VX3 EXCHANGE AGREEMENT
Exhibit 10.24
THIS VX3 EXCHANGE AGREEMENT (this “Agreement”) is entered into as of August 13, 2018, by and among:
(2) |
VX3 (DE) LP, a Delaware limited partnership (“LP”); |
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VACCINEX, INC., a Delaware corporation (“Vaccinex”); |
(5) |
Certain investors listed on Schedule A attached hereto to whom LP issued units of limited partnership interest (the “Units”) (the “Investors”) |
Each of the above are referred to herein individually, as a “Party,” and collectively, as the “Parties.”
WHEREAS, VX GP is the general partner of LP;
AND WHEREAS, LP issued Units to the Investors;
AND WHEREAS, as of the date hereof, the Investors set forth on Schedule A are all the limited partners of LP (the “Limited Partners”);
AND WHEREAS, the number of Units held by the Limited Partners and the aggregate number of Units issued and outstanding, in each case, as of the date hereof, are set forth on Schedule A;
AND WHEREAS, VX GP is entering into this agreement on behalf of the Limited Partners.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the Parties hereby agree as follows:
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As used herein, the following terms have the following meanings: |
“Exchange” means the transfer by an Investor to Vaccinex of the number of Units in exchange for a number of Vaccinex Shares calculated pursuant to the Exchange Ratio. As of the date hereof, the Investors hold an aggregate of 24,000,000 Units which are exchangeable hereunder for an aggregate of up to 1,318,797 Vaccinex Shares.
“Exchange Notice” means a notice, in substantially the form of Schedule B attached hereto, provided by or on behalf of an Investor to exercise such Investor’s Exchange Right.
“Exchange Ratio” means 0.05495 Vaccinex Shares for every 1 Unit transferred pursuant to an Exchange (subject to appropriate adjustment in the event of any splits, dividends, combinations, subdivisions, recapitalizations or the like, affecting the Units or Vaccinex Shares, in each case, following the date hereof, provided, however, that no such adjustment shall be made to effect any such event affecting the Vaccinex Shares to the extent that a corresponding adjustment is made to all issued and outstanding Units prior to such Exchange under the terms of the LPA).
“Exchange Right” means the right of the Investors, FCMI and Vaccinex hereunder to initiate an Exchange.
“LPA” means the Agreement of Limited Partnership of LP, dated October 27, 2017, by and among VX GP, the Investors, and any other persons who shall in the future execute and deliver the LPA as additional Limited Partners.
“Vaccinex Shares” means shares of authorized common stock, par value $0.0001 per share, of Vaccinex.
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In the event of a request of an Investor made to Vaccinex to exercise such Investor’s Exchange Right in respect of all but not less than all of that Investor’s Units (“Exchange Units”): |
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(b) |
Vaccinex will issue to such Investor the number of Vaccinex Shares as determined by the Exchange Ratio (and as listed in Schedule A) in exchange for such Exchange Units. |
The right of Investors to exercise an Exchange Right is expressly limited to those Units held by the Investors as of the date hereof (subject to appropriate adjustment in the event of any splits, dividends, combinations, subdivisions, recapitalizations or the like, affecting the Units following the date hereof), which Units are set forth on Schedule A to the LPA as of the date hereof.
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Without limiting Section 2, in the event of a request of FCMI made to Vaccinex to exercise FCMI’s Exchange Right in respect of all but not less than all of FCMI’s Units: |
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(b) |
Vaccinex will issue to each Investor, including FCMI, the number of Vaccinex Shares as determined by the Exchange Ratio in exchange for such Investor’s Units. |
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(b) |
At any time on or after the fifth anniversary of the date hereof; and |
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(c) |
Vaccinex or LP has entered into (including by entering into definitive documents related thereto) a licensing, partnering or similar transaction, including a product sale or option to enter into the foregoing, with respect to one or more of the products and indications licensed to LP by Vaccinex, and all amounts then due and owing to LP in connection with such transaction have been paid to LP; provided, that Vaccinex will use its commercially reasonable efforts to structure the transaction, or enter into such related transactions, such that the Investors are either able to defer tax liabilities, to the extent permitted by law, or to monetize a portion of their Units or Vaccinex Shares so as to defray any taxes arising as a result of the transaction, in each case, in accordance with applicable law. |
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For the avoidance of doubt, (i) following the consummation of an Exchange in accordance with this Agreement with respect to all Units, other than as a holder of Vaccinex Shares, if applicable, neither LP nor the Investors shall have a right to receive proceeds of such transaction paid to Vaccinex or LP following the consummation of such Exchange, and (ii) the Parties agree and acknowledge that nothing contained in this Agreement shall require Vaccinex or LP to obtain the consent of any Party hereto in order to enter into or consummate any such transaction.
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Such Party has the full corporate or limited partnership power and authority, as applicable, to execute and deliver this Agreement and to carry out the transactions contemplated hereby; |
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This Agreement shall be effective as of the date first written above upon the execution and delivery hereof by each Party hereto. |
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Any notice, consent, waiver or other communication given under this Agreement must be in writing and may be given by delivering it or sending it by confirmed email addressed: |
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(a) |
to Vaccinex: |
Attention: Xxxxxxx Xxxxxxxx
Email:
with a copy (which shall not constitute notice) to:
Attention: Xxxxx X. Xxxxx
Email:
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(b) |
to LP: |
Attention: Xxxxxxx Xxxxx
Email:
with a copy (which shall not constitute notice) to:
Attention: Xxxxx X. Xxxxx
Email:
Any such communication is deemed to have been delivered on the date of confirmed transmission, unless that day is not a business day in Canada or in the United States or if such confirmed transmission is not received during normal business hours of the recipient, in which event it will be deemed delivered on the next following business day. Any Party may change its email address for service by notice given in accordance with the foregoing and any subsequent notice must be sent to such Party at its changed email address.
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The provisions hereof shall inure to the benefit of the Parties and their respective successors and permitted assigns. |
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The construction and performance of this Agreement shall be governed by the laws of the State of Delaware. |
[signature pages follow]
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IN WITNESS WHEREOF the Parties have executed this VX3 Exchange Agreement as of the date first above written.
VX 3 Inc. |
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By: |
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/s/ Xxxxxxx Xxxxx |
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Name: |
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Xxxxxxx Xxxxx |
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Title: |
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President |
[Signature Page to VX3 Exchange Agreement]
IN WITNESS WHEREOF the Parties have executed this VX3 Exchange Agreement as of the date first above written.
VX3 (DE) LP |
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By: |
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/s/ Xxxxxxx Xxxxx |
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Name: |
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Xxxxxxx Xxxxx |
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Title: |
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President |
[Signature Page to VX3 Exchange Agreement]
IN WITNESS WHEREOF the Parties have executed this VX3 Exchange Agreement as of the date first above written.
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By: |
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/s/ Xxxxx X. Xxxxx |
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Name: |
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Xxxxx X. Xxxxx |
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Title: |
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Chief Financial Officer |
[Signature Page to VX3 Exchange Agreement]
IN WITNESS WHEREOF the Parties have executed this VX3 Exchange Agreement as of the date first above written.
FCMI PARENT CO. |
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By: |
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/s/ Xxx Xxxxxxxx |
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Name: |
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Xxx Xxxxxxxx |
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Title: |
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Vice President |
[Signature Page to VX3 Exchange Agreement]
IN WITNESS WHEREOF the Parties have executed this VX3 Exchange Agreement as of the date first above written.
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By: |
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/s/ Xxxxxxxx Xxxxxxx |
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Name: |
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Xxxxxxxx Xxxxxxx |
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Title: |
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[Signature Page to VX3 Exchange Agreement]
IN WITNESS WHEREOF the Parties have executed this VX3 Exchange Agreement as of the date first above written.
Gee Eff Services Limited |
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By: |
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/s/ Xxxx Xxxxxxxx |
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Name: |
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Xxxx Xxxxxxxx |
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Title: |
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[Signature Page to VX3 Exchange Agreement]
IN WITNESS WHEREOF the Parties have executed this VX3 Exchange Agreement as of the date first above written.
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By: |
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/s/ Xxxxxx Xxxxxx |
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Name: |
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Xxxxxx Xxxxxx |
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Title: |
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[Signature Page to VX3 Exchange Agreement]
IN WITNESS WHEREOF the Parties have executed this VX3 Exchange Agreement as of the date first above written.
Xxxxxx Xxxxxx, as bare trustee for: Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx Iankelevic Xxxxxx Xxxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx Alter Xxxxx Xxxxxx Lauterpacht |
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By: |
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/s/ Xxxxxx Xxxxxx |
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Name: |
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Xxxxxx Xxxxxx |
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Title: |
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Trustee |
[Signature Page to VX3 Exchange Agreement]
IN WITNESS WHEREOF the Parties have executed this VX3 Exchange Agreement as of the date first above written.
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By: |
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/s/ Xxxxxxxx Xxxxxxx |
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Name: |
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Xxxxxxxx Xxxxxxx |
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Title: |
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[Signature Page to VX3 Exchange Agreement]
IN WITNESS WHEREOF the Parties have executed this VX3 Exchange Agreement as of the date first above written.
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By: |
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/s/ Xxxxxxx Xxxxxxxx |
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Name: |
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Xxxxxxx Xxxxxxxx |
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Title: |
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[Signature Page to VX3 Exchange Agreement]
IN WITNESS WHEREOF the Parties have executed this VX3 Exchange Agreement as of the date first above written.
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By: |
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/s/ Xxxxxxx Xxxxx |
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Name: |
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Xxxxxxx Xxxxx |
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Title: |
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[Signature Page to VX3 Exchange Agreement]
Partner Name and Address |
VX GP Units |
Units |
Voting Interest |
Initial Capital Contribution |
Total Capital Contributions |
Vaccinex Shares (Post-Exchange) |
VX3 Inc. Attn: Xxxxxxx X. Xxxxx Email: |
1 |
0 |
0% |
$1 |
$1 |
0 |
SUBTOTAL |
1 |
0 |
0% |
$1 |
$1 |
0 |
FCMI Parent Co. Attn: Xxx Xxxxxxxx Email: |
0 |
21,475,000 |
89.479% |
$11,475,000 |
$21,475,0001 |
1,180,051 |
Xxxxxxx Xxxxx Xxxxxx Xxxx Xxxxxxxxx Canada LLP Email: |
0 |
75,000 |
0.313% |
$75,000 |
$75,000 |
4,121 |
Xxxxxxxx Xxxxxxx Goodmans LLP Email: |
0 |
25,000 |
0.104% |
$25,000 |
$25,000 |
1,373 |
Xxxxxx Xxxxxx, as bare trustee for: Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx Iankelevic Xxxxxx Xxxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx Alter Xxxxx Xxxxxx Lauterpacht, in equal shares Email: |
0 |
300,000 |
1.250% |
$300,000 |
$300,000 |
16,485 |
Xxxxxxx Xxxxxxxx Goodmans LLP Email: |
0 |
25,000 |
0.104% |
$25,000 |
$25,000 |
1,373 |
Xxxxxxxx Xxxxxxx Goodmans LLP Email: |
0 |
25,000 |
0.104% |
$25,000 |
$25,000 |
1,373 |
Gee Eff Services Limited Email: |
0 |
75,000 |
0.313% |
$75,000 |
$75,000 |
4,121 |
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1 |
FCMI Parent Co. made Capital Contributions to the LP in the amounts of US$8,000,000 and US$2,000,000 on or about February 28, 2018 and May 15, 2018, respectively. |
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Xxxxxx Xxxxxx, Trustee, made a Capital Contribution to the LP in the amount of US$2,000,000 on or about June 12, 2018. |
Partner Name and Address |
VX GP Units |
Units |
Voting Interest |
Initial Capital Contribution |
Total Capital Contributions |
Vaccinex Shares (Post-Exchange) |
Xxxxxx Xxxxxx, Trustee2 |
2,000,000 |
8.333% |
$0 |
$2,000,000 |
109,900 |
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0 |
24,000,000 |
100% |
$12,000,000 |
$24,000,000 |
1,318,797 |
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TOTAL |
1 |
24,000,000 |
100% |
$12,000,001 |
$24,000,001 |
1,318,797 |
EXCHANGE NOTICE
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
1.The undersigned hereby irrevocably elects to exercise its Exchange Right in respect of all but not less than all of its Units.
2.Please issue a certificate or certificates representing the Vaccinex Shares issuable upon the exchange of such Units in the name of the undersigned or in such other name as is specified below:
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(please print name and address above)
3.The undersigned represents it is acquiring the Vaccinex Shares solely for its own account and not as a nominee for any other party and not with a view toward the resale or distribution thereof except in compliance with applicable securities laws.
4.Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the VX3 Exchange Agreement, dated Xxxxxx 00, 0000, xxxxx XX 0 Xxx., XX0 (XX) LP, Vaccinex, Inc., FCMI Parent Co. and certain investors listed on Schedule A attached thereto to whom VX3 (DE) LP issued units of limited partnership interest.
[INVESTOR’S NAME]
Date: |
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