exv4w2



 





Exhibit 4.2




SECOND AMENDED AND RESTATED

REGISTRATION RIGHTS AGREEMENT




     THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as
of August 30, 2004 (the “Effective Date”), by and among (i) ZARS, INC., a Utah corporation (the
“Company”), (ii) holders of the Company’s Series A Preferred Stock (as defined below) listed on
Exhibit A attached hereto (the “Series A Investors”), (iii) holders of the Company’s Series
B Preferred Stock (as defined below) listed oh Exhibit B attached hereto (the “Series B
Investors” and together with the Series A Investors, the “Prior Investors”), and (iv) holders of
the Company’s Series C Preferred Stock (as defined below) listed on Exhibit C attached
hereto (the “Series C Investors” and together with the Prior Investors, the “Preferred Investors”).



RECITALS




     A. The Company and the Prior Investors entered into an Amended and Restated Registration
Rights Agreement dated February 3, 2003, as amended by the First Amendment to the Amended and
Restated Registration Rights Agreement dated July 23, 2003 (the “Prior Registration Rights
Agreement”).



     B. The Company and certain of the Preferred Investors have entered into a Series C Preferred
Stock Purchase Agreement (the “Purchase Agreement”) of even date herewith pursuant to which
the Company wants to sell to such Preferred Investors and such Preferred Investors want to purchase
from the Company shares of the Company’s Series C Preferred Stock.



     C. The Company and the Prior Investors desire to extend registration rights to purchasers of
the Company’s Series C Preferred Stock and to induce such Preferred Investors to purchase shares of
Series C Preferred Stock pursuant to the Purchase Agreement by agreeing to the terms and conditions
set forth herein.



     C. The Company and the Prior Investors also desire to amend certain of the provisions set
forth in the Prior Registration Rights Agreement by amending and restating in this Agreement the
obligations with respect to registration and other rights, which shall for all purposes subsume,
supersede and replace the Prior Registration Rights Agreement.



AGREEMENT




     NOW, THEREFORE, in consideration of the mutual benefit to be derived from this Agreement, and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:



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



 









 





     “Best efforts” means a party’s commercially reasonable best efforts.



     “Board” means the Board of Directors of the Company.



     “Commission” means the Securities and Exchange Commission.



     “Common Stock” means the Company’s common stock, par value $0.12 per share.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.



     “Holder” shall mean a Preferred Investor at any time during which such Preferred Investor
holds Registrable Securities and any holder of Registrable Securities to whom the registration
rights granted by this Agreement have been transferred by a Holder in compliance with Section 10 of
this Agreement.



     “Initiating Holders” shall mean Holders owning not less than twenty percent (20%) of the
Registrable Securities then outstanding.



     “Qualified IPO” means the closing of a firm underwritten public offering of shares of the
Common Stock of the Company at an offering price per share (prior to underwriting commissions and
expenses) that values the Company at not less than $175 million in an offering with proceeds of not
less than $20 million (exclusive of underwriting discounts and registration expenses).



     “Register,” “registered” and “registration” shall refer to a registration effected by
preparing and filing a registration statement in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such registration statement.



     “Registrable Securities” shall mean (i) Shares issued or issuable pursuant to the conversion
of Series Preferred or upon the exercise and conversion of any warrants or options to purchase
Series Preferred and (ii) any Shares issued as a dividend, stock split or other distribution with
respect to or in exchange for or in replacement of such Shares referenced in clause (i) above;
provided, however, that Registrable Securities shall not include any Shares which have previously
been registered or which have been sold to the public either pursuant to a registration statement
or are eligible for sale under and have been sold pursuant to Rule 144, or which have been sold in
a private transaction in which the transferor’s rights under this Agreement are not assigned or are
not assignable.



     “Registration Expenses” shall mean all expenses incurred in effecting any registration
pursuant to this Agreement, including without limitation, salaries and expenses of the Company’s
officers and directors, all registration, qualification, listing, quotation and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the Company, up to $20,000 in
fees and disbursements of one special counsel to the Holders, blue sky fees and expenses, expenses
of any regular or special audits (whether quarterly, annual or otherwise) and other accounting fees
incident to or required by any such registration, any related liability insurance obtained by or on
behalf of the Company, but shall not include Selling Expenses.



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     “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.



     “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.



     “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.



     “Selling Expenses” shall mean all underwriting discounts, selling commissions and stock
transfer taxes applicable to the sale of Registrable Securities and the fees and disbursements of
counsel for the Holders, other than the fees and disbursements of one counsel for all of the
Holders registering securities in any given registration as provided in the definition of
“Registration Expenses” above.



     “Series A Preferred Stock” shall mean the Company’s Series A Preferred Stock, par value $0.12
per share.



     “Series B Preferred Stock” shall mean the Company’s Series B Preferred Stock, par value $0.12
per share.



     “Series C Preferred Stock” shall mean the Company’s Series C Preferred Stock, par value $0.12
per share.



     “Series Preferred” shall mean the Series A Preferred Stock, the Series B Preferred Stock and
the Series C Preferred Stock, collectively.



     “Shares” shall mean shares of the Company’s Common Stock, par value $0.12 per share.



2. Restrictions.




     2.1 Restrictions. Each Holder agrees not to make any disposition of all or any
portion of the Registrable Securities unless and until the transferee has agreed in writing for the
benefit of the Company to be bound by this Section 2 and Section 11, provided and to the extent
such Sections are then applicable, and (i) there is then in effect a registration statement under
the Securities Act covering such proposed disposition and such disposition is made in accordance
with such registration statement, or (ii) such Holder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed statement of the
circumstances surrounding the proposed disposition, and, if reasonably requested by the Company,
such Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to
the Company, that such disposition will not require registration under the Securities Act.
Notwithstanding the foregoing, no such registration statement or opinion of counsel shall be
necessary for a transfer by a Holder which is (A) a partnership to its partners or retired partners
in accordance with partnership interests, or to its affiliated funds or any of the directors,
officers, partners or members of the Holder or its partners or affiliated funds, (B) a



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limited liability company to its members or former members in accordance with their interest
in the limited liability company, (C) a corporation to its shareholders in accordance with their
interests in the corporation, or (D) to the Holder’s family member or trust for the benefit of an
individual Holder, provided in all cases enumerated in clauses (A) – (D) that the transferee is
subject to the terms of this Section 2 and Section 11 as if such transferee were an original Holder
hereunder. Each Holder consents to the Company making a notation on its records and giving
instructions to any transfer agent of the Registrable Securities in order to implement the
restrictions on transfer established in this Section 2.



     2.2 Stock Legends. Each certificate representing Registrable Securities shall be
stamped or otherwise imprinted with legends substantially in the following forms (in addition to
any legend required under applicable state securities laws or the Company’s charter documents):




“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES
MAY NOT BE SOLD, TRANSFERRED, OR PLEDGED IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO
THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.”




“THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN ACCORDANCE
WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE SHAREHOLDER, A COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.”



     2.3 Removal of Legends. The Company shall promptly reissue unlegended certificates at
the request of any Holder thereof if the Holder shall have obtained an opinion of counsel
reasonably acceptable to the Company to the effect that the securities proposed to be disposed of
may lawfully be disposed of without registration, qualification, or legend.



3. Requested Registration.




     3.1 Request for Registration. If the Company shall receive from Initiating Holders a
written request that the Company effect any registration, qualification or compliance with respect
to that number of Registrable Securities which would result in anticipated aggregate gross proceeds
to the Initiating Holders of at least $2,000,000, the Company will:



          (a) promptly deliver written notice of the proposed registration to all other Holders; and




          (b) as soon as practicable, use its best efforts to effect such registration, qualification or
compliance on the appropriate form (including with respect to such registration the execution of an
undertaking to file post-effective amendments, appropriate qualification




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under applicable blue sky or other state securities laws and appropriate compliance with
applicable regulations issued under the Securities Act and any other governmental requirements or
regulations) as may be so requested or required and as would 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 joining in
such request as are specified in a written request delivered to the Company within twenty (20) days
after receipt of such written notice from the Company.




          Notwithstanding the foregoing, the Company shall not be obligated to effect, or to take any
action to effect, any such registration pursuant to this Section 3.1:




               (i) prior to the earlier of: (X) August ___, 2008 or (Y) six months from the date of a
Qualified IPO;



               (ii) 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;



               (iii) after the Company has effected two registrations pursuant to Section 3.1;



               (iv) if the Company shall furnish to the Initiating Holders a certificate signed by the
President of the Company stating that




                    (A) in the good faith judgment of the Board, it would be detrimental to the Company and
its stockholders for such registration statement to be filed on or before the time filing
would be required and it is therefore essential to defer the filing of such registration
statement. If such certificate is furnished, the Company shall have the right to defer such
filing (but not more than once during any twelve (12) month period) for a period of not more
than ninety (90) days after receipt of the request of the Initiating Holders; or




                    (B) the Company plans to file a registration statement for a public offering (for its
own benefit or for the benefit of the Holders) within ninety (90) days;



               (v) if the Initiating Holders are able to request a registration on Form S-3 pursuant to
Section 4; or



               (vi) within six months after the Company has effected a registration pursuant to this Section
3.1.



     3.2 Other Securities. A registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions Section 3.3 below, include other Shares of the
Company which are issued by the Company or held by officers or directors of the Company.



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     3.4 Underwriting. If the Initiating Holders intend to distribute the Shares
covered by their request pursuant to this Section 3 by means of an underwritten offering, they
shall so advise the Company as a part of their request made pursuant to Section 3.1, or as
appropriate, and the Company shall include such information in the written notice referred to in
Section 3.1(a), as appropriate. The Initiating Holders shall have the right to select the managing
underwriter of the offering, which managing underwriter shall be reasonably acceptable to the Board
of Directors of the Company. The right of any Holder to include his Shares in any registration
pursuant to this Section 3.4 shall be conditioned upon such Holder’s participation in any such
underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the
extent provided herein. Any Holder may elect to include in such underwriting all or a part of the
Registrable Securities then held by such Holder. Shares issued by the Company or owned by the
Holders may be included in such registration statement; provided, however, that if the managing
underwriter or underwriters of such offering shall advise the Company in writing that, because of
marketing reasons or the size of the offering intended to be made, the success of the offering
would be adversely affected by the inclusion of securities other than those owned by the Initiating
Holders, then the amount of securities to be offered for the account of the Company and the Holders
not initiating the registration shall be reduced to the extent necessary (including excluding such
securities from the registration entirely) to reduce the total amount of securities to be included
in such offering to the amount recommended by such managing underwriter or underwriters. Under
such circumstances, the priority for inclusion in the underwritten offering shall be determined as
follows: (i) first, to those securities to be included in the underwritten offering by the
Initiating Holders, (ii) second, to those securities to be included in the underwritten offering by
the other Holders and (iii) third, to those securities to be offered by the account of the Company
in the underwritten offering. If after excluding all Shares from the Company and Holders not
initiating the registration, the managing underwriter or underwriters advises the Initiating
Holders in writing that, because of marketing reasons or the size of the offering intended to be
made, the success of the offering would be adversely affected by the inclusion of all Shares
requested to be included by the Initiating Holders, then the number of Registrable Securities to be
included in the underwriting shall be allocated among all Initiating Holders in proportion (as
nearly as practicable) to the amount of Registrable Securities owned by each Initiating Holder. If
any person who has requested inclusion in such registration as provided above disapproves of the
terms of the underwriting, such person shall be excluded therefrom by written notice delivered by
the Company or the managing underwriter. Any Registrable Securities and/or other securities so
excluded or withdrawn shall also be withdrawn from registration.



4. Piggy-Back Registration.




     4.1 Notices. 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
relating to employee benefit plans, or a registration relating to a Rule 145 transaction, or a
registration on any registration form that does not permit secondary sales, the Company shall:



          (a) promptly deliver written notice thereof to each Holder; and




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          (b) use its best efforts to include in such registration (and any related registration or
qualification under blue sky laws or other compliance), except as set forth in Section 4.2, and in
any underwriting involved therein, all the Registrable Securities specified in a written request or
requests, made by any Holder and received by the Company within fifteen (15) days after the
Company’s written notice described in Section 4.1(a) above is given. A Holder’s written request
may specify all or a part of a Holder’s Registrable Securities.




     4.2 Priority on Piggyback Registrations.



          (a) If the registration of which the Company gives notice is for an underwritten registered
public offering, the Company shall so advise the Holders as a part of the written notice given
pursuant to Section 4.1(a). In such event, the right of any Holder to registration pursuant to
this Section 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. The Board of Directors of the Company shall have the right to select the managing
underwriters for such offering.




          (b) Notwithstanding the foregoing, if the representative of the managing underwriter advises
the Company that marketing factors or the size of the offering require a limitation of the number
of Shares to be underwritten, the managing underwriter may limit the Registrable Securities to be
included in such registration. Under such circumstances, the priority for inclusion in the
underwritten offering shall be determined as follows: (i) first, to those securities to be issued
by the Company; (ii) second, to those securities to be included in the underwritten offering that
are owned by Holders of Registrable Securities, allocated in proportion, if necessary, as near as
practicable to the amount of Registrable Securities owned by each Holder; and (iii) third, to those
securities to be included in the underwritten offering by any other person. Notwithstanding the
foregoing, unless otherwise determined by the managing underwriter or underwriters, the securities
to be included in the underwritten offering by Holders of Registrable Securities may not be reduced
to less than twenty-five (25%) of the total amount of the securities to be included in such
offering, unless such offering is the Qualified IPO, in which case the securities to be included is
such offering may be reduced to zero. If any person does not agree to the terms of any such
underwriting, he shall be excluded therefrom by written notice from the Company or the underwriter.




5. Registration on Form S-3.




     5.1 Registration on Form S-3. After the Qualified IPO, the Company shall use its
commercially reasonable best efforts to qualify for, and remain eligible for, registration on Form
S-3 or any comparable or successor form. To that end the Company shall register (whether or not
required by law to do so) its Common Stock under the Exchange Act in accordance with the provisions
of the Exchange Act following the effective date of the first registration of any securities of the
Company on Form S-1 or any comparable or successor form or forms. In case the Company shall
receive from Initiating Holders a written request that the Company file a registration statement on
Form S-3 (or any successor form to Form S-3 that permits resales of securities) for a public
offering of shares of the Registrable Securities the aggregate price to the public of which, net of
underwriting discounts and commissions, would result in anticipated



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gross proceeds in excess of $500,000, and the Company is a registrant entitled to use Form S-3
to register the Registrable Securities for such an offering, the Company shall:



          (a) promptly deliver written notice to the other Holders of the proposed registration and
offer them the opportunity to participate; and




          (b) use its commercially reasonable efforts to effect such registration (including, without
limitation, the execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws, and appropriate compliance
with applicable regulations issued under the Securities Act and any other governmental requirements
or regulations) so as to cause such Registrable Securities to be registered for the offering on
such form and to cause such Registrable Securities to be qualified in such jurisdictions as such
Holders may reasonably request, together with all or such portion of the Registrable Securities of
any Holders joining in such request as are specified in a written request delivered to the Company
within fifteen (15) days after receipt of such written notice from the Company.




          Notwithstanding the foregoing, the Company shall not be obligated to take any action pursuant
to this Section 5.1:




               (i) following the filing of, and for one hundred eighty (180) days immediately following the
effective date of, any registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an employee benefit plan);
provided that the Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and that the Company’s estimate of the date of filing
such registration statement is made in good faith;



               (ii) 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;



               (iii) after the Company has effected three registrations pursuant to Section 5.1;



               (iv) if the Company shall furnish to the Initiating Holders a certificate signed by the
President of the Company stating that




                    (A) in the good faith judgment of the Board, it would be detrimental to the Company and
its stockholders for such registration statement to be filed on or before the time filing
would be required and it is therefore essential to defer the filing of such registration
statement. If such certificate is furnished, the Company shall have the right to defer such
filing (but not more than once during any twelve (12) month period) for a period of not more
than ninety (90) days after receipt of the request of the Initiating Holders; or



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                    (B) the Company plans to file a registration statement for a public offering (for its
own benefit or for the benefit of the Holders) within ninety (90) days; or



               (v) if during the most recent twelve (12) month period, the Company has effected two
registrations pursuant to Section 5.1.


6. Costs and Expenses. All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Sections 3, 4 or 5 shall be borne by the Company;
provided, however, that if the Holders bear the Registration Expenses for any
registration proceeding begun pursuant to Section 3 and subsequently withdrawn by the Holders
registering shares therein, such registration proceeding shall not be counted as a requested
registration pursuant to Section 3. All Selling Expenses relating to securities registered on
behalf of the Holders shall be borne by the holders of the registered securities included in such
registration pro rata on the basis of the number of shares so registered.




7. Obligations of the Company.




     7.1 Whenever required under this Agreement to effect the registration of any Registrable
Securities, the Company shall:



          (a) Prepare and file with the Commission a registration statement with respect to such
Registrable Securities and use its best efforts to cause such registration statement to become
effective, and to keep such registration statement effective for at least ninety (90) days or until
the distribution described in the registration statement has been completed, whichever first
occurs, to the extent permitted by and subject to applicable law; provided,
however, that (i) such ninety (90) day period shall be extended for a period of time equal
to the period the Holder refrains from selling any securities included in such registration at the
request of an underwriter of common stock or other securities of the Company, and (ii) in the case
of any registration of Registrable Securities on Form S-3 which are intended to be offered on a
continuous or delayed basis, such ninety (90) day period shall be extended, if necessary, up to one
hundred eighty (180) days to keep the registration statement effective until all such Registrable
Securities are sold, however in no event longer than one year from the effective date of the
registration statement and provided that if Rule 415, or any successor rule under the Securities
Act, permits an offering on a continuous or delayed basis, and provided further that if applicable
rules under the Securities Act governing the obligation to file a post-effective amendment permit,
in lieu of filing a post-effective amendment which (A) includes any prospectus required by Section
10(a)(3) of the Securities Act or (B) reflects facts or events representing a material or
fundamental change in the information set forth in the registration statement, the incorporation by
reference of information required to be included in (A) and (B) above shall be contained in
periodic reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the registration
statement.




          (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
the securities covered by such registration statement.




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          (c) Furnish to each Holder participating in the registration, without charge, such numbers of
copies of the registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement, including the preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as such Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities owned by such Holder.




          (d) In the event of any underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall also enter into and perform its
obligations under such an agreement.




8. Rule 144 Reporting.




     8.1 Reporting. With a view to making available to all Holders the benefits of certain
rules and regulations of the Commission which may permit the sale of Registrable Securities to the
public without registration, the Company agrees to use its commercially reasonable efforts to:



          (a) make and keep public information available, as those terms are understood and defined in
Rule 144, at all times after ninety (90) days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general public;




          (b) file with the Commission in a timely manner all reports and other documents required by
the Company under the Securities Act and the Exchange Act; and




          (c) so long as a Holder owns any restricted securities, as that term is understood and defined
in Rule 144, subject to this Agreement, furnish to each Holder of Registrable Securities forthwith
upon such Holder’s request (i) a written statement by the Company as to its compliance with the
public information requirements of Rule 144 (at any time after ninety (90) days after the effective
date of the first registration statement filed by the Company for an offering of its securities to
the general public); (ii) a copy of the most recent annual or quarterly report of the Company; and
(iii) such other reports, documents and other information in the possession of or reasonably
obtainable by the Company as may be reasonably requested in availing any such Holder of any rule or
regulation of the Commission permitting the sale of any shares without registration.



9. Information by Holder. Each Holder of Registrable Securities shall timely 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 Agreement.



10. Transferability. The rights set forth in this Agreement may be assigned by a Holder (i) to any
majority-owned subsidiary or parent of, or to any corporation or other entity that is an affiliate
or successor in interest to, any such Holder to which such Holder transfers any number of
Registrable Securities, (ii) in the case of any Holder that is a partnership or limited liability
company, to its affiliated funds or any of the directors, officers, partners or members of the




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Holder or its partners or affiliated funds, (iii) to any spouse or lineal descendant of a Holder or
a trust for the benefit of any such person and (iv) to any other transferee of one hundred thousand
(100,000) or more Registrable Securities; provided, however, that the Company receives written
notice of such transfer and any such assignee agrees in writing to be bound by the terms of this
Agreement.



11. Lockup Agreement. Each Holder of Registrable Securities agrees that in connection with the
initial registration of the Company’s securities (other than a registration of securities in a Rule
145 transaction or with respect to an employee benefit plan), not to sell, make any short sale of,
loan, pledge or otherwise hypothecate or encumber, grant any option for the purchase of, or
otherwise dispose of any Registrable Securities (other than those included in the registration),
including by a sale pursuant to Rule 144 (except as part of such underwritten offering), without
the written consent of the managing underwriters in such underwritten offering, for a period not to
exceed one hundred eighty (180) days from the effective date of such registration. The Company may
impose stop-transfer instructions with respect to the Shares (or other securities held by the
Holders) subject to the foregoing restriction until the end of such one hundred eighty (180) day
period; provided, however, that the foregoing obligation shall be conditioned upon all officers and
directors of the Company and all holders of more than one percent of the Shares of the Company
entering into similar agreements and not being released from such agreements at any time before or
during such one hundred eighty (180) day period.



12. Indemnification. If any Registrable Securities, as the case may be, are included in a
registration statement under this Agreement:




          (a) To the extent permitted by law, the Company shall indemnify and hold harmless each Holder
participating in a registration, qualification or compliance pursuant to this Agreement, their
affiliates, partners, officers, employees, directors, legal counsel, accountants and agents (each,
a “Participating Holder”), any underwriter (as defined in the Securities Act) for such
Participating Holder and each person, if any, who controls such Participating Holder or underwriter
within the meaning of the Securities Act or the Exchange Act, against any expenses, losses, claims,
damages, or liabilities (joint or several) to which they may become subject, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations in connection with such registration,
qualification or compliance (collectively, a “Violation”): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement, including any
prospectus, offering circular or similar documents, or any amendments or supplements thereto, (ii)
the 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 of the Securities Act, the Exchange Act, state securities laws or any rule or regulation
promulgated under the Securities Act, the Exchange Act or state securities laws; and the Company
shall pay to each such Participating Holder, underwriter or controlling person any legal or other
expenses reasonably incurred by them in connection with investigating, preparing, defending or
settling any such loss, claim, damage, liability or action; provided, however, that the Company
shall not be liable in any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with information furnished expressly for use in connection with such




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registration by such Participating Holder; provided further, that the obligation of the
Company contained in this Section 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 or delayed.




          (b) To the extent permitted by law, each Holder, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification, or compliance is being
effected, shall indemnify and hold harmless the Company, each of its current and former directors,
officers, employees, legal counsel, accountants, and agents, each person, if any, who controls the
Company within the meaning of the Securities Act, any underwriter, any other Participating Holder
and any controlling person of any such underwriter or other Participating Holder, against any
expenses, losses, claims, damages or liabilities (joint or several) to which any of the foregoing
persons may become subject, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to the extent, but only
to the extent, that such Violation occurs in reliance upon information furnished by such Holder
expressly for use in connection with such registration; and each such Holder shall pay any legal or
other expenses reasonably incurred by any person intended to be indemnified pursuant to this
Section, in connection with investigating, preparing, defending or settling any such loss, claim,
damage, liability, or action; provided, however, that the obligation of such Holder contained in
this Section 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 Holder, which consent
shall not be unreasonably withheld or delayed. However, in no event shall any Holder’s liability
under this Section 12 exceed the net proceeds to such Holder of Registrable Securities sold as
contemplated herein.




          (c) Each party entitled to indemnification under this Section 12 (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 participate
in, and, to the extent the Indemnifying Party so desires, jointly with any other Indemnifying Party
similarly noticed, assume the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an Indemnified Party (together with all other Indemnified Parties which may
be represented without conflict by one counsel) will have the right to participate in such defense
at such Indemnified Party’s expense. The failure to deliver written notice to the Indemnifying
Party within a reasonable time of the commencement of any such action, if prejudicial to its
ability to defend such action, shall relieve such Indemnifying Party of any liability to the
Indemnified Party under this Section 12, but the omission so to deliver written notice to the
Indemnifying Party shall not relieve it of any liability that it may have to any Indemnified Party
otherwise than under this Section 12. The payments required by this Section shall be made
periodically throughout the course of investigation or defense, as and when bills are received or
expenses incurred, provided that the Indemnified Party seeking reimbursement of expenses hereunder
undertakes in a writing reasonably satisfactory to the Indemnifying Party, to repay all amounts
previously paid over to the Indemnified Party if it is ultimately determined (by a final judgment
of a court of competent jurisdiction) that such party is not entitled to indemnification hereunder.
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




12









 







judgment or enter into any settlement which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may reasonably request in
writing and as shall be reasonably required in connection with the defense of such claim and
litigation resulting therefrom.




          (d) If the indemnification provided for in this Section is held by a court of competent
jurisdiction to be unavailable to an indemnified party, other than pursuant to its terms, with
respect to any loss, liability, claim, damage, or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party to this Agreement, 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. The Company and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 12 were based solely upon the number of
entities from whom contribution was requested or by any other method of allocation which does not
take account of the equitable considerations referred to above. In no event shall any Holder’s
liability for contribution under this Section exceed the net proceeds to such Holder of Registrable
Securities sold as contemplated hereby.




          (e) The amount paid or payable by an Indemnified Party as a result of the losses, claims,
damages, and liabilities referred to above in this Section 12 shall be deemed to include any legal
or other expenses reasonably incurred by such Indemnified Party in connection with investigating or
defending any such action or claim, subject to the provisions of Section 12(c). No person guilty
of fraudulent misrepresentation (within the meaning of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.




          (f) 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.




          (g) The obligations of the Company and Holders under this Section shall survive the completion
of any offering of Registrable Securities in a registration statement under this Agreement, and
otherwise; provided, however, that the remedies provided for in this Section are not exclusive and
shall not limit any rights or remedies which may otherwise be available to the Company or Holders
at law or in equity.




13









 








13. Miscellaneous.




     13.1 Notices. All notices, requests and other communications to any party hereunder
shall be in writing (including bank wire, facsimile or similar writing) and shall be given to (a)
the Company at its address or facsimile number set forth below and (b) the Preferred Investors at
their address or facsimile number set forth on the Exhibits to this Agreement or such other address
or facsimile number as such party may hereafter specify for the purpose by notice to the Holders
and the Company. Each such notice, request or other communication shall be effective (i) if given
by facsimile, one business day following when such facsimile is transmitted to the facsimile number
specified in this Section and the receipt is electronically confirmed, (ii) if given by mail, five
days for domestic addresses and seven days for foreign addresses after deposit in the mails,
registered or certified mail with first class postage prepaid, return receipt requested, addressed
as aforesaid or (iii) if delivered by hand or messenger, upon actual delivery.


If to the Company:



ZARS, INC.

Attention: Larry D. Rigby

1142 West 2320 South

Salt Lake City, UT 84119

Fax No. (801) 350-0909



With copy to (which shall not constitute notice):



Ballard Spahr Andrews & Ingersoll, LLP

Attention: David R. Rudd

201 South Main Street, Suite 600

Salt Lake City, Utah 84111

Fax No. (801) 351-3001



The address of any party to which notices may be delivered pursuant to this Section may be changed
by such party by delivering written notice of such changed address in the same manner as notices
are required to be delivered pursuant to this Section.




     13.2 No Waivers. No failure or delay by one party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.



     13.3 Additional Registration Rights. The Company shall not grant registration rights
equal or senior to the registration rights granted under this Agreement to any other holder of the
Company’s securities without the prior approval of the holders of a majority of the number of
Registrable Securities.



14









 





     13.4 Modification of Agreement Assignment. Neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated, except by a written instrument signed by the
Company and the holders of a majority of the then outstanding Registrable Securities, and any such
amendment, waiver, discharge or termination shall be binding on all the Preferred Investors and the
Company, but in no event shall the obligation or liability of any Preferred Investor hereunder be
materially increased, or shall any such amendment, waiver, discharge or termination have a
disproportionately adverse effect on any Preferred Investor in relation to the other Preferred
Investors, except upon the written consent of such Preferred Investor. In addition, the Company
may waive performance of any obligation owing to it, as to some or all of the Preferred Investors,
or agree to accept alternatives to such performance, without obtaining the consent of any Preferred
Investor. Except as set forth in Section 10, no party to this Agreement may sell, assign or
transfer any interest in this Agreement, or any rights or obligations hereunder, including, without
limitation, a party’s rights, title, interests, remedies, powers and duties hereunder.



     13.5 Effect of Amendment or Waiver. The Preferred Investors and their successors and
assigns acknowledge that by the operation of Section 13.4 hereof Preferred Investors holding more
than a majority of the outstanding Registrable Securities, acting in conjunction with the Company,
will have the right and power to diminish or eliminate any or all rights pursuant to this
Agreement.



     13.6 Section and Other Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.



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



     13.8 Parties in Interest. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to confer upon any other person any rights or remedies
under or by reason of this Agreement, except as expressly provided in this Agreement.



     13.9 Survival. All covenants, agreements, representations and warranties made herein
or otherwise in writing in connection herewith shall survive both the execution and delivery of
this Agreement, and the consummation of the transactions contemplated hereby.



     13.10 Applicable Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Utah, without regard to the principles of conflicts of laws
thereof.



     13.11 Entire Agreement. This Agreement and the other documents contemplated herein
collectively represent the full and final understanding and agreement among the parties with
respect to the subjects hereof and may not be contradicted by evidence of prior, contemporaneous



15









 







or subsequent oral agreements between the parties. There are no unwritten oral agreements
between the parties.



     13.12 Severability. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall be deemed invalid, illegal or unenforceable to any
extent or for any reason, such provision shall be severed from this Agreement and the remainder of
this Agreement and the application thereof shall not be affected and shall be enforceable to the
fullest extent permitted by law. A provision which is valid, legal and enforceable shall be
substituted for the severed provision.



     13.13 Aggregation of Stock. All shares of Registrable Securities held or acquired by
affiliated entities or persons shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.



     13.14 Termination of Registration Rights. The right of any Holder to request
registration or inclusion in any registration pursuant to this Agreement shall terminate on (a) the
closing of a Qualified IPO, if all Shares of Registrable Securities held or entitled to be held
upon conversion by such Holder may be sold under Rule 144 during any ninety (90) day period, or (b)
on the date after the closing of a Qualified IPO in 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, but in no event later than the second anniversary of any such closing
under either (a) or (b).



     13.15 Termination of Prior Registration Rights Agreement. The Prior Registration
Rights Agreement is hereby terminated and shall be of no further force or effect, and shall be
superseded and replaced in its entirety by this Agreement.



     13.16 Delays or Omissions. No delay or omission to exercise any right, power, or
remedy accruing to any Investor upon any breach or default of the Company under this Agreement
shall impair any such right, power, or remedy of such 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 or as provided in this Agreement. All remedies, either under this Agreement or by
law or otherwise afforded to any party, shall be cumulative and not alternative.



     13.17 Dispute Resolution Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorney’s fees, costs, and disbursements in addition to any other relief to which such
party may be entitled.



16









 





     13.18 Rights of Preferred Investors. Each party to this Agreement shall have the
absolute right to exercise or refrain from exercising any right or rights that such party may have
by reason of this Agreement, including, without limitation, the right to consent to the waiver or
modification of any obligation under this Agreement, and such party shall not incur any liability
to any other party or other holder of any securities of the Company as a result of exercising or
refraining from exercising any such right or rights.



[Signature Page Follows]




17









 








     IN WITNESS WHEREOF, this Agreement is entered into between the parties as of the first date
written above.



	 	 	 	 	 
	ZARS, INC.

 	 
	By:  	/s/ Larry Rigby
 	 	 
	 	Larry Rigby 	 	 
	Its:	       President 	 	 	 
	 



ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




S-1









 








	 	 	 	 	 	 	 
	ZARS,
Inc. Investors (Series A, B, and C)
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	A.J.M. BEEKMAN

	 	By:	 	/s/ A.J.M. Beekman	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	A.J.M. Beekman	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	ALLEN F. HILL

	 	By:
	 	/s/ Allen Hill
	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Allen F. Hill	 	 
	 	 	Title: Investor	 	 
	 
	 	 	 	 	 	 
	ALMA INVESTMENTS, L.L.C.

	 	By:	 	/s/ Craig R. Crockett	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Craig R. Crockett 	 	 
	 

	 	 	 	 	 	 
	 	 	Title: Manager – Alma Investments LLC	 	 
	 
	 	 	 	 	 	 
	ANTHONY A. AND ROBIN L. BETZ

	 	By:
	 	/s/ Anthony Betz & Robin Betz	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Anthony A. Betz and Robin L. Betz	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	ANTHONY G. MESSINA

	 	By:
	 	/s/ Anthony Messina	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Anthony Messina	 	 
	 	 	Title: Self	 	 
	 
	 	 	 	 	 	 
	B. KERRY LOWDER AND TERRI LOWDER

	 	By:	 	/s/ Terri Lowder and Kerry Lowder	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Terri Lowder/Kerry Lowder	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	BARBARA BAGNASACCO

	 	By:
	 	/s/ Barbara Bagnasacco	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Barbara Bagnasacco	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	BLAINE L. AND MARILYN B. CARLTON, JOINT OWNERS

	 	By:
	 	/s/ Blaine L. Carlton	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Blaine L. Carlton	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




S-2









 






	 	 	 	 	 	 	 
	BLAKE PARRISH AND JILL PARRISH, JOINT TENANTS

	 	By:	 	/s/ Jill Parrish and Blake Parrish	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Jill Parrish and Blake Parrish	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	BRUCE WARD

	 	By:
	 	/s/ Bruce Ward	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Bruce Ward	 	 
	 	 	Title: GM Elcam Medical	 	 
	 
	 	 	 	 	 	 
	BURWEN FAMILY TRUST U/D/T DATED 9/30/88

	 	By:
	 	/s/ David M. Burwen	 	 
	 

	 	 	 	 	 	 
	 	 	Name: David M. Burwen	 	 
	 	 	Title: Trustee	 	 
	 
	 	 	 	 	 	 
	CAROLYN AND MICHAEL ASHBURN

	 	By:
	 	/s/ Carolyn Ashburn and Michael Ashburn	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Carolyn Ashburn and Michael Ashburn	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	CDIB BIOSCIENCE VENTURES I, INC.

	 	By:
	 	/s/ Benny T. Hu	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Benny T. Hu	 	 
	 	 	Title: Chairman	 	 
	 
	 	 	 	 	 	 
	CEPHALON, INC.

	 	By:
	 	/s/ Peter E. Grebow	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Peter E. Grebow	 	 
	 	 	Title: Sr. V.P., Technical Operations	 	 
	 
	 	 	 	 	 	 
	CHARLES SCHWAB & CO. INC. FBO JOHN B. IVERSON
IRA

	 	By:
	 	/s/ John B. Iverson	 	 
	 

	 	 	 	 	 	 
	 	 	Name: John B. Iverson	 	 
	 	 	Title: IRA	 	 
	 
	 	 	 	 	 	 
	CHARLES SCHWAB & CO. INC. FBO: GREG F. SCHENK
IRA

	 	By:	 	/s/ Greg F. Schenk	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Greg F. Schenk	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




3









 






	 	 	 	 	 	 	 
	CHARLES
SCHWAB & CO., INC. FBO

	 	By:
	 	/s/ Richard D. Waltman	 	 
	 

	 	 	 	 	 	 
	RICHARD DEAN
WALTMAN, IRA	 	Name: Richard D. Waltman	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	CHRISTOPHER M. VISCOMI

	 	By:	 	/s/ Christopher M. Viscomi	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Christopher M. Viscomi	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	COLBY H. MOSIER

	 	By:
	 	/s/ Colby H. Mosier	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Colby H. Mosier	 	 
	 	 	Title: Owner	 	 
	 
	 	 	 	 	 	 
	CRAIG R. CROCKETT, TRUSTEE OF THE CRAIG R.

	 	By:
	 	/s/ Craig R. Crockett	 	 
	 

	 	 	 	 	 	 
	CROCKETT PROFIT SHARING PLAN DATED 12-30-88	 	Name: Craig R. Crockett Profit Sharing Plan 12/30/88	 	 
	 	 	Title: Trustee	 	 
	 
	 	 	 	 	 	 
	DALE AND KIMBERLY MAYFIELD

	 	By:
	 	/s/ Dale Mayfield and Kimberly Mayfield	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Dale Mayfield and Kimberly Mayfield	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	DANIEL AND MARGARET SELIGSON TRUST UAD 3/27/97

	 	By:
	 	/s/ Daniel Seligson	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Daniel Seligson	 	 
	 	 	Title: Trustee	 	 
	 
	 	 	 	 	 	 
	DANIEL RUBEN

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	DAVID B. ALAND

	 	By:
	 	/s/ David B. Aland	 	 
	 

	 	 	 	 	 	 
	 	 	Name: David B. Aland	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




4









 





	 	 	 	 	 	 	 
	DAVID J. BIRNBACH

	 	By:

Name:
	 	/s/ David J. Birnbach
 

David J. Birnbach
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	DAVID M. BERRYMAN AND LISA Y. BERRYMAN

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	DAVID R. RUDD AND LESLIE C. RUDD,
JOINT TENANTS

	 	By:

Name:
	 	/s/ David R. Rudd
 

David R. Rudd
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	DENNIS J. CLIFFORD AND JANET M.
CLIFFORD

	 	By:

Name:
	 	/s/ Dennis J. Clifford and Janet M. Clifford
 

Dennis J. and Janet M. Clifford
	 	 
	 

	 	Title:
	 	Shareholders	 	 
	 
	 	 	 	 	 	 
	DENNIS J. WYMAN AND JANE R. WYMAN

	 	By:

Name:
	 	/s/ Dennis J. Wyman
Dennis J. Wyman 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	DENNIS P. O’BRIEN AND ROBIN L. O’BRIEN

	 	By:

Name:
	 	/s/ Dennis P. O’Brien and Robin L. O’Brien
 

Dennis P. O’Brien Robin L. O’Brien
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	DENNIS V. HASLAM, TRUSTEE, DENNIS V.
HASLAM REVOCABLE TRUST

	 	By:

Name:
	 	/s/ Dennis V. Haslam
 

Dennis V. Haslam
	 	 
	 

	 	Title:
	 	Trustee	 	 
	 
	 	 	 	 	 	 
	DONNA P. KIMBALL AND JOHN F. KIMBALL,
JR.

	 	By:

Name:
	 	/s/ Donna P. Kimball
 

Donna P. Kimball
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 




ZARS,
Inc.-Second Amended and Restated Registration Rights Agreement





5









 






	 	 	 	 	 	 	 
	DR. P.L. HOUWELING

	 	By:	 	/s/ Peter Houweling 
	 	 
	 

	 	Name:	 	Peter Houweling	 	 
	 
	 	Title:	 	Doctor	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	DRAPER ASSOCIATES, L.P.

	 	By:

Name:
	 	/s/ Timothy Draper
 

Timothy Draper
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	DRAPER FISHER JURVETSON EPLANET 

PARTNERS FUND, LLC

	 	By:

Name:
	 	/s/ Stephen T. Jurvetson
 

Stephen T. Jurvetson
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	DRAPER FISHER JURVETSON EPLANET
VENTURES GMBH & CO. KG

	 	By:

Name:
	 	/s/ Stephen T. Jurvetson
 

Stephen T. Jurvetson
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	DRAPER FISHER JURVETSON EPLANET
VENTURES L.P.

	 	By:

Name:
	 	/s/ Stephen T. Jurvetson
 

Stephen T. Jurvetson
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	DRAPER FISHER JURVETSON FUND VII, L.P.

	 	By:

Name:
	 	/s/ Stephen T. Jurvetson
 

Stephen T. Jurvetson
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	DRAPER FISHER JURVETSON PARTNERS VII, 

LLC

	 	By:

Name:
	 	/s/ Stephen T. Jurvetson
 

Stephen T. Jurvetson
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	EDWARD CHUNG

	 	By:	 	/s/ Edward Chung 
	 	 
	 
	 	Name:	 	Edward Chung	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	ELLEN AND THEODORE STANLEY

	 	By:

Name:
	 	/s/ Theordore Stanley and Ellen Stanley
 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 





 ZARS,
Inc.-Second Amended and Restated Registration Rights Agreement




6









 






	 	 	 	 	 	 	 
	ELLEN STANLEY AND RICHARD STANLEY
AS J.T.

	 	By:

Name:
	 	/s/ Ellen Stanley and Richard Stanley
 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	EUGENE D. MEMOLY

	 	By:	 	/s/ Eugene D. Memoly	 	 
	 

	 	Name:
	 	Eugene D. Memoly 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	GARY REICH IRA UTA CHARLES SCHWAB & CO

	 	By:	 	/s/ Gary Reich 
	 	 
	INC.

	 	Name:
	 	Gary Reich	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	GLEN A. LARSEN

	 	By:

Name:
	 	/s/ Glen A. Larsen
 

Glen A. Larsen
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	GLEN A. LARSEN TERESA L. LARSEN

	 	By:

Name:
	 	/s/ Glen A. Larsen
 

Glen A. Larsen
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	GREG F. SCHENK

	 	By:

Name:
	 	/s/ Greg F. Schenk
 

Greg F. Schenk
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	HAROLD W. ROSEMANN AND CATHY ROSEMANN

	 	By:

Name:
	 	/s/ Harold W. Rosemann and Cathy Rosemann
 

Harold W. Rosemann Cathy Rosemann
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	HENRY GOITZ, MD

	 	By:	 	/s/ Henry Goitz	 	 
	 

	 	Name:
	 	Henry Goitz 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 




ZARS,
Inc.-Second Amended and Restated Registration Rights Agreement





7









 






	 	 	 	 	 	 	 
	INGRID SEUFFERT

	 	By:

Name:
	 	/s/ Ingrid Seuffert
 

Ingrid Seuffert
	 	 
	 

	 	Title:
	 	Owner	 	 
	 
	 	 	 	 	 	 
	IRA FBO GEORGE S. TAYLOR, PERSHING LLC
AS CUSTODIAN

	 	By:

Name:
	 	/s/ George S. Taylor
 

George S. Taylor
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	JACK FOLEY

	 	By:

Name:
	 	/s/ Jack Foley
 

Jack Foley
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	JAMES A. BRADWAY

	 	By:

Name:
	 	/s/ James A. Bradway
 

James A. Bradway
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	JAMES A. BRADWAY AND ALICE K. BRADWAY

	 	By:

Name:
	 	/s/ James Bradway and Alice Bradway
 

James Bradway and Alice Bradway
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	JAMES A. BRADWAY, TRUSTEE OF JIM
BRADWAY MD, PC TRUST RETIREMENT PLAN

	 	By:

Name:
	 	/s/ James A. Bradway
 

James A. Bradway
	 	 
	 

	 	Title:
	 	Trustee	 	 
	 
	 	 	 	 	 	 
	JAMES MICHAEL OLDROYD TRUSTEE OF

	 	By:	 	/s/ James M. Oldroyd	 	 
	THE TETON WOMEN’S HEALTH CENTER PA

	 	Name:
	 	James M. Oldroyd	 	 
	MONEY PURCHASE PLAN & TRUST

	 	Title:
	 	Trustee of the Teton Women’s
Health Center PA Money Purchase Plan	 	 
	 
	 	 	 	 	 	 




ZARS,
Inc.-Second Amended and Restated Registration Rights Agreement





8









 






	 	 	 	 	 	 	 
	JAMES U. JENSEN

	 	By:	 	/s/ James U. Jensen	 	 
	 

	 	Name:
	 	James U. Jensen	 	 
	 

	 	Title:
	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	JAN A. CROCKETT AND/OR CRAIG R.
CROCKETT

	 	By:

Name:
	 	/s/ Jan A. Crockett and Craig R. Crockett
 

Jan A. Crockett and Craig R. Crockett
	 	 
	 

	 	Title:
	 	Individually	 	 
	 
	 	 	 	 	 	 
	JENNIFER A. MCFARLANE TRUST, 1998

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	JOHN R. HAMPSHIRE

	 	By:

Name:
	 	/s/ John R. Hampshire
 

John R. Hampshire
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	JOSEPH W. PEPPER

	 	By:

Name:
	 	/s/ Joseph W. Pepper
 

Joseph W. Pepper
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	JUDITH P. MARTIN, TRUSTEE OF JUDITH P.
MARTIN REV TRUST DTD 10/18/93

	 	By:

Name:
	 	/s/ Judith P. Martin
 

Judith P. Martin
	 	 
	 

	 	Title:
	 	Trustee	 	 
	 
	 	 	 	 	 	 
	KEITH H. AND KELLY A. O’BRIEN

	 	By:	 	/s/ Keith O’Brien and Kelly O’Brien	 	 
	 

	 	Name:	 	Keith O’Brien and Kelly O’Brien	 	 
	 

	 	Title:
	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	KELLY C. HARMSEN

	 	By:	 	/s/ Kelly C. Harmsen	 	 
	 

	 	Name:
	 	Kelly C. Harmsen 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 




ZARS,
Inc.-Second Amended and Restated Registration Rights Agreement





9









 






	 	 	 	 	 	 	 
	KIRTON & MCCONKIE

	 	By:	 	/s/ Michael Krieger	 	 
	 

	 	Name:
	 	Michael Krieger	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	LANETTE P. AND LARRY H. HANSEN

	 	By:

Name:
	 	/s/ Lanette P. Hansen and Larry Hansen
 

Lanette P. Hansen and Larry H. Hansen
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	LEWIS S. COLEMAN, M.D.

	 	By:

Name:
	 	/s/ LS Coleman
 

Lewis S. Coleman
	 	 
	 

	 	Title:
	 	M.D.	 	 
	 
	 	 	 	 	 	 
	LINDA J. RICE, TRUSTEE OF THE LINDA J.
RICE TRUST U/D/T/ DTD. 4/2/01

	 	By:

Name:
	 	/s/ Linda J. Rice Trustee of the Linda J. Rice Trust
 

	 	 
	 

	 	Title:
	 	 

U/D/T DTD. 4/2/01
	 	 
	 
	 	 	 	 	 	 
	MARIANNE OJILE

	 	By:

Name:
	 	/s/ Marianne Ojile
 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	MARIANNE AND JOSEPH OJILE

	 	By:

Name:
	 	/s/ Marianne Ojile and Joseph M. Ojile
 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	MARK J. ADRIAN, SR.

	 	By:	 	/s/ Marla M. Adrian	 	 
	 

	 	Name:
	 	Marla M. Adrian	 	 
	 

	 	Title:
	 	Administrator and sole heir

Mark J. Adrian, Sr. Estate	 	 
	 
	 	 	 	 	 	 
	MARY ANN O. STANLEY, TRUSTEE, OR HER
SUCCESSORS IN TRUST, UNDER THE MARY

	 	By:

Name:
	 	/s/ Mary Ann O. Stanley
 

Mary Ann O. Stanley
	 	 
	ANN O. STANLEY LIVING TRUST, DATED MAY

	 	Title:	 	 	 	 
	5, 1997, AND ANY AMENDMENTS THERETO

	 	 	 	 

	 	 




ZARS,
Inc.-Second Amended and Restated Registration Rights Agreement





10









 






	 	 	 	 	 	 	 
	MATTHEW FRANK

	 	By:	 	/s/ Matthew Frank	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	MAURICE LIPPMANN, M.D., OR MARIANNE H.
LIPPMANN

	 	By:

Name:
	 	/s/ Maurice Lippmann, M.D. and Marianne H. Lippmann
 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	MAYFIELD FAMILY TRUST

	 	By:

Name:
	 	/s/ Gary L. Mayfield
 

Gary L. Mayfield
	 	 
	 

	 	Title:
	 	Trustee	 	 
	 
	 	 	 	 	 	 
	MERCED INVESTMENTS LLC

	 	By:

Name:
	 	/s/ Curt P. Crowther
 

Curt P. Crowther
	 	 
	 

	 	Title:
	 	Managing Member	 	 
	 
	 	 	 	 	 	 
	MICHAEL & KATHERINE DOUGHERTY

	 	By:

Name:
	 	/s/ Katherine S. Dougherty and Michael E. Dougherty
 

Katherine S. Dougherty and Michael E. Dougherty
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	MICHAEL E. AND KATHERINE S. DOUGHERTY

	 	By:

Name:
	 	/s/ Katherine S. Dougherty and Michael E. Dougherty
 

Michael E. Dougherty and Katherine S. Dougherty
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	MICHAEL J. CLIFFORD

	 	By:

Name:
	 	/s/ Michael J. Clifford
 

Michael J. Clifford
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 




ZARS,
Inc.-Second Amended and Restated Registration Rights Agreement





11









 






	 	 	 	 	 	 	 
	MICHAEL N. BEHRENS

	 	By:

Name:
	 	/s/ M. Behrens
 

Michael Behrens
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	MONTREUX EQUITY PARTNERS II SBIC, LP

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

Howard Palefsky
	 	 
	 

	 	Title:
	 	Managing Member	 	 
	 
	 	 	 	 	 	 
	MONTREUX EQUITY PARTNERS III SBIC, LP

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

Howard Palefsky
	 	 
	 

	 	Title:
	 	Managing Member	 	 
	 
	 	 	 	 	 	 
	MOUNTAINLAND BUILDERS INC. PROFIT

	 	By:	 	/s/ Stephen M. Schirf	 	 
	SHARING PLAN FBO STEPHEN M. SCHIRF

	 	Name:
	 	Stephen M. Schirf	 	 
	 

	 	Title:	 	President	 	 
	 
	 	 	 	 	 	 
	NANCY A. RIGBY FAMILY LIVING TRUST

	 	By:

Name:
	 	/s/ Nancy Rigby
 

Nancy Rigby
	 	 
	 

	 	Title:
	 	Trustee	 	 
	 
	 	 	 	 	 	 
	NATHAN L. PACE, JENNIFER A. PACE,
JTWROS

	 	By:

Name:
	 	/s/ Nathan L. and Jennifer A. Pace
 

Nathan L. and Jennifer A. Pace
	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	PACIFIC NORTH WEST PAIN MANAGEMENT

	 	By:	 	/s/ Stuart Du Pen	 	 
	ASSOC. INC. PS. PENSION PLAN FBO

	 	Name:
	 	Stuart Du Pen, M.D.	 	 
	STUART DU PEN, M.D.

	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 
	PAMELA CALLAHAN

	 	By:

Name:
	 	/s/ Pamela Callahan
 

Pamela Callahan
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	PAMELA
K. STEWART WEILENMANN AND
MICHAEL L. WEILENMANN

	 	By:	 	/s/ Pamela K. Stewart Weilenmann and Michael L. Weilenmann	 	 
	 
	 	Name:
	 	Pamela K. Stewart Weilenmann and Michael L. Weilenmann	 	 
	 

	 	Title:
	 	 	 	 
	 

	 	 	 	 

	 	 




ZARS,
Inc.-Second Amended and Restated Registration Rights Agreement





12









 






	 	 	 	 	 	 	 
	PATRICK G. LYNN

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	PATSY R. ASHBURN-WOODS TRUST

	 	By:	 	/s/ Patsy
Woods (Patsy R. Ashburn-Woods)
	 	 
	 

	 	Name:
	 	Patsy R. Ashburn-Woods	 	 
	 

	 	Title:
	 	Trustee
	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	PERRY G. FINE

	 	By:

Name:
	 	/s/ Perry G. Fine


Perry G. Fine
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	PETER J. VICENTE AND MARGARET D.
VICENTE

	 	By:

Name:
	 	/s/ Peter J. Vicente and Margaret D. Vicente
 

Peter J. and Margaret A. Vicente
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	PETER L. BAILEY

	 	By:	 	/s/ Peter
Bailey
	 	 
	 

	 	Name:
	 	Peter Bailey
	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	PWZ, LLC	 	Purr Waddoups Brown Gee
&
Loveless, Manager
	 

	 	By:

Name:
	 	/s/ Kenneth Tillon
 

Kenneth Tillon
	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	R. LECOUNT

	 	By:	 	/s/ R. LeCount	 	 
	 

	 	Name:
	 	R.
LeCount 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	RICHARD AND ELLEN STANLEY

	 	By:

Name:
	 	/s/ Richard Stanley and Ellen Stanley
 

Richard and Ellen Stanley
	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






ZARS,
Inc.-Second Amended and Restated Registration Rights Agreement





13









 





	 	 	 	 	 
	RICHARD D. WALTMAN & LOIS R.

	 	By:
	 	/s/ Richard D. Waltman
	 

	 	 	 	 
	WALTMAN, AS JOINT TENANTS WITH RIGHTS OF

	 	Name:
	 	Richard D. Waltman
	SURVIVORSHIP

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	RICHARD SWENSEN

	 	By:	 	/s/ Richard Swensen
	 

	 	 	 	 
	 

	 	Name:	 	Richard Swensen 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	RIGBY FAMILY TRUST

	 	By:
	 	/s/ Sherman L. Rigby
	 

	 	 	 	 
	 

	 	Name:
	 	Sherman L. Rigby
	 

	 	Title:
	 	Trustee
	 
	 	 	 	 
	RIGBY INVESTMENT

	 	By:
	 	/s/ Larry Rigby
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:
	 	Gen Partner
	 
	 	 	 	 
	ROBERT E. WOODS TRUST

	 	By:	 	/s/ Robert E. Woods
	 

	 	 	 	 
	 

	 	Name:	 	Robert E. Woods 
	 

	 	 	 	 
	 

	 	Title:	 	Trustee
	 

	 	 	 	 
	 
	 	 	 	 
	SALMAN MASUD

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	SAMUEL R. MCLAUGHLIN & KIMBERLY A.

	 	By:	 	 
	 

	 	 	 	 
	MCLAUGHLIN

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	SOKOLOFF FAMILY TRUST

	 	By:
	 	/s/ Norm Sokoloff
	 

	 	 	 	 
	 

	 	Name:
	 	Norm Sokoloff, MD
	 

	 	Title:
	 	Trustee
	 
	 	 	 	 
	SONJA CHANDLER

	 	By:
	 	/s/ Sonja Chandler
	 

	 	 	 	 
	 

	 	Name:
	 	Sonja Chandler
	 

	 	Title:
	 	Co-Founder






ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




14









 






	 	 	 	 	 
	STANLEY RESEARCH FOUNDATION

	 	By:
	 	/s/ Theodore H. Stanley
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	KELLY C. HARMSEN

	 	By:
	 	/s/ Kelly C. Harmsen
	 

	 	 	 	 
	 

	 	Name:
	 	Kelly C. Harmsen
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	STEVE REGAN CO. PROFIT SHARING TRUST

	 	By:	 	/s/ Steve Harmsen
	 

	 	 	 	 
	 

	 	Name:	 	Steve Harmsen 
	 

	 	 	 	 
	 

	 	Title:	 	Manager 
	 

	 	 	 	 
	 
	 	 	 	 
	STEVEN G. CHARAPATA

	 	By:	 	/s/ Steven Charapata
	 

	 	 	 	 
	 

	 	Name:	 	Steven Charapata 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	STEVEN G. CHARAPATA RESTATED REVOCABLE

	 	By:	 	/s/ Steven G. Charapata
	 

	 	 	 	 
	TRUST

	 	Name:	 	Steven G. Charapata 
	 

	 	 	 	 
	 

	 	Title:	 	Trustee 
	 

	 	 	 	 
	 
	 	 	 	 
	STEVEN G. GOURLAY

	 	By:
	 	/s/ Steven G. Gourlay
	 

	 	 	 	 
	 

	 	Name:
	 	Steven G. Gourlay
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	SUSAN AND TED STANLEY

	 	By:
	 	/s/ Theodore Stanley and Susan Stanley
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	SUSANNA I.F.D. VAN TETTERODE

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




15









 






	 	 	 	 	 
	TED STANLEY FAMILY LIMITED PARTNERSHIP

	 	By:
	 	/s/ Ted Stanley
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	TETON WOMEN’S HEALTH CENTER FBO MARGARET

	 	By:	 	/s/ Margaret Leverett
	 

	 	 	 	 
	LEVERETT PENSION PLAN

	 	Name:	 	Margaret Leverett 
	 

	 	 	 	 
	 

	 	Title:	 	Stockholder 
	 

	 	 	 	 
	 
	 	 	 	 
	THE SCHAFER-MAIR FAMILY TRUST

	 	By:	 	/s/ Margaret Mair
	 

	 	 	 	 
	 

	 	Name:	 	Margaret Mair 
	 

	 	 	 	 
	 

	 	Title:	 	M.D. 
	 

	 	 	 	 
	 
	 	 	 	 
	THE TAPEMARK COMPANY

	 	By:
	 	/s/ James T. Burmeister
	 

	 	 	 	 
	 

	 	Name:
	 	James T. Burmeister
	 

	 	Title:
	 	Sr. V.P. and CFO
	 
	 	 	 	 
	THEODORE J. STANLEY

	 	By:	 	/s/ Theodore J. Stanley
	 

	 	 	 	 
	 

	 	Name:	 	Theodore J. Stanley 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	TODD LOUIS MAIBACH SEP IRA UTA CHARLES

	 	By:	 	/s/ Todd Maibach
	 

	 	 	 	 
	SCHWAB & CO INC.

	 	Name:	 	Todd Maibach 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	WASATCH PARTNERS II, LLC

	 	By:
	 	/s/ Todd J. Stevens
	 

	 	 	 	 
	 

	 	Name:
	 	Todd J. Stevens
	 

	 	Title:
	 	Managing Member
	 
	 	 	 	 
	WASATCH VENTURE FUND II, LLC

	 	By:
	 	/s/ Todd J. Stevens
	 

	 	 	 	 
	 

	 	Name:
	 	Todd J. Stevens
	 

	 	Title:
	 	Managing Director






ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




16









 






	 	 	 	 	 
	WILLIAM J. JACOBS

	 	By:
	 	/s/ William J. Jacobs
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	WILLTRUST A PARTNERSHIP FBO GEORGE

	 	By:
	 	/s/ Sharla Galbraith
	 

	 	 	 	 
	PETERSEN KEOGH PLAN

	 	Name:
	 	Sharla Galbraith
	 

	 	Title:
	 	Partner
	 
	 	 	 	 
	ZIONS SBIC, LLC

	 	By:
	 	/s/ Todd J. Stevens
	 

	 	 	 	 
	 

	 	Name:
	 	Todd J. Stevens
	 

	 	Title:
	 	Managing Director






ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




17









 






	 	 	 	 	 
	THE BOARD OF TRUSTEES OF THE LELAND

	 	By:
	 	/s/ Tyler Edelstein
	 

	 	 	 	 
	STANFORD JUNIOR UNIVERSITY (SEVF2)

	 	Name:
	 	Tyler Edelstein
	 

	 	Title:
	 	Managing Director, Separate Investments
	 
	 	 	 	 
	VSPRING II, L.P.	 	By: vSpring Management II, LLC
	 
	 

	 	By:
	 	/s/ Dinesh Patel
	 

	 	 	 	 
	 

	 	Name:
	 	Dinesh Patel
	 

	 	Title:
	 	 Managing Director






ZARS, Inc.-Second Amended and Restated Registration Rights Agreement





18









 








Exhibit A




Schedule of Series A Investors




	 	 	 	 	 
	NAME	 	SHARES
	Nancy A. Rigby Family Living Trust
	 	 	20,576	 
	Rigby Investment
	 	 	41,152	 
	James A. Bradway and Alice K. Bradway
	 	 	100,000	 
	Pamela K. Stewart Weilenmann and Michael L. Weilenmann
	 	 	10,288	 
	Ted Stanley Family Limited Partnership
	 	 	102,880	 
	John R. Hampshire
	 	 	5,144	 
	Harold W. Rosemann and Cathy Rosemann
	 	 	5,144	 
	Lanette P. and Larry H. Hansen
	 	 	5,144	 
	Ingrid Seuffert
	 	 	5,144	 
	Joseph W. Pepper
	 	 	5,144	 
	Michael N. Behrens
	 	 	5,144	 
	Dennis J. and Janet M. Clifford
	 	 	5,144	 
	Greg F. Schenk
	 	 	61,728	 
	Merced Investments LLC
	 	 	10,288	 
	Craig R. Crockett, Trustee of the Craig R. Crockett
profit Sharing Plan Dated 12-30-88
	 	 	15,432	 
	Jan A. Crockett and/or Craig R. Crockett
	 	 	5,144	 
	Dennis J. Wyman and Jane R. Wyman
	 	 	51,440	 
	Dennis V. Haslam Revocable Trust Dated 11/4/88
	 	 	5,144	 
	Glen A. Larsen
	 	 	5,144	 
	Dennis P. and Robin L. O’Brien
	 	 	20,576	 
	Anthony A. and Robin L. Betz
	 	 	5,144	 
	R. LeCount
	 	 	5,144	 
	Joseph and Marianne Ojile
	 	 	5,144	 
	Keith H. and Kelly A. O’Brien
	 	 	10,288	 
	Michael E. and Katherine S. Dougherty
	 	 	5,144	 






ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




A-1









 






	 	 	 	 	 
	NAME	 	SHARES
	Maurice Lippmann, M.D., or Marianne H. Lippmann
	 	 	5,144	 
	Steve Regan Co. Profit Sharing Trust
	 	 	5,200	 
	Stephen M. and Kelly C. Harmsen
	 	 	15,500	 
	Steven G. Charapata
	 	 	9,250	 
	Nathan L. Pace, Jennifer A. Pace, JTWROS
	 	 	10,288	 
	Mary Ann O. Stanley, Trustee, or her successors in trust, under
the Mary Ann O. Stanley Living Trust, dated May 5, 1997, and any
amendments thereto
	 	 	51,440	 
	Stanley Research Foundation
	 	 	51,440	 
	Perry G. Fine
	 	 	5,144	 
	Mark J. Adrian, Sr.
	 	 	5,144	 
	Colby H. Mosier
	 	 	5,144	 
	Rigby Family Trust
	 	 	5,144	 
	Carolyn and Michael Ashburn
	 	 	12,346	 
	Patsy R. Ashburn-Woods Trust
	 	 	8,230	 
	The Schafer-Mair Family Trust
	 	 	5,144	 
	David J. Birnbach
	 	 	5,144	 
	Edward Chung
	 	 	5,144	 
	Jack Foley
	 	 	10,288	 
	Pacific North West Pain Management Assoc. Inc. PS. Pension Plan
FBO Stuart Du Pen, M.D.
	 	 	6,200	 
	Michael J. Clifford
	 	 	5,144	 
	James U. Jensen
	 	 	20,000	 
	Allen F. Hill
	 	 	10,288	 
	David M. Berryman and Lisa Y. Berryman
	 	 	5,144	 
	Richard and Ellen Stanley
	 	 	102,880	 
	Ellen and Theodore Stanley
	 	 	102,880	 
	Robert E. Woods Trust
	 	 	2,057	 
	Peter J. Vicente and Margaret D. Vicente
	 	 	30,864	 
	Donna P. Kimball and John F. Kimball, Jr.
	 	 	5,144	 






ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




A-2









 






	 	 	 	 	 
	NAME	 	SHARES
	Linda J. Rice, Trustee of the Linda J. Rice Trust
U/D/T/ dtd. 4/2/01
	 	 	5,144	 
	Susanna I.F.D. Van Tetterode
	 	 	10,288	 
	Wasatch Venture Fund II, LLC
	 	 	102,881	 
	Blaine L. and Marilyn B. Carlton, Joint Owners
	 	 	2,058	 
	David R. Rudd and Leslie C. Rudd, Joint Tenants
	 	 	2,058	 
	Blake Parrish and Jill Parrish, Joint Tenants
	 	 	2,058	 
	Theodore J. Stanley
	 	 	5,144	 
	Richard D. Waltman & Lois R. Waltman, as joint tenants with
rights of survivorship
	 	 	10,288	 
	Barbara Bagnasacco
	 	 	2,058	 
	Charles Schwab & Co., Inc. FBO Richard Dean Waltman, IRA
	 	 	41,153	 
	FBO The Mayfield Family Trust U/A
	 	 	3,900	 
	Dale and Kimberly Mayfield
	 	 	3,900	 
	PWZ, LLC
	 	 	38,284	 
	 	 	 	 	 
	Total
	 	 	1,251,613	 
	 	 	 	 	 







ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




A-3









 








Exhibit B




Schedule of Series B Investors




	 	 	 	 	 
	NAME	 	SHARES
	Cephalon, Inc.
	 	 	170,940	 
	The Tapemark Company
	 	 	25,650	 
	Jim Bradway M.D., P.C. Trust Retirement Plan
	 	 	4,274	 
	Steven G. Charapata
	 	 	4,616	 
	Linda J. Rice, Trustee, Linda J. Rice Trust
	 	 	40,000	 
	Pamela Callahan
	 	 	4,274	 
	Christopher M. Viscomi
	 	 	4274	 
	Peter L. Bailey
	 	 	4274	 
	Ingrid Seuffert
	 	 	4,274	 
	Lewis S. Coleman, M.D.
	 	 	4,274	 
	Craig R. Crockett, Trustee of the Craig R. Crockett Profit Sharing
Plan Dated 12-30-88
	 	 	8,548	 
	Henry Goitz, MD
	 	 	4,274	 
	David B. Aland
	 	 	4,274	 
	FBO The Mayfield Family Trust U/A
	 	 	5,112	 
	Dale and Kimberly Mayfield
	 	 	5,112	 
	B. Kerry Lowder and Terri Lowder
	 	 	17,436	 
	Richard Swensen
	 	 	4,274	 
	Kirton & McConkie
	 	 	4,274	 
	ALMA Investments, L.L.C.
	 	 	4,274	 
	Wasatch Partners II, LLC
	 	 	1,710	 
	Zions SBIC, LLC
	 	 	341,880	 
	Samuel R. McLaughlin & Kimberly A. McLaughlin
	 	 	4,274	 
	Bruce Ward
	 	 	4,274	 
	William J. Jacobs
	 	 	4,274	 
	Charles Schwab & Co. Inc. FBO: Greg F. Schenk IRA
	 	 	21,007	 






ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




B-1









 






	 	 	 	 	 
	NAME	 	SHARES
	Marianne Ojile
	 	 	12,000	 
	Dennis J. & Janet M. Clifford
	 	 	4,856	 
	Anthony G. Messina
	 	 	51,282	 
	Jennifer A. McFarlane Trust, 1998
	 	 	4,274	 
	Daniel and Margaret. Seligson Trust UAD 3/27/97
	 	 	4,274	 
	Charles Schwab & Co. Inc. FBO John B. Iverson IRA
	 	 	4,274	 
	Daniel Ruben
	 	 	4,274	 
	Anthony A. and Robin L. Betz
	 	 	3,077	 
	Harold W. and Cathy Rosemann
	 	 	4,274	 
	Eugene D. Memoly
	 	 	4,274	 
	Sonja Chandler
	 	 	4,274	 
	Patrick G. Lynn
	 	 	2,200	 
	Keith H. and Kelly A. O’Brien
	 	 	4,274	 
	Dennis P. O’Brien and Robin L. O’Brien
	 	 	9,000	 
	Matthew Frank
	 	 	3,420	 
	Steven G. Gourlay
	 	 	4,274	 
	Sokoloff Family Trust
	 	 	5,500	 
	Burwen Family Trust U/D/T Dated 9/30/88
	 	 	8,547	 
	Theodore J. Stanley
	 	 	4,274	 
	IRA FBO George S. Taylor, Pershing LLC as Custodian
	 	 	7,500	 
	Jack Foley
	 	 	3,000	 
	Gary Reich IRA UTA Charles Schwab & Co Inc.
	 	 	2,137	 
	Todd Louis Maibach SEP IRA UTA Charles Schwab & Co Inc.
	 	 	2,137	 
	 	 	 	 	 
	Total
	 	 	859,243	 
	 	 	 	 	 






ZARS, Inc.-Second Amended and Restated Registration Rights Agreement





B-2









 








Exhibit C




Schedule of Series C Investors




	 	 	 	 	 
	 	 	Number of Shares to be
	Name of Investor	 	Issued at Closing
	MICHAEL & KATHERINE DOUGHERTY
	 	 	4,079	 
	MAYFIELD FAMILY TRUST
	 	 	30,000	 
	JAMES A. BRADWAY
	 	 	24,474	 
	STEVEN G. CHARAPATA RESTATED REVOCABLE TRUST
	 	 	4,079	 
	DENNIS J. AND JANET M. CLIFFORD
	 	 	4,079	 
	DENNIS J. AND JANE R. WYMAN
	 	 	16,313	 
	CRAIG R. CROCKETT, TRUSTEE OF THE CRAIG R. CROCKETT
PROFIT SHARING PLAN DATED 
12-30-88
	 	 	4,079	 
	JOHN R. HAMPSHIRE
	 	 	10,000	 
	JOSEPH AND MARIANNE OJILE
	 	 	5,000	 
	DALE AND KIM MAYFIELD
	 	 	10,000	 
	JUDITH P. MARTIN, TRUSTEE OF JUDITH P. MARTIN REV
TRUST DTD 10/18/93
	 	 	4,079	 
	MOUNTAINLAND BUILDERS INC. PROFIT SHARING PLAN FBO
STEPHEN M. SCHIRF
	 	 	4,079	 
	DENNIS V. HASLAM, TRUSTEE, DENNIS V. HASLAM
REVOCABLE TRUST
	 	 	8,158	 
	JAMES A. BRADWAY, TRUSTEE OF JIM BRADWAY MD, PC
TRUST RETIREMENT PLAN
	 	 	4,890	 
	MERCED INVESTMENTS LLC
	 	 	8,157	 
	SALMAN MASUD
	 	 	20,000	 
	DRAPER FISHER JURVETSON FUND VII, L.P.
	 	 	1,237,195	 
	DRAPER FISHER JURVETSON PARTNERS VII, LLC
	 	 	18,042	 
	DRAPER ASSOCIATES, L.P.
	 	 	33,507	 
	DRAPER FISHER JURVETSON EPLANET VENTURES L.P.
	 	 	785,482	 






ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




C-1









 






	 	 	 	 	 
	 	 	Number of Shares to be
	Name of Investor	 	Issued at Closing
	DRAPER FISHER JURVETSON EPLANET VENTURES GMBH & CO.
KG
	 	 	13,866	 
	DRAPER FISHER JURVETSON EPLANET PARTNERS FUND, LLC
	 	 	16,313	 
	LINDA J. RICE, TRUSTEE LINDA J. RICE TRUST
	 	 	8,158	 
	STEVEN G. GOURLAY
	 	 	4,079	 
	A.J.M. BEEKMAN
	 	 	16,000	 
	DR. P.L. HOUWELING
	 	 	32,000	 
	STANLEY RESEARCH FOUNDATION
	 	 	48,939	 
	SUSAN AND TED STANLEY
	 	 	163,132	 
	ANTHONY G. MESSINA
	 	 	32,626	 
	JACK FOLEY
	 	 	7,341	 
	ELLEN STANLEY AND RICHARD STANLEY AS J.T.
	 	 	16,313	 
	IRA FBO GEORGE S. TAYLOR, PERSHING LLC AS CUSTODIAN
	 	 	7,500	 
	TETON WOMEN’S HEALTH CENTER FBO
MARGARET LEVERETT PENSION PLAN
	 	 	4,079	 
	JAMES MICHAEL OLDROYD TRUSTEE OF THE
TETON WOMEN’S HEALTH CENTER PA MONEY PURCHASE PLAN
& TRUST
	 	 	12,234	 
	MICHAEL J. CLIFFORD
	 	 	4,079	 
	WILLTRUST A PARTNERSHIP FBO GEORGE PETERSEN KEOGH
PLAN
	 	 	7,341	 
	GLEN A. LARSEN TERESA L. LARSEN
	 	 	16,314	 
	MARY O. STANLEY LIVING TRUST
	 	 	81,567	 
	GREG F. SCHENK
	 	 	4,100	 
	DAVID J. BIRNBACH
	 	 	20,000	 
	INGRID SEUFFERT
	 	 	16,313	 
	COLBY H. MOSIER
	 	 	5,000	 
	CDIB BIOSCIENCE VENTURES I, INC.
	 	 	326,265	 
	KELLY C. HARMSEN
	 	 	10,000	 






ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




C-2









 






	 	 	 	 	 
	 	 	Number of Shares to be
	Name of Investor	 	Issued at Closing
	WASATCH PARTNERS II, LLC
	 	 	3,262	 
	THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR
UNIVERSITY (SEVF2)
	 	 	16,313	 
	VSPRING II, L.P.
	 	 	489,397	 
	 	 	 	 	 
	TOTAL
	 	 	3,618,223	 
	 	 	 	 	 







ZARS, Inc.-Second Amended and Restated Registration Rights Agreement




C-3