AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATEDINVESTOR RIGHTS AGREEMENT

EX-4.4 4 a2178135zex-4_4.htm EXHIBIT 4.4

Exhibit 4.4

AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT

THIS AMENDMENT NO. 1 (the “Amendment”) to the THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the “IRA”), dated December 27, 2005, by and among Quark Biotech, Inc., a California corporation (the “Company”), the Series A Investors, the Series B Investors, the Series C Investors, the Series D Investors, the Series E Investors, the Series F Investors, the Series G Investors, the Common Holders and the Founders (all collectively the “Parties”), is made effective as of February 12, 2007 by and among the Parties. All capitalized terms used but not defined herein shall have the meanings given to them in the IRA.

RECITALS

WHEREAS, the parties hereto have previously entered into the IRA; and

WHEREAS, in accordance with Section 8.2 of the IRA, the parties hereto wish to amend the IRA to reflect the agreements set forth herein.

NOW, THEREFORE, in consideration of the promises and of the mutual covenants contained herein, the Parties hereby agree to amend the IRA as follows:

AGREEMENT

1. Amendment to Section 2.5(a).

The following language contained in Section 2.5(a) of the IRA:

“(z) the pre-offering market capitalization of the corporation is at least $200,000,000 (or ¥20,000,000,000 if the primary listing of shares in on a Japan exchange or over-the-counter market)”

shall be amended to read as follows:

“(z) the pre-offering market capitalization of the corporation is at least $125,000,000 (or ¥12,500,000,000 if the primary listing of shares in on a Japan exchange or over-the-counter market)”

2. General

(a) Full Force and Effect. Except as expressly modified by this Amendment, all of the terms and conditions of the IRA shall remain in full force and effect.

(b) Counterparts. This Amendment may be executed simultaneously in two or more counterparts, each of which shall be considered an original, but all of which together shall constitute one and the same instrument.

(c) Governing Law. This Amendment shall be governed by and construed and interpreted in accordance with the laws of the State of California.

In Witness Whereof, the Parties hereto have executed this Amendment as of the day and year first set forth above.

	QUARK BIOTECH, INC. a California corporation


	/s/ Daniel Zurr
	Daniel Zurr, Ph.D.
	Chief Executive Officer

	Address:	6501 Dumbarton Circle Fremont, CA 94555
	Fax:	(510) 402-4020

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	“COMMON HOLDERS” AND “FOUNDERS”

	/s/ David M. Fineman
	/s/ Ellen Gunn Fineman
	David M. Fineman and Ellen Gunn Fineman, Trustees of the Fineman Revocable Trust dated 2/12/97


	/s/ Ellen Gunn Fineman
	Ellen Gunn Fineman, as Custodian for Chloe Rose Fineman Under the California Uniform Transfers to Minors Act


	/s/ Ellen Gunn Fineman
	Ellen Gunn Fineman, as Custodian for Emma Hart Fineman Under the California Uniform Transfers to Minors Act



	John V. Roos



	Bonnee Rubinfeld



	Bonnee Rubinfeld and



	Loretta Rubinfeld, JTWROS


	/s/ J. Gregory Swendsen
	J. Gregory Swendsen, The J. Gregory Swendsen Revocable Living Trust Dated February 1, 2001

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	[Common Holders and Founders cont’d]



	Susan H. Bell, The Susan H. Bell Revocable Trust U/A Dated January 31, 2001


	/s/ Daniel Zurr
	Daniel Zurr


	/s/ Daniel Zurr
	Daniel Zurr, Goddard and Ephrat Trust Company fbo Mr. Daniel Zurr

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	“SERIES A INVESTORS”


	/s/ Donald Campbell
	Donald T. Campbell, IRA FBO Donald T. Campbell/DUSC as Custodian/Rollover Account


	/s/ David L. Austin
	David L. Austin, MLPF&S Custodian FPO David L. Austin RRA Account 813-81530


	/s/ Frances M. Austin
	Frances M. Austin, MLPF&S Custodian FPO Frances M. Austin RRA Account 813-81530



	Deborah R. Bernstein and



	Harvey S. Hecht, as Community Property



	Harvey S. Hecht



	Robert Brockman, Robert Bruckman, M.D., Inc. Money Purchase Pension Plan



	First Trust Corporation TTEE FBO Harvey Hecht IRA M619043-0001

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	[Series A Investors cont’d]


	/s/ Patricia Berns
	Patricia Berns



	Deborah R. Bernstein and Harvey S. Hecht, TTEE Deborah R. Bernstein and Harvey S. Hecht Living Trust



	Robert Bruchnan and



	Mari Brockman, as Community Property



	Robert Bruckman, Robert Bruckman, M.D., Inc. Profit Sharing Plan



	Robert Bruckman, TTEE Murray A. Bruckman Trust



	Jerome C. Dougherty, Trustee for Jerome Dougherty Attorney at Law Money chase Pension and Profit Sharing Plan Trust



	Chrism Pardee Erdman

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	[Series A Investors cont’d]



	Lois Pat Lee Gintjee, Trustee of the Lois Pat Lee Gintjee Living Trust, dated November 19, 1996


	/s/ David Fineman
	David Fineman, TTEE, The Gunn-Fineman Inc. Profit Sharing and Money Purchase Pension Trust


	/s/ Joyce Hawkins
	Joyce Hawkins, TTEE, Hawkins Family Trust dated March 18, 1991



	Jeffrey A. Hawkins



	Jonathan D. Hawkins


	/s/ Roger W. Hedin, M.D.
	Roger W. Hedin, M.D. and


	/s/ Mary A. Hedin
	Mary A. Hedin, as Community Property



	Bonnie J. Lawless

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	[Series A Investors cont’d]


	/s/ Kathleen Lewis, M.D.
	Kathleen Lewis, M.D. and


	/s/ Julien Hoffman
	Julien Hoffman, as Community Property


	/s/ Kathleen Lewis, M.D.
	San Francisco Neonatology Medical Group Profit Sharing Plan fbo Kathleen Lewis, M.D.



	W. Scott Newhall



	Mark I. Peterson, TTEE, Mark J. Peterson, Inc. Money Purchase Pension Plan


	/s/ Polly Sue Ogden
	Polly Sue Ogden, TTEE, Polly Ogden Associates Keogh Profit Sharing and Money Purchase Pension Plans



	Donald H. Oppenheim


	/s/ Peter Oppenheim
	Peter Oppenheim, TTEE, Oppenheim Family Trust u/t/a dated June 1974

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	[Series A Investors cont’d]

	/s/ Sylvia Oppenheim
	Sylvia Oppenheim, TTEE, Oppenheim Family Trust u/t/a dated June 1974



	Joseph D. Sabella, TTEE, Sabella Family Trust dated May 18, 1987



	Iris Sabella, Sabena Family Trust dated May 18, 1987



	Jack Sender and



	Merideth Sender, as Community Property


	/s/ Alfred D. Oppenheim
	Alfred D. Oppenheim, TTEE, Oppenheim/Slagle Family Trust u/t/a dated August 12, 1991


	/s/ Terri A. Slagle
	Terri A. Slagle, TTEE, Oppenheim/Slagle Family Trust u/t/a dated August 12, 1991

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	[Series A Investors cont’d]


	/s/ Terri A. Slagle
	Terri A. Slagle, San Francisco Neonatology Medical Group Profit Sharing Plan fbo Terri A. Slagle


	/s/ Steven Goldman
	Steven Goldman, San Francisco Neonatology Medical Group Profit Sharing Plan fbo Steven Goldman, M.D.


	/s/ Gerald L. Vercesi
	Gerald L. Vercesi, TTEE, Vercesi Family Trust dated December 15, 1994


	/s/ Donna E. Vercesi
	Donna E. Vercesi, TTEE, Vercesi Family Trust dated December 15, 1994



	James L. Warren and



	Cassandra H. Warren, as Community Property



	Mark Wexman, California Central Trust Bank, TTEE, fbo Mark Wexman, M.D.



	Mark Wexman, M.D. and

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	[Series A Investors cont’d]



	Karen Wexman, M.D., as Community Property


	WS INVESTMENT COMPANY 94A


	By:	/s/ Illegible
	Title:



	Howard B. Zack and



	Diane C. Zack, as Community Property


	/s/ John Ziegler
	John Ziegler

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	“SERIES B INVESTORS”



	Delaware Charter Guarantee & Trust Co., fbo James L. Warren IRA



	Mark Wexman, MD: and



	Karen Wexman, M.D., as Community Property



	Diane C. Zack and



	Howard B. Zack, as Community Property

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	“SERIES B PURCHASERS”


	TAKO VENTURES, LLC a California limited liability company

	By:	Cephalopod Corporation, Member

		By: Philip B. Simon, President

	/s/ Philip B. Simon


	/s/ Donald T. Campbell
	Donald T. Campbell, IRA FBO Donald T. Campbell/DUSC as Custodian/Rollover Account



	Christian Pardee Erdman


	/s/ Steven Goldman
	Steven Goldman, M.D.


	/s/ Peter Oppenheim
	Peter and Sylvia Oppenheim, Trustees Oppenheim Family Trust u/t/a dated June 1974


	/s/ Sylvia Oppenheim
	Peter and Sylvia Oppenheim, Trustees Oppenheim Family Trust u/t/a dated June 1974

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	“SERIES C INVESTORS”


	TAKO VENTURES, LLC a California limited liability company

	By:	Cephalopod Corporation, Member

		By: Philip B. Simon, President

	/s/ Philip B. Simon



	Jeffrey A. Hawkins



	Peter Oppenheim and



	Sylvia Oppenheim, TTEES of the Oppenheim Family Trust dated June 12, 1994



	Diane C. Zack and



	Howard B. Zack, as Community Property



	Joseph Rubinfeld



	John V. Roos

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	[Series C Investors cont’d]



	WS INVESTMENT COMPANY 96B

	By:	/s/ Illegible
	Title:


	SUPERGEN, INC., a California corporation



	Joseph Rubinfeld, President

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	“SERIES D INVESTOR”


	TAKO VENTURES, LLC a California limited liability company

	By:	Cephalopod Corporation, Member

		By: Philip B. Simon, President

	/s/ Philip B. Simon

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	“SERIES E INVESTORS”


	TAKO VENTURES, LLC a California limited liability company

	By:	Cephalopod Corporation, Member

		By: Philip B. Simon, President

	/s/ Philip B. Simon



	Robert M. Lawless, TTEE, The Trust of Robert M. and Bernadine T. Lawless


	/s/ Gerald L. Vercesi
	Gerald L. Vercesi, TTEE, Vercesi Family Trust dated December 15, 1994


	/s/ Donna E. Vercesi
	Donna E. Vercesi, TTEE, Vercesi Family Trust dated December 15, 1994



	James L. Warren and



	Cassandra H. Warren, as Community Property



	Delaware Charter Guarantee & Trust Co., fbo James L. Warren IRA

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	[Series E Investors cont’d]



	CNA TRUST, TTEE FBO Mark Wexman, M.D.

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	“SERIES F INVESTORS”


	TAISHO PHARMACEUTICAL CO., LTD.


	/s/ Akira Uehara
	Akira Uehara President


	ASTELLAS PHARMA INC.


	/s/ Hirofaini Onosaka
	Hirofaini Onosaka Senior Corporate Officer Senior Vice President, Corporate Strategy


	MITSUBISHI PHARMA CORPORATION


	/s/ Takeshi Komine
	Name:		Takeshi Komine
	Title:		President


	SANKYO CO., LTD.


	Name:
	Title:

	/s/ Doug H. Harlan
	Doug H. Harlan

	/s/ Hugh P. Harlan
	Hugh P. Harlan

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	“SERIES G INVESTORS”


	TRANS-SCIENCE GLOBAL BIO- TECHNOLOGY FUND

	By:	SBI Asset Management Co., Ltd. Its Truster


	/s/ Kazuyuki Matsui
	Name: Kazuyuki Matsui
	Title: President


	TS-US NO.1 INVESTMENT PARTNERSHIP

By:

Trans-Science, Inc.
Its General Partner


	/s/ Kiyoshi Inoue
	Name: Kiyoshi Inoue
	Title: CEO & President


	ASUKA DBJ INVESTMENT LPS

	By:	Asuka DBJ Partners Co., Ltd. Its General Partner


	/s/ Toru Mio
	Name: Toru Mio
	Title: Representative Director

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]

	MUFG VENTURE CAPITAL I, LIMITED PARTNERSHIP

	By:	The Mitsubishi UFJ Capital Company Limited, its General Partner


	/s/ Kazuhiko Tokita
	Name: Kazuhiko Tokita
	Title: President


	ORIX FUND NO. 9

	By:	Orix Capital Corporation


	/s/ Akira Hirose
	Name: Akira Hirose
	Title: President


	CONCORDIA INVESTMENT, L.P.

	/s/ Hirotoshi Komoda
	Name: Hirotoshi Komoda
	Title:	CEO& President, Birdhill, Its General Partner

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]


	TRANS-SCIENCE NO.3 INVESTMENT LIMITED PARTNERSHIP

	By:	Trans-Science, Inc. Its General Partner


	/s/ Kiyoshi Inoue
	Name: Kiyoshi Inoue
	Title: CEO & President


	TOKIO MARINE & NICHIDO FIRE INSURANCE CO., LTD.

	New Financial Markets Dep


	/s/ Takashi Yoshikawa
	Name: Takashi Yoshikawa
	Title: General Manager

	ZENSHIN CAPITAL FUND 1F PARTNERSHIP

	By:	Zenshin Capital Partners, LLC Its General Partner


	/s/ Takeshi Mori
	Name: Takeshi Mori
	Title: Managing Member

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THIRD AMENDED

AND RESTATED INVESTORS RIGHTS AGREEMENT]