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CORIXA CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
MAY 10, 1996
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TABLE OF CONTENTS
Page
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1. GENERAL.............................................................2
1.1 Definitions.....................................................2
2. REGISTRATION; RESTRICTIONS ON TRANSFER..............................3
2.1 Restrictions on Transfer........................................3
2.2 Demand Registration.............................................4
2.3 Piggyback Registrations.........................................5
2.4 Form S-3 Registration...........................................7
2.5 Obligations of the Company......................................8
2.6 Termination of Registration Rights..............................9
2.7 Furnish Information.............................................9
2.8 Delay of Registration...........................................9
2.9 Indemnification.................................................9
2.10 Assignment of Registration Rights.............................11
2.11 Amendment of Registration Rights..............................12
2.12 Market Stand-Off Agreement....................................12
3. COVENANTS OF THE COMPANY...........................................12
3.1 Basic Financial Information and Reporting......................12
3.2 Inspection Rights..............................................13
3.3 Confidentiality of Records.....................................13
3.4 Reservation of Common Stock....................................14
3.5 Stock Vesting..................................................14
3.6 Proprietary Information and Inventions Agreement...............14
3.7 Termination of Covenants.......................................14
4. RIGHTS OF FIRST REFUSAL............................................14
4.1 Subsequent Offerings...........................................14
4.2 Exercise of Rights.............................................15
4.3 Issuance of Equity Securities to Other Person..................15
4.4 Termination of Rights of First Refusal.........................15
4.5 Effect of Failure to Participate...............................15
4.6 Transfer of Rights of First Refusal............................15
4.7 Excluded Securities............................................15
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5. MISCELLANEOUS......................................................16
5.1 Governing Law..................................................17
5.2 Survival.......................................................17
5.3 Successors and Assigns.........................................17
5.4 Separability...................................................17
5.5 Amendment and Waiver...........................................17
5.6 Delays or Omissions............................................18
5.7 Notices........................................................18
5.8 Attorneys' Fees................................................18
5.9 Titles and Subtitles...........................................18
5.10 Counterparts..................................................18
INDEX OF EXHIBITS
New Purchasers Exhibit A
Existing Investors Exhibit B
Existing Warrantholders Exhibit C
Addendum to the Amended and Restated Exhibit D
Investors' Rights Agreement
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EXHIBIT 10.6
CORIXA CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (this "Agreement")
is entered into as of the 10th day of May, 1996, by and among Corixa
Corporation, a Delaware corporation (the "Company"), the investors listed on
Exhibit A hereto, each of which is herein referred to as a "New Purchaser," the
holders of the outstanding shares of the Company's Series A Preferred Stock and
certain outstanding shares of the Company's Common Stock, respectively, listed
on Exhibit B hereto (the "Existing Investors"), and the holders of certain
outstanding warrants to purchase shares of the Company's Series A Preferred
Stock and Common Stock, respectively, listed on Exhibit C hereto (the "Existing
Warrantholders"). The New Purchasers, the Existing Investors and the Existing
Warrantholders shall sometimes be collectively referred to hereinafter as the
"Purchasers" and each individually as a "Purchaser."
RECITALS
WHEREAS, the Company has proposed to sell and issue up to One Million Six
Hundred Sixty-Six Thousand Six Hundred and Sixty-Seven (1,666,667) shares of its
Series B Preferred Stock pursuant to that certain Series B Preferred Stock
Purchase Agreement dated May 10, 1996 (the "Purchase Agreement");
WHEREAS, the Existing Investors hold shares of the Company's Series A
Preferred Stock issued pursuant to that certain Amended and Restated Series A
Preferred Stock and Warrant Purchase Agreement effective as of September 30,
1994 (the "Series A Agreement") and possess registration rights, information
rights, rights of first refusal, and other rights pursuant to that certain
Amended and Restated Investors' Rights Agreement dated as of December 2, 1994 by
and among the Company and the Existing Investors (the "Prior Rights Agreement");
and
WHEREAS, the Existing Investors are holders of at least fifty percent
(50%) of the Registrable Securities of the Company (as defined in the Prior
Rights Agreement) and, in order to induce the New Purchasers to enter into the
Purchase Agreement, the Company and the Existing Investors desire to terminate
the Prior Rights Agreement in its entirety and to accept the rights created
pursuant hereto in lieu of the rights granted to them under the Prior Rights
Agreement; and
WHEREAS, the Company wishes to sell to the New Purchasers shares of its
Series B Preferred Stock pursuant to the Purchase Agreement, and in connection
therewith, desires to grant certain rights to the New Purchasers set forth in
this Agreement, and the New Purchasers wish to receive such rights; and
WHEREAS, the Company also wishes to grant certain rights to the Existing
Warrantholders set forth in this Agreement, and the Existing Warrantholders wish
to receive such rights.
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NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement and in the
Purchase Agreement, the parties mutually agree as follows:
1. GENERAL
1.1 Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Holder" means any person owning of record Registrable Securities
that have not been sold to the public or any assignee of record of such
Registrable Securities in accordance with Section 2.10 hereof.
"Register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
"Registrable Securities" means (i) Common Stock of the Company
issued or issuable upon conversion of the Series A and Series B Preferred Stock,
(ii) 5,000,000 shares of Common Stock issued to certain of the Existing
Investors pursuant to certain Common Stock Purchase Agreements between the
Company and such Existing Investors dated September 30, 1994 (less 403,535
shares of such Common Stock subsequently provided to the Company by such
Existing Investors as a capital contribution to the Company), (iii) 1,363,545
shares of Common Stock of the Company issued or issuable upon exercise of
warrants to purchase Common Stock of the Company issued to certain Existing
Investors pursuant to the Series A Agreement, (iv) up to 500,000 shares of
Common Stock of the Company issued or issuable upon conversion of the Series A
Preferred Stock issued or issuable upon exercise of that certain warrant to be
issued to Vaxcel, Inc., (v) up to 117,362 shares of Common Stock of the Company
issued or issuable upon exercise of that certain warrant issued to Health
Science Properties, Inc., (vi) up to 250,000 shares of Common Stock of the
Company issued or issuable upon exercise of that certain warrant issued to
Southern Research Institute, and (vii) any Common Stock of the Company issued as
(or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, such above-described securities;
provided, however, for all purposes of Section 2.2 hereof, "Registrable
Securities" shall not include Common Stock of the Company issued or issuable
upon conversion of the Series B Preferred Stock. Additionally, for all purposes
of Section 2.3 hereof, "Registrable Securities" shall include (1) the 3,119,117
shares of Common Stock of the Company issued to certain of the Company's
founders pursuant to those Restricted Stock Purchase Agreements between the
Company and such founders dated September 23, 1994, and (2) the 330,883 shares
of Common Stock of the Company received by certain of the founders as a result
of the merger of Iasys Corporation and the Company. Notwithstanding the
foregoing, Registrable Securities shall not include any securities sold by a
person to the public either pursuant to a registration statement or Rule 144 or
sold in a private transaction in which the transferor's rights under Article II
of this Agreement are not assigned.
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"Registrable Securities then outstanding" shall be the number of
shares determined by calculating the total number of shares of the Company's
Common Stock that are Registrable Securities and either (1) are then issued and
outstanding or (2) are issuable pursuant to then exercisable or convertible
securities.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Form S-3" means such form under the Securities Act as in effect on
the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"SEC" or "Commission" means the Securities and Exchange
Commission.
2. REGISTRATION; RESTRICTIONS ON TRANSFER
2.1 Restrictions on Transfer.
2.1.1 Each Holder agrees not to make any disposition of all or any
portion of the Registrable Securities (or the Common Stock issuable upon the
conversion thereof) unless and until the transferee has agreed in writing for
the benefit of the Company to be bound by this Section 2.1, provided and to the
extent such Sections are then applicable, and:
2.1.1(i) There is then in effect a registration statement
under the Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
2.1.1(ii) Such Holder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (B) if
reasonably requested by the Company, such Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the
Securities Act.
2.1.1(iii) Notwithstanding the provisions of paragraphs (i)
and (ii) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by a Holder which is (A) a partnership to its partners
in accordance with partnership interests, or (B) to the Holder's family member
or trust for the benefit of an individual Holder, provided the transferee will
be subject to the terms of this Section 2.1 to the same extent as if he were an
original Holder hereunder.
2.1.2 Each certificate representing the Series A or Series B
Preferred Stock or Registrable Securities shall (unless otherwise permitted by
the provisions of the Agreement) be stamped or otherwise imprinted with a legend
substantially similar to the following (in addition to any legend required under
applicable state securities laws or as provided elsewhere in the Agreement):
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED ABSENT ANY EFFECTIVE REGISTRATION THEREOF UNDER SUCH
ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR
UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, SATISFACTORY
TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
2.1.3 The Company shall be obligated to reissue promptly unlegended
certificates at the request of any holder thereof if the holder shall have
obtained an opinion of counsel (which counsel may be counsel to the Company)
reasonably acceptable to the Company to the effect that the securities proposed
to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
2.1.4 Any legend endorsed on an instrument pursuant to applicable
state securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
2.2 Demand Registration.
2.2.1 Subject to the conditions of this Section 2.2, if the Company
shall receive at any time after one (1) year after the closing of the first
underwritten public offering of the Company's securities (the "Initial
Offering"), a written request from the Holders of at least forty percent (40%)
of the Registrable Securities then outstanding (the "Initiating Holders") that
the Company file a registration statement under the Securities Act covering the
registration of Registrable Securities having an aggregate offering price to the
public in excess of Five Million Dollars ($5,000,000), then the Company shall,
within thirty (30) days of the receipt thereof, give written notice of such
request to all Holders, and subject to the limitations of Section 2.2.2, use its
best efforts to effect, as soon as practicable, the registration under the
Securities Act of all Registrable Securities that the Holders request to be
registered.
2.2.2 If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 2.2
and the Company shall include such information in the written notice referred to
in Section 2.2.1. In such event, the right of any Holder to include his
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by the
Company (which underwriter or underwriters shall be reasonably acceptable to a
majority in
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interest of the Initiating Holders). Notwithstanding any other provision of this
Section 2.2, if the underwriter advises the Company in writing that marketing
factors require a limitation of the number of securities to be underwritten
(including Registrable Securities) then the Company shall so advise all Holders
of Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares that may be included in the underwriting shall be
allocated to the Holders of such Registrable Securities on a pro rata basis
based on the number of Registrable Securities held by all such Holders
(including the Initiating Holders). Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from the registration.
2.2.3 The Company shall not be obligated to effect more than two (2)
registrations pursuant to this Section 2.2.
2.2.4 Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 2.2, a
certificate signed by the Chairman of the Board stating that in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than one hundred twenty (120) days after receipt of the
request of the Initiating Holders; provided that such right to delay a request
shall be exercised by the Company no more than once in any one-year period.
2.2.5 All expenses incurred in connection with a registration
pursuant to this Section 2.2 (excluding underwriters' discounts and commissions,
which shall be paid by the selling Holders pro rata with respect to their
included shares), including without limitation all registration, filing,
qualification, printers' and accounting fees, fees and disbursements of counsel
for the Company, and the reasonable fees and disbursements of a single counsel
for the selling Holders, shall be borne by the Company; provided, however, that
the Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 2.2 if the registration request is
subsequently withdrawn by a majority of the Holders of the Registrable
Securities to be registered, unless the withdrawal of the registration request
results from either (a) intentional actions by the Company outside the normal
course of business that materially reduce the feasibility of the registration
proceeding, or (b) the discovery of information about the Company that was not
known at the time of the Initiating Holders' request made pursuant to Section
2.2.1, and such information materially reduces the feasibility of the
registration proceeding. If the Company is required to pay the registration
expenses pursuant to subparagraph (a) or (b) of this Section 2.2.5, then the
Holders shall not forfeit their rights pursuant to this Section 2.2 to a demand
registration.
2.3 Piggyback Registrations. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to employee benefit
plans and corporate
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reorganizations) and will afford each such Holder an opportunity to include in
such registration statement all or part of such Registrable Securities held by
such Holder. Each Holder desiring to include in any such registration statement
all or any part of the Registrable Securities held by it shall, within twenty
(20) days after receipt of the above-described notice from the Company, so
notify the Company in writing. Such notice shall state the intended method of
disposition of the Registrable Securities by such Holder. If a Holder decides
not to include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall nevertheless continue to have
the right to include any Registrable Securities in any subsequent registration
statement or registration statements as may be filed by the Company with respect
to offerings of its securities, all upon the terms and conditions set forth
herein.
2.3.1 Underwriting. If the registration statement under which the
Company gives notice under this Section 2.3 is for an underwritten offering, the
Company shall so advise the Holders of Registrable Securities. In such event,
the right of any such Holder to be included in a registration pursuant to this
Section 2.3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of the
Agreement, if the underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten, the number of
shares that may be included in the underwriting shall be allocated, first, to
the Company; second, to the Holders on a pro rata basis based on the total
number of Registrable Securities held by the Holders; and third, to any
stockholder of the Company (other than a Holder) on a pro rata basis. No such
reduction shall reduce the securities being offered by the Company for its own
account to be included in the registration and underwriting, except that in no
event shall the amount of securities of the selling Holders included in the
registration be reduced below twenty percent (20%) of the total amount of
securities included in such registration, unless such offering is the Initial
Offering and such Initial Offering does not include shares of any other selling
stockholders, in which event any or all of the Registrable Securities of the
Holders my be excluded in accordance with the immediately preceding sentence. In
no event will shares of any other selling stockholder be included in such
registration if doing so would reduce the number of shares which may be included
by Holders, unless not less than fifty percent (50%) of the Registrable
Securities that Holders have requested be sold in the offering have consented
thereto in writing.
2.3.2 Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with any registration under this Section 2.3
(excluding underwriters' discounts and commissions, which shall be paid by the
selling Holders pro rata with respect to their included shares), including
without limitation all registration, filing, qualification, printers' and
accounting fees, fees and disbursements of counsel to the Company, and the
reasonable fees and disbursements of a single counsel to the selling Holders
(which counsel shall also be counsel to the Company unless counsel to the
Company has a conflict of interest with respect to the representation of any
selling Holder or the underwriters object to the selling Holders representation
by Company counsel).
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2.4 Form S-3 Registration. In case the Company shall receive from any
Holder or Holders of at least twenty percent (20%) of Registrable Securities
then outstanding a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, the Company will:
2.4.1 Promptly give written notice of the proposed registration and
any related qualification or compliance to all other Holders of Registrable
Securities; and
2.4.2 As soon as practicable, use its best efforts to effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written
notice from the Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance pursuant
to this Section 2.4: (i) if Form S-3 is not available under the Securities Act
or rules or regulations promulgated thereunder for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the
Company entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than Five
Hundred Thousand Dollars ($500,000); (iii) if the Company shall furnish to the
Holders a certificate signed by the Chairman of the Board of Directors of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such Form S-3 Registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than one hundred twenty (120) days after
receipt of the request of the Holder or Holders under this Section 2.4, provided
that such right to defer the filing may be exercised by the Company no more than
once in any one-year period; (iv) if the Company has, within the twelve (12)
month period preceding the date of such request, already effected two (2)
registrations on Form S-3 for the Holders pursuant to this Section 2.4; (v) if
the Company has already effected five (5) registrations on Form S-3 for the
Holders pursuant to this Section 2.4; or (vi) in any particular jurisdiction in
which the Company would be required to qualify to do business or to execute a
general consent to service of process in effecting such registration,
qualification or compliance.
2.4.3 Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. The Company shall pay all of the expenses
incurred in connection with the first two (2) registrations of each year
requested pursuant to this Section 2.4 (excluding underwriters' discounts and
commissions, which shall be paid by the selling Holders pro rata with respect to
their included shares), including without limitation all registration, filing,
qualification, printers' and accounting fees, fees and disbursements of counsel
for the Company, and the reasonable fees and disbursements
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of a single counsel for the selling Holder or Holders. Thereafter, all such
expenses shall be borne pro rata by the Holder or Holders participating in the
Form S-3 Registration.
2.5 Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
2.5.1 Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to ninety (90) days.
2.5.2 Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
2.5.3 Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
2.5.4 Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
2.5.5 In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
2.5.6 Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
2.5.7 Furnish, at the request of a majority of the Holders
participating in the registration, on the date that such Registrable Securities
are delivered to the underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in
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interest of the Holders requesting registration, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities,
and (ii) a letter dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
2.6 Termination of Registration Rights.
2.6.1 All registration rights granted under this Article II shall
terminate and be of no further force and effect five (5) years after the date of
the Company's Initial Offering.
2.6.2 In addition, the right of any Holder to request registration
or inclusion in any registration pursuant to Section 2.2 shall terminate on the
closing of the first Company-initiated registered public offering of Common
Stock of the Company if all shares of Registrable Securities held or entitled to
be held upon conversion by such Holder may immediately be sold under Rule 144
during any 90-day period, or on such date after the closing of the first
Company-initiated registered public offering of Common Stock of the Company as
all shares of Registrable Securities held or entitled to be held upon conversion
by such Holder may immediately be sold under Rule 144 during any 90-day period.
2.7 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Sections 2.2, 2.3 or
2.4 that the selling Holders shall furnish to the Company such information
regarding themselves, the Registrable Securities held by them and the intended
method of disposition of such securities as shall be required to effect the
registration of their Registrable Securities.
2.8 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Article II.
2.9 Indemnification. In the event any Registrable Securities are included
in a registration statement under Sections 2.2, 2.3 or 2.4:
2.9.1 To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners, officers and directors of each Holder,
any underwriter (as defined in the Securities Act) for such Holder and each
person, if any, who controls such Holder or underwriter within the meaning of
the Securities Act or the Securities Exchange Act of 1934, as amended, (the
"1934 Act"), against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, the 1934 Act
or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation") by the Company: (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto; (ii) the omission or
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alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading; or (iii) any
violation or alleged violation by the Company of the Securities Act, the 1934
Act, any state securities law or any rule or regulation promulgated under the
Securities Act, the 1934 Act or any state securities law in connection with the
offering covered by such registration statement; and the Company will reimburse
each such Holder, partner, officer or director, underwriter or controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
Section 2.9.1 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished to the Company expressly for use in connection with such
registration by such Holder, partner, officer, director, underwriter or
controlling person of such Holder.
2.9.2 To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers, each person, if any, who controls the Company within the meaning of
the Securities Act, any underwriter and any other Holder selling securities
under such registration statement or any of such other Holder's partners,
directors or officers or any person who controls such Holder, against any
losses, claims, damages or liabilities (joint or several) to which the Company
or any such director, officer, controlling person, underwriter or other such
Holder, or partner, director, officer or controlling person of such other Holder
may become subject under the Securities Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished to the Company by such
Holder expressly for use in connection with such registration; and each such
Holder will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling person, underwriter or other
Holder, or partner, officer, director or controlling person of such other Holder
in connection with investigating or defending any such loss, claim, damage,
liability or action if it is judicially determined that there was such a
Violation; provided, however, that the indemnity agreement contained in this
Section 2.9.2 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Holder, which consent shall not be unreasonably withheld;
provided further, that in no event shall any indemnity under this Section 2.9.2
exceed the proceeds from the offering received by such Holder.
2.9.3 Promptly after receipt by an indemnified party under this
Section 2.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however,
-10-
14
that an indemnified party shall have the right to retain its own counsel, with
the fees and expenses to be paid by the indemnifying party, if representation of
such indemnified party by the counsel retained by the indemnifying party would
be inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
2.9, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 2.9.
2.9.4 If the indemnification provided for in this Section 2.9 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that in no event shall any
contribution by a Holder hereunder exceed the proceeds from the offering
received by such Holder.
2.9.5 The obligations of the Company and Holders under this Section
2.9 shall survive the completion of any offering of Registrable Securities
pursuant to a registration statement, or otherwise.
2.10 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Article II may be assigned by a
Holder to a transferee or assignee of Registrable Securities; provided, however,
that no such transferee or assignee shall be entitled to registration rights
under Sections 2.2, 2.3 or 2.4 hereof unless it acquires at least one million
(1,000,000) shares of Registrable Securities (as adjusted for stock dividends,
splits and combinations) and the Company shall, within twenty (20) days after
such transfer, be furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned. Notwithstanding the foregoing, rights to
cause the Company to register securities may be assigned to any subsidiary,
parent, general partner or limited partner of a Holder.
2.11 Amendment of Registration Rights. Any provision of this Article II
may be amended and the observance thereof may be waived (either generally or in
a particular instance and either retroactively or prospectively) only with the
written consent of the Company and the
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15
Holders of more than fifty percent (50%) of the Registrable Securities. Any
amendment or waiver effected in accordance with this Section 2.11 shall be
binding upon each Holder and the Company. By acceptance of any benefits under
this Article II, Holders of Registrable Securities hereby agree to be bound by
the provisions hereunder.
2.12 "Market Stand-Off" Agreement.
If requested by the Company and an underwriter of Common Stock (or other
securities) of the Company, a Purchaser shall not sell or otherwise transfer or
dispose of any Common Stock (or other securities) of the Company held by such
Purchaser (other than those included in the registration) for a period specified
by the underwriters not to exceed one hundred eighty (180) days following the
effective date of a registration statement of the Company filed under the
Securities Act; provided, however, that all executive officers and directors of
the Company enter into similar agreements. The obligations described in this
Section 2.12 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated
in the future, or a registration relating solely to a Commission Rule 145
transaction on Form S-4 or similar forms that may be promulgated in the future.
The Company may impose stop-transfer instructions with respect to the shares (or
securities) subject to the foregoing restriction until the end of said one
hundred eighty (180) day period.
3. COVENANTS OF THE COMPANY
3.1 Basic Financial Information and Reporting.
3.1.1 The Company will maintain true books and records of account in
which full and correct entries will be made of all its business transactions
pursuant to a system of accounting established and administered in accordance
with generally accepted accounting principles consistently applied, and will set
aside on its books all such proper accruals and reserves as shall be required
under generally accepted accounting principles consistently applied.
3.1.2 So long as a Purchaser (with its affiliates) shall own not
less than an aggregate of one million (1,000,000) shares of Series A and/or
Series B Preferred Stock (or the Common Stock issuable upon conversion thereof)
("Major Purchaser"), as soon as practicable after the end of each fiscal year of
the Company, and in any event within ninety (90) days thereafter, the Company
will furnish each Major Purchaser a consolidated balance sheet of the Company,
as at the end of such fiscal year, and a consolidated statement of income and a
consolidated statement of cash flows of the Company for such year, all prepared
in accordance with generally accepted accounting principles consistently applied
and setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail. Such financial statements shall be
accompanied by a report and opinion thereon by independent public accountants of
national standing selected by the Company's Board of Directors.
3.1.3 As soon as practicable after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Company, and in
any event within forty-five (45) days thereafter, the Company will furnish each
Major Purchaser a consolidated balance sheet of the Company as of the end of
each such quarterly period, and consolidated statements of income
-12-
16
and cash flows of the Company for such period and for the current fiscal year to
date, prepared in accordance with generally accepted accounting principles
consistently applied and setting forth in comparative form the figures for the
corresponding periods of the previous fiscal year and to the Company's operating
plan then in effect and approved by its Board of Directors, subject to changes
resulting from normal year-end audit adjustments, all in reasonable detail and
certified by the principal financial or accounting officer of the Company,
except that such financial statements need not contain the notes required by
generally accepted accounting principals.
3.1.4 As soon as practicable after the end of each calendar month
and in any event within thirty (30) days thereafter, the Company shall furnish
to each Major Purchaser a consolidated balance sheet of the Company as of the
end of such calendar month, and consolidated statements of income and cash flows
of the Company for such period and for the current fiscal year to date, prepared
in accordance with generally accepted accounting principles consistently applied
setting forth in comparative form the figures for the corresponding periods of
the previous fiscal year and to the Company's operating plan then in effect and
approved by the Company's Board of Directors; provided, however, that no such
monthly information need be provided if the Board of Directors unanimously
determines that such information need not be provided.
3.2 Inspection Rights. Each Major Purchaser shall have the right to visit
and inspect any of the properties of the Company or any of its subsidiaries, and
to discuss the affairs, finances and accounts of the Company or any of its
subsidiaries with its officers, all at such reasonable times and as often as may
be reasonably requested; provided, however, that the Company shall not be
obligated under this Section 3.2 with respect to a competitor of the Company or
with respect to information which the Board of Directors determines in good
faith is confidential and should not, therefore, be disclosed.
3.3 Confidentiality of Records. Each Purchaser agrees to use, and to use
its best efforts to insure that its authorized representatives use, the same
degree of care as such Purchaser uses to protect its own confidential
information to keep confidential any information furnished to it which the
Company identifies as being confidential or proprietary (so long as such
information is not in the public domain), except that such Purchaser may
disclose such proprietary or confidential information to any partner, subsidiary
or parent of such Purchaser for the purpose of evaluating its investment in the
Company as long as such partner, subsidiary or parent is advised of the
confidentiality provisions of this Section 3.3.
3.4 Reservation of Common Stock. The Company will at all times reserve and
keep available, solely for issuance and delivery upon the conversion of the
Preferred Stock, all Common Stock issuable from time to time upon such
conversion.
3.5 Stock Vesting. Unless otherwise approved by the Board of Directors,
all stock and stock equivalents issued and stock options granted after the date
of this Agreement to employees, directors and consultants ("Stock Incentives")
will be subject to vesting at the rate of 12/48 of such stock or stock
equivalents subject to such issuance or grants after one year from the date of
such issuance or grant and 1/48 of such stock or stock equivalents subject to
such
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issuance or grants per month thereafter. In addition, all Stock Incentives will
provide that such Stock Incentives (i) are non-transferable prior to vesting,
(ii) are subject to a right of first refusal on all vested shares until the
Initial Offering, and (iii) are subject to a market stand-off agreement
substantially similar to Section 2.12 hereof.
3.6 Proprietary Information and Inventions Agreement. The Company shall
require all existing and future employees to execute and deliver a Proprietary
Information and Inventions Agreement substantially in the form attached to the
Series A Agreement.
3.7 Termination of Covenants. The covenants of the Company contained in
Sections 3.1 and 3.2 of this Agreement shall expire and terminate as to each
Purchaser upon the earlier of: (i) the date that the Company first becomes
subject to the reporting obligations of the 1934 Act; or (ii) the closing of the
Company's Initial Offering; the covenants of the Company contained in Section
3.5 and 3.6 of this Agreement shall expire and terminate as to each Purchaser
upon the closing of the Company's Initial Offering.
4. RIGHTS OF FIRST REFUSAL
4.1 Subsequent Offerings. So long as a Purchaser shall own not less than
three hundred thousand (300,000) shares (as adjusted for stock splits,
combinations, recapitalizations and the like) of Registrable Securities, such
Purchaser shall have a right of first refusal to purchase its Pro Rata Share (as
defined below) of all Equity Securities (as defined below) that the Company may,
from time to time, propose to sell and issue after the date of this Agreement,
other than the Equity Securities excluded by Section 4.6 hereof. "Pro Rata
Share" shall, with respect to each Purchaser, be an amount equal to the ratio of
the number of shares of the Company's Preferred Stock which such Purchaser is
deemed to be a holder immediately prior to the issuance of such Equity
Securities to the total number of shares of the Company's outstanding Preferred
Stock. The term "Equity Securities" shall mean (i) any stock or similar security
of the Company, (ii) any security convertible, with or without consideration,
into any stock or similar security (including any option to purchase such a
convertible security), (iii) any security carrying any warrant or right to
subscribe to or purchase any stock or similar security, or (iv) any such warrant
or right. For purposes of this Article IV, Purchaser includes any general
partners, limited partners and affiliates of a Purchaser. A Purchaser shall be
entitled to apportion the rights of first refusal hereby granted it among itself
and its partners and affiliates in such proportions as it deems appropriate.
4.2 Exercise of Rights. If the Company proposes to issue any Equity
Securities, it shall give each Purchaser written notice of its intention,
describing the Equity Securities, the price, and the terms and conditions upon
which the Company proposes to issue the same. Each Purchaser shall have fifteen
(15) days from the giving of such notice to agree to purchase its Pro Rata Share
of the Equity Securities for the price and upon the terms and conditions
specified in the notice by giving written notice to the Company and stating
therein the quantity of Equity Securities to be purchased. Notwithstanding the
foregoing, the Company shall not be required to offer or sell such Equity
Securities to any Purchaser if such offer or sale who would cause the Company to
be in violation of applicable federal or state securities laws.
-14-
18
4.3 Issuance of Equity Securities to Other Person. If the Purchasers fail
to exercise in full the rights of first refusal, the Company shall have ninety
(90) days thereafter to sell the Equity Securities in respect of which the
Purchasers' rights were not exercised, at a price and upon terms and conditions
no more favorable to the purchasers thereof than specified in the Company's
notice to the Purchasers pursuant to Section 4.2 hereof. If the Company has not
sold such Equity Securities within such ninety (90) days, the Company shall not
thereafter issue or sell any Equity Securities without first offering such
securities to the Purchasers in the manner provided above.
4.4 Termination of Rights of First Refusal. The rights of first refusal
established by this Article IV shall terminate upon the closing of the Company's
Initial Offering pursuant to which the Series A and Series B Preferred Stock is
automatically converted into shares of the Company's Common Stock.
4.5 Effect of Failure to Participate. If a Purchaser does not purchase its
full Pro Rata Share of any Dilutive Issuance (as defined in Section 4(j)(1) the
Amended and Restated Certificate of Incorporation of the Company) of which it
receives notice pursuant to Section 4.3 hereof, such Purchaser shall be deemed
to have forever waived, commencing as of the date of the issuance of such Equity
Securities, its rights of first refusal under this Article IV.
4.6 Transfer of Rights of First Refusal. The rights of first refusal of
each Purchaser under this Article IV may be transferred to any subsidiary,
parent or subsidiary of any parent of such Purchaser, to any successor in
interest to all or substantially all the assets of such Purchaser, or to an
transferee who acquires at least one million (1,000,000) shares (as adjusted for
stock splits, combinations, recapitalizations and the like) of Registrable
Securities.
4.7 Excluded Securities. The rights of first refusal established by this
Article IV shall have no application to any of the following Equity Securities:
4.7.1 Shares of Common Stock (and/or options, warrants or other
Common Stock purchase rights issued pursuant to such options, warrants or other
rights) issued or to be issued to employees, officers or directors of, or
consultants or advisors to the Company or any subsidiary, pursuant to stock
purchase or stock option plans or other arrangements that are approved by the
Board of Directors of the Company;
4.7.2 Stock issued pursuant to any rights or agreements outstanding
as of the date of this Agreement, options and warrants outstanding as of the
date of this Agreement, and stock issued pursuant to any such rights or
agreements granted after the date of this Agreement, provided that the rights of
first refusal established by this Article IV applied with respect to the initial
sale or grant by the Company of such rights or agreements;
4.7.3 Any Equity Securities issued for consideration other than cash
pursuant to a merger, consolidation, acquisition or similar business
combination;
4.7.4 Any Equity Securities that are issued by the Company as part
of an underwritten public offering referred to in Section 4.4 hereof;
-15-
19
4.7.5 Shares of Series A and Series B Preferred Stock issued after
the date hereof; provided, however, that such Series A and Series B Preferred
Stock are deemed to be "Shares" pursuant to Section 2.3 of the Series A
Agreement and Section 2.3 of the Purchase Agreement, respectively;
4.7.6 Stock, warrants or other securities or rights issued in
connection with equipment leasing or bank financing transactions, provided such
issuances are for other than primarily equity financing purposes;
4.7.7 Stock, warrants or other securities or rights issued to
academic or research institutions in connection with (i) the license of
technology from such institutions or (ii) research and development services
provided by such institutions;
4.7.8 Stock, warrants or other securities or rights issued in
connection with a transaction with a corporation or other third party which is
not primarily in the business of making equity investments that also involves
other strategic elements such as, but not by way of limitation, a joint
marketing agreement, a license agreement or a technology development agreement;
4.7.9 Shares of Common Stock issued in connection with any stock
split, stock dividend or recapitalization by the Company; and
4.7.10 shares of Common Stock issued upon conversion of the
Preferred Stock.
5. MISCELLANEOUS
5.1 Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Delaware as applied to agreements among Delaware
residents entered into and to be performed entirely within Delaware.
5.2 Survival. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by any Holder and the closing
of the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
5.3 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto
and shall inure to the benefit of and be enforceable by each person who shall be
a holder of Registrable Securities from time to time; provided, however, that
prior to the receipt by the Company of adequate written notice of the transfer
of any Registrable Securities specifying the full name and address of the
transferee, the Company may deem and treat the person listed as the holder of
such shares in its records as the absolute owner and holder of such shares for
all purposes, including the payment of dividends or any redemption price.
-16-
20
5.4 Separability. In case any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
5.5 Amendment and Waiver.
5.5.1 Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the written consent of the Company and the holders
of more than fifty percent (50%) of the Registrable Securities.
5.5.2 Except as otherwise expressly provided, the obligations of the
Company and the rights of the Holders under this Agreement may be waived only
with the written consent of the holders of more than fifty percent (50%) of the
Registrable Securities.
5.5.3 The Company and the Existing Investors, constituting holders
of a majority of the "Registrable Securities" (as defined in the Prior Rights
Agreement), hereby agree that all rights granted and covenants made under the
Prior Rights Agreement are hereby waived, released and terminated in their
entirety and shall have no further force or effect whatsoever. The rights and
covenants provided herein set forth the sole and entire agreement between the
Company, the New Purchasers, the Existing Investors and the Existing
Warrantholders with respect to the subject matter hereof.
5.5.4 In the event the Company shall issue additional Series B
Preferred Stock, new holders of such Series B Preferred Stock shall be deemed to
be a Purchaser for all purposes of this Agreement by executing and delivering an
additional counterpart signature page to this Agreement and an addendum in the
form attached hereto as Exhibit D.
5.6 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any Holder upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, provided by law or otherwise afforded to Holders, shall be cumulative
and not alternative.
5.7 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified; (ii) when sent by confirmed telex or facsimile; (iii) five
(5) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid; or (iv) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the party to be
notified at the address as set forth on the
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21
signature page hereof or at such other address as such party may designate by
ten (10) days advance written notice to the other parties hereto.
5.8 Attorneys' Fees. If legal action is brought to enforce or interpret
this Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and legal costs in connection therewith.
5.9 Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
5.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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22
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY
CORIXA CORPORATION
By: /s/ ββββββ ββββββ
--------------------------------------
ββββββ ββββββ, President and
Chief Executive Officer
SIGNATURE PAGE TO CORIXA CORPORATION
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
23
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
NEW PURCHASERS
S.R. ONE, LIMITED
By: /s/ ββββββ β. ββββββ
--------------------------------------
ββββββ β. ββββββ
Vice President
Address: Bay Colony Executive Park
βββ ββββ ββββββββββ, βββ. ββ
βββββ, ββ βββββ
SIGNATURE PAGE TO CORIXA CORPORATION
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
24
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
EXISTING INVESTORS
INTERWEST PARTNERS V
By: /s/ ββββββ βββββββ
--------------------------------------
Its: General Partner
--------------------------------------
Address: ββββ ββββ ββββ ββββ
ββββββββ β, βββββ βββ
βββββ ββββ, ββββββββββ βββββ
INTERWEST INVESTORS V
By: /s/ ββββββ βββββββ
--------------------------------------
Its: General Partner
--------------------------------------
Address: ββββ ββββ ββββ ββββ
βββββ ββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CORIXA CORPORATION
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
25
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
EXISTING INVESTORS
ENTERPRISE PARTNERS III, L.P.
By: /s/ ββββββ ββββββ
--------------------------------------
Its: General Partner
--------------------------------------
Address: ββββ βββββ ββββββ, βββββ ββββ
βββββββ βββββ, ββββββββββ βββββ
ENTERPRISE PARTNERS III, L.P.
By: /s/ ββββββ ββββββ
--------------------------------------
Its: General Partner
--------------------------------------
Address: ββββ βββββ ββββββ, βββββ ββββ
βββββββ βββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CORIXA CORPORATION
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
26
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
EXISTING INVESTORS
OLYMPIC VENTURE PARTNERS III, by
OVMC III, L.P., General Partner
By: /s/ βββββββ β. βββββ
--------------------------------------
Its: General Partner
--------------------------------------
Address: ββββ ββββββββ βββββ
ββββββββ, ββββββββββ βββββ
OVP III ENTREPRENEURS FUND, by OVMC
III, L.P., General Partners
By: /s/ βββββββ β. βββββ
--------------------------------------
Its: General Partner
--------------------------------------
Address: ββββ ββββββββ βββββ
ββββββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CORIXA CORPORATION
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
27
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
EXISTING INVESTORS
βββββββ βββββββ ββββββββ & βββββ VII
By: /s/ ββββββ β. βββββ
--------------------------------------
Its: General Partner
--------------------------------------
Address: ββββ ββββ ββββ ββββ
βββββ ββββ, ββββββββββ βββββ
KPCB VII FOUNDERS FUND
By: /s/ ββββββ β. βββββ
--------------------------------------
Its: General Partner
--------------------------------------
Address: ββββ ββββ ββββ ββββ
βββββ ββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CORIXA CORPORATION
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
28
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
EXISTING INVESTORS
FORWARD VENTURES II, L.P.
By: /s/ ββββββββ β. βββββββ
--------------------------------------
Its: General Partner
--------------------------------------
Address: βββββ βββββββββ ββββ
βββββ βββ
βββ βββββ, ββββββββββ βββββ
SIGNATURE PAGE TO CORIXA CORPORATION
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
29
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investors' Rights Agreement as of the date set forth in the first
paragraph hereof.
EXISTING INVESTORS
/s/ βββββββ βββββββ
--------------------------------------
βββββββ βββββββ
/s/ βββββββ ββββββ
--------------------------------------
βββββββ ββββββ
/s/ ββββ βββββββ
--------------------------------------
ββββ βββββββ
/s/ ββββββ βββββ
--------------------------------------
ββββββ βββββ
/s/ βββββββ β. βββββ
--------------------------------------
βββββββ β. βββββ
/s/ ββββββ ββββββββ
--------------------------------------
ββββββ ββββββββ
/s/ ββββββ ββββββ
--------------------------------------
ββββββ ββββββ
/s/ βββ βββββββ
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βββ βββββββ
/s/ βββ ββββββ
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βββ ββββββ
SIGNATURE PAGE TO CORIXA CORPORATION
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
30
/s/ ββββ β. ββββββ
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ββββ β. ββββββ
/s/ ββββββ ββββββ
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ββββββ ββββββ
/s/ ββββββ ββββ
--------------------------------------
ββββββ ββββ
/s/ βββββββ βββββββββ
--------------------------------------
βββββββ βββββββββ
/s/ ββββββ ββββββββββββ
--------------------------------------
ββββββ ββββββββββββ
/s/ βββββββ ββββ
--------------------------------------
βββββββ ββββ
/s/ ββββββ βββββββ
--------------------------------------
ββββββ βββββββ
/s/ ββββ βββββββ
--------------------------------------
ββββ βββββββ
/s/ ββββ ββββββ
--------------------------------------
ββββ ββββββ
SIGNATURE PAGE TO CORIXA CORPORATION
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
31
EXHIBIT A
NEW PURCHASERS
S.R. One, Limited
32
EXHIBIT B
EXISTING INVESTORS
βββββββ βββββββ ββββββββ & βββββ VII ββββββ ββββ
KPCB VII Founders Fund βββββββ βββββββββ
Forward Ventures II, L.P. ββββββ ββββββββββββ
β.β. ββββββββ Revocable Trust, as amended βββββββ ββββ
Enterprise Partners III, L.P. ββββββ βββββββ
Enterprise Partners III Associates, L.P. ββββ βββββββ
Interwest Partners V ββββ ββββββ
Interwest Investors V
Olympic Venture Partners III
OVP III Entrepreneurs Fund
βββββββ βββββββ
βββββββ ββββββ
ββββ βββββββ
ββββββ βββββ
βββββββ β. βββββ
ββββββ ββββββββ
ββββββ ββββββ
βββ βββββββ
βββ ββββββ
ββββ β. ββββββ
ββββββ ββββββ
33
EXHIBIT C
EXISTING WARRANTHOLDERS
Vaxcel, Inc.
Health Science Properties, Inc.
Southern Research Institute
34
EXHIBIT D
ADDENDUM TO
CORIXA CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
DATE: MAY ___, 199__
Effective as of the day and year first above written, ________________, a
Purchaser of ______________ shares of Series B Preferred Stock of Corixa
Corporation (the "Company") agrees to be bound by the terms of the Amended and
Restated Investors' Rights Agreement dated as of May 10, 1996 among the New
Purchasers, the Existing Investors, the Existing Warrantholders (each as defined
therein) and the Company.
PURCHASER
By:
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Its:
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Address:
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