<SUBMISSION>
<ACCESSION-NUMBER>0000912057-01-519763
<TYPE>8-K
<PUBLIC-DOCUMENT-COUNT>6
<PERIOD>20010605
<ITEMS>5
<ITEMS>7
<FILING-DATE>20010613
<FILER>
<COMPANY-DATA>
<CONFORMED-NAME>AEROGEN INC
<CIK>0001039160
<ASSIGNED-SIC>3841
<IRS-NUMBER>330488580
<STATE-OF-INCORPORATION>DE
<FISCAL-YEAR-END>1231
</COMPANY-DATA>
<FILING-VALUES>
<FORM-TYPE>8-K
<ACT>34
<FILE-NUMBER>000-31913
<FILM-NUMBER>1660203
</FILING-VALUES>
<BUSINESS-ADDRESS>
<STREET1>1310 CORONADO DR
<CITY>SANTA CLARA
<STATE>CA
<ZIP>95054
<PHONE>4085432400
</BUSINESS-ADDRESS>
<MAIL-ADDRESS>
<STREET1>1310 ORLEANS DRIVE
<CITY>SUNNYVALE
<STATE>CA
<ZIP>94089
</MAIL-ADDRESS>
</FILER>
<DOCUMENT>
<TYPE>8-K
<SEQUENCE>1
<FILENAME>a2051342z8-k.htm
<DESCRIPTION>8-K
<TEXT>

<HTML>
<HEAD>
<TITLE> Prepared by MERRILL CORPORATION
</TITLE>
</HEAD>
<BODY BGCOLOR="#FFFFFF" LINK=BLUE  VLINK=PURPLE>
<BR>
<FONT SIZE=3 ><A HREF="#01PAL1929_1">QuickLinks</A></FONT>
<font size=3> -- Click here to rapidly navigate through this document</font>
<HR NOSHADE>
<HR NOSHADE>
<P ALIGN="CENTER"><FONT SIZE=5><B>SECURITIES AND EXCHANGE COMMISSION<BR>  </B></FONT><FONT SIZE=2><B>Washington, D.C. 20549  </B></FONT></P>

<HR NOSHADE ALIGN="CENTER" WIDTH="120">
<P ALIGN="CENTER"><FONT SIZE=5><B>FORM 8-K  </B></FONT></P>

<HR NOSHADE ALIGN="CENTER" WIDTH="120">
<P ALIGN="CENTER"><FONT SIZE=5><B> RELATING TO ADOPTION OF A RIGHTS PLAN  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B>Pursuant to Section&nbsp;13 or 15(d) of the<BR>
Securities Exchange Act of 1934  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>Date of Report (Date of earliest event reported): June&nbsp;5, 2001 </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=5><B>AEROGEN,&nbsp;INC.<BR>  </B></FONT><FONT SIZE=2>(Exact name of registrant as specified in its charter) </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B>Delaware<BR>  </B></FONT><FONT SIZE=2>(State or other jurisdiction of incorporation) </FONT></P>

<!-- User-specified TAGGED TABLE -->
<DIV ALIGN="CENTER"><TABLE WIDTH="72%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="49%" ALIGN="CENTER"><FONT SIZE=2><B>0-31913</B></FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="49%" ALIGN="CENTER"><FONT SIZE=2><B>33-0488580</B></FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="49%" ALIGN="CENTER"><FONT SIZE=2>(Commission File No.)</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="49%" ALIGN="CENTER"><FONT SIZE=2>(IRS Employer Identification No.)</FONT></TD>
</TR>
</TABLE></DIV>
<!-- end of user-specified TAGGED TABLE -->
<P ALIGN="CENTER"><FONT SIZE=2><B>1310 Orleans Drive<BR>
Sunnyvale, CA 94089<BR>  </B></FONT><FONT SIZE=2>(Address of principal executive offices and zip code) </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>Registrant's
telephone number, including area code: </FONT><FONT SIZE=2><B>(408)&nbsp;543-2400  </B></FONT></P>

<HR NOSHADE>
<HR NOSHADE>
<HR NOSHADE>
<!-- ZEQ.=1,SEQ=1,EFW="2051342",CP="AEROGEN, INC.",DN="1",CHK=827645,FOLIO='blank',FILE='DISK012:[01PAL9.01PAL1929]BA1929A.;6',USER='MWORTHY',CD='12-JUN-2001;16:39' -->
<!-- Generated by Merrill Corporation (www.merrillcorp.com) -->

<P><FONT SIZE=2><A
NAME="page_de1929_1_1"> </A> </FONT> <FONT SIZE=2><B>Item 5. Other Events.  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;On June&nbsp;5, 2001 the Board of Directors of </FONT><FONT SIZE=2><B>AEROGEN,&nbsp;INC.</B></FONT><FONT SIZE=2> (the "Company") approved the adoption of
a Stockholder Rights Plan (the "Plan"). Terms of the Plan provide for a dividend distribution of one preferred share purchase right (a "Right") for each outstanding share of common stock, par value
$0.001 per share (the "Common Shares"), of the Company. The dividend is payable on June&nbsp;26, 2001 (the "Record Date") to the stockholders of record on that date. Each Right entitles the
registered holder to purchase from the Company one one-hundredth of a share of Series&nbsp;A Junior Participating Preferred Stock, par value $0.001 per share (the "Preferred Shares"), at
a price of $60.00 per one one-hundredth of a Preferred Share (the "Purchase Price"), subject to adjustment. Each one one-hundredth of a Preferred Share has designations and
powers, preferences and rights, and the qualifications, limitations and restrictions which make its value approximately equal to the value of a Common Share. The description and terms of the Rights
are set forth in a Rights Agreement (the "Rights Agreement"), dated as of June&nbsp;5, 2001, between the Company and </FONT><FONT SIZE=2><B>MELLON INVESTOR SERVICES LLC</B></FONT><FONT SIZE=2>, as
rights agent (the "Rights Agent"). </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Initially,
the Rights will be evidenced by the stock certificates representing the Common Shares then outstanding, and no separate Right Certificates, as defined, will be distributed.
Until the earlier to occur of (i)&nbsp;the date of a public announcement that a person, entity or group of affiliated or associated persons have acquired beneficial ownership of 15% or more of the
outstanding Common Shares (an "Acquiring Person") or (ii)&nbsp;10 business days (or such later date as may be determined by action of the Board of Directors prior to such time as any person or
entity becomes an Acquiring Person) following the commencement of, or announcement of an intention to commence, a tender offer or exchange offer the consummation of which would result in any person or
entity becoming an Acquiring Person (the earlier of such dates being called the "Distribution Date"), the Rights will be evidenced, with respect to any of the Common Share certificates outstanding as
of the Record Date, by such Common Share certificate with or without a copy of the Summary of Rights, which is included in the Rights Agreement as Exhibit&nbsp;C thereof (the "Summary of Rights"). </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Until
the Distribution Date, the Rights will be transferable with and only with the Common Shares. Until the Distribution Date (or earlier redemption or expiration of the Rights), new
Common Share certificates issued after the Record Date, upon transfer or new issuance of Common Shares, will contain a notation incorporating the Rights Agreement by reference. Until the Distribution
Date (or earlier redemption or expiration of the Rights), the surrender or transfer of any certificates for Common Shares outstanding as of the Record Date, even without such notation or a copy of the
Summary of Rights being attached thereto, will also constitute the transfer of the Rights associated with the Common Shares represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Right Certificates") will be mailed to holders of record of the Common Shares as of the close of business on the Distribution Date and
such separate Right Certificates alone will evidence the Rights. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
Rights are not exercisable until the Distribution Date. The Rights will expire on June&nbsp;26, 2011 (the "Final Expiration Date"), unless the Rights are earlier redeemed or
exchanged by the Company, in each case, as described below. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
Purchase Price payable, and the number of Preferred Shares or other securities or other property issuable, upon exercise of the Rights are subject to adjustment from time to time
to prevent dilution (i)&nbsp;in the event of a stock dividend on, or a subdivision, combination or reclassification of, the Preferred Shares, (ii)&nbsp;upon the grant to holders of the Preferred
Shares of certain rights or warrants to subscribe for or purchase Preferred Shares at a price, or securities convertible into Preferred Shares with a conversion price, less than the then current
market price of the Preferred Shares or (iii)&nbsp;upon the distribution to holders of the Preferred Shares of evidences of indebtedness or assets (excluding regular periodic cash dividends paid out
of earnings or retained earnings or dividends payable in </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>1</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=1,SEQ=2,EFW="2051342",CP="AEROGEN, INC.",DN="1",CHK=150045,FOLIO='1',FILE='DISK012:[01PAL9.01PAL1929]DE1929A.;5',USER='MWORTHY',CD='12-JUN-2001;16:39' -->
<A NAME="page_de1929_1_2"> </A>

<P><FONT SIZE=2>
Preferred Shares) or of subscription rights or warrants (other than those referred to above). The exercise of Rights for Preferred Shares is at all times subject to the availability of a sufficient
number of authorized but unissued Preferred Shares. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
number of outstanding Rights and the number of one one-hundredths of a Preferred Share issuable upon exercise of each Right are also subject to adjustment in the event
of a stock split of the Common Shares or a stock dividend on the Common Shares payable in Common Shares or subdivisions, consolidation or combinations of the Common Shares occurring, in any case,
prior to the Distribution Date. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Preferred
Shares purchasable upon exercise of the Rights will not be redeemable. Each Preferred Share will be entitled to a minimum preferential quarterly dividend payment of $1.00
but will be entitled to an aggregate dividend of 100 times the dividend declared per Common Share. In the event of liquidation, the holders of the Preferred Shares would be entitled to a minimum
preferential liquidation payment of $100 per share, but would be entitled to receive an aggregate payment equal to 100 times the payment made per Common Share. Each Preferred Share will have 100
votes, voting together with the Common Shares. Finally, in the event of any merger, consolidation or other transaction in which Common Shares are exchanged, each Preferred Share will be entitled to
receive 100 times the amount of consideration received per Common Share. These rights are protected by customary anti-dilution provisions. Because of the nature of the Preferred Shares'
dividend and liquidation rights, the value of one one-hundredth of a Preferred Share should approximate the value of one Common Share. The Preferred Shares would rank junior to any other
series of the Company's preferred stock. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;In
the event that any person or group of affiliated or associated persons becomes an Acquiring Person, proper provision shall be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person and its associates and affiliates (which will thereafter be void), will for a 60-day
period have the right to receive upon exercise that number of Common Shares having a market value of two times the exercise price of the Right (or, if such number of shares is not and cannot be
authorized, the Company may issue Preferred Shares, cash, debt, stock or a combination thereof in exchange for the Rights). This right will terminate 60&nbsp;days after the date on which the Rights
become nonredeemable (as described below), unless there is an injunction or similar obstacle to exercise of the Rights, in which event this right will terminate 60&nbsp;days after the date on which
the Rights again become exercisable. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Generally,
under the Plan, an "Acquiring Person" shall not be deemed to include (i)&nbsp;the Company, (ii)&nbsp;a subsidiary of the Company, (iii)&nbsp;any employee benefit or
compensation plan of the Company, or (iv)&nbsp;any entity holding Common Shares for or pursuant to the terms of any such employee benefit or compensation plan. In addition, except under limited
circumstances, no person or entity shall become an Acquiring Person as the result of the acquisition of Common Shares by the Company which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such person or entity to 15% or more of the Common Shares then outstanding. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;In
the event that the Company is acquired in a merger or other business combination transaction or 50% or more of its consolidated assets or earning power are sold to an Acquiring
Person, its associates or affiliates or certain other persons in which such persons have an interest, proper provision will be made so that each holder of a Right will thereafter have the right to
receive, upon the exercise thereof at the then current exercise price of the Right, that number of shares of common stock of the acquiring company which at the time of such transaction will have a
market value of two times the exercise price of the Right. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;At
any time after an Acquiring Person becomes an Acquiring Person and prior to the acquisition by such Acquiring Person of 50% or more of the outstanding Common Shares, the Board of
Directors of the Company may exchange the Rights (other than Rights owned by such person or group which </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>2</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=2,SEQ=3,EFW="2051342",CP="AEROGEN, INC.",DN="1",CHK=924284,FOLIO='2',FILE='DISK012:[01PAL9.01PAL1929]DE1929A.;5',USER='MWORTHY',CD='12-JUN-2001;16:39' -->
<A NAME="page_de1929_1_3"> </A>

<P><FONT SIZE=2>
have become void), in whole or in part, at an exchange ratio of one Common Share per Right (or, at the election of the Company, the Company may issue cash, debt, stock or a combination thereof in
exchange for the Rights), subject to adjustment. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;With
certain exceptions, no adjustment in the Purchase Price will be required until cumulative adjustments require an adjustment of at least 1% in such Purchase Price. No fractional
Preferred Shares will be issued (other than fractions which are integral multiples of the number of one one-hundredths of a Preferred Share issuable upon the exercise of one Right, which
may, at the election of the Company, be evidenced by depositary receipts), and in lieu thereof, an adjustment in cash will be made based on the market price of the Preferred Shares on the last trading
day prior to the date of exercise. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;At
any time prior to the earliest of (i)&nbsp;the day any person becomes an Acquiring Person or (ii)&nbsp;the Final Expiration Date, the Board of Directors of the Company may
redeem the Rights in whole, but not in part, at a price of $0.001 per Right (the "Redemption Price"). Following the expiration of the above periods, the Rights become nonredeemable. Immediately upon
any redemption of the Rights, the right to exercise the Rights will terminate and the only right of the holders of Rights will be to receive the Redemption Price. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
terms of the Rights may be amended by the Board of Directors of the Company without the consent of the holders of the Rights, except that from and after the Distribution Date no
such amendment may adversely affect the interest of the holders of the Rights excluding the interests of an Acquiring Person. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Until
a Right is exercised, the holder thereof, as such, will have no rights as a stockholder of the Company, including, without limitation, the right to vote or to receive dividends. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
Rights have certain anti-takeover effects. The Rights will cause substantial dilution to a person or group that attempts to acquire the Company on terms not approved
by the Company's Board of Directors. The Rights should not interfere with any merger or other business combination approved by the Board of Directors since the Rights may be amended to permit such
acquisition or redeemed by the Company prior to the earliest of (i)&nbsp;the time that a person or group has acquired beneficial ownership of 15% or more of the Common Shares or (ii)&nbsp;the
final expiration date of the rights. </FONT></P>

<P><FONT SIZE=2><B>Item 7. Exhibits.  </B></FONT></P>

<!-- User-specified TAGGED TABLE -->
<DIV ALIGN="CENTER"><TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>4.1</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="91%"><FONT SIZE=2>Registrant's Certificate of Incorporation (including Certificate of Designation of Series A Junior Participating Preferred Stock.)</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2><BR>
99.1</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="91%"><FONT SIZE=2><BR>
Press Release, dated as of June 6, 2001 entitled "AeroGen, Inc. Adopts Stockholder Rights Plan."</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2><BR>
99.2</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="91%"><FONT SIZE=2><BR>
Rights Agreement dated as of June 5, 2001, among AeroGen, Inc. and Mellon Investor Services LLC, as Rights Agent.</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2><BR>
99.3</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="91%"><FONT SIZE=2><BR>
Form of Rights Certificate.</FONT></TD>
</TR>
</TABLE></DIV>
<!-- end of user-specified TAGGED TABLE -->

<P ALIGN="CENTER"><FONT SIZE=2>3</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=3,SEQ=4,EFW="2051342",CP="AEROGEN, INC.",DN="1",CHK=499063,FOLIO='3',FILE='DISK012:[01PAL9.01PAL1929]DE1929A.;5',USER='MWORTHY',CD='12-JUN-2001;16:39' -->
<!-- Generated by Merrill Corporation (www.merrillcorp.com) -->
<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="page_jc1929_1_4"> </A> </FONT></P>

<!-- TOC_END -->
<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="jc1929_signature"> </A>
<A NAME="toc_jc1929_1"> </A>
<BR></FONT><FONT SIZE=2><B>SIGNATURE    <BR>  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized. </FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="47%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD COLSPAN=2><FONT SIZE=2><B>AEROGEN, INC.</B></FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="47%"><BR><FONT SIZE=2>Dated: June&nbsp;13, 2001</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD COLSPAN=2><FONT SIZE=2><BR>
/s/&nbsp;</FONT><FONT SIZE=2>CAROL A. GAMBLE</FONT><FONT SIZE=2>&nbsp;&nbsp;&nbsp;</FONT><HR NOSHADE><FONT SIZE=2> Carol A. Gamble<BR>
Vice President, General Counsel and Secretary</FONT></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<P ALIGN="CENTER"><FONT SIZE=2>4</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=1,SEQ=5,EFW="2051342",CP="AEROGEN, INC.",DN="1",CHK=6344,FOLIO='4',FILE='DISK012:[01PAL9.01PAL1929]JC1929A.;9',USER='MWORTHY',CD='12-JUN-2001;16:39' -->
<!-- Generated by Merrill Corporation (www.merrillcorp.com) -->
<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="page_ka1929_1_5"> </A> </FONT></P>

<!-- TOC_END -->
<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="ka1929_index_to_exhibits"> </A>
<A NAME="toc_ka1929_1"> </A>
<BR></FONT><FONT SIZE=2><B>INDEX TO EXHIBITS    <BR>  </B></FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="78%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>4.1</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="92%"><FONT SIZE=2>Registrant's Certificate of Incorporation (including Certificate of Designation of Series A Junior Participating Preferred Stock.)</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>99.1</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="92%"><FONT SIZE=2>Press Release, dated as of June 6, 2001 entitled "AeroGen, Inc. Adopts Stockholder Rights Plan."</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>99.2</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="92%"><FONT SIZE=2>Rights Agreement dated as of June 5, 2001 among AeroGen, Inc. and Mellon Investor Services LLC, as Rights Agent.</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="6%" ALIGN="RIGHT"><FONT SIZE=2>99.3</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="92%"><FONT SIZE=2>Form of Rights Certificate.</FONT></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<P ALIGN="CENTER"><FONT SIZE=2>5</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=1,SEQ=6,EFW="2051342",CP="AEROGEN, INC.",DN="1",CHK=247933,FOLIO='5',FILE='DISK012:[01PAL9.01PAL1929]KA1929A.;6',USER='MWORTHY',CD='12-JUN-2001;16:39' -->
<!-- Generated by Merrill Corporation (www.merrillcorp.com) -->
<BR>
<P><br><A NAME="01PAL1929_1">QuickLinks</A><br></P><!-- TOC_BEGIN -->
<FONT SIZE=2><A HREF="#toc_jc1929_1">SIGNATURE</A></FONT><BR>
<!-- TOC_BEGIN -->
<FONT SIZE=2><A HREF="#toc_ka1929_1">INDEX TO EXHIBITS</A></FONT><BR>
<!-- SEQ=,FILE='QUICKLINK',USER=MWORTHY,SEQ=,EFW="2051342",CP="AEROGEN, INC.",DN="1" -->
<!-- TOCEXISTFLAG -->
</BODY>
</HTML>
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.1
<SEQUENCE>2
<FILENAME>a2051342zex-4_1.htm
<DESCRIPTION>EX-4.1
<TEXT>

<HTML>
<HEAD>
<TITLE> Prepared by MERRILL CORPORATION
</TITLE>
</HEAD>
<BODY BGCOLOR="#FFFFFF" LINK=BLUE  VLINK=PURPLE>
<BR>
<P ALIGN="RIGHT"><FONT SIZE=2><A
NAME="page_kc1929_1_1"> </A> </FONT> <FONT SIZE=2><B>Exhibit 4.1  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B> AMENDED AND RESTATED<BR>
CERTIFICATE OF INCORPORATION<BR>
OF<BR>
AEROGEN,&nbsp;INC.  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>AEROGEN,&nbsp;INC.,</B></FONT><FONT SIZE=2> a corporation organized and existing under the laws of the state of Delaware (the
"Corporation") hereby certifies that: </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;1.&nbsp;&nbsp;The
name of the Corporation is AeroGen,&nbsp;Inc. The name under which this corporation was originally incorporated is AeroGen (Delaware),&nbsp;Inc. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;2.&nbsp;&nbsp;The
date of filing of the Corporation's original Certificate of Incorporation was March&nbsp;12, 1998. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;3.&nbsp;&nbsp;The
Amended and Restated Certificate of Incorporation of the Corporation as provided in Exhibit&nbsp;A hereto was duly adopted in accordance with the provisions
of Section&nbsp;242 and Section&nbsp;245 of the General Corporation Law of the State of Delaware by the Board of Directors of the Corporation. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;4.&nbsp;&nbsp;Pursuant
to Section&nbsp;245 of the Delaware General Corporation Law, approval of the stockholders of the Corporation has been obtained. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;5.&nbsp;&nbsp;The
Amended and Restated Certificate of Incorporation so adopted reads in full as set forth in Exhibit&nbsp;A attached hereto and is hereby incorporated by
reference. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>IN WITNESS WHEREOF,</B></FONT><FONT SIZE=2> the undersigned has signed this certificate this 15th day of November, 2000, and hereby affirms and acknowledges
under penalty of perjury that the filing of this Amended and Restated Certificate of Incorporation is the act and deed of AeroGen,&nbsp;Inc. </FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="76%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="47%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD COLSPAN=2><FONT SIZE=2><B>AEROGEN,&nbsp;INC.</B></FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="47%"><FONT SIZE=2><BR>
&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="4%"><FONT SIZE=2><BR>
By</FONT></TD>
<TD WIDTH="46%"><FONT SIZE=2><BR>
/s/ Jane E. Shaw</FONT><HR NOSHADE><FONT SIZE=2> Jane E. Shaw<BR>
Chief Executive Officer</FONT></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<P ALIGN="CENTER"><FONT SIZE=2>1</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=1,SEQ=1,EFW="2051342",CP="AEROGEN, INC.",DN="2",CHK=965284,FOLIO='1',FILE='DISK012:[01PAL9.01PAL1929]KC1929A.;8',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<A NAME="page_kc1929_1_2"> </A>
<P ALIGN="RIGHT"><FONT SIZE=2><B>EXHIBIT&nbsp;A  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B> AMENDED AND RESTATED CERTIFICATE OF INCORPORATION<BR>
OF AEROGEN,&nbsp;INC.<BR>
a Delaware corporation  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B>ARTICLE I.  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The name of the corporation is </FONT><FONT SIZE=2><B>AEROGEN,&nbsp;INC.</B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B>ARTICLE II.  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The address of the corporation's registered office in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B>ARTICLE III.  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of
Delaware ("DGCL"). </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B>ARTICLE IV.  </B></FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;A. Classes of Stock.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;This corporation is authorized to issue two classes of stock to be designated, respectively,
"Common Stock" and "Preferred Stock." The total number of shares which the corporation is authorized to issue One Hundred Million (100,000,000), of which Ninety Five Million (95,000,000) shares shall
be Common Stock, par value $0.001 per share, and Five Million (5,000,000) shares shall be Preferred Stock, par value $0.001 per share. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;B. Rights, Preferences and Restrictions of Preferred Stock.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The Preferred Stock may be issued from time to time in one
or more series. The Board of Directors is hereby authorized, by filing a certificate (a "Preferred Stock Designation") pursuant to DGCL, to fix or alter from time to time the designation, powers,
preferences and rights (voting or otherwise) granted upon, and the qualifications, limitations or restrictions of, any wholly unissued series of Preferred Stock, and to establish from time to time the
number of shares constituting any such series or any of them; and to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the
number of shares of such series then outstanding. In case the number of shares of any series shall be decreased in accordance with the foregoing sentence, the shares constituting such decrease shall
resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B>ARTICLE V.  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation and regulation of the powers of
the corporation, of its directors and of its stockholders or any class thereof, as the case may be, it is further provided that: </FONT></P>


<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;A. Management of Business.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The management of the business and the conduct of the affairs of the corporation shall be
vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed exclusively by one or more resolutions adopted by the Board of Directors. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>2</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=2,SEQ=2,EFW="2051342",CP="AEROGEN, INC.",DN="2",CHK=316588,FOLIO='2',FILE='DISK012:[01PAL9.01PAL1929]KC1929A.;8',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<A NAME="page_kc1929_1_3"> </A>


<P><FONT SIZE=2>
&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>B. Board of Directors.  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>1.</B></FONT><FONT SIZE=2> Subject to the rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, the directors shall be divided into three classes designated as Class&nbsp;I, Class&nbsp;II and Class&nbsp;III, respectively. Directors shall be assigned
to each class in accordance with a resolution or resolutions adopted by the Board of Directors. At the first annual meeting of stockholders following the closing of the initial public offering
pursuant to an effective registration statement under the Securities Act of 1933, as amended, covering the offer and sale of Common Stock to the public (the "Initial Public Offering"), the term of
office of the Class&nbsp;I directors shall expire and Class&nbsp;I directors shall be elected for a full term of three years. At the second annual meeting of stockholders following the Initial
Public Offering, the term of office of the Class&nbsp;II directors shall expire and Class&nbsp;II directors shall be elected for a full term of three years. At the third annual meeting of
stockholders following the Initial Public Offering, the term of office of the Class&nbsp;III directors shall expire and Class&nbsp;III directors shall be elected for a full term of three years. At
each succeeding annual meeting of stockholders, directors shall be elected for a full term of three years to succeed the directors of the class whose terms expire at such annual meeting. During such
time or times that the corporation is subject to Section&nbsp;2115(b) of the California General Corporation Law ("CGCL"), this Section&nbsp;B.1. of this Article&nbsp;V shall
become effective and be applicable only when the corporation is a "listed" corporation within the meaning of Section&nbsp;301.5 of the CGCL. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>2.</B></FONT><FONT SIZE=2> In the event that the corporation is subject to Section&nbsp;2115(b) of the CGCL AND is not a "listed"
corporation or ceases to be a "listed" corporation under Section&nbsp;301.5 of the CGCL, Section&nbsp;B.1. of this Article&nbsp;V shall not apply and all directors shall be shall be elected at
each annual meeting of stockholders to hold office until the next annual meeting. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>3.</B></FONT><FONT SIZE=2> No person entitled to vote at an election for directors may cumulate votes to which such person is entitled,
unless, at the time of such election, the corporation is subject to Section&nbsp;2115(b) of the CGCL AND is not a "listed" corporation or ceases to be a "listed" corporation under
Section&nbsp;301.5 of the CGCL. During this time, every stockholder entitled to vote at an election for directors may cumulate such stockholder's votes and give one candidate a number of votes equal
to the number of directors to be elected multiplied by the number of votes to which such stockholder's shares are otherwise entitled, or distribute the stockholder's votes on the same principle among
as many candidates as such stockholder thinks fit. No stockholder, however, shall be entitled to so cumulate such stockholder's votes unless (i)&nbsp;the names of such candidate or candidates have
been placed in nomination prior to the voting and (ii)&nbsp;the stockholder has given notice at the meeting, prior to the voting, of such stockholder's intention to cumulate such stockholder's
votes. If any stockholder has given proper notice to cumulate votes, all stockholders may cumulate their votes for any candidates who have been properly placed in nomination. Under cumulative voting,
the candidates receiving the highest number of votes, up to the number of directors to be elected, are elected. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Notwithstanding
the foregoing provisions of this section, each director shall serve until his successor is duly elected and qualified or until his death, resignation or removal. No
decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>C. Removal of Directors.  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>1.</B></FONT><FONT SIZE=2> During such time or times that the corporation is subject to Section&nbsp;2115(b) of the
CGCL, the Board of Directors or any individual director may be removed from office at any time without cause by the affirmative vote of the holders of at least a majority of the outstanding shares
entitled to vote on such removal; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that unless the entire Board is removed, no individual director may be removed when the votes cast
against such director's removal, or not consenting in writing to such removal, would be sufficient to elect that director if voted cumulatively at an election in which the same total number of votes
were cast (or, if such action is taken by written consent, all shares entitled </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>3</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=3,SEQ=3,EFW="2051342",CP="AEROGEN, INC.",DN="2",CHK=672146,FOLIO='3',FILE='DISK012:[01PAL9.01PAL1929]KC1929A.;8',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<A NAME="page_kc1929_1_4"> </A>

<P><FONT SIZE=2>
to vote were voted) and the entire number of directors authorized at the time of such director's most recent election were then being elected. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>2.</B></FONT><FONT SIZE=2> At any time or times that the corporation is not subject to Section&nbsp;2115(b) of the CGCL and subject to any
limitations imposed by law, Section&nbsp;C.1. above shall no longer apply and removal shall be as provided in Section&nbsp;141(k) of the DGCL. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>D. Vacancies.  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>1.</B></FONT><FONT SIZE=2> Subject to the rights of the holders of any series of Preferred Stock, any vacancies on the
Board of Directors resulting from death, resignation, disqualification, removal or other causes and any newly created directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by the stockholders, except as otherwise provided by law, be filled only
by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board of Directors, and not by the stockholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director's successor shall have been elected
and qualified. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>2.</B></FONT><FONT SIZE=2> If at the time of filling any vacancy or any newly created directorship, the directors then in office shall
constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Delaware Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent (10%) of the total number of the shares at the time outstanding having the
right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in offices
as aforesaid, which election shall be governed by Section&nbsp;211 of the DGCL. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>3.</B></FONT><FONT SIZE=2> At any time or times that the corporation is subject to Section&nbsp;2115(b) of the CGCL, if, after the filling
of any vacancy by the directors then in office who have been elected by stockholders shall constitute less than a majority of the directors then in office, then: </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(a)</B></FONT><FONT SIZE=2> Any holder or holders of an aggregate of five percent (5%) or more of the total number of shares at the time
outstanding having the right to vote for those directors may call a special meeting of stockholders; or </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(b)</B></FONT><FONT SIZE=2> The Superior Court of the proper county shall, upon application of such stockholder or stockholders, summarily
order a special meeting of stockholders, to be held to elect the entire board, all in accordance with Section&nbsp;305(c) of the CGCL. The term of office of any director shall terminate upon that
election of a successor. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;E. Bylaw Amendments.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Subject to paragraph&nbsp;(h) of Section&nbsp;43 of the Bylaws, the Bylaws may be altered or
amended or new Bylaws adopted by the affirmative vote of at least sixty-six and two-thirds percent (66<SUP>2</SUP>/<SMALL>3</SMALL>%) of the voting power of all of the
then-outstanding shares of the voting stock of the corporation entitled to vote. The Board of Directors shall also have the power to adopt, amend, or repeal Bylaws. </FONT></P>


<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;F. Ballots.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The directors of the corporation need not be elected by written ballot unless the Bylaws so provide. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;G. Action By Stockholders.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;No action shall be taken by the stockholders of the corporation except at an annual or
special meeting of stockholders called in accordance with the Bylaws; no action shall be taken by the stockholders by written consent. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;H. Advance Notice.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Advance notice of stockholder nominations for the election of directors and of business to be
brought by stockholders before any meeting of the stockholders of the corporation shall be given in the manner provided in the Bylaws of the corporation. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>4</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=4,SEQ=4,EFW="2051342",CP="AEROGEN, INC.",DN="2",CHK=93304,FOLIO='4',FILE='DISK012:[01PAL9.01PAL1929]KC1929A.;8',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<A NAME="page_kc1929_1_5"> </A>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;I. Special Meetings of Stockholders.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Special meetings of the stockholders may be called only by the Chairman of the
Board, the Chief Executive Officer, or a majority of the members of the Board of Directors. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B>ARTICLE VI.  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>A. No Personal Liability.</B></FONT><FONT SIZE=2> A director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1)&nbsp;for any breach of the director's duty of loyalty to the corporation and its
stockholders; (2)&nbsp;for acts or omissions not in good faith or which involve intentional misconduct or knowing violations of law; (3)&nbsp;under section&nbsp;174 of the Delaware General
Corporation law, or (4)&nbsp;for any transaction from which the director derived an improper personal benefit. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;B. Indemnification.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Each person who is or is made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as
provided in the second paragraph hereof, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof), was authorized by the Board of Directors of the corporation. The right to indemnification conferred in this section shall be a contract right and shall include the right
to be paid by the corporation for any expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires,
the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under
this section or otherwise. The corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing
indemnification of directors and officers. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;If
a claim under the first paragraph of this section is not paid in full by the corporation within thirty (30)&nbsp;days after a written claim has been received by the corporation,
the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid
also the expense of prosecuting such claim. It shall be a defense in any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has been tendered to the corporation) that the claimant has not met the </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>5</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=5,SEQ=5,EFW="2051342",CP="AEROGEN, INC.",DN="2",CHK=472108,FOLIO='5',FILE='DISK012:[01PAL9.01PAL1929]KC1929A.;8',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<A NAME="page_kc1929_1_6"> </A>

<P><FONT SIZE=2>
standards of conduct which make it permissible under the Delaware General Corporation Law for the corporation to indemnity the claimant for the amount claimed, but the burden of proving such defense
shall be on the corporation. Neither the failure of the corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this section shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;C. Insurance.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The corporation may maintain insurance, at its expense, to protect itself and any director, officer,
employee or agent of the corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;D. Repeal and Modification.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Any repeal or modification of the foregoing provisions of this Article&nbsp;6 shall not
adversely affect any right or protection of a director, officer, employee or agent of the corporation existing at the time of such repeal or modification. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;E. Vote Required to Amend or Repeal.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The amendment or repeal of this Article&nbsp;6 shall require the approval of the
holders of shares representing at least sixty six and two-thirds percent (66<SUP>2</SUP>/<SMALL>3</SMALL>%) of the shares of the corporation entitled to vote in the election of directors, voting as
one class. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B>ARTICLE VII.  </B></FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;A.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, except as provided in paragraph&nbsp;B of this Article&nbsp;VII, and all rights conferred upon the stockholders herein are
granted subject to this reservation. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;B.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Notwithstanding any other provisions of this Certificate of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the voting stock required by law, this Certificate of
Incorporation or any Preferred Stock Designation, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66<SUP>2</SUP>/<SMALL>3</SMALL>%) of the voting power
of all of the then-outstanding shares of the voting stock, voting together as a single class, shall be required to alter, amend or repeal Articles V, VI and VII. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>6</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=6,SEQ=6,EFW="2051342",CP="AEROGEN, INC.",DN="2",CHK=976279,FOLIO='6',FILE='DISK012:[01PAL9.01PAL1929]KC1929A.;8',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<!-- Generated by Merrill Corporation (www.merrillcorp.com) -->
<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="page_ke1929_1_1"> </A> </FONT> <FONT SIZE=2><B>CERTIFICATE OF DESIGNATION  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B> OF  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B> SERIES A JUNIOR PARTICIPATING PREFERRED STOCK  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B> (Pursuant to Section&nbsp;151 of the<BR>
Delaware General Corporation Law)  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>AEROGEN,&nbsp;INC.,</B></FONT><FONT SIZE=2> a corporation organized and existing under the General Corporation Law of the State of
Delaware (hereinafter called the "Company"), hereby certifies that the following resolution was adopted by the Board of Directors of the Company as required by Section&nbsp;151 of the General
Corporation Law at a meeting duly called and held on June&nbsp;5, 2001: </FONT></P>

<UL>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>RESOLVED,</B></FONT><FONT SIZE=2> that pursuant to the authority granted to and vested in the Board of Directors of the Company in accordance with the
provisions of its Amended and Restated Certificate of Incorporation, the Board of Directors hereby creates a series of Preferred Stock, par value $0.001 per share, of the Company and hereby states the
designation and number of shares, and fixes the relative designations and the powers, preferences and rights, and the qualifications, limitations and restrictions thereof (in addition to the
provisions set forth in the Certificate of Incorporation of the Company, which are applicable to the Preferred Stock of all classes and series), as follows: </FONT></P>

</UL>

<P><FONT SIZE=2>Series&nbsp;A
Junior Participating Preferred Stock: </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;Section&nbsp;1. Designation and Amount.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Five Hundred Thousand (500,000) shares of Preferred Stock, $0.001 par value,
are designated "Series&nbsp;A Junior Participating Preferred Stock" with the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions specified
herein (the "Junior Preferred Stock"). Such number of shares may be increased or decreased by resolution of the Board of Directors; </FONT><FONT SIZE=2><I>provided,</I></FONT><FONT SIZE=2> that no
decrease shall reduce the number of shares of Junior Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Company convertible into Junior Preferred Stock. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>Section&nbsp;2. Dividends and Distributions.  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>(A)</B></FONT><FONT SIZE=2> Subject to the rights of the holders of any shares of any series of Preferred Stock (or
any similar stock) ranking prior and superior to the Junior Preferred Stock with respect to dividends, the holders of shares of Junior Preferred Stock, in preference to the holders of Common Stock,
par value $0.001 per share (the "Common Stock"), of the Company, and of any other junior stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the first day of April, July, October and January in each year (each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Junior Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a)&nbsp;$l.00 or (b)&nbsp;subject to the provision for adjustment hereinafter set forth, 100 times the aggregate per share amount of all cash dividends, and
100 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions, other than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Junior Preferred Stock. In the event the Company shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>1</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=1,SEQ=7,EFW="2051342",CP="AEROGEN, INC.",DN="2",CHK=161142,FOLIO='1',FILE='DISK012:[01PAL9.01PAL1929]KE1929A.;9',USER='VDESIO',CD='13-JUN-2001;05:59' -->
<A NAME="page_ke1929_1_2"> </A>

<P><FONT SIZE=2>
Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Junior Preferred Stock were entitled immediately prior to such event
under clause&nbsp;(b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(B)</B></FONT><FONT SIZE=2> The Company shall declare a dividend or distribution on the Junior Preferred Stock as provided in
paragraph&nbsp;(A) of this Section immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); </FONT> <FONT SIZE=2><I>provided</I></FONT><FONT SIZE=2>, that in the event no
dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Junior Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(C)</B></FONT><FONT SIZE=2> Dividends shall begin to accrue and be cumulative on outstanding shares of Junior Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of such shares, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for
the
determination of holders of shares of Junior Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Junior Preferred Stock in an amount
less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the
time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Junior Preferred Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60&nbsp;days prior to the date fixed for the payment thereof. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;Section&nbsp;3. Voting Rights.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The holders of shares of Junior Preferred Stock shall have the following voting
rights: </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(A)</B></FONT><FONT SIZE=2> Subject to the provision for adjustment hereinafter set forth, each share of Junior Preferred Stock shall entitle
the holder thereof to 100 votes on all matters submitted to a vote of the stockholders of the Company. In the event the Company shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the number of votes per share to which holders of shares of Junior Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(B)</B></FONT><FONT SIZE=2> Except as otherwise provided herein, in any other Certificate of Designation creating a series of Preferred Stock
or any similar stock, or by law, the holders of shares of Junior Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Company having general voting rights shall
vote together as one class on all matters submitted to a vote of stockholders of the Company. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(C)</B></FONT><FONT SIZE=2> Except as set forth herein, or as otherwise provided by law, holders of Junior Preferred Stock shall have no
special voting rights and their consent shall not be required (except to the extent </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>2</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=2,SEQ=8,EFW="2051342",CP="AEROGEN, INC.",DN="2",CHK=287504,FOLIO='2',FILE='DISK012:[01PAL9.01PAL1929]KE1929A.;9',USER='VDESIO',CD='13-JUN-2001;05:59' -->
<A NAME="page_ke1929_1_3"> </A>

<P><FONT SIZE=2>
they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>Section&nbsp;4. Certain Restrictions.  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>(A)</B></FONT><FONT SIZE=2> Whenever quarterly dividends or other dividends or distributions payable on the Junior
Preferred Stock as provided in Section&nbsp;2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Junior Preferred Stock
outstanding shall have been paid in full, the Company shall not: </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(i)</B></FONT><FONT SIZE=2> declare or pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Junior Preferred Stock; </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(ii)</B></FONT><FONT SIZE=2> declare or pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the Junior Preferred Stock, except dividends paid ratably on the Junior Preferred Stock and all such parity stock on which dividends
are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(iii)</B></FONT><FONT SIZE=2> redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Junior Preferred Stock, provided that the Company may at any time redeem, purchase or otherwise acquire shares of any such junior stock
in exchange for shares of any stock of the Company ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Junior Preferred Stock; or </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(iv)</B></FONT><FONT SIZE=2> redeem or purchase or otherwise acquire for consideration any shares of Junior Preferred Stock, or any shares of
stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Junior Preferred Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(B)</B></FONT><FONT SIZE=2> The Company shall not permit any subsidiary of the Company to purchase or otherwise acquire for consideration any
shares of stock of the Company unless the Company could, under paragraph&nbsp;(A) of this Section&nbsp;4, purchase or otherwise acquire such shares at such time and in such manner. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;Section&nbsp;5. Reacquired Shares.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Any shares of Junior Preferred Stock purchased or otherwise acquired by the
Company in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the Amended and Restated Certificate of
Incorporation, or in any other Certificate of Designation creating a series of Preferred Stock or any similar stock or as otherwise required by law. </FONT></P>


<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;Section&nbsp;6. Liquidation, Dissolution or Winding Up.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Upon any liquidation, dissolution or winding up of the
Company, no distribution shall be made (1)&nbsp;to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Junior Preferred Stock
unless, prior thereto, the holders of shares of Junior Preferred Stock shall have received $100 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or
not declared, to the date of such payment, provided that the holders of shares of Junior Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount to be distributed per share to holders of </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>3</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=3,SEQ=9,EFW="2051342",CP="AEROGEN, INC.",DN="2",CHK=459304,FOLIO='3',FILE='DISK012:[01PAL9.01PAL1929]KE1929A.;9',USER='VDESIO',CD='13-JUN-2001;05:59' -->
<A NAME="page_ke1929_1_4"> </A>

<P><FONT SIZE=2>
shares of Common Stock, or (2)&nbsp;to the holders of shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Junior Preferred Stock,
except distributions made ratably on the Junior Preferred Stock and all such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Company shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the aggregate amount to which holders of shares of Junior Preferred Stock were entitled immediately prior to such event under the proviso in clause&nbsp;(1) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;Section&nbsp;7. Consolidation, Merger, Etc.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;In case the Company shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of
Junior Preferred Stock shall at the same time be similarly exchanged or changed into an amount per share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event
the Company shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of shares of Junior Preferred Stock shall be adjusted by multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;Section&nbsp;8. No Redemption.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The shares of Junior Preferred Stock shall not be redeemable. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;Section&nbsp;9. Rank.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The Junior Preferred Stock shall rank, with respect to the payment of dividends and the
distribution of assets, junior to all series of any other class of the Company's Preferred Stock. </FONT></P>

<P><FONT SIZE=2><B>&nbsp;&nbsp;&nbsp;&nbsp;Section&nbsp;10. Amendment.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The Amended and Restated Certificate of Incorporation of the Company shall not be amended
in any manner which would materially alter or change the powers, preferences or special rights of the Junior Preferred Stock so as to affect them adversely without the affirmative vote of the holders
of at least two-thirds of the outstanding shares of Junior Preferred Stock, voting together as a single class. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>4</FONT></P>

<HR NOSHADE>

<!-- ZEQ.=4,SEQ=10,EFW="2051342",CP="AEROGEN, INC.",DN="2",CHK=412992,FOLIO='4',FILE='DISK012:[01PAL9.01PAL1929]KE1929A.;9',USER='VDESIO',CD='13-JUN-2001;05:59' -->
<A NAME="page_ke1929_1_5"> </A>

<P><FONT SIZE=2>
&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>IN WITNESS WHEREOF,</B></FONT><FONT SIZE=2> the undersigned have executed this certificate as of June&nbsp;5, 2001. </FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="49%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="49%"><FONT SIZE=2>/s/ Jane E. Shaw</FONT><HR NOSHADE><FONT SIZE=2><B>Jane E. Shaw<BR>
Chief Executive Officer</B></FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="49%"><FONT SIZE=2><B><BR>
&nbsp;</B></FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><B><BR>&nbsp;</B></FONT></TD>
<TD WIDTH="49%"><BR><FONT SIZE=2>/s/ Carol A. Gamble</FONT><HR NOSHADE><FONT SIZE=2><B>Carol A. Gamble<BR>
Secretary</B></FONT></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<P ALIGN="CENTER"><FONT SIZE=2>5</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=5,SEQ=11,EFW="2051342",CP="AEROGEN, INC.",DN="2",CHK=325525,FOLIO='5',FILE='DISK012:[01PAL9.01PAL1929]KE1929A.;9',USER='VDESIO',CD='13-JUN-2001;05:59' -->
<!-- Generated by Merrill Corporation (www.merrillcorp.com) -->
<BR>
<!-- SEQ=,FILE='QUICKLINK',USER=MWORTHY,SEQ=,EFW="2051342",CP="AEROGEN, INC.",DN="2" -->
<!-- TOCEXISTFLAG -->
</BODY>
</HTML>
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-99.1
<SEQUENCE>3
<FILENAME>a2051342zex-99_1.htm
<DESCRIPTION>EX-99.1
<TEXT>

<HTML>
<HEAD>
<TITLE> Prepared by MERRILL CORPORATION
</TITLE>
</HEAD>
<BODY BGCOLOR="#FFFFFF" LINK=BLUE  VLINK=PURPLE>
<BR>
<FONT SIZE=3 ><A HREF="#01PAL1929_3">QuickLinks</A></FONT>
<font size=3> -- Click here to rapidly navigate through this document</font>
<!-- TOC_END -->
<P ALIGN="RIGHT"><FONT SIZE=2><B>Exhibit 99.1  </B></FONT></P>

<P><FONT SIZE=2><B>
<IMG SRC="g798568.jpg" ALT="LOGO" WIDTH="96" HEIGHT="57">
  </B></FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="11%"><FONT SIZE=2>Contact:</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="42%"><FONT SIZE=2>Jane E. Shaw, Ph.D.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="42%" ALIGN="RIGHT"><FONT SIZE=2>A-24-060601</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="11%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="42%"><FONT SIZE=2>(408)&nbsp;543-2434</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="42%" ALIGN="RIGHT"><FONT SIZE=2>FOR IMMEDIATE RELEASE</FONT></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="kg1929_aerogen,_inc._adopts_stockholder_rights_plan"> </A>
<A NAME="toc_kg1929_1"> </A>
<BR></FONT><FONT SIZE=2><B>AEROGEN,&nbsp;INC. ADOPTS STOCKHOLDER RIGHTS PLAN    <BR>  </B></FONT></P>

<P><FONT SIZE=2><B>SUNNYVALE, CALIF., JUNE&nbsp;6, 2001&#151;</B></FONT><FONT SIZE=2>Aerogen,&nbsp;Inc. </FONT><FONT SIZE=2><B>[NASDAQ:
AEGN]</B></FONT><FONT SIZE=2> today announced that its Board of Directors has approved the adoption of a Stockholder Rights Plan under which all stockholders of record as of
June&nbsp;26</FONT><FONT SIZE=2><B>,</B></FONT><FONT SIZE=2> 2001 will receive rights to purchase shares of a new series of Preferred Stock. The Rights Plan is designed to enable all Aerogen
stockholders to realize the full value of their investment and to provide for fair and equal treatment for all stockholders in the event that an unsolicited attempt is made to acquire Aerogen. The
adoption of the Rights Plan is intended as a means to guard against abusive takeover tactics and is not in response to any particular proposal. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
rights will be distributed as a non-taxable dividend and will expire in ten years from the record date. The rights will be exercisable only if a person or group
acquires 15&nbsp;percent or more of the Aerogen Common Stock or announces a tender offer for 15&nbsp;percent or more of the Common Stock. If a person or group acquires 15&nbsp;percent or more of
Aerogen's Common Stock, all rights holders except the buyer will be entitled to acquire Aerogen Common Stock at a discount. The effect will be to discourage acquisitions of more than 15&nbsp;percent
of Aerogen's Common Stock without negotiations with Aerogen's Board of Directors. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
rights will trade with Aerogen's Common Stock, unless and until they are separated upon the occurrence of certain future events. The rights dividend is not taxable to the
stockholders. Aerogen's Board of Directors may terminate the Rights Plan at any time or redeem the rights prior to the time a person acquires more than 15&nbsp;percent of the Aerogen Common Stock.
Additional details regarding the Rights Plan will be outlined in a summary to be mailed to all stockholders following the record date. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Aerogen
(<U>www.aerogen.com</U>), a pulmonary drug delivery company, is developing and intends to commercialize inhaler and nebulizer products for the treatment
of respiratory disease. The company's core technology enables aerosolization of small molecules, proteins and peptides. Aerogen is also applying its technology to develop products in collaboration
with pharmaceutical and biotechnology partners for treatment of respiratory disorders and for pulmonary delivery of drugs to the bloodstream. Four Aerodose&#153; inhaler products currently in
development have advanced to the stage of Phase 2 clinical trials, and additional products are in the feasibility and pre-clinical stages of development. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;To
the extent any statements made in this release deal with information that is not historical, these statements are necessarily forward-looking. As such, they are subject to the
occurrence of many events outside Aerogen's control and are subject to various risk factors that could cause the company's results to differ materially from those expressed in any forward-looking
statement. The risk factors are described in the company's reports filed with the Securities and Exchange Commission and include, without limitation, the inherent risks of product development,
clinical outcomes, regulatory risks and risks related to proprietary rights, collaborative partnerships, market acceptance and competition. </FONT></P>

<HR NOSHADE>
<!-- ZEQ.=1,SEQ=1,EFW="2051342",CP="AEROGEN, INC.",DN="3",CHK=412533,FOLIO='blank',FILE='DISK012:[01PAL9.01PAL1929]KG1929A.;7',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<!-- Generated by Merrill Corporation (www.merrillcorp.com) -->
<BR>
<P><br><A NAME="01PAL1929_3">QuickLinks</A><br></P><!-- TOC_BEGIN -->
<FONT SIZE=2><A HREF="#toc_kg1929_1">AEROGEN, INC. ADOPTS STOCKHOLDER RIGHTS PLAN</A></FONT><BR>
<!-- SEQ=,FILE='QUICKLINK',USER=MWORTHY,SEQ=,EFW="2051342",CP="AEROGEN, INC.",DN="3" -->
<!-- TOCEXISTFLAG -->
</BODY>
</HTML>
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-99.2
<SEQUENCE>4
<FILENAME>a2051342zex-99_2.htm
<DESCRIPTION>EX-99.2
<TEXT>

<HTML>
<HEAD>
<TITLE> Prepared by MERRILL CORPORATION
</TITLE>
</HEAD>
<BODY BGCOLOR="#FFFFFF" LINK=BLUE  VLINK=PURPLE>
<BR>
<FONT SIZE=3 ><A HREF="#01PAL1929_4">QuickLinks</A></FONT>
<font size=3> -- Click here to rapidly navigate through this document</font>
<!-- TOC_END -->
<P ALIGN="RIGHT"><FONT SIZE=2><B>Exhibit 99.2  </B></FONT></P>

<HR NOSHADE>
<P ALIGN="CENTER"><FONT SIZE=3><B>AeroGen, Inc.  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=3><B> and  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=3><B> Mellon Investor Services LLC<BR>
as Rights Agent  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=3><B> RIGHTS AGREEMENT  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=3><B> Dated as of June 5, 2001  </B></FONT></P>

<HR NOSHADE>
<HR NOSHADE>

<!-- ZEQ.=1,SEQ=1,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=744138,FOLIO='blank',FILE='DISK012:[01PAL9.01PAL1929]KI1929A.;4',USER='VDESIO',CD='13-JUN-2001;06:20' -->
<A NAME="page_ki1929_1_1"> </A>
<P ALIGN="CENTER"><FONT SIZE=3><B> <A NAME="ki1929_table_of_contents"> </A>
<A NAME="toc_ki1929_1"> </A>
<BR>    </B></FONT><FONT SIZE=2><B>TABLE OF CONTENTS    <BR>  </B></FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="BOTTOM">
<TH WIDTH="15%" ALIGN="LEFT"><FONT SIZE=2>&nbsp;</FONT><BR></TH>
<TH WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TH>
<TH WIDTH="74%" ALIGN="LEFT"><FONT SIZE=2>&nbsp;</FONT><BR></TH>
<TH WIDTH="3%"><FONT SIZE=1>&nbsp;</FONT></TH>
<TH WIDTH="5%" ALIGN="CENTER"><FONT SIZE=1><B>Page</B></FONT><HR NOSHADE></TH>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 1.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>CERTAIN DEFINITIONS</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>1</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 2.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>APPOINTMENT OF RIGHTS AGENT</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>3</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 3.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>ISSUE OF RIGHT CERTIFICATES</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>4</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 4.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>FORM OF RIGHT CERTIFICATES</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>5</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 5.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>COUNTERSIGNATURE AND REGISTRATION</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>5</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 6.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT CERTIFICATES</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>6</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 7.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>6</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 8.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>8</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 9.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>AVAILABILITY OF PREFERRED SHARES</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>8</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 10.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>PREFERRED SHARES RECORD DATE</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>9</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 11.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR NUMBER OF RIGHTS</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>9</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 12.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>15</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 13.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING POWER</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>15</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 14.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>FRACTIONAL RIGHTS AND FRACTIONAL SHARES</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>17</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 15.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>RIGHTS OF ACTION</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>18</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 16.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>AGREEMENT OF RIGHT HOLDERS</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>18</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 17.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>19</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 18.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>CONCERNING THE RIGHTS AGENT</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>19</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 19.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>20</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 20.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>DUTIES OF RIGHTS AGENT</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>20</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 21.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>CHANGE OF RIGHTS AGENT</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>22</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 22.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>ISSUANCE OF NEW RIGHT CERTIFICATES</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>22</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 23.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>REDEMPTION</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>23</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 24.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>EXCHANGE</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>24</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 25.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>NOTICE OF CERTAIN EVENTS</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>25</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 26.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>NOTICES</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>26</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 27.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>SUPPLEMENTS AND AMENDMENTS</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>26</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 28.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>DETERMINATION AND ACTIONS BY THE BOARD OF DIRECTORS, ETC.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>26</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 29.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>SUCCESSORS</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>27</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 30.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>BENEFITS OF THIS AGREEMENT</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>27</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 31.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>SEVERABILITY</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>27</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 32.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>GOVERNING LAW</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>27</FONT></TD>
</TR>
<TR BGCOLOR="#CCEEFF" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 33.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>COUNTERPARTS</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>27</FONT></TD>
</TR>
<TR BGCOLOR="White" VALIGN="TOP">
<TD WIDTH="15%"><FONT SIZE=2>SECTION 34.</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="74%"><FONT SIZE=2>DESCRIPTIVE HEADINGS</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="5%" ALIGN="RIGHT" VALIGN="BOTTOM"><FONT SIZE=2>27</FONT></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<P ALIGN="CENTER"><FONT SIZE=2>i</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=2,SEQ=2,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=635401,FOLIO='i',FILE='DISK012:[01PAL9.01PAL1929]KI1929B.;8',USER='VDESIO',CD='13-JUN-2001;06:20' -->
<!-- Generated by Merrill Corporation (www.merrillcorp.com) -->
<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="page_kj1929_1_1"> </A> </FONT></P>

<!-- TOC_END -->
<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="kj1929_rights_agreement"> </A>
<A NAME="toc_kj1929_1"> </A>
<BR></FONT><FONT SIZE=2><B>RIGHTS AGREEMENT    <BR>  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>This Rights Agreement</B></FONT><FONT SIZE=2> ("Agreement") dated as of June&nbsp;5, 2001 between </FONT> <FONT SIZE=2><B>AeroGen,&nbsp;Inc.</B></FONT><FONT SIZE=2>, a Delaware
corporation (the "Company"), and </FONT><FONT SIZE=2><B>Mellon Investor Services LLC,</B></FONT><FONT SIZE=2> a New
Jersey limited liability company, as Rights Agent ("Rights Agent"). </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
Board of Directors of the Company has authorized and declared a dividend of one preferred share purchase right (a "Right") for each Common Share (as such term is hereinafter
defined) outstanding at the close of business on June&nbsp;26, 2001 (the "Record Date"), each Right representing the right to purchase one one-hundredth of a Preferred Share (as such
term is hereinafter defined), upon the terms and subject to the conditions herein set forth, and has further authorized and directed the issuance of one Right with respect to each Common Share that
shall become outstanding between the Record Date and the earliest to occur of the Distribution Date, the Redemption Date and the Final Expiration Date (as such terms are hereinafter defined); </FONT> <FONT SIZE=2><I>provided, however,</I></FONT><FONT
SIZE=2> that Rights may be issued with respect to Common Shares that shall become outstanding after the Distribution Date and prior to the
earlier of the Redemption Date and the Final Expiration Date in accordance with the provisions of Section&nbsp;22 hereof. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Accordingly,
in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows: </FONT></P>

<P><FONT SIZE=2><B>SECTION 1.&nbsp;&nbsp;Certain Definitions.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;For purposes of this Agreement, the following terms have the meanings
indicated: </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(a)&nbsp;&nbsp;"Acquiring Person"</B></FONT><FONT SIZE=2> shall mean any Person (as such term is hereinafter defined) who or which, together with all
Affiliates and Associates (as such terms are hereinafter defined) of such Person, shall be the Beneficial Owner (as such term is hereinafter defined) of 15% or more of the Common Shares then
outstanding. Notwithstanding the foregoing, (A)&nbsp;the term Acquiring Person shall not include (i)&nbsp;the Company, (ii)&nbsp;any Subsidiary (as such term is hereinafter defined) of the
Company, (iii)&nbsp;any employee benefit or compensation plan of the Company or any Subsidiary of the Company, (iv)&nbsp;any entity holding Common Shares for or pursuant to the terms of any such
employee benefit or compensation plan of the Company or any Subsidiary of the Company, and (B)&nbsp;no Person shall become an "Acquiring Person" either (x)&nbsp;as the result of an acquisition of
Common Shares by the Company which, by reducing the number of shares outstanding, increases the proportionate number of shares beneficially owned by such Person to 15% or more of the Common Shares
then outstanding; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that if a Person shall become the Beneficial Owner of 15% or more of the Common Shares then outstanding by reason
of share purchases by the Company and shall, following written notice from, or public disclosure by the
Company of such share purchases by the Company, become the Beneficial Owner of any additional Common Shares without the prior consent of the Company and shall then Beneficially Own more than 15% of
the Common Shares then outstanding, then such Person shall be deemed to be an "Acquiring Person," or (y)&nbsp;if the Board of Directors determines in good faith that a Person who would otherwise be
an "Acquiring Person," as defined pursuant to the foregoing provisions of this paragraph&nbsp;(a), has become such inadvertently, and such Person divests, as promptly as practicable (as determined
in good faith by the Board of Directors), following receipt of written notice from the Company of such event, of Beneficial Ownership of a sufficient number of Common Shares so that such Person would
no longer be an Acquiring Person, as defined pursuant to the foregoing provisions of this paragraph&nbsp;(a), then such Person shall not be deemed to be an "Acquiring Person" for any purposes of
this Agreement; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that if such Person shall again become the Beneficial Owner of 15% or more of the Common Shares then outstanding,
such Person shall be deemed an "Acquiring Person," subject to the exceptions set forth in this Section&nbsp;1(a). </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(b)&nbsp;&nbsp;"Affiliate"</B></FONT><FONT SIZE=2> and </FONT><FONT SIZE=2><B>"Associate"</B></FONT><FONT SIZE=2> shall have the respective meanings
ascribed to such terms in Rule&nbsp;12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in effect on the date of
this Agreement; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that the </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>1</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=1,SEQ=3,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=580865,FOLIO='1',FILE='DISK012:[01PAL9.01PAL1929]KJ1929A.;10',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<A NAME="page_kj1929_1_2"> </A>

<P><FONT SIZE=2>
limited partners of a limited partnership shall not be deemed to be Associates of such limited partnership solely by virtue of their limited partnership interests. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(c)</B></FONT><FONT SIZE=2>&nbsp;&nbsp;A Person shall be deemed the </FONT><FONT SIZE=2><B>"Beneficial Owner"</B></FONT><FONT SIZE=2> of and shall be
deemed to "beneficially own" any securities: </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(i)</B></FONT><FONT SIZE=2> which such Person or any of such Person's Affiliates or Associates is deemed to beneficially own, within the
meaning of Rule&nbsp;13d-3 of the General Rules and Regulations under the Exchange Act as in effect on the date of this Rights Agreement; </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(ii)</B></FONT><FONT SIZE=2> which such Person or any of such Person's Affiliates or Associates has (A)&nbsp;the right to acquire (whether
such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (other than customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering of securities), or upon the exercise of conversion rights, exchange rights, rights (other than these Rights), warrants or options, or
otherwise; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that a Person shall not be deemed the Beneficial Owner of, or to beneficially own, securities tendered pursuant to a
tender or exchange offer made by or on behalf of such Person or any of such Person's Affiliates or Associates until such tendered securities are accepted for purchase or exchange; or (B)&nbsp;the
right to vote pursuant to any agreement, arrangement or understanding; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that a Person shall not be deemed the Beneficial Owner of, or
to beneficially own, any security if the agreement, arrangement or understanding to vote such security (1)&nbsp;arises solely from a revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (2)&nbsp;is not also then reportable on Schedule&nbsp;13D under the Exchange Act (or any comparable or successor report); or </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(iii)</B></FONT><FONT SIZE=2> which are beneficially owned, directly or indirectly, by any other Person with which such Person or any of such
Person's Affiliates or Associates has any agreement, arrangement or understanding (other than customary agreements with and between underwriters and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring, holding, voting (except to the extent contemplated by the proviso to Section&nbsp;1(c)(ii)(B) hereof) or disposing of any securities of
the Company; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> an agreement, arrangement or understanding for purposes of this Section&nbsp;1(c)(iii)&nbsp;shall not be deemed to
include actions, including any agreement, arrangement or understanding, or statements by any member of the Company's Board of Directors on the date of this Agreement, any subsequent directors of the
Company (the "Successor Directors") who have been nominated by a majority of directors who are directors as of the date of this Agreement or who are Successor Directors, or by any Person of whom such
a director is an Affiliate or Associate, provided, however that this exception shall not apply to a particular Person or Persons if and to the extent that such Person or Persons, after the date of
this Agreement, acquires Beneficial Ownership of more than an additional 5% of the then outstanding Common Shares of the Company unless (A)&nbsp;the shares are acquired directly from the Company or
as part of an employee benefit or compensation plan of the Company or a subsidiary of the Company or (B)&nbsp;the Person establishes to the satisfaction of the directors of the Company that it is
acting on its own behalf and not in concert with any other Person and will not, upon completion of any purchases, be the Beneficial Owner of 15% or more of the outstanding Common Shares. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Notwithstanding
anything in this definition of Beneficial Ownership to the contrary, the phrase, "then outstanding," when used with reference to a Person's Beneficial Ownership of
securities of the Company, shall mean the number of such securities then issued and outstanding together with the number of such securities not then actually issued and outstanding which such Person
would be deemed to own beneficially hereunder. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>2</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=2,SEQ=4,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=480392,FOLIO='2',FILE='DISK012:[01PAL9.01PAL1929]KJ1929A.;10',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<A NAME="page_kj1929_1_3"> </A>

<P><FONT SIZE=2>
&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>(d)&nbsp;&nbsp;"Business Day"</B></FONT><FONT SIZE=2> shall mean any day other than a Saturday, a Sunday, or a day on which banking institutions in the
State of California or the State in which the Rights Agent is located are authorized or obligated by law or executive order to close. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(e)&nbsp;&nbsp;"Close of Business"</B></FONT><FONT SIZE=2> on any given date shall mean 5:00&nbsp;p.m., Pacific Time, on such date; </FONT> <FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that if such date is not a Business Day
it shall mean 5:00&nbsp;p.m., Pacific Time, on the next succeeding Business Day. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(f)&nbsp;&nbsp;"Common Shares"</B></FONT><FONT SIZE=2> shall mean the shares of common stock, par value $0.001 per share, of the Company; </FONT> <FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that, "Common Shares," when used in
this Agreement in connection with
a specific reference to any Person other than the Company, shall mean the capital stock (or equity interest) with the greatest voting power of such other Person or, if such other Person is a
Subsidiary of another Person, the Person or Persons which ultimately control such first-mentioned Person. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(g)&nbsp;&nbsp;"Distribution Date"</B></FONT><FONT SIZE=2> shall have the meaning set forth in Section&nbsp;3 hereof. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(h)&nbsp;&nbsp;"Final Expiration Date"</B></FONT><FONT SIZE=2> shall have the meaning set forth in Section&nbsp;7 hereof. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(i)&nbsp;&nbsp;"Interested Stockholder"</B></FONT><FONT SIZE=2> shall mean any Acquiring Person or any Affiliate or Associate of an Acquiring Person or
any other Person in which any such Acquiring Person, Affiliate or Associate has an interest, or any other Person acting directly or indirectly on behalf of or in concert with any such Acquiring
Person, Affiliate or Associate. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(j)&nbsp;&nbsp;"Person"</B></FONT><FONT SIZE=2> shall mean any individual, firm, corporation or other entity, and shall include any successor (by merger
or otherwise) of such entity. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(k)&nbsp;&nbsp;"Preferred Shares"</B></FONT><FONT SIZE=2> shall mean shares of Series&nbsp;A Junior Participating Preferred Stock, par value $0.001 per
share, of the Company having the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions set forth in the Form of Certificate of Designation attached
to this Agreement as Exhibit&nbsp;A. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(l)&nbsp;&nbsp;"Purchase Price"</B></FONT><FONT SIZE=2> shall have the meaning set forth in Section&nbsp;7(b) hereof. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(m)&nbsp;&nbsp;"Redemption Date"</B></FONT><FONT SIZE=2> shall have the meaning set forth in Section&nbsp;7 hereof. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(n)&nbsp;&nbsp;"Shares Acquisition Date"</B></FONT><FONT SIZE=2> shall mean the first date of public announcement by the Company or an Acquiring Person
that an Acquiring Person has become such provided, however that, if such Person is determined not to have become an Acquiring Person pursuant to clause&nbsp;(y) of Subsection 1(a)(B) hereof, then no
Shares Acquisition Date shall be deemed to have occurred. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(o)&nbsp;&nbsp;"Subsidiary"</B></FONT><FONT SIZE=2> of any Person shall mean any corporation or other entity of which a majority of the voting power of
the voting equity securities or equity interest is owned, directly or indirectly, by such Person. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(p)&nbsp;&nbsp;"Transaction"</B></FONT><FONT SIZE=2> shall mean any merger, consolidation or sale of assets described in Section&nbsp;13(a) hereof or
any acquisition of Common Shares which would result in a Person becoming an Acquiring Person or a Principal Party (as such term is hereinafter defined). </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(q)&nbsp;&nbsp;"Transaction Person"</B></FONT><FONT SIZE=2> with respect to a Transaction shall mean (i)&nbsp;any Person who (x)&nbsp;is or will
become an Acquiring Person or a Principal Party (as such term is hereinafter defined) if the Transaction were to be consummated and (y)&nbsp;directly or indirectly proposed or nominated a director
of the Company which director is in office at the time of consideration of the Transaction, or (ii)&nbsp;an Affiliate or Associate of such a Person. </FONT></P>

<P><FONT SIZE=2><B>SECTION 2.&nbsp;&nbsp;Appointment of Rights Agent.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The Company hereby appoints the Rights Agent to act as agent for
the Company in accordance with the terms and conditions hereof, and the Rights Agent hereby accepts such appointment. The Company may from time to time appoint such co-Rights Agents </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>3</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=3,SEQ=5,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=756926,FOLIO='3',FILE='DISK012:[01PAL9.01PAL1929]KJ1929A.;10',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<A NAME="page_kj1929_1_4"> </A>

<P><FONT SIZE=2>
as it may deem necessary or desirable. The Rights Agent shall have no duty to supervise and in no event shall be liable for the acts or omissions of any such co-Rights Agent. </FONT></P>

<P><FONT SIZE=2><B>SECTION 3.&nbsp;&nbsp;Issue of Right Certificates</B></FONT><FONT SIZE=2>.&nbsp;&nbsp;</FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(a)</B></FONT><FONT SIZE=2>&nbsp;Until the earlier of the Close of Business on (i)&nbsp;the Shares Acquisition Date or (ii)&nbsp;the tenth
Business Day (or such later date as may be determined by action of the Board of Directors prior to such time as any Person becomes an Acquiring Person) after the date of the commencement (determined
in accordance with Rule&nbsp;14d-2 under the Exchange Act) by any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or any entity holding Common Shares for or pursuant to the terms of any such plan) of, or of the first public announcement of the intention of any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company or any entity holding Common Shares for or pursuant to the terms of any such plan)
to commence, a tender or exchange offer (which intention to commence remains in effect for five Business Days after such announcement), the consummation of which would result in any Person becoming an
Acquiring Person (including any such date which is after the date of this Agreement and prior to the issuance of the Rights, the earlier of such dates being herein referred to as the "Distribution
Date"), (x)&nbsp;the Rights will be evidenced by the certificates for Common Shares registered in the names of the holders thereof (which certificates shall also be deemed to be Right Certificates)
and not by separate Right Certificates, and (y)&nbsp;the Rights (and the right to receive Right Certificates therefor) will be transferable only in connection with the transfer of Common Shares. As
soon as practicable after the Distribution Date, the Company will prepare and execute, the Rights Agent will countersign, and the Company will send or cause to be sent (and the Rights Agent will, if
requested and provided with all required information, send) by first-class, insured, postage-prepaid mail, to each record holder of Common Shares as of the Close of Business on the Distribution Date,
at the address of such holder shown on the records of the Company, a Right Certificate, in substantially the form of Exhibit&nbsp;B hereto (a "Right Certificate"), evidencing one Right for each
Common Share so held, subject
to the adjustment provisions of Section&nbsp;11 of this Rights Agreement. As of the Distribution Date, the Rights will be evidenced solely by such Right Certificates. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(b)</B></FONT><FONT SIZE=2>&nbsp;On the Record Date, or as soon as practicable thereafter, the Company will send (directly or through the Rights
Agent (provided the Rights Agent has been provided with all required information) or the transfer agent) a copy of a Summary of Rights to Purchase Preferred Shares, in substantially the form of
Exhibit&nbsp;C hereto (the "Summary of Rights"), by first-class, postage-prepaid mail, to each record holder of Common Shares as of the Close of Business on the Record Date, at the address of such
holder shown on the records of the Company. With respect to certificates for Common Shares outstanding as of the Record Date, until the Distribution Date, the Rights will be evidenced by such
certificates registered in the names of the holders thereof. Until the Distribution Date (or the earlier of the Redemption Date and the Final Expiration Date), the surrender for transfer of any
certificate for Common Shares outstanding on the Record Date shall also constitute the transfer of the Rights associated with the Common Shares represented thereby. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(c)</B></FONT><FONT SIZE=2>&nbsp;Certificates for Common Shares which become outstanding (including, without limitation, reacquired Common Shares
referred to in the last sentence of this paragraph&nbsp;(c)) after the Record Date but prior to the earliest of the Distribution Date, the Redemption Date or the Final Expiration Date shall have
impressed on, printed on, written on or otherwise affixed to them the following legend: </FONT></P>

<UL>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;This
certificate also evidences and entitles the holder hereof to certain rights as set forth in a Rights Agreement between AeroGen,&nbsp;Inc. (the "Company") and Mellon Investor
Services LLC as Rights Agent (the "Rights Agent"), dated as of June&nbsp;5, 2001, as amended from time to time (the "Rights Agreement"), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive offices of the Company. Under certain circumstances, as set forth in the Rights Agreement, such Rights will be evidenced by separate
certificates and </FONT></P>

</UL>
<P ALIGN="CENTER"><FONT SIZE=2>4</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=4,SEQ=6,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=810821,FOLIO='4',FILE='DISK012:[01PAL9.01PAL1929]KJ1929A.;10',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<A NAME="page_kj1929_1_5"> </A>
<UL>

<P><FONT SIZE=2>
will no longer be evidenced by this certificate. The Company will mail to the holder of this certificate a copy of the Rights Agreement without charge after receipt of a written request therefor. As
described in the Rights Agreement, Rights issued to any Person who becomes an Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights Agreement) and certain related persons,
whether currently held by or on behalf of such Person or by any subsequent holder, shall become null and void. </FONT></P>

</UL>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;With
respect to such certificates containing the foregoing legend, until the Distribution Date (or, if earlier, the earlier of the Redemption Date or the Final Expiration Date), the
Rights associated with the Common Shares represented by such certificates shall be evidenced by such certificates alone, and the surrender for transfer of any such certificate shall also constitute
the transfer of the Rights associated with the Common Shares represented thereby. In the event that the Company purchases or acquires any Common Shares after the Record Date but prior to the
Distribution Date, any Rights associated with such Common Shares shall be deemed canceled and retired so that the Company shall not be entitled to exercise any Rights associated with the Common Shares
which are no longer
outstanding. Notwithstanding this Section&nbsp;3(c), the omission of a legend shall not affect the enforceability of any part of this Rights Agreement or the rights of any holder of the Rights. </FONT></P>

<P><FONT SIZE=2><B>SECTION 4.&nbsp;&nbsp;Form of Right Certificates.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;</FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(a)</B></FONT><FONT SIZE=2>&nbsp;The Right Certificates (and the form of election to purchase Preferred Shares, the form of assignment and the form
of certification to be printed on the reverse thereof) shall be substantially the same as Exhibit&nbsp;B hereto and may have such marks of identification or designation and such legends, summaries
or endorsements printed thereon as the Company may deem appropriate and which do not affect the rights, duties or responsibilities of the Rights Agent and as are not inconsistent with the provisions
of this Agreement, or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange or quotation system
on which the Rights may from time to time be listed, or to conform to usage. Subject to the provisions of Sections 7, 11 and 22 hereof, the Right Certificates shall entitle the holders thereof to
purchase such number of one one-hundredths of a Preferred Share as shall be set forth therein at the Purchase Price (as defined in Section&nbsp;7(b)), but the number of such one
one-hundredths of a Preferred Share and the Purchase Price shall be subject to adjustment as provided herein. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(b)</B></FONT><FONT SIZE=2>&nbsp;Any Right Certificate issued pursuant to Section&nbsp;3(a) or Section&nbsp;22 hereof that represents Rights
which are null and void pursuant to the second paragraph of Section&nbsp;11(a)(ii)&nbsp;hereof and any Right Certificate issued pursuant to Section&nbsp;6 or Section&nbsp;11 hereof upon
transfer, exchange, replacement or adjustment of any other Right Certificate referred to in this sentence, shall contain (to the extent feasible) the following legend: </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
Rights represented by this Right Certificate are or were beneficially owned by a Person who was or became an Acquiring Person or an Affiliate or Associate of an Acquiring Person
(as such terms are defined in the Rights Agreement). Accordingly, this Right Certificate and the Rights represented hereby are null and void. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
provisions of Section&nbsp;11(a)(ii)&nbsp;hereof shall be operative whether or not the foregoing legend is contained on any such Right Certificate. </FONT></P>

<P><FONT SIZE=2><B>SECTION 5.&nbsp;&nbsp;Countersignature and Registration.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The Right Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its Chief Executive Officer, its Chief Financial Officer, or any of its Vice Presidents, either manually or by facsimile signature, shall have affixed thereto the
Company's seal or a facsimile thereof, and shall be attested by the Secretary or an Assistant Secretary of the Company, either manually or by facsimile signature. The Right Certificates shall be
manually countersigned by the Rights Agent and shall not be valid for any purpose unless countersigned. In case any officer of the Company who shall have signed any of the Right Certificates shall
cease to be such officer of the Company before countersignature by the Rights Agent and issuance and delivery by the </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>5</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=5,SEQ=7,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=1027806,FOLIO='5',FILE='DISK012:[01PAL9.01PAL1929]KJ1929A.;10',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<A NAME="page_kj1929_1_6"> </A>

<P><FONT SIZE=2>
Company, such Right Certificates, nevertheless, may be countersigned by the Rights Agent and issued and delivered by the Company with the same force and effect as though the person who signed such
Right Certificates had not ceased to be such officer of the Company; and any Right Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such
Right Certificate, shall be a proper officer of the Company to sign such Right Certificate, although at the date of the execution of this Agreement any such person was not such an officer. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Following
the Distribution Date and receipt by the Rights Agent of all relevant information, the Rights Agent will keep or cause to be kept, at its office designated for such purpose,
books for registration and transfer of the Right Certificates issued hereunder. Such books shall show the names and addresses of the respective holders of the Right Certificates, the number of Rights
evidenced on its face by each of the Right Certificates and the date of each of the Right Certificates. </FONT></P>

<P><FONT SIZE=2><B>SECTION 6.&nbsp;&nbsp;Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Subject to the provisions of Section&nbsp;11(a)(ii), Section&nbsp;14 and Section&nbsp;24 hereof, at any time after the Close of Business on
the Distribution Date, and at or prior to the Close of Business on the earlier of the Redemption Date or the Final Expiration Date, any Right Certificate or Right Certificates may be transferred,
split up, combined or exchanged for another Right Certificate or Right Certificates, entitling the registered holder to purchase a like number of one one-hundredths of a Preferred Share as
the Right Certificate or Right Certificates surrendered then entitled such holder to purchase. Any registered holder desiring to transfer, split up, combine or exchange any Right Certificate or Right
Certificates shall make such request in writing delivered to the Rights Agent, and shall surrender the Right Certificate or Right Certificates to be transferred, split up, combined or exchanged at the
office of the Rights Agent designated for such purpose. Neither the Rights Agent nor the Company shall be obligated to take any action whatsoever with respect to the transfer of any such surrendered
Right Certificate until the registered holder shall have completed and signed the certificate contained in the form of assignment on the reverse side of such Right Certificate and shall have provided
such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company shall reasonably request. Thereupon the Rights Agent
shall, subject to Section&nbsp;11(a)(ii), Section&nbsp;14 and Section&nbsp;24 hereof, countersign and deliver to the Person entitled thereto a Right Certificate or Right Certificates, as the
case may be, as so requested. The Company may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer, split up, combination or
exchange of Right Certificates. The Rights Agent shall have no duty or obligation under this Section&nbsp;6 unless and until it is satisfied that all such taxes and/or charges have been paid in
full. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Upon
receipt by the Company and the Rights Agent of evidence reasonably satisfactory to them of the loss, theft, destruction or mutilation of a Right Certificate, and, in case of
loss, theft or destruction, of indemnity or security satisfactory to them, and, at the Company's request, reimbursement to the Company and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancellation of the Right Certificate if mutilated, the Company will issue, execute and deliver a new Right Certificate of like tenor to the Rights
Agent for countersignature and delivery to the registered holder in lieu of the Right Certificate so lost, stolen, destroyed or mutilated. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Notwithstanding
any other provisions hereof, the Company and the Rights Agent may amend this Rights Agreement to provide for uncertificated Rights in addition to or in place of Rights
evidenced by Rights Certificates. </FONT></P>

<P><FONT SIZE=2><B>SECTION 7.&nbsp;&nbsp;Exercise of Rights; Purchase Price; Expiration Date of Rights.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;</FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(a)</B></FONT><FONT SIZE=2>&nbsp;The registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the Distribution Date upon surrender of the Right Certificate, with the form of election to purchase on the reverse side thereof duly executed,
to the Rights Agent at the office of the Rights Agent designated for such purpose, </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>6</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=6,SEQ=8,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=383958,FOLIO='6',FILE='DISK012:[01PAL9.01PAL1929]KJ1929A.;10',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<A NAME="page_kj1929_1_7"> </A>

<P><FONT SIZE=2>
together with payment of the Purchase Price for each one one-hundredth of a Preferred Share (or such other number of shares or other securities) as to which the Rights are exercised, at or
prior to the earliest of (i)&nbsp;the Close of Business on June&nbsp;26, 2011 (the "Final Expiration Date"), (ii)&nbsp;the time at which the Rights are redeemed as provided in Section&nbsp;23
hereof (the "Redemption Date"), or (iii)&nbsp;the time at which such Rights are exchanged as provided in Section&nbsp;24 hereof. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(b)</B></FONT><FONT SIZE=2>&nbsp;The purchase price for each one one-hundredth of a Preferred Share pursuant to the exercise of a Right
shall initially be $60.00 (the "Purchase Price") and shall be subject to adjustment from time to time as provided in Sections 11 and 13 hereof and shall be payable in lawful money of the United States
of America in accordance with paragraph&nbsp;(c) below. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(c)</B></FONT><FONT SIZE=2>&nbsp;Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the shares to be purchased and an amount equal to any applicable tax and charge required to be paid by the holder of such Right Certificate
in accordance with Section&nbsp;9 hereof by certified check, cashier's check, bank draft or money order payable to the order of the Company, the Rights Agent shall thereupon promptly (i)&nbsp;(A)
requisition from any transfer agent for the Preferred Shares certificates for the number of Preferred Shares to be purchased and the Company hereby irrevocably authorizes its transfer agent to comply
with all such requests, or (B)&nbsp;if the Company, in its sole discretion, shall have elected to deposit the Preferred Shares issuable upon exercise of the Rights hereunder into a depository,
requisition from the depositary agent depositary receipts representing such number of one one-hundredths of a Preferred Share as are to be purchased (in which case certificates for the
Preferred Shares represented by such receipts shall be deposited by the transfer agent with the depositary agent) and the Company hereby directs the depositary agent to comply with such request,
(ii)&nbsp;when appropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional shares in accordance with Section&nbsp;14 hereof, (iii)&nbsp;after
receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be
designated by such holder and (iv)&nbsp;when appropriate, after receipt, deliver such cash to or upon the order of the registered holder of such Right Certificate. In the event that the Company is
obligated to issue securities of the Company other than Preferred Shares (including
Common Shares) of the Company pursuant to Section&nbsp;11(a) hereof, the Company will make all arrangements necessary so that such other securities are available for distribution by the Rights
Agent, if and when necessary to comply with this Agreement. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;In
addition, in the case of an exercise of the Rights by a holder pursuant to Section&nbsp;11(a)(ii)&nbsp;hereof, the Rights Agent shall return such Right Certificate to the
registered holder thereof after imprinting, stamping or otherwise indicating thereon that the rights represented by such Right Certificate no longer include the rights provided by
Section&nbsp;11(a)(ii)&nbsp;hereof, and, if fewer than all the Rights represented by such Right Certificate were so exercised, the Rights Agent shall indicate on the Right Certificate the number
of Rights represented thereby which continue to include the rights provided by Section&nbsp;11(a)(ii)&nbsp;hereof. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(d)</B></FONT><FONT SIZE=2>&nbsp;In case the registered holder of any Right Certificate shall exercise fewer than all the Rights evidenced thereby
(other than a partial exercise of rights pursuant to Section&nbsp;11(a)(ii)&nbsp;as described in Section&nbsp;7(c) hereof), a new Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to his duly authorized assigns, subject to the provisions of Section&nbsp;14 hereof. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(e)</B></FONT><FONT SIZE=2>&nbsp;The Company covenants and agrees that it will cause to be reserved and kept available out of its authorized and
unissued Preferred Shares or any Preferred Shares held in its treasury, the number of Preferred Shares that will be sufficient to permit the exercise in full of all outstanding Rights in accordance
with this Section&nbsp;7. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>7</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=7,SEQ=9,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=811783,FOLIO='7',FILE='DISK012:[01PAL9.01PAL1929]KJ1929A.;10',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<A NAME="page_kj1929_1_8"> </A>

<P><FONT SIZE=2>
&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>(f)</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered holder upon the occurrence of any purported exercise as set forth in this Section&nbsp;7 unless such registered holder shall have
(i)&nbsp;properly completed and signed the certification following the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise,
(ii)&nbsp;tendered the Purchase Price (and an amount equal to any applicable tax and charge required to be paid by the holder of such Right Certificate in accordance with Section&nbsp;9) to the
Company in the manner set forth in Section&nbsp;7(c), and (iii)&nbsp;provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company or the Rights Agent shall reasonably request. </FONT></P>

<P><FONT SIZE=2><B>SECTION 8.&nbsp;&nbsp;Cancellation and Destruction of Right Certificates.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;All Right Certificates surrendered for
the purpose of exercise, transfer, split up, combination or exchange shall, if surrendered to the Company or to any of its agents, be delivered to the Rights Agent for cancellation or in canceled
form, or, if delivered or surrendered to the Rights Agent, shall be canceled by it, and no Right Certificates shall be issued in lieu thereof except as expressly permitted by any of the provisions of
this Agreement.
The Company shall deliver to the Rights Agent for cancellation and retirement, and the Rights Agent shall so cancel and retire, any other Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver all canceled Right Certificates to the Company approximately one and one-half years after the cancellation date, or
shall, at the written request of the Company, destroy such canceled Right Certificates, and in such case shall deliver a certificate of destruction thereof to the Company. </FONT></P>

<P><FONT SIZE=2><B>SECTION 9.&nbsp;&nbsp;Availability of Preferred Shares.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The Company covenants and agrees that so long as the
Preferred Shares (and, after the time a Person becomes an Acquiring Person, Common Shares or any other securities) issuable upon the exercise of the Rights may be listed on any national securities
exchange or quotation system, the Company shall use its best efforts to cause, from and after such time as the Rights become exercisable, all shares reserved for such issuance to be listed on exchange
or quotation system upon official notice of issuance upon such exercise. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
Company covenants and agrees that it will take all such action as may be necessary to ensure that all Preferred Shares (or Common Shares and other securities, as the case may be)
delivered upon exercise of Rights shall, at the time of delivery of the certificates for such Preferred Shares (subject to payment of the Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable shares or other securities. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
Company further covenants and agrees that it will pay when due and payable any and all taxes and charges which may be payable in respect of the issuance or delivery of the Right
Certificates or of any Preferred Shares upon the exercise of Rights. The Company shall not, </FONT><FONT SIZE=2><I>however,</I></FONT><FONT SIZE=2> be required to pay any tax or charge which may be
payable in respect of any transfer or delivery of Right Certificates to a Person other than, or the issuance or delivery of certificates or depositary receipts for the Preferred Shares in a name other
than that of, the registered holder of the Right Certificate evidencing Rights surrendered for exercise or to issue or to deliver any certificates or depositary receipts for Preferred Shares upon the
exercise of any Rights until any such tax or charge shall have been paid (any such tax or charge being payable by the holder of such Right Certificate at the time of surrender) or until it has been
established to the Company's reasonable satisfaction that no such tax or charge is due. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;As
soon as practicable after the Distribution Date, the Company shall use its best efforts to: </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(i)</B></FONT><FONT SIZE=2> prepare and file&nbsp;a registration statement under the Securities Act of 1933, as amended (the "Act"), with
respect to the securities purchasable upon exercise of the Rights on an appropriate form, will use its best efforts to cause such registration statement to become effective as soon as practicable
after such filing and will use its best efforts to cause such registration statement to remain effective (with a prospectus at all times meeting the requirements of the Act) until the Final Expiration
Date; and </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(ii)</B></FONT><FONT SIZE=2> use its best efforts to qualify or register the Rights and the securities purchasable upon exercise of the Rights
under the blue sky laws of such jurisdictions as may be necessary or appropriate. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>8</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=8,SEQ=10,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=77781,FOLIO='8',FILE='DISK012:[01PAL9.01PAL1929]KJ1929A.;10',USER='MMEYER',CD='12-JUN-2001;20:55' -->
<!-- Generated by Merrill Corporation (www.merrillcorp.com) -->

<P><FONT SIZE=2><A
NAME="page_kk1929_1_9"> </A> </FONT> <FONT SIZE=2><B>SECTION 10.&nbsp;&nbsp;Preferred Shares Record Date.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Each Person in whose name any certificate for Preferred Shares
or other securities is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of the Preferred Shares or other securities represented thereby on, and
such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered with the forms of election and certification duly executed and payment of the
Purchase Price (and any applicable transfer taxes) was made; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that if the date of such surrender and payment is a date upon which the
Preferred Shares or other securities transfer books of the Company are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the
next succeeding Business Day on which the Preferred Shares or other securities transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right
Certificate, as such, shall not be entitled to any rights of a holder of Preferred Shares for which the Rights shall be exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company, except as provided herein. </FONT></P>


<P><FONT SIZE=2><B>SECTION 11.&nbsp;&nbsp;Adjustment of Purchase Price, Number of Shares or Number of Rights.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The Purchase Price, the
number of Preferred Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section&nbsp;11. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(a)</B></FONT><FONT SIZE=2>&nbsp;</FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(i)</B></FONT><FONT SIZE=2> In the event the Company shall at any time after the date of this Agreement (A)&nbsp;declare a dividend on the
Preferred Shares payable in Preferred Shares, (B)&nbsp;subdivide the outstanding Preferred Shares, (C)&nbsp;combine the outstanding Preferred Shares into a smaller number of Preferred Shares or
(D)&nbsp;issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is
the continuing or surviving corporation), except as otherwise provided in this Section&nbsp;11(a), the Purchase Price in effect at the time of the record date for such dividend or of the effective
date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Right had been exercised immediately prior to such date and at a time
when the Preferred Shares transfer books of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or
reclassification; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par
value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both Section&nbsp;11(a)(i)&nbsp;and
Section&nbsp;11(a)(ii)&nbsp;hereof, the adjustment provided for in this Section&nbsp;11(a)(i)&nbsp;shall be in addition to, and shall be made prior to any adjustment required pursuant to
Section&nbsp;11(a)(ii)&nbsp;hereof. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(ii)</B></FONT><FONT SIZE=2> Subject to Section&nbsp;24 hereof and the provisions of the next paragraph of this Section&nbsp;11(a)(ii), in
the event any Person shall become an Acquiring Person, each holder of a Right shall, for a period of 60&nbsp;days after the later of such time any Person becomes an Acquiring Person or the effective
date of an appropriate registration statement filed under the Act pursuant to Section&nbsp;9 hereof (provided, however that, if at any time prior to the expiration or termination of the Rights there
shall be a temporary restraining order, a preliminary injunction, an injunction, or temporary suspension by the Board of Directors, or similar obstacle to exercise of the Rights (the "Injunction")
which prevents exercise of the Rights, a new 60-day period shall commence on the date the Injunction is removed), have a right to receive, upon exercise thereof at a price equal to the
then current Purchase Price multiplied by the number of one one-hundredths of a Preferred Share for which a Right is then exercisable, in accordance with the terms of this Agreement and in
lieu of Preferred Shares, such number of Common Shares as shall equal the result obtained by (A)&nbsp;multiplying the then current </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>9</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=1,SEQ=11,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=647765,FOLIO='9',FILE='DISK012:[01PAL9.01PAL1929]KK1929A.;9',USER='VDESIO',CD='13-JUN-2001;06:16' -->
<A NAME="page_kk1929_1_10"> </A>

<P><FONT SIZE=2>
Purchase Price by the number of one one-hundredths of a Preferred Share for which a Right is then exercisable and dividing that product by (B)&nbsp;50% of the then current per share
market price of the Common Shares (determined pursuant to Section&nbsp;11(d) hereof) on the date such Person became an Acquiring Person; </FONT><FONT SIZE=2><I>provided,
however,</I></FONT><FONT SIZE=2> that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section&nbsp;13 hereof, then only the
provisions of Section&nbsp;13 hereof shall apply and no adjustment shall be made pursuant to this Section&nbsp;11(a)(ii). In the event that any Person shall become an Acquiring Person and the
Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Notwithstanding
anything in this Agreement to the contrary, from and after the time any Person becomes an Acquiring Person, any Rights beneficially owned by
(i)&nbsp;such Acquiring Person or an Associate or Affiliate of such Acquiring Person, (ii)&nbsp;a transferee of such Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person became such, or (iii)&nbsp;a transferee of such Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with
the Acquiring Person's becoming such and receives such Rights pursuant to either (A)&nbsp;a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in
such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights or (B)&nbsp;a transfer which the
Board of Directors has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section&nbsp;11(a)(ii), shall become null and void
without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use
all reasonable efforts to insure that the provisions of this Section&nbsp;11(a)(ii)&nbsp;and Section&nbsp;4(b) hereof are complied with, but neither the Company nor the Rights Agent shall have
any liability to any holder of Right Certificates or other Person as a result of their failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or
transferees hereunder. No Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any
Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose
Rights would be null and void pursuant to the preceding sentence shall be canceled. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(iii)</B></FONT><FONT SIZE=2> In lieu of issuing Common Shares in accordance with Section&nbsp;11(a)(ii)&nbsp;hereof, the Company may, if
a majority of the Board of Directors then in office determines that such action is necessary or appropriate and not contrary to the interests of holders of Rights, elect to (and, in the event that the
Board of Directors has not exercised the exchange right contained in Section&nbsp;24(c) hereof and there are not sufficient treasury shares and authorized but unissued Common Shares to permit the
exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the Company shall) take all such action as may be necessary to authorize, issue or pay, upon the exercise of the
Rights, cash (including by way of a reduction of the Purchase Price), property, Common Shares, other securities or any combination thereof having an aggregate value equal to the value of the Common
Shares which otherwise would have been issuable pursuant to Section&nbsp;11(a)(ii)&nbsp;hereof, which aggregate value shall be determined by a nationally recognized investment banking firm
selected by a majority of the Board of Directors then in office. For purposes of the preceding sentence, the value of the Common Shares shall be determined pursuant to Section&nbsp;11(d) hereof. Any
such election by the Board of Directors must be made within 60&nbsp;days following the date on which the event described in Section&nbsp;11(a)(ii)&nbsp;hereof shall have occurred. Following the
occurrence of the event described in Section&nbsp;11(a)(ii)&nbsp;hereof, a majority of the Board of Directors then in office may suspend the exercisability of the Rights for a period of up to
60&nbsp;days following the date on which the event described in Section&nbsp;11(a)(ii)&nbsp;hereof shall have occurred to the extent that such directors have not determined whether to exercise
their rights of election under this Section&nbsp;11(a)(iii). In the event of any </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>10</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=2,SEQ=12,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=598786,FOLIO='10',FILE='DISK012:[01PAL9.01PAL1929]KK1929A.;9',USER='VDESIO',CD='13-JUN-2001;06:16' -->
<A NAME="page_kk1929_1_11"> </A>

<P><FONT SIZE=2>
such suspension, the Company shall issue a public announcement (with prompt notice thereof to the Rights Agent) stating that the exercisability of the Rights has been temporarily suspended. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(b)</B></FONT><FONT SIZE=2>&nbsp;In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of
Preferred Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the same designations and the
powers, preferences and rights, and the qualifications, limitations and restrictions as the Preferred Shares ("equivalent preferred shares")) or securities convertible into Preferred Shares or
equivalent preferred shares at a price per Preferred Share or equivalent preferred share (or having a conversion price per share, if a security convertible into Preferred Shares or equivalent
preferred shares) less than the then current per share market price of the Preferred Shares (as such term is hereinafter defined) on such record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares
outstanding on such record date plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered
(and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which shall be the number of Preferred
Shares outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible); </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that in no event shall the consideration to be paid upon the exercise of one
Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. In case such subscription price may be paid in a consideration part or all
of which shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed
with
the Rights Agent which the Rights Agent may conclusively rely on. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such rights, options or warrants are not so issued, the Purchase Price shall be
adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(c)</B></FONT><FONT SIZE=2>&nbsp;In case the Company shall fix a record date for the making of a distribution to all holders of the Preferred Shares
(including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness or assets (other than a
regular quarterly cash dividend or a dividend payable in Preferred Shares) or subscription rights or warrants (excluding those referred to in Section&nbsp;11(b) hereof), the Purchase Price to be in
effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the then current per
share market price of the Preferred Shares (as such term is hereinafter defined) on such record date, less the fair market value (as determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with the Rights Agent and the Rights Agent may conclusively rely thereon) of the portion of the assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to one Preferred Share and the denominator of which shall be such current per share market price of the Preferred Shares; </FONT> <FONT SIZE=2><I>provided, however,</I></FONT><FONT
SIZE=2> that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares
of capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is
not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>11</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=3,SEQ=13,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=285152,FOLIO='11',FILE='DISK012:[01PAL9.01PAL1929]KK1929A.;9',USER='VDESIO',CD='13-JUN-2001;06:16' -->
<A NAME="page_kk1929_1_12"> </A>

<P><FONT SIZE=2>
&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>(d)</B></FONT><FONT SIZE=2>&nbsp;</FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(i)</B></FONT><FONT SIZE=2> For the purpose of any computation hereunder, the "current per share market price" of any security (a "Security"
for the purpose of this Section&nbsp;11(d)(i)) on any date shall be deemed to be the average of the daily closing prices per share of such Security for the 30 consecutive Trading Days (as such term
is hereinafter defined) immediately prior to such date; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that in the event that the current per share market price of the Security is
determined during a period following the announcement by the issuer of such Security of (A)&nbsp;a dividend or distribution on such Security payable in shares of such Security or securities
convertible into such shares, or (B)&nbsp;any subdivision, combination or reclassification of such Security or securities convertible into such shares, or (C)&nbsp;any subdivision, combination or
reclassification of such Security and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the current per share market price shall be appropriately adjusted to reflect the current market price per share equivalent of such
Security. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Security is not
listed or admitted to trading on the
New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is
listed or admitted to trading or as reported on the Nasdaq National Market or, if the Security is not listed or admitted to trading on any national securities exchange or reported on the Nasdaq
National Market, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers,&nbsp;Inc. Automated Quotations System ("Nasdaq") or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional market maker making a market in the Security selected by the Board of Directors or, if on any such date no professional
market maker is making a market in the Security, the price as determined in good faith by the Board of Directors. The term "Trading Day" shall mean a day on which the principal national securities
exchange on which the Security is listed or admitted to trading is open for the transaction of business or, if the Security is not listed or admitted to trading on any national securities exchange, a
Business Day. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(ii)</B></FONT><FONT SIZE=2> For the purpose of any computation hereunder, the "current per share market price" of the Preferred Shares shall
be determined in accordance with the method set forth in Section&nbsp;11(d)(i)&nbsp;hereof. If the Preferred Shares are not publicly traded, the "current per share market price" of the Preferred
Shares shall be conclusively deemed to be the current per share market price of the Common Shares as determined pursuant to Section&nbsp;11(d)(i)&nbsp;hereof (appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the date hereof) multiplied by one hundred. If neither the Common Shares nor the Preferred Shares are publicly held or so listed or
traded, "current per share market price" shall mean the fair value per share as determined in good faith by the Board of Directors, whose determination shall be described in a statement filed with the
Rights Agent on which the Rights Agent may conclusively rely. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(e)</B></FONT><FONT SIZE=2>&nbsp;No adjustment in the Purchase Price shall be required unless such adjustment would require an increase or decrease
of at least 1% in the Purchase Price; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that any adjustments which by reason of this Section&nbsp;11(e) are not required to be made
shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section&nbsp;11 shall be made to the nearest cent or to the nearest one
one-hundredth of a Preferred Share or one ten-thousandth of any other share or security as the case may be. Notwithstanding the first sentence of this Section&nbsp;11(e), any
adjustment required by this Section&nbsp;11 shall be made no later than the earlier of (i)&nbsp;three years from </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>12</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=4,SEQ=14,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=163910,FOLIO='12',FILE='DISK012:[01PAL9.01PAL1929]KK1929A.;9',USER='VDESIO',CD='13-JUN-2001;06:16' -->
<A NAME="page_kk1929_1_13"> </A>

<P><FONT SIZE=2>
the date of the transaction which requires such adjustment or (ii)&nbsp;the date of the expiration of the right to exercise any Rights. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(f)</B></FONT><FONT SIZE=2>&nbsp;&nbsp;If as a result of an adjustment made pursuant to Section&nbsp;11(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of capital stock of the Company other than Preferred Shares, thereafter the number of such other shares so receivable upon exercise of any Right
shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Preferred Shares contained in Sections 11(a)
through 11(c) hereof, inclusive, and the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred Shares shall apply on like terms to any such other shares. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(g)</B></FONT><FONT SIZE=2>&nbsp;All Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price, the number of one one-hundredths of a Preferred Share purchasable from time to time hereunder upon exercise of the Rights,
all subject to further adjustment as provided herein. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(h)</B></FONT><FONT SIZE=2>&nbsp;Unless the Company shall have exercised its election as provided in Section&nbsp;11(i)&nbsp;hereof, upon each
adjustment of the Purchase Price as a result of the calculations made in Section&nbsp;11(b) and Section&nbsp;11(c) hereof, each Right outstanding immediately prior to the making of such adjustment
shall thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of one one-hundredths of a Preferred Share (calculated to the nearest one
one-millionth of a Preferred Share) obtained by (i)&nbsp;multiplying (x)&nbsp;the number of one one-hundredths of a Preferred Share covered by a Right immediately prior to
this adjustment by (y)&nbsp;the Purchase Price in effect immediately prior to such adjustment of the Purchase Price and (ii)&nbsp;dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(i)</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The Company may elect on or after the date of any adjustment of the Purchase Price to adjust the number of Rights,
in substitution for any adjustment in the number of one one-hundredths of a Preferred Share purchasable upon the exercise of a Right. Each of the Rights outstanding after such adjustment
of the number of Rights shall be exercisable for the number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to such adjustment. Each Right
held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect immediately after adjustment of the Purchase Price. The Company shall make a public announcement of its
election to adjust the number of Rights (with prompt notice thereof to the Rights Agent), indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the Right Certificates have been issued, shall be at least 10&nbsp;days later than the
date of the public announcement. If Right Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section&nbsp;11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Right Certificates on such record date Right Certificates evidencing, subject to Section&nbsp;14 hereof, the additional Rights to which
such holders shall be entitled as a result of such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of record in substitution and replacement for the Right
Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Right Certificates evidencing all the Rights to which such holders shall
be entitled after such adjustment. Right Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and shall be registered in the names of the
holders of record of Right Certificates on the record date specified in the public announcement. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(j)</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Irrespective of any adjustment or change in the Purchase Price or the number of one one-hundredths of a
Preferred Share issuable upon the exercise of the Rights, the Right Certificates </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>13</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=5,SEQ=15,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=792066,FOLIO='13',FILE='DISK012:[01PAL9.01PAL1929]KK1929A.;9',USER='VDESIO',CD='13-JUN-2001;06:16' -->
<A NAME="page_kk1929_1_14"> </A>

<P><FONT SIZE=2>
theretofore and thereafter issued may continue to express the Purchase Price and the number of one one-hundredths of a Preferred Share which were expressed in the initial Right
Certificates issued hereunder. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(k)</B></FONT><FONT SIZE=2>&nbsp;Before taking any action that would cause an adjustment reducing the Purchase Price below one
one-hundredth of the then par value, if any, of the Preferred Shares issuable upon exercise of the Rights, the Company shall take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and legally issue fully paid and nonassessable Preferred Shares at such adjusted Purchase Price. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(l)</B></FONT><FONT SIZE=2>&nbsp;&nbsp;In any case in which this Section&nbsp;11 shall require that an adjustment in the Purchase Price be made
effective as of a record date for a specified event, the Company may elect to defer (with prompt notice thereof to the Rights Agent) until the occurrence of such event the issuing to the holder of any
Right exercised after such record date of the Preferred Shares and other capital stock or securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that the Company shall deliver to such holder a due bill or other appropriate instrument evidencing such
holder's right to receive such additional shares upon the occurrence of the event requiring such adjustment. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(m)</B></FONT><FONT SIZE=2>&nbsp;The Company covenants and agrees that, after the Distribution Date, it will not, except as permitted by
Section&nbsp;23 or Section&nbsp;27 hereof, take (or permit any Subsidiary to take) any action the purpose of which is to, or if at the time such action is taken it is reasonably foreseeable that
the effect of such action is to, materially diminish or eliminate the benefits intended to be afforded by the Rights. Any such action taken by the Company during any period after any Person becomes an
Acquiring Person but prior to the Distribution Date shall be null and void unless such action could be taken under this Section&nbsp;11(m) from and after the Distribution Date. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(n)</B></FONT><FONT SIZE=2>&nbsp;Anything in this Section&nbsp;11 to the contrary notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those adjustments expressly required by this Section&nbsp;11, as and to the extent that it in its sole discretion shall determine to be advisable in
order that any consolidation or subdivision of the Preferred Shares, issuance wholly for cash of any Preferred Shares at less than the current market price, issuance wholly for cash of Preferred
Shares or securities which by their terms are convertible into or exchangeable for Preferred Shares, dividends on Preferred Shares payable in Preferred Shares or issuance of rights, options or
warrants referred to hereinabove in Section&nbsp;11(b), hereafter made by the Company to holders of its Preferred Shares shall not be taxable to such stockholders. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(o)</B></FONT><FONT SIZE=2>&nbsp;In the event that at any time after the date of this Agreement and prior to the Distribution Date, the Company shall
(i)&nbsp;declare or pay any dividend on the Common Shares payable in Common Shares or (ii)&nbsp;effect a subdivision, combination or consolidation of the Common Shares (by reclassification or
otherwise than by payment of dividends in Common Shares) into a greater or lesser number of Common Shares, then in any such case (A)&nbsp;the number of one one-hundredths of a Preferred
Share purchasable after such event upon proper exercise of each Right shall be determined by multiplying the number of one one-hundredths of a Preferred Share so purchasable immediately
prior to such event by a fraction, the numerator of which is the number of Common Shares outstanding immediately before such event and the denominator of which is the number of Common Shares
outstanding immediately after such event, and (B)&nbsp;each Common Share outstanding immediately after such event shall have issued with respect to it that number of Rights which each Common Share
outstanding immediately prior to such event had issued with respect to it. The adjustments provided for in this Section&nbsp;11(o) shall be made successively whenever such a dividend is declared or
paid or such a subdivision, combination or consolidation is effected. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>14</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=6,SEQ=16,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=127850,FOLIO='14',FILE='DISK012:[01PAL9.01PAL1929]KK1929A.;9',USER='VDESIO',CD='13-JUN-2001;06:16' -->
<A NAME="page_kk1929_1_15"> </A>

<P><FONT SIZE=2>
&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>(p)</B></FONT><FONT SIZE=2>&nbsp;The exercise of Rights under Section&nbsp;11(a)(ii)&nbsp;hereof shall only result in the loss of rights under
Section&nbsp;11(a)(ii)&nbsp;hereof to the extent so exercised and shall not otherwise affect the rights represented by the Rights under this Agreement, including the rights represented by
Section&nbsp;13 hereof. </FONT></P>

<P><FONT SIZE=2><B>SECTION 12.&nbsp;&nbsp;Certificate of Adjusted Purchase Price or Number of Shares.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Whenever an adjustment is made
as provided in Sections 11 or 13 hereof, the Company shall promptly (a)&nbsp;prepare a certificate setting forth such adjustment, and a brief statement of the facts and computations accounting for
such adjustment, (b)&nbsp;file with the Rights Agent and with each transfer agent for the Common Shares or the Preferred Shares a copy of such certificate and (c)&nbsp;mail a brief summary thereof
to each holder of a Right Certificate in accordance with Section&nbsp;25 hereof. The Rights Agent shall be fully protected in relying on any such certificate and on any adjustment therein contained
and shall not be deemed to have knowledge of any adjustment unless and until it shall have received such certificate. </FONT></P>

<P><FONT SIZE=2><B>SECTION 13.&nbsp;&nbsp;Consolidation, Merger or Sale or Transfer of Assets or Earning Power.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;</FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(a)</B></FONT><FONT SIZE=2>&nbsp;In the event that, following the Shares Acquisition Date or, if a Transaction is proposed, the Distribution Date,
directly or indirectly (x)&nbsp;the Company shall consolidate with, or merge with and into, any Interested Stockholder, or if in such merger or consolidation all holders of Common Stock are not
treated alike, any other Person, (y)&nbsp;any Interested Stockholder, or if in such merger or consolidation all holders of Common Stock are not treated alike, any other Person shall consolidate with
the Company, or merge with and into the Company, and the Company shall be the continuing or surviving corporation of such merger (other than, in the case of either transaction described in
(x)&nbsp;or (y), a merger or consolidation which would result in all of the voting power represented by the securities of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into securities of the surviving entity) all of the voting power represented by the securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation and the holders of such securities not having changed as a result of such merger or consolidation), or (z)&nbsp;the Company shall sell,
mortgage or otherwise transfer (or one or more of its subsidiaries shall sell, mortgage or otherwise transfer), in one or more transactions, assets or
earning power aggregating more than 50% of the assets or earning power of the Company and its subsidiaries (taken as a whole) to any Interested Stockholder or Stockholders, or if in such transaction
all holders of Common Stock are not treated alike, any other Person, (other than the Company or any Subsidiary of the Company in one or more transactions each of which individually and the aggregate
does not violate Section&nbsp;13(d) hereof) then, and in each such case, proper provision shall be made so that (i)&nbsp;each holder of a Right, subject to Section&nbsp;11(a)(ii)&nbsp;hereof,
shall have the right to receive, upon the exercise thereof at a price equal to the then current Purchase Price multiplied by the number of one one-hundredths of a Preferred Share for which
a Right is then exercisable in accordance with the terms of this Agreement and in lieu of Preferred Shares, such number of freely tradeable Common Shares of the Principal Party (as such term is
hereinafter defined), free and clear of liens, rights of call or first refusal, encumbrances or other adverse claims, as shall be equal to the result obtained by (A)&nbsp;multiplying the then
current Purchase Price by the number of one one-hundredths of a Preferred Share for which a Right is then exercisable (without taking into account any adjustment previously made pursuant
to Section&nbsp;11(a)(ii)&nbsp;hereof) and dividing that product by (B)&nbsp;50% of the then current per share market price of the Common Shares of such Principal Party (determined pursuant to
Section&nbsp;11(d) hereof) on the date of consummation of such consolidation, merger, sale or transfer; (ii)&nbsp;such Principal Party shall thereafter be liable for, and shall assume, by virtue
of such consolidation, merger, sale or transfer, all the obligations and duties of the Company pursuant to this Agreement; (iii)&nbsp;the term "Company" shall thereafter be deemed to refer to such
Principal Party, it being specifically intended that the provisions of Section&nbsp;11 hereof shall apply to such Principal Party; and (iv)&nbsp;such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient number of shares of its Common Shares in accordance with Section&nbsp;9 hereof) in connection with such consummation as may be
necessary to assure that the provisions hereof shall thereafter be </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>15</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=7,SEQ=17,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=596204,FOLIO='15',FILE='DISK012:[01PAL9.01PAL1929]KK1929A.;9',USER='VDESIO',CD='13-JUN-2001;06:16' -->
<A NAME="page_kk1929_1_16"> </A>

<P><FONT SIZE=2>
applicable, as nearly as reasonably may be, in relation to its Common Shares thereafter deliverable upon the exercise of the Rights. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(b)</B></FONT><FONT SIZE=2>&nbsp;"Principal Party" shall mean: </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(i)</B></FONT><FONT SIZE=2> in the case of any transaction described in clause&nbsp;(x) or (y)&nbsp;of Section&nbsp;13(a) hereof, the
Person that is the issuer of any securities into which Common Shares are converted in such merger or consolidation, and if no securities are so issued, the Person that is the other party to the merger
or consolidation (or, if applicable, the Company, if it is the surviving corporation); and </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(ii)</B></FONT><FONT SIZE=2> in the case of any transaction described in clause&nbsp;(z) of Section&nbsp;13(a) hereof, the Person that is
the party receiving the greatest portion of the assets or earning power transferred pursuant to such transaction or transactions; </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that in any case, (1)&nbsp;if the Common Shares of such Person are not at such time and have not been continuously
over the preceding 12-month period registered under Section&nbsp;12 of the Exchange Act, and such Person is a direct or indirect Subsidiary or Affiliate of another Person the
Common Shares of which are and have been so registered, "Principal Party" shall refer to such other Person; (2)&nbsp;if such Person is a Subsidiary, directly or indirectly, or Affiliate of more than
one Person, the Common Shares of two or more of which are and have been so registered, "Principal Party" shall refer to whichever of such Persons is the issuer of the Common Shares having the greatest
aggregate market value; and (3)&nbsp;if such Person is owned, directly or indirectly, by a joint venture formed by two or more Persons that are not owned, directly or indirectly, by the same Person,
the rules set forth in (1)&nbsp;and (2)&nbsp;above shall apply to each of the chains of ownership having an interest in such joint venture as if such party were a "Subsidiary" of both or all of
such joint venturers and the Principal Parties in each such chain shall bear the obligations set forth in this Section&nbsp;13 in the same ratio as their direct or indirect interests in such Person
bear to the total of such interests. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(c)</B></FONT><FONT SIZE=2>&nbsp;The Company shall not consummate any such consolidation, merger, sale or transfer unless the Principal Party shall
have a sufficient number of authorized Common Shares that have not been issued or reserved for issuance to permit the exercise in full of the Rights in accordance with this Section&nbsp;13 and
unless prior thereto the Company and each Principal Party and each other Person who may become a Principal Party as a result of such consolidation, merger, sale or transfer shall have
(i)&nbsp;executed and delivered to the Rights Agent a supplemental agreement providing for the terms set forth in paragraphs (a)&nbsp;and (b)&nbsp;of this Section&nbsp;13 and
(ii)&nbsp;prepared, filed and had declared and remain effective a registration statement under the Act on the appropriate form with respect to the Rights and the securities exercisable upon exercise
of the Rights and further providing that, as soon as practicable after the date of any consolidation, merger, sale or transfer of assets mentioned in paragraph&nbsp;(a) of this Section&nbsp;13,
the Principal Party at its own expense will: </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(i)</B></FONT><FONT SIZE=2> cause the registration statement under the Act with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form to remain effective (with a prospectus at all times meeting the requirements of the Act) until the Final Expiration Date; </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(ii)</B></FONT><FONT SIZE=2> use its best efforts to qualify or register the Rights and the securities purchasable upon exercise of the Rights
under the blue sky laws of such jurisdictions as may be necessary or appropriate; </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(iii)</B></FONT><FONT SIZE=2> list the Rights and the securities purchasable upon exercise of the Rights on each national securities exchange
on which the Common Shares were listed prior to the consummation of such consolidation, merger, sale or transfer of assets or on the Nasdaq National Market if the Common Shares were listed on the
Nasdaq National Market or, if the Common Shares were not listed on a national securities exchange or the Nasdaq National Market prior to the consummation of such consolidation, merger, sale or
transfer of assets, on a national securities exchange or the Nasdaq National Market; and </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>16</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=8,SEQ=18,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=324405,FOLIO='16',FILE='DISK012:[01PAL9.01PAL1929]KK1929A.;9',USER='VDESIO',CD='13-JUN-2001;06:16' -->
<!-- Generated by Merrill Corporation (www.merrillcorp.com) -->

<P><FONT SIZE=2><A
NAME="page_kl1929_1_17"> </A>
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>(iv)</B></FONT><FONT SIZE=2> deliver to holders of the Rights historical financial statements for the Principal Party and each of its
Affiliates which comply in all material respects with the requirements for registration on Form&nbsp;10 under the Exchange Act. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
provisions of this Section&nbsp;13 shall similarly apply to successive mergers or consolidations or sales or other transfers. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(d)</B></FONT><FONT SIZE=2>&nbsp;After the Distribution Date, the Company covenants and agrees that it shall not (i)&nbsp;consolidate with,
(ii)&nbsp;merge with or into, or (iii)&nbsp;sell or transfer to, in one or more transactions, assets or earning power aggregating more than 50% of the assets or earning power of the Company and
its subsidiaries taken as a whole, any other Person (other than a Subsidiary of the Company in a transaction which does not violate Section&nbsp;11(m) hereof), if (x)&nbsp;at the time of or after
such consolidation, merger or sale there are any charter or bylaw provisions or any rights, warrants or other instruments or securities outstanding, agreements in effect or any other action taken
which would diminish or otherwise eliminate the benefits intended to be afforded by the Rights or (y)&nbsp;prior to, simultaneously with or immediately after such consolidation, merger or sale, the
stockholders of the Person who constitutes, or would constitute, the "Principal Party" for purposes of Section&nbsp;13(a) hereof shall have received a distribution of Rights previously owned by such
Person or any of its Affiliates and Associates. The Company shall not consummate any such consolidation, merger, sale or transfer unless prior thereto the Company and such other Person shall have
executed and delivered to the Rights Agent a supplemental agreement evidencing compliance with this Section&nbsp;13(d). </FONT></P>

<P><FONT SIZE=2><B>SECTION 14.&nbsp;&nbsp;Fractional Rights and Fractional Shares.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;</FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(a)</B></FONT><FONT SIZE=2>&nbsp;The Company shall not be required to issue fractions of Rights or to distribute Right Certificates which evidence
fractional Rights. In lieu of such fractional Rights, there shall be paid to the registered holders of the Right Certificates with regard to which such fractional Rights would otherwise be issuable,
an amount in cash equal to the same fraction of the current market value of a whole Right. For the purposes of this Section&nbsp;14(a), the current market value of a whole Right shall be the closing
price of the Rights for the Trading Day immediately prior to the date on which such fractional Rights would have been otherwise issuable. The closing price for any day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Rights are not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Rights are listed or admitted to
trading or as reported on the Nasdaq National Market or, if the Rights are not listed or admitted to trading on any national securities exchange or reported on the Nasdaq National Market, the last
quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by Nasdaq or
such other system then in use or, if on any such date the Rights are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker
making a market in the Rights selected by the Board of Directors. If on any such date no such market maker is making a market in the Rights, the fair value of the Rights on such date as determined in
good faith by the Board of Directors shall be used. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(b)</B></FONT><FONT SIZE=2>&nbsp;The Company shall not be required to issue fractions of Preferred Shares (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share) upon exercise of the Rights or to distribute certificates which evidence fractional Preferred Shares (other than fractions which are
integral multiples of one one-hundredth of a Preferred Share). Fractions of Preferred Shares in integral multiples of one one-hundredth of a Preferred Share may, at the
election of the Company, be evidenced by depositary receipts; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that holders of such depositary receipts shall have all of the
designations and the powers, preferences and rights, and the qualifications, limitations and restrictions to which they are entitled as beneficial owners of the Preferred Shares represented by such </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>17</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=1,SEQ=19,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=489255,FOLIO='17',FILE='DISK012:[01PAL9.01PAL1929]KL1929A.;8',USER='VDESIO',CD='13-JUN-2001;06:13' -->
<A NAME="page_kl1929_1_18"> </A>

<P><FONT SIZE=2>
depositary receipts. In lieu of fractional Preferred Shares that are not integral multiples of one one-hundredth of a Preferred Share, the Company shall pay to the registered holders of
Right Certificates at the time such Rights are exercised as herein provided an amount in cash equal to the same fraction of the current market value of one Preferred Share. For the purposes of this
Section&nbsp;14(b), the current market value of a Preferred Share shall be the current per share market price of the Preferred Shares (as determined pursuant to the second sentence of
Section&nbsp;11(d)(i)&nbsp;hereof) for the Trading Day immediately prior to the date of such exercise (or, if not publicly traded, in accordance with Section&nbsp;11(d)(ii)&nbsp;hereof). </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(c)</B></FONT><FONT SIZE=2>&nbsp;Following the occurrence of one of the transactions or events specified in Section&nbsp;11 hereof giving rise to
the right to receive Common Shares, capital stock equivalents (other than Preferred Shares) or other securities upon the exercise of a Right, the Company shall not be required to issue fractions of
Common Shares or units of such Common Shares, capital stock equivalents or other securities upon exercise of the Rights or to distribute certificates which evidence fractional Common Shares, capital
stock equivalents or other securities. In lieu of fractional Common Shares, capital stock equivalents or other securities, the Company shall pay to the registered holders of Right Certificates at the
time such Rights are exercised as herein provided an amount in cash equal to the same fraction of the current market value of one Common Share or unit of such Common Shares, capital stock equivalents
or other securities. For purposes of this Section&nbsp;14(c), the current market value shall be the current per share market price (as determined pursuant to Section&nbsp;11(d)(i)&nbsp;hereof)
for the Trading Day immediately prior to the date of such exercise and, if such capital stock equivalent is not traded, each such capital stock equivalent shall have the value of one
one-hundredth of a Preferred Share. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(d)</B></FONT><FONT SIZE=2>&nbsp;The holder of a Right by the acceptance of the Right expressly waives his right to receive any fractional Rights or
any fractional shares upon exercise of a Right (except as provided above). </FONT></P>

<P><FONT SIZE=2><B>SECTION 15.&nbsp;&nbsp;Rights of Action.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;All rights of action in respect of this Agreement, excepting the rights of
action given to the Rights Agent under this Agreement, are vested in the respective registered holders of the Right Certificates (and, prior to the Distribution Date, the registered holders of the
Common Shares) and any registered holder of any Right Certificate (or, prior to the Distribution Date, of the Common Shares), without the consent of the Rights Agent or of the holder of any other
Right Certificate (or, prior to the Distribution Date, of the Common Shares), may, in his own behalf and for his own benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to exercise the Rights evidenced by such Right Certificate in the manner provided in such Right Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the holders of Rights, it is specifically acknowledged that the holders of Rights would not have an adequate remedy at law for
any breach of this Agreement and will be entitled to specific performance of the obligations under, and injunctive relief against actual or threatened violations of the obligations of any Person
subject to, this Agreement. Holders of Rights shall be entitled to recover the reasonable costs and expenses, including attorneys fees, incurred by them in any action to enforce the provisions of this
Agreement. </FONT></P>

<P><FONT SIZE=2><B>SECTION 16.&nbsp;&nbsp;Agreement of Right Holders.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Every holder of a Right, by accepting the same, consents and
agrees with the Company and the Rights Agent and with every other holder of a Right that: </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(a)</B></FONT><FONT SIZE=2>&nbsp;prior to the Distribution Date, the Rights will be transferable only in connection with the transfer of the Common
Shares; </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(b)</B></FONT><FONT SIZE=2>&nbsp;after the Distribution Date, the Right Certificates are transferable (subject to the provisions of this Agreement)
only on the registry books of the Rights Agent if surrendered at the office of the Rights Agent, duly endorsed or accompanied by a proper instrument of transfer; </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(c)</B></FONT><FONT SIZE=2>&nbsp;the Company and the Rights Agent shall deem and treat the Person in whose name the Right Certificate (or, prior to
the Distribution Date, the associated Common Shares certificate) is registered </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>18</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=2,SEQ=20,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=202494,FOLIO='18',FILE='DISK012:[01PAL9.01PAL1929]KL1929A.;8',USER='VDESIO',CD='13-JUN-2001;06:13' -->
<A NAME="page_kl1929_1_19"> </A>

<P><FONT SIZE=2>
as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any notations of ownership or writing on the Right Certificates or the associated Common Shares certificate made by
anyone other than the Company or the Rights Agent) for all purposes whatsoever, and neither the Company nor the Rights Agent shall be affected by any notice to the contrary; and </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(d)</B></FONT><FONT SIZE=2>&nbsp;notwithstanding anything in this Agreement to the contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other
order, decree, judgment or ruling (whether interlocutory or final) issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or
any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation. </FONT></P>

<P><FONT SIZE=2><B>SECTION 17.&nbsp;&nbsp;Right Certificate Holder Not Deemed a Stockholder.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;No holder, as such, of any Right
Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the holder of the Preferred Shares or any other securities of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein or in any Right Certificate be construed to confer upon the holder of any Right Certificate, as such, any of the rights
of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions affecting stockholders (except as provided in Section&nbsp;25 hereof), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by such Right Certificate shall have been exercised in accordance with the provisions hereof. </FONT></P>

<P><FONT SIZE=2><B>SECTION 18.&nbsp;&nbsp;Concerning the Rights Agent.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable expenses and counsel fees and other disbursements incurred in the
preparation, delivery, administration, execution and amendment of this Agreement and the exercise and performance of its duties hereunder. The Company also agrees to indemnify the Rights Agent for,
and to hold it harmless against, any loss, liability, damage, judgment, fine, penalty, claim, demand settlement, cost or expense, incurred without gross negligence, bad faith or willful misconduct on
the part of the Rights Agent, (as finally determined by a court of competent jurisdiction), for any action taken, suffered or omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement including, without limitation, the costs and expenses of defending against any claim of liability. The indemnification, exculpation and compensation provisions
provided to the Rights Agent in this Agreement shall survive the expiration of the Rights, the termination of this Agreement and the resignation or removal of the Rights Agent. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
Rights Agent shall be authorized to rely on, shall be protected and shall incur no liability for, or in respect of any action taken, suffered or omitted by it in connection with,
acceptance and administration of this Agreement or the exercise or performance of its duties hereunder in reliance upon any Right Certificate or certificate for the Preferred Shares or Common Shares
or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice or opinion of counsel as
set forth in Section&nbsp;20 hereof. Anything to the contrary notwithstanding, in no event shall the Rights Agent be liable for special, punitive, indirect, consequential or incidental loss or
damage of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage. Any liability of the Rights Agent under
this Rights Agreement will be limited to the amount of fees paid by the Company to the Rights Agent. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>19</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=3,SEQ=21,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=109977,FOLIO='19',FILE='DISK012:[01PAL9.01PAL1929]KL1929A.;8',USER='VDESIO',CD='13-JUN-2001;06:13' -->
<A NAME="page_kl1929_1_20"> </A>

<P><FONT SIZE=2><B>SECTION 19.&nbsp;&nbsp;Merger or Consolidation or Change of Name of Rights Agent.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Any Person into which the Rights
Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any Person resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent
shall be a party, or any Person succeeding to the shareholder services or corporate trust business of the Rights Agent or any successor Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible for appointment as a successor
Rights Agent under the provisions of Section&nbsp;21 hereof. In case at the time such successor Rights Agent shall succeed to the agency created by this Agreement any of the Right Certificates shall
have been countersigned but not delivered, any such successor Rights Agent may adopt the countersignature of the predecessor Rights Agent and deliver such Right Certificates so countersigned; and in
case at that time any of the Right Certificates shall not have been countersigned, any successor Rights Agent may countersign such Right Certificates either in the name of the predecessor Rights Agent
or in the name of the successor Rights Agent; and in all such cases such Right Certificates shall have the full force provided in the Right Certificates and in this Agreement. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;In
case at any time the name of the Rights Agent shall be changed and at such time any of the Right Certificates shall have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver Right Certificates so countersigned; and in case at that time any of the Right Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its prior name or in its changed name; and in all such cases such Right Certificates shall have the full force provided in the Right
Certificates and in this Agreement. </FONT></P>

<P><FONT SIZE=2><B>SECTION 20.&nbsp;&nbsp;Duties of Rights Agent.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The Rights Agent undertakes only the duties and obligations
expressly imposed by this Agreement (an no implied duties or obligations) upon the following terms and conditions, by all of which the Company and the holders of Right Certificates, by their
acceptance thereof, shall be bound: </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(a)</B></FONT><FONT SIZE=2>&nbsp;The Rights Agent may consult with legal counsel of its choice (who may be legal counsel for the Company), and the
advice or opinion of such counsel shall be full and complete authorization and protection to the Rights Agent and the Rights Agent shall incur no liability for or in respect of any action taken,
suffered or omitted by it in good faith and in accordance with such advice or opinion. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(b)</B></FONT><FONT SIZE=2>&nbsp;Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter be proved or established by the Company prior to taking, suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed by any one of the Chairman of the Board, the Chief Executive Officer, the Chief Financial
Officer, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization and protection to the Rights Agent for
any action taken, suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon such certificate. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(c)</B></FONT><FONT SIZE=2>&nbsp;The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence,
bad faith or willful misconduct as finally determined by a court of competent jurisdiction. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(d)</B></FONT><FONT SIZE=2>&nbsp;The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this
Agreement or in the Right Certificates (except its countersignature thereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the
Company only. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>20</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=4,SEQ=22,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=595899,FOLIO='20',FILE='DISK012:[01PAL9.01PAL1929]KL1929A.;8',USER='VDESIO',CD='13-JUN-2001;06:13' -->
<A NAME="page_kl1929_1_21"> </A>

<P><FONT SIZE=2>
&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>(e)</B></FONT><FONT SIZE=2>&nbsp;The Rights Agent shall not have any liability for, nor be under any responsibility in respect of the validity of
this Agreement or the execution and delivery hereof (except the due execution hereof by the Rights Agent) or in respect of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be liable or responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Right Certificate; nor shall it be
liable or responsible for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section&nbsp;11(a)(ii)&nbsp;hereof) or any adjustment in the terms of the
Rights (including the manner, method or amount thereof) provided for in Sections 3, 11, 13, 23 or 24 hereof, or the ascertaining of the existence of facts that would require any such change or
adjustment (except with respect to the exercise of Rights evidenced by Right Certificates after receipt of a certificate pursuant to Section&nbsp;12 hereof describing such change or adjustment); nor
shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Preferred Shares to be issued pursuant to this Agreement or any Right
Certificate or as to whether any Preferred Shares will, when issued, be validly authorized and issued, fully paid and nonassessable. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(f)</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the
provisions of this Agreement. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(g)</B></FONT><FONT SIZE=2>&nbsp;The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its
duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, any Vice President, the Secretary or the Treasurer of the Company, and to apply to
such officers for advice or instructions in connection with its duties, and such advice or instructions shall be full authorization and protection to the Rights Agent and the Rights Agent shall incur
no liability for or in respect of any action taken, suffered or omitted by it in good faith in accordance with the advice or instructions of any such officer or for any delay in acting while waiting
for such advice or instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be
taken, suffered or omitted by the Rights Agent with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, suffered or omitted and the
Rights Agent shall not be liable for any action taken, suffered or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall not
be less than five Business Days after the date indicated in such application unless any such officer shall have consented in writing to an earlier date) unless, prior to taking, suffering or omitting
any such action, the Rights Agent has received written instructions in response to such application specifying the action to be taken, suffered or omitted. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(h)</B></FONT><FONT SIZE=2>&nbsp;The Rights Agent and any stockholder, director, Affiliates, officer or employee of the Rights Agent may buy, sell or
deal in any of the Rights or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were not Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company or for
any other Person. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(i)</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company, any holders of Rights or any other Person resulting from any such act, default, neglect or misconduct, absent gross negligence or willful misconduct (as finally
determined by a court of competent jurisdiction) in the selection and continued employment thereof. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>21</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=5,SEQ=23,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=379597,FOLIO='21',FILE='DISK012:[01PAL9.01PAL1929]KL1929A.;8',USER='VDESIO',CD='13-JUN-2001;06:13' -->
<!-- Generated by Merrill Corporation (www.merrillcorp.com) -->

<P><FONT SIZE=2><A
NAME="page_km1929_1_22"> </A>
&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>(j)</B></FONT><FONT SIZE=2>&nbsp;&nbsp;No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if it believes that repayment of such funds or adequate indemnification against such risk or
liability is not reasonably assured to it. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(k)</B></FONT><FONT SIZE=2>&nbsp;If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate
attached to the form of assignment or form of election to purchase, as the case may be, has not been properly completed or executed, the Rights Agent shall not take any further action with respect to
such requested exercise of transfer without first consulting with the Company. </FONT></P>

<P><FONT SIZE=2><B>SECTION 21.&nbsp;&nbsp;Change of Rights Agent.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;The Rights Agent or any successor Rights Agent may resign and be
discharged from its duties under this Agreement upon 30&nbsp;days' notice in writing mailed to the Company and to each transfer agent for the Common Shares or Preferred Shares by registered or
certified mail. The Company may remove the Rights Agent or any successor Rights Agent upon 30&nbsp;days' notice in writing, mailed to the Rights Agent or successor Rights Agent, as the case may be,
and to each transfer agent for the Common Shares or Preferred Shares by registered or certified mail. If the Rights Agent shall resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the Company shall fail to make such appointment within a period of 30&nbsp;days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or incapacitated Rights Agent or by the holder of a Right Certificate (who shall, with such notice, submit his Right Certificate
for inspection by the Company), then the registered holder of any Right Certificate may apply to any court of competent jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall be either (a)&nbsp;a Person organized and doing business under the laws of the United States or of any other state of the United
States which is authorized under such laws to exercise corporate trust or shareholder services and is subject to supervision or examination by federal or state authority and which has at the time of
its appointment as Rights Agent a combined capital and surplus of at least $50&nbsp;million or (b)&nbsp;an Affiliate of such an entity or its wholly-owning parent. After appointment, the successor
Rights Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Rights Agent without further act or deed; but the predecessor Rights Agent
shall deliver and transfer to the successor Rights Agent any property at the time held by it hereunder, and execute and deliver any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment the Company shall file notice thereof in writing with the predecessor Rights Agent and each transfer agent for the Common Shares or
Preferred Shares, and mail a notice thereof in writing to the registered holders of the Right Certificates. Failure to give any notice provided for in this Section&nbsp;21, </FONT> <FONT SIZE=2><I>however,</I></FONT><FONT SIZE=2> or any defect
therein, shall not affect the legality or validity of the resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be. </FONT></P>

<P><FONT SIZE=2><B>SECTION 22.&nbsp;&nbsp;Issuance of New Right Certificates.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Notwithstanding any of the provisions of this Agreement
or of the Rights to the contrary, the Company may, at its option, issue new Right
Certificates evidencing Rights in such form as may be approved by its Board of Directors to reflect any adjustment or change in the Purchase Price and the number or kind or class of shares or other
securities or property purchasable under the Right Certificates made in accordance with the provisions of this Agreement. In addition, in connection with the issuance or sale of Common Shares
following the Distribution Date and prior to the earlier of the Redemption Date and the Final Expiration Date, the Company (a)&nbsp;shall with respect to Common Shares so issued or sold pursuant to
the exercise of stock options or under any employee plan or arrangement in existence prior to the Distribution Date, or upon the exercise, conversion or exchange of securities, notes or debentures
issued by the Company and in existence prior to the Distribution Date, and (b)&nbsp;may, in any other case, if deemed necessary or appropriate by the Board of Directors, issue Right Certificates
representing the appropriate number of Rights in connection with such issuance or sale; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that (i)&nbsp;the Company shall not be </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>22</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=1,SEQ=24,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=497779,FOLIO='22',FILE='DISK012:[01PAL9.01PAL1929]KM1929A.;12',USER='VDESIO',CD='13-JUN-2001;06:14' -->
<A NAME="page_km1929_1_23"> </A>

<P><FONT SIZE=2>
obligated to issue any such Right Certificates if, and to the extent that, the Company shall be advised by counsel that such issuance would create a significant risk of material adverse tax
consequences to the Company or the Person to whom such Right Certificate would be issued, and (ii)&nbsp;no Right Certificate shall be issued if, and to the extent that, appropriate adjustment shall
otherwise have been made in lieu of the issuance thereof. </FONT></P>

<P><FONT SIZE=2><B>SECTION 23.&nbsp;&nbsp;Redemption.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;</FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(a)</B></FONT><FONT SIZE=2>&nbsp;The Rights may be redeemed by action of the Board of Directors pursuant to Section&nbsp;23(b) hereof and shall not
be redeemed in any other manner. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(b)</B></FONT><FONT SIZE=2>&nbsp;</FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(i)</B></FONT><FONT SIZE=2> The Board of Directors may, at its option, at any time prior to the earlier of (A)&nbsp;such time as any Person
becomes an Acquiring Person, or (B)&nbsp;the Final Expiration Date, redeem all but not less than all of the then outstanding Rights at a redemption price of $0.001 per Right, appropriately adjusted
to reflect any stock split, stock dividend or similar transaction occurring after the date hereof (such redemption price being hereinafter referred to as the "Redemption Price"), and the Company may,
at its option, pay the Redemption Price in Common Shares (based on the "current per-share market price," as such term is defined in Section&nbsp;11(d) hereof, of Common Shares at the
time of redemption), cash or any other form of consideration deemed appropriate by the Board of Directors. The redemption of the Rights by the Board of Directors may be made effective at such time, on
such basis and subject to such conditions as the Board of Directors in its sole discretion may establish. Notwithstanding anything contained in this Agreement to the contrary, the Rights shall not be
exercisable pursuant to Section&nbsp;11(a)(ii)&nbsp;hereof prior to the expiration or termination of the Company's right of redemption under this Section&nbsp;23(b)(i). </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(ii)</B></FONT><FONT SIZE=2> In addition, the Board of Directors may, at its option, at any time after the time a Person becomes an Acquiring
Person and after the expiration of any period during which the holder of Rights may exercise the rights under Section&nbsp;11(a)(ii)&nbsp;hereof but prior to any event described in
clause&nbsp;(x), (y)&nbsp;or (z)&nbsp;of the first sentence of Section&nbsp;13 hereof, redeem all but not less than all of the then outstanding Rights at the Redemption Price (x)&nbsp;in
connection with any merger, consolidation or sale or other transfer (in one transaction or in a series of related transactions) of assets or earning power aggregating 50% or more of the assets or
earning power of the Company and its subsidiaries (taken as a whole) in which all holders of Common Shares are treated alike and not involving (other than as a holder of Common Shares being treated
like all other such holders) an Interested Stockholder or a Transaction Person or (y)(A) if and for so long as the Acquiring Person is not thereafter the Beneficial Owner of 15% or more of the then
outstanding Common Shares, and (B)&nbsp;at the time of redemption no other Persons are Acquiring Persons. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(c)</B></FONT><FONT SIZE=2>&nbsp;Immediately upon the action of the Board of Directors ordering the redemption of the Rights pursuant to
Section&nbsp;23(b) hereof, and without any further action and without any notice, the right to exercise the Rights will terminate and the only right thereafter of the holders of Rights shall be to
receive the Redemption Price. The Company shall promptly give public notice of any such redemption with prompt notice thereof to the Rights Agent; </FONT><FONT SIZE=2><I>provided,
however,</I></FONT><FONT SIZE=2> that the failure to give, or any defect in, any such notice shall not affect the validity of such redemption. Within 10&nbsp;days after such action of the Board of
Directors ordering the redemption of the Rights pursuant to Section&nbsp;23(b) hereof, the Company shall mail a notice of redemption to all the holders of the then outstanding Rights at their last
addresses as they appear upon the registry books of the Rights Agent or, prior to the Distribution Date, on the registry books of the transfer agent for the Common Shares with prompt notice thereof to
the Rights Agent, </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that failure to give, or any defect in, any such notice shall not affect the validity of such redemption. Any
notice which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of redemption will state the method by which the payment of
the Redemption Price will be made. Neither </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>23</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=2,SEQ=25,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=732127,FOLIO='23',FILE='DISK012:[01PAL9.01PAL1929]KM1929A.;12',USER='VDESIO',CD='13-JUN-2001;06:14' -->
<A NAME="page_km1929_1_24"> </A>

<P><FONT SIZE=2>
the Company nor any of its Affiliates or Associates may redeem, acquire or purchase for value any Rights at any time in any manner other than that specifically set forth in this Section&nbsp;23 or
in Section&nbsp;24 hereof, and other than in connection with the purchase of Common Shares prior to the Distribution Date. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(d)</B></FONT><FONT SIZE=2>&nbsp;The Company may, at its option, discharge all of its obligations with respect to any redemption of the Rights by
(i)&nbsp;issuing a press release announcing the manner of redemption of the Rights and (ii)&nbsp;mailing payment of the Redemption Price to the registered holders of the Rights at their last
addresses as they appear on the registry books of the Rights Agent or, prior to the Distribution Date, on the registry books of the transfer agent for the Common Shares, and upon such action, all
outstanding Right Certificates shall be null and void without any further action by the Company. </FONT></P>


<P><FONT SIZE=2><B>SECTION 24.&nbsp;&nbsp;Exchange.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;</FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(a)</B></FONT><FONT SIZE=2>&nbsp;The Board of Directors may, at its option, at any time after any Person becomes an Acquiring Person, exchange all or
part of the then outstanding and exercisable Rights (which shall not include Rights that have become null and void pursuant to the provisions of Section&nbsp;11(a)(ii)&nbsp;hereof) for Common
Shares at an exchange ratio of one Common Share per Right, appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date hereof (such exchange ratio
being hereinafter referred to as the "Exchange Ratio"). Notwithstanding the foregoing, the Board of Directors shall not be empowered to effect such exchange at any time after any Person (other than
the Company, any Subsidiary of the Company, any employee benefit plan of the Company or any such Subsidiary, or any entity holding Common Shares for or pursuant to the terms of any such plan),
together with all Affiliates and Associates of such Person, becomes the Beneficial Owner of 50% or more of the Common Shares then outstanding. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(b)</B></FONT><FONT SIZE=2>&nbsp;Immediately upon the action of the Board of Directors ordering the exchange of any Rights pursuant to
Section&nbsp;24(a) hereof and without any further action and without any notice, the right to exercise such Rights shall terminate and the only right thereafter of a holder of such Rights shall be
to receive that number of Common Shares equal to the number of such Rights held by such holder multiplied by the Exchange Ratio. The Company shall promptly give public notice of any such exchange
(with prompt notice thereof to the Rights Agent); </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that the failure to give, or any defect in, such notice shall not affect the
validity of such exchange. The Company promptly shall mail a notice of any such exchange to all of the holders of such Rights at their last addresses as they appear upon the registry books of the
Rights Agent (with prompt notice thereof to the Rights Agent); </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. Any notice which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of exchange will
state the method by which the exchange of the Common Shares for Rights will be effected and, in the event of any partial exchange, the number of Rights which will be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights which have become void pursuant to the provisions of Section&nbsp;11(a)(ii)&nbsp;hereof) held by each holder of Rights. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(c)</B></FONT><FONT SIZE=2>&nbsp;In lieu of issuing Common Shares in accordance with Section&nbsp;24(a) hereof, the Company may, if a majority of
the Board of Directors then in office determines that such action is necessary or appropriate and not contrary to the interests of the holders of Rights, elect to (and, in the event that there are not
sufficient treasury shares and authorized but unissued Common Shares to permit any exchange of the Rights in accordance with Section&nbsp;24(a) hereof, the Company shall) take all such action as may
be necessary to authorize, issue or pay, upon the exchange of the Rights, cash, property, Common Shares, other securities or any combination thereof having an aggregate value equal to the value of the
Common Shares which otherwise would have been issuable pursuant to Section&nbsp;24(a) hereof, which aggregate value shall be determined by a nationally recognized investment banking firm selected by
a majority of the Board of Directors then in office. For purposes of the preceding sentence, </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>24</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=3,SEQ=26,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=850109,FOLIO='24',FILE='DISK012:[01PAL9.01PAL1929]KM1929A.;12',USER='VDESIO',CD='13-JUN-2001;06:14' -->
<A NAME="page_km1929_1_25"> </A>

<P><FONT SIZE=2>
the value of the Common Shares shall be determined pursuant to Section&nbsp;11(d) hereof. Any election pursuant to this Section&nbsp;24(c) by the Board of Directors must be made by resolution
within 60&nbsp;days following the date on which the event described in Section&nbsp;11(a)(ii)&nbsp;hereof shall have occurred. Following the occurrence of the event described in
Section&nbsp;11(a)(ii)&nbsp;hereof, a majority of the Board of Directors then in office may suspend the exercisability of the Rights for a period of up to 60&nbsp;days
following the date on which the event described in Section&nbsp;11(a)(ii)&nbsp;hereof shall have occurred to the extent that such directors have not determined whether to exercise their rights of
exchange under this Section&nbsp;24(c). In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily
suspended. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(d)</B></FONT><FONT SIZE=2>&nbsp;The Company shall not be required to issue fractions of Common Shares or to distribute certificates which evidence
fractional Common Shares. In lieu of such fractional Common Shares, the Company shall pay to the registered holders of the Right Certificates with regard to which such fractional Common Shares would
otherwise be issuable an amount in cash equal to the same fraction of the current market value of a whole Common Share. For the purposes of this Section&nbsp;24(d), the current market value of a
whole Common Share shall be the closing price of a Common Share (as determined pursuant to the second sentence of Section&nbsp;11(d)(i)&nbsp;hereof) for the Trading Day immediately after the date
of the first public announcement by the Company that an exchange is to be effected pursuant to this Section&nbsp;24. </FONT></P>

<P><FONT SIZE=2><B>SECTION 25.&nbsp;&nbsp;Notice of Certain Events.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;</FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(a)</B></FONT><FONT SIZE=2>&nbsp;In case the Company shall propose (i)&nbsp;to pay any dividend payable in stock of any class to the holders of its
Preferred Shares or to make any other distribution to the holders of its Preferred Shares (other than a regular quarterly cash dividend), (ii)&nbsp;to offer to the holders of its Preferred Shares
rights or warrants to subscribe for or to purchase any additional Preferred Shares or shares of stock of any class or any other securities, rights or options, (iii)&nbsp;to effect any
reclassification of its Preferred Shares (other than a reclassification involving only the subdivision of outstanding Preferred Shares), (iv)&nbsp;to effect any consolidation or merger into or with,
or to effect any sale or other transfer (or to permit one or more of its Subsidiaries to effect any sale or other transfer), in one or more transactions, of 50% or more of the assets or earning power
of the Company and its Subsidiaries (taken as a whole), to any other Person, (v)&nbsp;to effect the liquidation, dissolution or winding up of the Company, or (vi)&nbsp;to declare or pay any
dividend on the Common Shares payable in Common Shares or to effect a subdivision, combination or consolidation of the Common Shares (by reclassification or otherwise than by payment of dividends in
Common Shares), then, in each such case, the Company shall give to each holder of a Right Certificate after the Distribution Date and to the Rights Agent, in accordance with Section&nbsp;26 hereof,
a notice of such proposed action, which shall specify the record date for the purpose of such stock dividend, or distribution of rights or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution, or winding up is to take place and the date of participation therein by the holders of the Common Shares and/or the Preferred Shares,
if any such date is to be fixed, and such notice shall be so given in the case of any action covered by clause&nbsp;(i) or (ii)&nbsp;above at least 10&nbsp;days prior to the record date for
determining holders of the Preferred Shares for purposes of such action, and in the case of any such other action, at least 10&nbsp;days prior to the date of the taking of such proposed action or
the date of participation therein by the holders of the Common Shares and/or the Preferred Shares, whichever shall be the earlier. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>(b)</B></FONT><FONT SIZE=2>&nbsp;In case the event set forth in Section&nbsp;11(a)(ii)&nbsp;hereof shall occur, then the Company shall as soon as
practicable thereafter give to each holder of a Right Certificate and to the Rights Agent, in accordance with Section&nbsp;26 hereof, a notice of the occurrence of such event, which notice shall
describe the event and the consequences of the event to holders of Rights under Section&nbsp;11(a)(ii)&nbsp;hereof. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>25</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=4,SEQ=27,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=1019780,FOLIO='25',FILE='DISK012:[01PAL9.01PAL1929]KM1929A.;12',USER='VDESIO',CD='13-JUN-2001;06:14' -->
<A NAME="page_km1929_1_26"> </A>

<P><FONT SIZE=2><B>SECTION 26.&nbsp;&nbsp;Notices.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Notices or demands authorized by this Agreement to be given or made by the Rights
Agent or by the holder of any Right Certificate to or on the Company shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows: </FONT></P>

<UL>
<UL>
<UL>

<P><FONT SIZE=2>AeroGen,&nbsp;Inc.<BR>
1310 Orleans Drive<BR>
Sunnyvale, CA 94089<BR>
Attention: Corporate Secretary </FONT></P>

</UL>
</UL>
</UL>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Subject
to the provisions of Section&nbsp;21 hereof, any notice or demand authorized by this Agreement to be given or made by the Company or by the holder of any Right Certificate
to or on the Rights Agent shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed (until another address is filed in writing with the Company) as follows: </FONT></P>

<UL>
<UL>
<UL>

<P><FONT SIZE=2>Mellon
Investor Services LLC<BR>
400 South Hope Street<BR>
Fourth Floor<BR>
Los Angeles, CA 90071<BR>
Attention: Rosa Bautista </FONT></P>

</UL>
</UL>
</UL>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Notices
or demands authorized by this Agreement to be given or made by the Company or the Rights Agent to the holder of any Right Certificate shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed to such holder at the address of such holder as shown on the registry books of the Company. </FONT></P>

<P><FONT SIZE=2><B>SECTION 27.&nbsp;&nbsp;Supplements and Amendments.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Prior to the Distribution Date, the Company and the Rights Agent
shall, if the Company so directs, supplement or amend any provision of this Agreement without the approval of any holders of the Rights. From and after the Distribution Date, the Company and the
Rights Agent shall, if the Company so directs, from time to time supplement or amend any provision of this Agreement without the approval of any holders of Right Certificates in order to
(i)&nbsp;cure any ambiguity, (ii)&nbsp;correct or supplement any provision contained herein which may be defective or inconsistent with any other provisions herein, or (iii)&nbsp;change any
other provisions with respect to the Rights which the Company may deem necessary or desirable; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that no such supplement or amendment
shall be made which would adversely affect the interests of the holders of Rights (other than the interests of an Acquiring Person or its Affiliates or Associates). Any supplement or amendment adopted
during any period after any Person has become an Acquiring Person but prior
to the Distribution Date shall become null and void unless such supplement or amendment could have been adopted by the Company from and after the Distribution Date. Any such supplement or amendment
shall be evidenced by a writing signed by the Company and the Rights Agent. Upon delivery of a certificate from an appropriate officer of the Company which states that the proposed supplement or
amendment is in compliance with the terms of this Section&nbsp;27, the Rights Agent shall execute such supplement or amendment unless the Rights Agent shall have determined in good faith that such
supplement or amendment would change or increase the Rights Agent's duties, liabilities or obligations under this Agreement. Prior to the Distribution Date, the interests of the holders of Rights
shall be deemed coincident with the interests of the holders of Common Shares. </FONT></P>

<P><FONT SIZE=2><B>SECTION 28.&nbsp;&nbsp;Determination and Actions by the Board of Directors, Etc.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;For all purposes of this
Agreement, any calculation of the number of Common Shares outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding Common Shares or any
other securities of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule&nbsp;13d-3(d)(1)(i)&nbsp;of the General Rules and Regulations
under the Exchange Act as in effect on the date of this Agreement. The Board of Directors shall have the exclusive power and authority to administer this Agreement and to exercise all rights and
powers specifically granted to the </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>26</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=5,SEQ=28,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=894856,FOLIO='26',FILE='DISK012:[01PAL9.01PAL1929]KM1929A.;12',USER='VDESIO',CD='13-JUN-2001;06:14' -->
<A NAME="page_km1929_1_27"> </A>

<P><FONT SIZE=2>
Board of Directors, or the Company, or as may be necessary or advisable in the administration of this Agreement, including without limitation, the right and power to (i)&nbsp;interpret the
provisions of this Agreement, and (ii)&nbsp;make all determinations deemed necessary or advisable for the administration of this Agreement (including a determination to redeem or not redeem the
Rights or to amend the Agreement). All such actions, calculations, interpretations and determinations (including, for purposes of clause&nbsp;(y) below, all omissions with respect to the foregoing)
which are done or made by the Board of Directors in good faith, shall (x)&nbsp;be final, conclusive and binding on the Rights Agent and the holders of the Rights, and (y)&nbsp;not subject the
Board of Directors to any liability to the holders of the Rights. </FONT></P>

<P><FONT SIZE=2><B>SECTION 29.&nbsp;&nbsp;Successors.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;All the covenants and provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the benefit of their respective successors and assigns hereunder. </FONT></P>

<P><FONT SIZE=2><B>SECTION 30.&nbsp;&nbsp;Benefits of this Agreement.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Nothing in this Agreement shall be construed to give to any
Person other than the Company, the Rights Agent and the registered holders of the Right Certificates (and, prior to the Distribution Date, the Common Shares) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company, the Rights Agent and the registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares). </FONT></P>

<P><FONT SIZE=2><B>SECTION 31.&nbsp;&nbsp;Severability.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;If any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. </FONT></P>


<P><FONT SIZE=2><B>SECTION 32.&nbsp;&nbsp;Governing Law.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;This Agreement and each Right Certificate issued hereunder shall be deemed to
be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State; </FONT><FONT SIZE=2><I>provided, however,</I></FONT><FONT SIZE=2> that all provisions regarding the rights, duties and obligations of the Rights Agent shall be
governed by and construed in accordance with the laws of the State of New York applicable to contracts to be made and performed entirely within such state. </FONT></P>


<P><FONT SIZE=2><B>SECTION 33.&nbsp;&nbsp;Counterparts.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;This Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. </FONT></P>

<P><FONT SIZE=2><B>SECTION 34.&nbsp;&nbsp;Descriptive Headings.</B></FONT><FONT SIZE=2>&nbsp;&nbsp;Descriptive headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>27</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=6,SEQ=29,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=85575,FOLIO='27',FILE='DISK012:[01PAL9.01PAL1929]KM1929A.;12',USER='VDESIO',CD='13-JUN-2001;06:14' -->
<A NAME="page_km1929_1_28"> </A>

<P><FONT SIZE=2>
&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>In Witness Whereof,</B></FONT><FONT SIZE=2> parties whereto have caused this Agreement to be duly executed, all as of the day and year first above written. </FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD COLSPAN=3><FONT SIZE=2><B>Attest:</B></FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD COLSPAN=3><FONT SIZE=2><B>AeroGen, Inc.</B></FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD COLSPAN=3><FONT SIZE=2><BR>
/s/ Carol A. Gamble</FONT><HR NOSHADE><FONT SIZE=2> Carol A. Gamble<BR>
Secretary</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD COLSPAN=3><FONT SIZE=2><BR>
/s/ Jane E. Shaw</FONT><HR NOSHADE><FONT SIZE=2> Jane E. Shaw<BR>
Chief Executive Officer</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD COLSPAN=3><BR><FONT SIZE=2><B>Attest:</B></FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><B><BR>&nbsp;</B></FONT></TD>
<TD COLSPAN=3><FONT SIZE=2><B><BR>
Mellon Investor Services LLC,<BR>
as Rights Agent</B></FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="6%"><FONT SIZE=2><BR>
By:</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="40%"><FONT SIZE=2><BR>
/s/ Mike Dzieciolowski</FONT><HR NOSHADE></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="6%"><FONT SIZE=2><BR>
By:</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="40%"><FONT SIZE=2><BR>
/s/ Rosa Bautista</FONT><HR NOSHADE></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="6%"><FONT SIZE=2><BR>
Title:</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="40%"><FONT SIZE=2><BR>
Assistant Vice President</FONT><HR NOSHADE></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="6%"><FONT SIZE=2><BR>
Title:</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="40%"><FONT SIZE=2><BR>
Relationship Manager</FONT><HR NOSHADE></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<P ALIGN="CENTER"><FONT SIZE=2>28</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=7,SEQ=30,EFW="2051342",CP="AEROGEN, INC.",DN="4",CHK=908736,FOLIO='28',FILE='DISK012:[01PAL9.01PAL1929]KM1929A.;12',USER='VDESIO',CD='13-JUN-2001;06:14' -->
<!-- Generated by Merrill Corporation (www.merrillcorp.com) -->
<BR>
<P><br><A NAME="01PAL1929_4">QuickLinks</A><br></P><!-- TOC_BEGIN -->
<FONT SIZE=2><A HREF="#toc_ki1929_1">TABLE OF CONTENTS</A></FONT><BR>
<!-- TOC_BEGIN -->
<FONT SIZE=2><A HREF="#toc_kj1929_1">RIGHTS AGREEMENT</A></FONT><BR>
<!-- SEQ=,FILE='QUICKLINK',USER=MWORTHY,SEQ=,EFW="2051342",CP="AEROGEN, INC.",DN="4" -->
<!-- TOCEXISTFLAG -->
</BODY>
</HTML>
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-99.3
<SEQUENCE>5
<FILENAME>a2051342zex-99_3.htm
<DESCRIPTION>EX-99.3
<TEXT>

<HTML>
<HEAD>
<TITLE> Prepared by MERRILL CORPORATION
</TITLE>
</HEAD>
<BODY BGCOLOR="#FFFFFF" LINK=BLUE  VLINK=PURPLE>
<BR>
<FONT SIZE=3 ><A HREF="#01PAL1929_5">QuickLinks</A></FONT>
<font size=3> -- Click here to rapidly navigate through this document</font>
<P ALIGN="RIGHT"><FONT SIZE=2><A
NAME="page_ko1929_1_1"> </A> </FONT></P>

<!-- TOC_END -->
<P ALIGN="RIGHT"><FONT SIZE=2><B>Exhibit 99.3  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="ko1929_form_of_right_certificate"> </A>
<A NAME="toc_ko1929_1"> </A>
<BR></FONT><FONT SIZE=2><B>FORM OF RIGHT CERTIFICATE    <BR>  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B>(Exhibit&nbsp;B to Rights Agreement)  </B></FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="49%"><FONT SIZE=2><B>Certificate No.&nbsp;R-</B></FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="49%" ALIGN="RIGHT"><FONT SIZE=2><B><U>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</U>&nbsp;Rights</B></FONT></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<UL>

<P><FONT SIZE=2>NOT
EXERCISABLE AFTER JUNE 26, 2011 OR EARLIER IF REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $0.001 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. </FONT></P>

</UL>
<P ALIGN="CENTER"><FONT SIZE=2><B>RIGHT CERTIFICATE  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B> AEROGEN,&nbsp;INC.  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;This certifies that&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;or registered assigns, is the registered owner of the number of Rights set forth above, each of which
entitles the owner
thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of June&nbsp;5, 2001 (the "Rights Agreement"), between </FONT> <FONT SIZE=2><B>AEROGEN,&nbsp;INC.</B></FONT><FONT SIZE=2>, a Delaware corporation (the
"Company"), and </FONT><FONT SIZE=2><B>MELLON INVESTOR SERVICES LLC,</B></FONT><FONT SIZE=2> a New
Jersey limited liability company, as Rights Agent (the "Rights Agent"), to purchase from the Company at any time after the Distribution Date (as such term is defined in the Rights Agreement) and prior
to 5:00&nbsp;p.m., Pacific Time, on June&nbsp;26, 2011 at the office of the Rights Agent designated for such purpose, or at the office of its successor as Rights Agent, one
one-hundredth of a fully paid non-assessable share of Series&nbsp;A Junior Participating Preferred Stock, par value $0.001 per share (the "Preferred Shares"), of the Company,
at a purchase price of $60.00 per one one-hundredth of a Preferred Share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to
Purchase duly executed. The number of Rights evidenced by this Right Certificate (and the number of one one-hundredths of a Preferred Share which may be purchased upon exercise hereof) set
forth above, and the Purchase Price set forth above, are the number and Purchase Price as of June&nbsp;5, 2001, based on the Preferred Shares as constituted at such date. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;From
and after the time any Person becomes an Acquiring Person, (as such terms are defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially
owned by (i)&nbsp;an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (ii)&nbsp;a transferee of any such Acquiring
Person, Associate or Affiliate who becomes a transferee after the Acquiring Person becomes such, or (iii)&nbsp;under certain circumstances specified in the Rights Agreement, a transferee of any such
Acquiring Person, Associate or Affiliate who becomes a transferee prior to or concurrently with the Acquiring Person becoming such, such Rights shall become null and void without any further action
and no holder hereof shall have any right with respect to such Rights from and after the time any Person becomes an Acquiring Person. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;As
provided in the Rights Agreement, the Purchase Price and the number of one one-hundredths of a Preferred Share which may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. </FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;This
Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, as amended from time to time, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties
and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates. Copies of the </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>B&#150;1</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=1,SEQ=1,EFW="2051342",CP="AEROGEN, INC.",DN="5",CHK=655617,FOLIO='B-1',FILE='DISK012:[01PAL9.01PAL1929]KO1929A.;9',USER='MWORTHY',CD='13-JUN-2001;14:14' -->
<A NAME="page_ko1929_1_2"> </A>

<P><FONT SIZE=2>
Rights Agreement are on file at the principal executive offices of the Company and the above-mentioned office of the Rights Agent. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;This
Right Certificate, with or without other Right Certificates, upon surrender at the office of the Rights Agent designated for such purpose, may be exchanged for another Right
Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Preferred Shares as the Rights evidenced by the Right Certificate
or Right Certificates surrendered shall have entitled such holder to purchase. If this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof
another Right Certificate or Right Certificates for the number of whole Rights not exercised. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Subject
to the provisions of the Rights Agreement, the Rights evidenced by this Certificate (i)&nbsp;may be redeemed by the Company at a redemption price of $0.001 per Right or
(ii)&nbsp;may be exchanged in whole or in part for shares of the Company's Common Stock, par value $0.001 per share, or, upon circumstances set forth in the Rights Agreement, cash, property or other
securities of the Company, including fractions of a share of Preferred Stock. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;No
fractional Preferred Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions which are integral multiples of one
one-hundredth of a Preferred Share, which may, at the election of the Company, be evidenced by depositary receipts) but in lieu thereof a cash payment will be made, as provided in the
Rights Agreement. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;No
holder of this Right Certificate shall be entitled to vote or receive dividends or be deemed for any purpose the holder of the Preferred Shares or of any other securities of the
Company which may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;This
Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>B&#150;2</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=2,SEQ=2,EFW="2051342",CP="AEROGEN, INC.",DN="5",CHK=115300,FOLIO='B-2',FILE='DISK012:[01PAL9.01PAL1929]KO1929A.;9',USER='MWORTHY',CD='13-JUN-2001;14:14' -->
<A NAME="page_ko1929_1_3"> </A>

<P><FONT SIZE=2>
&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT SIZE=2><B>WITNESS</B></FONT><FONT SIZE=2> the facsimile signature of the proper officers of the Company and its corporate seal. Dated as of&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;.
</FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="49%"><FONT SIZE=2><B>ATTEST:</B></FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="49%"><FONT SIZE=2><B>AEROGEN, INC.</B></FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="49%"><BR><HR NOSHADE><FONT SIZE=2><B>[Signing Company Secretary's Name]<BR>
[Title]</B></FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><B><BR>&nbsp;</B></FONT></TD>
<TD WIDTH="49%"><BR><HR NOSHADE><FONT SIZE=2><B> [Signing Company Officer's Name]<BR>
[Title]</B></FONT></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="BOTTOM">
<TD COLSPAN=3><FONT SIZE=2><B>COUNTERSIGNED:</B></FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="45%" VALIGN="TOP"><FONT SIZE=2>&nbsp;</FONT></TD>
</TR>
<TR VALIGN="BOTTOM">
<TD COLSPAN=3><FONT SIZE=2><B><BR>
MELLON INVESTOR SERVICES LLC<BR> </B></FONT><FONT SIZE=2>as Rights Agent</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="45%" VALIGN="TOP"><FONT SIZE=2><BR>
&nbsp;</FONT></TD>
</TR>
<TR VALIGN="BOTTOM">
<TD WIDTH="5%"><FONT SIZE=2><BR>
By:</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="45%" VALIGN="TOP"><FONT SIZE=2><BR>
&nbsp;</FONT></TD>
<TD WIDTH="3%" VALIGN="TOP"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="45%" VALIGN="TOP"><FONT SIZE=2><BR>
&nbsp;</FONT></TD>
</TR>
<TR VALIGN="BOTTOM">
<TD WIDTH="5%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="45%" VALIGN="TOP"><HR NOSHADE><FONT SIZE=2><B>[Authorized Signature]</B></FONT></TD>
<TD WIDTH="3%" VALIGN="TOP"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="45%" VALIGN="TOP"><FONT SIZE=2>&nbsp;</FONT></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<P ALIGN="CENTER"><FONT SIZE=2>B&#150;3</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=3,SEQ=3,EFW="2051342",CP="AEROGEN, INC.",DN="5",CHK=784497,FOLIO='B-3',FILE='DISK012:[01PAL9.01PAL1929]KO1929A.;9',USER='MWORTHY',CD='13-JUN-2001;14:14' -->
<A NAME="page_ko1929_1_4"> </A>
<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="ko1929_form_of_reverse_side_of_right_certificate"> </A>
<A NAME="toc_ko1929_2"> </A>
<BR></FONT><FONT SIZE=2><B>Form of Reverse Side of Right Certificate    <BR>  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="ko1929_form_of_assignment"> </A>
<A NAME="toc_ko1929_3"> </A>
<BR></FONT><FONT SIZE=2><B>FORM OF ASSIGNMENT    <BR>  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B>(To be executed by the registered holder if such<BR>
holder desires to transfer the Right Certificate.)  </B></FONT></P>


<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;</FONT><FONT
SIZE=2><B>FOR VALUE RECEIVED <U>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</U></B></FONT><FONT SIZE=2> hereby sells, assigns and transfers unto </FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD COLSPAN=3 ALIGN="CENTER"><HR NOSHADE><FONT SIZE=2> (Please print name and address of transferee)</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD COLSPAN=3 ALIGN="CENTER"><BR><HR NOSHADE></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->


<P><FONT SIZE=2>this
Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint <U>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</U> Attorney, to transfer
the within Right Certificate on the books of the within-named Company, with full power of substitution. </FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="8%"><FONT SIZE=2>Dated:</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="43%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="43%"><FONT SIZE=2>&nbsp;</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="8%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="43%"><HR NOSHADE></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="43%"><FONT SIZE=2>&nbsp;</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="8%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="43%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="43%"><HR NOSHADE><FONT SIZE=2> Signature</FONT></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<P ALIGN="CENTER"><FONT SIZE=2>B&#150;4</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=4,SEQ=4,EFW="2051342",CP="AEROGEN, INC.",DN="5",CHK=840359,FOLIO='B-4',FILE='DISK012:[01PAL9.01PAL1929]KO1929A.;9',USER='MWORTHY',CD='13-JUN-2001;14:14' -->
<A NAME="page_ko1929_1_5"> </A>

<P><FONT SIZE=2><B>SIGNATURE GUARANTEED:  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Signatures must be guaranteed by an "eligible guarantor institution" as defined in Rule&nbsp;17Ad-15 promulgated under the Securities Exchange
Act of 1934, as amended. </FONT></P>

<HR NOSHADE ALIGN="CENTER" WIDTH="120">

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
undersigned hereby certifies that (1)&nbsp;the Rights evidenced by this Right Certificate are not being sold, assigned or transferred by or on behalf of a Person who is or was
an Acquiring Person, an Interested Stockholder or an Affiliate or Associate thereof (as such terms are defined in the Rights Agreement); and (2)&nbsp;after due inquiry and to the best of the
knowledge of the undersigned, the undersigned did not acquire the Rights evidenced by this Right Certificate from any Person who is or was an Acquiring Person, an Interested Stockholder, or an
Affiliate or Associate thereof. </FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="49%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="49%"><HR NOSHADE><FONT SIZE=2> Signature</FONT></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<P ALIGN="CENTER"><FONT SIZE=2>B&#150;5</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=5,SEQ=5,EFW="2051342",CP="AEROGEN, INC.",DN="5",CHK=99645,FOLIO='B-5',FILE='DISK012:[01PAL9.01PAL1929]KO1929A.;9',USER='MWORTHY',CD='13-JUN-2001;14:14' -->
<A NAME="page_ko1929_1_6"> </A>
<P ALIGN="CENTER"><FONT SIZE=2><A
NAME="ko1929_form_of_election_to_purchase"> </A>
<A NAME="toc_ko1929_4"> </A>
<BR></FONT><FONT SIZE=2><B>FORM OF ELECTION TO PURCHASE    <BR>  </B></FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2><B>(To be executed if holder desires to exercise<BR>
Rights represented by the Right Certificate.)  </B></FONT></P>

<P><FONT SIZE=2>To Mellon Investor Services LLC: </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
undersigned hereby irrevocably elects to exercise <U>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</U> Rights represented by this Right Certificate to purchase the Preferred Shares
issuable upon the exercise of such Rights and requests that certificates for such Preferred Shares be issued in the name of: </FONT></P>


<P><FONT SIZE=2>Please
insert social security<BR>
or other identifying number: <U>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</U> </FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD COLSPAN=3 ALIGN="CENTER"><HR NOSHADE><FONT SIZE=2> (Please print name and address)</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD COLSPAN=3 ALIGN="CENTER"><BR><HR NOSHADE></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->


<P><FONT SIZE=2>If
such number of Rights shall not be all the Rights evidenced by this Right Certificate, a new Right Certificate for the balance remaining of such Rights shall be registered in the name of and
delivered to: </FONT></P>

<P><FONT SIZE=2>Please
insert social security<BR>
or other identifying number: <U>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</U> </FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD COLSPAN=3 ALIGN="CENTER"><HR NOSHADE><FONT SIZE=2> (Please print name and address)</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD COLSPAN=3 ALIGN="CENTER"><BR><HR NOSHADE></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="8%"><FONT SIZE=2>Dated:</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="43%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="43%"><FONT SIZE=2>&nbsp;</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="8%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="43%"><HR NOSHADE></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="43%"><FONT SIZE=2>&nbsp;</FONT></TD>
</TR>
<TR VALIGN="TOP">
<TD WIDTH="8%"><FONT SIZE=2><BR>
&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="43%"><FONT SIZE=2><BR>
&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2><BR>&nbsp;</FONT></TD>
<TD WIDTH="43%"><BR><HR NOSHADE><FONT SIZE=2> Signature</FONT></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<P ALIGN="CENTER"><FONT SIZE=2>B&#150;6</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=6,SEQ=6,EFW="2051342",CP="AEROGEN, INC.",DN="5",CHK=612242,FOLIO='B-6',FILE='DISK012:[01PAL9.01PAL1929]KO1929A.;9',USER='MWORTHY',CD='13-JUN-2001;14:14' -->
<A NAME="page_ko1929_1_7"> </A>

<P><FONT SIZE=2><B>SIGNATURE GUARANTEED:  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;Signatures must be guaranteed by an "eligible guarantor institution" as defined in Rule&nbsp;17Ad-15 promulgated under the Securities Exchange
Act of 1934, as amended. </FONT></P>

<HR NOSHADE ALIGN="CENTER" WIDTH="120">

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The
undersigned hereby certifies that (1)&nbsp;the Rights evidenced by this Right Certificate are not beneficially owned by nor are they being exercised on behalf of an Acquiring
Person, an Interested Stockholder or an Affiliate or Associate thereof (as such terms are defined in the Rights Agreement); and (2)&nbsp;after due inquiry and to the best of the knowledge of the
undersigned, the undersigned did not acquire the Rights evidenced by this Right Certificate from any Person who is or was an Acquiring Person, an Interested Stockholder, or an Affiliate or Associate
thereof. </FONT></P>

<!-- User-specified TAGGED TABLE -->
<TABLE WIDTH="100%" BORDER=0 CELLSPACING=0 CELLPADDING=0>
<TR VALIGN="TOP">
<TD WIDTH="49%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="3%"><FONT SIZE=2>&nbsp;</FONT></TD>
<TD WIDTH="49%"><HR NOSHADE><FONT SIZE=2> Signature</FONT></TD>
</TR>
</TABLE>
<!-- end of user-specified TAGGED TABLE -->

<HR NOSHADE ALIGN="CENTER" WIDTH="120">
<P ALIGN="CENTER"><FONT SIZE=2><B>NOTICE  </B></FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;The signature in the Form of Assignment or Form of Election to Purchase, as the case may be, must conform to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any change whatsoever. </FONT></P>

<P><FONT SIZE=2>&nbsp;&nbsp;&nbsp;&nbsp;In
the event the certification set forth above in the Form of Assignment or the Form of Election to Purchase, as the case may be, is not completed, the Company and the Rights Agent
will deem the beneficial owner of the Rights evidenced by this Right Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights Agreement) and such Assignment
or Election to Purchase will not be honored. </FONT></P>

<P ALIGN="CENTER"><FONT SIZE=2>B&#150;7</FONT></P>

<HR NOSHADE>
<!-- ZEQ.=7,SEQ=7,EFW="2051342",CP="AEROGEN, INC.",DN="5",CHK=767839,FOLIO='B-7',FILE='DISK012:[01PAL9.01PAL1929]KO1929A.;9',USER='MWORTHY',CD='13-JUN-2001;14:14' -->
<!-- Generated by Merrill Corporation (www.merrillcorp.com) -->
<BR>
<P><br><A NAME="01PAL1929_5">QuickLinks</A><br></P><!-- TOC_BEGIN -->
<FONT SIZE=2><A HREF="#toc_ko1929_1">FORM OF RIGHT CERTIFICATE</A></FONT><BR>
<FONT SIZE=2><A HREF="#toc_ko1929_2">Form of Reverse Side of Right Certificate</A></FONT><BR>
<FONT SIZE=2><A HREF="#toc_ko1929_3">FORM OF ASSIGNMENT</A></FONT><BR>
<FONT SIZE=2><A HREF="#toc_ko1929_4">FORM OF ELECTION TO PURCHASE</A></FONT><BR>

<!-- SEQ=,FILE='QUICKLINK',USER=MWORTHY,SEQ=,EFW="2051342",CP="AEROGEN, INC.",DN="5" -->
<!-- TOCEXISTFLAG -->
</BODY>
</HTML>
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>GRAPHIC
<SEQUENCE>6
<FILENAME>g798568.jpg
<DESCRIPTION>G798568.JPG
<TEXT>

begin 644 g798568.jpg
M_]C_X``02D9)1@`!`0$!L`&P``#_VP!#``@&!@<&!0@'!P<)"0@*#!0-#`L+
M#!D2$P\4'1H?'AT:'!P@)"XG("(L(QP<*#<I+#`Q-#0T'R<Y/3@R/"XS-#+_
MVP!#`0D)"0P+#!@-#1@R(1PA,C(R,C(R,C(R,C(R,C(R,C(R,C(R,C(R,C(R
M,C(R,C(R,C(R,C(R,C(R,C(R,C(R,C+__@`R35),3%]'4D%02$E#4SI;0452
M3T=%3EU!15)/1T5.7TU"3%]-1U)97TQ/1T\N15!3_\``$0@`<@#``P$B``(1
M`0,1`?_$`!P``0`"`P$!`0`````````````&!P,$!0(!"/_$`$80``$#`P$#
M!@D'"P0#``````$``@,$!1$&$B$Q!Q-!46&1%"(R4G&!H;'!%2,S0G*RT18T
M-3938G-TX?#Q)$-5I"4F@O_$`!H!`0`#`0$!```````````````"`P0!!0;_
MQ``O$0`!!`$#`08%!`,````````!``(#$002(3$3!10R06%Q,U&!D:%"L='P
M(E+!_]H`#`,!``(1`Q$`/P"_T1$1$1$1$1$1$1$1"<*E-37^JO5SF#ICX)'(
M1#$/)`!QGM)5L:BKOD[3]=5`X<R)P9]H[A[2J+X!?0=AP!Q=*X<;#_J\CM24
MBHP?==2WZBN]K:&4E=(R,?[;L.9W%2B@Y3*EFRVOH(Y0.+X';)[CN]J@:+V9
ML''F\;!?V_9>;'E31^%RN*AUW8:S`=5&F>?JSMV?;P]JD$%3!4LVX)HY6>=&
MX.'L7Y]7N&:6G?MP2OB=YT;BT^Q>9+V%&?AN(]]UMC[5>/&VU^A$5+4FL[_1
MX#;@Z5H^K.T/]IW^U=NEY3JQA`JZ"GDZS$\L/<<KSY.Q<EOAH_7^5L9VG`[F
MPK.10NFY2[/*`*B&I@/V0\>P_!=>GUEI^I(#+I`TGHD)8?:L3\+(9XF'[+2W
M*A=PX+NHM:"OHZGZ"J@E^Q('>XK9RLY!&Q5P(/"(B+BZB(B(B(B(B(B(B(B(
MB(M>J?4"/%-&UTAX%[L-;VGI/H'L0"T)I0WE+N+8[;36YKOG)I.<<`?J-_KC
MN5;TU+45DG-TL$L[_-C87'V*WF:.H9JQ]==I'W"J?O<Z7Q8V]0#1P`[<K=EN
M]EM$?,^$4\0;PBA`./4U>WC]I,Q81%$W4?,\"_[[+RY<)\\A>\T%6E'H._5>
M"ZF93M/3-(`>X9*[=-R82'?571H[(8L^TGX+LU.O*-AQ2TDTO:\A@^)7(J-<
M7.7(ACIX1V-+C[?P5;^U<M_!`^G\VIMP,=O.ZZ<')M9HQ\[-5S'MD#1[`NA%
MH?3L0_1X>>N21SOBH5-J.\3YVKA,,]#,-]RT9*RJF/SE3._[4CC\5F=DY+N9
M#]U<(8&\,"LQFG-/T^,6VB'5M,!]ZR"@L48V12VYN.CFV*K8H)JJ01PQ/E?Y
MK&EQ7<H]%W6IPZ6.*F:>F0Y/<%2Y[SXGE6!K?)JG#:&RO\FEMY]$;"O8M-JD
M;@4%$X'=NA8?@N!3:!I&`&IJI9#TB-H8/B5U8-)V:`#%)M$=+Y''XJO6?]BI
MAH^2S.TY97#!M-%ZH&CX+)'9+?"08J<18_9N<WW%;%/0TU)]!$&;L;LK80RO
M/ZBNB-GR"Q0T[(<[#I#GH=(YWO*RHBK4T1$1$1$1$1$1$1:]1614Y##M/E=Y
M,;!ESO5U=IW+6=3UM;]/,::']E"[QSZ7]'H;WHB]UMWHJ`ALTV93PB8"YY]#
M1O7!NNI;I!3NEIK1-#"/]ZH;P[=D</6I)2T-+1-(IX&1Y\H@;W>D\3ZUSM55
M#:;3M63C,C>;;Z7''XJ0JU$W2KNMO%QN!/A-7*]I^H#LM[AN6CP1%>J41=&V
M62ONSQX-">;S@ROW,'KZ?4IM:]&T%%LR57^JF&_QQA@]#?Q42X!2#25";=8[
MA="#34YYO]J_Q6=_3ZE+K=H:DAP^NE=4/\QOBL_$J5AH:````-P`7U5EY*L#
M`%AIJ2GHXA'3PQQ,'U6-PLR(H*2(B(B(B(B(B(B(B(B(B(B+Q(U[F88_9)Z<
M9PO:(BQQ01P@[(\9WE.)R7>DK(B(B+B:IME1=+/S5,-J5D@D#,XVL9&/:NVB
M`TN$6JJ@TU>)Y-@4$K.MTF&@>LJ56G1--3;,MP<*F7]F-S!^/][E*T4R\E<#
M`%Y8QL;`UC0UH&``,`!>D104D1$1$1$1$1$1$1$1$1$1$1$1$3**J>4*[/J+
MZVCBD<(Z1F';+L9>[>>X8"U8>*[*EZ8->JSY,X@9K.ZM8;T4+Y.;J:NT2T,K
MRZ2E?EN3DECMX[CE315Y$+H)3&[R4X91*P/'FB+XY[6-+G$`#B2<`+2%ZM;I
M>;;<:0O\T3-S[U4&D\!6%P')6\B^`APR-X7Q[VL;M.<&CK)PN+J](M>:NI:>
M'GIZF&*+SWO`'>L[7->T.:06D9!'`A=HU:Y87U%K5-QHJ/\`.JN"'^)(&^]>
MJ>MIJMI=35$4S1Q,;P['<FDU=;)J%U:SHB$X7%U$6BZ\VQDG-ON-(U_#9,S<
M^];1FC#`\R,V3P=M#!4BUPY"X'`\%9$7QKFO:'-((/`@Y7F66.&,R2O:Q@XN
M<<`>M175[1:45WML\G-Q5]+(_.-ELS2?>MU=+2WD+@<#PB+P^:.,@/>UI/6X
M!8*FY4-&0*JLIX">`DD#2>]`TG8!"X#E;2+%!4P53-N":.5GG1N#A[%]\(BR
M1SC,@X/C#<E%+"QUU7'04,]7*<1PQE[O4%5.DJ$ZAU3+4UC1)&`^>8'@2[<!
MWGV*4<I%T\'M,-O8</JGY>/W&[_:<=RBNEKG=;-*TP6Z22EJ)&.E>*=SB6</
M%(W=:]S!@>W#?(SQ.V'M_;7E94K79+6.X;RONG)WZ:UKX),[#.<-+(>@@GQ3
MW[)]:MR65D$+Y9'!K&-+G$]`&\JK^4>W&FO$%PC&&U+,.<//;T]V.Y2B:XR7
MGDZJ*N(_//I'"3'0X##O<>]5YS.\-BR!^J@??^VIXKNB9(?EN%$:FLNNO+TZ
MEI7&*B;XP820QC,^4_K)ZO\`*Z[^2Z+P?#+F_GL?6A&SGT9RHOIZ]W:U"H9:
MJ5LQD+72'F'2$8X<.`XKN?EAJ[_C?^G)^*WSQY,;M&.0UH]ORLD3X'MU3`N<
M5@L]XN6C[X+5<W.=2%P:YI=D-!X/8>KL^*ENO\'2%1T_.1_>"KZ^5%]OTL<M
M9;)0^-A:TQTKVY!W[^*G.KQ(WD_`F!$H;`'@]>6Y6>>,">"0UJ)%U[C=71/)
MBE8+T@;6H1I[3-;J9KFBH$-)3^+MO!<&D[\-;Z\E336&HI-/6VFMU&\>%R1@
M<[CR&#=G'6>CUKWR;C_UE_\`,O\`<U1G6V&:Z@=4_08A)SPV-K?\5)S^\YQC
MD\++("X&]'%#V<NK=9[1R?U5U@%==*R2%\HV@W&W(0>EQ/#T+#>=(5^F&BYV
MVLDDCB.7/:-A\?:<;B/[PK4&"`1C'8M:YNA;:ZIU1CF1"_;SPQ@Y6%O:N09-
M]V_*MJ^2U.P(0S;GYKDZ1U#\OVLOE#15PD,F#=P)Z'#T_BH=J.]W#4E]-EM3
MW>#AYCPQV.=(\ISCYH^"]\FC9>?N99G9YA@_^LG"Q\FQC;?ZMLNZ?F"&YX^4
M-KX+9W>/&FFD:+T`4/?^%FZSYHXV$UJNS[+H1<ET?@XYVYN$Q&_8A&R#ZSDJ
M*7VV7.P'Y+JI2^D<X2Q8.6.(W9`/`[]X5VJ!\ISH?DZ@82.>,Y+1^[L[_@J\
M#M">6=K)#J!]./53R\.*.(O9L0NEIVOAM?)]2UL^Z.&%SB!Q/C'`'I.Y0VFI
MKQKVYR233<W2QG>3DLB!X-:WI*ZE:UYY(Z38S@%I=CJYP_T7%L.H;Y;:`TUL
MHVRPAY<YPIW/.T>L@^A7P0N`EFBK7J(L^2JED!,<<EZ=(.WFN]5<F#6T[C27
M%SI@/%;+&`T^L<%BTAJ*NMUW%ANKGD%_-,,ARZ-_0W/2#T>I8ORPU=_QO_2D
M_%<:?Y:NU_IZZHMTS)S)&"YE.]HW$;SGWJ38II6.9E.!%;&Q8*BY\3'!^."#
MY^H79Y3OTI;SN^A=]X):-!U%ZI1<KG721R5`VP`W:>0>!<3[DY3_`-)4/\!_
MWE9%(T-HX6@8`C:!W+-)E208473V)O?ZJ]D#)LF37N!2J6OH[AH.^0RT]07Q
MO&TUP&R)&@[VN'7^(*L"73UKO(AKG-D;SCA4-V';.2X-._=O\D*/<J'YO;#^
M_)[@I?I_]7;;_*Q_="KRIGOQXLBZ<;!(\U."-K9GP\M%%5=J2J?J/5QBIB7Q
ME[::`CACI/>25;M)31T=)#31#$<3`QH[`,++LM'0.Y?5CR<OK,9&T4&A:8,?
MIN<\FRY1W6UM^4M,U`8W,M/\^SK\7B.[*C/)O<`366F899(.=8UPW'H<.["L
MA?`T#@!W)'EZ<=V.X7>X]$?CW,)0:K\JJ[A:+MHN\FX6QKY*,YPX-+@&GZCP
M/>MMW*A,8-EEMB$_#:,Q+<^C&?:K*6$4=,U^V*>(/\X,&5?W^*0`Y$>IP\[K
M[JKNCV$]%]`^56HCI:JU5=JAM5<)A#0#?LF!K72]@Z0.U;NO_P!4:C^)']X*
M3H0#Q"S')'7$H:``1L-N%=T#TC&7$WYE1#DWW:9?_,O]S5FUIIEU]HV34H;X
M;!G8!.!(T\6Y]W]5*``.`POJ'+?W@Y#-C=H,=O1$+MPJLMNM[II^(6^YT3I>
M9\5O.DQR-'5O&]8KEJ6\ZP(MU!1ED+SXT<1+B[[3N`"M26"&8`2Q,>!T.:#[
MU]CBCB;LQQM8WJ:``M8SX`[J-A&OWVOYTJ.Z2D:#)_C[;_=<?2]@9I^U"`D/
MJ)#MS/'`NZAV!1#4VFZ^T7<WNRM>6%YD<V(9=$[IW=+3O[RK*5<ZCJ]1Z;O(
MK(ZN:HMKG[3&OWL'6QV[=V%1P999,AS@1;N0>#Z)E1QLA`HT/,>7JL<7*?,R
MGV9K;&Z<;LMEV6Y]&,A1J]5-UNY;=[@PMA>[FH=VRWI.&@\1VJ8,Y0;+*SG9
M[3+S^,[F,<,_:*X-;67+7MYA@IJ?FH(MS0#EL0/%SCU_X7JXS!"_7T=`'))O
M[+!,XR-T]34?(`?NIOIFABKM!TE'4MS%-`YKAV%Q_P`J%;%\T%<I'L9SM)(<
M%Q!,<HZ,X\EW][PK4HJ2.AHH*6$?-PL#&YZ@,+,6AP((!!X@KQH\[0]]MU-<
M=P5Z3\74QM&G-'*K2IY3:N>'FJ*WQQSNW!SI#)@]C0!E232C]25C35WF8,@+
M<1P&)K7./G'I`[%(HZ2GB=M1P1,=UM8`5F7)LF$LT11AOKR?I?"E%!(':I'D
M_@*L>4X$W*AP#]`_[RLFF_-8OL#W+(6@\0"OJKER>I"R*O#?Y4XX-$CI+\5*
MON5`'P>VX&?'D]P4PL'ZNVW^5C^Z%T"`>("^XPN/R=>.R&O#>_NC8=,KI;Y1
M$19E>B(B(B(B(B(B(B(B(B(B(B\N8U[2US0YI&"",@HBZ.5P\*+U=FM?A3O_
M`!M'Q_8-_!2.EIH*:!L=/#'$S&=F-H:.X(B]7/\`A-7G8GQ"LZ(B\E>DB(B(
)B(B(B(B(O__9
`
end
</TEXT>
</DOCUMENT>
</SUBMISSION>
