{"id":43400,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/exchange-agreement-maxygen-inc-and-profound-pharma-a-s.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"exchange-agreement-maxygen-inc-and-profound-pharma-a-s","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/exchange-agreement-maxygen-inc-and-profound-pharma-a-s.html","title":{"rendered":"Exchange Agreement &#8211; Maxygen Inc. and ProFound Pharma A\/S"},"content":{"rendered":"<pre>                                AMENDMENT NO. 1\n\n                                       TO\n\n                               EXCHANGE AGREEMENT\n                               ------------------\n\n                                        \n\n     THIS IS AMENDMENT NO. 1 dated as of July 31, 2000 (\"Amendment No. 1\") to\nthe EXCHANGE AGREEMENT dated as of April 12, 2000 (the \"Agreement\") by and among\nMAXYGEN, INC., a Delaware corporation, MAXYGEN HOLDINGS LTD., a Cayman Islands\ncorporation, PROFOUND PHARMA A\/S, a Danish corporation, and the shareholders of\nProFound.  Terms used in this Amendment No. 1 that begin with capital letters\nand are not defined here have the meanings given them in the Agreement.  Except\nas provided otherwise in this Amendment No. 1, references here to sections and\nexhibits are to sections and exhibits of the Agreement.\n\n\n                                    RECITALS\n\n\n     After the parties signed the Agreement, the ProFound Securityholders\nsubmitted the application called for by Section 7.3(a) to the Danish Tax\nAuthority.  The Danish Tax Authority responded explaining, in effect, that it\nwas not prepared to grant the ruling referenced in Section 7.3(a) if the\nPut\/Call Agreements or the Put Agreements, each as described in Section 10.8,\nare signed or the puts and calls contemplated by those agreements are granted.\nThe parties to the Agreement continue to desire that Maxygen complete its\nacquisition of ProFound and have revised the transaction structure to deleted\nthe put and call arrangements.  The principal purpose of this Amendment No. 1 is\nto memorialize those modifications.\n\n \n\nACCORDINGLY, THE PARTIES HEREBY AGREE AS FOLLOWS:\n\n1.   Elimination of the Puts and Calls\n\n     The Put\/Call Agreements and the Put Agreements are no longer part of the\ntransaction.  The parties that would have signed those agreements will not grant\nthe puts and calls contemplated by the forms of those agreements (Exhibits 10.8A\nand 10.8B) or grant any similar puts or calls.  Accordingly:  (a) Sections 9.18\nand 10.8 are deleted; (b) the references to the Put\/Call Agreements and to the\nPut Agreements and to the puts and calls to which they relate, in Sections 7.14,\n9.12 and 10.7, are deleted; (c) Exhibits \n\n \n10.8A, 10.8B and 10.8C are deleted; and (d) the references to the Put\/Call\nAgreements and to the Put Agreements, in Exhibits 9.7 and 10.9, are deleted.\n\n2.   Additional Shares\n\n     (a) The number of shares set forth in Section 2.1(b) shall be 451,372\nrather than 328,799.\n\n     (b) Exhibit 2.1(b) to the Agreement is replaced by Exhibit 2(b) to this\nAmendment No. 1.\n\n3.   Registration Agreement\n\n     (a) In connection with the Closing, Maxygen, and Messrs. Hansen, Mikkelsen,\nHalkier, Okkels, Pedersen, Schambye, Aunstrup, Braestrup and Schwartz (together\nthe \"Class A Shareholders\") shall sign a Registration Rights Agreement in the\nform of Exhibit 3 to this Amendment No. 1 (the \"Registration Rights Agreement\").\n\n     (b) A new Section 9.18 is added to the Agreement.  New Section 9.18 shall\nread as follows:\n\n         \"9.18  REGISTRATION RIGHTS AGREEMENT\n                -----------------------------\n\n         The Class A Shareholders shall have signed the Registration Rights\n     Agreement.\"\n\n     (c) A new Section 10.8 is added to the Agreement.  New Section 10.8 shall\nread as follows:\n\n         \"10.8  REGISTRATION RIGHTS AGREEMENT\n                -----------------------------\n\n         Maxygen shall have signed the Registration Rights Agreement.\"\n\n\n     (d) The limitations imposed on the Class A Shareholders by Section 7.14\nshall not limit their rights under the Registration Rights Agreement.  Moreover,\nalthough the Class A Shareholders shall comply with all applicable securities\nlaws including Section 10(b) and Rule 10b-5 under the United States Securities\nExchange Act of 1934, as amended, for 60 days after the effective date of the\nregistration statement filed in accordance with the Registration Rights\nAgreement, the Class A Stockholders shall not be required to comply with Section\n7.13 to the extent Section 7.13 would impose stricter limitations on any sales\nof any of the shares registered in accordance with the Registration Rights\nAgreement.  Such 60-day period shall be tolled to the extent the \n\n \nregistration statement is suspended pursuant to Section 4.1 of the Registration\nRights Agreement or otherwise.\n\n     (e) The legal opinions called for by Sections 9.7 and 10.9 and summarized\nin Exhibits 9.7 and 10.9 shall be expanded to cover the Registration Rights\nAgreement and shall delete references to the Put Agreements and the Put\/Call\nAgreements.\n\n4.   The Lock-Up Agreements\n\n     The forms of Lock-Up Agreements constituting Exhibits 7.12A and 7.12B are\nreplaced by the forms of Lock-Up Agreements constituting Exhibits 4A and 4B to\nthis Amendment No. 1.\n\n5.   The Employment Agreements\n\n     The employment agreements constituting Exhibit 7.9 are replaced by the\nemployment agreements constituting Exhibit 5 to this Amendment No. 1.\n\n6.   Tax Matters\n\n     With the assistance of ProFound, the ProFound Securityholders shall jointly\nprepare and file, within five days after the date of this Amendment No. 1, a\nsupplemental application to the Danish Tax Authority seeking the ruling\nreferenced in Section 7.3(a). The purpose of the supplemental application will\nbe to communicate the tax-relevant changes to the original Agreement that are\neffected by this Amendment No. 1.  The supplemental application shall be\nsubmitted to Maxygen, at least two days before it is filed with the Danish Tax\nAuthority, for Maxygen's review and comment.  All the other rules set forth in\nSection 7.3(a) respecting the original tax application shall also apply to the\nsupplemental application.\n\n7.   Extension of Certain Dates\n\n     (a) The language preceding the colon in the first sentence of Section 7.8\nis replaced by this language:\n\n     \"From the date of this Agreement until the earliest of (a) the Closing, (b)\n     the close of business in California on August 18, 2000 and (c) if the\n     Danish Tax Authority denies the tax application referenced in Section\n     7.3(a) after the supplemental application is filed, the date that is 10\n     days after ProFound receives that denial in writing unless the ProFound\n     Securityholders file a further-amended application before the end of that\n\n \n     10-day period, in which case 10 days if and after the Danish Tax Authority\n     denies that further-amended application in writing: . . .\"\n\n\n     (b) Clause (a) of Section 11.2 is replaced by this language:\n\n     \"the close of business California time on August 18, 2000\"\n\n8.   Miscellaneous\n\n     (a) All references in the Agreement to the \"Agreement\" (as it was\noriginally signed) and in the exhibits to the Agreement (as it was originally\nsigned) shall be references to the original Agreement as amended by this\nAmendment No. 1.\n\n     (b) Section 5.6 is replaced with the following language:\n\n         \"5.6  INVESTMENT\n               ----------\n\n         Such ProFound Shareholder is acquiring the Maxygen securities for\n     investment, for its own account and not with a view to distribution.  Such\n     ProFound Shareholder acknowledges that, subject to that ProFound\n     Shareholder's rights, if any, under the Registration Rights Agreement, the\n     Maxygen Common Stock will not be registered under the Securities Act and\n     will be subject to restrictions on transfer under the United States\n     securities laws and the terms of the applicable Lock-Up Agreement.\"\n\n9.   Compliance with Tax Ruling Conditions\n\n     A new Section 7.18 is added to the Agreement.  New Section 7.18 shall read\nas follows:\n\n     \"7.18  COMPLIANCE WITH TAX RULING CONDITIONS\n            -------------------------------------\n\n     Each party agrees that it will comply with any conditions specified in the\ntax ruling required under Section 7.3(a), such party's agreement to comply with\nsuch conditions to be signified by their respective agreement to Close the\nMaxygen Exchange.\"\n\n10.  No Other Changes\n\n     Except as modified by this Amendment No. 1, the Agreement shall remain in\nfull force and effect as it was originally signed.\n\n \n11.  Signatures\n\n     In accordance with clause (i) of Section 13.14, this Amendment No. 1 is\nbeing signed for the ProFound Shareholders by ProFound Shareholders holding a\nmajority of the outstanding shares of ProFound Common Stock.\n\n\n     IN WITNESS WHEREOF, the required parties have executed and delivered this\nAmendment No. 1 as of the date first written above.\n\n\n\n                         MAXYGEN, INC.\n\n                         By:   \/s\/ B.S. Gill\n                            ------------------------------------\n                            Name: B.S. Gill\n                            Title:   President\n\n\n                         MAXYGEN HOLDINGS LTD.\n\n                         By:   \/s\/ Michael Rabson\n                            ------------------------------------\n                            Name: Michael Rabson\n                            Title:   Secretary\n\n\n                         PROFOUND PHARMA A\/S\n\n\n                         By:     \/s\/ Claus Braestrup    \/s\/ Christian Hansen\n                            ------------------------------------------------\n                            Name:    Claus Braestrup        C. Hansen\n                            Title:   Chairman               CEO\n\n\n                           \/s\/ Christian Hansen\n                         ------------------------------------\n                         CHRISTIAN KARSTEN HANSEN\n\n\n\n                           \/s\/ Jan Mikkelsen\n                         ------------------------------------\n                         JAN MOLLER MIKKELSEN\n\n \n                           \/s\/ Torben Halkier\n                         ------------------------------------\n                         TORBEN HALKIER\n\n\n                           \/s\/ J.S. Okkels\n                         ------------------------------------\n                         JENS SIGURD OKKELS\n\n\n                           \/s\/ Anders Pedersen\n                         ------------------------------------\n                         ANDERS PEDERSEN\n\n\n                           \/s\/ Hans T. Schambye\n                         ------------------------------------\n                         HANS THALSGARD SCHAMBYE\n\n\n                           \/s\/ Knud Aunstrup\n                         ------------------------------------\n                         KNUD AUNSTRUP\n\n\n                           \/s\/ Claus Braestrup\n                         ------------------------------------\n                         CLAUS BRAESTRUP\n\n\n                           \/s\/ Thue W. Schwartz\n                         ------------------------------------\n                         THUE W. SCHWARTZ\n\n \n                         BANKFORENINGERNES\n                         RHVERVSUDVIKLINGSFORENING\n                         BANKINVEST BIOMEDICINSK UDVIKLING\n\n\n                         By      \/s\/ Finn Moefelt\n                            --------------------------------\n                         Title   Managing Director\n                               -----------------------------\n\n\n                         AKTIESELSKABET BIOMEDICINSK UDVIKLING II\n\n\n                         By      \/s\/ Jesper Zeuthen\n                            --------------------------------\n                         Title   Managing Director\n                               -----------------------------\n\n\n                         NOVO NORDISK A\/S\n\n\n                         By      \/s\/ Ulrik Spork\n                            --------------------------------\n                         Title   VP, Corp. Dev.\n                               -----------------------------\n\n \nExhibits\n\n2.1  Stock Exchange\n\n3    Form of Registration Rights Agreement\n\n4A   Form of Lock-Up Agreement (Founders)\n\n4B   Form of Lock-Up Agreement (Directors)\n\n5    Employment Agreements\n\n\nThe Registrant shall furnish a copy of any of the exhibits referred to above to\nthe Commission upon request.\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8151],"corporate_contracts_industries":[],"corporate_contracts_types":[9622,9625],"class_list":["post-43400","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-maxygen-inc","corporate_contracts_types-planning","corporate_contracts_types-planning__exchange"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43400","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43400"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43400"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43400"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43400"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}