AMENDMENT #2
TO THE
WARRANT AGREEMENT AND
SHAREHOLDER AGREEMENT
This Amendment Agreement (the "Agreement") is made as of this ____
day of November, 1995, by and among Somatix Therapy Corporation, a Delaware
corporation (the "Company"), GeneSys Therapeutics Corporation, a California
corporation ("GeneSys") and Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx V, a California
limited partnership ("KPCB V").
WHEREAS, GeneSys and KPCB V entered into that certain Warrant
Agreement dated November 9, 1991 (the "Warrant Agreement") pursuant to which
GeneSys agreed to issue and sell and KPCB V agreed to purchase for the price of
One Thousand Dollars ($1000.00) warrants to purchase up to an aggregate of
993,740 shares of GeneSys Series B Preferred Stock (the "Warrant");
WHEREAS, on or about January 17, 1992, GeneSys became a wholly-owned
subsidiary of the Company, subject only to the exercise of the Warrant;
WHEREAS, by its terms, the Warrant is exercisable for shares of
Series B Preferred Stock of GeneSys (the "Shares") at any time from November 9,
1992 to November 9, 1994 at an exercise price of $2.0126 per share;
WHEREAS, the Company, GeneSys and KPCB V entered into a Shareholder
Agreement dated January 21, 1992 (the "Shareholder Agreement"), which agreement
sets forth certain rights and restrictions with regard the Shares including,
among other things, (i) a "Put Option" exercisable by KPCB V to exchange the
Shares received upon exercise of the Warrant for shares of the Company's Common
Stock based upon an exchange ratio of .35095 (subject to certain adjustments)
and (ii) the calculation of "Appreciation Currency" for purposes of determining
the price payable by KPCB V upon exercise of the Warrant;
WHEREAS, on or about November 7, 1994, the parties agreed to extend
the term of the Warrant Agreement; and
WHEREAS, the parties hereto wish to amend the Warrant Agreement to
extend the term of the Warrant upon the terms and conditions contained herein;
and
WHEREAS, the parties hereto wish to amend the Shareholder Agreement
to incorporate into the Shareholder Agreement the amendment to the Warrant
Agreement and the extension of the term of the Warrant upon the terms and
conditions contained herein.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Section 3 of the Warrant Agreement, as amended, is hereby amended
to extend the term of exercise of the Warrant for a period of one (1) year on a
quarterly basis until November 9, 1996, subject to earlier expiration upon
notice from the Company to the Warrantholder ten (10) days prior to the last day
of the quarters ended on February 9, 1996, May 9, 1996, August 9, 1996 and
November 9, 1996.
2. In consideration of the Company's agreement to extend the term of
the Warrant, and for other good and valuable consideration, receipt of which is
hereby acknowledged, KPCB V agrees that it will not offer, sell, contract to
sell, or grant any option to purchase or otherwise dispose (including, without
limitation, a distribution to KPCB V's limited partners) of any Common Stock, or
any securities convertible into or exchangeable for Common Stock, of the Company
(including, without limitation, Common Stock of the Company that may be deemed
to be beneficially owned by KPCB V in accordance with the rules and regulations
of the Securities Exchange Act of 1934 and Common Stock that may be issued upon
exercise of a stock option or warrant), or rights to acquire such Common Stock,
until November 9, 1996.
3. A new warrant and form of election to purchase Shares (the
"Replacement Warrant") shall be issued to KPCB V in exchange for the Warrant in
substantially the form set forth in Exhibit A attached hereto.
4. The Shareholder Agreement is hereby amended so that any reference
made therein to the "Warrant Agreement" is hereby replaced with "Amendment #2 to
the Warrant Agreement" and any reference made therein to "Warrant" is hereby
replaced with "Replacement Warrant."
5. This Amendment may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
6. Except as otherwise provided for herein, the existing terms of
the Shareholder Agreement and Warrant Agreement shall remain in full force and
effect.
2.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first above written.
SOMATIX THERAPY CORPORATION
By: XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx, Chairman, President and
Chief Executive Officer
GENESYS THERAPEUTICS CORPORATION
By:
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XXXXXXX XXXXXXX XXXXXXXX & XXXXX V
By:
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3.
