XOMA Ltd.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
May 16, 2003
Millennium Pharmaceuticals, Inc.
mHoldings Trust
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Re: Amendments to Note and Investment Agreement
Ladies and Gentlemen:
Reference is made to the Convertible Subordinated Note, dated as of
November 26, 2001, as amended by Amendment No. 1, dated as of November 5, 2002,
in the principal sum of $5,000,000 (the "Note"), convertible into common shares,
par value US$0.0005 per share, of XOMA Ltd. ("XOMA"), and the Investment
Agreement, dated as of November 26, 2001 (the "Investment Agreement"), by and
among XOMA, Millennium Pharmaceuticals, Inc. and mHoldings Trust. Capitalized
terms used but not defined in this letter agreement have the meanings assigned
thereto in the Investment Agreement.
Notwithstanding any provisions of the Note or the Investment Agreement or
any related agreement or resolutions to the contrary and without affecting the
rights and obligations of the parties thereunder except as expressly set forth
herein, the parties hereto agree as follows:
1. Maturity Date of the Note. The principal of the Note shall be due and
payable in a single installment on the earliest of: (a) February 26, 2004, (b)
the tenth Business Day following the termination of the Development and License
Agreement, and (c) the tenth Business Day following the first date on which the
Common Shares are no longer listed on any Principal Trading Market. The earliest
such date shall be the "Maturity Date" for purposes of the Note. Sections 6(c)
and (e) of the Note are hereby amended to refer to a closing to take place on
February 26, 2004 and the shares to be purchased at such closing.
2. Remaining Closings Under the Investment Agreement. The Investment
Agreement is hereby amended to the extent necessary to reflect the parties'
agreement that the
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Third, Fourth and Fifth Closing Dates and the Third, Fourth and Fifth Purchase
Prices are modified as follows:
Closing Date Purchase Price
----------------- --------------
Third June 26, 2003 $4.0 million
Fourth November 26, 2003 $9.0 million
Fifth February 26, 2004 $7.0 million
and to make corresponding changes to all related definitions and provisions. In
addition, the Investment Agreement is hereby amended to the extent necessary to
reflect the parties' agreement that there shall be added Sixth, Seventh and
Eighth Closing Dates and Sixth, Seventh and Eighth Purchase Prices as follows:
Closing Date Purchase Price
----------------- --------------
Sixth June 26, 2004 $6.0 million
Seventh October 26, 2004 $6.0 million
Eighth February 26, 2005 $5.5 million
and that the rights, obligations, conditions and other provisions in the Note,
the Investment Agreement and the Registration Rights Agreement relating to each
additional closing and the Shares purchased thereat shall be the same as those
that apply to the other closings generally, mutatis mutandis, it being
understood that the formula for determining the number of shares to be issued
and purchased on each of the Sixth, Seventh and Eighth Closing Dates shall be
re-applied at each closing using prices and time periods determined with
reference to such Closing Date. The Investment Agreement is also hereby amended
(i) to provide that the condition set forth in Section 5.3(i) of the Investment
Agreement shall apply only to the Fifth Closing (as provided above), (ii) to
replace the reference to the "Fifth Closing Date" in Section 4.2(d) of the
Investment Agreement with the "Eighth Closing Date" and (iii) to replace the
reference to the "Fifth Closing" in the first sentence of Section 6.1 of the
Investment Agreement with the "Eighth Closing." For the sake of clarity, the
Shares sold on the Sixth, Seventh and Eighth Closing Dates shall be subject to
the provisions of Sections 4.4 and 4.5 of the Investment Agreement.
Notwithstanding the provisions hereof, if at any time prior to the Third,
Fourth, Fifth, Sixth, Seventh and/or Eighth Closing Date the Development Program
for either of the Licensed Products (as each such term is defined in the
Development and License Agreement) is terminated in accordance with the terms of
the Development and License Agreement, the Third, Fourth, Fifth, Sixth, Seventh
and/or Eighth Purchase Price payable subsequent to the date of such termination
shall be reduced as set forth on Exhibit A.
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3. Miscellaneous. Except as expressly modified hereby, the provisions of
the Note and the Investment Agreement shall remain in full force and effect.
This letter agreement may not be amended or any provision hereof waived or
modified except by an instrument in writing signed by each of the parties
hereto. The headings on the paragraphs of this letter agreement are not to be
considered as part of this letter agreement in construing this letter agreement.
This letter agreement shall be governed by, and construed in accordance with,
the laws of the State of New York without regard to principles of conflicts of
law. Each party agrees to execute, acknowledge and deliver such further
instruments, and do such other acts, as may be necessary and appropriate in
order to carry out the purposes and intent of this letter agreement. This letter
agreement may be executed in any number of counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument.
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Please acknowledge your agreement to the foregoing by
executing below whereupon this letter shall become an effective agreement.
Very truly yours,
XOMA LTD.
By:
-------------------------
Xxxxxxxxxxx X. Xxxxxxxx
Vice President, General
Counsel and Secretary
AGREED and ACCEPTED as of the date first above written:
MILLENNIUM PHARMACEUTICALS, INC.
By:
--------------------------------------------------
Name:
Title:
mHOLDINGS TRUST
By: --------------------------------------------------
Name:
Title:
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EXHIBIT A
ADJUSTMENTS UPON TERMINATION
OF DEVELOPMENT PROGRAM FOR ONE LICENSED PRODUCT
From To
-------------- --------------
Third Closing USD $4,000,000 USD $2,400,000
Fourth Closing USD $9,000,000 USD $5,400,000
Fifth Closing USD $7,000,000 USD $4,200,000
Sixth Closing USD $6,000,000 USD $3,600,000
Seventh Closing USD $6,000,000 USD $3,600,000
Eighth Closing USD $5,500,000 USD $3,300,000