EX-10.4 8 v67638orex10-4.txt EXHIBIT 10.4 1 EXHIBIT 10.4 XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT This Second Addendum to Series D Preferred Stock Purchase Agreement (the "Second Addendum") is made as of the 14th day of August, 2000 by and among Xcyte Therapies, Inc., a Delaware corporation (the "Company"), the investors listed on Exhibit A attached hereto (each an "Additional Purchaser" and together the "Additional Purchasers"), and the existing holders of Series D Preferred Stock listed on Exhibit B hereto (each an "Initial Series D Investor," together the "Initial Series D Investors"). All capitalized terms not defined herein shall have the meaning set forth in the Purchase Agreement (defined herein). RECITALS WHEREAS, on May 25, 2000, the Company entered into a Series D Preferred Stock Purchase Agreement, as amended by the Addendum to Series D Preferred Stock Purchase Agreement and Omnibus Amendment to Series B Financing Agreements dated as of August 8, 2000 (the "Purchase Agreement") with the Initial Series D Investors. The Purchase Agreement provides in Section 1.4 thereof that additional investors may, under conditions set forth therein, become parties to the Purchase Agreement at any time on or before August 8, 2000; WHEREAS, pursuant to the terms of Section 6.8 of the Purchase Agreement, the Purchase Agreement may be amended only with the written consent of the Company and Initial Series D Investors holding at least a majority of the Stock (or the Common Stock issuable upon conversion thereof); WHEREAS, the Company, the Additional Purchasers, the undersigned Initial Series D Investors, constituting the holders of sufficient shares of capital stock of the Company to amend the Purchase Agreement, desire to amend certain terms and conditions of the Purchase Agreement; NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS: AGREEMENT In consideration of the mutual promises, covenants and conditions hereinafter set forth, the parties hereto mutually agree as follows: 1. AUTHORIZATION AND SALE OF PREFERRED STOCK AND WARRANTS. 1.1 AUTHORIZATION OF PREFERRED STOCK. The Company has authorized the issuance pursuant to this Second Addendum of up to 719,425 shares of its Series D Preferred Stock (the "Additional Shares") and the issuance of Warrants to purchase 80,575 shares of Common Stock (the "Warrants") to the Additional Purchasers. The rights, preferences, privileges and restrictions of the Series D Preferred Stock are as set forth in the Company's -1- 2 Amended and Restated Certificate of Incorporation attached as Exhibit C to the Purchase Agreement (the "Restated Certificate"). 1.2 SALE OF PREFERRED STOCK AND WARRANTS. Subject to the terms and conditions hereof, at the Closing (as defined in Section 2.1 hereof) the Company will issue and sell to each Additional Purchaser, and each Additional Purchaser severally agrees to purchase from the Company, that number of Additional Shares at a cash purchase price of $2.78 per share of Series D Preferred Stock and Warrants at a cash purchase price of $0.001 per share of Common Stock specified opposite such Additional Purchaser's name on Exhibit A hereto. Each of the Additional Purchasers, by their signatures hereto, shall hereby (i) become parties to the Purchase Agreement, as amended by this Second Addendum (ii) be considered a "Purchaser" for all purposes under the Purchase Agreement, (iii) have all the rights and obligations of a Purchaser thereunder, (iv) become parties to the Investors' Rights Agreement, as amended, and Voting Agreement, as amended, (v) be considered a "Series D Investor" for all purposes under the Investor Rights Agreement, as amended, and (vi) have all the rights and obligations of an Investor thereunder. The Additional Shares, the Warrants and the Common Stock issuable upon exercise of the Warrants (the "Warrant Shares") acquired by the Additional Purchasers hereunder shall be considered "Shares" for all purposes under the Purchase Agreement, as amended. 2. CLOSING; DELIVERY. 2.1 CLOSING. The closing of the purchase and sale of the Additional Shares and Warrants hereunder (the "Closing") shall be held at the offices of Venture Law Group, Kirkland, Washington, at 10:00 a.m., on August 14, 2000, or at such other time and place as the Company and the Additional Purchasers may agree. 2.2 DELIVERY. At the Closing, the Company will deliver to each Additional Purchaser a certificate representing the number of Additional Shares and Warrants set forth opposite such Additional Purchaser's name on Exhibit A, against payment of the purchase price therefor by each Additional Purchaser by check or wire transfer to the Company. 3. DISCLOSURE; CAPITALIZATION. -------------------------- 3.1 DISCLOSURE. Each Additional Purchaser hereby acknowledges receipt of the Purchase Agreement and the exhibits thereto. The Company affirms to each Additional Purchaser that: (i) The representations and warranties of the Company set forth in Section 2 of the Purchase Agreement were true and accurate when made; (ii) Those representations and warranties, which are incorporated herein by this reference and made a part hereof, remain true and accurate in all material respects as of the date hereof, except (A) for changes resulting from the transactions contemplated in the Purchase Agreement and (B) as set forth in the Schedule of Exceptions to Representations and Warranties attached hereto as Exhibit D. -2- 3 (iii) The conditions to closing set forth in Section 4 of the Purchase Agreement and in Section 5 hereof have been satisfied, provided that the conditions set forth in Section 4.1 of the Purchase Agreement shall include references to changes in the Company's representations and warranties and the Company's status, respectively, as set forth herein and in the Exhibits attached hereto, and resulting from the consummation of the transactions contemplated by the Purchase Agreement. 3.2 CAPITALIZATION. Immediately prior to the Closing, the authorized capital of the Company shall consist of: (i) Immediately prior to the Closing, the authorized capital of the Company shall consist of: (a) 60,000,000 shares of Common Stock, and (b) 28,909,976 shares of Preferred Stock (the "Preferred Stock"), of which 7,300,080 have been designated Series A Preferred Stock, 4,097,580 have been designated Series B Preferred Stock, 7,212,316 have been designated Series C Preferred Stock and 10,300,000 have been designated Series D Preferred Stock. Immediately prior to the Closing, 5,965,234 shares of Common Stock, 6,860,512 shares of Series A Preferred Stock, warrants to purchase 439,568 shares of Series A Preferred Stock, 3,903,080 shares of Series B Preferred Stock, and warrants to purchase 194,500 shares of Series B Preferred Stock, 7,185,630 shares of Series C Preferred Stock, warrants to purchase 26,686 shares of Series C Preferred Stock and 9,390,400 shares of Series D Preferred Stock will be outstanding. (ii) Except as set forth in this Agreement and the exhibits thereto, there are no outstanding options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition from the Company of any shares of its capital stock except that the Company has reserved (a) the Shares for issuance at Closing, (b) the Common Stock issuable upon conversion of the Preferred Stock, (c) 2,500,000 shares of Common Stock reserved for issuance pursuant to a stock option plan adopted by the Company of which options to purchase 1,037,453 shares have been granted and remain outstanding, with 1,374,122 shares remaining for grant (d) 898,150 shares of Common Stock reserved for issuance to scientific founders upon the achievement of certain milestones, (e) 157,890 shares of Common Stock reserved for issuance to Carl June or his assignees upon the Company's acquisition of certain future technology and (f) the Warrants to purchase 1,051,712 shares of Common Stock issued pursuant to the Purchase Agreement, as amended. (iii) Based in part upon the representations of each Purchaser in this Second Addendum and subject to the provisions of Section 2.5 of the Purchase Agreement, the Stock (and the Common Stock issuable upon conversion thereof) has been issued or will be issued in compliance with all applicable federal and state securities laws. 4. REPRESENTATIONS AND WARRANTIES OF ADDITIONAL PURCHASERS AND INITIAL SERIES D INVESTORS. Each Additional Purchaser and Initial Series D Investor, severally and not jointly, acknowledges that such Additional Purchaser has reviewed the representations and warranties set forth in Section 3 of the Purchase Agreement and agrees with the Company that such representations and warranties, which are incorporated herein by this reference and made a part -3- 4 hereof, are true and correct as of the date hereof as they relate to such Additional Purchaser's purchase of the Additional Shares and Warrants hereunder. 5. CONDITIONS TO ADDITIONAL PURCHASERS' OBLIGATIONS AT CLOSING. The obligation of each Additional Purchaser to purchase the Additional Shares at the Closing is subject to the fulfillment to such Additional Purchaser's satisfaction at or prior to the Closing of the following conditions: 5.1 REPRESENTATIONS AND WARRANTIES CORRECT; PERFORMANCE OF OBLIGATIONS. The representations and warranties made by the Company in Section 3 hereof shall be true and correct when made, and shall be true and correct on the date of the Closing with the same force and effect as if they had been made on and as of said date, subject to changes contemplated by this Second Addendum; and the Company shall have performed all obligations and conditions herein required to be performed or observed by it at or prior to the Closing. 5.2 CONSENTS AND WAIVERS. The Company shall have obtained any and all consents and waivers necessary or appropriate for consummation of the transactions contemplated by this Second Addendum. 5.3 LEGAL OPINION. Upon request, each of the Additional Purchasers will be entitled to receive from Venture Law Group, legal counsel for the Company, a legal opinion addressed to the Additional Purchasers substantially in the form attached hereto as Exhibit E. 6. CONDITIONS TO COMPANY'S OBLIGATIONS AT CLOSING. The obligations of the Company under Sections 1.1 and 1.2 of this Second Addendum are subject to the fulfillment at or before the Closing of each of the following conditions: 6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of each Additional Purchaser and Initial Series D Investor contained in Section 4 hereof shall be true at the Closing. 6.2 CONSENTS AND WAIVERS. The Company shall have obtained any and all consents and waivers necessary or appropriate for the Purchasers to become parties to the Investor Rights Agreement for the consummation of the transactions contemplated by this Second Addendum. 7. AMENDMENT TO STOCK PURCHASE AGREEMENT. Section 1.4 of the Purchase Agreement is hereby amended to read in its entirety as follows: "1.4 Additional Closings. If the full number of Series D Preferred Stock of the Company is not sold at the Closing, the Company shall have the right, at any time prior to August 18, 2000 (the "Subsequent Closing Date"), to sell the remaining authorized but unissued shares of Series D Preferred Stock to one or more additional purchasers as determined by the Company, or to any Purchaser hereunder who wishes to acquire additional shares of Series D Preferred Stock at the price and on the terms set forth herein, provided that any -4- 5 such additional purchaser shall be required to execute an Second Addendum Agreement substantially in the form attached hereto as Exhibit F. Any additional purchaser so acquiring shares of Series D Preferred Stock shall be considered a "Purchaser" for purposes of this Agreement and an "Investor" for the purposes of the Agreements (as defined below), and any Series D Preferred Stock so acquired by such additional purchaser shall be considered "Shares" for purposes of this Agreement and all other agreements contemplated hereby." 8. MISCELLANEOUS. 8.1 INCORPORATION BY REFERENCE. The provisions set forth in Section 6 of the Purchase Agreement (other than Section 6.6) are incorporated herein by this reference and made a part hereof. Except as otherwise set forth herein, the terms and conditions of the Purchase Agreement shall remain in full force and effect notwithstanding the execution of this Agreement and are incorporated in their entirety herein and made a part of this Second Addendum as if fully set forth herein. 8.2 NOTICES. Any notice required or permitted by this Second Addendum and/or the Agreements shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or sent by overnight courier telegram or fax, or forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, and addressed to the party to be notified at such party's address or fax number (as set forth below or in the Purchase Agreement or on Exhibit A hereto or thereto, or as subsequently modified by written notice) and (a) if to the Company, with a copy to Sonya F. Erickson, Venture Law Group, 4750 Carillon Point, Kirkland, Washington 98033, fax number (425) 739-8750 or (b) if to the Purchasers, with a copy to Richard Porter, Kirkland & Ellis, Aon Center, 200 East Randolph Drive Chicago, Illinois 60601, fax number (312) 861-2200. 8.3 COUNTERPARTS. This Second Addendum may be executed in any number of counterparts, each of which may be executed by less than all of the Additional Purchasers, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. [Signature page follows] -5- 6 The parties hereto have executed this Second Addendum as of the date first set forth above. XCYTE THERAPIES, INC. By: ---------------------------------------- Ron J. Berenson, Chief Executive Officer Address: 1124 Columbia Street, Suite 130 Seattle, WA 98104 Fax: (206) 262-6200 SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 7 ADDITIONAL PURCHASERS: VECTOR FUND MANAGEMENT, L.P. By: ------------------------------------- Name: ------------------------------------- (print) Title: ------------------------------------- Address: 1751 Lake Cook Road, Suite 350 Deerfield, IL 60015 Attn: Doug Reed, M.D. SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 8 INITIAL SERIES D INVESTORS: MPM BIOVENTURES II, L.P. By: MPM Asset Management II, L.P., its General Partner By: MPM Asset Management II LLC, its General Partner By: ------------------------------------ Name: Title: MPM BIOVENTURES II-QP, L.P. By: MPM Asset Management II, L.P., its General Partner By: MPM Asset Management II LLC, its General Partner By: ------------------------------------ Name: Title: MPM BIOVENTURES GMBH & CO. PARALLEL-BETEILIGUNGS KG By: MPM Asset Management II, L.P., its General Partner By: MPM Asset Management II LLC, its General Partner By: ------------------------------------ Name: Title: MPM ASSET MANAGEMENT INVESTORS 2000 B LLC By: ------------------------------------ Name: Title: SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 9 INITIAL SERIES D INVESTORS: --------------------------------- JOHN E. PARKEY Address: Tredegar Investments 6501 Columbia Center 701 Fifth Avenue Seattle, WA 98104 SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 10 INITIAL SERIES D INVESTORS: --------------------------------- NEIL RUZIC Address: c/o Little Stirrup Cay Research Limited 345 East Lake Front Drive Beverly Shores, IN 46301 SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 11 INITIAL SERIES D INVESTORS: ARCH VENTURE FUND III, L.P. By: ---------------------------------- Name: ---------------------------------- (print) Title: ---------------------------------- Address: 1000 Second Avenue, Suite 3700 Seattle, WA 98104-1053 Attn: Bob Nelsen SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 12 INITIAL SERIES D INVESTORS: --------------------------------- JIM ROBERTS Address: 2540 Shoreland Drive South Seattle, WA 98144 SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 13 INITIAL SERIES D INVESTORS: --------------------------------- MARK GROUDINE Address: 1142 20th Avenue East Seattle, WA 98112 SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 14 INITIAL SERIES D INVESTORS: DLJ CAPITAL CORP. By: ------------------------------------------- Name: ------------------------------------------- (print) Title: ------------------------------------------- Address: 3000 Sand Hill Road, Bldg. 3, Suite 170 Menlo Park, CA 94025 DLJ FIRST ESC, L.P. By: ------------------------------------------- Name: ------------------------------------------- (print) Title: ------------------------------------------- Address: 3000 Sand Hill Road, Bldg. 3, Suite 170 Menlo Park, CA 94025 SPROUT CAPITAL VII, L.P. By: ------------------------------------------- Name: ------------------------------------------- (print) Title: ------------------------------------------- Address: 3000 Sand Hill Road, Bldg. 3, Suite 170 Menlo Park, CA 94025 THE SPROUT CEO FUND, L.P. By: ------------------------------------------- Name: ------------------------------------------- (print) Title: ------------------------------------------- Address: 3000 Sand Hill Road, Bldg. 3, Suite 170 Menlo Park, CA 94025 SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 15 INITIAL SERIES D INVESTORS: ARCH VENTURE FUND III, L.P. By: ------------------------------------------- Name: ------------------------------------------- (print) Title: ------------------------------------------- Address: 1000 Second Avenue, Suite 3700 Seattle, WA 98104-1053 Attn: Bob Nelsen SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 16 INITIAL SERIES D INVESTORS: ALTA CALIFORNIA PARTNERS, L.P. By: ------------------------------------------- Name: ------------------------------------------- (print) Title: ------------------------------------------- Address: One Embarcadero Center, Suite 4050 San Francisco, CA 94111 Attn: Jean Deleage ALTA EMBARCADERO PARTNERS, LLC By: ------------------------------------------- Name: ------------------------------------------- (print) Title: ------------------------------------------- Address: One Embarcadero Center, Suite 4050 San Francisco, CA 94111 Attn: Jean Deleage SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 17 INITIAL SERIES D INVESTORS: ------------------------------------ TGI FUND II, LC Address: 6501 Columbia Center 701 5th Avenue Seattle, WA 98104 Attn: Michael Beblo & Dave Maki SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 18 INITIAL SERIES D INVESTORS: ------------------------------------ FALCON TECHNOLOGY PARTNERS, L.P. Address: 600 Dorset Road Devon, PA 19333 Attn: Jim Rathman SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 19 INITIAL SERIES D INVESTORS: ------------------------------------ VULCAN VENTURES, INC. Address: 110 110th Avenue NE, Suite 550 Bellevue, WA 98004 Attn: Ruth B. Kunath SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 20 INITIAL SERIES D INVESTORS: ------------------------------------ FLUKE CAPITAL MANAGEMENT, L.P. Address: 11400 SE 6th Street, Suite 230 Bellevue, WA 98004 Attn: Dennis Weston SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 21 INITIAL SERIES D INVESTORS: ------------------------------------ TOM ALBERG Address: c/o Madrona Investment Group 1000 2nd Avenue Seattle, WA 98104 SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 22 INITIAL SERIES D INVESTORS: ------------------------------------ MGN OPPORTUNITY GROUP LLC Address: The Norton Building 801 Second Avenue, Suite 1300 Seattle, WA 98104 Attn: Stephen Humphreys SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 23 INITIAL SERIES D INVESTORS: ------------------------------------ ARNOLD L. HOLM, JR. Address: Holm Construction Services 310 3rd Avenue NE, Suite 103 Issaquah, WA 98027 SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 24 INITIAL SERIES D INVESTORS: ------------------------------------ HENRY JAMES Address: 22420 North Dogwood Lane Woodway, WA 98020 SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 25 INITIAL SERIES D INVESTORS: ------------------------------------ OKI ENTERPRISES, LLC Address: c/o Scott Oki 10838 Main Street Bellevue, WA 98004 SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 26 INITIAL SERIES D INVESTORS: ------------------------------------ VLG INVESTMENTS LLC Address: c/o Elias J. Blawie 2800 Sand Hill Road Menlo Park, CA 94025 ------------------------------------ VLG ASSOCIATES 2000 Address: c/o Elias J. Blawie 2800 Sand Hill Road Menlo Park, CA 94025 SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 27 INITIAL SERIES D INVESTORS: ------------------------------------ SONYA F. ERICKSON Address: 4750 Carillon Point Kirkland, WA 98033 SIGNATURE PAGE TO XCYTE THERAPIES, INC. SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT 28 EXHIBIT A SCHEDULE OF ADDITIONAL PURCHASERS
NAME/ADDRESS AMOUNT INVESTED NUMBER OF SHARES NUMBER OF PURCHASE PRICE WARRANT SHARES OF WARRANTS VECTOR LATER-STAGE EQUITY FUND II, $500,000.38 179,856 20,144 $20.14 L.P. 1751 Lake Cook Road, Suite 350 Deerfield, IL 60015 Attn: Doug Reed, M.D. VECTOR LATER-STAGE EQUITY FUND II $1,500,001.12 539,569 60,431 $60.44 (QP), L.P. 1751 Lake Cook Road, Suite 350 Deerfield, IL 60015 Attn: Doug Reed, M.D. TOTAL $2,000,001.50 719,425 80,575 $80.58
29 EXHIBIT B INITIAL SERIES D INVESTORS
INVESTOR NAME AND ADDRESS NUMBER OF SERIES D NUMBER OF WARRANT PREFERRED SHARES SHARES DLJ CAPITAL CORP. 6,475 725 3000 Sand Hill Road Building Three, Suite 170 Menlo Park, CA 94025 Attn: Bob Curry DLJ FIRST ESC L.P. 32,374 3,625 3000 Sand Hill Road Building Three, Suite 170 Menlo Park, CA 94025 Attn: Bob Curry SPROUT CAPITAL VII, L.P. 281,622 31,541 3000 Sand Hill Road Building Three, Suite 170 Menlo Park, CA 94025 Attn: Bob Curry THE SPROUT CEO FUND, L.P. 3,270 366 3000 Sand Hill Road Building Three, Suite 170 Menlo Park, CA 94025 Attn: Bob Curry ARCH VENTURE FUND III, L.P. 1,321,942 148,056 1000 Second Avenue, Suite 3700 Seattle, WA 98104-1053 Attn: Bob Nelsen ALTA CALIFORNIA PARTNERS, L.P. 571,491 64,006 One Embarcadero Center Suite 4050 San Francisco, CA 94111 Attn: Jean Deleage
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INVESTOR NAME AND ADDRESS NUMBER OF SERIES D NUMBER OF WARRANT PREFERRED SHARES SHARES ALTA EMBARCADERO PARTNERS, LLC 13,056 1,462 One Embarcadero Center Suite 4050 San Francisco, CA 94111 Attn: Jean Deleage TGI FUND II, LC 286,022 32,034 6501 Columbia Center 701 - 5th Avenue Seattle, WA 98104 Attn: Michael Beblo and Dave Maki FALCON TECHNOLOGY PARTNERS, L.P. 95,341 10,678 600 Dorset Road Devon, PA 19333 Attn: Jim Rathman VULCAN VENTURES INC. 719,424 80,575 110 110th Avenue, NE, Suite 550 Bellevue, WA 98004 Attn: Ruth B. Kunath FLUKE CAPITAL MANAGEMENT, L.P. 89,928 10,071 11400 SE 6th Street, Suite 230 Bellevue, WA 98004 Attn: Dennis Weston and Kevin Gabelein TOM ALBERG 719,424 80,575 c/o Madrona Investment Group 1000 2nd Avenue Seattle, WA 98104
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INVESTOR NAME AND ADDRESS NUMBER OF SERIES D NUMBER OF WARRANT PREFERRED SHARES SHARES MGN OPPORTUNITY GROUP LLC Matthew G. Norton Company The Norton Building 801 Second Avenue, Suite 1300 359,712 40,287 Seattle, WA 98104 Attn: Stephen Humphreys ARNOLD L. HOLM, JR. 36,000 4,032 Holm Construction Services 310 3rd Avenue NE, Suite 103 Issaquah, WA 98027 HENRY JAMES 89,928 10,071 22420 North Dogwood Lane Woodway, WA 98020 OKI ENTERPRISES, LLC 359,712 40,287 c/o Scott Oki 10838 Main Street Bellevue, WA 98004 VLG INVESTMENTS LLC 12,619 1,413 c/o Elias J. Blawie 2800 Sand Hill Road Menlo Park, CA 94025 VLG ASSOCIATES 2000 1,770 198 c/o Elias J. Blawie 2800 Sand Hill Road Menlo Park, CA 94025 SONYA F. ERICKSON 1,799 201 4750 Carillon Point Kirkland, WA 98033 MPM BIOVENTURES II, LP 320,719 35,921 One Cambridge Center Cambridge, MA 02142
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INVESTOR NAME AND ADDRESS NUMBER OF SERIES D NUMBER OF WARRANT PREFERRED SHARES SHARES MPM BIOVENTURES II-QP, LP 2,905,900 325,460 One Cambridge Center Cambridge, MA 02142 MPM BIOVENTURES GMBH & CO. 1,023,022 114,578 PARALLEL-BETEILIGUNGS KG One Cambridge Center Cambridge, MA 02142 MPM ASSET MANAGEMENT INVESTORS 2000 66,906 7,494 B LLC One Cambridge Center Cambridge, MA 02142 JOHN E. PARKEY 17,986 2,014 Tredegar Investments 6501 Columbia Center 701 Fifth Avenue Seattle, WA 98104 NEIL RUZIC 17,986 2,014 Little Stirrup Cay Research Ltd. 345 Each Lake Front Drive Beverly Shores, IN 46301 JIM ROBERTS 17,986 2,014 2540 Shoreland Drive South Seattle, WA 98144 MARK GROUDINE 17,986 2,014 1142 20th Avenue East Seattle, WA 98112 TOTAL 9,390,400 1,051,712
33 EXHIBIT C AMENDED AND RESTATED CERTIFICATE OF INCORPORATION (SEE TAB NO. 31) 34 EXHIBIT D SCHEDULE OF EXCEPTIONS 35 EXHIBIT E FORM OF LEGAL OPINION (See Tab No. 11