<PAGE> 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
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<PAGE> 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.
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<PAGE> 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
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<PAGE> 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
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<PAGE> 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]
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<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 28
EXHIBIT A
SCHEDULE OF ADDITIONAL PURCHASERS
<TABLE>
<CAPTION>
NAME/ADDRESS AMOUNT INVESTED NUMBER OF SHARES NUMBER OF PURCHASE PRICE
WARRANT SHARES OF WARRANTS
<S> <C> <C> <C> <C>
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
</TABLE>
<PAGE> 29
EXHIBIT B
INITIAL SERIES D INVESTORS
<TABLE>
<CAPTION>
INVESTOR NAME AND ADDRESS NUMBER OF SERIES D NUMBER OF WARRANT
PREFERRED SHARES SHARES
<S> <C> <C>
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
</TABLE>
<PAGE> 30
<TABLE>
<CAPTION>
INVESTOR NAME AND ADDRESS NUMBER OF SERIES D NUMBER OF WARRANT
PREFERRED SHARES SHARES
<S> <C> <C>
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
</TABLE>
<PAGE> 31
<TABLE>
<CAPTION>
INVESTOR NAME AND ADDRESS NUMBER OF SERIES D NUMBER OF WARRANT
PREFERRED SHARES SHARES
<S> <C> <C>
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
</TABLE>
<PAGE> 32
<TABLE>
<CAPTION>
INVESTOR NAME AND ADDRESS NUMBER OF SERIES D NUMBER OF WARRANT
PREFERRED SHARES SHARES
<S> <C> <C>
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
</TABLE>
<PAGE> 33
EXHIBIT C
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
(SEE TAB NO. 31)
<PAGE> 34
EXHIBIT D
SCHEDULE OF EXCEPTIONS
<PAGE> 35
EXHIBIT E
FORM OF LEGAL OPINION
(See Tab No. 11