Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of
November 19, 1999 by and among (i) Abgenix, Inc., a Delaware corporation (the
"COMPANY"), (ii) each person listed on EXHIBIT A attached hereto (collectively,
the "INITIAL INVESTORS" and each individually, an "INITIAL INVESTOR"), and (iii)
each person or entity that subsequently becomes a party to this Agreement
pursuant to, and in accordance with, the provisions of Section 12 hereof
(collectively, the "INVESTOR PERMITTED TRANSFEREES" and each individually an
"INVESTOR PERMITTED TRANSFEREE").
WHEREAS, the Company has agreed to issue and sell to the Initial
Investors, and the Initial Investors have agreed to purchase from the Company,
1,778,000 shares (the "PURCHASED SHARES") of the Company's common stock, $0.001
par value per share (the "COMMON STOCK"), all upon the terms and conditions set
forth in that certain Stock Purchase Agreement, dated of even date herewith,
between the Company and the Initial Investors (the "STOCK PURCHASE AGREEMENT");
and
WHEREAS, the terms of the Stock Purchase Agreement provide that it
shall be a condition precedent to the closing of the transactions thereunder,
for the Company and the Initial Investors to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings provided
therefor below or elsewhere in this Agreement as described below:
"BOARD" shall mean the board of directors of the Company.
"CLOSING" shall have the meaning ascribed to such term in the Stock
Purchase Agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and all of the rules and regulations promulgated thereunder.
"INVESTORS" shall mean, collectively, the Initial Investors and the
Investor Permitted Transferees; PROVIDED, HOWEVER, that the term "INVESTORS"
shall not include any of the Initial Investors or any of the Investor Permitted
Transferees that ceases to own or hold any Purchased Shares.
"MAJORITY HOLDERS" shall mean, at the relevant time of reference
thereto, those Investors holding and/or having the right to acquire, as the case
may be, more than fifty percent (50%) of the Registrable Shares held by all of
the Investors.
"QUALIFYING HOLDER" shall have the meaning ascribed thereto in Section
12 hereof.
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"REGISTRABLE SHARES" shall mean the Purchased Shares, PROVIDED,
HOWEVER, such term shall not, after the Mandatory Registration Termination Date,
include any of the Purchased Shares that become or have become eligible for
resale pursuant to Rule 144 or pursuant to Regulation S.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act and
any successor or substitute rule, law or provision.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and
all of the rules and regulations promulgated thereunder.
2. EFFECTIVENESS; TERMINATION. This Agreement shall become effective
and legally binding only if the Closing occurs. This Agreement shall terminate
and be of no further force or effect, automatically and without any action being
required of any party hereto, upon the termination of the Stock Purchase
Agreement pursuant to Section 8 thereof.
3. MANDATORY REGISTRATION.
(a) Within ten (10) business days after the Closing, the
Company will prepare and file with the SEC a registration statement on Form S-3
for the purpose of registering under the Securities Act all of the Registrable
Shares for resale by, and for the account of, the Investors as selling
stockholders thereunder (the "REGISTRATION STATEMENT"). The Registration
Statement shall permit the Investors to offer and sell, on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act, any or all of
the Registrable Shares. The Company agrees to use reasonable efforts to cause
the Registration Statement to become effective as soon as practicable. The
Company shall be required to keep the Registration Statement effective until
such date that is the earlier of (i) the date when all of the Registrable Shares
registered thereunder shall have been sold or (ii) the second anniversary of the
Closing, subject to extension as set forth below (such date is referred to
herein as the "MANDATORY REGISTRATION TERMINATION DATE"). Thereafter, the
Company shall be entitled to withdraw the Registration Statement and the
Investors shall have no further right to offer or sell any of the Registrable
Shares pursuant to the Registration Statement (or any prospectus relating
thereto). In the event the right of the selling Investors to use the
Registration Statement (and the prospectus relating thereto) is delayed or
suspended pursuant to Sections 5(c) or 11 hereof, the Company shall be required
to extend the Mandatory Registration Termination Date beyond the second
anniversary of the Closing by the same number of days as such delay or
Suspension Period (as defined in Section 11 hereof).
(b) The offer and sale of the Registrable Shares pursuant to
the Registration Statement shall not be underwritten.
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4. "PIGGYBACK" REGISTRATION RIGHTS.
(a) If, at any time after the Mandatory Registration
Termination Date, the Company proposes to register any of its Common Stock under
the Securities Act, whether as a result of a primary or secondary offering of
Common Stock or pursuant to registration rights granted to holders of other
securities of the Company (but excluding in all cases any registrations to be
effected on Forms S-4 or S-8 or other applicable successor Forms), the Company
shall, each such time, give to the Investors holding Registrable Shares written
notice of its intent to do so. Upon the written request of any such Investor
given within 20 days after the giving of any such notice by the Company, the
Company shall use reasonable efforts to cause to be included in such
registration the Registrable Shares of such selling Investor, to the extent
requested to be registered; PROVIDED that (i) the number of Registrable Shares
proposed to be sold by such selling Investor is equal to at least seventy-five
percent (75%) of the total number of Registrable Shares then held by such
participating selling Investor, (ii) such selling Investor agrees to sell those
of its Registrable Shares to be included in such registration in the same manner
and on the same terms and conditions as the other shares of Common Stock which
the Company proposes to register, and (iii) if the registration is to include
shares of Common Stock to be sold for the account of the Company or any party
exercising registration rights pursuant to any other agreement with the Company,
the proposed managing underwriter does not advise the Company that in its
opinion the inclusion of such selling Investor's Registrable Shares (without any
reduction in the number of shares to be sold for the account of the Company or
such party exercising registration rights) is likely to affect materially and
adversely the success of the offering or the price that would be received for
any shares of Common Stock offered, in which case the rights of such selling
Investor shall be as provided in Section 4(b) hereof.
(b) If a registration pursuant to Section 4(a) hereof
involves an underwritten offering and the managing underwriter shall advise
the Company in writing that, in its opinion, the number of shares of Common
Stock requested by the Investors to be included in such registration is
likely to affect materially and adversely the success of the offering or the
price that would be received for any shares of Common Stock offered in such
offering, then, notwithstanding anything in Section 4(a) to the contrary, the
Company shall only be required to include in such registration, to the extent
of the number of shares of Common Stock which the Company is so advised can
be sold in such offering, (i) first, the number of shares of Common Stock
proposed to be included in such registration for the account of the Company
and/or any stockholders of the Company (other than the Investors) that have
exercised demand registration rights, in accordance with the priorities, if
any, then existing among the Company and/or such stockholders of the Company
with registration rights (other than the Investors), and (ii) second, the
shares of Common Stock requested to be included in such registration by all
other stockholders of the Company who have piggyback registration rights
(including, without limitation, the Investors), PRO RATA among such other
stockholders (including, without limitation, the Investors) on the basis of
the number of shares of Common Stock that each of them requested to be
included in such registration.
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(c) In connection with any offering involving an underwriting
of shares, the Company shall not be required under Section 4 hereof or otherwise
to include the Registrable Shares of any Investor therein unless such Investor
accepts and agrees to the terms of the underwriting, which shall be reasonable
and customary, as agreed upon between the Company and the underwriters selected
by the Company.
5. OBLIGATIONS OF THE COMPANY. In connection with the Company's
obligation under Section 3 and 4 hereof to file the Registration Statement with
the SEC and to use its reasonable efforts to cause the Registration Statement to
become effective as soon as practicable, the Company shall, as expeditiously as
reasonably possible:
(a) Prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Shares covered by the
Registration Statement;
(b) Furnish to the selling Investors such number of copies of
a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents (including, without
limitation, prospectus amendments and supplements as are prepared by the Company
in accordance with Section 5(a) above) as the selling Investors may reasonably
request in order to facilitate the disposition of such selling Investors'
Registrable Shares;
(c) Notify the selling Investors, at any time when a
prospectus relating to the Registration Statement is required to be delivered
under the Securities Act, of the happening of any event as a result of which the
prospectus included in or relating to the Registration Statement contains an
untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading; and, thereafter, subject to Section 11 hereof
the Company will promptly prepare (and, when completed, give notice to each
selling Investor) a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Shares, such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading; PROVIDED
that upon such notification by the Company, the selling Investors will not offer
or sell Registrable Shares until the Company has notified the selling Investors
that it has prepared a supplement or amendment to such prospectus and delivered
copies of such supplement or amendment to the selling Investors (it being
understood and agreed by the Company that the foregoing proviso shall in no way
diminish or otherwise impair the Company's obligation to promptly prepare a
prospectus amendment or supplement as above provided in this Section 5(c) and
deliver copies of same as above provided in Section 5(b) hereof); and
(d) Use commercially reasonable efforts to register and
qualify the Registrable Shares covered by the Registration Statement under such
other securities or Blue Sky laws of such jurisdictions as shall be reasonably
appropriate in the opinion of the Company and the managing underwriters, if any,
PROVIDED that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or
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to file a general consent to service of process in any such states or
jurisdictions, and PROVIDED FURTHER that (notwithstanding anything in this
Agreement to the contrary with respect to the bearing of expenses) if any
jurisdiction in which any of such Registrable Shares shall be qualified shall
require that expenses incurred in connection with the qualification therein of
any such Registrable Shares be borne by the selling Investors, then the selling
Investors shall, to the extent required by such jurisdiction, pay their PRO RATA
share of such qualification expenses.
6. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the selling Investors shall furnish to the Company such information regarding
them and the securities held by them as the Company shall reasonably request and
as shall be required in order to effect any registration by the Company pursuant
to this Agreement.
7. EXPENSES OF REGISTRATION. All expenses incurred in connection with
the registration of the Registrable Shares pursuant to this Agreement (excluding
underwriting, brokerage and other selling commissions and discounts), including
without limitation all registration and qualification and filing fees, printing,
and fees and disbursements of counsel for the Company, shall be borne by the
Company.
8. DELAY OF REGISTRATION. The Investors shall not take any action to
restrain, enjoin or otherwise delay any registration as the result of any
controversy which might arise with respect to the interpretation or
implementation of this Agreement.
9. INDEMNIFICATION.
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each selling Investor, any investment banking firm acting as
an underwriter for the selling Investors, any broker/dealer acting on behalf of
any selling Investors and each officer and director of such selling Investor,
such underwriter, such broker/dealer and each person, if any, who controls such
selling Investor, such underwriter or broker/dealer within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which they 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 or alleged untrue statement
of any material fact contained in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, 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 reimburse such
selling Investor, such underwriter, broker/dealer or such officer, director or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the indemnity agreement contained
in this Section 9(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be
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liable in any such case for any such loss, damage, liability or action to the
extent that it arises out of or is based upon an untrue statement or alleged
untrue statement or omission made in connection with the Registration Statement,
any preliminary prospectus or final prospectus relating thereto or any
amendments or supplements to the Registration Statement or any such preliminary
prospectus or final prospectus, in reliance upon and in conformity with written
information furnished expressly for use in connection with the Registration
Statement or any such preliminary prospectus or final prospectus by the selling
Investors, any underwriter for them, any broker/dealer acting on their behalf or
controlling person with respect to them.
(b) To the extent permitted by law, each selling Investor will
severally and not jointly indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the Registration Statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, any investment banking firm acting as underwriter for the Company or the
selling Investors, or any broker/dealer acting on behalf of the Company or any
selling Investors, and all other selling Investors against any losses, claims,
damages or liabilities to which the Company or any such director, officer,
controlling person, underwriter, or broker/dealer or such other selling Investor
may become subject to, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement or any preliminary prospectus or final
prospectus, relating thereto or in any amendments or supplements to the
Registration Statement or any such preliminary prospectus or final prospectus,
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, in each case to the extent and only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, in reliance upon and in conformity with written information
furnished by the selling Investor expressly for use in connection with the
Registration Statement, or any preliminary prospectus or final prospectus; and
such selling Investor will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person,
underwriter, broker/dealer or other selling Investor in connection with
investigating or defending any such loss, claim, damage, liability or action,
PROVIDED, HOWEVER, that the liability of each selling Investor hereunder shall
be limited to the proceeds (net of underwriting discounts and commissions, if
any) received by such selling Investor from the sale of Registrable Shares
covered by the Registration Statement, and PROVIDED, FURTHER, HOWEVER, that the
indemnity agreement contained in this Section 9(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of those selling Investor(s) against
which the request for indemnity is being made (which consent shall not be
unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in
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respect thereof is to be made against any indemnifying party under this Section
9, notify the indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in and, to the extent the
indemnifying party desires, jointly with any other indemnifying party similarly
noticed, to assume at its expense the defense thereof with counsel mutually
satisfactory to the indemnifying parties with the consent of the indemnified
party which consent will not be unreasonably withheld, conditioned or delayed.
In the event that the indemnifying party assumes any such defense, the
indemnified party may participate in such defense with its own counsel and at
its own expense, PROVIDED, HOWEVER, that the counsel for the indemnifying party
shall act as lead counsel in all matters pertaining to such defense or
settlement of such claim and the indemnifying party shall only pay for such
indemnified party's expenses for the period prior to the date of its
participation on such defense. The failure to notify an indemnifying party
promptly of the commencement of any such action, if prejudicial to his ability
to defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 9, but the omission so to notify the
indemnifying party will not relieve him of any liability which he may have to
any indemnified party otherwise other than under this Section 9.
(d) Notwithstanding anything to the contrary herein, the
indemnifying party shall not be entitled to settle any claim, suit or proceeding
unless in connection with such settlement the indemnified party receives an
unconditional release with respect to the subject matter of such claim, suit or
proceeding and such settlement does not contain any admission of fault by the
indemnified party.
10. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to
the Investors the benefits of Rule 144 and any other rule or regulation of the
SEC that may at any time permit the Investors to sell the Purchased Shares to
the public without registration, the Company agrees to use commercially
reasonable efforts: (i) to make and keep public information available, as those
terms are understood and defined in the General Instructions to Form S-3, or any
successor or substitute form, and in Rule 144, (ii) to file with the SEC in a
timely manner all reports and other documents required to be filed by an issuer
of securities registered under the Securities Act or the Exchange Act, (iii) as
long as any Investor owns any Purchased Shares, to furnish in writing upon such
Investor's request a written statement by the Company that it has complied with
the reporting requirements of Rule 144 and of the Securities Act and the
Exchange Act, and to furnish to such Investor 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 may be reasonably requested in availing such Investor of
any rule or regulation of the SEC permitting the selling of any such Purchased
Shares without registration and (iv) undertake any additional actions reasonably
necessary to maintain the availability of the Registration Statement or the use
of Rule 144.
11. DEFERRAL. Notwithstanding anything in this Agreement to the
contrary, if the Company shall furnish to the selling Investors a certificate
signed by the President or Chief Executive Officer of the Company stating that
the Board of Directors of the Company has made the good faith determination (i)
that continued use by the selling Investors of the Registration Statement for
purposes of effecting offers or sales of
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Registrable Shares pursuant thereto would require, under the Securities Act,
premature disclosure in the Registration Statement (or the prospectus relating
thereto) of material, nonpublic information concerning the Company, its business
or prospects or any proposed material transaction involving the Company, (ii)
that such premature disclosure would be materially adverse to the Company, its
business or prospects or any such proposed material transaction or would make
the successful consummation by the Company of any such material transaction
significantly less likely and (iii) that it is therefore essential to suspend
the use by the Investors of such Registration Statement (and the prospectus
relating thereto) for purposes of effecting offers or sales of Registrable
Shares pursuant thereto, then the right of the selling Investors to use the
Registration Statement (and the prospectus relating thereto) for purposes of
effecting offers or sales of Registrable Shares pursuant thereto shall be
suspended for a period (the "Suspension Period") of not more than 90 days after
delivery by the Company of the certificate referred to above in this Section 11.
During the Suspension Period, none of the Investors shall offer or sell any
Registrable Shares pursuant to or in reliance upon the Registration Statement
(or the prospectus relating thereto).
12. TRANSFER OF REGISTRATION RIGHTS. None of the rights of any Investor
under this Agreement shall be transferred or assigned to any person unless (i)
such person is a Qualifying Holder (as defined below), and (ii) such person
agrees to become a party to, and be bound by, all of the terms and conditions
of, this Agreement by duly executing and delivering to the Company an Instrument
of Adherence in the form attached as EXHIBIT B hereto. For purposes of this
Section 12, the term "QUALIFYING HOLDER" shall mean, with respect to any
Investor, (i) any partner thereof, (ii) any corporation, partnership
controlling, controlled by, or under common control with, such Investor or any
partner thereof, or (iii) any other direct transferee from such Investor of at
least 50% of those Registrable Shares held or that may be acquired by such
Investor. None of the rights of any Investor under this Agreement shall be
transferred or assigned to any Person (including, without limitation, a
Qualifying Holder) that acquires Registrable Shares in the event that and to the
extent that such Person is eligible to resell such Registrable Shares pursuant
to Rule 144(k) of the Securities Act or may otherwise resell such Registrable
Shares pursuant to an exemption from the registration provisions of the
Securities Act.
13. ENTIRE AGREEMENT. This Agreement constitutes and contains the
entire agreement and understanding of the parties with respect to the subject
matter hereof, and it also supersedes any and all prior negotiations,
correspondence, agreements or understandings with respect to the subject matter
hereof.
14. MISCELLANEOUS.
(a) This Agreement may not be amended, modified or terminated,
and no rights or provisions may be waived, except with the written consent of
the Majority Holders and the Company. Notwithstanding the foregoing, the Company
may at its election by notifying the Initial Investors amend this Agreement to
add as parties to this Agreement additional purchasers of Common Stock pursuant
to the Stock Purchase Agreement.
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(b) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California, and shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors or assigns, PROVIDED that the terms
and conditions of Section 12 hereof are satisfied. This Agreement shall also be
binding upon and inure to the benefit of any transferee of any of the Purchased
Shares PROVIDED that the terms and conditions of Section 12 hereof are
satisfied. Notwithstanding anything in this Agreement to the contrary, if at any
time any Investor shall cease to own any Purchased Shares, all of such
Investor's rights under this Agreement shall immediately terminate.
(c) (i) Any notices, reports or other correspondence
(hereinafter collectively referred to as "CORRESPONDENCE") required or permitted
to be given hereunder shall be sent by courier (overnight or same day) or
telecopy or delivered by hand to the party to whom such correspondence is
required or permitted to be given hereunder. The date of giving any notice shall
be the date of its actual receipt.
(ii) All correspondence to the Company shall be addressed
as follows:
Abgenix, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: R. Xxxxx Xxxxx
Title: President and Chief Executive Officer
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
(iii) All correspondence to any Investor shall be sent to
such Purchaser at the address set forth in EXHIBIT A.
(d) Any entity may change the address to which correspondence
to it is to be addressed by notification as provided for herein.
(e) The parties acknowledge and agree that in the event of any
breach of this Agreement, remedies at law may be inadequate, and each of the
parties hereto shall be entitled to seek specific performance of the obligations
of the other parties hereto and such appropriate injunctive relief as may be
granted by a court of competent jurisdiction.
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(f) This Agreement may be executed in a number of
counterparts, an of which together shall for all purposes constitute one
Agreement, binding on all the parties hereto notwithstanding that all such
parties have not signed the same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date and year first above written.
COMPANY
By: /s/ R. Xxxxx Xxxxx
---------------------------------------------
Name: R. Xxxxx Xxxxx
Title: President and Chief Executive Officer
PURCHASERS:
DEUTSCHE VERMOGENSBILDUNGSGESELLSCHAFT MBH
By: /s/ [illegible]
---------------------------------------------
Name:
Title: Fund Manager
DWS INVESTMENT GMBH
By: /s/ [illegible]
---------------------------------------------
Name:
Title: Senior Fund Manager
ALLFONDS BKG
By: /s/ [illegible]
---------------------------------------------
Name:
Title: Director
X.XXXXXXXX
By: /s/ X. Xxxxxxxx
---------------------------------------------
Name:
Title:
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X. XXXXXX
By: /s/ X. Xxxxxx
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Xxxxxxx Investment GmbH
------------------------------------------------
By: /s/ [illegible]
---------------------------------------------
Name:
-------------------------------------------
Title: Director
------------------------------------------
Crosslink Crossover Fund III, LP
------------------------------------------------
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
-------------------------------------------
Title: Managing Director
------------------------------------------
Franklin California Growth Fund
------------------------------------------------
By: /s/ Xxxx xxx Xxxxxx
---------------------------------------------
Name: Xxxx xxx Xxxxxx
-------------------------------------------
Title: Vice President, Franklin Advisors
------------------------------------------
Franklin Small Cap Growth Fund
By: /s/ Xxxx xxx Xxxxxx
---------------------------------------------
Name: Xxxx xxx Xxxxxx
-------------------------------------------
Title: Vice President, Franklin Advisors
------------------------------------------
Franklin Biotechnology Discovery Fund
By: /s/ Xxxx xxx Xxxxxx
---------------------------------------------
Name: Xxxx xxx Xxxxxx
-------------------------------------------
Title: Vice President, Franklin Advisors
------------------------------------------
Franklin Global Health Care Fund
By: /s/ Xxxx xxx Xxxxxx
---------------------------------------------
Name: Xxxx xxx Xxxxxx
-------------------------------------------
Title: Vice President, Franklin Advisors
------------------------------------------
Franklin Aggressive Growth Fund
By: /s/ Xxxx xxx Xxxxxx
---------------------------------------------
Name: Xxxx xxx Xxxxxx
-------------------------------------------
Title: Vice President, Franklin Advisors
------------------------------------------
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EXHIBIT A
NAME AND ADDRESS
Name and Address
--------------------------------------------------
DVG DEUTSCHE
VERMOGESBILDUNGSGESELLSCHAFT mbH
Xxxxxxxxxxx. 00
X-00000 Xxxxxxxxx
DELIVERY ADDRESS:
DEUTSCHE BANK, NY
CUSTODY SERVICES
XX. XXXXX XXXXX
0000 0XX XXX.
XXXXXX OF THE AMERICAS
00XX XXXXX
XXX XXXX, XX 00000
DWS Investment GmbH
Gruneburger Weg 113-115
D-60323 Frankfurt
DELIVERY ADDRESS:
DEUTSCHE BANK, NY
CUSTODY SERVICES
XX. XXXXX XXXXX
0000 0XX XXX.
XXXXXX OF THE XXXXXXXX
00XX XXXXX
XXX XXXX, XX 00000
Allfonds BKG
STATE STREET BANK & TRUST
000 XXXXXXXX XXXXXX
INCOMING SECURITIES
XXXXXXXXX XXXXX
XXXXXX, XX 00000
ATTN: XXXXX XXX
Xxxx Xxxxxxxx
XXXXXX 00
0000 XXXXXXXXXX
XXXXXXXXXXX
Xxxx Xxxxxx
XXXXXXXXXXXXX 00
XXXXXXXX, XX-0000
XXXXXX, XXXXXXXXXXX
B Xxxxxxx Xxxx. Xxxx & Co.
Kommanditgesellschaft auf Aktien
Frankfurt
STATE STREET BANK
000 XXXXXXXX XXXXXX
INCOMING SECURITIES
XXXXXXXXX XXXXX
XXXXXX, XX 00000
ATTN: XXXXX XXX
Crosslink Crossover Fund III, LP
CROSSLINK CAPITAL
000 XXXXXXXXXX XXXXXX
XXXXX 0000
XXX XXXXXXXXX, XX 00000
ATTN: XXXXX XXXXXXX
Franklin California Growth Fund
X/X XXX XXXX XX XXX XXXX
0 XXXX XXXXXX
0XX XXXXX, WINDOW A
XXX XXXX, XX 00000
Franklin Small Cap Growth Fund
X/X XXX XXXX XX XXX XXXX
0 XXXX XXXXXX
0XX XXXXX, WINDOW A
XXX XXXX, XX 00000
Franklin Biotechnology Discovery Fund
X/X XXX XXXX XX XXX XXXX
0 XXXX XXXXXX
0XX XXXXX, WINDOW A
XXX XXXX, XX 00000
Franklin Global Health Care Fund
X/X XXX XXXX XX XXX XXXX
0 XXXX XXXXXX
0XX XXXXX, WINDOW A
XXX XXXX, XX 00000
Franklin Aggressive Growth Fund
X/X XXX XXXX XX XXX XXXX
0 XXXX XXXXXX
0XX XXXXX, WINDOW A
XXX XXXX, XX 00000
EXHIBIT B
INSTRUMENT OF ADHERENCE
Reference is hereby made to that certain Registration Rights Agreement,
dated as of November 19, 1999, among Abgenix, Inc. a Delaware corporation (the
"COMPANY"), the Initial Investors and the Investor Permitted Transferees, as
amended and in effect from time to time (the "REGISTRATION RIGHTS AGREEMENT").
Capitalized terms used herein without definition shall have the respective
meanings ascribed thereto in the Registration Rights Agreement.
The undersigned, in order to become the owner or holder of ___________
shares of common stock, par value $0.0001 per share (the "COMMON STOCK"), of the
Company, hereby agrees that, from and after the date hereof, the undersigned has
become a party to the Registration Rights Agreement in the capacity of an
Investor Permitted Transferee, and is entitled to all of the benefits under, and
is subject to all of the obligations, restrictions and limitations set forth in,
the Registration Rights Agreement that are applicable to Investor Permitted
Transferees. This Instrument of Adherence shall take effect and shall become a
part of the Registration Rights Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
___________________.
Signature:
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Name:
Title:
Accepted:
COMPANY
By:
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Name: R. Xxxxx Xxxxx
Title: President and Chief Executive Officer
Date:
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