EXHIBIT 10.9
COOPERATION AGREEMENT
This COOPERATION AGREEMENT (the "Agreement") is made as of September 15,
1998, by and between EXELIXIS PHARMACEUTICALS, INC., a Delaware corporation
("Exelixis"), and ARTEMIS PHARMACEUTICALS GMBH, a corporation organized under
the laws of the Federal Republic of Germany ("Artemis").
RECITALS
WHEREAS, Exelixis is engaged in the development of model genetic screening
systems using the fruit fly Drosophila melanogaster and the nematode worm C.
elegans and Artemis is engaged in the development of model genetic screening
systems using zebrafish and mouse genetic technology;
WHEREAS, Exelixis and Artemis desire to work together using each other's
technology and expertise to identify and validate drug screening targets;
WHEREAS, the Chief Executive Officer of Exelixis (the "Exelixis CEO") and
the Geschaftsfuhrer of Artemis (the "Artemis Geschaftsfuhrer") will meet from to
time as necessary to discuss opportunities available to either of the companies
to commercialize the technology being developed by the companies and products
developed therefrom;
WHEREAS, Exelixis has established a committee (the "Exelixis Committee")
pursuant to resolutions of the Board of Directors of Exelixis adopted on July 8,
1998, a copy of which are attached hereto as Annex A (the "Exelixis Board
Resolutions"), comprised of representatives of Exelixis and representatives of
the shareholders of Artemis, with the powers, authority, duties and
responsibilities set forth in such resolutions;
WHEREAS, Exelixis, Artemis and the other parties signatory thereto have
entered into a Shareholders' Agreement dated as of September 15, 1998, a copy of
which is attached hereto as Annex B (the "Artemis Shareholders Agreement"),
pursuant to which the shareholders of Artemis have established a committee (the
"Artemis Committee") comprised of representatives of Exelixis and
representatives of the other shareholders of Artemis with the powers, authority,
duties and responsibilities set forth in the Artemis Shareholders Agreement; and
WHEREAS, the Exelixis Committee shall have two primary functions: (i) to
approve all arrangements to be entered into by Exelixis with any third party
regarding the development, marketing, sales, promotion, manufacturing or other
commercialization of Exelixis' technology or any products developed therefrom
and (ii) to make recommendations to the Board regarding certain significant
transactions involving Exelixis; the functions of the Artemis Committee shall be
substantially similar to the functions of the Exelixis Committee with respect to
commercialization arrangements and certain significant transactions involving
Artemis.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Exelixis and Artemis hereby agree as follows:
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SECTION 1. COMMERCIALIZATION OPPORTUNITIES.
1.1 Exelixis Commercialization Opportunities. Exelixis hereby agrees that
in the event that an opportunity arises regarding an agreement with a third
party for the development of Exelixis' technology and the marketing, sales,
co-promotion, manufacturing or other commercialization arrangements with respect
to Exelixis' technology or any products developed therefrom (an "Exelixis
Commercialization Arrangement"), the Exelixis CEO will notify the Artemis
Geschaftsfuhrer and the two will meet to discuss the proposal and to negotiate
the terms of any Exelixis Commercialization Arrangement, including, but not
limited to, any necessary allocation of responsibilities between Exelixis and
Artemis, the amount and structure of royalty payments, milestone payments and
any other fees and the allocation of such payments between Exelixis and Artemis,
the payment of commercialization expenses and the terms of any license agreement
between the two parties.
1.2 Artemis; Commercialization Opportunities. Artemis hereby agrees that in
the event that an opportunity arises regarding an agreement with a third party
for the development of Artemis' technology and the marketing, sales,
co-promotion, manufacturing or other commercialization arrangements with respect
to Artemis' technology or any products developed therefrom (an "Artemis
Commercialization Arrangement"), the Artemis Geschaftsfuhrer will notify the
Exelixis CEO and the two will meet to discuss the proposal and to negotiate the
terms of any Artemis Commercialization Arrangement, including, but not limited
to, any necessary allocation of responsibilities between Exelixis and Artemis,
the amount and structure of royalty payments, milestone payments and any other
fees and the allocation of such payments between Exelixis and Artemis, the
payment of commercialization expenses and the terms of any license agreement
between the two parties.
SECTION 2. COMMITTEE APPROVAL.
2.1 Exelixis Committee Approval. Exelixis hereby agrees that prior to
executing a definitive agreement with respect to an Exelixis Commercialization
Arrangement, the Exelixis CEO will present such agreement to the Exelixis
Committee for its approval, and such agreement will be subject to the
affirmative vote or a majority of the Exelixis Committee members.
2.2 Artemis Committee Approval. Artemis hereby agrees that prior to
executing a definitive agreement with respect to an Artemis Commercialization
Arrangement, the Artemis Geschaftsfuhrer will present such agreement to the
Artemis Committee for its approval, and such agreement will be subject to the
affirmative vote of a majority of the Artemis Committee members.
SECTION 3. TERM.
This Agreement shall be effective for a period of five years, commencing as
of the date of this Agreement, or for such other period as shall be agreed to by
Exelixis and Artemis. This Agreement shall terminate in the event that the
members of the Exelixis Committee and the Artemis Committee are not identical or
the functions of the Exelixis Committee and the Artemis are not substantially
similar.
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SECTION 4. MISCELLANEOUS.
4.1 Relationship of the Parties. Nothing contained in this Agreement is
intended or is to be construed to constitute Exelixis and Artemis as partners or
joint venturers or one party as an employee of any other party. Except as
expressly provided herein, neither Exelixis nor Artemis shall have any express
or implied right or authority to assume or create any obligations on behalf of
or in the name of the other or to bind each other to any contract, agreement or
undertaking with any third party.
4.2 Further Assurances. Each of Exelixis and Artemis hereby agree to duly
execute and deliver, or cause to be duly executed and delivered, such further
instruments and do and cause to be done such further acts and things, including,
without limitation, the filing of such' additional assignments, agreements,
documents and instruments, that may be necessary or as the other party hereto
may at any time and from time to time reasonably request in connection with this
Agreement or to carry out more effectively the provisions and purposes of this
Agreement.
4.3 Successors and Assigns. The terms and provisions of this Agreement
shall inure to the benefit of, and be binding upon, Exelixis, Artemis, and their
respective successors and assigns; provided, however, that Exelixis and Artemis
may not assign or otherwise transfer any of their respective rights and
interests, nor delegate any of their respective obligations, hereunder,
including, without limitation, pursuant to a merger or consolidation, without
the prior written consent of the other party hereto. Subject to the foregoing,
any reference to Exelixis or Artemis hereunder shall be deemed to include the
successors thereto and .assigns thereof.
4.4 Amendments. No amendment, modification, waiver, termination or
discharge of any provision of this Agreement, nor consent by either party to any
departure therefrom, shall in any event be effective unless the same shall be in
writing signed by Exelixis and Artemis, and each amendment, modification,
waiver, termination or discharge shall be effective only in the specific
instance and for the specific purpose for which given.
4.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed entirely within the State of New York. Except as otherwise
provided herein, any claim or controversy arising out of or related to this
contract or any breach hereof shall be submitted to a court of competent
jurisdiction in the State of New York, and each of Exelixis and Artemis hereby
consent to the jurisdiction and venue of such court.
4.6 Severability. If any provision hereof should be held invalid, illegal
or unenforceable in any respect in any jurisdiction, then, to the fullest extent
permitted by law, (a) all other provisions hereof shall remain in full force and
effect in such jurisdiction and shall be liberally construed in order to carry
out the intentions of the parties hereto as nearly as may be possible and(b)
such invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of such provision in any other jurisdiction. To the
extent permitted by applicable law, Exelixis and Artemis hereby waive any
provision of law that would render any provision hereof prohibited or
unenforceable in any respect.
4.7 Headings. The headings of the Sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
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4.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, and all of which counterparts, taken together,
shall constitute one and the same instrument.
4.9 Entire Agreement. This Agreement, together with any agreements
referenced herein, constitute, on and as of the date hereof, the entire
agreement of Exelixis and Artemis with respect to the subject matter hereof, and
all prior or contemporaneous understandings or agreements, whether written or
oral between Exelixis and Artemis with respect to such subject matter are hereby
superseded in their entirety.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
EXELIXIS PHARMACEUTICALS, INC.
/s/ Xxxxxx Xxxxxxx
___________________________________
By:
Name: Xxxxxx Xxxxxxx
Title: President and CEO
XXXXXXX PHARMACEUTICALS GMBH
/s/ Xxxxx Xxxxxxx
___________________________________
By:
Name: Xxxxx Xxxxxxx
Title: CEO
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ANNEX A
RESOLUTIONS OF THE BOARD OF DIRECTORS OF EXELIXIS
A. Formation and Conduct of the Exelixis Committee
WHEREAS, in connection with the Cooperation Agreement, the Board desires to
establish a committee (the "Exelixis Committee") comprised of representatives of
Exelixis and Artemis; the Exelixis Committee shall have two primary functions:
(i) to approve all arrangements to be entered into by the Corporation with any
third party regarding the development, marketing, sales, promotion,
manufacturing or other commercialization of the Corporation's technology or any
products developed therefrom and certain other material agreements and (ii) to
make recommendations to the Board regarding certain significant transactions
involving, the Corporation; and WHEREAS, the shareholders of Artemis will
establish a similar committee (the "Artemis Committee") pursuant to the terms of
the Shareholders Agreement and Artemis' Articles of Association; the members of
the Artemis Committee shall be identical to the members of the Exelixis
Committee and the functions of the Artemis Committee shall be substantially
similar to the Exelixis Committee with respect to commercialization arrangements
and certain significant transactions involving Artemis.
RESOLVED, that the Exelixis Committee shall have five members, three of
which shall be appointed by the Board (the "Exelixis-Committee Members") and two
of which shall be appointed by Artemis as representatives of the other
shareholders of Artemis (the "Artemis Committee Members");
RESOLVED, that the Exelixis Committee shall be comprised of the following
persons: Xxxxxx X. Xxxxxxx, Xxxxxxx Xxxxxxxxxxxx and Xxxx-Xxxxxxxx Xxxxxxx, as
the Exelixis designees, and Xxxxx Xxxxxxx and Xxxxxx Xxxxx, as the Artemis
designees;
RESOLVED, that each Exelixis Committee Member designated by the Corporation
shall serve for a five-year term and until such time as his successor has been
appointed by the Board or until his earlier resignation or removal and each
Exelixis Committee Member designated by Artemis shall serve for a five-year term
or until such time as Artemis shall notify the Committee of his resignation or
removal; Members of the Exelixis Committee may resign at any time; the Exelixis
Committee Members may only be removed by this Board and the Artemis Committee
Members may only be removed by Artemis; vacancies on the Exelixis Committee
resulting from resignation, removal or other cause may only be filled, in the
case of an Exelixis Committee Member, by the Board and, in the case of an
Artemis Committee Member, by Artemis; RESOLVED, that the Exelixis Committee
shall remain in effect until the earlier of five years from the date of
Cooperation Agreement or the termination of the Cooperation Agreement, provided,
however, in the event that the term of the Cooperation Agreement is extended,
the Exelixis Committee shall remain in effect for such extended period;
RESOLVED, that 80% of the members of the Exelixis Committee shall
constitute a quorum for the transaction of business at any meeting of the
Exelixis Committee, provided that in the event that a quorum is not present at
two consecutive meetings, a third meeting will be convened within one week of
the last scheduled meeting at which a quorum was not present and for purposes of
such meeting, a majority of the members of the Exelixis Committee will
constitute a quorum; meetings of the Exelixis Committee may be convened upon 15
days notice;
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RESOLVED, that, except as provided in paragraph B(3) below, the affirmative
vote of a majority of the members of the Exelixis Committee present at a meeting
at which a quorum is present shall be the act of the Exelixis Committee; and
RESOLVED, that the expenses of each Exelixis Committee Member shall be paid
by Exelixis and the expenses of each Artemis Committee Member shall be paid by
Artemis.
B. Exelixis Committee Functions
RESOLVED, that upon the approval of a majority of the members of the
Exelixis Committee present at a meeting at which a quorum is present, the proper
officers of the Corporation be, and each of them hereby is authorized to enter
into agreements on behalf of the Corporation in connection with the following
transactions:
(i) Third-party Commercialization Arrangements. All arrangements to be
entered into by the Corporation with any third party regarding the
development, marketing, sales, promotion, manufacturing or other
commercialization of Exelixis' technology, expertise or any products
developed therefrom;
(ii) Material Agreements. Any material agreement to be entered into by
the Corporation with any third party, other than material agreements to be
entered into in connection with the transactions described in paragraphs
(I)-(6) below; and
(iii) Incurrence of Indebtedness. Borrowing funds or incurring any
indebtedness in excess of US$500,000.
RESOLVED, that in connection with the Board's consideration of any of the
following transactions, it shall consider the recommendation of the Exelixis
Committee, which recommendation, except as otherwise provided in paragraph (3)
below, shall require the approval of a majority of the members of the Exelixis
Committee present at a meeting at which a quorum is present:
(1) Capital Transactions. Increasing or reducing the Corporation's
authorized capital or creating any additional class of capital stock of the
Corporation, or selling or issuing shares of capital stock (or securities
convertible into or exchangeable for capital stock or warrants, options or
rights to acquire shares of capital stock or to acquire securities
convertible into or exchangeable for capital stock) of the Corporation,
except for (A) shares of the Company's Common Stock, par value $.001 per
share (the "Common Stock") issuable upon conversion of the Corporation's
outstanding Series A Convertible Preferred Stock, par value $.001 per
share, Series B Convertible Preferred Stock, par value $.001 per share, and
Series C Convertible Preferred Stock; (B) shares issuable upon exercise of
any warrants, options or rights to acquire shares of capital stock of the
Company outstanding on the date of the Cooperation Agreement; and (C)
options granted pursuant to the terms of any stock option or other employee
benefit plan existing on the date of the Cooperation Agreement;
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(2) Asset Sales. Selling, leasing, exchanging, transferring or
otherwise disposing of, directly or indirectly, in a single transaction or
series of related transactions, all or substantially all of the
Corporation's property and assets;
(3) Business Combinations. (A) Entering into any business combination
between the Corporation and Artemis whether by merger, consolidation,
transfer of assets or otherwise (a "Business Combination") during the
period commencing 18 months from the date of the Cooperation Agreement and
terminating on the fifth anniversary of such date (the "Initial Period"),
provided, however, any Business Combination to be entered into prior to, or
in the event that the term of the Cooperation Agreement is extended, after,
the Initial Period shall require the unanimous vote of the members of the
Exelixis Committee or (B) entering into any Business Combination with a
third party other than Artemis;
(4) Dissolution of the Corporation. (A) Seeking the liquidation,
reorganization, dissolution or winding-up of the Corporation, (B) applying
for or consenting to the appointment of, or the taking possession by, a
receiver, custodian, trustee or liquidator for itself or of all or a
substantial part of the Corporation's assets, (C) make a general assignment
for the benefit of the Corporation's creditors, (D) commencing a voluntary
case under the United States' Bankruptcy Code;
(5) Declaring or paying any dividends on the Common Stock; or
(6) Repurchasing or redeeming any capital stock or other securities or
capital stock of the Corporation.
C. Appointment of Exelixis Members to the Artemis Committee
RESOLVED, that Xxxxxx X. Xxxxxxx, Xxxxxxx Xxxxxxxxxxxx and Xxxx-Xxxxxxxx
Xxxxxxx, be and each of them hereby is, appointed as a member of the Artemis
Committee, to serve for a five-year term and until such time as his successor
has been appointed by this Board or until his earlier resignation or removal.
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ANNEX B
ARTEMIS SHAREHOLDERS' AGREEMENT
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Courtesy Translation
SHAREHOLDERS' AGREEMENT
between and among the shareholders of Artemis Pharmaceuticals GmbH:
1. Prof. Xx. Xxxxx Xxxxxxx,
2. Prof. Dr. Xxxxxxxxxx Xxxxxxxx-Xxxxxxx,
3. Prof. Xx. Xxxxx Xxxxxxxx,
4. EXELIXIS Pharmaceuticals, Inc.,
5. FEI Biomedicine Private Equity Holding AG, Basel
6. (a) Atlas Venture Fund II, L.P.
(b) Atlas Venture Germany B.V., Netherlands
(c) Oxford Ventures
(d) Global Life Science Holding V GmbH
(e) Advent International Corporation
(f) Xxxxxxx Xxxxxxxxxxxx
(g) Xxxxxxx Xxxxx
(h) Forward Ventures
. (the parties in 5. - 6. are also referred to as the "Investors") -and
7. Max-Xxxxxx-Geseilschaft, Munich ("MPG").
(hereinafter together referred to as the "Shareholders")
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PREAMBLE
Artemis Pharmaceuticals GmbH (hereinafter referred to as the
"Corporation"), a corporation organized under German Law, is engaged in the
development and/or utilization of biological/genetical model systems for
identifying new research methods and/or effective molecules for the
identification of effective therapies and/or medications for the treatment of
various diseases. Zebrafish Danio Rerio and mice play an important role as model
organisms in this respect. The Corporation intends to further its development
and the development of its products by concluding cooperation agreements and
creating strategic alliances with pharmaceutical companies.
In order to achieve its goals more effectively, the Corporation has agreed
on a strategically oriented cooperation with EXELIXIS Pharmaceuticals, Inc.,
South San Francisco, a corporation organized under the law of the State of
Delaware, USA (hereinafter "EXELIXIS"). EXELIXIS is also utilizing
biological/genetical model systems (fruit flies and nematode worms) for purposes
of active substance research and development.
Through the Corporation, the Shareholders plan to jointly employ their
technologies, their expertise and their capital for reaching the goals of the
Corporation. In this context, wherever advantageous and possible for the
Corporation and EXELIXIS, research activities and the activities for marketing
the products and technologies of both companies shall be coordinated and
adjusted to each other.
The Shareholders will work towards the Corporation and EXELIXIS consulting
each other in the cooperative spirit of trust with respect to reaching the
aforementioned objectives. Furthermore they shall both contribute to create a
framework which is' advantageous for a later merger of both companies to be
mutually agreed upon.
ARTICLE 1
ARTICLE OF ASSOCIATION
The parties will [on the day this contract is signed] agree to the Articles
of Association set forth in Exhibit 1. The Articles of Association can only be
amended by a majority vote of 75% of the parties to this Agreement. Thereby the
voting ratios of the contractual parties shall correspond to the amount of their
respective quota in the registered capital.
ARTICLE 2
CAPITALIZATION
On 08.10.1998 the parties agreed to a capital increase in accordance with
Exhibit 2a and on 08.. i 998 to a capital increase in accordance with Exhibit 2b
and subscribe to the capital contributions to the registered capital
correspondingly.
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ARTICLE 3
MANAGING DIRECTORS
The parties agree that, for the duration of this Agreement, Prof. Xx. Xxxxx
Xxxxxxx will be named as the sole managing director of the business. Prof. Xx.
Xxxxxxx will not be bound by the limitations of (S).181 BGB (German Civil Code).
ARTICLE 4
SHAREHOLDER ADVISORY BOARD
1. The five members of the Shareholder Advisory Board pursuant to (S).I 1
of the Articles of Association shall be constituted as follows: three members
will be appointed by EXELIXIS, one member will be appointed jointly by Prof. Xx.
Xxxxxxx, Prof. Dr. Niisslein-Volhard, Prof. Xx. Xxxxxxxx and MPG, and one member
will be appointed by the Investors. As a result of this provision, initially
Xxxxxx X. Xxxxxxx, Ph.D., Xxxxxxx Xxxxxxxxxxxx, Ph.D., and Dr. med. Xxxx-
Xxxxxxxx Xxxxxxx are appointed by EXELIXIS, Prof. Xx. Xxxxx Xxxxxxx is appointed
by Prof. Xx. Xxxxxxx, Prof. Dr. Niisslein-Volhard, Prof. Xx. Xxxxxxxx and MPG,
and Prof. Dr. Jiirgen Xxxxx is appointed by the Investors as members of the
Shareholder Advisory Board. The parties agree that these members of the
Shareholder Advisory Board shall only be replaced for important reasons by the
parties entitled to appoint the member being replaced.
2. The parties agree that the measures of the managing director listed in
Exhibit 3 require the approval of the Shareholder Advisory Board.
3. The parties assume the obligation to vote for the resolutions and
measures listed in Exhibit 4 during shareholders' meetings, if the Shareholder
Advisory Board has decided % on such measures.
ARTICLE 5
DURATION OF THE AGREEMENT
This Agreement is effective for a period of five years. It is established
on the basis that EXELIXIS will establish a committee (the "Committee") the five
members of which must be identical with the members of the Shareholder Advisory
Board set forth in (S). 4 Para. I in its respective composition, and that the
Board of Directors of EXELIXIS requires the approval of the Committee with
regard to the measures listed in Exhibits 3 and 4. If anything regarding the
composition of the Committee existing at EXEL1XIS, or regarding the matters
requiring approval by the Committee is changed, the provisions of this
Shareholders Agreement shall immediately become ineffective without replacement,
unless the parties agree to a conforming provision that is appropriate for the
new -4- situation. The same applies if thc voting quorum for the Committee does
not require at least the presence of 80% of its members or if thc passing of a
resolution by the Committee docs not take place with a majority of thc members
present. In case the Committee quorum was not present at two consecutive
meetings, a lesser quorum is permissible at the following meeting.
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ARTICLE 6
EXCLUSIVE ADVISORY CONTRACTS
Prof. Xx. Xxxxxxxx-Voihard and Prof. Xx. Xxxxxxxx will place their know-how
exclusively at the disposal of the Company and EXELIXIS with regards to
commercial application and based on advisory contracts still to be negotiated.
ARTICLE 7
STOCK-OPTION PLAN
1. Managing employees shall participate directly in the success of the
Company by means of a stock-option plan. The required' quotas will be sold by
Prof. Xx. Xxxxxxx, Prof. Dr. Xxxxxxxxxx Xxxxxxxx-Xxxxxxx and Prof. Xx. Xxxxx
Xxxxxxxx at nominal value to the beneficiaries of this plan, either directly or
indirectly through a third party. Prof. Xx. Xxxxxxx will make up to 7,38 % of
his quota, Prof. Dr. Xxxxxxxxxx Xxxxxxxx-Xxxxxxx will make up to 7,72 % of her
quota and Prof. Xx. Xxxxx Xxxxxxxx will make up to 7,72 % of his quota available
for this purpose.
2. In the event of a later merger with Exelixis employees of the Company
shall be treated equally to their respective Exelixis counterparts. He who has
worked for a comparable period of time with a comparable scientific background
in a comparable position, shall receive the same equity interest in the new
company as his Exelixis counterpart.
ARTICLE 8
JOINTLY HELD QUOTA
If a quota is held jointly by several persons, they are obliged to appoint
a joint representative who will exercise their rights from. the quota. As long
as a joint representative has not been appointed, the rights from the quota
shall rest.
ARTICLE 9
CHOICE OF LAW / JURISDICTION
This Agreement is governed by German law.
ARTICLE 10
WRITTEN FORM REQUIREMENT
Changes and supplements to this Agreement require the written form.
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ARTICLE 11
ARBITRATION
For all differences of opinion that arise between the parties with regard
to the effectiveness, interpretation, application and implementation of this
Agreement and of the relevant arbitration agreement, the agreement pursuant to
Exhibit 5 shall apply.
ARTICLE 12
SEVERABILITY
If provisions of this Agreement or a provision thereof included at some
later time be entirely or partially legally ineffective or unenforceable or
should provisions later lose their legal effectiveness or enforceability, the
validity of the remaining provisions of this Agreement shall not be affected as
a result. The same applies if it becomes apparent that the Agreement contains an
omission. In place of the ineffective or unenforceable provision, or, to fill
such omission, a reasonable provision shall apply which to the extent legally
possible comes as close as possible to what the parties wanted or to the sense
and purpose of the Agreement, if the parties had considered the issue at the
time of conclusion of this Agreement or at a later inclusion of a provision.
This shall also apply if the ineffectiveness of a provision is due to an
explicit measure of performance or time (deadline or appointed time) listed in
the Agreement; in this case a legally permitted measure of performance or time
(deadline or appointed time) that approximates the intent as closely as possible
shall be deemed agreed upon.
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Courtesy Translation
ARTICLES OF ASSOCIATION
I. GENERAL PROVISIONS
Section 1. Firm, Registered Office and Fiscal Year
1. The name of the Corporation shall be Artemis Pharmaceuticals
GmbH
2. The Corporation shall have its registered office in Koln.
3. The fiscal year of the Corporation shall be the calendar year.
Section 2. Purpose of the Corporation
1. The purpose of the Corporation is the research and development of
new therapies, diagnostic methods, and pharmaceutical products to treat diverse
illnesses through the use of genetic, biochemical and biological means. The
production of pharmaceutical products in each case follows through licensed
pharmaceutical producers. The pharmaceutical products will be stored with the
manufacturer. Distribution shall take place exclusively through the wholesale
pharmaceutical business.
2. Moreover, the Corporation may be involved in any business suitable
to promote its above purpose. The Corporation may establish other companies and
branch offices and participate in other companies.
Section 3. Notifications
Any notifications by the Corporation shall be published in the
Bundesanzeiger exclusively, to the extent that public notifications are required
by law.
II. REGISTERED CAPITAL AND QUOTAS
Section 4. Registered Capital
1. The Corporation's registered capital shall amount to DM 347.500,-
(Deutsche Xxxx three-hundred-forty-seven-thousand-five-hundred) unless paragraph
2 provides for a different amount.
2. The registered capital has been increased by resolution as of
27.08.1998 by DM 152,500,- maximum (Deutsche Xxxx one-hundred-fifty
two-thousand-five-hundred). The final amount of the capital increase will result
from the aggregate amount of the shares subscribed by 01.11.1998.
Section 5. Jointly held Quotas
If a quota is held jointly by several persons, they are obliged to appoint
a joint representative who will exercise their rights with respect to the quota.
As long as a joint representative has not been appointed, the rights from the
quota shall rest.
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Section 6. Redeeming Quotas
1. The redemption of a quota requires a resolution of the shareholders'
meeting and is only permissible with the approval of the affected shareholder.
The approval of the affected shareholder is not required when
a. bankruptcy or composition proceedings have legally commenced
concerning his assets or when the commencement of bankruptcy proceedings has
been refused due to insufficient assets;
b. foreclosure has taken place into the quota and the levy of
execution has not been stayed within one month or when the creditor pursues its
realization;
c. a shareholder raises a legal claim for judicial dissolution or
when a shareholder declares his notice of withdrawal from the Corporation or
d. another important reason exists.
2. The redemption shall take place against payment. The payment amount
is determined by the ordinary value of the quota, which shall be determined
according to the fiscal regulations in their respective valid form for the
valuation of quotas, the value of which cannot be derived from sale. The
situation on the last balance sheet date of the Corporation shall be decisive,
however, each of the shareholders may request, at his own cost, an adjustment of
the valuation to and as of the redemption effective date. In case of dispute
upon the request of any shareholder, the value of the quota shall be determined
in a legally binding way by an arbitrator, who must be an auditor, named by the
Chamber of Industry and Commerce in Dusseldorf. Real property and buildings; if
any, shall be valued at their expertly appraised fair market value.
Section 7. Disposals of Quotas
1. The transfer of a quota, in whole or in part, and all other
assignments with respect to a quota in the Corporation require the approval of
the Shareholder Advisory Board to be effective. Any transfer of a quota in
contravention of this provision shall be ineffective.
2. Every shareholder has the right to transfer his quota in its
entirety to an acquiring party who is not a shareholder, insofar as the transfer
proceeds in accordance with the following provisions:
a. The shareholder who wishes to transfer a quota must first offer
it to the other shareholders by sending written notice via registered mail and
with written notice to the Corporation. The notice must state the price and
other conditions of the transfer. Every shareholder has the right to acquire the
quota in accordance with the stated conditions if he declares his willingness to
acquire within two months of the receipt of the written offer by sending written
notice via registered mail and with written notice to the Corporation.
b. The right to acquire can only be exercised with respect to the
entire quota offered. If several shareholders exercise the right to acquire, in
the absence of a different understanding between them, the right to acquire
shall be deemed exercised by the shareholders
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in the ratio of their quota hitherto, whereby an indivisible maximum amount
falls to the shareholder with the lowest quota. The sale and assignment of the
quota must occur in notarial form within four weeks of the exercise of the right
to acquire.
c. In case the right to acquire is not exercised or the authorized
transferee fails to contribute to the sale and assignment within the set period,
then the Corporation -4-or a third party named by the Corporation is entitled
to acquire the quota, if the willingness to acquire is declared within one
month. The exercise of the right to acquire or the naming of a third party
requires the approval of the Shareholder Advisory Board.
d. Should a quota fail to transfer in accordance with !et. (a)
through (c), then the shareholder may within a period of six months transfer the
offered quota to one or more third parties for the given, or for the acquirer
less favorable, conditions. The Shareholder Advisory Board is obligated to
dispense its approval in accordance with para. 1.
III. MANAGING DIRECTORS
Section 8. Management and Representation
1. The Corporation shall have one or several managing directors. If
only one managing director has been nominated, he shall be the sole
representative of the Corporation. If several managing directors have been
nominated, the Corporation shall be represented jointly by two managing
directors or by one managing director together with a person granted power of
attorney according to the Commercial Code [Prokurist].
2. By means of a shareholder resolution,
a. if there are several managing directors, individuals among them
may be granted , the power of sole representation;
b. it may be resolved that a managing director may only be
dismissed for important reason;
c. a managing director may be freed from the provisions of (S).181
BGB (German Civil Code).
3. The managing directors are only allowed to take part in certain
transactions, as determined by the Shareholder Advisory Board, with the approval
of the Shareholder Advisory Board.
IV. SHAREHOLDERS
Section 9. Shareholder Resolutions
1. Shareholder resolutions are passed during shareholders' meeting.
They may also be passed in writing, by telex, by telegram, by telecopy, by
telephone or by video conference if all shareholders agree. Resolutions passed
without a meeting must be documented in writing by the managing directors and
distributed in writing to all shareholders.
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2. Shareholder resolutions are passed with a majority of the votes
cast, unless the law or the Articles of Association require more than a majority
vote.
Section 10. Shareholders' Meeting
1. The shareholders' meeting shall be held at the registered office or
another location, as determined by the shareholders.
2. The managing director shall call the shareholder meeting, announcing
the agenda by registered letter at least two weeks prior notice, not including
the day of dispatch of the invitation and the date of the meeting. In urgent
cases, the managing director may shorten this period.
3. The shareholders' meeting will elect a chairman from its members.
4. The shareholders' meeting is capable of rendering resolutions if at
least 75% of the share capital is present. An absent shareholder may be
represented by another shareholder. If a shareholders' meeting does not
constitute a quorum, a second meeting with the same agenda must be convened
within one week, which meeting shall be capable of rendering resolutions
regardless of the amount of registered capital represented; such circumstance
must be pointed out in the invitation.
5. The regular shareholders' meeting will convene within the first
seven months of the fiscal year. It will pass resolutions regarding the
determination of annual financial statements and the use of profits, formal
approval of the managing directors, as well as the choice of an auditor.
6. Any resolutions passed during a shareholders' meeting shall be
recorded in the minutes of the meeting. Such minutes shall be signed by the
chairman and sent to the shareholders without delay. Should a resolution be
passed in writing, by telex, by telegram, by telecopy, by telephone or by
video-conference, the chairman or the managing directors shall notify all
shareholders in writing of such resolution.
Section 11. Shareholder Advisory Board
1. The Corporation shall have an advisory board ("Shareholder Advisory
Board") comprised of five members.
2. The members of the Shareholder Advisory Board will be nominated at
the shareholders' meeting for a period of 5 years. Renomination is permitted.
However, their respective terms shall not terminate prior to a new nomination or
renomination.
3. The Shareholder Advisory Board elects from among its members a
chairman and his representative and may create its own rules of procedure.
4. The Shareholder Advisory Board passes its resolutions at sessions
that are convened by the chairman upon notice of the agenda, as well as the
inclusion of any relevant written documents, in compliance with a notice period
of 15 days.
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5. The Shareholder Advisory Board is capable of passing resolutions if
all members have been properly invited and 80 % of the members of the
Shareholder Advisory Board are present. An absent member of the Shareholder
Advisory Board may appoint in writing another member of the Shareholder Advisory
Board as a representative. If the Board does not constitute a quorum in two
consecutive meetings, a third meeting with the same agenda must be convened
within one week, which meeting shall be capable of rendering resolutions
regardless of the number of members present; such circumstance must be pointed
out in the notice."
6. The Shareholder Advisory Board passes resolutions by a majority
vote. If one share- holder has appointed more than one Shareholder Advisory
Board member, then these Shareholder Advisory Board members can only exercise
their votes jointly or abstain from casting their votes jointly. Abstentions
count as votes not cast.
7. If no member of the Shareholder Advisory Board objects, then a
resolution may be passed in writing, by telex, by telegram, by telecopy, by
telephone or by video-conference.
8. The Shareholder Advisory Board acts through its chairman or, if he
is prevented from doing so, through a representative.
9. The provisions of the German Stock Corporation Act (Aktiengesetz)
(hereinafter "AktG") are not applicable with respect to the Shareholder Advisory
Board.
10. The Shareholder Advisory Board encompasses the following tasks and
authorities:
a. advising the managing directors;
b. nominating and dismissing the managing directors as well as
discharging them from their responsibilities;
c. conclusion, modification, revocation, or termination of
employment contracts with the managing directors;
d. determining and deciding on transactions which require approval
in accordance with (S).8 para. 3.
V. ANNUAL FINANCIAL STATEMENTS AND USE OF PROFITS
Section 12. Annual Financial Statements
1. The managing directors shall prepare the annual financial statements
and the status report for the preceding fiscal year in the first three months of
a fiscal year and submit these for examination to the auditor, insofar as an
examination is legally required or is provided for by means of a Shareholder
Advisory Board resolution.
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2. The managing directors have the obligation to present expediently to
the shareholders the annual financial statements, the status report and any
audit report of the auditor upon their completion, together with their proposal
for a use of the profits.
3. The shareholders' meeting will decide upon the use of profits with a
majority vote of 75%.
Section 13. Exchanges of Goods/Services with Shareholders
Other than pursuant to resolutions regarding the use of profits, the
Corporation may not direct a pecuniary benefit to a shareholder or an enterprise
affiliated with the shareholder in accordance with (S). 15 AktG which has its
origin in the shareholder relationship. The provisions of (S)(S). 57, 62 AktG
shall apply correspondingly.
VI. FINAL PROVISIONS
Section 14. Arbitration
1. For all differences of opinion that arise between the parties or
between shareholders and the Corporation with regard to the effectiveness,
interpretation, application and implementation of these Articles of Association
and of this arbitration clause, an arbitration tribunal shall render a decision,
insofar as is legally permitted, without recourse to litigation.
2. The arbitration `tribunal is comprised of two associate judges and
one chairman. The party that wishes to go to the arbitration tribunal must so
notify the other party, including the concurrent naming of an arbitrator,
through registered mail, and request the other party for their part to name an
arbitrator within a set period of two weeks after receipt of the letter. The two
named arbitrators elect the chairman of the arbitration tribunal, who must be
qualified to be a judge. If the other party does not meet the request deadline
for naming an arbitrator or if the two named arbitrators are unable to agree on
the person who will serve as chairman within two weeks of the naming of the
second arbitrator, then the second arbitrator or the chairman will be elected
upon the request of a party by the president of the Upper State Court
(Oberlandesgerichts) at Dusseldorf.
3. If for any reason an arbitrator resigns after the formation of the
arbitration tribunal, another arbitrator must be elected in his place; the
corresponding provisions of para. 2 are applicable to the election.
4. If the side of either the plaintiff or the defendant involves two or
more persons, these persons operate as one party in the sense of the foregoing
provision. They shall decide upon the person to be named as arbitrator by the
party among themselves by means of a simple majority of heads.
5. As for the remaining procedures of the arbitration tribunal, the
provisions of the 10th book of the German Code of Civil Procedure
(ZivilprozeBordnung) shall be applicable. The arbitration award will only be
documented in writing upon the request of a party. Insofar as the participation
of a regular court is required, the respective Regional Court
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(Landgericht) competent for the registered office of the Corporation shall have
exclusively jurisdiction.
6. In case the arbitration award is repealed by a regular court, the
arbitration agreement is not used up. The parties shall in this case renew their
efforts and convene/another arbitration tribunal put together in accordance with
the above provisions. Those arbitrators who participated in the earlier
procedure are excluded from participating in the new proceeding.
Section 15. Severability
If provisions of these Articles of Association or a provision thereof
included at some later time be entirely or partially legally ineffective or
unenforceable or should provisions later lose their legal effectiveness or
enforceability, the validity of the remaining provisions of these Articles of
Association shall not be affected as a result. The same applies if it becomes
apparent that the Articles of Association contain an omission. In place of the
ineffective or unenforceable pro-vision, or, to fill such omission, a reasonable
provision shall apply which to the extent legally possible comes as close as
possible to what-the parties wanted or to the sense and purpose of the Articles
of Association, if the parties had considered the issue at the time of
conclusion of these Articles of Association or at a later inclusion of a
provision. This shall also apply if the in-effectiveness of a provision is due
to an explicit measure of performance or time (deadline or appointed :time)
listed in the Articles of Association; in this case a legally permitted measure
of performance or time (deadline or appointed time) that approximates the intent
as closely as possible shall be deemed agreed upon.
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Courtesy Translation
SHAREHOLDERS' AGREEMENT
between and among the shareholders of Artemis Pharmaceuticals GmbH:
1. Prof. Xx. Xxxxx Xxxxxxx,
2. Prof. Dr. Xxxxxxxxxx Xxxxxxxx-Xxxxxxx,
3. Prof. Xx. Xxxxx Xxxxxxxx,
4. EXELIXIS Pharmaceuticals, Inc.,
5. FEI Biomedicine Private Equity. Holding AG, Basel
6. (a) Atlas Venture Fund II, L.P.
(b) Atlas Venture Germany B.V., Netherlands
(c) Oxford Bioscience Partners (Bermuda) Limited Partnership,
(d) Oxford Bioscience Partners L.P.,
(e) Global Life Science Holding V GmbH
(f) Adwest Limited Partnership,
(g) Advent Partners Limited Partnership,
(h) Advent Performance Materials Limited Partnership
(i) Rodent II Limited Partnership,
(j) Xxxxxxx Xxxxxxxxxxxx
(k) Biotechvest L.P.,
. (the parties in 5. - 6. are also referred to as the "Investors") -, and
7. Xxx Xxxxxx-Gesellschaft zur Forderung der Wissenschaften, Berlin
("MPG").
(hereinafter jointly referred to as the "Shareholders")
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PREAMBLE
Artemis Pharmaceuticals GmbH (hereinafter referred to as the
"Corporation"), a corporation organized under German Law, is engaged in the
development and/or utilization of biological/genetic, al model systems for
identifying new research methods and/or effective molecules for the
identification of effective therapies and/or medications for the treatment of
various diseases. Zebrafish Danio Rerio and mice play an important role as model
organisms in this respect. The Corporation intends to further its development
and the development of its products by concluding cooperation agreements and
creating strategic alliances with pharmaceutical companies.
In order to achieve its goals more effectively, the Corporation has agreed
on a strategically oriented cooperation with EXELIXIS Pharmaceuticals, Inc.,
South San Francisco, a corporation organized under the law of the State of
Delaware, USA (hereinafter "EXELIXIS"). EXELIXIS is also utilizing
biological/genetical model systems (fruit flies and nematode worms) for purposes
of active substance research and development.
Through the Corporation, the Shareholders plan to jointly employ their
technologies, their expertise and their capital for reaching the goals of the
Corporation. In this context, wherever advantageous and possible for the
Corporation and EXELIXIS, research activities and the activities for marketing
the products and technologies of both companies shall be coordinated and
adjusted to each other.
The Shareholders will work towards the Corporation and EXELIXIS consulting
each other in the cooperative spirit of trust with respect to reaching the
aforementioned objectives. Furthermore they shall both contribute to create a
framework which is advantageous for a later merger of both companies to be
mutually agreed upon.
ARTICLE 1
ARTICLES OF ASSOCIATION
The parties will [on the day this contract is signed] agree to the Articles
of Association set forth in Exhibit 1. The Articles of Association can only be
amended by a majority vote of 75 % of the parties to this Agreement. Thereby the
voting ratios of the contractual parties shall correspond to the amount of their
respective quota in the registered capital.
ARTICLE 2
CAPITALIZATION
On 08.10.1998 the parties agreed to a capital increase in accordance with
Exhibit 2 a and on 08.27.1998 to a capital increase in accordance with Exhibit 2
b and subscribe to the capital contributions to the registered capital
correspondingly.
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ARTICLE 3
MANAGING DIRECTORS
The parties agree that, for the duration of this Agreement, Prof. Xx. Xxxxx
Xxxxxxx will be named as the sole managing director of the business. Prof. Xx.
Xxxxxxx will not be bound by the limitations ofss.181 BGB (German Civil Code).'
ARTICLE 4
SHAREHOLDER ADVISORY BOARD
1. The five members of the Shareholder Advisory Board pursuant toss.11 of
the Articles of Association shall be constituted as follows: three members will
be appointed by EXELIXIS, one member will be appointed jointly by Prof. Xx.
Xxxxxxx, Prof. Xx. Xxxxxxxx- Xxxxxxx, Prof. Xx. Xxxxxxxx and MPG, and one member
will be appointed by the Investors. As a result of this provision, initially
Xxxxxx X. Xxxxxxx, Ph.D., Xxxxxxx Xxxxxxxxxxxx, Ph.D., and Dr. med.
Xxxx-Xxxxxxxx Xxxxxxx are appointed by EXELIXIS, P/of. Xx. Xxxxx Xxxxxxx is
appointed by Prof. Xx. Xxxxxxx, Prof. Xx. Xxxxxxxx-Xxxxxxx, Prof. Xx. Xxxxxxxx
and MPG, and Prof. Xx. Xxxxxx Xxxxx is appointed by the Investors as members of
the Shareholder Advisory Board. The parties agree that these members of the
Shareholder Advisory Board shall only be replaced for important reasons by the
parties entitled to appoint the member being replaced.
2. The parties agree that the measures of the managing director listed in
Exhibit 3 require the approval of the Shareholder Advisory Board.
3. The parties assume the obligation to vote for the resolutions and
measures listed in Exhibit 4 during shareholders' meetings, if the Shareholder
Advisory Board has decided on such measures.
ARTICLE 5
DURATION OF THE AGREEMENT
This Agreement is effective for a period of five years. It is established
on the basis that EXELIXIS will establish a committee (the "Committee") the five
members of which must be identical with the members of the Shareholder Advisory
Board set forth in ss. 4 Para. ! in its respective composition, and that the
Board of Directors of EXELIXIS requires the approval of the Committee with
regard to the measures listed in Exhibits3 and 4. If anything regarding the
composition of the Committee existing at EXELIXIS, or regarding the matters
requiring approval by the Committee is changed, the provisions of this
Shareholders Agreement shall immediately become ineffective without replacement,
unless the parties agree to a conforming provision that is appropriate for the
new situation. The same applies if the voting quorum for the Committee does not
require at least the presence of 80 % of its members or if the passing of a
resolution by the Committee does not take place with a majority of the members
present. In case the Committee quorum was not present at two consecutive
meetings, a lesser quorum is permissible at the following meeting.
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ARTICLE 6
EXCLUSIVE ADVISORY CONTRACTS
Prof. Xx. Xxxxxxxx-Xxxxxxx and Prof. Xx. Xxxxxxxx will place their know-how
exclusively at the disposal of the Company and EXELIXIS with regards to
commercial application and based on advisory contracts still to be negotiated."
ARTICLE 7
STOCK-OPTION PLAN
1. Managing employees shall participate directly in the success of the
Company by means of a stock-option plan. The required quotas will be sold by
Prof. Xx. Xxxxxxx, Prof. Dr. Xxxxxxxxxx Xxxxxxxx-Xxxxxxx and Prof. Dr. Klans
Rajewsky at nominal value to the beneficiaries of this plan, either directly or
indirectly through a third party. Prof. Xx. Xxxxxxx will make up to 7,38 % of
his quota, Prof. Dr. Xxxxxxxxxx Xxxxxxxx-Xxxxxxx will make up to 7,72 % of her
quota and Prof. Xx. Xxxxx Xxxxxxxx will make up to 7,72 % of his quota available
for this purpose.
2. In the event of a later merger with Exelixis employees of the Company
shall be treated equally to their respective Exelixis counterparts. He who has
worked for a comparable period of time with a comparable scientific background
in a comparable position, shall receive the same equity interest in the new
company as his Exelixis counterpart.
ARTICLE 8
JOINTLY HELD QUOTA
If a quota is held jointly by several persons, they are obliged to appoint
a joint representative who will exercise their rights from the quota. As long as
a joint representative has not been appointed, the rights from the quota shall
rest.
ARTICLE 9
CHOICE OF LAW / JURISDICTION
This Agreement is governed by German law.
ARTICLE 10
WRITTEN FORM REQUIREMENT
Changes and supplements to this Agreement require the written form.
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ARTICLE 11
ARBITRATION
For all differences of opinion that arise between the parties with regard
to the effectiveness, interpretation, application and implementation of this
Agreement and of the relevant arbitration agreement, the agreement pursuant to
Exhibit S shall apply.
ARTICLE 12
SEVERABILITY
If provisions of this Agreement or a provision thereof included at some
later time be entirely or partially legally ineffective or unenforceable or
should provisions later lose their legal effectiveness or enforceability, the
validity of the remaining provisions of this Agreement shall not be affected as
a result. The same applies if it becomes apparent that the Agreement contains an
omission. In place of the ineffective or unenforceable provision, or, to fill
such omission, a reasonable provision shall apply which to the extent legally
possible comes as close as possible to what the parties wanted or to the sense
and purpose of the Agreement, if the parties had considered the issue at the
time of conclusion of this Agreement or at a later inclusion of a provision.
This shall also apply if the ineffectiveness or a provision is due to an
explicit measure of performance or time (deadline or appointed time) listed in
the Agreement; in this case a legally permitted measure of performance or time
(deadline or appointed time) that approximates the intent as closely as possible
shall be deemed agreed upon.
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SIGNATURE PAGE FOR
ARTEMIS PHARMACEUTICALS GmbH
SHAREHOLDERS' AGREEMENT
The undersigned, subject to acceptance by the Company, hereby agrees to all
of the terms of said agreement and agrees to be bound by the terms and
provisions thereof.
Date:______________
(Individual Signature)
---------------------------------------
Printed Name (First, Middle, Last)
---------------------------------------
(Signature)
(Corporation or Other Entity Signature)
---------------------------------------
Name of Entity (Print)
By:
------------------------------------
Name:
Title:
