THIS SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the

"Agreement") is entered into as of the 29th day of October 1999, by and among

VERSICOR INC., a Delaware corporation (the "Company"), the holders of the

Company's Series A Preferred Stock ("Series A Stock"), the holders of the

Company's Series B Preferred Stock ("Series B Stock"), the holders of the

Company's Series C Preferred Stock ("Series C Stock"), the holders of the

Company's Series D-1 Preferred Stock ("Series D-1 Stock"), the holders of the

Company's Series E-1 Preferred Stock ("Series E-1 Stock") and the purchasers of

the Company's Series F Preferred Stock ("Series F Stock") set forth on EXHIBIT A

attached hereto (the "Purchasers"). The holders of the Series A Stock, Series B

Stock, Series C Stock and purchasers of Series F Stock shall be referred to

hereinafter as the "Financial Investors" and each individually as a "Financial

Investor." The holders of the Series D-1 Stock and the Series E-1 Stock shall be

referred to hereinafter as the "Strategic Investors" and each individually as a

"Strategic Investor." The Financial Investors and Strategic Investors

collectively shall be referred to hereinafter as the "Investors" and each

individually as an "Investor."



                                    RECITALS



         WHEREAS, the Company entered into the First Amended and Restated

Investors' Rights Agreement, dated March 31, 1997, with the holders of the

Company's Series A Stock, Series B Stock, Series C Stock, Series D-1 Stock and

Series E-1 Stock (the "First Amended and Restated Investors' Rights Agreement"),

whereby the Company granted to such holders certain registration rights,

information rights and other rights



         WHEREAS, the Company proposes to sell and issue up to six million eight

hundred ten thousand seven hundred and ten (6,810,710) shares of its Series F

Stock to the Purchasers pursuant to the Series F Stock Purchase Agreement (the

"Purchase Agreement") of even date herewith;



         WHEREAS, as a condition to the purchase of the Series F Stock, the

Purchasers have requested that the Company extend to them certain registration

rights, information rights and other rights; and



         WHEREAS, the Company and the Investors desire to amend and restate the

First Amended and Restated Investors' Rights Agreement to provide for certain

registration rights, information rights and other rights to the Purchasers, as

set forth below.



         NOW, THEREFORE, in consideration of the mutual promises,

representations, warranties, covenants and conditions set forth in this

Agreement, the parties mutually agree as follows:



1.       GENERAL



         1.1 DEFINITIONS. As used in this Agreement the following terms shall

have the following respective meanings:



         "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.



         "FINANCIAL HOLDER" means any Financial Investor (or permitted successor

or assignee) owning of record Registrable Securities that have not been sold to

the public or any assignee of record of such Registrable Securities in

accordance with Section 3.11 hereof.



{PAGE}



         "HOLDER" means either a Financial Holder or a Strategic Holder.



         "INITIAL OFFERING" means the Company's first firm commitment

underwritten public offering of its Common Stock registered under the Securities

Act (as defined below).



         "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 or document.



         "REGISTRABLE SECURITIES" means (i) Common Stock of the Company issued

or issuable upon conversion of the Shares (as defined below); (ii) any Common

Stock of the Company issued as (or issuable upon the conversion or exercise of

any warrant, right or other security which is issued as) a dividend or other

distribution with respect to, or in exchange for or in replacement of, such

above-described securities and (iii) any other Common Stock now or hereafter

owned or held by any Investor. Notwithstanding the foregoing, Registrable

Securities shall not include any securities sold by a person to the public

either pursuant to a registration statement or Rule 144 or sold in a private

transaction in which the transferror's rights under Section 2 of this Agreement

are not assigned.



         "REGISTRABLE SECURITIES THEN OUTSTANDING" shall be the number of shares

determined by calculating the total number of shares of the Company's Common

Stock that are Registrable Securities and either (1) are then issued and

outstanding or (2) are issuable pursuant to then exercisable or convertible

securities.



         "REGISTRATION EXPENSES" shall mean all expenses incurred by the Company

in complying with Section 3.1, Section 3.2, Section 3.3, Section 3.4 and Section

3.5 hereof, including, without limitation, all registration and filing fees,

printing expenses, fees and disbursements of counsel for the Company, reasonable

fees and disbursements not to exceed for each registration effected pursuant to

this Agreement twenty thousand dollars ($20,000) of a single special counsel for

the Holders, blue sky fees and expenses and the expense of any special audits

incident to or required by any such registration (but excluding the compensation

of regular employees of the Company which shall be paid in any event by the

Company).



         "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.



         "SELLING EXPENSES" shall mean all underwriting discounts and selling

commissions applicable to the sale.



         "SHARES" shall mean the Company's Series A Stock, Series B Stock,

Series C Stock, including shares of Series C Stock issuable upon conversion of

warrants issued by the Company, Series D-1 Stock, Series D-2 Stock, Series E-1

Stock, Series E-2 Stock and Series F Stock.



         "STRATEGIC HOLDER" means any Strategic Investor (or permitted successor

or assignee) owning of record Registrable Securities that have not been sold to

the public or any assignee of record of such Registrable Securities in

accordance with Section 3.11 hereof.



         "FORM S-3" means such form under the Securities Act as in effect on the

date hereof or any successor registration form under the Securities Act

subsequently adopted by the SEC which permits





{PAGE}



inclusion or incorporation of substantial information by reference to other

documents filed by the Company with the SEC.



         "SEC" or "COMMISSION" means the Securities and Exchange Commission.



         1.2 The First Amended and Restated Investors' Rights Agreement shall be

terminated and replaced in its entirely by this Agreement.



2.       RESTRICTION ON TRANSFER.



         2.1 Each Holder agrees not to make any disposition of all or any

portion of the Shares or Registrable Securities unless and until:



                  (a) 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



                  (b) (i) The transferee has agreed in writing to be bound by

this Section 2, (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 (iii) 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 of such shares under the Securities

Act. It is agreed that the Company will not require opinions of counsel for

transactions made pursuant to Rule 144 except in unusual circumstances.



                  (c) Notwithstanding the provisions of paragraphs (a) and (b)

above, no such registration statement or opinion of counsel shall be necessary

for a transfer by a Holder which is (i) a partnership to its partners or former

partners in accordance with partnership interests, (ii) a corporation to its

shareholders in accordance with their interest in the corporation, (iii) a

limited liability company to its members or former members in accordance with

their interest in the limited liability company, or (iv) to the Holder's family

member or trust for the benefit of an individual Holder, provided the transferee

will be subject to the terms of this Section 2 to the same extent as if he were

an original Holder hereunder.



         2.2 Each certificate representing Shares or Registrable Securities

shall (unless otherwise permitted by the provisions of the Agreement) be stamped

or otherwise imprinted with a legend substantially similar to the following (in

Home        Intelligence        Services        Subscriptions        News        About Us

Contact Us       Terms of Use       Resend Documents       Shopping Cart

Copyright © 2008 The Consus Group LLC