WAIVER OF PREEMPTIVE RIGHTS AND AMENDMENT OF AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Exhibit 10.8
WAIVER OF PREEMPTIVE RIGHTS
AND
AMENDMENT OF
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
The undersigned, a party to that certain Amended and Restated Investor Rights Agreement dated February 5, 2002, as amended (the “Rights Agreement”) by and among Xcyte Therapies, Inc., a Delaware corporation (the “Company”) and the parties identified on Schedule A and Schedule B attached thereto (the “Investors”), by execution of this document, hereby (on behalf of itself and the other parties to the Rights Agreement): (a) amends the Rights Agreement, and (b) waives its preemptive rights, in each case pursuant to Section 8.1 of the Rights Agreement and as set forth below. Capitalized terms used herein but not defined herein shall have the meaning given to them in the Rights Agreement.
1. Waiver of Preemptive Rights. The undersigned hereby waives its preemptive rights set forth in Section 2 of the Rights Agreement (and the notice requirements therefor) with respect to the issuance of certain Convertible Promissory Notes of the Company (the “Notes”) and Warrants to purchase Preferred Stock of the Company (the “Warrants”) to be issued pursuant to the terms of the Convertible Note and Warrant Purchase Agreement, dated as of October 9, 2003, between the Company and the purchasers (the “Purchasers”) identified on Exhibit A thereto (the “Purchase Agreement”), and the securities issuable upon conversion of such Notes and exercise of such Warrants or other securities issuable upon conversion of such securities. Any preemptive rights of the undersigned with respect to subsequent issuances of the Company’s securities shall not be affected by the waiver set forth herein.
2. Amendment of Rights Agreement. Pursuant to the terms of the Purchase Agreement, the Company and the Investors hereby amend the Rights Agreement in order to: (a) add the Purchasers as parties to the Rights Agreement, to the extent such Purchasers are not yet parties to the Rights Agreement, which Purchasers, upon signing a counterpart signature page to the Rights Agreement, shall be deemed an “Investor” and “Holder” thereunder and subject to all applicable rights and obligations contained therein, and (b) include in the definition of “Registrable Securities” in Section 1.1(g) of the Rights Agreement the Common Stock or other securities issued or issuable upon conversion of the Notes, the securities issuable upon exercise of the Warrants and other securities issuable upon conversion of such securities.
This Waiver of Preemptive Rights and Amendment of the Amended and Restated Investor Rights Agreement is effective as of the date the Company and the holders of at least a majority in interest of the Registrable Securities execute the same.
[Signature Page Follows]
This Waiver of Preemptive Rights and Amendment of the Amended and Restated Investor Rights Agreement may be signed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
COMPANY: | ||
XCYTE THERAPIES, INC., a Delaware corporation | ||
By: |
/S/ XXXXXX X. XXXXXXXX | |
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
WAIVER OF PREEMPTIVE RIGHTS AND CONSENT TO AMENDMENT OF INVESTOR RIGHTS AGREEMENT
SPROUT CEO FUND, L.P. | ||||
By: |
DLJ Capital Corporation, its General Partner | |||
By: |
/S/ XXXXXXXX XXXXXXX | |||
Name: |
Xxxxxxxx Xxxxxxx | |||
Title: |
Managing Director | |||
Address: |
0000 Xxxx Xxxx Xxxx | |||
Xxxxxxxx 0, Xxxxx 000 | ||||
Xxxxx Xxxx, XX 00000 | ||||
SPROUT CAPITAL VII, L.P. | ||||
By: |
DLJ Capital Corporation, its Managing General Partner | |||
By: |
/S/ XXXXXXXX XXXXXXX | |||
Name: |
Xxxxxxxx Xxxxxxx | |||
Title: |
Managing Director | |||
Address: |
0000 Xxxx Xxxx Xxxx | |||
Xxxxxxxx 0, Xxxxx 000 | ||||
Xxxxx Xxxx, XX 00000 |
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
WAIVER OF PREEMPTIVE RIGHTS AND CONSENT TO AMENDMENT OF INVESTOR RIGHTS AGREEMENT
ALTA CALIFORNIA PARTNERS, L.P. | ||||
By: |
Alta California Management Partners, L.P. | |||
By: |
/S/ XXXX XXXXXXX | |||
Xxxx Xxxxxxx, General Partner | ||||
Address: |
Xxx Xxxxxxxxxxx Xxxxxx | |||
Xxxxx 0000 | ||||
Xxx Xxxxxxxxx, XX 00000 | ||||
ALTA EMBARCADERO PARTNERS, L.L.C. | ||||
By: |
/S/ XXXX XXXXXXX | |||
Xxxx Xxxxxxx, General Partner | ||||
Address: |
Xxx Xxxxxxxxxxx Xxxxxx | |||
Xxxxx 0000 | ||||
Xxx Xxxxxxxxx, XX 00000 |
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
WAIVER OF PREEMPTIVE RIGHTS AND CONSENT TO AMENDMENT OF INVESTOR RIGHTS AGREEMENT
ARCH VENTURE FUND III, L.P., | ||||
a Delaware limited partnership | ||||
By: |
ARCH VENTURE PARTNERS, L.L.C | |||
a Delaware limited partnership, its General Partner | ||||
By: |
/S/ XXXXXX XXXXXX | |||
Name: |
Xxxxxx Xxxxxx | |||
Title: |
Managing Director | |||
Address: |
0000 Xxxxxx Xxxxxx | |||
Xxxxx 0000 | ||||
Xxxxxxx, XX 00000-0000 | ||||
ARCH VENTURE PARTNERS II, L.P., | ||||
a Delaware limited partnership | ||||
By: |
ARCH MANAGEMENT PARTNERS II, L.P., | |||
a Delaware limited partnership, its General Partner | ||||
By: |
ARCH VENTURE PARTNERS, L.P., | |||
a Delaware limited partnership, its General Partner | ||||
By: |
ARCH VENTURE CORPORATION, | |||
an Illinois corporation, its General Partner | ||||
By: |
/S/ XXXXXX XXXXXX | |||
Name: |
Xxxxxx Xxxxxx | |||
Title: |
Managing Director | |||
Address: |
0000 Xxxxxx Xxxxxx | |||
Xxxxx 0000 | ||||
Xxxxxxx, XX 00000-0000 |
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
WAIVER OF PREEMPTIVE RIGHTS AND CONSENT TO AMENDMENT OF INVESTOR RIGHTS AGREEMENT
HEALTHCARE FOCUS FUND, L.P., a Delaware limited partnership | ||
By: |
ARCH VENTURE PARTNERS V, L.P., its General Partner | |
By: |
ARCH VENTURE PARTNERS V, L.L.C., its General Partner | |
By: |
/S/ XXXXXX XXXXXX | |
Name: |
Xxxxxx Xxxxxx | |
Title: |
Managing Director | |
Address: |
0000 Xxxxxx Xxxxxx Xxxxx 0000 Xxxxxxx, XX 00000-0000 |
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
WAIVER OF PREEMPTIVE RIGHTS AND CONSENT TO AMENDMENT OF INVESTOR RIGHTS AGREEMENT
MPM ASSET MANAGEMENT INVESTORS 2000 B L.L.C. | ||
By: |
/S/ XXXXXXXX XXXXXXXXX | |
Name: |
Xxxxxxxx Xxxxxxxxx | |
Title: |
Investment Manager | |
Address: |
000 Xxxxxxxxxx Xxxxxx 00xx Xxxxx Xxxxxx, XX 00000 | |
MPM BIOVENTURES GMBH & CO. PARALLEL-BETEILIGUNGS KG | ||
By: |
/S/ XXXXXXXX XXXXXXXXX | |
Name: |
Xxxxxxxx Xxxxxxxxx | |
Title: |
Investment Manager | |
Address: |
000 Xxxxxxxxxx Xxxxxx 00xx Xxxxx Xxxxxx, XX 00000 | |
MPM BIOVENTURES II, L.P. | ||
By: |
/S/ XXXXXXXX XXXXXXXXX | |
Name: |
Xxxxxxxx Xxxxxxxxx | |
Title: |
Investment Manager | |
Address: |
000 Xxxxxxxxxx Xxxxxx 00xx Xxxxx Xxxxxx, XX 00000 | |
MPM BIOVENTURES II-QP, L.P. | ||
By: |
/S/ XXXXXXXX XXXXXXXXX | |
Name: |
Xxxxxxxx Xxxxxxxxx | |
Title: |
Investment Manager | |
Address: |
000 Xxxxxxxxxx Xxxxxx 00xx Xxxxx Xxxxxx, XX 00000 |
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
WAIVER OF PREEMPTIVE RIGHTS AND CONSENT TO AMENDMENT OF INVESTOR RIGHTS AGREEMENT
FALCON TECHNOLOGY PARTNERS, L.P. | ||
By: | /S/ XXXXX XXXXXXX | |
Xxxxx Xxxxxxx Its General Partner
| ||
Address: 000 Xxxxxx Xxxx Xxxxx, XX 00000 |
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
WAIVER OF PREEMPTIVE RIGHTS AND CONSENT TO AMENDMENT OF INVESTOR RIGHTS AGREEMENT
RIVERVEST VENTURE FUND I, L.P. | ||
By: |
RiverVest Venture Partners I, L.L.C., its general partner | |
By: |
/S/ XXXX X. XXXXXX | |
Name: |
Xxxx X. Xxxxxx, Ph.D. | |
Title: |
Manager | |
Address: |
0000 Xxxxxxx Xxxxxxxxx Xxxxx 0000 Xx. Xxxxx, XX 00000 |
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
WAIVER OF PREEMPTIVE RIGHTS AND CONSENT TO AMENDMENT OF INVESTOR RIGHTS AGREEMENT
W CAPITAL PARTNERS IRONWORKS, L.P. | ||
By: |
/S/ XXXXXXX XXXXXXXXXX | |
Name: |
Xxxxxxx Xxxxxxxxxx | |
Title: |
Managing Director | |
Address: |
000 Xxxx Xxxxxx 00xx Xxxxx Xxx Xxxx, XX 00000 |
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
WAIVER OF PREEMPTIVE RIGHTS AND CONSENT TO AMENDMENT OF INVESTOR RIGHTS AGREEMENT
VULCAN INC. | ||
By: |
XX XXXXX XXXXXX | |
Name: |
/s/ Xx Xxxxx Xxxxxx | |
Title: |
Vice Chairman | |
Address: |
000 Xxxxx Xxxxxx Xxxxx 000 Xxxxxxx, XX 00000 |
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
WAIVER OF PREEMPTIVE RIGHTS AND CONSENT TO AMENDMENT OF INVESTOR RIGHTS AGREEMENT
VECTOR LATER-STAGE EQUITY FUND II, L.P. | ||
By: |
Vector Fund Management II, L.L.C, its General Partner | |
By: |
/S/ XXXXXXX XXXX | |
Name: |
Xxxxxxx Xxxx | |
Title: |
Managing Director | |
Address: |
0000 Xxxx Xxxx Xxxx Xxxxx 000 Xxxxxxxxx, XX 00000 | |
VECTOR LATER-STAGE EQUITY FUND II, (Q.P.) L.P. | ||
By: |
Vector Fund Management II, L.L.C, its General Partner | |
By: |
/S/ XXXXXXX XXXX | |
Name: |
Xxxxxxx Xxxx | |
Title: |
Managing Director | |
Address: |
0000 Xxxx Xxxx Xxxx Xxxxx 000 Xxxxxxxxx, XX 00000 |
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
WAIVER OF PREEMPTIVE RIGHTS AND CONSENT TO AMENDMENT OF INVESTOR RIGHTS AGREEMENT
PALIVACINNI PARTNER, L.L.C.
By: |
/S/ XXXXXXX XXXX | |||
Name: |
Xxxxxxx Xxxx | |||
Title: |
Managing Member | |||
Address: 0000 Xxxx Xxxx Xxxx Xxxxx 000 Xxxxxxxxx, XX 00000 |
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
WAIVER OF PREEMPTIVE RIGHTS AND CONSENT TO AMENDMENT OF INVESTOR RIGHTS AGREEMENT
1998 CO-INVESTING L.L.C. | ||
By: | /S/ XXXXXXX X. XXXXXXXXX | |
Name: |
Xxxxxxx X. XxXxxxxxx | |
Title: |
Manager | |
Address: |
0000 X. Xxxxxxxxx Xxxx. Xxxxx 0000 Xx. Xxxxx, XX 00000 |
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
WAIVER OF PREEMPTIVE RIGHTS AND CONSENT TO AMENDMENT OF INVESTOR RIGHTS AGREEMENT