Exhibit 4.2
FOURTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Fourth Amended and Restated Registration Rights Agreement (the
"Agreement"), which amends and restates that certain Third Amended and Restated
Registration Rights Agreement, dated as of August 21, 1998 (the "Prior
Agreement"), is entered into as of February 26, 1999, by and among Exelixis
Pharmaceuticals, Inc., a Delaware corporation (the "Company"), the investors
listed on Exhibit A hereto (the "Series A Investors"), the investors listed on
Exhibit B hereto (the "Series B Investors"), the investors listed on Exhibit C
hereto (the "Series C Investors") and the investors listed on Exhibit D hereto
(the "Series D Investors").
Whereas, the Company issued and sold (i) 5,328,571 shares of its Series A
Convertible Preferred Stock, $.001 par value, at a purchase price of $.70 per
share ("Series A Preferred Stock") on January 27, 1995 and March 31, 1995 to the
Series A Investors, (ii) 12,300,000 shares of its Series B Convertible Preferred
Stock, $.001 par value, at a purchase price of $1.00 per share ("Series B
Preferred Stock") on March 27, 1996 to the Series B Investors and (iii)
7,875,000 shares of Series C Convertible Preferred Stock, $.001 par value, at a
price of $2.00 per share (the "Series C Preferred Stock) on April 8, 1997 and is
issuing up to 5,000,000 shares of Series D Convertible Preferred Stock, $.001
par value at a purchase price of $3.00 per share ("Series D Preferred Stock") to
the Series D Investors, pursuant to the Series D Convertible Preferred Stock
Purchase Agreement dated August 21, 1998 and February 10, 1999(the "Purchase
Agreement") among the Company and the Series D Investors; and
Whereas, one of the conditions to the consummation of the transactions
contemplated by the Purchase Agreement entered into by the Series D Investors is
the amendment and restatement of the Prior Agreement to provide for registration
rights for the shares of Series D Preferred Stock purchased by the Series D
Investors as set forth herein;
Whereas, the Company and Pharmacia & Upjohn AB ("P&U") desire to enter into
a stock purchase agreement providing for the issuance and sale by the Company to
P&U of up to 2,500,000 shares of Series D Preferred Stock (the "P&U Purchase
Agreement"); and
Whereas, this Agreement supersedes and amends and restates the Prior
Agreement in its entirety, and holders of at least 66-2/3 % of the shares of
Restricted Stock (as defined in the Prior Agreement) and the Company hereby
consent and agree to the amendment and restatement of the Prior Agreement and
the Series D Investors in their capacity as purchasers of shares of the Series D
Preferred Stock desire to enter into this Agreement.
Now, Therefore, in consideration of the mutual covenants and agreements
contained herein and the purchase of the Series D Preferred Stock by the Series
D Investors under the Purchase Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1.
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $.001 par value of the Company,
as constituted as of the date of this Agreement.
"Conversion Shares" shall mean shares of Common Stock issued upon
conversion of the Preferred Stock.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Investors" shall mean the Series A Investors, the Series B Investors, the
Series C Investors and the Series D Investors. Notwithstanding anything to the
contrary in this Agreement, any purchaser of Series D Preferred Stock under the
Purchase Agreement or the P&U Purchase Agreement, may become a party to this
Agreement by signing a counterpart hereto. Each such Investor shall be deemed
to be a "Series D Investor" for all purposes under this Agreement.
"Preferred Stock" shall mean the shares of Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock.
"Restricted Stock" shall mean the Conversion Shares and all other shares of
Common Stock now or hereafter acquired by any of the Investors or any of their
affiliates, but excluding shares of Common Stock which have been (a) registered
under the Securities Act pursuant to an effective registration statement fried
thereunder and disposed of in accordance with the registration statement
coveting them or (b) publicly sold pursuant to Rule 144 under the Securities
Act; provided, however, that the term "Restricted Stock" shall be deemed to
include (i) all shares of any class or series of the capital stock of the
Company and (ii) all securities convertible into or exchangeable for any shares
of any class or series of the capital stock of the Company, in either case held
by any of the Investors or their affiliates.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 7
hereof.
2. Restrictive Legend. Each certificate representing Preferred Stock or
Conversion Shares shall, except as otherwise provided in Section 3, be stamped
or otherwise imprinted with a legend substantially in the following form:
2.
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT COVERING
SUCH SHARES UNDER THAT ACT AND ANY APPLICABLE STATE SECURITIES LAWS,
UNLESS, IN THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, AN EXEMPTION
FROM REGISTRATION THEREUNDER IS AVAILABLE."
3. Required Registration.
(a) At any time after the earlier of December 31, 1999 or six months
after the effective date of the initial public offering of securities of the
Company pursuant to an effective registration statement under the Securities
Act, the holders of Restricted Stock constituting at least 20% of the total
shares of Restricted Stock then owned beneficially or of record by Investors and
Investor Transferees (as such term is hereinafter defined) may require the
Company to register under the Securities Act all or any portion of the shares of
Restricted Stock held by such requesting holder or holders for sale in the
manner specified in such notice, provided that the reasonably anticipated
aggregate price to the public of such public offering would exceed $5,000,000.
Notwithstanding the foregoing, the only securities that the Company shall be
required to register pursuant hereto shall be shares of Common Stock; provided,
however, that in any underwritten public offering contemplated by this
Agreement, the holders of Preferred Stock shall be entitled to sell such
Preferred Stock to the underwriters for conversion and sale of the shares of
Common Stock issued upon conversion thereof. Notwithstanding anything to the
contrary contained herein, the Company shall not be required to cause a
registration pursuant to this Subsection 3(a) to become effective prior to the
date which is 180 days after the effective date of a registration statement
filed by the Company covering a firm commitment underwritten public offering of
securities of the Company under the Securities Act.
(b) Following receipt of any notice under this Section 3, the Company
shall immediately notify all Investors and Investor Transferees from whom notice
has not been received and shall use its best efforts to register under the
Securities Act, for public sale in accordance with the method of disposition
specified in such notice from requesting holders, the number of shares of
Restricted Stock specified in such notice (and in all notices received by the
Company from other holders within 30 days after the giving of such notice by the
Company). If such method of disposition shall be an underwritten public
offering, the holders of a majority of the shares of Restricted Stock to be sold
in such offering may designate the managing underwriter of such offering,
subject to the approval of the Company, which approval shall not be unreasonably
withheld or delayed. The Company shall be obligated to register Restricted Stock
pursuant to this Section 3 on two occasions only; provided, however, that such
obligation shall be deemed satisfied only when a registration statement covering
all shares of Restricted Stock specified in notices received as aforesaid, for
sale in accordance with the method of disposition specified by the requesting
holders, shall have become effective and, if such method of disposition is a
firm commitment underwritten public offering, all such shares shall have been
sold pursuant thereto.
3.
(c) In the event that any registration statement pursuant to this
Section 3 shall be, in whole or in part, an underwritten public offering of
Common Stock, the number of shares of Restricted Stock to be included in such an
underwriting may be reduced (pro rata among the requesting holders based upon
the number of shares of Restricted Stock owned by such holders) if and to the
extent that the managing underwriter shall be of the opinion (and shall provide
a written opinion) that the inclusion of some of the Restricted Stock would
adversely affect the marketing of the securities to be sold therein; provided,
however, that (1) no shares of Restricted Stock which are not then subject to
volume restrictions under Rule 144 under the Securities Act and (2) no shares of
Common Stock to be sold by the Company for its own account, shall be included in
such public offering unless all the shares of Restricted Stock requested to be
included in such public offering which (i) are held by holders who are not
affiliates of the Company and (ii) are subject to such restrictions, are
included in such public offering.
(d) Subject to Subsection 3(c), the Company shall be entitled to
include in any registration statement referred to in this Section 3, for sale in
accordance with the method of disposition specified by the requesting holders,
shares of Common Stock to be sold by the Company for its own account, except as
and to the extent that, in the reasonable opinion of the managing underwriter
(if such method of disposition shall be an underwritten public offering), such
inclusion would materially adversely affect the marketing of the Restricted
Stock to be sold.
Except for registration statements on Form ▇-▇, ▇-▇ or any successor thereto,
the Company will not file with the Commission any other registration statement
with respect to its Common Stock, whether for its own account or that of other
stockholders, from the date of receipt of a notice from requesting holders
pursuant to this Section 3 until the later of 120 days from the effective date
of the registration statement or completion of the period of distribution of the
shares of Restricted Stock registered thereby.
4. Incidental Registration. If the Company at any time (other than
pursuant to Section 3 or Section 5) proposes to register any of its securities
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Forms ▇-▇, ▇-▇ or another form not available for
registering the Restricted Stock for sale to the public), each such time it will
give written notice to all holders of outstanding Restricted Stock of its
intention so to do and of the proposed method of distribution of such
securities. Upon the written request of any such holder, received by the Company
within 30 clays after the giving of any such notice by the Company, to register
any of its Restricted Stock, the Company will use its best efforts to cause the
Restricted Stock as to which registration shall have been so requested to be
included in the securities to be covered by the registration statement proposed
to be filed by the Company, all to the extent and under the conditions such
registration is permitted under the Securities Act. In the event that any
registration pursuant to this Section 4 shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of shares of Restricted
Stock to be included in such an underwriting may be reduced (pro rata among the
requesting holders based upon the number of shares of Restricted Stock owned by
such holders) if and to the extent that the managing underwriter shall be of the
opinion (and shall provide a written opinion) that the inclusion of some or all
of the Restricted Stock would adversely affect the marketing of the securities
to be sold by the Company therein; provided, however, that such number of shares
of Restricted Stock shall not be reduced if any shares are to be included in
such underwriting for the account of any
4.
person other than the Company or requesting holders of Restricted Stock.
Notwithstanding the foregoing provisions, the Company may withdraw any
registration statement referred to in this Section 4 without thereby incurring
any liability to the holders of Restricted Stock.
5. Registration on Form S-3. If at any time (i) a holder or holders of
Preferred Stock or Restricted Stock holding, in the aggregate, in excess of two
percent (2%) of the then-outstanding Common Stock (including Conversion Shares)
request that the Company file a registration statement on Form S-3 or any
successor thereto for a public offering of all or any portion of the shares of
Restricted Stock held by such requesting holder or holders, the reasonably
anticipated aggregate price to the public (net of underwriting discounts and
commissions) of which would exceed $1,000,000 and (ii) the Company is a
registrant entitled to use Form S-3 or any successor thereto to register such
shares, then the Company shall use its best efforts to register under the
Securities Act on Form S-3 or any successor thereto, for public sale in
accordance with the method of disposition specified in such notice, the number
of shares of Restricted Stock specified in such notice. Whenever the Company is
required by this Section 5 to use its best efforts to effect the registration of
Restricted Stock, each of the procedures and requirements of Section 3
(including but not limited to the requirement that the Company notify all
holders of Restricted Stock from whom notice has not been received and provide
them with the opportunity to participate in the offering) shall apply to such
registration, provided, however, that the requirements contained in the last
sentence of Section 3(a) and in the last sentence of Section 3(b) shall not
apply to any registration on Form S-3 that may be requested and obtained under
this Section 5.
6. Registration Procedures. If and whenever the Company is required by
the provisions of Sections 3, 4 or 5 to use its best efforts to effect the
registration of any shares of Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
(a) Prepare and file with the Commission, within 90 days from the
Company's receipt of notice from the Investors requesting such registration, a
registration statement (which, in the case of an underwritten public offering
pursuant to Section 3, shall be on Form S-1 or other form of general
applicability satisfactory to the managing underwriter selected as therein
provided) with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in Section 6(a) above and comply with the provisions of the
Securities Act with respect to the disposition of all Restricted Stock covered
by such registration statement in accordance with the sellers' intended method
of disposition set forth in such registration statement for such period;
(c) Furnish to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
5.
(d) Use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter reasonably shall request;
provided, however, that the Company shall not for any such purpose be required
to qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general service of
process in any such jurisdiction;
(e) Use its best efforts to list the Restricted Stock covered by such
registration statement with any securities exchange or quotation system on which
the Common Stock of the Company is then listed;
(f) Immediately notify each seller of Restricted Stock and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing. The Sellers of
Restricted Stock agree upon receipt of such notice forthwith to cease making
offers and sales of Restricted Stock pursuant to such registration statement or
deliveries of the prospectus contained therein for any purpose until the Company
has prepared and furnished such amendment or supplement to the prospectus as may
be necessary so that, as thereafter delivered to purchasers of such Restricted
Stock, such prospectus shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing;
(g) If the offering is underwritten and at the request of any seller
of Restricted Stock, use its best efforts to furnish on the date that Restricted
Stock is delivered to the underwriters for sale pursuant to such registration
(i) an opinion dated such date of counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given by
Company counsel to the underwriters in an underwritten public offering,
addressed to the underwriters and to such seller, stating, among other things,
that such registration statement has become effective under the Securities Act
and that (A) no stop order suspending the effectiveness thereof has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the registration statement, the
related prospectus and each amendment or supplement thereof comply as to form in
all material respects with the requirements of the Securities Act (except that
such counsel need not express any opinion as to financial statements and the
notes thereto and the schedules and other financial and statistical data
contained therein) and including a statement that nothing has come to the
attention of such counsel which has caused it to believe that, at the time the
registration statement became effective, the registration statement (other than
the financial statements and the notes thereto and the schedules and other
financial and statistical data contained therein) contained any untrue statement
of a
6.
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
prospectus (other than the financial statements and the notes thereto and the
schedules and other financial and statistical data contained therein), contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and (C)
to such other effects as reasonably may be requested by counsel for the
underwriters or by such seller or its counsel and (ii) a letter dated such date
from the independent public accountants retained by the Company, addressed to
the underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to such registration as such underwriters reasonably may request;
and
(h) Make available for inspection upon reasonable notice during the
Company's regular business hours by each seller of Restricted Stock, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
For purposes of Section 6(a) and 6(b) and of Section 3(d), the period of
distribution of Restricted Stock in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Restricted Stock in any other registration shall be deemed to extend until
the earlier of the sale of all Restricted Stock covered thereby and a period of
120 days has elapsed while such distribution is ongoing after the effective date
thereof.
In connection with each registration hereunder, the sellers of Restricted
Stock shall (a) provide such information and execute such documents as may
reasonably be required in connection with such registration, (b) agree to sell
Restricted Stock on the basis provided in any underwriting arrangements and (c)
complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements, which arrangements shall not be inconsistent
herewith.
In connection with each registration pursuant to Sections 3, 4, or 5
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
7. Expenses. All expenses incurred by the Company in complying with
Sections 3, 4, and 5, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees
7.
of transfer agents and registrars, and fees and disbursements of one counsel for
the sellers of Restricted Stock, but excluding any Selling Expenses, are called
"Registration Expenses." All underwriting discounts and selling commissions
applicable to the sale of Restricted Stock are called "Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 3, 4, or 5. All Selling Expenses in
connection with each registration statement under Sections 3, 4 or 5 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
8. Indemnification and Contribution.
(a) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Sections 3, 4, or 5, the Company will
indemnify and hold harmless each seller of such Restricted Stock thereunder,
each underwriter of such Restricted Stock thereunder and each other person, if
any, who controls such seller or underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Restricted Stock was
registered under the Securities Act pursuant to Sections, 3, 4 or 5, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will pay the legal
fees and other expenses of each such seller, each such underwriter and each such
controlling person incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in reliance upon and in conformity with information furnished by any such
seller, any such underwriter or any such controlling person in writing
specifically for use in such registration statement or prospectus and provided,
further, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of or
is based upon an untrue or alleged untrue statement or omission or an alleged
omission made in any preliminary prospectus or final prospectus if (1) such
holder failed to send or deliver a copy of the final prospectus or prospectus
supplement provided by the Company with or prior to the delivery of written
confirmation of the sale of the Restricted Stock, and (2) the final prospectus
or prospectus supplement would have corrected such untrue statement or omission.
(b) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Section 3, 4 or 5, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against
8.
all losses, claims, damages or liabilities, joint or several, to which the
Company or such officer, director, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the registration statement under which such Restricted Stock was
registered under the Securities Act pursuant to Sections 3, 4 or 5, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will pay the legal
fees and other expenses of the Company and each such officer, director,
underwriter and controlling person incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that such seller will be liable hereunder in any such case if
and only to the extent that any such loss, claim damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
furnished in writing to the Company by such seller specifically for use in such
registration statement or prospectus and provided, further, however, that the
liability of each seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expenses that is equal to the proportion
that the public offering price of the shares sold by such seller under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not in any event to exceed the proceeds received
by such seller from the sale of Restricted Stock covered by such registration
statement,
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability that it may have
to such indemnified party other than under this Section 8 and shall only relieve
it from any liability that it may have to such indemnified party under this
Section 8 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 8 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof; provided, however,
that, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded (based on the advice of counsel) that there may be reasonable defenses
available to it which are different from or additional to those available to the
indemnifying party or if the interests of the indemnified party reasonably may
be deemed to conflict with the interests of the indemnifying party, the
indemnified party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in the defense of such
action, with the expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the indemnifying as incurred,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
9.
than one separate firm of attorneys (together with appropriate local counsel as
required by the local rules of such jurisdiction) at any time for all such
indemnified parties.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any holder of
Restricted Stock exercising rights under this Agreement, or any controlling
person of any such holder, makes a claim for indemnification pursuant to this
Section 8 but it is judicially determined ▇▇▇ the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 8 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such selling holder or any such controlling
person in circumstances for which indemnification is provided under this Section
8; then, and in each such case, the Company and such holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such holder
is responsible for the portion represented by the percentage that the public
offering price of its Restricted Stock offered by the registration statement
bears to the public offering price of all securities offered by such
registration statement, and the Company is responsible for the remaining
portion: provided, however,, that, in any such case, (A) no such holder will be
required to contribute any amount in excess of the public offering price of all
such Restricted Stock offered by it pursuant to such registration statement and
(B) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
(e) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
9. Changes in Common Stock or Preferred Stock. If, and as often as, there
is any change in the Common Stock or the Preferred Stock by way of a stock
split, stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock or
the Preferred Stock as so changed.
10. Rule 144 Reporting and Rule 144A Information. With a view to making
available the benefits of certain rules and regulations of the Commission that
may at any time permit the resale of the Restricted Stock without registration,
the Company will:
(a) At all times after 90 days after any registration statement
covering a public offering of securities of the Company under the Securities Act
shall have become effective:
(i) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
10.
(ii) Use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(iii) Furnish to each holder of Restricted Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any role or regulation of
the Commission allowing such holder to sell any Restricted Stock without
registration: and
(b) At any time, at the request of any holder of Preferred Stock or
shares of Restricted Stock, make available to such holder and to any prospective
transferee of such Preferred Stock or shares of Restricted Stock the information
concerning the Company described in Rule 144A(d)(4) under the Securities Act.
11. Representations and Warranties of the Company. The Company represents
and warrants to the Investors as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
cause a material violation of any provision of any law applicable to the
Company, any order of any court or other agency of government applicable to the
Company, the Charter or By-laws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
the Company; and
(b) This Agreement has been duly executed and delivered by the
Company and constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to laws of general application
from time to time in effect affecting creditors' rights and the exercise of
judicial discretion in accordance with general equitable principles.
12. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto (including without
limitation transferees of any Preferred Stock or Restricted Stock), whether so
expressed or not; provided, however, that registration rights conferred herein
on the holders of Restricted Stock may not be transferred and registration
rights conferred herein on the Investors shall only inure to the benefit of a
transferee of Preferred Stock or Restricted Stock if (i) there is transferred to
such transferee at least 250,000 shares of Restricted Stock or (ii) such
transferee is a partner or shareholder of an Investor (the transferee in either
such case being referred to as an "Investor Transferee").
11.
(b) All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) made by telex,
telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv)
sent by registered or certified mail, return receipt requested, postage prepaid.
If to the Company, to it at its principal place of business;
If to any other party hereto, to such party at the address of
such party as shown on the books of the Company; and
If to any Investor Transferee, to it at such address as may have
been furnished to the Company in writing by such Investor
Transferee;
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telex, telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iv) if sent by registered
or certified mail, on the fifth (5th) business day following the day such
mailing is made.
(c) This Agreement shall be governed by and construed in accordance
with the internal law of the state of Delaware without giving effect to the
conflict of law principles thereof.
(d) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the Company and the holders
of at least sixty-six and two-thirds percent (66-2/3%) of all of the outstanding
shares of Restricted Stock; provided, however, that any amendment which affects
any Series of the Preferred Stock differently from any other Series of the
Preferred Stock must also be approved by holders of at least sixty-six and two-
thirds percent (66-2/3 %) of all of the outstanding shares of such Series of
Preferred Stock. Notwithstanding the foregoing, the Company may, without any
such written consent, amend or modify the Schedule of Investors attached hereto
as Exhibit D to include new Series D Investors.
(e) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(f) If requested in writing by the underwriters for an underwritten
public offering of securities of the Company, each holder of Restricted Stock
who is a party to this Agreement shall agree not to sell publicly any shares of
Restricted Stock or any other shares of Common Stock (other than shares of
Restricted Stock or other shares of Common Stock being registered in such
offering), without the consent of such underwriters, for a period not to exceed
180 days following the effective date of the registration statement relating to
such offering; provided, however, that all persons entitled to registration
rights with respect to shares of Common Stock who are not parties to this
Agreement, all other persons selling shares of Common Stock in such offering and
all executive officers and directors of the Company shall
12.
also have agreed not to sell publicly their Common Stock under the circumstances
and pursuant to the terms set forth in this Section 12(f) and provided, further,
that the Company shall use reasonable efforts to exclude short selling or other
forms of hedging from the restrictions imposed during such 180 day period.
(g) The Company shall not grant to any third party any registration
rights more favorable than, or inconsistent with, any of those contained herein,
so long as any of the registration rights under this Agreement remains in
effect.
(h) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement and this
Agreement shall be carded out as if any such illegal, invalid or unenforceable
provision were not contained herein.
(i) This Agreement and the rights granted herein shall terminate on
the tenth anniversary of the effective date of the initial public offering of
securities of the Company pursuant to an effective registration statement under
the Securities Act.
(j) By execution hereof, the undersigned who were parties to the
Prior Agreement, as the holder of at least 66-2/3 % of all of the outstanding
shares of Restricted Stock (as defined in the Prior Agreement), hereby consent
to and approve of the amendment and restatement of the Prior Agreement as set
forth herein.
(k) Limitation of Investors' Liability. The name H&Q Healthcare
Investors is the designation of the Trustees for the time being under an Amended
and Restated Declaration of Trust dated April 21, 1987, as amended, and all
persons dealing with H&Q Healthcare Investors must look solely to the trust
property for the enforcement of any claim against H&Q Healthcare Investors, as
neither the Trustees, officers nor shareholders assume any personal liability
for obligations entered into on behalf of H&Q Healthcare Investors. The name H&Q
Life Sciences Investors is the designation of the Trustees for the time being
under a Declaration of Trust dated February 20, 1992, as amended, and all
persons dealing with H&Q Life Sciences Investors must look solely to the trust
property for the enforcement of any claim against H&Q Life Sciences Investors,
as neither the Trustees, officers nor shareholders assume any personal liability
for obligations entered into on behalf of H&Q Life Sciences Investors.
13.
In Witness Whereof, the parties hereto have executed this Agreement as of
the date first written above.
Exelixis Pharmaceuticals, Inc.
By:________________________________
Title:_____________________________
Series A Investor
Name:__________________________
By:____________________________
Title:_________________________
Series B Investor
Name:__________________________
By:____________________________
Title:_________________________
Series C Investor
Name:__________________________
By:____________________________
Title:_________________________
Series D Investor
Name:__________________________
By:____________________________
Title:_________________________
14.
Exhibit A
SERIES A INVESTORS
OXFORD BIOSCIENCE PARTNERS, L.P.
OXFORD BIOSCIENCE PARTNERS (ADJUNCT), L.P.
OXFORD BIOSCIENCE PARTNERS (BERMUDA) LIMITED PARTNERSHIP
ATLAS VENTURE FUND II, L.P.
ATLAS VENTURE EUROPE FUND B.V.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
CREATIVE BIOMOLECULES, INC.
EVOLUTION PARTNERS
PW PARTNERS 1993 L.P.
PAINEWEBBER CAPITAL, INC.
PAINEWEBBER CAPITAL INCORPORATED
i.
Exhibit B
SERIES B INVESTORS
ADWEST LIMITED PARTNERSHIP
ADVENT PARTNERS LIMITED PARTNERSHIP
ADVENT PERFORMANCE MATERIALS LIMITED PARTNERSHIP
ADVENT INTERNATIONAL INVESTORS II LIMITED PARTNERSHIP
ROVENT II LIMITED PARTNERSHIP
OXFORD BIOSCIENCE PARTNERS L.P.
OXFORD BIOSCIENCE PARTNERS (ADJUNCT) L.P.
OXFORD BIOSCIENCE PARTNERS (BERMUDA) LIMITED PARTNERSHIP
ATLAS VENTURE FUND II, L.P.
ATLAS VENTURE EUROPE FUND B.V.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
PAINEWEBBER CAPITAL, INC.
AXIOM VENTURE PARTNERS, L.P.
GIMV INVESTMENT COMPANY
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ HEALTH CARE INVESTORS
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LIFE SCIENCES INVESTORS
NEW YORK LIFE INSURANCE COMPANY
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Artavanis-▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇.
Exhibit C
SERIES C INVESTORS
▇▇▇▇▇▇ Capital Management
Pirate Ship & Co.
The Retirement Program of ▇▇▇▇▇▇ Inc.
Biotechvest, L.P.
Fruit Of The Loom, Inc., Senior Executive Officer Deferred Compensation Plan
Maverick Fund USA, LTD.
Maverick Fund, LTD.
GLS L.P. Investment 1 Limited
Atlas Venture Fund II, L.P.
Atlas Venture Europe Fund B.V.
Oxford Bioscience Partners, L.P.
Oxford Bioscience Partners (Bermuda) Limited Partnership
H&Q Healthcare Investors
H&Q Life Science Investors
Prince Capital Master Fund, L.P.
Rovent H Limited Partnership
Advent Performance Materials Limited Partnership
Adwest Limited Partnership
Advent Partners Limited Partnership
PaineWebber Capital, Inc.
▇▇▇▇ Forest Venture
▇▇▇▇▇ Partners, L.P.
Armen Offshore
Axiom Venture Partners, L.P.
New York Life Insurance Company
Art ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, MD
GIMV n.v.
Bayview Investors, LTD.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, MD
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Artavanis-Tsakonas
▇▇▇ ▇▇▇▇▇▇▇▇▇, MD
▇▇▇ ▇▇▇▇▇▇▇
R. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
iii.
Exhibit D
SERIES D INVESTORS
Pharmacia & Upjohn AB
FEI Biomedicine Private Equity Holding Inc.
Advent Partners Limited Partnership
Advent International Investors II Limited Partnership
Advent Performance Materials Limited Partnership
Rovent II Limited Partnership
Atlas Venture Fund II, L.P.
Atlas Venture Europe Fund B.V.
Oxford Bioscience Partners, L.P.
Oxford Bioscience Partners (Bermuda) Limited Partnership
GIMV n.v.
Lynwood Corporation
Pharmacia & Upjohn AB
PainWebber Capital, Inc.
iv.
