XOMA Ltd.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
February 24, 2004
Millennium Pharmaceuticals, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Re: Additional Amendments to Note and Investment Agreement
Ladies and Gentlemen:
Reference is made to the Convertible Subordinated Note, dated as of
November 26, 2001, as amended by Amendment No. 1 dated as of November 5, 2002
and by the letter agreement dated May 16, 2003, in the principal sum of
$5,000,000 (the "Note"), convertible into common shares, par value US$0.0005 per
share, of XOMA Ltd. ("XOMA"), and the Investment Agreement, dated as of November
26, 2001, as amended by the letter agreement dated May 16, 2003 (the "Investment
Agreement"), by and among XOMA, Millennium Pharmaceuticals, Inc. ("Millennium")
and mHoldings Trust (the "Trust"). Capitalized terms used but not defined in
this letter agreement have the meanings assigned thereto in the Investment
Agreement.
Notwithstanding any provisions of the Note or the Investment Agreement or
any related agreement or resolutions to the contrary and without affecting the
rights and obligations of the parties thereunder except as expressly set forth
herein, the parties hereto agree as follows:
1. Maturity Date of the Note. The principal of the Note shall be due and
payable in a single installment on the earliest of: (a) April 15, 2004 or, if
later, the third Business Day following receipt by the Company of reliable
notification from the U.S. Securities and Exchange Commission that the
registration statement covering the resale by Millennium of the Common Shares to
be issued on conversion of the Note has been declared effective, (b) the tenth
Business Day following the termination of the Development and License Agreement,
and (c) the tenth Business Day following the first date on which the Common
Shares are no longer listed on any Principal Trading Market. The earliest such
date shall be the "Maturity Date" for purposes of the Note. Sections 6(c) and
(e) of the Note are hereby amended to refer to a closing to take place on the
date specified in clause (a) of the definition of "Maturity Date" and the shares
to be isssued at such closing.
2. Remaining Closings Under the Investment Agreement. The Investment
Agreement is hereby amended to the extent necessary to reflect the parties'
agreement that the dates of the remaining Closings and the remaining Purchase
Prices are modified as follows, and to make corresponding changes to all related
definitions and provisions, such that the following
table sets forth the dates for all remaining Closings and corresponding Purchase
Prices under the Investment Agreement, as amended hereby:
Closing Date Purchase Price
------------ --------------
Fifth July 27, 2004 USD $3,675,000
Sixth October 11, 2004 USD $3,675,000
Seventh December 27, 2004 USD $3,675,000
Eighth March 16, 2005 USD $3,675,000
and that the rights, obligations, conditions and other provisions in the
Investment Agreement and the Registration Rights Agreement relating to each
Closing and the Shares purchased thereat shall be the same as those that apply
to the other Closings generally, mutatis mutandis, it being understood that the
formula for determining the number of Shares to be issued and purchased at each
Closing shall be re-applied at such Closing using prices and time periods
determined with reference to such Closing. The Investment Agreement is also
hereby amended to require that the condition set forth in Section 5.3(i) of the
Investment Agreement be satisfied prior to (i.e., not at) the Fifth Closing Date
(as provided above). For the sake of clarity, the parties acknowledge that (i)
the Shares sold at each Closing shall be subject to the provisions of Sections
4.4 and 4.5 of the Investment Agreement and (ii) the foregoing Purchase Prices
are after giving effect to the termination of LDP-01.
3. Lost Note; Indemnity. Millennium represents, warrants and agrees as
follows:
(a) Millennium is the sole legal and beneficial owner of the Note.
(b) Millennium is not in possession of the original convertible
subordinated promissory note representing the Note and has been unable to
locate such original note after due and diligent search therefor.
Millennium has no actual knowledge of the circumstances that resulted in
such original note no longer being in its possession.
(c) Millennium has not sold, given, traded, conveyed or otherwise
transferred, nor has Millennium pledged, hypothecated or otherwise
encumbered, nor did the Trust sell, give, trade, convey, otherwise
transfer, pledge, hypothecate or otherwise encumber, the Note or any
interest therein to or for the benefit of any person, entity or
governmental authority.
(d) Millennium is making these representations, warranties and
covenants in connection with the other agreements reflected herein and the
pending maturity and/or conversion of the Note and acknowledges that, upon
any such conversion and the issuance of common shares of the Company as
provided for therein, or upon payment in full of the principal thereof and
accrued interest thereon, the Note will be canceled in accordance with its
terms.
(e) Millennium agrees to indemnify and hold harmless the Company, its
officers, directors, shareholders, employees and agents, and their
respective successors and assigns, from and against any loss, damage,
claim, liability or expense, including, without
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limitation, attorneys' fees and expenses, by reason of any of the foregoing
statements being false or by reason of the possession of the original
convertible subordinated promissory note representing the Note by any other
person, entity or governmental authority.
4. Miscellaneous. The parties acknowledge that Millennium has dissolved the
Trust, formerly a Massachusetts trust that was the original payee under the Note
and a party to the Investment Agreement, with the effect that all rights and
obligations of the Trust under the Note and the Investment Agreement are now
rights and obligations of Millennium. Except as expressly modified hereby, the
provisions of the Note and the Investment Agreement shall remain in full force
and effect. This letter agreement may not be amended or any provision hereof
waived or modified except by an instrument in writing signed by each of the
parties hereto. The headings on the paragraphs of this letter agreement are not
to be considered as part of this letter agreement in construing this letter
agreement. This letter agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of law. Each party agrees to execute, acknowledge and deliver such
further instruments, and do such other acts, as may be necessary and appropriate
in order to carry out the purposes and intent of this letter agreement. This
letter agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and all of which together shall constitute one and
the same instrument.
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Please acknowledge your agreement to the foregoing by executing below
whereupon this letter shall become an effective agreement.
Very truly yours,
XOMA LTD.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxxxxxx X. Xxxxxxxx
Vice President, General
Counsel and Secretary
AGREED and ACCEPTED as
of the date first above written:
MILLENNIUM PHARMACEUTICALS, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
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