Xilio Therapeutics, Inc. INVESTOR RIGHTS AGREEMENT
Exhibit 10.3
Certain identified information has been excluded from the exhibit because it is both (i) not material and (ii) is the type of information that the registrant treats as private or confidential. Double asterisks denote omissions.
This Investor Rights Agreement (this “Agreement”) is made as of March 27, 2024, by and between Xilio Therapeutics, Inc., a Delaware corporation (the “Company”), and Gilead Sciences, Inc., a Delaware corporation (“Gilead”).
WHEREAS, concurrently herewith, the Xilio Development, Inc. (“Xilio Development”) and Gilead have entered into a License Agreement (the “License Agreement”) pursuant to which they have established a collaboration with respect to certain of the Company’s product development programs;
WHEREAS, concurrently herewith, the Company and Gilead have entered into a Common Stock Purchase Agreement (the “Purchase Agreement”) pursuant to which Gilead has agreed to purchase from the Company shares of the Company’s common stock, par value $0.0001 per share (“Common Stock”), and may have the obligation to purchase additional shares of Common Stock in the future; and
WHEREAS, the Company and Gilead wish to set forth in this Agreement certain terms and conditions regarding Xxxxxx’s ownership of Common Stock and certain other matters as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
DEFINITIONS
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Capitalized terms used but not defined herein shall have the meanings given to them in the Purchase Agreement.
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(this Section 2.2, the “Standstill”). The foregoing standstill provisions shall not prohibit passive investments by a pension or employee benefit plan or trust for Xxxxxx’s employees.
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For the avoidance of doubt, after the date that is the earlier of (i) [**] from the expiration date of the Lock-up Period and (ii) the date the Company delivers a Standstill Fall-Away Notice, (i) Gilead and its Affiliates may freely transfer, sell or otherwise dispose of the Equity Securities held by Gilead and its Affiliates without limitation (other than as imposed by applicable securities laws) and (ii) the restrictions contained in Section 3.1 and Section 3.2 shall terminate and be of no further force and effect. The foregoing limitations set forth in this Section 3.2 shall cease to apply to Xxxxxx’s Affiliates if such Person ceases to be an Affiliate of Gilead.
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(a) | advise the Holders [**]: |
(A) | when a Registration Statement or any amendment thereto has been filed with the Commission and when such Registration Statement or any post-effective amendment thereto has become effective; |
(B) | of any request by the Commission for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information; |
(C) | of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for such purpose; |
(D) | of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and |
(b) | use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement as soon as reasonably practicable; |
(c) | during the Registration Period, promptly deliver to each such Holder, without charge, as many copies of each prospectus included in a Registration Statement and any amendment or supplement thereto as such Holder may reasonably request in writing; and the Company consents to the use, consistent with the provisions hereof, of the prospectus or any amendment or supplement thereto by each of the selling Holders of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by a prospectus or any amendment or supplement thereto; |
(d) | prior to any public offering of Registrable Securities pursuant to the Registration Statement, promptly take such actions as may be necessary to register or qualify |
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or obtain an exemption for offer and sale under the securities or blue sky laws of such United States jurisdictions as any such Holders reasonably request in writing, provided 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, and do any and all other acts or things reasonably necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities covered by any such Registration Statement; |
(e) | upon the occurrence of any event contemplated by Section 5.2.1(a)(E) above, except for such times as the Company is permitted hereunder to suspend the use of a prospectus forming part of a Registration Statement, the Company shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; |
(f) | otherwise use its commercially reasonable efforts to comply in all material respects with all applicable rules and regulations of the Commission which could affect the sale of the Registrable Securities; |
(g) | use its commercially reasonable efforts to cause all Registrable Securities to be listed on each securities exchange or market, if any, on which equity securities issued by the Company have been listed; |
(h) | use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Registrable Securities contemplated hereby and to enable the Holders to sell Registrable Securities under Commission Rule 144; |
(i) | permit counsel for Gilead to review the Registration Statement and all amendments and supplements thereto (other than any supplements to a Registration Statement on Form S-1 solely for the purpose of incorporating other filings with the Commission into such Registration Statement and other than any amendment to a Registration Statement on Form S-1 on Form S-3 for the purpose of converting such Registration Statement into a Registration Statement on Form S-3), within two (2) Business Days prior to the filing thereof with the Commission; and |
(j) | provided that, in the case of clause (i) above, the Company shall not be required (a) to delay the filing of the Registration Statement or any amendment or supplement thereto as a result of any ongoing diligence inquiry by or on behalf of a Holder or to incorporate any comments to the Registration Statement or any amendment or supplement thereto by or on behalf of a Holder if such inquiry or comments would require a delay in the filing of such Registration Statement, |
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amendment or supplement, as the case may be, or (b) to provide, and shall not provide, Gilead or its representatives with material, non-public information unless Gilead agrees in writing to receive such information and enters into a written confidentiality agreement with the Company in a form reasonably acceptable to the Company. |
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Information AND ACCESS RIGHTS
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MISCELLANEOUS
If to the Company: | Attention: Chief Operating Xxxxxxx 000 Xxxxxx Xxxxxx, Xxxxx 000 Xxxxx: [**] |
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With a copy to (which shall not constitute notice): | Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP Attention: Xxxxxxx X. Xxxxxxxx 00 Xxxxx Xxxxxx Xxxxxx, XX 00000 |
If to Gilead: | Gilead Sciences, Inc. 000 Xxxxxxxx Xxxxx Xxxxxx Xxxx, XX 00000 Xxxxxxxxx: Alliance Management Email: [**] |
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With a copy to (which shall not constitute notice): | Gilead Sciences, Inc. 000 Xxxxxxxx Xxxxx Xxxxxx Xxxx, XX 00000 Xxxxxxxxx: General Counsel Email: [**] Xxxxx Lovells US LLP 8350 Xxxxx Xx. 00xx Xxxxx Xxxxxx, XX 00000 Email: [**] |
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IN WITNESS WHEREOF, the parties hereto have caused this Investor Rights Agreement to be duly executed by their respective authorized signatories as of March 27, 2024.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: President and Chief Executive Officer
Gilead Sciences, Inc.
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Chief Financial Officer
Signature Page to Investor Rights Agreement