0001144204-11-068406.txt : 20111206 0001144204-11-068406.hdr.sgml : 20111206 20111205181321 ACCESSION NUMBER: 0001144204-11-068406 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20111206 DATE AS OF CHANGE: 20111205 GROUP MEMBERS: DR. JAMES I. HEALY GROUP MEMBERS: DR. MICHAEL F. POWELL GROUP MEMBERS: ERIC P. BUATOIS GROUP MEMBERS: SOFINNOVA MANAGEMENT VII, L.L.C. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Trius Therapeutics Inc CENTRAL INDEX KEY: 0001356857 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 201320630 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-85614 FILM NUMBER: 111244068 BUSINESS ADDRESS: STREET 1: 6310 NANCY RIDGE DR SUITE 105 CITY: SAN DIEGO STATE: CA ZIP: 92121 BUSINESS PHONE: 858-452-0370 MAIL ADDRESS: STREET 1: 6310 NANCY RIDGE DR SUITE 105 CITY: SAN DIEGO STATE: CA ZIP: 92121 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SOFINNOVA VENTURE PARTNERS VII L P CENTRAL INDEX KEY: 0001380734 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 140 GEARY ST 10TH FL CITY: SAN FRANCISCO STATE: CA ZIP: 94108 BUSINESS PHONE: 415-228-3390 MAIL ADDRESS: STREET 1: 140 GEARY ST 10TH FL CITY: SAN FRANCISCO STATE: CA ZIP: 94108 SC 13D/A 1 v242167_sc13d-a.htm Unassociated Document
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

SCHEDULE 13D
(RULE 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a)
AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)

(AMENDMENT NO.  1)

Trius Therapeutics, Inc.
(Name of Issuer)

Common Stock
(Title of Class of Securities)

89685K100
(CUSIP Number)

Nathalie Auber
Sofinnova Ventures, Inc.
2800 Sand Hill Road, Suite 150
Menlo Park, CA  94023
(650) 681-8136
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

COPY TO:
Linda Daley, Esq.
c/o Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP
1200 Seaport Blvd., Redwood City, CA  94063
(650) 463-5243

November 29, 2011
 (Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box o
 
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent.
 
*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
 
This information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
Page 1 of 9 Pages
 
 
 
 
 
 
CUSIP NO. 89685K100
13 D
Page 2 of 9 Pages
 
1
NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Sofinnova Venture Partners VII, L.P. (“SVP VII”)
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)           o           (b)           x 
3
SEC USE ONLY
4
SOURCE OF FUNDS
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) o
6
CITIZENSHIP OR PLACE OF ORGANIZATION     Delaware
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
3,615,572 shares, except that Sofinnova Management VII, L.L.C. (“SM VII”), the general partner of SVP VII, may be deemed to have sole voting power, and Dr. Michael F. Powell (“Powell”), Dr. James I. Healy (“Healy”) and Eric P. Buatois (“Buatois”), the managing members of SM VII, may be deemed to have shared power to vote these shares.
8
SHARED VOTING POWER
See response to row 7.
9
SOLE DISPOSITIVE POWER
3,615,572 shares, except that SM VII, the general partner of SVP VII, may be deemed to have sole dispositive power and Powell, Healy and Buatois, the managing members of SM VII, may be deemed to have shared power to dispose of these shares.
10
SHARED DISPOSITIVE POWER
See response to row 9.
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,615,572 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
o 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
12.7% 
14
TYPE OF REPORTING PERSON
PN 
 
 
 
 
 
 
CUSIP NO. 89685K100
13 D
Page 3 of 9 Pages
 
1
NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Sofinnova Management VII, L.L.C. (“SM VII”)
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)           o           (b)           x 
3
SEC USE ONLY
4
SOURCE OF FUNDS
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) o
6
CITIZENSHIP OR PLACE OF ORGANIZATION         Delaware
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
3,615,572 shares, all of which are owned directly by SVP VII.  SM VII, the general partner of SVP VII, may be deemed to have sole voting power, and Powell, Healy and Buatois, the managing members of SM VII, may be deemed to have shared power to vote these shares.
8
SHARED VOTING POWER
See response to row 7.
9
SOLE DISPOSITIVE POWER
3,615,572 shares, all of which are owned directly by SVP VII.  SM VII, the general partner of SVP VII, may be deemed to have sole dispositive power, and Powell, Healy and Buatois, the managing members of SM VII, may be deemed to have shared dispositive power over these shares.
10
SHARED DISPOSITIVE POWER
See response to row 9.
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,615,572 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES                                                                                                                   
o 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
12.7% 
14
TYPE OF REPORTING PERSON
OO 
 
 
 
 
 
CUSIP NO. 89685K100
13 D
Page 4 of 9 Pages
 
1
NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Dr. Michael F. Powell (“Powell”)
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)           o           (b)           x 
3
SEC USE ONLY
4
SOURCE OF FUNDS
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)     o
6
CITIZENSHIP OR PLACE OF ORGANIZATION                                                                                     U.S. Citizen
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
33,302 shares issuable to Powell pursuant to outstanding options exercisable within 60 days of November 30, 2011, 5,000 unvested shares of which are subject to a right of repurchase as of January 31, 2012.
8
SHARED VOTING POWER
3,615,572 shares, all of which are directly owned by SVP VII. SM VII, the general partner of SVP VII, may be deemed to have sole voting power, and Powell, a managing member of SM VII, may be deemed to have shared voting power to vote these shares.
9
SOLE DISPOSITIVE POWER
33,302 shares issuable to Powell pursuant to outstanding options exercisable within 60 days of November 30, 2011, 5,000 unvested shares of which are subject to a right of repurchase as of January 31, 2012.
10
SHARED DISPOSITIVE POWER
3,615,572 shares, all of which are directly owned by SVP VII. SM VII, the general partner of SVP VII, may be deemed to have sole dispositive power, and Powell, a managing member of SM VII, may be deemed to have shared power to dispose of these shares.
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,648,874
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
o 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
12.8%
14
TYPE OF REPORTING PERSON
IN 
 
 
 
 
 
 
CUSIP NO. 89685K100
13 D
Page 5 of 9 Pages
 
1
NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Dr. James I. Healy (“Healy”)
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)           o           (b)           x 
3
SEC USE ONLY
4
SOURCE OF FUNDS
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)     o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
-0-
8
SHARED VOTING POWER
3,615,572 shares, all of which are directly owned by SVP VII. SM VII, the general partner of SVP VII, may be deemed to have sole voting power, and Healy, a managing member of SM VII, may be deemed to have shared voting power to vote these shares.
9
SOLE DISPOSITIVE POWER
-0-
10
SHARED DISPOSITIVE POWER
3,615,572 shares, all of which are directly owned by SVP VII. SM VII, the general partner of SVP VII, may be deemed to have sole dispositive power, and Powell, a managing member of SM VII, may be deemed to have shared power to dispose of these shares.
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,615,572
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
o 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
12.7% 
14
TYPE OF REPORTING PERSON
IN 
 
 
 
 
 
CUSIP NO. 89685K100
13 D
Page 6 of 9 Pages

1
NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
Eric P. Buatois (“Buatois”)
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)           o           (b)           x 
3
SEC USE ONLY
4
SOURCE OF FUNDS
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)     o
6
CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Permanent Resident
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
-0-
8
SHARED VOTING POWER
3,615,572 shares, all of which are directly owned by SVP VII. SM VII, the general partner of SVP VII, may be deemed to have sole voting power, and Buatois, a managing member of SM VII, may be deemed to have shared voting power to vote these shares.
9
SOLE DISPOSITIVE POWER
-0-
10
SHARED DISPOSITIVE POWER
3,615,572 shares, all of which are directly owned by SVP VII. SM VII, the general partner of SVP VII, may be deemed to have sole dispositive power, and Buatois, a managing member of SM VII, may be deemed to have shared power to dispose of these shares.
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,615,572 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
o 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
12.7% 
14
TYPE OF REPORTING PERSON
IN 
 
 
 
 
 
Statement on Schedule 13D
 
This Amendment No. 1 (“Amendment No. 1”) amends and supplements the statement on Schedule 13D initially filed on August 16, 2010 (as amended, the “Schedule 13D”) on behalf of Sofinnova Venture Partners VII, L.P., Sofinnova Management VII, L.L.C., Dr. Michael F. Powell, Dr. James I. Healy, and Eric P. Buatois (collectively, the “Reporting Persons”) relating to the beneficial ownership of common stock, par value $0.0001 per share (the “Common Stock”) of Trius Therapeutics, Inc., a Delaware corporation (the “Issuer”).  This Amendment No. 1 is being filed to reflect the entry into a plan to distribute shares of Common Stock compliant with Rule 10b5-1 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).  Except as set forth below, this Amendment No. 1 does not supplement, restate or amend any of the other information disclosed in the Schedule 13D. Capitalized terms not defined in this Amendment No. 1 have the meanings ascribed to them in the Schedule 13D.
 
                   
ITEM 4.   
Purpose of Transaction.
 
Sofinnova Venture Partners VII, L.P. entered into a Distribution Plan that complies with Rule 10b5-1 promulgated under the Exchange Act with Merrill Lynch, Pierce, Fenner & Smith Incorporated (the “Rule 10b5-1 Plan”).  Pursuant to the Rule 10b5-1 Plan shares of Common Stock may be distributed by Sofinnova Venture Partners VII, L.P. to its limited partners over a set period of time provided that the terms and conditions of the plan are met.
 
ITEM 5.
Interest in Securities of the Issuer.
                      
See Rows 11 and 13 for each Reporting Person. The percentage listed in Row 13 for each Reporting Person was calculated based upon 28,555,800 shares of Common Stock outstanding as of November 4, 2011, as reported by the Issuer.
 
ITEM 6.
Contracts, Arrangements, Understandings or Relationships with respect to the Securities of the Issuer.
 
See Item 4 regarding Rule 1065-1 Plan.
 
ITEM 7.
Materials to be Filed as Exhibits.
 
Exhibit C:  Rule 10b5-1 Distribution Plan between Sofinnova Venture Partners VII, L.P. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, dated November 29, 2011.
 
 
 
 
 
SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date:  December 5 2011
 
 
SOFINNOVA VENTURE PARTNERS VII, L.P., a Delaware Limited Partnership
       
 
By:
SOFINNOVA MANAGEMENT VII, L.L.C., a Delaware Limited Liability Company
  Its:  General Partner  
       
  By: /s/ Nathalie Auber  
    Nathalie Auber
Attorney-in-Fact
  
 
                                            
 
 
SOFINNOVA MANAGEMENT VII, a Delaware Limited Liability Company
       
 
By:
/s/ Nathalie Auber    
   
Nathalie Auber
Attorney-in-Fact
  
 
 
 
 
DR. JAMES I. HEALY
DR. MICHAEL F. POWELL
ERIC P. BUATOIS
       
 
By:
/s/ Nathalie Auber 
   
Nathalie Auber
Attorney-in-Fact
  
       
       
 
*Signed pursuant to a Power of Attorney already on file with the appropriate agencies.
 
 
 
 
 
EXHIBIT INDEX
 
Exhibit
  
Description
C
  
Rule 10b5-1 Distribution Plan between Sofinnova Venture Partners VII, L.P. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, dated November 29, 2011.
 
 
 
 
 

 
EXHIBIT C
 
Rule 10b5-1 Plan
 
 
CONFIDENTIAL TREATMENT

Issuer Name: 
Trius Therapeutics, Inc.
Client Name: 
Sofinnova Venture Partners VII, L.P.
Symbol: 
TSRX
Start Date:
[***]1
End Date:
[***]2
 
 
Rule 10b5-1 Distribution Plan and Client Representations
 
The undersigned, Sofinnova Venture Partners VII, L.P. (the “Fund”), as of November 29, 2011 (the “Adoption Date”), establishes this Distribution Plan (“Plan”) in order to distribute up to a maximum aggregate of [***]1 shares of the common stock (“Shares”) of Trius Therapeutics, Inc. (“Issuer”), pursuant to the requirements of Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (“Exchange Act”).  The Fund requests that Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch”) execute the Plan as follows:
 
1.           Instructions for Distributions.
 
Starting [***]2 (which is at least 14 days after the Adoption Date) and ending on [***]3, you are authorized and directed to distribute Shares to the partners of the Fund (the “Partners”) as indicated by the checked box below (for purposes of this Plan, the date on which any such distribution shall be made in accordance with this Section 1 shall be referred to as an “Effective Date”):
 
 
o
Distribute _________ Shares ________________ on the principal exchange or market on which the Shares are traded (“Exchange”) (the Effective Date of such first distribution being the “Initial Distribution Date”).
 
 
x
Distribute Shares pursuant to the following table:
 
1 CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.  CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 
2 CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.  CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 
3 CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.  CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 
4 CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.  CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 
5 CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.  CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 
 
 
 
 
CONFIDENTIAL TREATMENT

Issuer Name: 
Trius Therapeutics, Inc.
Client Name: 
Sofinnova Venture Partners VII, L.P.
Symbol: 
TSRX
Start Date:
[***]1
End Date:
[***]2
 
 
Start Date
End Date
Share Quantity
Closing Price Hurdle
[***]4
[***]
[***]
$[***] per share
[***]
[***]
[***]
$[***] per share
       
       
 
Total
[***]5
  

 
o
Implement Carryforward provision.  (Optional)
 
Under this provision, any Shares not distributed as specified above because the parameters (e.g., specified closing price) under the Plan were not met, will carry forward to future ________ [time periods] until distributed.
 
2.           Stock Splits/Reincorporation/Reorganizations
 
2.1           In the event of a stock split or reverse stock split, the quantity and price at which the Shares are to be distributed will be adjusted proportionately.
 
2.2           In the event of a stock dividend or spin-off, the quantity and price at which the Shares are to be distributed will be adjusted in the same manner and in accordance with public disclosures made by the Issuer with respect to such stock dividend or spin-off.  The Fund may provide Merrill Lynch written notice as to the occurrence of any such dividend or spin-off, as well as specific instructions as to the adjustment to the quantity and price at which Shares are to be distributed (which adjustment shall be made solely in accordance with the preceding sentence of this Section 2.2), whereupon such adjustment shall become effective.
 
6 CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.  CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 
7 Distribution shall be triggered on any trading day during the respective periods above when the closing price of the Shares is equal to or greater than the closing price hurdle set forth for such period above.  At no point will the total number of Shares distributed exceed [***]8 shares.
 
8 CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.  CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
 
 
2
 
 
CONFIDENTIAL TREATMENT

Issuer Name: 
Trius Therapeutics, Inc.
Client Name: 
Sofinnova Venture Partners VII, L.P.
Symbol: 
TSRX
Start Date:
[***]1
End Date:
[***]2
 
 
2.3           In the event of a reincorporation or other corporate reorganization resulting in an automatic share-for-share exchange of new shares of the Issuer for the Shares subject to the Plan, then the new shares will automatically replace the Shares originally specified in the Plan.
 
3.           Notices; Mechanics of Distribution
 
3.1           In the event that Men-ill Lynch shall determine that a distribution is required to be made pursuant to Section 1 of this Plan, it shall notify Michael F. Powell, Nathalie Auber and Hooman Shahlavi of the Fund, promptly, but in any event, by the close of business on the Effective Date of such distribution.  Nathalie Auber shall then provide Merrill Lynch with a Direction in the form of Annex A hereto, as of the Effective Date, all determined in accordance with the applicable provisions of the Limited Partnership Agreement of the Fund, dated October 12, 2006 (as amended, the “Partnership Agreement”), and shall promptly distribute such Direction to the limited partners of the Fund.  Merrill Lynch’s Venture Services Group (“VSG”) shall then promptly service such distribution to the Partners.
 
3.2           By its execution hereof, the Fund authorizes Merrill Lynch, to contact the Issuer and the Issuer’s counsel as necessary to obtain all required legal opinions to facilitate and complete each distribution pursuant hereto.
 
3.3           The Fund understands that, on receipt by Merrill Lynch of a Direction and after confirming the identity of each Partner to its satisfaction and obtaining all required agreements and approvals from the Partners as required under the USA PATRIOT Act and other regulatory requirements to which Merrill Lynch is subject, Merrill Lynch will (a) establish a separate account (each, a “Distribution Account”) for the sole purpose of facilitating the distribution for each Partner that does not already have a Distribution Account with Merrill Lynch and (b) on the establishment of such Distribution Accounts, distribute the number of Shares, as set forth on the applicable Direction to each such Partner to their applicable Distribution Account.
 
3.4           The Fund acknowledges and agrees that, in connection with a Distribution Account, if:  (a) Merrill Lynch does not receive or is unable to verify any account opening information to its satisfaction with respect to any Partner or account; (b) Merrill Lynch does not receive satisfactory tax identification with respect to any Partner or account; (c) Merrill Lynch determines that any information provided to it by or with respect to any Partner is inaccurate; (d) Merrill Lynch determines that any Partner is or may be a Prohibited Investor (as hereinafter defined); and/or (e) Merrill Lynch determines, consistent with its obligations under the USA PATRIOT Act and the general “know your customer” and customer information obligations under the federal securities laws and self-regulatory organization regulations, a Partner’s identity requires further due diligence and verification, then in each case, Merrill Lynch may, without liability of any kind, (i) not establish any Distribution Account with respect to such Partner; (ii) delay the establishment of a Distribution Account with respect to such Partner; (iii) close Distribution Accounts previously established with respect to such Partner; (iv) refuse to engage in any transactions with respect to such Partner; and/or (v) return to the General Partner the Shares otherwise distributable to such Partner.  For purposes hereof, a “Prohibited Investor” means (1) a person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism); (2) a person named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control (OFAC); (3) a non-U.S. bank that is barred, by the terms of its banking license, from doing business within the country that issued the license; or (4) is otherwise prohibited from investing in the Fund pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules or orders.
 
 
3
 
 
CONFIDENTIAL TREATMENT

Issuer Name: 
Trius Therapeutics, Inc.
Client Name: 
Sofinnova Venture Partners VII, L.P.
Symbol: 
TSRX
Start Date:
[***]1
End Date:
[***]2
 
 
3.5           The Fund will cooperate fully with Merrill Lynch in correcting, verifying and/or determining any information required by Merrill Lynch in connection with the establishment or maintenance of any Distribution Account with respect to any Partner.
 
3.6           The Fund will make representatives of its General Partner, and representatives of any of its affiliates responsible for managing or advising the Fund, available to Merrill Lynch at reasonable times and on reasonable advance notice for the purpose of permitting representatives of Merrill Lynch to discuss, review and evaluate the USA PATRIOT Act compliance procedures applicable to the Fund and the Partners, if any.
 
4.           Representations, Warranties and Covenants
 
In consideration of Merrill Lynch agreeing to distribute securities under this Plan, the Fund makes the following representations, warranties and covenants:
 
4.1           The Fund has established the Plan in good faith, in compliance with the requirements of Rule 10b5-1, and at a time when it was not aware of material nonpublic information about the Shares or the Issuer.
 
4.2           The Fund has consulted with its own independent legal counsel and other advisors in connection with its decision to enter into the Plan and has confirmed that the Plan meets the criteria set forth in Rule 10b5-1.  The Fund has not received or relied on any representations by Merrill Lynch regarding the Plan’s compliance with Rule 10b5-1.
 
 
4
 
 
CONFIDENTIAL TREATMENT

Issuer Name: 
Trius Therapeutics, Inc.
Client Name: 
Sofinnova Venture Partners VII, L.P.
Symbol: 
TSRX
Start Date:
[***]1
End Date:
[***]2
 
 
4.3           Merrill Lynch has received electronic confirmation from the Issuer’s outside counsel regarding the Plan’s compliance with the Issuer’s insider trading policy and other related matters.
 
4.4           The Fund owns all Shares that are subject to the Plan free and clear of any liens or encumbrances of any kind.  There are no restrictions imposed on the Fund, the Shares or, to the knowledge of the Fund, the Issuer that would prevent Merrill Lynch or the Fund from complying with the Plan.
 
4.5           While the Plan is in effect, except as provided in the Plan, the Fund will not enter into or alter a corresponding hedging transaction or position with respect to the Shares or otherwise engage in offsetting or hedging transactions in violation of Rule 10b5-1.  The Fund will notify Merrill Lynch in advance of any sales or purchases of, or derivative transactions on, any of the Issuer’s securities initiated by it; provided, however, that such notification shall in no way modify the distribution instructions set forth in Section 1 of the Plan.  The Plan is the only plan adopted by the Fund with respect to the Issuer under Rule 10b5-1 and the Fund will not adopt another plan under Rule 10b5-1 with respect to the Issuer until the Plan expires or terminates in accordance with its terms.
 
4.6           While the Plan is in effect, the Fund will not disclose to any employee of Merrill Lynch, including any Private Wealth Advisor or Financial Advisor or employee of VSG, any material nonpublic information concerning the Shares or the Issuer.
 
4.7           While the Plan is in effect, the Fund will not attempt to exercise any influence over how, when or whether to effect distributions of Shares.
 
4.8           The Plan does not violate the Issuer’s insider trading policies.
 
4.9           The Fund agrees that it, and not Merrill Lynch, shall be responsible for making or causing to be made all filings required under the Securities Act and/or the Exchange Act, including under Section 13 and Section 16 of the Exchange Act, and any other filings necessary on behalf of the Fund and its affiliates.
 
4.10           As to delivery requirements:
 
 
1.
Prior to the date of execution of any distributions specified under the Plan, the Fund agrees to have delivered into the custody of Merrill Lynch the total amount of the Shares that may be distributed pursuant to the Plan, together with all transfer documents and other authorizations required for Merrill Lynch to effect distributions of such Shares on the Fund’s behalf.  Without limiting the generality of the foregoing, if required by the Issuer’s transfer agent, the Fund will deliver an opinion of its counsel to the Transfer Agent to the effect that the Shares may be distributed by the Fund pursuant to the Plan without registration under the Securities Act and that certificates representing Shares so distributed (other than those, if any, distributed to the Restricted Partner (as defined herein)) need not bear a restrictive legend.
 
 
5
 
 
CONFIDENTIAL TREATMENT

Issuer Name: 
Trius Therapeutics, Inc.
Client Name: 
Sofinnova Venture Partners VII, L.P.
Symbol: 
TSRX
Start Date:
[***]1
End Date:
[***]2
 
 
 
2.
The Fund agrees that Merrill Lynch’s obligation to execute distributions under the Plan is conditioned on the satisfaction of the foregoing delivery requirements.
 
4.11           The Fund agrees to inform Merrill Lynch as soon as possible of the Fund becoming aware of any of the following:
 
 
1.
any subsequent restrictions imposed on the Fund due to changes in the securities (or other) laws or of any restrictions imposed on the Issuer that would prevent Merrill Lynch or the Fund from complying with the Plan, and
 
 
2.
the occurrence of any event as set forth in the Plan that would cause the Plan to be suspended or terminated under Section 5 or Section 6 of the Plan, respectively.
 
4.12           To the Fund’s knowledge, none of the Partners is, nor during the preceding three months has been, an officer or director of the Issuer or an “affiliate” of the Issuer within the meaning of Rule 144(a) under the Securities Act of 1933, as amended; provided, however, that Sofinnova Management VII, L.L.C., the general partner of the Fund, may be deemed an affiliate of the Issuer (a “Restricted Partner”).  All parties shall have the benefit of tacking the Fund’s acquisition date for purposes of Rule 144 and thus receive their Shares free of restrictive legends; provided, however, that Shares registered in the name of a Restricted Partner or any other Partner who is then an affiliate of the Issuer shall bear the appropriate legends.
 
5.           Suspension
 
5.1           Distributions pursuant to Section 1 above shall be suspended where:
 
 
1.
trading of the Shares on the Exchange is suspended for any reason;
 
 
6
 
 
CONFIDENTIAL TREATMENT

Issuer Name: 
Trius Therapeutics, Inc.
Client Name: 
Sofinnova Venture Partners VII, L.P.
Symbol: 
TSRX
Start Date:
[***]1
End Date:
[***]2
 
 
 
2.
Merrill Lynch, in its sole reasonable discretion, determines that there is a legal, regulatory or contractual reason why it cannot affect a distribution of Shares;
 
 
3.
Merrill Lynch is notified in writing by the Issuer that a distribution of Shares should not be effected due to legal, regulatory or contractual restrictions applicable to the Issuer or to the Fund (including without limitation, Regulation M); or
 
 
4.
Merrill Lynch is notified in writing by the Issuer that the Issuer, in its sole discretion, deems such suspension necessary or advisable, including suspensions necessary to comply with trading restrictions imposed in connection with any lock-up agreement required in connection with a securities issuance, transaction or other similar event.
 
5.2           Merrill Lynch will resume distributions in accordance with the Plan as promptly as practicable after (a) Merrill Lynch receives notice in writing from the Issuer that it may resume distributions in accordance with Section 1 of the Plan in the case of the occurrence of an Event described in 5.1.3 or 5.1.4 above; or (b) Merrill Lynch determines, in its sole discretion, that it may resume distributions in accordance with the Plan in the case of the occurrence of an Event described in 5.1.1 or 5.1.2 above.
 
5.3           Shares allocated under the Plan for distribution during a period that has elapsed due to a suspension under this Section will be carried forward to be distributed with the next amount of shares to be distributed in accordance with Section 1 of the Plan.  In the event Section 1 of the Plan provides for an amount of Shares to be distributed during a given period at a certain closing price, Shares that would otherwise be permitted to be distributed during that period, shall, upon lapse of the suspension, nonetheless be carried forward to be distributed with the next amount of Shares to be distributed in accordance with Section 1 of the Plan.
 
5.4           Merrill Lynch is released from all liability in connection with any suspension under this Section 5.
 
6.           Termination
 
The Plan shall terminate on the earliest to occur of the following:
 
6.1           the termination date listed above;
 
6.2           the completion of all distributions contemplated in Section 1 of the Plan;
 
 
7
 
 
CONFIDENTIAL TREATMENT

Issuer Name: 
Trius Therapeutics, Inc.
Client Name: 
Sofinnova Venture Partners VII, L.P.
Symbol: 
TSRX
Start Date:
[***]1
End Date:
[***]2
 
 
6.3           the Fund’s or Merrill Lynch’s reasonable determination that:  (a) the Plan does not comply with Rule 10b5-1 or other applicable securities laws; (b) the Fund has not complied with the Plan, Rule 10b5-1 or other applicable securities laws; or (c) the Fund has made misstatements in its representations or warranties in Section 4 above;
 
6.4           receipt by Merrill Lynch of written notice from the Issuer or the Fund of:  (a) the filing of a bankruptcy petition by the Issuer; (b) the closing of a merger, recapitalization, acquisition, tender or exchange offer, or other business combination or reorganization resulting in the exchange or conversion of the Shares of the Issuer into shares of a company other than the Issuer; or (c) the conversion of the Shares into rights to receive fixed amounts of cash or into debt securities and/or preferred stock (whether in whole or in part); and
 
6.5           receipt by Merrill Lynch of written notice of termination from the Fund.
 
7.           Indemnification
 
7.1           The Fund agrees to indemnify and hold harmless Merrill Lynch and its directors, officers, employees and affiliates from and against all claims, losses, damages and liabilities, including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such claim, arising out of or attributable to Merrill Lynch’s actions taken in compliance with the Plan, any breach by the Fund of the Plan, or any violation by the Fund of applicable federal or state laws or regulations, to the extent Merrill Lynch is not obligated to indemnify the Fund under Section 7.2.  This indemnification shall survive termination of the Plan.
 
7.2           Merrill Lynch agrees to indemnify and hold the Fund harmless from and against all claims, losses, damages and liabilities, including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim, arising out of or attributable to Merrill Lynch’s gross negligence or willful misconduct in connection with the Plan.
 
8.           Modification and Amendment
 
The Plan, including the Distribution Instruction, may be modified or amended only upon (a) the written agreement of the Fund and Merrill Lynch; (b) the receipt by Merrill Lynch of written confirmation signed by the Fund to the effect that the representations, warranties and covenants contained in Section 4 above, are true as of the date of such written confirmation; and (c) the receipt by Merrill Lynch of the confirmation set forth in Section 4.3 above.
 
 
8
 
 
CONFIDENTIAL TREATMENT

Issuer Name: 
Trius Therapeutics, Inc.
Client Name: 
Sofinnova Venture Partners VII, L.P.
Symbol: 
TSRX
Start Date:
[***]1
End Date:
[***]2
 
 
9.           Counterparts
 
The Plan may be signed in counterparts, each of which will be an original.
 
10.           Entire Agreement
 
The Plan, including the representations, warranties and covenants in Section 4, constitutes the entire agreement between the Fund and Merrill Lynch regarding the Plan and supersedes any prior agreements or understandings regarding the Plan.
 
11.           Notices
 
All notices given by the parties under the Plan will be as follows:
 
If to Merrill Lynch, to:
Valerie Garcia Houts
Sr. Vice President—International Financial Advisor
Merrill Lynch Venture Services Group
600 California Street, 8th Floor
San Francisco, CA 94108

If to the Fund, to:
 
Name: Nathalie Auber
Name: Hooman Shahlavi
Title: CFO
Title: Director of Legal Affairs
Organization: Sofinnova Ventures, Inc.
Organization: Sofinnova Ventures, Inc.
Fax: (650) 322-2037
Fax: (650) 322-2037
Tel: (650) 681-8436
Tel: (650) 681-8430
e-mail: auber@sofinnova.com
e-mail: shahlavi@sofinnova.com

11.           Governing Law
 
This Plan will be governed by and construed in accordance with the laws of the State of New York.
 
12.           Officer and Director Equity Services
 
12.1           The Fund authorizes Merrill Lynch to transmit transaction information via facsimile and/or email regarding distributions under the Plan to:
 
Name: Nathalie Auber
Name: Michael Powell
Title: CFO
Title: Vice President
Organization: Sofinnova Ventures, Inc.
Organization: Sofinnova Ventures, Inc.
Fax: (650) 322-2037
Fax: (650) 322-2037
Tel: (650) 681-8436
Tel: (650) 681-8425
e-mail: auber@sofinnova.com
e-mail: powell@sofinnova.com

 
9
 
 
CONFIDENTIAL TREATMENT

Issuer Name: 
Trius Therapeutics, Inc.
Client Name: 
Sofinnova Venture Partners VII, L.P.
Symbol: 
TSRX
Start Date:
[***]1
End Date:
[***]2
 
 
12.2           Merrill Lynch shall use reasonable efforts to transmit transaction information for distributions under the Plan by the close of business on the Effective Date of such distribution.
 
12.3           The Fund acknowledges that Merrill Lynch (a) has no obligation to confirm receipt of any email or faxed information by the designated contact and (b) has no responsibility or liability for filing a Form 4 with the SEC or for compliance with Section 16 of the Exchange Act.
 
12.4           If any of the above contact information changes, or the Fund would like to terminate this authorization, the Fund will promptly notify Merrill Lynch in writing.  The Fund further authorizes Merrill Lynch to transmit transaction information to a third-party service provider who will make the information available to my designated representative(s) listed above.
 
 
10
 
 
CONFIDENTIAL TREATMENT

Issuer Name: 
Trius Therapeutics, Inc.
Client Name: 
Sofinnova Venture Partners VII, L.P.
Symbol: 
TSRX
Start Date:
[***]1
End Date:
[***]2
 
 
This Rule 10b5-1 Distribution Plan and, Client Representations is established and agreed to as of the date of the last signature below.
 
Sofinnova Venture Partners VII, L.P.
    
     
By:
Sofinnova Management VII, L.L.C.    
 
its General Partner
    
       
By:
     
 
Managing Member
    
       
Date: November 29, 2011
 
Acknowledged and Agreed this 29th
day of November 2011:
 
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
 
By:
     
Name:     
Title:     
 
 
11
 
 
CONFIDENTIAL TREATMENT

Issuer Name: 
Trius Therapeutics, Inc.
Client Name: 
Sofinnova Venture Partners VII, L.P.
Symbol: 
TSRX
Start Date:
[***]1
End Date:
[***]2
 

Annex A — Form of Direction – Clean Shares
 
To: 
Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch”)
From: 
[Name of Fund]
Date: 
[____] (“Date of Direction”)
 
 
Re:
Direction Pursuant to Letter Dated [____] (the “Letter”) from the General Partner to Merrill Lynch with respect to [Name of Fund]
 
Dear Sir or Madam:
 
This is the Direction referred to in the Letter.  It authorizes Merrill Lynch to service the distribution of [   ] shares of common stock of [name of issuer] for [name of Fund] to our Partners.  Merrill Lynch is hereby directed to service the Distribution in accordance with the terms set forth in the Letter.  Any capitalized term used and not defined herein shall have the meaning given to such term in the Letter.
 
All Securities were acquired for $____ per share on _________ as __________ Stock, directly from [Issuer] on [date].  These shares are being distributed pro-rata to the Partners in accordance with the partnership and/or operating agreements.  Attached is a list of our Partners and the corresponding number of shares each will receive.
 
To the best of our knowledge, none of the Partners is, nor during the preceding three months has been, an officer or director of [issuer] or an “affiliate” of [issuer] within the meaning of Rule 144(a) under the Securities Act of 1933, as amended, except for the following Partners:  [Name, Affiliate Status] (“Restricted Partners”).  All parties should have the benefit of “tacking” the Fund’s acquisition date for purposes of 144(b) and thus receive shares free of restrictive legends.  Shares registered in the names of Restricted Partners should bear the appropriate legends.
 
We request you obtain the necessary letters of instruction and/or legal opinion to process the re-registration of these shares with the Issuer’s transfer agent.  If you have any questions, please do not hesitate to call ____________ directly at ___________.
 
 
Sincerely,
  
     
 
[Title of Authorized Person/General Partner of the Fund, on behalf of itself and the Fund]
  
       
 
By:
   
  Name:   
  Title:   
       
 
 
12