

  
	
   

  	
   

  	
  Name: Steven V. Klinsky

  
	
   

  	
   

  	
  Title:   Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  NEW MOUNTAIN AFFILIATED
  INVESTORS II, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

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

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven B. Klinsky

  
	
   

  	
   

  	
  Name: Steven V. Klinsky

  
	
   

  	
   

  	
  Title:   Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  ALLEGHENY NEW MOUNTAIN
  PARTNERS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

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

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven B. Klinsky

  
	
   

  	
   

  	
  Name: Steven V. Klinsky

  
	
   

  	
   

  	
  Title:   Managing Member

  



 


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  INVESTOR:

  
	
   

  	
   

  
	
   

  	
  ARCH VENTURE FUND VI, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  ARCH Venture Partners VI,
  L.P.,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  ARCH Venture Partners VI,
  LLC,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Nelsen

  
	
   

  	
   

  	
  Name: Robert Nelsen

  
	
   

  	
   

  	
  Title:   Managing Director

  



 


[SIGNATURE
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  INVESTORS:

  
	
   

  	
   

  
	
   

  	
  VENROCK PARTNERS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Venrock Partners
  Management, LLC,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan E. Roberts

  
	
   

  	
   

  	
  Name: Bryan E. Roberts

  
	
   

  	
   

  	
  Title:   General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  VENROCK ASSOCIATES IV,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Venrock Management IV,
  LLC,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan E. Roberts

  
	
   

  	
   

  	
  Name: Bryan E. Roberts

  
	
   

  	
   

  	
  Title:   General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  VENROCK ENTREPRENEURS FUND
  IV, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  VEF Management IV, LLC,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan E. Roberts

  
	
   

  	
   

  	
  Name: Bryan E. Roberts

  
	
   

  	
   

  	
  Title:   Member

  



 


[SIGNATURE
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  INVESTORS:

  
	
   

  	
   

  
	
   

  	
  5AM VENTURES LLC, by its
  Manager

  
	
   

  	
  5AM CO-INVESTORS LLC, by its
  Manager

  
	
   

  	
   

  
	
   

  	
  5AM Partners LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Andrew J. Schwab

  
	
   

  	
  Andrew J. Schwab, Managing
  Director

  



 


[SIGNATURE
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  INVESTOR:

  
	
   

  	
   

  
	
   

  	
  ARAVIS VENTURE I L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Aravis General Partner
  Ltd,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew J. Schwab

  
	
   

  	
   

  	
  Name: Andrew J. Schwab

  
	
   

  	
   

  	
  Title:   Director

  



 


[SIGNATURE
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  INVESTOR:

  
	
   

  	
   

  
	
   

  	
  BLACK POINT GROUP, LP

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Shaw

  
	
   

  	
   

  	
  Name: David Shaw

  
	
   

  	
   

  	
  Title:   MP

  



 


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  INVESTOR:

  
	
   

  	
   

  
	
   

  	
  LINDE GAS INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Pat Murphy

  
	
   

  	
   

  	
  Name: Pat Murphy

  
	
   

  	
   

  	
  Title:   President

  



 


[SIGNATURE
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  HOLDER:

  
	
   

  	
   

  
	
   

  	
  BENNETT M. SHAPIRO AND
  FREDERICKA F. SHAPIRO, JTROS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bennett M. Shapiro

  
	
   

  	
  Name:

  	
  Bennett M. Shapiro

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Fredericka F. Shapiro

  
	
   

  	
  Name:

  	
  Fredericka F. Shapiro

  



 


[SIGNATURE
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  HOLDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Shaw

  
	
   

  	
  Name:

  	
  David Shaw

  



 


[SIGNATURE
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  HOLDER:

  
	
   

  	
   

  
	
   

  	
  FRED HUTCHINSON CANCER RESEARCH
  CENTER

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Douglas J. Shaeffer

  
	
   

  	
   

  	
  Name: Douglas J. Shaeffer

  
	
   

  	
   

  	
  Title:   V.P. & General Counsel

  



 


[SIGNATURE
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  HOLDER:

  
	
   

  	
   

  
	
   

  	
  VAUGHN AND PATRICIA
  KAILIAN TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Vaughn Kailian

  
	
   

  	
   

  	
  Name: Vaughn Kailian

  
	
   

  	
   

  	
  Title:   Trustee

  



 


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  HOLDER:

  
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wilbur H. Gantz

  
	
   

  	
   

  	
  Name: Wilbur H. Gantz

  
	
   

  	
   

  	
  Title:   Trustee

  



 


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  HOLDER:

  
	
   

  	
   

  
	
   

  	
  WASHINGTON RESEARCH
  FOUNDATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ronald S. Howell

  
	
   

  	
   

  	
  Name: Ronald S. Howell

  
	
   

  	
   

  	
  Title:   CEO

  



 


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  HOLDER:

  
	
   

  	
   

  
	
   

  	
  ALTITUDE LIFE SCIENCES
  VENTURES, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Maki

  
	
   

  	
   

  	
  Name: David Maki

  
	
   

  	
   

  	
  Title:   Member

  



 


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  HOLDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven Gillis

  
	
   

  	
   

  	
  Name: Steven Gillis

  



 


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  HOLDER:

  
	
   

  	
   

  
	
   

  	
  ALEXANDRIA EQUITIES, LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  ALEXANDRIA REAL ESTATE

  
	
   

  	
   

  	
  EQUITIES, INC., a Maryland

  
	
   

  	
   

  	
  corporation, managing
  member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Etsuko Mason

  
	
   

  	
   

  	
   

  	
  Etsuko Mason

  
	
   

  	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  	
  Treasurer &

  
	
   

  	
   

  	
   

  	
  Assistant Secretary

  



 


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  HOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles Homcy

  
	
   

  	
   

  	
  Name: Charles Homcy, M.D.

  



 


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  HOLDER:

  
	
   

  	
   

  
	
   

  	
  HELEN C. PURNELL

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lucy Kratovil

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Lucy Kratovil, by Power of
  Attorney dated

  
	
   

  	
   

  	
  January 15, 2003

  
				



 


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  HOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Flemming Ornskov

  
	
   

  	
   

  	
  Name: Flemming Ornskov

  



 


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  HOLDERS:

  
	
   

  	
   

  
	
   

  	
  THE GETZUG FAMILY TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steve Getzug

  
	
   

  	
   

  	
  Name: Steve Getzug

  
	
   

  	
   

  	
  Title:   Trustee

  



 


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  HOLDERS:

  
	
   

  	
   

  
	
   

  	
  JENNIFER BROWN AND IAN
  AYRES, JTROS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer G. Brown

  
	
   

  	
  Name:

  	
  Jennifer G. Brown

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian Ayres

  
	
   

  	
  Name:

  	
  Ian Ayres

  



 


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  HOLDER:

  
	
   

  	
   

  
	
   

  	
  BENNETT M. SHAPIRO, M.D.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bennett M. Shapiro

  



 


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  HOLDER:

  
	
   

  	
   

  
	
   

  	
  WILBUR GANTZ

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wilbur Gantz

  
	
   

  	
   

  	
  Name: Wilbur Gantz

  



 


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  HOLDER:

  
	
   

  	
   

  
	
   

  	
  DEFIANT LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jim Roberts

  
	
   

  	
  Name:

  	
  Jim Roberts

  
	
   

  	
  Title:

  	
  Manager

  



 


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  HOLDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven McKnight

  
	
   

  	
   

  	
  Name: Steven McKnight, Ph.D.

  



 


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  HOLDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel E. Gottschling

  
	
   

  	
   

  	
  Name: Dan Gottschling

  



 


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  HOLDER:

  
	
   

  	
   

  
	
   

  	
  NANCY WEINTRAUB

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nancy S. Weintraub by
  Adam

  
	
   

  	
   

  	
  L. Weintraub, Attorney in
  fact

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Nancy S. Weintraub

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


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  HOLDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Meng Chao Yao

  
	
   

  	
   

  	
  Name: Meng Chao Yao

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ching Ho Chnag

  
	
   

  	
   

  	
  Name: Ching Ho Chnag

  



 


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