= CERTAIN INFORMATION HAS BEEN OMITTED BECAUSE IT IS BOTH NOT MATERIAL AND IS OF THE TYPE THAT THE REPORTING PERSON CUSTOMARILY AND ACTUALLY TREATS AS PRIVATE OR CONFIDENTIAL ARCUS BIOSCIENCES, INC. THIRD AMENDED AND RESTATED COMMON STOCK PURCHASE...
Exhibit 99.1
[***] = CERTAIN INFORMATION HAS BEEN OMITTED BECAUSE IT IS BOTH NOT MATERIAL AND IS OF THE TYPE THAT THE REPORTING PERSON CUSTOMARILY AND ACTUALLY TREATS AS PRIVATE OR CONFIDENTIAL
ARCUS BIOSCIENCES, INC.
THIRD AMENDED AND RESTATED COMMON STOCK PURCHASE AGREEMENT
This Third Amended and Restated Common Stock Purchase Agreement (this “Agreement”) is dated as of January 29, 2024, by and between Arcus Biosciences, Inc., a Delaware corporation (the “Company”), and Gilead Sciences, Inc., a Delaware corporation (“Gilead”). This Agreement amends and restates in its entirety the Second Amended and Restated Common Stock Purchase Agreement entered into between the Company and Gilead on June 27, 2023 (the “Existing Purchase Agreement”), which amended the Common Stock Purchase Agreement, dated May 27, 2020, by and between the Company and Gilead (the “Original Agreement”), as previously amended and restated on January 31, 2021.
WHEREAS, subject to the terms and conditions set forth in this Agreement, the Company desires to issue and sell to Gilead, and Gilead desires to purchase from the Company, shares of common stock of the Company as more fully described in this Agreement; and
WHEREAS, concurrently with the initial execution of the Original Agreement, the Company and Gilead entered into an Option, License and Collaboration Agreement, which was subsequently amended (as so amended, the “Collaboration Agreement”) and an Investor Rights Agreement (the “Original Investor Rights Agreement”), which was subsequently amended; and
WHEREAS, concurrently with the execution of this Agreement, the Company and Gilead are entering into an Amended and Restated Investor Rights Agreement, which amends and restates the Original Investor Rights Agreement, as subsequently amended.
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and Gilead agree as follows:
1.1. Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:
1.1.1 “5-Day Closing Price” means, for any date, (a) the sum of the “official closing price” (as defined by NYSE) of the Common Stock for the period of five (5) consecutive Trading Days through and including such date, (b) divided by five (5), and (c) rounded to two decimal places.
1.1.2 “Additional Closing” has the meaning set forth in Section 2.3.5 hereof.
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1.1.3 “Additional Closing Date” has the meaning set forth in Section 2.3.5 hereof.
1.1.4 “Additional Shares” means the shares of Common Stock subject to an Additional Shares Purchase Notice.
1.1.5 “Additional Shares Purchase Notice” has the meaning set forth in Section 2.3.5 hereof.
1.1.6 “Additional Shares Purchase Notice Date” means the date on which Gilead delivers an Additional Shares Purchase Notice to the Company.
1.1.7 “Additional Shares Purchase Price” means, with respect to an Additional Closing, a price per share equal to the greater of (a) 120% of the 5-Day Closing Price calculated on the Additional Shares Purchase Notice Date with respect to such Additional Closing and (b) the Initial Shares Purchase Price.
1.1.8 “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with a Person.
1.1.9 “Aggregate Additional Purchase Price” means, with respect to an Additional Closing, the dollar amount obtained by multiplying the number of Additional Shares to be purchased at such Additional Closing by the applicable Additional Shares Purchase Price.
1.1.10 “Aggregate Fourth Closing Purchase Price” means the dollar amount obtained by multiplying the number of shares of Common Stock constituting the Fourth Closing Shares by the Fourth Closing Purchase Price.
1.1.11 “Aggregate Initial Purchase Price” means the dollar amount obtained by multiplying the number of shares of Common Stock constituting the Initial Shares by the Initial Shares Purchase Price.
1.1.12 “Aggregate Second Closing Purchase Price” means the dollar amount obtained by multiplying the number of shares of Common Stock constituting the Second Closing Shares by the Second Closing Purchase Price.
1.1.13 “Aggregate Third Closing Purchase Price” means the dollar amount obtained by multiplying the number of shares of Common Stock constituting the Third Closing Shares by the Third Closing Purchase Price.
1.1.14 “Anti-Corruption Laws” has the meaning set forth in Section 3.1.17 hereof.
1.1.15 “Antitrust Approval” means, as the context requires, any consent, approval, expiration or termination of any waiting period, or any other authorization required under the applicable Antitrust Laws from any applicable Antitrust Authority to effect any of (a) Gilead’s purchase of the Initial Shares, (b) Gilead’s purchase of the Second Closing Shares, (c) Gilead’s purchase of the Third Closing Shares, (d) Gilead’s purchase of the Fourth Closing Shares, (e) Gilead’s purchase of Additional Shares or (f) the transactions contemplated by the Collaboration Agreement or the Investor Rights Agreement.
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1.1.16 “Antitrust Authority” means any applicable Governmental Authority exercising authority with respect to any Antitrust Laws.
1.1.17 “Antitrust Laws” means any applicable laws, rules and regulations, including any rules, regulations, guidelines or other requirements of Governmental Authorities, governing merger control, competition, monopolies or restrictive trade practices, including the HSR Act and the rules and regulations promulgated thereunder.
1.1.18 “Beneficial Ownership” or “Beneficially Owns” shall have the meaning set forth in Rule 13d-3 under the Securities Exchange Act.
1.1.19 “Business Day” means a day other than (a) a Saturday or a Sunday, (b) a bank or other public holiday in California, United States, (c) the Sunday through Saturday containing July 4th or (d) the period commencing on December 25th and ending on January 1st (inclusive).
1.1.20 “Closing” means, as applicable, the Initial Closing, the Second Closing, the Third Closing, the Fourth Closing or an Additional Closing.
1.1.21 “Closing Date” means, as applicable, the Initial Closing Date, the Second Closing Date, the Third Closing Date, the Fourth Closing Date or an applicable Additional Closing Date.
1.1.22 “Collaboration Agreement” has the meaning set forth in the recitals.
1.1.23 “Commission” means the United States Securities and Exchange Commission.
1.1.24 “Commission Rule 144” means Rule 144 promulgated by the Commission under the Securities Act.
1.1.25 “Common Stock” means the Company’s common stock, par value $0.0001 per share.
1.1.26 “Company Capitalization” means, as of any date of measurement, the total number of outstanding shares of voting capital stock of the Company.
1.1.27 “Control,” including the terms “Controlling,” “Controlled by” and “under common Control with,” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting shares, by contract or otherwise.
1.1.28 “Cross-Receipt” means a cross-receipt substantially in the form of Exhibit A hereto.
1.1.29 “Designated Event” has the meaning set forth in Section 4.7.
1.1.30 “Designated Event Notice” has the meaning set forth in Section 4.7.
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1.1.31 “Disqualification Event” has the meaning set forth in Section 3.1.20 hereof.
1.1.32 “DOJ” has the meaning set forth in Section 2.4 hereof.
1.1.33 “Entity” has the meaning set forth in Section 3.1.18(a) hereof.
1.1.34 “Evaluation Date” has the meaning set forth in Section 3.1.9 hereof.
1.1.35 “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
1.1.36 “Exercise Period” shall mean the period beginning on the Initial Closing Date and continuing until the fifth anniversary thereof.
1.1.37 “FDA” has the meaning set forth in Section 3.1.12 hereof.
1.1.38 “Fourth Closing” means the closing of the sale of the Fourth Closing Shares pursuant to Section 2.3.4 hereof.
1.1.39 “Fourth Closing Date” has the meaning set forth in Section 2.3.4 hereof.
1.1.40 “Fourth Closing Purchase Price” means $21.00 per share, subject to appropriate adjustments in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock.
1.1.41 “Fourth Closing Shares” means 15,238,095 shares of Common Stock, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock prior to the Fourth Closing.
1.1.42 “FTC” has the meaning set forth in Section 2.4 hereof.
1.1.43 “GAAP” has the meaning set forth in Section 3.1.8(b) hereof.
1.1.44 “Governmental Authority” means any multi-national, federal, state, local, municipal or other government authority of any nature (including any governmental division, subdivision, department, agency, bureau, branch, office, commission, council, court or other tribunal, as well as any securities exchange or securities exchange authority, including NYSE).
1.1.45 “HSR Act” means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended.
1.1.46 “Individual” has the meaning set forth in Section 3.1.18(a) hereof.
1.1.47 “Initial Closing” means the closing of the sale of the Initial Shares pursuant to Section 2.3.1 hereof.
1.1.48 “Initial Closing Date” has the meaning set forth in Section 2.3.1 hereof.
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1.1.49 “Initial Shares” means 5,963,029 shares of Common Stock, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock.
1.1.50 “Initial Shares Purchase Price” means $33.54 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock.
1.1.51 “Intellectual Property” has the meaning set forth in Section 3.1.14 hereof.
1.1.52 “Issuer Covered Person” has the meaning set forth in Section 3.1.20 hereof.
1.1.53 “Investor Rights Agreement” means the Original Investor Rights Agreement, which has the meaning set forth in the recitals, as subsequently amended.
1.1.54 “Law” or “law” means any supranational, national, federal, state, regional, provincial, local or municipal constitution, treaty, law, statute, ordinance, code, determination, principle of common law or any other requirement having the effect of law of any Governmental Authority (including any rule, regulation, plan, injunction, judgment, order, award, decree, ruling, requirement, guidance, policy or charge thereunder or related thereto), in each case as amended as of the date hereof, whether in the United States or a foreign jurisdiction.
1.1.55 “Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, mortgage, claim, easement, right-of-way, option, title retention agreement, preemptive right or other restriction.
1.1.56 “NYSE” means the New York Stock Exchange.
1.1.57 “OFAC” has the meaning set forth in Section 3.1.18(a) hereof.
1.1.58 “Permits” has the meaning set forth in Section 3.1.12 hereof.
1.1.59 “Person” means an individual, sole proprietorship, partnership, limited partnership, limited liability partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or other similar entity or organization, including a government or political subdivision, department or agency of a government.
1.1.60 “Required Approvals” has the meaning set forth in Section 3.1.3 hereof.
1.1.61 “Sanctioned Countries” has the meaning set forth in Section 3.1.18(a) hereof.
1.1.62 “Sanctions” has the meaning set forth in Section 3.1.18(a) hereof.
1.1.63 “Second Closing” means the closing of the sale of the Second Closing Shares pursuant to Section 2.3.2 hereof.
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1.1.64 “Second Closing Date” has the meaning set forth in Section 2.3.2 hereof.
1.1.65 “Second Closing Purchase Price” means $39.00 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock.
1.1.66 “Second Closing Shares” means 5,650,000 shares of Common Stock, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock.
1.1.67 “SEC Report” means any report filed by the Company with the Commission under the Exchange Act.
1.1.68 “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
1.1.69 “Shares” means the Initial Shares, the Second Closing Shares, the Third Closing Shares, Fourth Closing Shares and all Additional Shares.
1.1.70 “Third Closing” means the closing of the sale of the Third Closing Shares pursuant to Section 2.3.3 hereof.
1.1.71 “Third Closing Date” has the meaning set forth in Section 2.3.3 hereof.
1.1.72 “Third Closing Purchase Price” means $19.26 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock.
1.1.73 “Third Closing Shares” means 1,010,000 shares of Common Stock, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock.
1.1.74 “Trading Day” means a day on which NYSE is open for trading.
1.1.75 “Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE, the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market or the Nasdaq Global Select Market (or any successors to any of the foregoing).
1.1.76 “Transfer Agent” means Computershare Trust Company, N.A., with a mailing address of 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or any successor transfer agent of the Common Stock.
1.1.77 “Valid Account Details” means, with respect to any bank account, the valid (a) name of bank, (b) bank address, (c) account number and (d) ABA routing number.
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ARTICLE 2
PURCHASE AND SALE OF SHARES
2.1. Purchase of Shares. Subject to the terms and conditions of this Agreement, at the Initial Closing, the Company will issue and sell to Gilead, and Gilead will purchase from the Company, the Initial Shares, at a price per share equal to the Initial Shares Purchase Price, for an aggregate purchase price equal to the Aggregate Initial Purchase Price. Subject to the terms and conditions of this Agreement, at the Second Closing, the Company will issue and sell to Gilead, and Gilead will purchase from the Company, the Second Closing Shares, at a price per share equal to the Second Closing Purchase Price, for an aggregate purchase price equal to the Aggregate Second Closing Purchase Price. Subject to the terms and conditions of this Agreement, at the Third Closing, the Company will issue and sell to Gilead, and Gilead will purchase from the Company, the Third Closing Shares, at a price per share equal to the Third Closing Purchase Price, for an aggregate purchase price equal to the Aggregate Third Closing Purchase Price. Subject to the terms and conditions of this Agreement, at the Fourth Closing, the Company will issue and sell to Gilead, and Gilead will purchase from the Company, the Fourth Closing Shares, at a price per share equal to the Fourth Closing Purchase Price, for an aggregate purchase price equal to the Aggregate Fourth Closing Purchase Price. Subject to the terms and conditions of this Agreement, at each Additional Closing, the Company will issue and sell to Gilead, and Gilead will purchase from the Company, the applicable Additional Shares, at a price per share equal to the Additional Shares Purchase Price, for an aggregate purchase price equal to the Aggregate Additional Purchase Price for such Additional Closing.
2.2. Payment. At (a) the Initial Closing, Gilead will pay the Aggregate Initial Purchase Price, (b) the Second Closing, Gilead will pay the Aggregate Second Closing Purchase Price, (c) the Third Closing, Gilead will pay the Aggregate Third Closing Purchase Price, (d) the Fourth Closing, Gilead will pay the Aggregate Fourth Closing Purchase Price and (e) each Additional Closing, Gilead will pay the applicable Aggregate Additional Purchase Price, in each case by wire transfer of immediately available funds in accordance with the Valid Account Details, which Valid Account Details together with a Form W-9 will have been provided by the Company to Gilead at least five (5) Business Days prior to the applicable Closing Date. The Company shall cause delivery of the applicable Shares at each Closing to be made in book-entry form to an account of Gilead specified in writing by Gilead at the Transfer Agent.
2.3. Closings.
2.3.1 The Initial Closing shall occur at 10:00 am (New York City time) on such date as the parties may select, not later than the third Business Day after satisfaction or (to the extent permitted by law) waiver of the conditions set forth in Section 2.7 (Conditions to the Initial Closing) (other than those conditions that by their terms are to be satisfied at the Initial Closing, but subject to the satisfaction or (to the extent permitted by law) waiver of those conditions), unless such other place, time and date shall be agreed in writing between the Company and Gilead (such date, the “Initial Closing Date”).
2.3.2 The Second Closing shall occur at 10:00 am (New York City time) on such date as the parties may select, not later than the third Business Day after satisfaction or (to the extent permitted by law) waiver of the conditions set forth in Section 2.8 (Conditions to the Second Closing, Third Closing, Fourth Closing and each Additional Closing) (other than those conditions that by their terms are to be satisfied at the Second Closing, but subject to the satisfaction or (to the extent permitted by law) waiver of those conditions), unless such other place, time and date shall be agreed in writing between the Company and Gilead (such date, the “Second Closing Date”).
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2.3.3 The Third Closing shall occur at 10:00 am (New York City time) on such date as the parties may select, not later than the third Business Day after satisfaction or (to the extent permitted by law) waiver of the conditions set forth in Section 2.8 (Conditions to the Second Closing, Third Closing, Fourth Closing and each Additional Closing) (other than those conditions that by their terms are to be satisfied at the Third Closing, but subject to the satisfaction or (to the extent permitted by law) waiver of those conditions), unless such other place, time and date shall be agreed in writing between the Company and Gilead (such date, the “Third Closing Date”).
2.3.4 The Fourth Closing shall occur at 10:00 am (New York City time) on such date as the parties may select, not later than the third Business Day after satisfaction or (to the extent permitted by law) waiver of the conditions set forth in Section 2.8 (Conditions to the Second Closing, Third Closing, Fourth Closing and each Additional Closing) (other than those conditions that by their terms are to be satisfied at the Fourth Closing, but subject to the satisfaction or (to the extent permitted by law) waiver of those conditions), unless such other place, time and date shall be agreed in writing between the Company and Gilead (such date, the “Fourth Closing Date”).
2.3.5 At any time and from time to time during the Exercise Period, Gilead shall have a right (but not the obligation) to purchase from the Company, and the Company shall issue and sell to Gilead, Additional Shares, at the applicable Additional Shares Purchase Price. Gilead may exercise this right (but not more than once in any period of 90 days; provided that, following the delivery of a Designated Event Notice, Gilead may exercise this right at any time, without regard to such 90 day limitation) by giving written notice to the Company (each, an “Additional Shares Purchase Notice”). Each Additional Shares Purchase Notice shall (a) set forth the applicable Additional Closing Date and (b) specify the number of Additional Shares to be purchased on such Additional Closing Date; provided that such number of Additional Shares, if purchased, would not cause, collectively, Gilead and its Controlled Affiliates to Beneficially Own a number of shares of Common Stock greater than 35% of the Company Capitalization as of the applicable Additional Closing Date. The Closing of each such sale of Additional Shares shall occur at 10:00 am (New York City time) as promptly as practicable following the date of the Additional Shares Purchase Notice and not later than the third Business Day after satisfaction or (to the extent permitted by law) waiver of the conditions set forth in Section 2.8 (Conditions to the Second Closing, Third Closing, Fourth Closing and each Additional Closing) (other than those conditions that by their terms are to be satisfied at the Additional Closing, but subject to the satisfaction or (to the extent permitted by law) waiver of those conditions), unless such other place, time and date shall be agreed in writing between the Company and Gilead (each such date, an “Additional Closing Date,” and each such closing, an “Additional Closing”). For clarity, Gilead may rescind or revoke an Additional Shares Purchase Notice at any time in its sole discretion prior to the applicable Additional Closing Date.
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2.4. Antitrust Approvals. With respect to each proposed purchase of Second Closing Shares, Third Closing Shares, Fourth Closing Shares or Additional Shares, Gilead shall determine, in its sole discretion, whether any Antitrust Approvals will or may be required in connection with the proposed purchase of Shares, and shall hold the Company harmless from any claim that any purchase was made without a required Antitrust Approval. Upon Gilead’s request, including any such request made prior to delivery of an Additional Shares Purchase Notice, the Company shall promptly provide Gilead with information and assistance as may be reasonably necessary for Gilead to make such determination. If Gilead determines that Antitrust Approvals are or may be required (or if additional information is necessary for Gilead to make such a determination), Gilead shall so notify the Company in writing (together with the delivery of an Additional Shares Purchase Notice, if applicable) and the parties shall provide each other promptly with information and assistance as may be reasonably necessary and use reasonable efforts, in each case, promptly to obtain all required Antitrust Approvals for the consummation of the applicable Closing and the transactions contemplated thereby and shall keep each other apprised of the status of any communications with, and any inquiries or requests for information from, the Federal Trade Commission (“FTC”), Department of Justice (“DOJ”) and any other applicable Antitrust Authority and shall respond promptly to any such inquiry or request; provided that neither party shall be required to consent to the divestiture or other disposition of any of its or its Affiliates’ assets, consent to any other structural or conduct remedy or otherwise restrict or limit its or its Affiliates’ freedom of action. Each party shall cooperate with the other and use reasonable efforts to facilitate and expedite the identification and resolution of any such issues and, consequently, the expiration of any applicable waiting period under Antitrust Laws. Such reasonable efforts and cooperation shall include: (a) keeping each other promptly informed of all communications with and providing copies of all written communications, from and to any Antitrust Authority, and sharing drafts of written submissions to any Antitrust Authority in advance of submission and taking comments of the other into account in good faith; however, the parties may redact submissions for privilege and the parties also may request that distribution of submissions be limited to outside counsel only and (b) conferring with each other regarding contacts with and responses to, and permitting the other to participate in all meetings and video conferences or substantive telephone conversations with, to the extent not prohibited by, the FTC, DOJ or other any other Antitrust Authority; provided that subject to its undertakings and obligations under this Section 2.4 to take into consideration in good faith the Company’s views, suggestions and comments regarding the strategy to be pursued for obtaining all required Antitrust Approvals, Gilead shall lead the strategy to obtain all such approvals, and if there is a dispute between Gilead and the Company, the final determination as to the appropriate course of action shall be made by Gilead. Each Party shall be responsible for its own costs and expenses associated with obtaining any required Antitrust Approvals, but (i) Gilead shall be responsible for payment of all fees to any Antitrust Authority with respect to antitrust filings made pursuant to the HSR Act or foreign antitrust law, and (ii) [***].
2.5. Initial Closing Deliverables.
2.5.1 At the Initial Closing, the Company will deliver to Gilead:
(a) | a duly executed Cross-Receipt with respect to the Initial Shares; |
(b) | a duly executed Investor Rights Agreement; |
(c) | a certificate in form and substance reasonably satisfactory to Gilead and duly executed on behalf of the Company by an authorized officer of the Company, certifying that the conditions to the Initial Closing set forth in Sections 2.7.1(a) and (b) of this Agreement have been fulfilled; and |
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(d) | a certificate of the secretary of the Company dated as of the Initial Closing Date certifying that attached thereto is a true and complete copy of all resolutions adopted by the Company’s board of directors authorizing the execution, delivery and performance of this Agreement and the transactions contemplated herein and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby as of the Initial Closing Date. |
2.5.2 At the Initial Closing, Gilead will deliver to the Company:
(a) | a duly executed Cross-Receipt with respect to the Initial Shares; |
(b) | a duly executed Investor Rights Agreement; and |
(c) | a certificate in form and substance reasonably satisfactory to the Company and duly executed on behalf of Gilead by an authorized officer of Gilead, certifying that the conditions to the Closing set forth in Sections 2.7.2(a) and (b) of this Agreement have been fulfilled. |
2.6. Second Closing, Third Closing, Fourth Closing and Additional Closing Deliverables.
2.6.1 At the Second Closing, Third Closing, Fourth Closing and each Additional Closing, the Company will deliver to Gilead:
(a) | a duly executed Cross-Receipt with respect to the applicable Shares; |
(b) | a certificate in form and substance reasonably satisfactory to Gilead and duly executed on behalf of the Company by an authorized officer of the Company, certifying that the conditions to such Closing set forth in Sections 2.8.1(a) and (b) of this Agreement have been fulfilled; |
(c) | evidence that the Company has delivered to the Transfer Agent irrevocable written instructions to issue the applicable Shares to Gilead in a form and substance acceptable to the Transfer Agent; and |
(d) | a certificate of the secretary of the Company dated as of such Closing certifying that attached thereto is a true and complete copy of all resolutions adopted by the Company’s board of directors authorizing the execution, delivery and performance of this Agreement and the transactions contemplated herein and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby as of the such Closing Date. |
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2.6.2 At the Second Closing, Third Closing, Fourth Closing and each Additional Closing, Gilead will deliver to the Company:
(a) | a duly-executed Cross-Receipt with respect to the applicable Shares; and |
(b) | a certificate in form and substance reasonably satisfactory to the Company and duly executed on behalf of Gilead by an authorized officer of Gilead, certifying that the conditions to such Closing set forth in Sections 2.8.2(a) and (b) of this Agreement have been fulfilled. |
2.7. Conditions to the Initial Closing.
2.7.1 The obligations of Gilead hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived:
(a) | The representations and warranties of the Company set forth in Section 3.1 hereof shall be true and correct as of the Initial Closing Date in all material respects. |
(b) | The Company shall have complied in all material respects with its covenants hereunder as of the Initial Closing Date. |
(c) | The Company shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing). |
(d) | The Company shall have duly executed and delivered the Investor Rights Agreement. |
(e) | All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained. |
(f) | The issuance and sale of the Initial Shares shall not result in a breach of Law. |
(g) | All closing deliverables as required under Section 2.5.1 shall have been delivered by the Company to Gilead. |
(h) | No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Initial Closing, shall have been instituted or be pending before any Governmental Authority. |
(i) | The Company shall have delivered to the Transfer Agent irrevocable written instructions to issue the Initial Shares to Gilead in a form and substance acceptable to the Transfer Agent. |
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(j) | NYSE shall have raised no objection to the consummation of the transactions contemplated by this Agreement (including the issuance of Additional Shares hereunder), the Investor Rights Agreement and the Collaboration Agreement in the absence of stockholder approval of such transactions. |
2.7.2 The obligations of the Company hereunder in connection with the Initial Closing are subject to the following conditions being satisfied or waived:
(a) | The representations and warranties of Gilead set forth in Section 3.2 hereof shall be true and correct as of the Initial Closing Date in all material respects. |
(b) | Gilead shall have duly executed and delivered the Collaboration Agreement, such agreement shall continue to be in full force and effect and the Effective Date (under and as defined therein) shall have occurred (or shall occur simultaneously with the Initial Closing). |
(c) | Gilead shall have duly executed and delivered the Investor Rights Agreement. |
(d) | All required Antitrust Approvals under the HSR Act for Gilead’s purchase of the Initial Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained. |
(e) | The issuance and sale of the Initial Shares shall not result in a breach of Law. |
(f) | All closing deliverables required under Section 2.5.2 shall have been delivered by Gilead to the Company. |
(g) | No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, shall have been instituted or be pending before any Governmental Authority. |
2.8. Conditions to the Second Closing, Third Closing, Fourth Closing and each Additional Closing.
2.8.1 The obligations of Gilead hereunder in connection with the Second Closing, Third Closing, Fourth Closing and each Additional Closing are subject to the following conditions being satisfied or waived:
(a) | The representations and warranties of the Company set forth in Sections 3.1.1(Organization and Qualification), 3.1.2 (Authorization; Enforcement), 3.1.3 (No Conflicts; Filings, Consents and Approvals), 3.1.4 (Issuance of Shares), 3.1.5 (Material Changes; Undisclosed Events, Liabilities or Developments), 3.1.6 (No General Solicitation), 3.1.7 (Private Placement) and 3.1.21 (No Integration) hereof, and, with respect to the Fourth Closing, 3.1.10(e) (Capitalization) shall be true and correct as of such Closing Date in all material respects. |
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(b) | The Company shall have complied in all material respects with its covenants hereunder as of such Closing Date. |
(c) | Each of the Collaboration Agreement (without regard to any partial termination thereunder) and the Investor Rights Agreement shall continue to be in full force and effect. |
(d) | All required Antitrust Approvals for Gilead’s purchase of the applicable Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained. |
(e) | The issuance and sale of the applicable Shares shall not result in a breach of Law. |
(f) | All closing deliverables as required under Section 2.6.1 shall have been delivered by the Company to Gilead. |
(g) | No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, shall have been instituted or be pending before any Governmental Authority. |
(h) | With respect to the Fourth Closing and any Additional Closing, NYSE shall have raised no objection to the consummation of the transactions contemplated by this Agreement (including the issuance of Additional Shares hereunder), the Investor Rights Agreement and the Collaboration Agreement in the absence of stockholder approval of such transactions. |
2.8.2 The obligations of the Company hereunder in connection with the Second Closing, Third Closing, Fourth Closing and each Additional Closing are subject to the following conditions being satisfied or waived:
(a) | The representations and warranties of Gilead set forth in Section 3.2 hereof shall be true and correct as of such Closing Date in all material respects. |
(b) | Gilead shall have complied in all material respects with its covenants hereunder as of such Closing Date. |
(c) | Each of the Collaboration Agreement (without regard to any partial termination thereunder) and the Investor Rights Agreement shall continue to be in full force and effect. |
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(d) | All required Antitrust Approvals for Gilead’s purchase of the applicable Shares and the transactions contemplated by the Collaboration Agreement and the Investor Rights Agreement shall have been obtained. |
(e) | The issuance and sale of the applicable Shares shall not result in a breach of Law. |
(f) | All closing deliverables required under Section 2.6.2 shall have been delivered by Gilead to the Company. |
(g) | No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the applicable Closing, shall have been instituted or be pending before any Governmental Authority. |
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to Gilead as of the date hereof, as of the Initial Closing Date and, with respect to the representations and warranties set forth in Sections 3.1.1, 3.1.2, 3.1.3, 3.1.4, 3.1.5, 3.1.6, 3.1.7 and 3.1.21 also as of the Second Closing Date, Third Closing Date, Fourth Closing Date and any Additional Closing Date, and, with respect to the representations and warranties set forth in Section 3.10(e) also as of the Fourth Closing Date (except, in each case, for the representations and warranties that speak as of a specific date, which shall be made as of such date).
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3.1.8 SEC Reports, Financial Statements.
(a) | The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act. The Company has delivered or made available (by filing on the Commission’s electronic data gathering and retrieval system (XXXXX)) to Gilead complete copies of its SEC Reports since March 14, 2018. As of its date, each SEC Report complied in all material respects with the requirements of the Exchange Act, and other Laws applicable to it, and, as of its date, such SEC Report did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. No inquiries or any other investigation conducted by or on behalf of Gilead or its representatives or counsel will modify, amend or affect Gilead’s right to rely on the truth, accuracy and completeness of the SEC Reports and the Company’s representations and warranties contained in this Agreement. |
(b) | The financial statements, together with the related notes and schedules, of the Company included in the SEC Reports comply as to form in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission and all other applicable rules and regulations with respect thereto. Such financial statements, together with the related notes and schedules, have been prepared in accordance with U.S. Generally Accepted Accounting Principles (“GAAP”) applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements), and fairly present in all material respects the financial condition of the Company and its consolidated subsidiaries as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). |
(c) | The Common Stock is listed on NYSE, and the Company has taken no action designed to, or that to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from NYSE. As of the date of this Agreement, the Company has not received any notification that, and has no knowledge that, the Commission or NYSE is contemplating terminating such registration or listing. |
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3.1.10 Capitalization and Voting Rights.
(a) | The authorized capital of the Company as of the date hereof consists of: (i) 400,000,000 shares of Common Stock of which, as of May 22, 2020, (A) 46,055,395 shares were issued and outstanding, (B) 13,156,900 shares were reserved for issuance pursuant to the Company’s equity incentive plans (including its stock purchase plan) described in the SEC Reports, and (C) 7,087,512 shares were issuable upon the exercise of stock options outstanding, and (ii) 10,000,000 shares of designated preferred stock, of which no shares are issued and outstanding as of the date of this Agreement. All of the issued and outstanding shares of Common Stock (1) have been duly authorized and validly issued, (2) are fully paid and non-assessable and (3) were issued in compliance with all applicable federal and state securities Laws and not in violation of any preemptive rights. |
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(b) | All of the authorized shares of Common Stock are entitled to one (1) vote per share. |
(c) | Except as described or referred to in the SEC Reports, as of the date hereof, there were not: (i) any outstanding equity securities, options, warrants, rights (including conversion or preemptive rights) or other agreements pursuant to which the Company is or may become obligated to issue, sell or repurchase any shares of its capital stock or any other securities of the Company other than equity securities that may have been granted pursuant to its equity incentive plans, which plans are described in the SEC Reports; or (ii) any restrictions on the transfer of capital stock of the Company other than pursuant to federal or state securities Laws or as set forth in this Agreement. |
(d) | The Company is not a party to or subject to any agreement or understanding relating to the voting of shares of capital stock of the Company or the giving of written consents by a stockholder or director of the Company. |
(e) | The authorized capital of the Company as of the date hereof consists of (i) 400,000,000 shares of Common Stock of which, as of January 18, 2024, (A) 75,519,859 shares were issued and outstanding, (B) 9,368,303 shares were reserved for issuance pursuant to the Company’s equity incentive plans (including its stock purchase plan) described in the SEC Reports, and (C) 13,461,424 shares were issuable upon the exercise of stock options outstanding (D) 1,546,921 shares were issuable upon the vesting of outstanding restricted stock units and (ii) 10,000,000 shares of designated preferred stock, of which no shares are issued and outstanding as of the date of this Agreement. All of the issued and outstanding shares of Common Stock (1) have been duly authorized and validly issued, (2) are fully paid and non-assessable and (3) were issued in compliance with all applicable federal and state securities Laws and not in violation of any preemptive rights. |
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(a) | The Company represents that, neither the Company nor any of its subsidiaries (collectively, the “Entity”) or any director, officer, employee, agent, affiliate or representative of the Entity, is a government, individual, or entity (an “Individual”) that is, or is owned or controlled by an Individual that is: |
a. | the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authorities, including, without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign Sanctions Evaders List (as amended, collectively, “Sanctions”), nor |
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b. | located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory (including, without limitation, Cuba, Iran, North Korea, Sudan, Syria and the Crimea Region of the Ukraine) (the “Sanctioned Countries”)). |
(b) | The Entity represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Individual: |
a. | to fund or facilitate any activities or business of or with any Individual or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or is a Sanctioned Country; or |
b. | in any other manner that will result in a violation of Sanctions by any Individual (including any Individual participating in the offer and sale of the Shares, whether as underwriter, advisor, investor or otherwise). |
(c) | The Entity represents and covenants that for the past five (5) years, it has not engaged in, is not now engaging in, and will not engage in, any dealings or transactions with any Individual, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions or is or was a Sanctioned Country. |
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3.2. Representations and Warranties of Gilead. Gilead hereby represents and warrants as of the date hereof and as of each Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate as of such date):
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THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS, OR UNLESS OFFERED, SOLD, PLEDGED, HYPOTHECATED OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS. THE COMPANY SHALL BE ENTITLED TO REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED TO THE EXTENT THAT SUCH OPINION IS REQUIRED PURSUANT TO THAT CERTAIN COMMON STOCK PURCHASE AGREEMENT UNDER WHICH THE SECURITIES WERE ISSUED.
ARTICLE 4
OTHER AGREEMENTS OF THE PARTIES
4.1. Confidentiality. Gilead covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company, Gilead will maintain the confidentiality of the existence and terms of this transaction.
4.2. Reservation of Shares. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times during the Exercise Period, free of preemptive rights, a sufficient number of Shares for the purpose of enabling the Company to issue Shares (including the Second Closing Shares, Third Closing Shares, Fourth Closing Shares and Additional Shares) pursuant to this Agreement.
4.3. Survival. The representations, warranties, covenants and agreements contained in this Agreement shall survive the Closing of the transactions contemplated by this Agreement for the applicable statute of limitations.
4.4. Legend Removal. The Company shall direct its transfer agent to remove the transfer restriction set forth in Section 3.2.8 (Legends) applicable to any portion of the Shares upon the written request of Gilead, within two (2) Business Days of the Company’s receipt of such request, at such time as such portion of Shares (a) are being sold by Gilead pursuant to Commission Rule 144 or (b) may be transferred without the requirement that the Company be in compliance with the public information requirements and without volume or manner-of-sale restrictions under Commission Rule 144. Gilead, or if the Company’s transfer agent requires, the Company, shall provide such opinions of counsel reasonably requested by the Company’s transfer agent in connection with the removal of legends pursuant to this Section 4.4.
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4.5. Book Entry Statement. The Company hereby agrees to deliver to Gilead a book entry statement from the Company’s transfer agent showing the applicable Shares registered in the name of Gilead within three (3) Business Days following each Closing.
4.6. Capitalization Table. During the Exercise Period, as promptly as practicable following Gilead’s written request and in any event within five (5) Business Days, the Company shall provide Gilead with a summary capitalization table setting forth the then-current Company Capitalization.
4.7. Notice of Designated Events. If, during the Exercise Period, (a) the Company enters into a definitive agreement with any third party with respect to a merger, sale of assets or securities or other business combination as a result of which such third party would succeed to more than 50% of the voting securities or assets of the Company, (b) a third party, other than Gilead, any of its Affiliates or any other party acting in concert with Gilead or any of its Affiliates, has made a proposal with respect to a merger, sale of assets or securities or other business combination as a result of which such third party would succeed to more than 50% of the voting securities or assets of the Company, and such proposal has been publicly supported or recommended by the Board, (c) the Board determines to commence a process to seek a potential sale of the Company or all or substantially all of its assets, or (d) any bona fide Person (other than Gilead or any Affiliates of Gilead, or any other party acting in concert with Gilead or any Affiliates of Gilead) publicly discloses any plans, determined as serious by the Board to further pursue it, to make such a bid (each ((a) through (d)), a “Designated Event”), the Company shall provide written notice of such Designated Event (a “Designated Event Notice”) to Gilead’s [***], in lieu of the parties specified in Section 5.3 (Notices), at least [***]. For the avoidance of doubt, Gilead may deliver an Additional Shares Purchase Notice at any time following the public announcement of a Designated Event, and the Additional Shares Purchase Price with respect to the Additional Shares specified in any such Additional Shares Purchase Notice shall be determined based on the date Gilead delivers such Additional Shares Purchase Notice to the Company.
4.8. Due Diligence. With respect to each proposed purchase of Additional Shares, upon Gilead’s request, including any such request made prior to delivery of an Additional Shares Purchase Notice, the Company shall cooperate with any due diligence review conducted by Gilead or its representatives in connection with such proposed purchase of Additional Shares, including, without limitation, providing information and making available documents and senior corporate officers, during regular business hours and at the Company’s principal offices, as Gilead may request.
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5.1. Fees and Expenses. Each party shall pay all fees and expenses that it incurs (including on account of any of their respective advisers, counsel, accountants and other experts) in connection with the negotiation, preparation, execution and delivery of this Agreement, including all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company), stamp taxes and other taxes and duties levied in connection with the delivery of any Shares to Gilead (collectively, the “Transaction Expenses”).
5.2. Entire Agreement. This Agreement, the Collaboration Agreement and the Investor Rights Agreement contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.3. Notices. Any notice or other communication required or permitted to be given under this Agreement shall be in writing (whether or not specifically stated), shall specifically refer to this Agreement, and shall be addressed to the appropriate party at the address specified below or such other address as may be specified by such party in writing in accordance with this Section 5.3, and shall be deemed to have been given for all purposes (a) when received, if hand-delivered, sent by a reputable international expedited delivery service (with receipt confirmed), or (b) five (5) Business Days after mailing, if mailed by first class certified or registered mail, postage prepaid, return receipt requested. This Section 5.3 is not intended to govern the day-to-day business communications necessary between the Parties in performing their obligations under the terms of this Agreement (for which e-mail or other methods of communications shall suffice).
If to the Company: | Arcus Biosciences, Inc. |
Attention: General Counsel 0000 Xxxxx Xxxx Xxx Xxxxxxx, XX 00000 | |
With a copy to (which shall not constitute notice): | Xxxxxx LLP |
Attention: Xxxxxxx Xxxxxxxx 0 Xxxxxxxxxxx Xxx, 00xx Xxxxx Xxx Xxxxxxxxx, XX 00000 | |
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If to Gilead: |
Attention: Alliance Management 000 Xxxxxxxx Xxxxx Xxxxxx Xxxx, XX 00000 |
With a copy to (which shall not constitute notice): |
Attention: General Counsel 000 Xxxxxxxx Xxxxx Xxxxxx Xxxx, XX 00000
Xxxxxxxxx & Xxxxxxx LLP Attention: Xxx X. Xxxx, Esq. Salesforce Tower Xxx Xxxxxxxxx, XX 00000-2533 |
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5.4. Amendments; Waivers. No subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the parties hereto unless reduced to writing and signed by an authorized officer of each party. Any delay in enforcing a party’s rights under this Agreement or any waiver as to a particular default or other matter shall not constitute a waiver of such party’s rights to the future enforcement of its rights under this Agreement, except with respect to an express written and signed waiver relating to a particular matter for a particular period of time.
5.5. Termination. This Agreement shall simultaneously and automatically terminate in the event that (a) the Collaboration Agreement terminates in its entirety for any reason or (b) the Company consummates any merger, consolidation or similar transaction, unless immediately following the consummation of such transaction, the stockholders of the Company immediately prior to the consummation of such transaction continue to hold, as a result of their holding of outstanding Common Stock and other securities entitled to vote for the election of directors of the Company immediately prior to the consummation of such transaction, in aggregate more than 50% of the outstanding Common Stock and other securities entitled to vote for the election of directors of the surviving or resulting entity in such transaction. In addition, after the Fourth Closing, Gilead may terminate this Agreement upon [***] days’ prior written notice to the Company. If not earlier terminated, this Agreement shall automatically terminate upon the later of (a) the expiration of the Exercise Period and (b) the occurrence of all Additional Closings with respect to sales of Additional Shares under any Additional Shares Purchase Notice(s) made and duly given on or prior to the expiration of the Exercise Period.
5.6. Construction; Headings. The terms “includes,” “including,” “include” and derivative forms of them shall be deemed followed by the phrase “without limitation” (regardless of whether it is actually written (and drawing no implication from the actual inclusion of such phrase in some instances after such terms but not others)) and the term “or” has the inclusive meaning represented by the phrase “and/or” (regardless of whether it is actually written (and drawing no implication from the actual use of the phrase “and/or” in some instances but not in others)). Unless specified to the contrary, references to Articles or Sections shall refer to the particular Articles or Sections of or to this Agreement. The word “day,” “quarter” or “year” (and derivatives thereof, e.g., “quarterly”) shall mean a calendar day, calendar quarter or calendar year unless otherwise specified. The word “hereof,” “herein,” “hereby” and derivative or similar word refers to this Agreement. The words “will” and “shall” shall have the same obligatory meaning. Provisions that require that a party or parties hereunder “agree,” “consent” or “approve” or the like shall require that such agreement, consent or approval be specific and in writing, whether by written agreement, letter or otherwise. Words of any gender include the other gender. Words using the singular or plural number also include the plural or singular number, respectively. References to any specific law or article, section or other division thereof, shall be deemed to include the then-current amendments or any replacement law thereto, and any rules and regulations promulgated thereunder. All dollar-denominated amounts herein are in United States dollars. This Agreement has been prepared jointly and shall not be strictly construed against either party. Ambiguities, if any, in this Agreement shall not be construed against either party, irrespective of which party may be deemed to have authored the ambiguous provision. The headings of each Article and Section in this Agreement have been inserted for convenience of reference only and are not intended to limit or expand on the meaning of the language contained in the particular Article or Section.
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5.7. Further Assurances. Each party agrees to execute, acknowledge and deliver such further instruments, and to do all such other acts, as may be necessary or appropriate in order to carry out the purposes and intent of this Agreement.
5.8. Successors and Assigns. This Agreement may not be assigned by a party hereto without the prior written consent of the Company or Gilead, as applicable, provided, however, that Gilead may assign its rights and delegate its duties hereunder in whole or in part to an Affiliate without the prior written consent of the Company, provided such assignee agrees in writing to be bound by the provisions hereof that apply to Gilead. The provisions 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 permitted successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
5.9. Third Party Beneficiaries. This Agreement is not intended to and shall not be construed to give any third party any interest or rights (including any third party beneficiary rights) with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
5.10. Governing Law. This Agreement shall be governed by and construed under the substantive laws of the State of New York, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction.
5.11. Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of Gilead and the Company will be entitled to specific performance under this Agreement. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in this Agreement and hereby agree to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would be adequate.
5.12. WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
5.13. Attorneys’ Fees. In the event that any action is instituted under or in relation to this Agreement, including without limitation to enforce any provision in this Agreement, each party shall bear its own fees, costs and expenses of enforcing any right of such party under or with respect to this Agreement.
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5.14. Survival. The representations and warranties contained herein shall survive the Closings and the delivery of the Shares and any termination of this Agreement.
5.15. Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
5.16. Severability. If any one or more of the provisions of this Agreement is held to be invalid or unenforceable by an arbitrator or by any court of competent jurisdiction from which no appeal can be or is taken, the provision shall be considered severed from this Agreement and shall not serve to invalidate any remaining provisions hereof. The parties shall make a good faith effort to replace any invalid or unenforceable provision with a valid and enforceable one such that the objectives contemplated by the parties when entering into this Agreement may be realized.
5.17. Investor Rights Agreement. For clarity, the parties agree and acknowledge that (a) this Third Amended and Restated Common Stock Purchase Agreement is the “Purchase Agreement” under and as defined in the Investor Rights Agreement and (b) the Second Closing Shares, Third Closing Shares and Fourth Closing Shares constitute Registrable Securities thereunder (subject to the limitations set forth in Section 1.1.46(a) through (c) thereof).
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amended and Restated Common Stock Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Arcus Biosciences, Inc. | |||
By: | /s/ Xxxxx Xxxxx | ||
Name: | Xxxxx Xxxxx, Ph.D. | ||
Title: | Chief Executive Officer |
Gilead Sciences, Inc. | |||
| |||
By: | /s/ Xxxxxx X. Xxxxxxxxx | ||
Name: | Xxxxxx X. Xxxxxxxxx | ||
Title: | Chief Financial Officer |
Signature Page to Third Amended and Restated Common Stock Purchase Agreement
EXHIBIT A
Form of Cross-Receipt
Arcus Biosciences, Inc. (the “Company”) hereby acknowledges receipt from Gilead Sciences, Inc. on [ ], 20[__] of $[●], representing the full purchase price for [ ] shares of Common Stock, par value $0.0001 per share, of the Company, pursuant to that certain Third Amended and Restated Common Stock Purchase Agreement, dated as of [ ], 2024, by and between Gilead Sciences, Inc. and the Company.
ARCUS BIOSCIENCES, INC. | ||
By: | ||
Name: | ||
Title: |
Gilead Sciences, Inc. hereby acknowledges receipt from the Company on [ ], 20[__] of [ ] shares of Common Stock, par value $0.0001 per share, of the Company, delivered pursuant to that certain Third Amended and Restated Common Stock Purchase Agreement, dated as of [ ], 2024, by and between Gilead Sciences, Inc. and the Company.
GILEAD SCIENCES, INC. | ||
By: | ||
Name: | ||
Title: |