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EXHIBIT 10.3
CYTEL CORPORATION
INVESTOR RIGHTS AGREEMENT
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TABLE OF CONTENTS
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1. General......................................................................2
1.1 Definitions..................................................................2
2. Restrictions on Transfer; Registration.......................................3
2.1 Restrictions on Transfer.....................................................3
2.2 "Piggy-back" Registrations...................................................4
(c) Limitation on Subsequent Registration Rights..........................4
2.3 Form S-3 Registration........................................................5
2.4 Expenses of Registration.....................................................6
2.5 Obligations of the Company...................................................6
2.6 Termination of Registration Rights...........................................7
2.7 Furnishing Information.......................................................7
2.8 Indemnification..............................................................8
2.9 Assignment of Registration Rights...........................................10
2.10 "Market Stand-Off" Agreement................................................10
2.11 Rule 144 Reporting..........................................................10
3. Covenants of the Company....................................................11
3.1 Delivery of Financial Statements............................................11
3.3 Preferred Approval..........................................................11
3.5 Inspection Rights...........................................................12
3.6 Insider Transactions........................................................12
3.7 Directors' Fees and Expenses................................................12
3.8 Confidentiality of Records..................................................12
3.9 Bylaws......................................................................12
3.10 Standstill Agreement........................................................12
4. Right of First Refusal......................................................13
6. Indemnification.............................................................15
6.1 Indemnification of Xxxxxx...................................................15
6.2 Notice of Claims by Xxxxxx..................................................15
6.3 Indemnification of Cytel....................................................16
6.4 Notice of Claims by Cytel...................................................16
6.5 Third Party Claims..........................................................16
7. Miscellaneous...............................................................17
7.1 Governing Law...............................................................17
7.2 Survival....................................................................17
7.3 Successors and Assigns......................................................17
7.4 Severability................................................................17
7.5 Amendment and Waiver........................................................17
7.7 Delays or Omissions.........................................................18
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TABLE OF CONTENTS
(CONTINUED)
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7.8 Notices.....................................................................18
7.9 Titles and Subtitles........................................................19
7.10 Pronouns....................................................................19
7.11 Counterparts................................................................19
ii.
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CYTEL CORPORATION
INVESTOR RIGHTS AGREEMENT
This INVESTOR RIGHTS AGREEMENT (the "Investor Rights Agreement") is
entered into as of the 1st day of July, 1999, by and among CYTEL CORPORATION, a
Delaware corporation ("Cytel" or the "Company"), X.X. XXXXXX & CO., a Delaware
corporation ("Xxxxxx" or the "Investor") and, solely for purposes of Section 7.6
hereof, Epimmune Inc., a Delaware corporation ("Epimmune").
RECITALS
WHEREAS, in connection with certain transactions between Cytel and the
stockholders of Epimmune involving the exchange of Epimmune stock for Cytel
stock, Xxxxxx will exchange its shares of Series B and Series B-1 Preferred
Stock of Epimmune (the "Epimmune Preferred") for 859,666 newly issued shares of
Series S Preferred Stock of Cytel and 549,622 newly issued shares of Series S-1
Preferred Stock of Cytel (collectively, the "Shares"), pursuant to that certain
Preferred Stock Exchange Agreement of even date herewith, by and between Xxxxxx
and the Company (the "Preferred Stock Exchange Agreement" and, together with
this Investor Rights Agreement, the "Agreements");
WHEREAS, in connection with its holdings of Epimmune Preferred, Xxxxxx
possesses certain registration, information and other rights pursuant to an
existing Investor Rights Agreement dated as of February 27, 1998 by and among
Epimmune, Xxxxxx and the Company (the "Prior Agreement");
WHEREAS, Epimmune, Xxxxxx and the Company desire to terminate the Prior
Agreement, and Xxxxxx desires to accept the rights created pursuant hereto in
lieu of the rights granted to it under the Prior Agreement, with the Prior
Agreement being superseded and of no further force or effect as of the date
hereof;
WHEREAS, Cytel and Xxxxxx are parties to Stock Purchase Agreements dated
as of September 18, 1997 (the "1997 Agreement") and February 27, 1998 (the "1998
Agreement"), and Cytel and Xxxxxx desire that Sections 8.1, 8.2, 8.3, 8.4, 9 and
10 of the 1997 Agreement and Sections 7.1, 7.2, 7.3 7.4, 8, 9 and 10 of the 1998
Agreement be superseded by certain sections of this Agreement, so that such
sections are the sole agreement with respect to the obligations and rights
contained in such sections; and
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WHEREAS, as a condition of entering into the Preferred Stock Exchange
Agreement, Xxxxxx has requested that the Company extend to it registration
rights, information rights and other rights as set forth below.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and in the Preferred Stock Exchange Agreement, the parties mutually
agree as follows:
1. GENERAL.
1.1 DEFINITIONS. As used in this Investor Rights Agreement
the following terms shall have the following respective meanings:
"COMMON STOCK" means the Common Stock of the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"HOLDER" means any person or entity owning of record Registrable
Securities that have not been sold to the public or any assignee of record of
such Registrable Securities in accordance with Section 2.8 hereof.
"QUALIFIED OFFERING" means the Company's first firm commitment
underwritten public offering of its Common Stock registered under the Securities
Act after the date of this Agreement in which the Company receives gross
proceeds of at least $15 million.
"REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
"REGISTRABLE SECURITIES" means (i) Common Stock of the Company
issued or issuable upon conversion of the Shares; and (ii) any Common Stock of
the Company issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
above-described securities. Notwithstanding the foregoing, Registrable
Securities shall not include any securities sold by a person to the public
either pursuant to a registration statement or Rule 144 or sold in a private
transaction in which the transferor's rights under Section 2 of this Agreement
are not assigned.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in complying with Sections 2.2 and 2.3 hereof, including, without
limitation, all
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registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, reasonable fees and disbursements of counsel for the
Company, reasonable fees and disbursements not to exceed twenty-five thousand
dollars ($25,000) of a single special counsel for the Holders, blue sky fees and
expenses and the expense of any special audits incident to or required by any
such registration (but excluding the compensation of regular employees of the
Company which shall be paid in any event by the Company).
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SELLING EXPENSES" shall mean all underwriting discounts and
selling commissions applicable to the sale.
"SHARES" shall mean outstanding shares of the Company's Series S
Preferred Stock and Series S-1 Preferred Stock.
"SEC" or "COMMISSION" means the Securities and Exchange
Commission.
2. RESTRICTIONS ON TRANSFER; REGISTRATION.
2.1 RESTRICTIONS ON TRANSFER.
(a) Each Holder agrees not to make any disposition
of all or any portion of the Shares or Registrable Securities unless and until:
(i) There is then in effect a registration
statement under the Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; or
(ii) (A) The transferee has agreed in writing
to be bound by the terms of this Agreement, (B) such Holder shall have notified
the Company of the proposed disposition and shall have furnished the Company
with a detailed statement of the circumstances surrounding the proposed
disposition, and (C) if reasonably requested by the Company, such Holder shall
have furnished the Company with an opinion of counsel, reasonably satisfactory
to the Company, that such disposition will not require registration of such
shares under the Securities Act. It is agreed that the Company will not require
opinions of counsel for transactions made pursuant to Rule 144 except in unusual
circumstances.
(iii) Notwithstanding the provisions of
paragraphs (a)(i) and (a)(ii) above, no such registration statement or opinion
of counsel shall be necessary for a transfer by a Holder which is (A) a
partnership to its partners or former partners in accordance with partnership
interests, (B) a corporation to its stockholders in accordance with their
interest in the corporation, (C) a limited liability company to its members or
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former members in accordance with their interest in the limited liability
company, or (D) to the Holder's family member or trust for the benefit of an
individual Holder, provided the transferee will be subject to the terms of this
Agreement to the same extent as if he were an original Holder hereunder.
(b) Each certificate representing Shares or
Registrable Securities shall (unless otherwise permitted by the provisions of
the Agreement) be stamped or otherwise imprinted with a legend substantially
similar to the following (in addition to any legend required under applicable
state securities laws, as provided elsewhere in this Agreement or any other
applicable agreement or instrument):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THEY MAY NOT BE OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR
UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
(c) The Company shall be obligated to reissue
promptly unlegended certificates at the request of any holder thereof if the
Holder shall have obtained an opinion of counsel (which counsel may be counsel
to the Company) reasonably acceptable to the Company to the effect that the
securities proposed to be disposed of may lawfully be so disposed of (with no
need for compliance with Rule 144) without registration, qualification or
legend.
(d) Any legend endorsed on an instrument pursuant to
applicable state securities laws and the stop-transfer instructions with respect
to such securities shall be removed upon receipt by the Company of an order of
the appropriate blue sky authority authorizing such removal.
2.2 "PIGGY-BACK" REGISTRATIONS. In the event that shares of
the Company's equity securities held by any selling stockholder are included in
a registration statement under the Securities Act for purposes of the Company's
Qualified Offering, the Company shall notify all Holders of Registrable
Securities in writing at least thirty (30) days prior to the filing of such
registration statement and will afford each such Holder an opportunity to
include in such registration statement all or part of such Registrable
Securities held by such Holder on a pro rata basis with the securities of such
other selling stockholders to be included in the Registration Statement. Each
Holder desiring to include in any such registration statement all or any part of
the Registrable Securities held
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by it shall, within twenty (20) days after the above-described notice from the
Company, so notify the Company in writing.
(a) UNDERWRITING. The right of any such Holder to be
included in a registration pursuant to this Section 2.2 shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their Registrable Securities through
such underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by the
Company. Notwithstanding any other provision of this Agreement, if the
underwriter determines in good faith that marketing factors require a limitation
of the number of shares to be underwritten, the number of shares that may be
included in the underwriting shall be allocated, first, to the Company; and
second, to any stockholder of the Company (including the Holders) on a pro rata
basis based on the total number of Registrable Securities held by the Holders
and securities held by such other stockholders; provided that no such reduction
shall reduce the securities being offered by the Company for its own account to
be included in the registration and underwriting.
(b) RIGHT TO TERMINATE REGISTRATION. The Company
shall have the right to terminate or withdraw any registration initiated by it
under this Section 2.2 prior to the effectiveness of such registration whether
or not any Holder has elected to include securities in such registration. The
Registration Expenses of such withdrawn registration shall be borne by the
Company in accordance with Section 2.4 hereof.
(c) LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS.
After the date of this Agreement, the Company shall not enter into any agreement
with any holder or prospective holder of any securities of the Company that
would grant such holder piggy-back registration rights senior to those granted
to the Holders hereunder unless the Company also grants such registration rights
to the Holders; provided, however, that this limitation shall not apply to any
registration rights granted with respect to any registration of shares of the
Company's equity securities under the Securities Act subsequent to the Qualified
Offering.
2.3 FORM S-3 REGISTRATION. In case the Company shall receive from
the Investor (or any transferee permitted by Section 7.3) a written request or
requests that the Company effect a registration on Form S-3 (or any successor to
Form S-3) or any similar short-form registration statement and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by the Investor, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders
of Registrable Securities;
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(b) not include in any such proposed registration
any securities of any other holder without the prior written consent of the
Investor;
(c) permit the Investor to select the underwriter(s)
and/or manager(s) to administer the offering of such Registrable Securities; and
(d) as soon as practicable, effect such registration
and all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of the
Investor's Registrable Securities as are specified in such request; provided,
however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 2.3:
(i) if Form S-3 (or any successor or similar
form) is not available for such offering by the Investor other than due to a
breach of any representation, warranty, covenant or agreement of the Company
contained in this Agreement, in which event the Company shall effect such
proposed registration on Form S-1 (or any successor or similar form);
(ii) if the Investor, together with the
holders of any other securities of the Company permitted by the Investor to be
included in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public of less than five
hundred thousand dollars ($500,000);
(iii) if within thirty (30) days of receipt of
a written request from the Investor pursuant to Section 2.3(a), the Company
gives notice to the Holders of the Company's intention to make a public offering
within ninety (90) days;
(iv) if the Company shall furnish to the
Holders a certificate signed by the Chairman of the Board of Directors of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such Form S-3 registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than ninety (90) days after receipt of the
request of the Investor under this Section 2.3; provided, that such right to
delay a request shall be exercised by the Company not more than once in any
twelve (12) month period;
(v) if the Company has already effected one
(1) registration on Form S-3 pursuant to this Section 2.3; or
(vi) in any particular jurisdiction in which
the Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance.
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Subject to the foregoing, the Company shall file a Form S-3 registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Investor.
2.4 EXPENSES OF REGISTRATION. Except as specifically
provided herein, all Registration Expenses incurred in connection with any
registration under Section 2.2 or Section 2.3 herein shall be borne by the
Company. All Selling Expenses incurred in connection with any registrations
hereunder, shall be borne by the holders of the securities so registered pro
rata on the basis of the number of shares so registered. The Company shall not,
however, be required to pay for expenses of any registration proceeding begun
pursuant to Section 2.3, the request of which has been subsequently withdrawn by
the Investor unless the withdrawal is based upon material adverse information
concerning the Company of which the Investor was not aware at the time of such
request. If the Holders are required to pay the Registration Expenses, such
expenses shall be borne by the holders of securities (including Registrable
Securities) requesting such registration in proportion to the number of shares
for which registration was requested. If the Company is not required to pay the
Registration Expenses of a withdrawn offering pursuant to this Section 2.4, then
the Investor shall not forfeit its rights pursuant to Section 2.3 to an S-3
registration.
2.5 OBLIGATIONS OF THE COMPANY. Whenever required to effect
the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use all reasonable
efforts to cause such registration statement to become effective, and, upon the
request of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to ninety (90)
days or, if earlier, until the Holder or Holders have completed the distribution
related thereto.
(b) Prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such number of copies of
a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
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(d) Use all reasonable efforts to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
(e) In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter(s) of such
offering. Each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities
covered by 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 as a result of which the prospectus included 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 the light of the circumstances
then existing.
(g) Furnish, at the request of a majority of the
Holders participating in the registration, on the date that such Registrable
Securities are delivered to the underwriters for sale, if such securities are
being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated as of such date, of
the counsel representing the Company for the purposes of such registration, in
form and substance as is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and (ii) a letter dated
as of such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any.
(h) Notwithstanding the foregoing, if, at any time
following the effectiveness of the Registration Statement, the Company shall
have determined that the Company may be required to disclose any material
corporate development, the Company may suspend the effectiveness of the
Registration Statement until such time as an amendment to the Registration
Statement has been filed by the Company and declared effective by the SEC or
until such time as the Company has filed an appropriate report with the SEC
pursuant to the Exchange Act, which suspension shall be concluded as quickly as
reasonably possible by the Company consistent with advice of counsel (a
"Suspension Period"), by giving notice to the Holders participating in the
registration.
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Each Holder agrees that, upon receipt of any notice from the Company of a
Suspension Period, such Holder will not sell any Shares pursuant to the
Registration Statement until (i) such Holder is advised in writing by the
Company that the use of the applicable prospectus may be resumed, (ii) such
Holder has received copies of any additional or supplemental or amended
prospectus, if applicable, and (iii) such Holder has received copies of any
additional or supplemental filings which are incorporated or deemed to be
incorporated by reference in such prospectus.
2.6 TERMINATION OF REGISTRATION RIGHTS. All registration
rights granted to a Holder under this Section 2 shall terminate and be of no
further force and effect upon the earlier of (i) completion of the distribution
of the Company's Common Stock in the Company's Qualified Offering or the sale of
all of its Registrable Securities pursuant to a Form S-3 registration statement
filed under Section 2.3, or (ii) the date that all Registrable Securities held
by and issuable to such Holder (and its affiliates) may be sold under Rule 144
during any ninety (90) day period.
2.7 FURNISHING INFORMATION. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to
Section 2.2 or Section 2.3 that the selling Holders shall furnish to the Company
such information regarding themselves, the Registrable Securities held by them
and the intended method of disposition of such securities as shall be required
to effect the registration of their Registrable Securities.
2.8 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under Section 2.2 or Section 2.3:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners, officers, directors and
legal counsel of each Holder, any underwriter (as defined in the Securities Act)
for such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages, expenses (including attorney fees) or liabilities
(joint or several) to which they may become subject under the Securities Act,
the Exchange Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations (collectively a
"Violation") by the Company: (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) 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, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law in connection with the offering
covered by
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such registration statement; and the Company will reimburse each such Holder,
partner, officer or director, underwriter 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 2.8(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 liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, partner, officer, director, underwriter
or controlling person of such Holder.
(b) To the extent permitted by law, each Holder
will, if Registrable Securities held by such Holder are included in the
securities as to which such registration, qualifications or compliance is being
effected, indemnify and hold harmless the Company, each of its directors, its
officers, and legal counsel and each person, if any, who controls the Company
within the meaning of the Securities Act, any underwriter and any other Holder
selling securities under such registration statement or any of such other
Holder's partners, directors or officers or any person who controls such Holder,
against any losses, claims, damages, expenses (including attorney fees), or
liabilities (joint or several) to which the Company or any such director,
officer, counsel, controlling person, underwriter or other such Holder, or
partner, director, officer or controlling person of such other Holder may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder under an
instrument duly executed by such Holder and stated to be specifically for use in
connection with such registration; and each such Holder will reimburse any legal
or other expenses reasonably incurred by the Company or any such director,
officer, counsel, controlling person, underwriter or other Holder, or partner,
officer, director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action if
it is judicially determined that there was such a Violation; provided, however,
that the indemnity agreement contained in this Section 2.8(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 the Holder, which consent
shall not be unreasonably withheld; provided further, that in no event shall any
indemnity under this Section 2.8 exceed the proceeds from the offering received
by such Holder.
(c) Promptly after receipt by an indemnified party
under this Section 2.8 of notice of the commencement of any action (including
any governmental
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action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 2.8, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 2.8, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 2.8.
(d) If the indemnification provided for in this
Section 2.8 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any losses, claims, damages or liabilities
referred to herein, the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall to the extent permitted by applicable law
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the Violation(s) that resulted
in such loss, claim, damage or liability, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by a court of law by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission; provided, that in no event shall any contribution by
a Holder hereunder exceed the proceeds from the offering received by such
Holder.
(e) The obligations of the Company and Holders under
this Section 2.8 shall survive completion of any offering of Registrable
Securities in a registration statement. No indemnifying party, in the defense of
any such claim or litigation, shall, except with the consent of each indemnified
party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation.
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2.9 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Registrable Securities pursuant to this Section 2 (and
related obligations) may be assigned by a Holder to a transferee or assignee of
Registrable Securities which (i) is a subsidiary, affiliate, parent, general
partner, limited partner or retired partner of a Holder, or (ii) is a Holder's
family member, a trust for the benefit of an individual Holder or such Holder's
family members or a partnership or other entity all of whose beneficial
ownership is held by the Holder or such Holder's family members; provided,
however, (A) the transferor shall, within ten (10) days after such transfer,
furnish to the Company written notice of the name and address of such transferee
or assignee and the securities with respect to which such registration rights
are being assigned and (B) such transferee shall agree to be subject to all
restrictions set forth in this Agreement.
2.10 "MARKET STAND-OFF" AGREEMENT. If requested by the
Company or the representative of the underwriters of Common Stock (or other
securities) of the Company, each Holder shall not sell or otherwise transfer or
dispose of any Common Stock (or other securities) of the Company held by such
Holder (other than those included in the registration) for a period specified by
the representative of the underwriters, in any case not to exceed the following
time periods:
(a) one hundred eighty (180) days following the
Qualified Offering of the Company, provided that the Company, all officers and
directors of the Company and any other selling stockholders enter into similar
agreements (subject to customary exceptions); and
(b) one hundred twenty (120) days following any
registered offering of the Common Stock of the Company other than the Qualified
Offering; provided, however, that any such request shall be made no more
frequently than once every eight (8) months.
The obligations described in this Section 2.10 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar
forms that may be promulgated in the future. The Company may impose
stop-transfer instructions with respect to the shares of Common Stock (or other
securities) subject to the foregoing restriction until the end of said periods.
2.11 RULE 144 REPORTING. With a view to making available to
the Holders the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
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(a) Make and keep public information available, as
those terms are understood and defined in SEC Rule 144 or any similar or
analogous rule promulgated under the Securities Act;
(b) File with the SEC, in a timely manner, all
reports and other documents required of the Company under the Exchange Act; and
(c) So long as a Holder owns any Registrable
Securities, furnish to such Holder forthwith upon request: a written statement
by the Company as to its compliance with the reporting requirements of said Rule
144 of the Securities Act, and of the Exchange Act (at any time after it has
become subject to such reporting requirements); a copy of the most recent annual
or quarterly report of the Company; and such other reports and documents as a
Holder may reasonably request in availing itself of any rule or regulation of
the SEC allowing it to sell any such securities without registration.
3. COVENANTS OF THE COMPANY.
3.1 DELIVERY OF FINANCIAL STATEMENTS. So long as the
Investor holds any of the Shares, the Company shall deliver to the Investor
copies of its Forms 10-K and 10-Q as filed with the SEC, and other public
announcements and releases made by the Company.
3.2 COMPLIANCE CERTIFICATE. For so long as Xxxxxx holds at
least 5% of the Company's outstanding capital stock (determined on a
fully-diluted, as-converted basis), as soon as practicable after the end of each
fiscal year of the Company, and in any event within one hundred twenty (120)
days thereafter, the Company will furnish to Xxxxxx a certificate executed by an
officer of the Company certifying that the terms of the Series S Preferred Stock
and Series S-1 Preferred Stock and the terms of all other material agreements
between Xxxxxx and the Company, other than that certain License and
Collaboration Agreement dated as of February 27, 1998 between Xxxxxx and
Epimmune (the "Collaboration Agreement") and any other agreements entered into
between Xxxxxx and Epimmune or the Company in connection with the Collaboration
Agreement, have been complied with.
3.3 PREFERRED APPROVAL. For so long as any of the Shares
remain outstanding, the Company shall not without the prior written consent of
the holders of a majority of the Series S Preferred Stock and Series S-1
Preferred Stock, voting together as a single class, (i) amend the Company's
Certificate of Incorporation in a manner that specifically and adversely affects
the rights, preferences and privileges of the Series S Preferred Stock or Series
S-1 Preferred Stock with respect to liquidation preference, voting or dividends,
or (ii) enter into any agreement which by its terms restricts the
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Company's performance of the terms of the Series S Preferred Stock, the Series
S-1 Preferred Stock, the Preferred Stock Exchange Agreement or this Investor
Rights Agreement; provided that no such consent shall be required with respect
to any Acquisition or Asset Transfer (as defined in the Company's Certificate of
Designations of the Series S and Series S-1 Preferred Stock) or the creation or
issuance by the Company of any series of Preferred Stock with rights,
preferences or privileges senior to or pari passu with the Series S Preferred
Stock or Series S-1 Preferred Stock. For purposes of clarification, Section 3(b)
shall apply to the Series S Preferred Stock with regard to such Acquisition or
Asset Transfer. The rights set forth in this Section 3.3 shall run with the
Series S Preferred Stock or Series S-1 Preferred Stock to each transferee or
assignee of Shares.
3.4 BOARD REPRESENTATION. For so long as Xxxxxx holds at
least 5% of the Company's outstanding capital stock (determined on a
fully-diluted, as-converted basis), the Company shall include one representative
designated by Xxxxxx on the management slate of nominees to the Company's Board
of Directors.
3.5 INSPECTION RIGHTS. For so long as the Company is
obligated to include a Xxxxxx representative as a nominee to the Company's Board
of Directors (the "Designated Director"), Xxxxxx shall have the right to visit
and inspect any of the properties of the Company or any of its subsidiaries, and
to discuss the affairs, finances and accounts of the Company or any of its
subsidiaries with its directors, officers, employees and independent public
accountants, and to review such information as is reasonably requested all at
such reasonable times and as often as may be reasonably requested.
3.6 INSIDER TRANSACTIONS. For so long as Xxxxxx holds at
least 5% of the Company's outstanding capital stock (determined on a
fully-diluted, as-converted basis), the Company shall not without the approval
of a majority of the Board of Directors, with all non-interested Directors
voting and the approval of the Designated Director, authorize or enter into any
transactions with any director or management employee, or such director's or
employee's immediate family, other than indemnification and employment related
transactions on customary terms.
3.7 DIRECTORS' FEES AND EXPENSES. For so long as the
Designated Director is a member of the Company's Board of Directors the Company
covenants to (i) reimburse the Designated Director for all reasonable costs
associated with attending meetings of the Board of Directors, and (ii) pay the
Designated Director any compensation paid to other members of the Company's
Board of Directors in connection with the performance of their duties as a
Director.
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3.8 CONFIDENTIALITY OF RECORDS. Xxxxxx agrees to keep
confidential, and to use its best efforts to insure that its authorized
representatives keep confidential, any information furnished or made available
to it hereunder in accordance with Section 3.9 of the Preferred Stock Exchange
Agreement.
3.9 BYLAWS. The Company shall not, without prior written
consent of Xxxxxx, take any action to amend Section 21(b) of Article IV of the
Company's Bylaws. This Section 3.9 shall expire and terminate on the earlier of
(i) the closing of a financing, whether public or private, in which the Company
receives gross proceeds of at least $15 million from any person or entity other
than Xxxxxx or any of its affiliates, or (ii) the date on which Xxxxxx shall own
less than 5% of the Company's outstanding capital stock (determined on a
fully-diluted, as-converted basis).
3.10 STANDSTILL AGREEMENT. The Investor hereby covenants and
agrees that, prior to December 31, 2000, it will not, nor will it permit any of
its affiliates (including parents, subsidiaries or other related entities) to,
purchase or otherwise acquire or offer or agree to acquire, directly or
indirectly, beneficial ownership of any additional equity securities of the
Company (or rights or options to purchase such securities) after the Closing in
an amount that would cause the Investor to own, on a fully diluted basis,
capital stock representing more than 19% of the outstanding shares of Common
Stock of the Company, without the prior written consent of the Company;
provided, however, that this clause shall not apply to (i) the issuance of the
Shares pursuant to the Preferred Stock Exchange Agreement, or (ii) any
securities issued with respect to the Shares pursuant to a stock split, stock
dividend, recapitalization or reclassification approved by a disinterested
majority of the Company's Board of Directors; or (iii) conversion of the Shares
to the Company's Common Stock.
4. RIGHT OF FIRST REFUSAL.
4.1 AMENDMENT AND RESTATEMENT OF SECTION 8 OF THE 1998
AGREEMENT. The parties agree that this Section 4 shall supersede, amend and
restate Section 8 of the 1998 Agreement so that this Section 4 is the sole
agreement with respect to the obligations and rights contained in this Section
4.
4.2 SUBSEQUENT OFFERINGS. The Investor shall have a right of
first refusal to purchase its pro rata share of all Equity Securities, as
defined below, that the Company may, from time to time, propose to sell and
issue after the date of this Agreement, other than the Equity Securities
excluded by Section 4.7 hereof. The Investor's pro rata share is equal to the
ratio of (a) the number of shares of Common Stock purchased pursuant to Sections
2.1 and 2.2 of the 1997 Agreement, plus the number of Shares purchased pursuant
to the Preferred Stock Exchange Agreement, plus the number of shares of Common
Stock (and the number of shares of Common Stock issued
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or issuable upon the conversion of any Equity Securities) previously purchased
pursuant to this Section 4, held by the Investor or any transferee pursuant to
Section 7.3, to (b) the total number of shares of the Company's outstanding
Common Stock (including all shares of Common Stock issued or issuable upon the
conversion of any Equity Securities or upon exercise of any outstanding warrants
or options) immediately prior to the issuance of the Equity Securities. The term
"Equity Securities" shall mean (i) any Common Stock, Preferred Stock or other
security of the Company, (ii) any security convertible, with or without
consideration, into any Common Stock, Preferred Stock or other security
(including any option, warrant or other right to purchase such a convertible
security), (iii) any security carrying any option, warrant or right to subscribe
to or purchase any Common Stock, Preferred Stock or other security, or (iv) any
such option, warrant or right.
4.3 EXERCISE OF RIGHT OF FIRST REFUSAL. If the Company
proposes to issue any Equity Securities, it shall give the Investor written
notice of its intention, describing the Equity Securities, the price and the
terms and conditions upon which the Company proposes to issue the same. The
Investor shall have forty-five (45) days from the giving of such notice to agree
to purchase its pro rata share of the Equity Securities for the price and upon
the terms and conditions specified in the notice by giving written notice to the
Company and stating therein the quantity of Equity Securities to be purchased;
provided, however, if the Company reasonably requests in the Company's original
notice that the Investor respond within thirty (30) days (due to timing
considerations relating to the closing of the issuance of such Equity
Securities), then the Investor shall be required to respond to such notice
within thirty (30) days. Notwithstanding the foregoing, the Company shall not be
required to offer or sell such Equity Securities to the Investor if doing so
would cause the Company to be in violation of applicable federal securities laws
by virtue of such offer or sale; provided, however, the Company agrees to use
its reasonable best efforts to take whatever action may be necessary or
appropriate to comply with applicable federal securities laws in connection with
such offer or sale.
4.4 ISSUANCE OF EQUITY SECURITIES TO OTHER PERSONS. If the
Investor fails to exercise in full the right of first refusal, the Company shall
have ninety (90) days thereafter to sell the Equity Securities in respect of
which the Investor's right was not exercised, at a price and upon general terms
and conditions materially no more favorable to the purchasers thereof than
specified in the Company's notice to the Investor pursuant to Section 4.3
hereof. If the Company has not sold such Equity Securities within ninety (90)
days of the notice provided pursuant to Section 4.3, the Company shall not
thereafter issue or sell any Equity Securities, without first offering such
securities to the Investor in the manner provided above.
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4.5 TERMINATION OF RIGHT OF FIRST REFUSAL. The right of
first refusal established by this Section 4 shall terminate on the first to
occur of (a) September 17, 2002, or (b) the first date on which the Investor
sells, assigns or otherwise transfers any of the Shares, excluding, however,
transfers pursuant to Section 7.3.
4.6 NO TRANSFER OF RIGHT OF FIRST REFUSAL. The right of
first refusal established by this Section 4 may not be assigned or transferred,
except as otherwise provided in Section 7.3.
4.7 EXCLUDED SECURITIES. The right of first refusal
established by Sections 4.2, 4.3 and 4.4 shall have no application to any of the
following Equity Securities:
(a) shares of Common Stock (and/or options, warrants
or other Common Stock purchase rights issued pursuant to such options, warrants
or other rights) issued or to be issued to employees, officers or directors of,
or consultants or advisors to the Company or any subsidiary, pursuant to stock
purchase or stock option plans or other compensatory arrangements that are
approved by the Board of Directors;
(b) stock issued pursuant to any rights, agreements,
options or warrants outstanding as of the date of this Agreement, and stock
issued pursuant to any rights, agreements, options or warrants granted after the
date of this Agreement provided that the right of first refusal established by
this Section 4 did not apply to the initial sale or grant by the Company of such
rights, agreements, options or warrants;
(c) any Equity Securities issued for consideration
other than cash pursuant to a merger, consolidation, acquisition or similar
business combination whereby the stockholders of the Company will own more than
fifty percent (50%) of the voting power of the combined entity;
(d) shares of Common Stock issued in connection with
any stock split, stock dividend or recapitalization by the Company;
(e) shares of Common Stock issued upon conversion of
any Equity Securities;
(f) any Equity Securities issued pursuant to any
equipment leasing arrangement; and
(g) shares of the Company's Common Stock or
Preferred Stock issued in connection with strategic transactions involving the
Company and any third party, including (i) joint ventures, manufacturing,
marketing, corporate partnering or distribution arrangements, or (ii) technology
transfer, research or development
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arrangements; provided that such strategic transactions and the issuance of
shares therein, has been approved by the Company's Board of Directors.
5. CONVERSION COVENANTS.
5.1 OPTIONAL CONVERSION. The parties agree that, at the
option of Xxxxxx, all of the shares of Series S-1 Preferred Stock (or the shares
of Common Stock issued upon automatic conversion of the Series S-1 Preferred
Stock ) may be, in whole or in part, applied to the milestone payments due under
the Collaboration Agreement for (a) the start of any Phase III clinical trial
for a Product (as defined in the Collaboration Agreement), other than the first
Phase III clinical trial for such Product, (b) upon submission of a new drug
application or (c) Product launch (the "Milestone Option"); provided that in no
event shall less than 50% of any such milestone payment be made in cash;
provided further that the Series S-1 Preferred Stock shall have a value of
$7.0958 per share for purposes of this Section 5 and that shares of Common Stock
issued upon conversion of the Series S-1 Preferred Stock shall have a value
equal to the Series S-1 Conversion Price applicable at the time of conversion.
5.2 MECHANICS OF CONVERSION. In the event that Xxxxxx elects
the Milestone Option, it shall surrender the certificate or certificates
representing the shares of Series S-1 Preferred Stock, duly endorsed, at the
office of the Company or of any transfer agent for the Company's Preferred
Stock, and shall give written notice to the Company at such office of the
milestone payments to which it elects to apply the same pursuant to the
Milestone Option. Such payment shall be deemed to have been made immediately
prior to the close of business on the date of such surrender of the shares of
Series S-1 Preferred Stock to be applied toward milestone payments pursuant to
the Milestone Option. All shares of Series S-1 Preferred Stock surrendered as
payment shall be deemed cancelled as of such date.
6. INDEMNIFICATION.
6.1 INDEMNIFICATION OF XXXXXX. Cytel agrees to indemnify and
hold harmless Xxxxxx and its permitted successors and assigns from and against
any and all (i) liabilities, losses, costs or damages ("Loss") and (ii)
reasonable attorneys' and accountants' fees and expenses, court costs and all
other reasonable out-of-pocket expenses ("Expense") incurred by Xxxxxx or its
permitted successors and assigns arising from (A) any breach or failure to
perform by Cytel of any of its covenants or agreements contained in this
Agreement (except to the extent indemnification therefor is already provided
pursuant to Section 2.8 hereof); or (B) any breach of any warranty or the
inaccuracy of any representation of Cytel contained in the Preferred Stock
Exchange Agreement.
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6.2 NOTICE OF CLAIMS BY XXXXXX. If any person indemnified
under Section 6.1 hereof believes it has suffered or incurred any Loss or
incurred any Expense as to which it is entitled to indemnification under Section
6.1 hereof, such person shall so notify Cytel promptly in writing describing
such Loss or Expense, the amount thereof, if known, and the method of
computation of such Loss or Expense, all with reasonable particularity and
containing a reference to the provisions of this Agreement, or any agreement or
instrument contemplated hereby, or any certificate delivered pursuant hereto or
thereto in respect of which such Loss or Expense shall have occurred; and if any
action at law or suit in equity is instituted by or against a third party with
respect to which any such indemnified person intends to claim any Loss or
Expense under Section 6.1, such indemnified person shall promptly notify the
indemnifying party of such action or suit; provided that failure to give such
notice shall not abrogate or diminish Cytel's obligations under Section 6.1 if
Cytel has or receives timely actual knowledge of the existence of any such claim
by any other means or except to the extent such failure prejudices Cytel.
6.3 INDEMNIFICATION OF CYTEL. Xxxxxx agrees to indemnify and
hold harmless Cytel and its permitted successors and assigns from and against
any and all Loss and Expense incurred by Cytel and its permitted successors and
assigns arising from (i) any breach or failure to perform by Xxxxxx of any of
its covenants or agreements contained in this Agreement (except to the extent
indemnification therefor is already provided pursuant to Section 2.8 hereof); or
(ii) any breach of any warranty or the inaccuracy of any representation of
Xxxxxx contained in the Preferred Stock Exchange Agreement.
6.4 NOTICE OF CLAIMS BY CYTEL. If any person indemnified
under Section 6.3 believes that it has suffered or incurred any Loss or incurred
any Expense as to which it is entitled to indemnification under Section 6.3,
such person shall so notify Xxxxxx or person responsible for such
indemnification promptly in writing describing such Loss or Expense, the amount
thereof, if known, and the method of computation of such Loss or Expense, all
with reasonable particularity and containing a reference to the provisions of
this Agreement, or any agreement or instrument contemplated hereby, or any
certificate delivered pursuant hereto or thereto in respect of which such Loss
or Expense shall have occurred; and if any action at law or suit in equity is
instituted by or against a third party with respect to which any such
indemnified party intends to claim any Loss or Expense under Section 6.3, such
indemnified party shall promptly notify the indemnifying party of such action or
suit; provided that failure to give such notice shall not abrogate or diminish
Xxxxxx'x obligations under Section 6.3 if Xxxxxx has or receives timely actual
knowledge of the existence of any such claim by any other means or except to the
extent such failure prejudices Xxxxxx.
6.5 THIRD PARTY CLAIMS. The indemnifying party shall have
the right to participate in, and, to the extent the it so desires, jointly with
any other indemnitor
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similarly noticed, to assume the defense of any third party claim, demand,
action or other proceeding with counsel selected by the indemnifying party;
provided, however, that the indemnified party shall have the right to retain its
own counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of the indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between the indemnified party and any other party represented by such
counsel in such proceedings. So long as the indemnifying party has received
notice of any third party claim, demand, action or proceeding for which any
indemnified party intends to claim any Loss or Expense, and within a reasonable
period thereafter the indemnifying party has assumed the defense thereof, the
indemnity obligations under this Section 6 shall not apply to amounts paid in
settlement of such third party claim, demand, action or proceeding if such
settlement is effected without the consent of the indemnifying party, which
consent shall not be unreasonably withheld or delayed. The indemnifying party
may not settle or otherwise consent to an adverse judgment in any such third
party claim, demand, action or proceeding action that diminishes the rights or
interests of the indemnified party without the prior express written consent of
the indemnified party. The indemnified party, its employees and agents, shall
cooperate reasonably with the indemnifying party and its legal representatives
in the investigation of any third party claim, demand, action or proceeding
covered by this Section 6.
7. MISCELLANEOUS.
7.1 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California, as applied to contracts
executed and performed entirely within the State of California, without regard
to conflicts of laws rules.
7.2 SURVIVAL. The representations, warranties, covenants,
and agreements made herein shall survive any investigation made by any Holder
and the closing of the transactions contemplated hereby. All statements as to
factual matters contained in any certificate or other instrument delivered by or
on behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
7.3 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective permitted successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. This Agreement may not be
assigned or otherwise transferred, nor, except as expressly
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provided hereunder, may any right or obligations hereunder be assigned or
transferred, by either party without the written consent of the other party;
provided, however, that either the Company or the Investor may, without such
consent, assign this Agreement and its rights and obligations hereunder (a) in
connection with the transfer or sale of all or substantially all of its
business, if such assets include substantially all of the assets relating to its
performance of its respective obligations hereunder or (b) in the event of its
merger or consolidation with another company at any time during the term of this
Agreement. Any purported assignment in violation of the preceding sentence shall
be void. Any permitted assignee shall also assume all obligations of its
assignor under this Agreement.
7.4 SEVERABILITY. If one or more provisions of this
Agreement is held to be unenforceable under applicable law, such provision shall
be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
7.5 AMENDMENT AND WAIVER.
(a) Except as otherwise expressly provided, any
provision of this Agreement (other than Sections 2.3, 3, 4, 5, 6 and 7.5(b)) may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only upon the
written consent of the Company and the Holders of at least a majority of the
Registrable Securities. Any amendment or waiver of any provisions of this
Agreement (other than Sections 3, 4, 5, 6 and 7.5(b)) effected in accordance
with this Agreement shall be binding upon each Holder and the Company. By
acceptance of any benefits under this Agreement, Holders of Registrable
Securities hereby agree to be bound by the provisions hereunder.
(b) Except as otherwise expressly provided, any
provision of Sections 2.3, 3, 4, 5, 6 and 7.5(b) of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only upon the
written consent of the Company and Xxxxxx.
7.6 TERMINATION OF PROVISIONS OF PRIOR AGREEMENTS. Cytel,
Xxxxxx and Epimmune acknowledge and agree that the Prior Agreement is hereby
terminated and superseded in its entirety by this Agreement. Cytel and Xxxxxx
acknowledge and agree that Sections 8.1, 8.2, 8.3, 8.4, 9 and 10 of the 1997
Agreement and Sections 7.1, 7.2, 7.3, 7.4, 8, 9 and 10 of the 1998 Agreement are
hereby terminated and superseded in their entirety by the applicable sections of
this Agreement. Cytel, Xxxxxx and Epimmune acknowledge and agree that the Voting
Agreement, dated February, 1998, entered by and among Cytel, Xxxxxx and Epimmune
is hereby terminated.
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7.7 DELAYS OR OMISSIONS. It is agreed that no delay or
omission to exercise any right, power, or remedy accruing to any Holder, upon
any breach, default or noncompliance of the Company under this Agreement shall
impair any such right, power, or remedy, nor shall it be construed to be a
waiver of any such breach, default or noncompliance, or any acquiescence
therein, or of any similar breach, default or noncompliance thereafter
occurring. It is further agreed that any waiver, permit, consent, or approval of
any kind or character on any Holder's part of any breach, default or
noncompliance under the Agreement or any waiver on such Holder's part of any
provisions or conditions of this Agreement must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement, by law, or otherwise afforded to Holders,
shall be cumulative and not alternative.
7.8 NOTICES. Any notice or report required or permitted to
be given or made under this Agreement by one of the parties hereto to the other
shall be in writing, delivered personally or by facsimile (and promptly
confirmed by personal delivery or courier) or courier, postage prepaid,
addressed to such other party at its address indicated below, or to such other
address as the addressee shall have last furnished in writing to the addressor
and shall be effective upon receipt by the addressee.
THE COMPANY: Cytel Corporation
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: President
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
XXXXXX: X.X. Xxxxxx & Co.
0000 Xxx Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Vice President, Global Business Development
Tel: (000) 000-0000
Fax: (000) 000-0000
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with a copy to: X.X. Xxxxxx & Co.
0000 Xxx Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Assistant General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
7.9 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.10 PRONOUNS. All pronouns contained herein and any
variations thereof shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the parties hereto may require.
7.11 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Investor
Rights Agreement as of the date set forth in the first paragraph hereof.
COMPANY: INVESTORS:
CYTEL CORPORATION X.X. XXXXXX & CO.
By: /S/ XXXXXX X. XXX By: /S/ X. XX XXXXXXXX
------------------------------- -------------------------------------
Title: Acting President & C.O.O. Title: CEO
---------------------------- ----------------------------------
ACKNOWLEDGED AND AGREED
SOLELY FOR PURPOSES OF
SECTION 7.6 HEREOF:
EPIMMUNE INC.
By: /S/ XXXXXXX XXXXXXXX
-------------------------------
Title: President
-------------------------------
