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Title: |
Note Purchase Agreement |
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Entities: |
Exelixis, Inc.; Protein Design Labs, Inc.; Silicon Valley Bank |
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Date: |
2001 |
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Size: |
Preview shows 4KB of 24KB total |
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Price: |
$35 |
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ID: |
#283822 |
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NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT (the "Agreement") is dated as of May 22, 2001
(the "Effective Date") by and between EXELIXIS, INC., a Delaware corporation
having its principal place of business at 170 Harbor Way, P.O. Box 511, South
San Francisco, California 94083-0511 (the "Company") and PROTEIN DESIGN LABS,
INC., a Delaware corporation having its principal place of business at 34801
Campus Drive, Fremont, California 94555-3606 (the "Holder").
RECITALS
A. Pursuant to the terms of the Convertible Note (the "Note"), dated as of
even date herewith between the Company and the Holder, the Holder has loaned to
the Company the principal sum of Thirty Million Dollars ($30,000,000) (the
"Principal Amount").
B. The Company has agreed to issue the Note pursuant to the terms set forth
in this Agreement.
NOW, THEREFORE, in consideration of the premises and promises herein
contained and in order to induce the Holder to loan to the Company the Principal
Amount, the Company agrees with the Holder as follows:
1. AUTHORIZATION AND SALE OF NOTES
1.1 AUTHORIZATION OF NOTES. On or before the date hereof the Company shall
authorize the issuance of the Note in the form attached to this Agreement as
Exhibit A in the Principal Amount.
1.2 SALE OF NOTE. Subject to the terms and conditions hereof, the Company
will issue and sell to the Holder, and the Holder will purchase from the Company
for the Principal Amount, the Note. The Note and the shares of common stock of
the Company (the "Shares") issued upon conversion of the Note are sometimes
collectively referred to herein as the "Securities."
2. CLOSING DATE; DELIVERY
2.2 CLOSING DATE. Subject to the terms and conditions of this
Agreement, the purchase and sale of the Note hereunder shall take place at 3:00
p.m. local time at the offices of the Company, on the date hereof or at such
other time and place as the Company and the Holder may agree (the "Closing").
The date of the Closing is hereinafter referred to as the "Closing Date."
2.3 DELIVERY. At the Closing, the Company will deliver to the Holder the
Note against payment of the Principal Amount therefor by wire transfer in
immediately available funds:
Bank: Silicon Valley Bank, Santa Clara, CA
ABA Routing: 121-140-399
Acct Number: 33001-60643
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Holder as follows:
3.1 ORGANIZATION AND STANDING. The Company:
(a) is a corporation duly organized, validly existing, authorized to
exercise all its corporate powers, rights, and privileges, and in good standing
under the laws of the State of Delaware; and
(b) has the corporate power and corporate authority to own and operate its
properties and to carry on its business as now conducted and as proposed to be
conducted.
3.2 AUTHORIZATION AND VALIDITY. All corporate action on the part of the
Company, its officers, directors, and stockholders necessary for the
authorization, execution, delivery, and performance of all of the Company's
obligations under this Agreement, the Note and all documents, instruments and
agreements executed in connection therewith (the "Loan Documents") and for the
authorization, issuance, and delivery of the Note has been taken and the Loan
Documents constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
3.3 CORPORATE POWER. The Company has all requisite legal and corporate
power and authority to execute and deliver the Loan Documents, to sell and issue
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