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Exhibit 10.25(c)
LEUKOSITE, INC.
AMENDMENT, MODIFICATION AND CONVERSION AGREEMENT
This AMENDMENT, MODIFICATION AND CONVERSION AGREEMENT, dated as of June
26, 1997 (this "Agreement"), is between LEUKOSITE, INC., a Delaware corporation
(the "Company"), and XXXXXX-XXXXXXX COMPANY, a Delaware corporation ("Warner").
W I T N E S S E T H:
WHEREAS, the Company and Warner are parties to that certain Research,
Development and Marketing Agreement dated September 30, 1994 (as amended or
modified from time to time, the "MCP-1 Collaborative Agreement");
WHEREAS, the Company and Warner are parties to that certain Research,
Development and Marketing Agreement dated July 1, 1995 (as amended or modified
from time to time, the "IL-8 Collaborative Agreement");
WHEREAS, the Company and Warner are parties to that certain Series C
Convertible Preferred Stock Purchase Agreement dated November 8, 1994 (as
amended or modified from time to time, the "Series C Stock Purchase Agreement");
WHEREAS, the Company and Warner are parties to that certain Series E
Convertible Preferred Stock Purchase Agreement dated January 3, 1996 (as amended
or modified from time to time, the "Series E Stock Purchase Agreement");
WHEREAS, Warner is a holder of 285,715 shares (the "Warner Series G
Shares") of Series G Convertible Preferred Stock, $0.0001 par value per share
(the "Series G Preferred Stock"), of the Company;
WHEREAS, pursuant to the provisions of the Company's Restated
Certificate of Incorporation (as amended and/or further restated from time to
time, the "Restated Certificate"), the shares of Series G Preferred Stock are
convertible into shares of common stock, $0.0001 par value per share ("Common
Stock"), of the Company;
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WHEREAS, Section G.7(j) of Part G of Article III of the Restated
Certificate provides that, upon the consummation of the Company's initial public
offering of Common Stock (the "Initial Public Offering"), all of the outstanding
shares of Series G Preferred Stock shall automatically (without any action on
the part of the holders thereof) be converted into a number of shares of Common
Stock to be determined pursuant to the provisions of such Section G.7(j); and
WHEREAS, the parties desire to enter into this Agreement for purposes
of, among other things, (i) amending each of the MCP-1 Collaboration Agreement,
the IL-8 Collaboration Agreement, the Series C Stock Purchase Agreement and the
Series E Stock Purchase Agreement (collectively, the "Warner Agreements" and,
individually, a "Warner Agreement") to eliminate certain anti-dilution rights
granted by the Company to Warner thereunder, (ii) providing for the conversion
of the Warner Series G Shares into a number of shares of Common Stock that is
different from the number of shares of Common Stock into which the Warner Series
G Shares would otherwise convert pursuant to the provisions of Section G.7(j)
upon the consummation of the Initial Public Offering, and (iii) partially offset
Warner's obligation to pay royalties to the Company pursuant to the MCP-1
Collaboration Agreement and the IL-8 Collaboration Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the parties
hereto hereby agree as follows:
1. Amendment of MCP-1 Collaboration Agreement. The MCP-1 Collaboration
Agreement is hereby amended as follows:
(i) The last sentence of the first paragraph of Section 1.4(b)
thereof (which last sentence begins with the words "If LeukoSite completes an
initial public offering of Common Stock for its own account at a public offering
price per share of less than $4.00 ...") is hereby deleted in its entirety and
shall have no force or effect whatsoever.
(ii) The fourth sentence of Section 1.4(c) thereof (which
fourth sentence begins with the words "If LeukoSite completes an initial public
offering of Common Stock for its own account at a public offering price per
share of less than $3.00 ...") is hereby deleted in its entirety and shall have
no force or effect whatsoever.
(iii) The fifth sentence of Section 1.4(c) thereof (which
fifth sentence begins with the words "Warner will be issued additional
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Common Stock, promptly after the initial public offering is completed...") is
hereby deleted in its entirety and shall have no force or effect whatsoever.
(iv) The fifth sentence of the first paragraph of Section
1.4(d) thereof (which fifth sentence begins with the words "If LeukoSite
completes an initial public offering of Common Stock for its own account at a
public offering price per share of less than $3.00 ...") is hereby deleted in
its entirety and shall have no force or effect whatsoever.
(v) The sixth sentence of the first paragraph of Section
1.4(d) thereof (which sixth sentence begins with the words "Warner will be
issued additional Common Stock, promptly after the initial public offering is
completed...") is hereby deleted in its entirety and shall have no force or
effect whatsoever.
(vi) The final sentence of Section 2 of the First Amendment to
the MCP-1 Collaborative, dated July 1, 1995 is hereby deleted in its entirety
and shall have no force or effect whatsoever.
2. Amendment of IL-8 Collaboration Agreement. The IL-8 Collaboration
Agreement is hereby amended as follows:
(i) The last sentence of the first paragraph of Section 1.4(b)
thereof (which last sentence begins with the words "If LeukoSite completes an
initial public offering of Common Stock for its own account at a public offering
price per share of less than $5.00 ...") is hereby deleted in its entirety and
shall have no force or effect whatsoever.
(ii) The last sentence of the first paragraph of Section
1.4(c) thereof (which fourth sentence begins with the words "If LeukoSite
completes an initial public offering of Common Stock for its own account at a
public offering price per share of less than $5.00 ...") is hereby deleted in
its entirety and shall have no force or effect whatsoever.
3. Amendment of Series C Stock Purchase Agreement. The Series C Stock
Purchase Agreement is hereby amended by deleting Section 3.2 thereof in its
entirety. Such Section 3.2 shall have no force or effect whatsoever.
4. Amendment of Series E Stock Purchase Agreement. The Series E Stock
Purchase Agreement is hereby amended by deleting
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Section 3.3 thereof in its entirety. Such Section 3.3 shall have no force or
effect whatsoever.
5. Intent of Foregoing Amendments. The parties hereby acknowledge that
the intent of the foregoing amendments to the Warner Agreements is to terminate
all anti-dilution rights provided to Warner under the Warner Agreements with
respect to those shares of capital stock of the Company owned or held by Warner
as of the date hereof. Furthermore, the parties hereby acknowledge the intent of
the Company to waive its right to co-promote products pursuant to the Warner
Agreements as further consideration for Warner's agreement to enter into this
Agreement. The terms and provisions of such waiver will be determined in a
definitive agreement to be negotiated between the parties in good faith.
6. Conversion of Warner Series G Shares into Common Stock Upon the
Initial Public Offering.
(a) Subject to the terms, provisions and conditions of this
Section 6 (including, without limitation, the waiver granted by Warner pursuant
to Section 6(b) below) and notwithstanding anything in Section G.7 of Part G of
Article III of the Restated Certificate to the contrary, each of the Company and
Warner (it being understood that Warner is acting for itself and on behalf of
any subsequent holder of Warner Series G Shares) hereby agrees that, upon the
consummation of the Initial Public Offering, each Warner Series G Share then
outstanding shall, by virtue of and immediately prior to the closing of the
Initial Public Offering and without any action on the part of holder thereof, be
deemed automatically converted into one share of Common Stock (subject to
proportionate and equitable adjustment upon the occurrence of any stock split,
stock dividend, reverse stock split, reclassification or recapitalization of the
Common Stock that becomes effective at any time during the period commencing
after the date of this Agreement and ending immediately prior to the closing of
the Initial Public Offering). The holder of any Warner Series G Shares converted
into Common Stock pursuant to this Section 6(a) shall be entitled to payment of
all declared but unpaid dividends, if any, payable on or with respect to such
shares up to and including the date of the closing of the Initial Public
Offering.
(b) Warner, for itself and its successors and assigns and for
all holders of Warner Series G Shares, hereby irrevocably and forever waives (i)
the application of the provisions of Section G.7(j) of Part G of Article III of
the Restated Certificate to the Warner Series G Shares and
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(ii) any or all rights and/or entitlements that Warner, its successors and
assigns and any and all holders of Warner Series G Shares may have to receive
shares of Common Stock upon mandatory conversion of the Warner Series G Shares
pursuant to Section G.7(j) of Part G of Article III of the Restated Certificate.
Warner, for itself and its successors and assigns and for all holders of Warner
Series G Shares, hereby irrevocably and forever agrees that the only shares of
Common Stock to which any holder of Warner Series G Shares shall be entitled
upon conversion of the Warner Series G Shares pursuant to, or on account or as a
result of, the Initial Public Offering shall be the number of shares of Common
Stock determined pursuant to Section 6(a) of this Agreement.
7. Royalty Offset.
(a) For and in consideration of Warner's agreement to amend
the terms of each of the Warner Agreements in the manner provided in this
Agreement and to modify the conversion of the Warner Series G Shares into Common
Stock in the manner provided in this Agreement, the Company hereby provides
Warner a credit (the "Credit") that can be used solely to offset royalty
payments due under Section 5.6 of the MCP-1 Collaborative Agreement, Section 5.6
of the IL-8 Collaborative Agreement and/or Section 7.1 of the Research,
Development and Marketing Agreement between the Company and Kyowa Hakko Kogyo
Co., Ltd., a Japan corporation ("Kyowa"), dated April 24, 1997 (as amended or
modified from time to time, the "Kyowa Collaboration Agreement"). The aggregate
amount of the Credit shall be determined as set forth in Section 7(b) below.
Capitalized terms used in this Section 7 without definition shall have the
meaning ascribed to such terms in Section 7(e) below.
(b) The aggregate amount of the Credit shall be equal to (i)
2,535,715 (subject to proportionate and equitable adjustment upon the occurrence
of any stock split, stock dividend or reverse stock split of the Common Stock
that becomes effective at any time during the period commencing after the date
of this Agreement and ending immediately prior to the closing of the Initial
Public Offering) multiplied by (ii) the remainder of $3.00 (subject to
proportionate and equitable adjustment upon the occurrence of any stock split,
stock dividend or reverse stock split of the Common Stock that becomes effective
at any time during the period commencing after the date of this Agreement and
ending immediately prior to the closing of the Initial Public Offering) minus
the Initial Public Offering Price. This Section will have no force or effect if
the Credit is a negative number.
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(c) In no event will Warner be entitled to utilize the Credit
to offset more than 50% of any single royalty payment due under the Warner
Agreements or the Kyowa Collaboration Agreement; provided, however, that in the
case of the Kyowa Collaboration Agreement, the Credit and this Agreement will
apply after application of Section 7.3 thereof.
(d) Warner may assign, sell or otherwise transfer its rights
under this Section 7 to any party (including, without limitation, Kyowa) that
may now or in the future be obligated to make any royalty payments under the
Warner Agreements or the Kyowa Collaboration Agreement.
(e) For purposes of this Section 7, the following terms shall
have the meanings provided therefor below:
"Initial Public Offering Price" shall mean the price per share (without
giving effect to any discount, reduction or offset on account of any
underwriters' or brokers' discount, fees or commissions) at which the Company
offers and sells shares of Common Stock pursuant to the Initial Public Offering.
8. Representations and Warranties. Warner hereby represents and
warrants to the Company that (i) Warner is the sole record and beneficial owner
of the Warner Series G Shares on the date hereof, (ii) Warner has not sold,
assigned, pledged or otherwise transferred or disposed of any shares of capital
stock of the Company or any interest therein, (iii) Warner has not granted to
any person any option, warrant or other contractual right to acquire any shares
of capital stock of the Company (including, without limitation, any of the
Warner Series G Shares) or any interest therein.
9. Obligations with respect to Transferees. Warner hereby agrees that,
prior to effecting a sale, assignment, pledge or other transfer or disposition
of any of the Warner Series G Shares or any interest therein, it shall provide a
copy of this Agreement to the proposed transferee and cause such proposed
transferee to agree in writing to become bound by all of the terms and
conditions set forth in this Agreement.
10. Miscellaneous Provisions. In the event of any conflict between this
Agreement and any provision of the Restated Certificate relating to conversion
of Warner Series G Shares, the provisions of this Agreement shall govern. This
Agreement may be executed in any number of counterparts which together shall
constitute one instrument, and shall
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bind and inure to the benefit of (i) the parties hereto, (ii) their respective
successors and assigns and (iii) all transferees of Warner Series G Shares.
11. Termination. This Agreement will terminate ab initio and have no
force and effect if the Initial Public Offering is not closed before the later
of (i) September 1, 1997 or (ii) (if the registration statement relating to the
Initial Public Offering is filed with the Securities and Exchange Commission on
or before July 15, 1997) September 30, 1997.
IN WITNESS WHEREOF, and intending to become legally bound, the Company
and Warner have caused this Agreement to be duly executed as of the date first
above written.
LEUKOSITE, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
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Xxxxxxxxxxx X. Xxxxxxxxx, President
XXXXXX-XXXXXXX COMPANY
By: _____________________________________
Name:
Title:
