ACT" MEANS THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
(H)
THE TERM "EXISTING REGISTRATION RIGHTS AGREEMENT" MEANS THE SECOND AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT, DATED AS OF FEBRUARY 27, 2004, BY AND
AMONG THE PURCHASERS LISTED THEREIN, THE FOUNDERS LISTED THEREIN AND THE
COMPANY, AS AMENDED BY AMENDMENT NO. 1 TO SUCH AGREEMENT DATED JUNE 10, 2004.
(I)
THE TERM "HOLDER" MEANS THE INVESTOR FOR SO LONG AS IT OWNS REGISTRABLE
SHARES AND ANY PERSON TO WHOM THE INVESTOR TRANSFERS REGISTRABLE SHARES IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF REGISTRABLE
SHARES ARE HELD BY A NOMINEE FOR THE BENEFICIAL OWNER THEREOF, THE BENEFICIAL
OWNER THEREOF MAY, AT ITS OPTION, BE TREATED AS THE HOLDER OF SUCH REGISTRABLE
SHARES FOR PURPOSES OF ANY REQUEST OR OTHER ACTION BY ANY HOLDER OR HOLDERS OF
REGISTRABLE SHARES PURSUANT TO THIS AGREEMENT (OR ANY DETERMINATION OF ANY
NUMBER OR PERCENTAGE OF SHARES CONSTITUTING REGISTRABLE SHARES HELD BY ANY
HOLDER OR HOLDERS OF REGISTRABLE SHARES CONTEMPLATED BY THIS AGREEMENT),
PROVIDED THAT THE COMPANY SHALL HAVE RECEIVED ASSURANCES REASONABLY SATISFACTORY
TO IT OF SUCH BENEFICIAL OWNERSHIP.
(J)
THE TERM "NOTICES" HAS THE MEANING SET FORTH IN SECTION 21.
(K)
THE TERM "INVESTOR" SHALL HAVE THE MEANING SET FORTH IN THE PREAMBLE TO
THIS AGREEMENT.
(L)
THE TERM "PERSON" MEANS ANY INDIVIDUAL, CORPORATION, ASSOCIATION,
PARTNERSHIP, JOINT VENTURE, ENTITY, TRUST, ESTATE, LIMITED LIABILITY COMPANY,
LIMITED PARTNERSHIP, JOINT STOCK COMPANY, UNINCORPORATED ORGANIZATION OR
GOVERNMENT OR ANY AGENCY OR POLITICAL SUBDIVISION.
(M)
THE TERM "PURCHASE AGREEMENT" SHALL HAVE THE MEANING SET FORTH IN THE
RECITALS TO THIS AGREEMENT.
(N)
THE TERMS "REGISTER," "REGISTERED," AND "REGISTRATION" REFER TO A
REGISTRATION EFFECTED BY PREPARING AND FILING A REGISTRATION STATEMENT IN
COMPLIANCE WITH THE SECURITIES ACT AND THE DECLARATION OR ORDERING OF
EFFECTIVENESS OF SUCH REGISTRATION STATEMENT.
(O)
THE TERM "REGISTRABLE SHARES" MEANS (I) THE COMMON STOCK PURCHASED BY THE
INVESTOR PURSUANT TO THE PURCHASE AGREEMENT AND (II) ANY COMMON STOCK OF THE
COMPANY ISSUED AS A DIVIDEND OR OTHER DISTRIBUTION WITH RESPECT TO, OR IN
EXCHANGE OR IN REPLACEMENT OF, SUCH COMMON STOCK AFTER THE DATE HEREOF;
PROVIDED, HOWEVER, THAT SHARES OF COMMON STOCK WHICH ARE REGISTRABLE SHARES
SHALL CEASE TO BE REGISTRABLE SHARES (A) UPON ANY SALE PURSUANT TO A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (B) UPON ANY SALE OR TRANSFER
IN ANY MANNER TO A PERSON OR ENTITY WHICH IS NOT ENTITLED, PURSUANT TO
SECTION 11, TO THE RIGHTS UNDER THIS AGREEMENT.
(P)
THE TERM "RULE 144" MEANS RULE 144 PROMULGATED UNDER THE SECURITIES ACT.
(Q)
THE TERM "SEC" MEANS THE SECURITIES AND EXCHANGE COMMISSION.
(R)
THE TERM "SECURITIES ACT" MEANS THE SECURITIES ACT OF 1933, AS AMENDED.
2
(S)
THE TERM "SIMILARLY SITUATED PERSON" MEANS ANY THIRD PARTY THAT (I) HAS
ENTERED INTO A COLLABORATION AGREEMENT WITH THE COMPANY OR ONE OF ITS
SUBSIDIARIES THAT IS REQUIRED TO BE FILED BY THE COMPANY IN ACCORDANCE WITH ITEM
601 OF REGULATION S-K OF THE SECURITIES ACT AND (II) IN CONNECTION WITH