EXHIBIT 10.6
AMENDMENT
TO
COMMON STOCK AND CONVERTIBLE NOTE PURCHASE AGREEMENT
April 14, 1999
This Amendment is made and entered into as of the date first
written above by and between Genentech, Inc., a Delaware corporation having its
principal executive office at 0 XXX Xxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
("Genentech"), and XOMA Ltd., a Bermuda company having its principal office at
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("XOMA"), to amend that certain
Common Stock and Convertible Note Purchase Agreement, dated as of April 22, 1996
(the "Purchase Agreement"), by and between Genentech and XOMA.
Genentech and XOMA agree to amend the Purchase Agreement as
follows:
1. To replace the words "State of Delaware" in Section
4(a) with the words "Commonwealth of Bermuda."
2. To insert the words "and each amendment thereto" after
the words "this Agreement, the Collaboration Agreement and the Convertible Note"
in the first and second sentences of Section 4(b).
3. To delete the words "federal and state" from the first
and second sentences of Section 4(c) and to replace them with the words "Bermuda
Companies Act and Bermuda", and to delete the words "after giving effect to the
filing of the Certificate of Designation with the Secretary of State of the
State of Delaware as contemplated by Section 8" from the third sentence of
Section 4(c).
4. To insert the words "and each amendment thereto" after
the words "this Agreement, the Collaboration Agreement and the Convertible Note"
in Section 4(d), and to delete clause (i) from Section 4(d) and renumber clauses
(ii), (iii) and (iv) as (i), (ii) and (iii).
5. To delete the words "the SEC Reports (as defined in
Section 4(j) below)" in Section 4(e) and replace them with the words "the
Company's most recent report filed with the Securities and Exchange Commission
pursuant to the Exchange Act (as defined below) that calls for such disclosure".
6. In Section 4(h), (i) to delete the words "SEC Reports
and except for the issuance of the Company's Non-Voting Cumulative Convertible
Preferred Stock, Series D," and to replace them with the words "the Company's
most recent report filed with the Securities and Exchange Commission pursuant to
the Exchange Act (as defined below) that calls for such disclosure"; (ii) to
delete the words "the SEC Reports" and replace them with the words "such
report"; and (iii) to delete the word "hereof" and replace it with the word
"thereof."
7. To delete the words "Amended and Restated Certificate
of Incorporation or Bylaws" in Section 4(i) and replace them with the words
"Memorandum of Continuance or Bye-Laws", and to insert at the end of Section
4(i) the words "together with each amendment thereto".
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8. To add the following sentence to the end of Section
6(d):
"Any stop-transfer instructions with respect to the
Securities shall be removed by the Company promptly
upon the request of the Holder if the Holder shall have
obtained an opinion of counsel in form and in substance
satisfactory to the Company to the effect that such
instructions are no longer required."
9. To delete the words "upon any such assignment, sale or
transfer of such shares" from the last sentence of Section 7(a) and replace them
with the words "as set forth therein."
10. To add the following as new Sections 8(c) and 8(d):
"(c) The Company shall use its commercially reasonable
efforts to remain qualified to use Form S-3 under the
Securities Act or another appropriate form (including
but not limited to Form A or Form B proposed by the
staff of the Securities and Exchange Commission in
Securities Act Release No. 33-7606, if adopted)
permitting registration of the Conversion Shares and
any Registrable Securities issued in respect of such
Conversion Shares for resale by the Holder in the
manner or manners reasonably designated by the Holder.
(d) The Company shall not issue any Series B Preference
Shares to any other party without the prior written
consent of the Holder."
11. To insert the words "as amended" into Section 9(a)(i)
after the words "Convertible Note."
12. To insert the words "and each amendment thereto" after
the words the "Collaboration Agreement and the Convertible Note" in Section
9(a)(v) and after the words "this Agreement, the Collaboration Agreement and the
Convertible Note" in Section 9(a)(vi).
13. To insert the words "and each subsequent loan as of
their respective Closing Dates" into Section 9(a)(viii) after the words "Initial
Loan."
14. To add a new Section 10(b)(iii) that reads in full as
follows:
"(iii) The Company agrees to file with the
Commission,promptly following the execution of the
Amendment to this Agreement, but in no event later than
45 days thereafter, a Shelf Registration Statement
covering not less than that number of Conversion Shares
that would be issued upon the conversion of the
Preferred Stock that would be issued if $2 million of
the principal amount of the Convertible Note were to be
converted into Preferred Stock as of the filing date.
Such Shelf Registration Statement shall be on Form S-3
under the Securities Act or another appropriate form
(including but not limited to Form A or Form B proposed
by the staff of the Securities and Exchange Commission
in Securities Act Release No. 33-7606, if adopted)
permitting registration of such Conversion Shares and
any Regis-
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trable Securities issued in respect of such Conversion
Shares for resale by the Holder in the manner or
manners reasonably designated by the Holder. The
Company shall use its commercially reasonable efforts
to cause such Shelf Registration Statement to be
declared effective pursuant to the Securities Act as
promptly as practicable following the filing thereof
and to keep continuously effective under the Securities
Act until termination of such obligation pursuant to
Section 10(f)(iii).
15. To add a new Section 10(b)(iv) that reads in full as
follows:
"(iv) At such time (if any) that, as a result of
the Purchaser's sales of Conversion Shares covered by
the Shelf Registration Statement referred to in Section
10(b)(iii), such Shelf Registration Statement is
available to cover sales of a maximum number of
Conversion Shares then issued or issuable upon
conversion of Preferred Stock issued or issuable upon
conversion of $1 million of the principal amount of the
Convertible Note or less, then the Company shall
promptly file an amendment or supplement to such
Registration Statement, such that such Registration
Statement will be available for sales of Conversion
Shares then issued or issuable upon conversion of
Preferred Stock issued or issuable upon conversion of
not less than $2 mi1lion of the principal amount of the
Convertible Note. The Company shall use its
commercially reasonable efforts to cause such
amendments or supplements to such Shelf Registration
Statement to be declared effective pursuant to the
Securities Act as promptly as practicable following the
filing thereof and to keep the same continuously
effective under the Securities Act until termination of
such obligation pursuant to Section 10(f)(iii)."
To add a new Section 10(f)(iii) that reads in full as follows:
"(iii) The registration obligations of the
Company pursuant to Sections 10(b) through (d) of
this Agreement shall terminate with respect to the
Shelf Registration Statement contemplated by Section
10(b)(iii) and any amendments or supplements thereto
contemplated by Section 10(b)(iv) at the time at
which (A) the Purchaser has no obligation to make
additional loans to the Company under the Convertible
Note, and (B) all of the Conversion Shares that could
be issued upon the conversion of the Preferred Stock
that could be issued if the entire principal amount
of the Initial Loan and each Tranche may be sold
within a given three-month period without compliance
with the registration requirements of the Securities
Act pursuant to Rule 144 or other applicable
exemption supported by a written opinion of legal
counsel for the Company which shall be reasonably
satisfactory in form and substance to legal counsel
for the Holder."
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17. To replace the notice provisions in Section 11(a) and
(b) in their entirety with the following:
"(a) If to the Purchaser, to:
Genentech, Inc.
0 XXX Xxx
Xxxxx Xxx Xxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Corporate Secretary
(b) If to the Company, to:
XOMA Ltd
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Corporate Secretary"
18. To replace all references to "XOMA Corporation" with
references to "XOMA Ltd.", which is a Bermuda company that is the successor in
interest to XOMA Corporation, a Delaware company.
19. To replace all references to "Series E Preferred Stock"
and "Preferred Stock" with references to "Series B Preference Shares."
20. To replace all references to "Common Stock" with
references to "Common Shares."
All other terms and conditions of the Agreement shall remain
unchanged by this Amendment. The parties have agreed that this Amendment will be
governed by and construed in accordance with the laws of the State of Delaware.
This Purchase Agreement may be executed in two counterparts,
each of which will be deemed an original, but both of which together will
constitute one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, this Purchase Agreement has been executed
and delivered on the date first written above by duly authorized representatives
of the parties hereto.
GENENTECH, INC. XOMA LTD.
By: /s/ Xxxxx X. Xxxxxxx, Xx By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
----------------------------------- -------------------------------
Name: Xxxxx X. Xxxxxxx, Xx. Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Executive Vice President and Title: Vice President,
Chief Financial Officer General Counsel and
Secretary
