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EXHIBIT 10.4
XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D PREFERRED
STOCK PURCHASE AGREEMENT
This Second Addendum to Series D Preferred Stock Purchase Agreement (the
"Second Addendum") is made as of the 14th day of August, 2000 by and among Xcyte
Therapies, Inc., a Delaware corporation (the "Company"), the investors listed on
Exhibit A attached hereto (each an "Additional Purchaser" and together the
"Additional Purchasers"), and the existing holders of Series D Preferred Stock
listed on Exhibit B hereto (each an "Initial Series D Investor," together the
"Initial Series D Investors"). All capitalized terms not defined herein shall
have the meaning set forth in the Purchase Agreement (defined herein).
RECITALS
WHEREAS, on May 25, 2000, the Company entered into a Series D Preferred
Stock Purchase Agreement, as amended by the Addendum to Series D Preferred Stock
Purchase Agreement and Omnibus Amendment to Series B Financing Agreements dated
as of August 8, 2000 (the "Purchase Agreement") with the Initial Series D
Investors. The Purchase Agreement provides in Section 1.4 thereof that
additional investors may, under conditions set forth therein, become parties to
the Purchase Agreement at any time on or before August 8, 2000;
WHEREAS, pursuant to the terms of Section 6.8 of the Purchase Agreement,
the Purchase Agreement may be amended only with the written consent of the
Company and Initial Series D Investors holding at least a majority of the Stock
(or the Common Stock issuable upon conversion thereof);
WHEREAS, the Company, the Additional Purchasers, the undersigned Initial
Series D Investors, constituting the holders of sufficient shares of capital
stock of the Company to amend the Purchase Agreement, desire to amend certain
terms and conditions of the Purchase Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
AGREEMENT
In consideration of the mutual promises, covenants and conditions
hereinafter set forth, the parties hereto mutually agree as follows:
1. AUTHORIZATION AND SALE OF PREFERRED STOCK AND WARRANTS.
1.1 AUTHORIZATION OF PREFERRED STOCK. The Company has authorized
the issuance pursuant to this Second Addendum of up to 719,425 shares of its
Series D Preferred Stock (the "Additional Shares") and the issuance of Warrants
to purchase 80,575 shares of Common Stock (the "Warrants") to the Additional
Purchasers. The rights, preferences, privileges and restrictions of the Series D
Preferred Stock are as set forth in the Company's
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Amended and Restated Certificate of Incorporation attached as Exhibit C to the
Purchase Agreement (the "Restated Certificate").
1.2 SALE OF PREFERRED STOCK AND WARRANTS. Subject to the terms
and conditions hereof, at the Closing (as defined in Section 2.1 hereof) the
Company will issue and sell to each Additional Purchaser, and each Additional
Purchaser severally agrees to purchase from the Company, that number of
Additional Shares at a cash purchase price of $2.78 per share of Series D
Preferred Stock and Warrants at a cash purchase price of $0.001 per share of
Common Stock specified opposite such Additional Purchaser's name on Exhibit A
hereto. Each of the Additional Purchasers, by their signatures hereto, shall
hereby (i) become parties to the Purchase Agreement, as amended by this Second
Addendum (ii) be considered a "Purchaser" for all purposes under the Purchase
Agreement, (iii) have all the rights and obligations of a Purchaser thereunder,
(iv) become parties to the Investors' Rights Agreement, as amended, and Voting
Agreement, as amended, (v) be considered a "Series D Investor" for all purposes
under the Investor Rights Agreement, as amended, and (vi) have all the rights
and obligations of an Investor thereunder. The Additional Shares, the Warrants
and the Common Stock issuable upon exercise of the Warrants (the "Warrant
Shares") acquired by the Additional Purchasers hereunder shall be considered
"Shares" for all purposes under the Purchase Agreement, as amended.
2. CLOSING; DELIVERY.
2.1 CLOSING. The closing of the purchase and sale of the
Additional Shares and Warrants hereunder (the "Closing") shall be held at the
offices of Venture Law Group, Kirkland, Washington, at 10:00 a.m., on August 14,
2000, or at such other time and place as the Company and the Additional
Purchasers may agree.
2.2 DELIVERY. At the Closing, the Company will deliver to each
Additional Purchaser a certificate representing the number of Additional Shares
and Warrants set forth opposite such Additional Purchaser's name on Exhibit A,
against payment of the purchase price therefor by each Additional Purchaser by
check or wire transfer to the Company.
3. DISCLOSURE; CAPITALIZATION.
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3.1 DISCLOSURE. Each Additional Purchaser hereby acknowledges
receipt of the Purchase Agreement and the exhibits thereto. The Company affirms
to each Additional Purchaser that:
(i) The representations and warranties of the Company set
forth in Section 2 of the Purchase Agreement were true and accurate when made;
(ii) Those representations and warranties, which are
incorporated herein by this reference and made a part hereof, remain true and
accurate in all material respects as of the date hereof, except (A) for changes
resulting from the transactions contemplated in the Purchase Agreement and (B)
as set forth in the Schedule of Exceptions to Representations and Warranties
attached hereto as Exhibit D.
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(iii) The conditions to closing set forth in Section 4 of
the Purchase Agreement and in Section 5 hereof have been satisfied, provided
that the conditions set forth in Section 4.1 of the Purchase Agreement shall
include references to changes in the Company's representations and warranties
and the Company's status, respectively, as set forth herein and in the Exhibits
attached hereto, and resulting from the consummation of the transactions
contemplated by the Purchase Agreement.
3.2 CAPITALIZATION. Immediately prior to the Closing, the
authorized capital of the Company shall consist of:
(i) Immediately prior to the Closing, the authorized
capital of the Company shall consist of: (a) 60,000,000 shares of Common Stock,
and (b) 28,909,976 shares of Preferred Stock (the "Preferred Stock"), of which
7,300,080 have been designated Series A Preferred Stock, 4,097,580 have been
designated Series B Preferred Stock, 7,212,316 have been designated Series C
Preferred Stock and 10,300,000 have been designated Series D Preferred Stock.
Immediately prior to the Closing, 5,965,234 shares of Common Stock, 6,860,512
shares of Series A Preferred Stock, warrants to purchase 439,568 shares of
Series A Preferred Stock, 3,903,080 shares of Series B Preferred Stock, and
warrants to purchase 194,500 shares of Series B Preferred Stock, 7,185,630
shares of Series C Preferred Stock, warrants to purchase 26,686 shares of Series
C Preferred Stock and 9,390,400 shares of Series D Preferred Stock will be
outstanding.
(ii) Except as set forth in this Agreement and the
exhibits thereto, there are no outstanding options, warrants, rights (including
conversion or preemptive rights) or agreements for the purchase or acquisition
from the Company of any shares of its capital stock except that the Company has
reserved (a) the Shares for issuance at Closing, (b) the Common Stock issuable
upon conversion of the Preferred Stock, (c) 2,500,000 shares of Common Stock
reserved for issuance pursuant to a stock option plan adopted by the Company of
which options to purchase 1,037,453 shares have been granted and remain
outstanding, with 1,374,122 shares remaining for grant (d) 898,150 shares of
Common Stock reserved for issuance to scientific founders upon the achievement
of certain milestones, (e) 157,890 shares of Common Stock reserved for issuance
to ▇▇▇▇ June or his assignees upon the Company's acquisition of certain future
technology and (f) the Warrants to purchase 1,051,712 shares of Common Stock
issued pursuant to the Purchase Agreement, as amended.
(iii) Based in part upon the representations of each
Purchaser in this Second Addendum and subject to the provisions of Section 2.5
of the Purchase Agreement, the Stock (and the Common Stock issuable upon
conversion thereof) has been issued or will be issued in compliance with all
applicable federal and state securities laws.
4. REPRESENTATIONS AND WARRANTIES OF ADDITIONAL PURCHASERS AND INITIAL
SERIES D INVESTORS. Each Additional Purchaser and Initial Series D Investor,
severally and not jointly, acknowledges that such Additional Purchaser has
reviewed the representations and warranties set forth in Section 3 of the
Purchase Agreement and agrees with the Company that such representations and
warranties, which are incorporated herein by this reference and made a part
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hereof, are true and correct as of the date hereof as they relate to such
Additional Purchaser's purchase of the Additional Shares and Warrants hereunder.
5. CONDITIONS TO ADDITIONAL PURCHASERS' OBLIGATIONS AT CLOSING. The
obligation of each Additional Purchaser to purchase the Additional Shares at the
Closing is subject to the fulfillment to such Additional Purchaser's
satisfaction at or prior to the Closing of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES CORRECT; PERFORMANCE OF
OBLIGATIONS. The representations and warranties made by the Company in Section 3
hereof shall be true and correct when made, and shall be true and correct on the
date of the Closing with the same force and effect as if they had been made on
and as of said date, subject to changes contemplated by this Second Addendum;
and the Company shall have performed all obligations and conditions herein
required to be performed or observed by it at or prior to the Closing.
5.2 CONSENTS AND WAIVERS. The Company shall have obtained any and
all consents and waivers necessary or appropriate for consummation of the
transactions contemplated by this Second Addendum.
5.3 LEGAL OPINION. Upon request, each of the Additional
Purchasers will be entitled to receive from Venture Law Group, legal counsel for
the Company, a legal opinion addressed to the Additional Purchasers
substantially in the form attached hereto as Exhibit E.
6. CONDITIONS TO COMPANY'S OBLIGATIONS AT CLOSING. The obligations of
the Company under Sections 1.1 and 1.2 of this Second Addendum are subject to
the fulfillment at or before the Closing of each of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Additional Purchaser and Initial Series D Investor contained
in Section 4 hereof shall be true at the Closing.
6.2 CONSENTS AND WAIVERS. The Company shall have obtained any and
all consents and waivers necessary or appropriate for the Purchasers to become
parties to the Investor Rights Agreement for the consummation of the
transactions contemplated by this Second Addendum.
7. AMENDMENT TO STOCK PURCHASE AGREEMENT. Section 1.4 of the Purchase
Agreement is hereby amended to read in its entirety as follows:
"1.4 Additional Closings. If the full number of Series D
Preferred Stock of the Company is not sold at the Closing, the Company
shall have the right, at any time prior to August 18, 2000 (the
"Subsequent Closing Date"), to sell the remaining authorized but
unissued shares of Series D Preferred Stock to one or more additional
purchasers as determined by the Company, or to any Purchaser hereunder
who wishes to acquire additional shares of Series D Preferred Stock at
the price and on the terms set forth herein, provided that any
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such additional purchaser shall be required to execute an Second
Addendum Agreement substantially in the form attached hereto as Exhibit
F. Any additional purchaser so acquiring shares of Series D Preferred
Stock shall be considered a "Purchaser" for purposes of this Agreement
and an "Investor" for the purposes of the Agreements (as defined below),
and any Series D Preferred Stock so acquired by such additional
purchaser shall be considered "Shares" for purposes of this Agreement
and all other agreements contemplated hereby."
8. MISCELLANEOUS.
8.1 INCORPORATION BY REFERENCE. The provisions set forth in
Section 6 of the Purchase Agreement (other than Section 6.6) are incorporated
herein by this reference and made a part hereof. Except as otherwise set forth
herein, the terms and conditions of the Purchase Agreement shall remain in full
force and effect notwithstanding the execution of this Agreement and are
incorporated in their entirety herein and made a part of this Second Addendum as
if fully set forth herein.
8.2 NOTICES. Any notice required or permitted by this Second
Addendum and/or the Agreements shall be in writing and shall be deemed
sufficient upon delivery, when delivered personally or sent by overnight courier
telegram or fax, or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed to
the party to be notified at such party's address or fax number (as set forth
below or in the Purchase Agreement or on Exhibit A hereto or thereto, or as
subsequently modified by written notice) and (a) if to the Company, with a copy
to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Venture Law Group, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, fax number (▇▇▇) ▇▇▇-▇▇▇▇ or (b) if to the Purchasers, with a
copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Aon Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, fax number (▇▇▇) ▇▇▇-▇▇▇▇.
8.3 COUNTERPARTS. This Second Addendum may be executed in any
number of counterparts, each of which may be executed by less than all of the
Additional Purchasers, each of which shall be enforceable against the parties
actually executing such counterparts, and all of which together shall constitute
one instrument.
[Signature page follows]
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The parties hereto have executed this Second Addendum as of the date
first set forth above.
XCYTE THERAPIES, INC.
By:
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Executive Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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ADDITIONAL PURCHASERS:
VECTOR FUND MANAGEMENT, L.P.
By:
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Name:
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(print)
Title:
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Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇, M.D.
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
MPM BIOVENTURES II, L.P.
By: MPM Asset Management II, L.P., its
General Partner
By: MPM Asset Management II LLC, its
General Partner
By:
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Name:
Title:
MPM BIOVENTURES II-QP, L.P.
By: MPM Asset Management II, L.P., its
General Partner
By: MPM Asset Management II LLC, its
General Partner
By:
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Name:
Title:
MPM BIOVENTURES GMBH & CO.
PARALLEL-BETEILIGUNGS KG
By: MPM Asset Management II, L.P., its
General Partner
By: MPM Asset Management II LLC, its
General Partner
By:
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Name:
Title:
MPM ASSET MANAGEMENT INVESTORS 2000 B LLC
By:
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Name:
Title:
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: Tredegar Investments
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
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▇▇▇▇ ▇▇▇▇▇
Address: c/o Little Stirrup Cay
Research Limited
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
ARCH VENTURE FUND III, L.P.
By:
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Name:
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(print)
Title:
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Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
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▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
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▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
DLJ CAPITAL CORP.
By:
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Name:
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(print)
Title:
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Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
DLJ FIRST ESC, L.P.
By:
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Name:
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(print)
Title:
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Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SPROUT CAPITAL VII, L.P.
By:
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Name:
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(print)
Title:
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Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
THE SPROUT CEO FUND, L.P.
By:
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Name:
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(print)
Title:
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Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
ARCH VENTURE FUND III, L.P.
By:
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Name:
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(print)
Title:
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Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
ALTA CALIFORNIA PARTNERS, L.P.
By:
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Name:
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(print)
Title:
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Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ EMBARCADERO PARTNERS, LLC
By:
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Name:
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(print)
Title:
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Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
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TGI FUND II, LC
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
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FALCON TECHNOLOGY PARTNERS, L.P.
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
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VULCAN VENTURES, INC.
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
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FLUKE CAPITAL MANAGEMENT, L.P.
Address: ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
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▇▇▇ ▇▇▇▇▇▇
Address: c/o Madrona Investment Group
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
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MGN OPPORTUNITY GROUP LLC
Address: The Norton Building
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
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▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Address: ▇▇▇▇ Construction Services
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
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▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
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OKI ENTERPRISES, LLC
Address: c/o ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
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INITIAL SERIES D INVESTORS:
------------------------------------
VLG INVESTMENTS LLC
Address: c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------
VLG ASSOCIATES 2000
Address: c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
27
INITIAL SERIES D INVESTORS:
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO XCYTE THERAPIES, INC.
SECOND ADDENDUM TO SERIES D STOCK PURCHASE AGREEMENT
28
EXHIBIT A
SCHEDULE OF ADDITIONAL PURCHASERS
NAME/ADDRESS AMOUNT INVESTED NUMBER OF SHARES NUMBER OF PURCHASE PRICE
WARRANT SHARES OF WARRANTS
VECTOR LATER-STAGE EQUITY FUND II, $500,000.38 179,856 20,144 $20.14
L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇, M.D.
VECTOR LATER-STAGE EQUITY FUND II $1,500,001.12 539,569 60,431 $60.44
(QP), L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇, M.D.
TOTAL $2,000,001.50 719,425 80,575 $80.58
29
EXHIBIT B
INITIAL SERIES D INVESTORS
INVESTOR NAME AND ADDRESS NUMBER OF SERIES D NUMBER OF WARRANT
PREFERRED SHARES SHARES
DLJ CAPITAL CORP. 6,475 725
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
DLJ FIRST ESC L.P. 32,374 3,625
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
SPROUT CAPITAL VII, L.P. 281,622 31,541
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
THE SPROUT CEO FUND, L.P. 3,270 366
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
ARCH VENTURE FUND III, L.P. 1,321,942 148,056
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
ALTA CALIFORNIA PARTNERS, L.P. 571,491 64,006
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
30
INVESTOR NAME AND ADDRESS NUMBER OF SERIES D NUMBER OF WARRANT
PREFERRED SHARES SHARES
ALTA EMBARCADERO
PARTNERS, LLC 13,056 1,462
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
TGI FUND II, LC 286,022 32,034
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ - ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇
FALCON TECHNOLOGY PARTNERS, L.P. 95,341 10,678
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
VULCAN VENTURES INC. 719,424 80,575
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
FLUKE CAPITAL MANAGEMENT, L.P. 89,928 10,071
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ 719,424 80,575
c/o Madrona Investment Group
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
31
INVESTOR NAME AND ADDRESS NUMBER OF SERIES D NUMBER OF WARRANT
PREFERRED SHARES SHARES
MGN OPPORTUNITY GROUP LLC
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Company
The Norton Building
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ 359,712 40,287
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. 36,000 4,032
▇▇▇▇ Construction Services
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ 89,928 10,071
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
OKI ENTERPRISES, LLC 359,712 40,287
c/o ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
VLG INVESTMENTS LLC 12,619 1,413
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
VLG ASSOCIATES 2000 1,770 198
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1,799 201
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MPM BIOVENTURES II, LP 320,719 35,921
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
32
INVESTOR NAME AND ADDRESS NUMBER OF SERIES D NUMBER OF WARRANT
PREFERRED SHARES SHARES
MPM BIOVENTURES II-QP, LP 2,905,900 325,460
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MPM BIOVENTURES GMBH & CO. 1,023,022 114,578
PARALLEL-BETEILIGUNGS KG
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MPM ASSET MANAGEMENT INVESTORS 2000 66,906 7,494
B LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ 17,986 2,014
Tredegar Investments
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ 17,986 2,014
Little Stirrup Cay Research Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ 17,986 2,014
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ 17,986 2,014
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TOTAL 9,390,400 1,051,712
33
EXHIBIT C
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
(SEE TAB NO. 31)
34
EXHIBIT D
SCHEDULE OF EXCEPTIONS
35
EXHIBIT E
FORM OF LEGAL OPINION
(See Tab No. 11