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EXHIBIT 10.15A
AMENDMENT TO
GOVERNANCE AGREEMENT
THIS AGREEMENT is entered into this 13th day of October 1997, by and
between Abgenix, Inc. ("Abgenix") and CELL GENESYS, INC. ("Cell Genesys").
WHEREAS the parties entered into the GOVERNANCE AGREEMENT (the "Original
Agreement").
WHEREAS the parties enter this Agreement to amend Sections 1, 2 and 6 of
the Original Agreement as set forth below.
NOW THEREFORE, the parties agree as follows:
1. Section 1. Section 1 of the Original Agreement shall be amended to add
a new Section 1.5 as follows:
"1.5 As to matters relating to nomination of directors by Cell Genesys
as provided in Section 1 of this Agreement Abgenix shall be entitled
to rely on the decisions of the Cell Genesys representatives on the
Abgenix Board of Directors at the time of such decision or in the
event there is no Cell Genesys representative serving as a director at
such time, then on the decision set forth in writing from the Chief
Executive Officer of Cell Genesys."
2. Section 2. Section 2 of the Original Agreement shall be amended in its
entirety to read as follows:
2. Change of Control of Cell Genesys.
2.1 It is the intent of the parties that, for so long as Cell Genesys
owns or controls at least a majority of the Abgenix Voting Stock, upon a Change
of Control of Cell Genesys (as defined in Section 2.3) (or if Abgenix is merged
with or into Cell Genesys in anticipation of such Change of Control of Cell
Genesys, then upon the closing of the merger of Abgenix with or into Cell
Genesys), then each share of Abgenix Voting Stock held by a director or employee
of Abgenix shall become subject to the provisions of Section 2.2, and each
option to acquire a share of Abgenix Voting Stock held by a director or employee
of Abgenix shall become subject to the provisions of Section 2.2. 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, if necessary. The provisions of Section 2 shall terminate after
Cell Genesys ceases to own or control at least a majority of the Abgenix Voting
Stock.
2.2 If an employee or director of Abgenix holding shares or options
issued at any time under the Abgenix stock plans has served as an employee or
director of Abgenix for one year or more as of the date of a
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Change of Control of Cell Genesys and following such Change of Control of Cell
Genesys the employee's or director's Continuous Status as an Employee or
Consultant (as defined in the Abgenix stock plans) terminates as a result of an
Involuntary Termination other than for Cause (as such terms are defined below in
Section 2.3) at any time within 24 months following such Change of Control of
Cell Genesys, then 100% of such employee's or director's shares and options
shall automatically be accelerated in full so as to become completely vested and
fully exercisable.
2.3 For purposes of Section 2 the terms set forth below shall have
the following definitions:
(a) "Change of Control" means the occurrence of any of the
following events:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of Cell Genesys representing 50% or more of the total
voting power represented by Cell Genesys' then outstanding voting securities; or
(ii) A change in the composition of the Board of Directors of
Cell Genesys as a result of which fewer than a majority of the directors are
"Incumbent Directors." "Incumbent Directors" shall mean directors who either (A)
are directors of Cell Genesys as of the date hereof, or (B) are elected, or
nominated for election, to the Board of Directors with the affirmative votes
(either by a specific vote or by approval of the proxy statement of Cell Genesys
in which such person is named as a nominee for election as a director without
objection to such nomination) of at least three-quarters of the Incumbent
Directors at the time of such election or nomination; or
(iii) The stockholders of Cell Genesys approve (x) a merger
or consolidation of Cell Genesys with any other corporation, other than a merger
or consolidation which would result in the voting securities of Cell Genesys
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or the entity that controls Cell Genesys or controls such
surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of Cell Genesys, such surviving entity or
the entity that controls Cell Genesys or controls such surviving entity
outstanding immediately after such merger or consolidation, or (y) the
stockholders of Cell Genesys approve a plan of complete liquidation of Cell
Genesys or an agreement for the sale or disposition by Cell Genesys of all or
substantially all Cell Genesys' assets.
(b) "Involuntary Termination" means (i) the elimination of an
employee's job position or a material reduction of the employee's job position
or a material reduction of the employee's duties, authority or responsibilities,
relative to the employee's job position or duties, authority or responsibilities
as in effect immediately prior to such reduction; (ii) a reduction by the
Company in the base salary of the employee as in effect immediately prior to
such reduction; (iii) the relocation of the employee to a facility or a location
more than 50 miles from the employee's then present location; or (iv) any other
involuntary termination of the employee's employment without cause except in the
event of disability.
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"Cause" means (i) any act of personal dishonesty, fraud or
misrepresentation taken by an employee in connection with his responsibilities
as an employee and intended to result in substantial gain or personal enrichment
of the employee at the expense of the Company; (ii) the employee's conviction of
a felony; (iii) improper disclosure of the Company's confidential or proprietary
information by the employee; or (iv) the employee's continued failure to
substantially perform his principal duties in a reasonable period of time after
receipt of written notice from the Company.
3. Section 6. Section 6 of the Original Agreement shall be amended and
restated automatically upon the effectiveness of a registration statement under
the Securities Act of 1933 for a public offering of Common Stock of Abgenix (an
"Initial Public Offering") in its entirety to read as follows:
6. Publicity. The parties acknowledge that it is their mutual interest
to coordinate, as appropriate, public relation and investor relation
communications. Each party further acknowledges that they have, or in
the future may have public company disclosure obligations. In
recognition of the above, and for so long as Cell Genesys owns or
controls at least a majority of the Abgenix Voting Stock, the
disclosing party will make reasonable efforts to allow the
nondisclosing party to review all disclosing party press releases and
public disclosures that relate to the nondisclosing party. If the
nondisclosing party objects to a proposed public disclosure by the
disclosing party that is not required by law or stock exchange
regulation, the parties shall discuss the matter in good faith.
Until an Initial Public Offering, Section 6 shall remain as set forth
in the Original Agreement.
4. Original Agreement. Except as set forth above, the remainder of the
Original Agreement shall remain in full force and effect and shall be binding on
all parties thereto.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first set forth above.
ABGENIX, INC. CELL GENESYS, INC.
By: [SIG] By: [SIG]
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Title: Title:
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