Exhibit 10.1(A)


 


KINEMED, INC.


 


INVESTORS’ RIGHTS AGREEMENT


 


January 9, 2009


 




    	 



    	 



    

 


TABLE OF CONTENTS


 


	 	 	Page
	SECTION 1 DEFINITIONS	1
	1.1	Certain Definitions	1
	SECTION 2 REGISTRATION RIGHTS	3
	2.1	Requested Registration.	3
	2.2	Company Registration.	6
	2.3	Registration on Form S-3.	7
	2.4	Expenses of Registration	8
	2.5	Registration Procedures	8
	2.6	Indemnification.	10
	2.7	Information by Holder	12
	2.8	Restrictions on Transfer.	12
	2.9	Rule 144 Reporting	13
	2.10	Market Stand-Off Agreement	14
	2.11	Delay of Registration	14
	2.12	Transfer or Assignment of Registration Rights	15
	2.13	Limitations on Subsequent Registration Rights	15
	2.14	Termination of Registration Rights	15
	SECTION 3 INFORMATION COVENANTS OF THE COMPANY	15
	3.1	Basic Financial Information and Inspection Rights.	15
	3.2	Confidentiality	16
	3.3	Termination of Covenants	16
	SECTION 4 RIGHT OF FIRST REFUSAL	16
	4.1	Right of First Refusal	16
	SECTION 5 MISCELLANEOUS	18
	5.1	Amendment	18
	5.2	Notices	19
	5.3	Governing Law	19
	5.4	Successors and Assigns	20
	5.5	Entire Agreement	20
	5.6	Delays or Omissions	20
	5.7	Severability	20
	5.8	Titles and Subtitles	20
	5.9	Counterparts	21
	5.10	Telecopy Execution and Delivery	21
	5.11	Jurisdiction; Venue	21
	5.12	Further Assurances	21
	5.13	Termination Upon Change of Control	21
	5.14	Conflict	21
	5.15	Attorneys’ Fees	22
	5.16	Aggregation of Stock	22
	5.17	Jury Trial	22


 




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KINEMED, INC.


 


INVESTORS’ RIGHTS AGREEMENT


 


This Investors’
Rights Agreement (this “Agreement”) is dated as of January 9, 2009, and is between KineMed, Inc., a Delaware
corporation (the “Company”), and the persons and entities listed on Exhibit A (each, an “Investor” and
collectively, the “Investors”).


 


RECITALS


 


The Investors are parties
to the Series AA Preferred Stock Purchase Agreement of even date herewith, among the Company and the Investors listed on the Schedule
of Investors thereto (the “Purchase Agreement”), and it is a condition to the closing of the sale of
the Series AA Preferred Stock to the Investors listed on such Schedule of Investors that the Investors and the Company execute
and deliver this Agreement. The parties therefore agree as follows:


 


SECTION
1


 


DEFINITIONS


 


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


 


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


 


(b)          “Common
Stock” means the Common Stock of the Company. 


 


(c)          “Conversion
Stock” shall mean shares of Common Stock issued upon conversion of the Series AA Preferred Stock.


 


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


 


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


 


(f)          “Indemnified
Party” shall have the meaning set forth in Section 1.1(c).


 


(g)          “Indemnifying
Party” shall have the meaning set forth in Section 1.1(c).


 


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


 




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(i)          “Initial
Public Offering” shall mean the closing of the Company’s first firm commitment underwritten public offering
of the Company’s Common Stock registered under the Securities Act.


 


(j)          “Initiating
Holders” shall mean any Holder or Holders who in the aggregate hold not less than fifty percent (50%) of the outstanding
Registrable Securities.


 


(k)          “New
Securities” shall have the meaning set forth in Section 1.1(a).


 


(l)          “Other
Selling Stockholders” shall mean persons other than Holders who, by virtue of agreements with the Company, are entitled
to include their Other Shares in certain registrations hereunder.


 


(m)          “Other
Shares” shall mean shares of Common Stock, other than Registrable Securities (as defined below), with respect to
which registration rights have been granted.


 


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


 


(o)          “Registrable
Securities” shall mean (i) shares of Common Stock issued or issuable pursuant to the conversion of the Shares and
(ii) any Common Stock issued as a dividend or other distribution with respect to or in exchange for or in replacement of the shares
referenced in (i) above; provided, however, that Registrable Securities shall not include any shares of Common Stock described
in clause (i) or (ii) above which have previously been registered or which have been sold to the public either pursuant to a registration
statement or Rule 144, or which have been sold in a private transaction in which the transferor’s rights under this Agreement
are not validly assigned in accordance with this Agreement.


 


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


 


(q)          “Registration
Expenses” shall mean all expenses incurred in effecting any registration pursuant to this Agreement, including, without
limitation, all registration, qualification, and filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, blue sky fees and expenses, and expenses of any regular or special audits incident to or required by any such
registration, but shall not include Selling Expenses, fees and disbursements of counsel for the Holders and the compensation of
regular employees of the Company, which shall be paid in any event by the Company.


 


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


 


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


 




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


 


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


 


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


 


(w)          “Selling
Expenses” shall mean all underwriting discounts, selling commissions and stock transfer taxes applicable to the sale
of Registrable Securities and fees and disbursements of counsel for any Holder.


 


(x)          “Series
AA Preferred Stock” shall mean the shares of Series AA Preferred Stock.


 


(y)          “Shares”
shall mean the Company’s Series AA Preferred Stock.


 


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


 


SECTION
2


 


REGISTRATION RIGHTS


 


2.1           Requested
Registration.


 


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


 


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


 


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


 




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


 


(i)          Prior
to the earlier of (A) the three (3) year anniversary of the date of this Agreement or (B) one hundred and eighty (180) days following
the effective date of the first registration statement filed by the Company covering an underwritten offering of any of its securities
to the general public (or the subsequent date on which all market stand-off agreements applicable to the offering have terminated);


 


(ii)         If
the Initiating Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration
statement, propose to sell Registrable Securities and such other securities (if any) at an aggregate offering price, net of underwriters’
discounts and expenses, of less than $0.18 per share of Common Stock (as adjusted for any stock dividends, combinations or splits
with respect to such shares) and the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses
related to the issuance) are less than $20,000,000;


 


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


 


(iv)        After
the Company has initiated two (2) such registrations pursuant to this Section 2.1;


 


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


 


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


 


(vii)       If
the Initiating Holders do not request that such offering be firmly underwritten by underwriters selected by the Initiating Holders
(subject to the consent of the Company); and


 


(viii)      If
the Company and the Initiating Holders are unable to obtain the commitment of the underwriter described in clause (b)(vii) above
to firmly underwrite the offer.


 




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(c)          Deferral.
If (i) in the good faith judgment of the board of directors of the Company, the filing of a registration statement covering
the Registrable Securities would be materially detrimental to the Company and the board of directors of the Company concludes,
as a result, that it is in the best interests of the Company to defer the filing of such registration statement at such time, and
(ii) the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith
judgment of the board of directors of the Company, it would be materially detrimental to the Company for such registration statement
to be filed in the near future and that it is, therefore, in the best interests of the Company to defer the filing of such registration
statement, then (in addition to the limitations set forth in Section 1.1(b)(v) above) the Company shall have the right to defer
such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, and, provided
further, that the Company shall not defer its obligation in this manner more than two (2) times in any twelve-month period.


 


(d)          Other
Shares. The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions
of Section 1.1(e), include Other Shares, and may include securities of the Company being sold for the account of the Company.


 


(e)          Underwriting.
The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section
2.1 shall be conditioned upon such Holder’s participation in an underwriting and the inclusion of such Holder’s Registrable
Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of
securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section
2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer
shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the
Company’s and such person’s other securities of the Company and their acceptance of the further applicable provisions
of this Section 2 (including Section 2.10). The Company shall (together with all Holders and other persons proposing to distribute
their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by the Company, which underwriters are reasonably acceptable to a majority-in-interest
of the Initiating Holders.


 


Notwithstanding any
other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require
a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included
shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement
based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion; (ii) second, to the
Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account,
or for the account of other holders or employees of the Company.


 




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If a person who has
requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall
be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded
shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting
shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to
be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.1(e), then
the Company shall then offer to all Holders and Other Selling Stockholders who have retained rights to include securities in the
registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount
equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders
requesting additional inclusion, as set forth above.


 


2.2           Company
Registration.


 


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


 


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


 


(ii)         use
its commercially reasonable efforts to include in such registration (and any related qualification under blue sky laws or other
compliance), except as set forth in Section 1.1(b) below, and in any underwriting involved therein, all of such Registrable Securities
as are specified in a written request or requests made by any Holder or Holders received by the Company within ten (10) days after
such written notice from the Company is mailed or delivered. Such written request may specify all or a part of a Holder’s
Registrable Securities.


 


(b)          Underwriting.
If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company
shall so advise the Holders as a part of the written notice given pursuant to Section 1.1(a)(i). In such event, the right of any
Holder to registration pursuant to this Section 2.2 shall be conditioned upon such Holder’s participation in such underwriting
and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall (together with the Company, the Other Selling Stockholders
and other holders of securities of the Company with registration rights to participate therein distributing their securities through
such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters
selected by the Company.


 




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


 


If a person who has
requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall
also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities
so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration.


 


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


 


2.3           Registration
on Form S-3.


 


(a)          Request
for Form S-3 Registration. After its initial public offering, the Company shall use its commercially reasonable
efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. After the Company has qualified for
the use of Form S-3, in addition to the rights contained in the foregoing provisions of this Section 2 and subject to the conditions
set forth in this Section 2.3, if the Company shall receive from a Holder or Holders of Registrable Securities a written request
that the Company effect any registration on Form S-3 or any similar short form registration statement with respect to all or part
of the Registrable Securities (such request shall state the number of shares of Registrable Securities to be disposed of and the
intended methods of disposition of such shares by such Holder or Holders), the Company will take all such action with respect to
such Registrable Securities as required by Section 1.1(a)(i) and (ii).


 


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


 


(i)          In
the circumstances described in either Sections 1.1(b)(i), 1.1(b)(iii) or 1.1(b)(v);


 




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(ii)         If
the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose
to sell Registrable Securities and such other securities (if any) on Form S-3 at an aggregate price to the public of less than
$1,000,000; or


 


(iii)        If,
in a given twelve-month period, the Company has effected one (1) such registration in such period.


 


(c)          Deferral.
The provisions of Section 1.1(c) shall apply to any registration pursuant to this Section 2.3.


 


(d)          Underwriting.
If the Holders of Registrable Securities requesting registration under this Section 2.3 intend to distribute the Registrable
Securities covered by their request by means of an underwriting, the provisions of Section 1.1(e) shall apply to such registration.
Notwithstanding anything contained herein to the contrary, registrations effected pursuant to this Section 2.3 shall not be counted
as requests for registration or registrations effected pursuant to Section 2.1.


 


2.4           Expenses
of Registration. All Registration Expenses incurred in connection with registrations pursuant to Sections 2.1, 2.2 and 2.3
shall be borne by the Company; provided, however, that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Sections 2.1 and 2.3 if the registration request is subsequently withdrawn at the request
of the Holders of a majority of the Registrable Securities to be registered or because a sufficient number of Holders shall have
withdrawn so that the minimum offering conditions set forth in Sections 2.1 and 2.3 are no longer satisfied (in which case all
participating Holders shall bear such expenses pro rata among each other based on the number of Registrable Securities requested
to be so registered), unless the Holders of a majority of the Registrable Securities agree to forfeit their right to a demand registration
pursuant to Section 2.1; provided, however, in the event that a withdrawal by the Holders is based upon material adverse
information relating to the Company that is different from the information known or available (upon request from the Company or
otherwise) to the Holders requesting registration at the time of their request for registration under Section 2.1, such registration
shall not be treated as a counted registration for purposes of Section 2.1, even though the Holders do not bear the Registration
Expenses for such registration. All Selling Expenses relating to securities registered on behalf of the Holders shall be borne
by the holders of securities included in such registration pro rata among each other on the basis of the number of Registrable
Securities so registered.


 


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


 




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


 


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


 


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


 


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


 


(e)          Notify
each seller of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances
then existing, and following such notification promptly prepare and furnish to such seller a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such shares, such
prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;


 


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


 


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


 


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


 




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2.6           Indemnification.


 


(a)          To
the extent permitted by law, the Company will indemnify and hold harmless each Holder, each of its officers, directors and partners,
legal counsel and accountants and each person controlling such Holder within the meaning of Section 15 of the Securities Act, with
respect to which registration, qualification or compliance has been effected pursuant to this Section 2, and each underwriter,
if any, and each person who controls within the meaning of Section 15 of the Securities Act any underwriter, against all expenses,
claims, losses, damages and liabilities (or actions, proceedings or settlements in respect thereof) arising out of or based on:
(i) any untrue statement (or alleged untrue statement) of a material fact contained or incorporated by reference in any prospectus,
offering circular or other document (including any related registration statement, notification or the like) incident to any such
registration, qualification or compliance, (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 (or alleged violation) by
the Company of the Securities Act, any state securities laws or any rule or regulation thereunder applicable to the Company and
relating to action or inaction required of the Company in connection with any offering covered by such registration, qualification
or compliance, and the Company will reimburse each such Holder, each of its officers, directors, partners, legal counsel and accountants
and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal
and any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage,
liability or action; provided that the Company will not be liable in any such case to the extent that any such claim, loss,
damage, liability, or action arises out of or is based on any untrue statement or omission based upon written information furnished
to the Company by such Holder, any of such Holder’s officers, directors, partners, legal counsel or accountants, any person
controlling such Holder, such underwriter or any person who controls any such underwriter, and stated to be specifically for use
therein; and provided, further that, the indemnity agreement contained in this Section 1.1(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld).


 


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


 




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(c)          Each
party entitled to indemnification under this Section 2.6 (the “Indemnified Party”) shall give notice
to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of such claim or any litigation resulting therefrom; provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval
shall not be unreasonably withheld), and the Indemnified Party may participate in such defense at such party’s expense; and
provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying
Party of its obligations under this Section 2.6, to the extent such failure is not prejudicial. No Indemnifying Party, in the defense
of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or litigation. Each Indemnified Party shall furnish
such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall
be reasonably required in connection with defense of such claim and litigation resulting therefrom.


 


(d)          If
the indemnification provided for in this Section 2.6 is held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage, or expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions that resulted in
such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Indemnifying
Party or by the Indemnified Party and the parties’ relative intent, knowledge, access to information, and opportunity to
correct or prevent such statement or omission. No person or entity will be required under this Section 1.1(d) to contribute any
amount in excess of the net proceeds from the offering received by such person or entity, except in the case of fraud or willful
misconduct by such person or entity. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation.


 




    	- 11 -



    	 



    

 


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


 


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


 


2.8           Restrictions
on Transfer.


 


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


 


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


 


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


 


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


 




    	- 12 -



    	 



    

 


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


 


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


 


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


 


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


 


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


 


(a)          Make
and keep adequate current public information with respect to the Company available in accordance with Rule 144 under the Securities
Act, at all times from and after ninety (90) days following the effective date of the first registration under the Securities Act
filed by the Company for an offering of its securities to the general public;


 




    	- 13 -



    	 



    

 


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


 


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


 


2.10         Market
Stand-Off Agreement. Each Holder shall not sell or otherwise transfer, make any short sale of, grant any option for the purchase
of, or enter into any hedging or similar transaction with the same economic effect as a sale, of any Common Stock (or other securities)
of the Company held by such Holder (other than those included in the registration) during the one hundred and eighty (180) day
period following the effective date of the registration statement for the Company’s Initial Public Offering filed under the
Securities Act (or such other period as may be requested by the Company or an underwriter to accommodate regulatory restrictions
on (i) the publication or other distribution of research reports and (ii) analyst recommendations and opinions, including, but
not limited to, the restrictions contained in NASD Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments
thereto). The obligations described in this Section 2.10 shall not apply to a registration relating solely to employee benefit
plans on Form S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a transaction
on Form S-4 or similar forms that may be promulgated in the future. The Company may impose stop-transfer instructions and may stamp
each such certificate with the second legend set forth in Section 2.8(b) with respect to the shares of Common Stock (or other securities)
subject to the foregoing restriction until the end of such one hundred and eighty (180) day (or other) period. Each Holder agrees
to execute a market standoff agreement with said underwriters in customary form consistent with the provisions of this Section
2.10.


 


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


 




    	- 14 -



    	 



    

 


2.12         Transfer
or Assignment of Registration Rights. The rights to cause the Company to register securities granted to a Holder by the Company
under this Section 2 may be transferred or assigned by a Holder only to a transferee or assignee of not less than 1,250,000 shares
of Registrable Securities (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse
stock splits, and the like); provided that (i) such transfer or assignment of Registrable Securities is effected in accordance
with the terms of Section 2.8, the Right of First Refusal and Co-Sale Agreement, and applicable securities laws, (ii) the Company
is given written notice prior to said transfer or assignment, stating the name and address of the transferee or assignee and identifying
the securities with respect to which such registration rights are intended to be transferred or assigned and (iii) the transferee
or assignee of such rights assumes in writing the obligations of such Holder under this Agreement, including without limitation
the obligations set forth in Section 2.10.


 


2.13         Limitations
on Subsequent Registration Rights. From and after the date of this Agreement, the Company shall not, without the prior written
consent of Holders holding a majority of the Registrable Securities, enter into any agreement with any holder or prospective holder
of any securities of the Company giving such holder or prospective holder any registration rights the terms of which are senior
to the registration rights granted to the Holders hereunder.


 


2.14         Termination
of Registration Rights. The right of any Holder to request registration or inclusion in any registration pursuant to Sections
2.1, 2.2 or 2.3 shall terminate on the earlier of (i) such date, on or after the closing of the Company’s first registered
public offering of Common Stock, on which all shares of Registrable Securities held or entitled to be held upon conversion by such
Holder may immediately be sold under Rule 144 during any ninety (90) day period and (ii) three (3) years after the closing of the
Company’s Initial Public Offering.


 


SECTION
3


 



INFORMATION COVENANTS OF THE COMPANY


 


The Company hereby
covenants and agrees, as follows:


 


3.1           Basic
Financial Information and Inspection Rights.


 


(a)          Basic
Financial Information. The Company will furnish the following reports to each Holder who owns at least 1,250,000
Shares and/or Conversion Stock (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends,
reverse stock splits, and the like) or 1% of Series AA Preferred Stock sold in all closings, if less than 125,000,000 shares are
sold:


 


(i)          As
soon as practicable after the end of each fiscal year of the Company, and in any event within ninety (90) days after the end of
each fiscal year of the Company, a consolidated balance sheet of the Company and its subsidiaries, if any, as at the end of such
fiscal year, and consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such year, prepared
in accordance with U.S. generally accepted accounting principles consistently applied, certified by the Chief Financial Officer
of the Company; and


 




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


 


3.2           Confidentiality.
Anything in this Agreement to the contrary notwithstanding, no Holder by reason of this Agreement shall have access to any
trade secrets or classified information of the Company. The Company shall not be required to comply with any information rights
of Section 3 in respect of any Holder whom the Company reasonably determines to be a competitor or an officer, employee, director
or holder of more than ten percent (10%) of a competitor. Each Holder acknowledges that the information received by them pursuant
to this Agreement may be confidential and for its use only, and it will not use such confidential information in violation of the
Exchange Act or reproduce, disclose or disseminate such information to any other person (other than its employees or agents having
a need to know the contents of such information, and its attorneys), except in connection with the exercise of rights under this
Agreement, unless the Company has made such information available to the public generally.


 


3.3           Termination
of Covenants. The covenants set forth in this Section 3 shall terminate and be of no further force and effect after the closing
of the Company’s Initial Public Offering.


 


SECTION
4


 


RIGHT OF FIRST REFUSAL


 


4.1           Right
of First Refusal. The Company hereby grants to each Holder, the right of first refusal to purchase its pro rata share
of New Securities (as defined in this Section 1.1(a)) which the Company may, from time to time, propose to sell and issue after
the date of this Agreement. A Holder’s pro rata share, for purposes of this right of first refusal, is equal to the
ratio of (a) the number of shares of Common Stock owned by such Holder immediately prior to the issuance of New Securities (assuming
full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options and warrants
held by such Holder) to (b) the total number of shares of Common Stock outstanding immediately prior to the issuance of New Securities
(assuming full conversion of the Shares and full conversion or exercise of all outstanding convertible securities, rights, options
and warrants). This right of first refusal shall be subject to the following provisions:


 


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


 




    	- 16 -



    	 



    

 


(i)          the
Shares and the Conversion Stock;


 


(ii)         securities
issued or issuable to officers, employees, directors, consultants, placement agents, and other service providers of the Company
(or any subsidiary) pursuant to stock grants, option plans, purchase plans, agreements or other employee stock incentive programs
or arrangements approved by the board of directors of the Company;


 


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


 


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


 


(v)         securities
offered pursuant to a bona fide, firmly underwritten public offering pursuant to a registration statement filed under the Securities
Act pursuant to which all outstanding shares of Preferred Stock are automatically converted into Common Stock pursuant to an Automatic
Conversion Event (as defined in the certificate of incorporation of the Company;


 


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


 


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


 


(viii)      securities
issued or issuable in connection with sponsored research, collaboration, technology license, development, OEM, marketing or other
similar agreements or strategic partnerships approved by the board of directors of the Company;


 


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


 


(x)          securities
of the Company which are otherwise excluded by the affirmative unanimous vote of the board of directors of the Company; and


 


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


 




    	- 17 -



    	 



    

 


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


 


(c)          In
the event the Holders fail to exercise fully the right of first refusal within said ten (10) day period (the “Election
Period”), the Company shall have one hundred eighty (180) days thereafter to sell or enter into an agreement (pursuant
to which the sale of New Securities covered thereby shall be closed, if at all, within ninety (90) days from the date of said agreement)
to sell that portion of the New Securities with respect to which the Holders’ right of first refusal option set forth in
this Section 4.1 was not exercised, at a price and upon terms no more favorable to the purchasers thereof than specified in the
Company’s notice to Holders delivered pursuant to Section 1.1(b). In the event the Company has not sold within such ninety
(90) day period following the Election Period, or such ninety (90) day period following the date of said agreement, the Company
shall not thereafter issue or sell any New Securities, without first again offering such securities to the Holders in the manner
provided in this Section 4.1.


 


(d)          The
right of first refusal granted under this Agreement shall expire upon, and shall not be applicable to, the Company’s Initial
Public Offering.


 


SECTION
5


 


MISCELLANEOUS


 


5.1           Amendment.
Except as expressly provided herein, neither this Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument referencing this Agreement and signed by the Company and the Holders holding a majority of the
Registrable Securities (excluding any of such shares that have been sold to the public or pursuant to Rule 144); provided, however,
that Holders purchasing shares of Series AA Preferred Stock in a Closing after the Initial Closing (each as defined in the
Purchase Agreement) may become parties to this Agreement, by executing a counterpart of this Agreement without any amendment of
this Agreement pursuant to this paragraph or any consent or approval of any other Holder. Any such amendment, waiver, discharge
or termination effected in accordance with this paragraph shall be binding upon each Holder and each future holder of all such
securities of Holder. Each Holder acknowledges that by the operation of this paragraph, the holders of a majority of the Registrable
Securities (excluding any of such shares that have been sold to the public or pursuant to Rule 144) will have the right and power
to diminish or eliminate all rights of such Holder under this Agreement.


 




    	- 18 -



    	 



    

 


5.2           Notices.
All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered
or certified mail, postage prepaid, or otherwise delivered by hand, messenger or courier service addressed:


 


(a)          if
to an Investor, to the Investor’s address as shown in the Company’s records, as may be updated in accordance with the
provisions hereof;


 


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


 


(c)          if
to the Company, to the attention of the Chief Executive Officer or Chief Financial Officer of the Company at 5980 Horton Street,
Suite 400, Emeryville, CA 94608, or at such other current address as the Company shall have furnished to the Investors or Holders,
with a copy (which shall not constitute notice) to Jon Layman, Wilson Sonsini Goodrich & Rosati, P.C., 650 Page Mill Road,
Palo Alto, CA 94304.


 


Each such notice or
other communication shall for all purposes of this Agreement be treated as effective or having been given (i) if delivered by hand,
messenger or courier service, when delivered (or if sent via a nationally-recognized overnight courier service, freight prepaid,
specifying next-business-day delivery, one business day after deposit with the courier), or (ii) if sent via mail, at the earlier
of its receipt or five days after the same has been deposited in a regularly-maintained receptacle for the deposit of the United
States mail, addressed and mailed as aforesaid. In the event of any conflict between the Company’s books and records and
this Agreement or any notice delivered hereunder, the Company’s books and records will control absent fraud or error.


 


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


 


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


 




    	- 19 -



    	 



    

 


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


 


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


 


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


 


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


 


5.8           Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. All references in this Agreement to sections, paragraphs and exhibits shall, unless
otherwise provided, refer to sections and paragraphs hereof and exhibits attached hereto.


 




    	- 20 -



    	 



    

 


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


 


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


 


5.11         Jurisdiction;
Venue. With respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction
of, and venue in, the state courts in Santa Clara County in the State of California (or in the event of exclusive federal jurisdiction,
the courts of the Northern District of California).


 


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


 


5.13         Termination
Upon Change of Control. Notwithstanding anything to the contrary herein, this Agreement (excluding any then-existing obligations)
shall terminate upon (a) the acquisition of the Company by another entity by means of any transaction or series of related transactions
to which the Company is party (including, without limitation, any stock acquisition, reorganization, merger or consolidation but
excluding any sale of stock for capital raising purposes) other than a transaction or series of transactions in which the holders
of the voting securities of the Company outstanding immediately prior to such transaction continue to retain (either by such voting
securities remaining outstanding or by such voting securities being converted into voting securities of the surviving entity),
as a result of shares in the Company held by such holders prior to such transaction, at least fifty percent (50%) of the total
voting power represented by the voting securities of the Corporation or such surviving entity outstanding immediately after such
transaction or series of transactions; or (b) a sale, lease or other conveyance of all substantially all of the assets of the Company.


 


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


 




    	- 21 -



    	 



    

 


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


 


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


 


5.17         Jury
Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT.
If the waiver of jury trial set forth in this section is not enforceable, then any claim or cause of action arising out of or relating
to this Agreement shall be settled by judicial reference pursuant to California Code of Civil Procedure Section 638 et seq.
before a referee sitting without a jury, such referee to be mutually acceptable to the parties or, if no agreement is reached,
by a referee appointed by the Presiding Judge of the California Superior Court for Santa Clara County. This paragraph shall not
restrict a party from exercising remedies under the Uniform Commercial Code or from exercising pre judgment remedies under applicable
law.


 


(signature page follows)


 




    	- 22 -



    	 



    

 


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


 


	 	Kinemed, Inc.
	 	a Delaware corporation
	 	 	 
	 	By:	 
	 	 	David M. Fineman, President


 


(Signature page to the Investors’
Rights Agreement)


 




    	 



    	 



    

 


(THIS PAGE IS INTENTIONALLY
LEFT BLANK.)


 




    	 



    	 



    

 


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


 


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


 


(Signature page to the Investors’
Rights Agreement)


 




    	 



    	 



    

 


(THIS PAGE IS INTENTIONALLY
LEFT BLANK.)


 




    	 



    	 



    

 


SCHEDULE 1


 


NOTICE AND WAIVER/ELECTION
OF 

RIGHT OF FIRST REFUSAL


 


I do hereby waive or exercise, as indicated
below, my rights of first refusal under the Amended and Restated Investors’ Rights Agreement dated as of January 9, 2009
(the “Agreement”):


 


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


 


		(  )	WAIVE in full, on behalf of all Holders, the [       ]-day
notice period provided to exercise my right of first refusal granted under the Agreement.



 


		(  )	DO NOT WAIVE the notice period described above.



 


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



 


		(  )	WAIVE in full the right of first refusal granted
under the Agreement with respect to the issuance of the New Securities.



 


		(  )	ELECT TO PARTICIPATE in $            
(please provide amount) in New Securities proposed to be issued by KineMed, Inc., a Delaware corporation, representing
LESS than my pro rata portion of the aggregate of $[         ] in New
Securities being offered in the financing.



 


		(  )	ELECT TO PARTICIPATE in $        
in New Securities proposed to be issued by KineMed, Inc., a Delaware corporation, representing my FULL pro rata portion
of the aggregate of $[       ] in New Securities being offered in the financing.



 


		(  )	ELECT TO PARTICIPATE in my full pro rata portion of the aggregate of
                                                                                            $[         ] in New Securities being made available in the financing AND,
                                                                                            to the extent available, the greater of (x) an additional
                                                                                            $          (please provide amount) or (y) my pro rata portion
                                                                                            of any remaining investment amount available in the event other Holders do not exercise their full rights of first refusal
                                                                                            with respect to the $[              ] in New Securities being offered in the financing.



 


	Date:	 	 	 
	 	 	 	(Print investor name)
	 	 	 	 
	 	 	 	(Signature)
	 	 	 	 
	 	 	 	(Print name of signatory, if signing for an entity)
	 	 	 	 
	 	 	 	(Print title of signatory, if signing for an entity)


 


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