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EXHIBIT 10.15
GOVERNANCE AGREEMENT
IT IS HEREBY AGREED between Abgenix, Inc. ("Abgenix"} and CELL GENESYS,
INC. ("Cell Genesys") that the following provisions with respect to the
relationship between the parties shall be binding obligations on each of them.
Guiding Principles
1. It is the mutual interest of the parties that Abgenix be
independently financeable at this time and ultimately financeable as a public
company.
2. It is the mutual interest of the parties that Abgenix have
entrepreneurial independent management and access to collaborative partners
other than Cell Genesys, although Cell Genesys is a preferred collaborator in
areas of interest to Cell Genesys.
THE PARTIES THEREFORE AGREE as follows:
1. Directors.
1.1 For so long as Cell Genesys or any of its subsidiaries
(collectively, "CG") owns 80% or more of the outstanding Abgenix Voting Stock
other than shares held by employees and directors and former employees and
directors of Abgenix, then CG shall be entitled to nominate three out of five
directors (one of whom shall be an officer of Cell Genesys, who shall serve as
chairman of the Board of Abgenix), the chief executive officer ("CEO") of
Abgenix shall be nominated as the fourth director, and CG shall nominate a fifth
director with the approval of the CEO of Abgenix.
1.2 So long as CG owns, or is part of a group that owns, (i) a
majority of the outstanding Abgenix Voting Stock CG (or such group) will have
the right to nominate three out of five Abgenix directors, (ii) less than a
majority but greater than 25% of the outstanding Abgenix Voting Stock, CG (or
such group) will have the right to nominate two out of five Abgenix directors,
UV) less than 25% but greater than 15% of the outstanding Abgenix Voting Stock,
CG (or such group) will have the right to designate one out of five Abgenix
directors. To the extent that Abgenix shall increase or decrease the authorized
number of Directors, the foregoing numbers shall be proportionately adjusted and
rounded to the nearest whole number. Directors not nominated by CG shall be
nominated by the Independent Directors as part of the management slate to be
presented to the stockholders for election.
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1.3 CG and each officer and director of Abgenix who owns Voting Stock
shall agree to vote for the persons nominated in accordance with this Section.
1.4 If necessary in order to make this provision enforceable under
applicable state law, CG will enter into a voting trust agreement, and, in such
event, it shall be a requirement for each Abgenix officer and director who
wishes to acquire stock in Abgenix to enter into the same voting trust
agreement.
2. Change of Control in Cell Genesys. It is the intent of the
parties that, for so long as CG owns or controls at least a majority of the
Abgenix Voting Stock, upon the closing of a merger of Cell Genesys with or into
another corporation in which Cell Genesys is not the surviving corporation (or
if Abgenix is merged with or into Cell Genesys in anticipation of such merger,
then upon the closing of the merger of Abgenix with or into Cell Genesys),
unless the acquiring corporation and Abgenix enter into a governance agreement
acceptable to a majority of the Independent Directors of Abgenix, then each
share of Abgenix Voting Stock held by a director or employee of Abgenix or Cell
Genesys shall immediately become fully vested, and each option to acquire a
share of Abgenix Voting Stock held by a director or employee of Abgenix or Cell
Genesys shall immediately become exercisable in full and remain exercisable for
a period of at least 30 days after the date of notice to the option holder. The
parties agree to use their reasonable best efforts to effectuate this intent,
including without limitation in pursuing a permit from the California Department
of Corporations.
3. Market Standoff. Conditioned upon similar agreements for the same
period of time entered into by other significant shareholders and key officers
and directors, as reasonably requested by the lead underwriter in an IPO or
subsequent registered offering of Abgenix, CG will not sell, directly or
indirectly, in the public market any Abgenix shares without the written consent
of Abgenix and the lead underwriter in the offering for a period of up to six
months after the offering.
4. Transactions between the Parties. For so long as CG owns or
controls at least a majority of Abgenix Voting Stock, material transactions
between Cell Genesys and Abgenix will be approved by a majority of the
Independent Directors of Abgenix or otherwise will be on terms that are fair to
Abgenix (the burden of proof being on Cell Genesys to demonstrate fairness).
5. Third Party Financing. The parties shall use reasonable efforts
to conclude a third party private financing for Abgenix with proceeds of
approximately $10 million within one year of the date of this Agreement.
6. Publicity. The parties acknowledge that it is their mutual
interest to coordinate, as appropriate, public relation and investor relation
communications. Cell Genesys acknowledges
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the importance of allowing Abgenix to build name recognition among investment
and other publics. Cell Genesys agrees that it will allow Abgenix to issue press
releases in its own name or jointly with Cell Genesys, as provided below.
Abgenix acknowledges that Cell Genesys, as a public company, has obligations
regarding public disclosure. In recognition of the above, and for as long as CG
owns or controls at least a majority of the Abgenix Voting Stock, Abgenix agrees
not to issue any press releases or make any public disclosures (including at
scientific or other conferences) without the consent of Cell Genesys. Cell
Genesys' consent to press releases or public disclosures shall be granted or
withheld in the sole discretion of tell Genesys. Cell Genesys will make
reasonable efforts to allow Abgenix to review all Cell Genesys press releases
and public disclosures that relate to Abgenix. If Abgenix objects to a proposed
public disclosure by Cell Genesys that is not required by law or stock exchange
regulation, the parties shall discuss the matter in good faith. Notwithstanding
the foregoing, the parties shall readdress publicity by Abgenix in the event
that Abgenix registers a class of Voting Stock under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") while the provisions of this Section 6
remain in effect.
7. Certain Definitions. As used in this Agreement.
(a) The term "Independent Directors of Abgenix" means the CEO
of Abgenix and those directors of Abgenix who are not also directors, officers
or employees of Cell Genesys.
(b) The term "group" shall have the meaning comprehended by
Section 13-3(d)(3) of the Exchange Act and the rules and regulations promulgated
thereunder.
(c) The term "person" shall mean any person, individual,
corporation, partnership, trust or other nongovernmental entity or any
governmental agency, court, authority or other body (whether foreign, federal,
state, local or otherwise).
(d) The term "Voting Stock" means the Common Stock, Preferred
Stock and any other securities issued by Abgenix having the ordinary power to
vote in the election of directors of Abgenix (other than securities having such
power only upon the happening of a contingency).
8. Miscellaneous.
8.1 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 successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
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8.2 Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of California applicable to
agreements made and to be performed in such jurisdiction.
8.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
8.4 Headings. The headings of this Agreement are included for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction hereof.
8.5 Notices. All notices required or permitted to be given under this
Agreement shall be in writing and shall be sent by facsimile transmission or
mailed by registered or certified mail addressed to the party to whom such
notice is required or permitted to be given. All notices shall be deemed to have
been given when transmitted if given by facsimile and confirmation of receipt is
received or, if mailed, forty-eight hours after mailed as evidenced by the
postmark at the point of mailing.
All notices to Cell Genesys shall be addressed as follows:
Cell Genesys, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
All notices to the Abgenix shall be addressed as follows:
Abgenix, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
Either party may, by written notice to the other, designate a new address or
number to which notices to the party giving the notice shall thereafter be
mailed or sent.
8.6 Amendment and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of Abgenix and Cell Genesys.
8.7 Severability. If any provisions hereof shall be held by any court
of competent jurisdiction to be illegal, void or unenforceable, such provision
shall be thereafter amended by the parties hereto such that it is thereafter
legal, valid and enforceable and gives effect to the intention of the parties,
but in any event the illegality or unenforceability of such provision
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shall have no effect upon and shall not impair the enforceability of any other
provision of this Agreement.
8.8 Aggregation of Stock. All shares of Voting Stock held or acquired
by affiliated entities or persons shall be aggregated together for the purpose
of determining the availability of any rights under this Agreement.
8.9 Affiliates and Subsidiaries. The terms and conditions of this
Agreement shall be binding upon Cell Genesys' affiliates and subsidiaries.
8.10 Saturdays, Sundays, Holidays, etc. If the last or appointed day
for the taking or any action or the expiration of any right required to be
granted herein shall be a Saturday or a Sunday or shall be a legal holiday, then
such action may be taken or such right may be exercised on the next succeeding
day not a legal holiday.
IN WITNESS WHEREOF, the parties hereto have executed this Governance
Agreement as of the date first above written.
ABGENIX, INC.
/s/ R. Xxxxx Xxxxx
R. Xxxxx Xxxxx
President and Chief Executive Officer
CELL GENESYS, INC.
[SIG]
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
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