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SERIES E PREFERRED STOCK SUBSCRIPTION AGREEMENT
This Series E Preferred Stock Subscription Agreement (the “ Agreement ”) dated as of August 26, 2008 is entered into by and between ChemoCentryx, Inc., a Delaware corporation (the “ Company ”), and the individual or entity (collectively, the “ Purchasers ” and individually, the “ Purchaser ”) whose name appears on the last page of this Agreement.
The Company desires to sell shares of its Series E Preferred Stock, par value $0.001 per share (the “ Series E Stock ”), to the Purchasers, and the Purchasers desire to purchase such shares of Series E Stock, on the terms and subject to the conditions set forth in this Agreement. This Agreement, including the agreements set forth as Exhibits hereto, shall be collectively referred to as the “ Agreements .”
Each Purchaser understands that, pursuant to the Agreements, the Company proposes to offer and sell to a limited number of sophisticated investors an aggregate maximum of 6,800,000 shares of Series E Stock at a price of $7.36 per share (the “ Offering ”).
The total number of shares of Series E Stock issued pursuant to the Agreements is hereinafter referred to as the “ Shares .” The Shares will have, on the date of the Closing (as defined below), the rights, preferences and privileges provided for in the Company’s Amended and Restated Certificate of Incorporation (the “ Certificate ”), attached hereto as Exhibit A , and the Amended and Restated Investors Rights Agreement (the “ Investors Rights Agreement ”), attached hereto as Exhibit B .
Accordingly, each Purchaser agrees with the Company as follows (except as to Section 7.18, Section 7.19, Section 7.20 and Section 7.21, which are applicable only to Purchaser Glaxo Group Limited, a limited liability company organized under the laws of England doing business as GlaxoSmithKline (“ GSK ”)):
1. Sale of Shares . Each Purchaser will purchase from the Company the number of Shares set forth opposite the Purchaser’s name on the last page of this Agreement at a price of $7.36 per share, and in consideration therefor the Company agrees to issue to each Purchaser a stock certificate for the number of Shares set forth opposite each Purchaser’s name on the last page of this Agreement.
2. Closing; Delivery .
2.1 Closing . Each Purchaser understands that the Company is under no obligation to sell any of the Shares to the Purchasers unless the Company accepts and signs this Agreement. The closing of the purchase and sale of the Shares to the Purchasers hereunder shall be held at the offices of Latham & Watkins LLP, 600 West Broadway, Suite 1800, San Diego, California 92101, at 10:00 a.m. on August 26, 2008 (the “ Closing ”).
2.2 Delivery . At the Closing, the Company will deliver to each Purchaser a certificate for the number of Shares set forth opposite each Purchaser’s name on the last page of this Agreement in exchange for a check payable to the Company or wire transfer to the
Company’s bank account in an amount equal to $7.36 times the number of Shares being acquired by such Purchaser.
3. The Company’s Representations and Warranties . Except as set forth in the Schedule of Exceptions attached hereto as Exhibit C , which exceptions shall be deemed to be representations and warranties as made hereunder, the Company represents and warrants as of the Closing to each Purchaser as follows:
3.1 Organization and Standing . The Company is a corporation duly organized and validly existing under, and by virtue of, the laws of the State of Delaware and is in good standing under such laws. The Company has requisite corporate power and authority to own and operate its properties and assets, and to carry on its business as presently conducted and as proposed to be conducted. The Company is qualified to do business as a foreign corporation in all jurisdictions in which the failure to be so qualified would have a material adverse affect on the Company’s business, financial condition or results of operations.
3.2 Corporate Power . The Company will have at the Closing all requisite legal and corporate power and authority to execute and deliver the Agreements, to sell and issue the Shares hereunder, to issue the Common Stock issuable upon conversion of the Shares and to carry out and perform its obligations under the terms of the Agreements.
3.3 Subsidiaries . The Company has no subsidiaries or affiliated companies and does not otherwise own or control, directly or indirectly, any equity interest in any corporation, association or business entity.
3.4 Capitalization . As of the Closing and after giving effect to the sale of the Shares pursuant to the terms of the Agreements (i) the authorized capital stock of the Company will consist of (a) 68,000,000 shares of common stock, par value $0.001 per share (the “ Common Stock ”), of which 8,226,830 shares will be issued and outstanding, 3,000,000 shares will be reserved for issuance upon the conversion of outstanding shares of Series A-1 Preferred Stock of the Company, par value $0.001 per share (the “ Series A-1 Stock ”), 1,000,000 shares will be reserved for issuance upon the conversion of outstanding shares of Series A-2 Preferred Stock of the Company, par value $0.001 per share (the “ Series A-2 Stock ”), 1,000,000 shares will be reserved for issuance upon the conversion of outstanding shares of Series A-3 Preferred Stock of the Company, par value $0.001 per share (the “ Series A-3 Stock ”), 24,390,790 shares will be reserved for issuance upon the conversion of outstanding shares or outstanding warrants to purchase shares of Series B Preferred Stock of the Company, par value $0.001 per share (the “ Series B Stock ”), 5,048,469 shares will be reserved for issuance upon the conversion of outstanding shares of Series C Preferred Stock, par value $0.001 per share (the “ Series C Stock ”), 7,750,655 shares will be reserved for issuance upon conversion of outstanding shares of Series D Stock, par value $0.001 per share (the “ Series D Stock ” and, collectively with the Series A-1 Stock, the Series A-2 Stock, the Series A-3 Stock, the Series B Stock, the Series C Stock and the Series E Stock, the “ Preferred Stock ”), 6,800,000 shares will be reserved for issuance upon the conversion of outstanding Series E Stock, 4,686,842 shares will be issuable upon the exercise of outstanding options and warrants to purchase Common Stock, and 2,074,189 shares will be reserved for issuance upon the grant of options currently reserved for issuance under the Company’s stock incentive plans, and (b) 48,989,914 shares of Preferred Stock, par value $0.001
per share, consisting of (1) 3,000,000 shares designated as Series A-1 Stock, all of which will be issued and outstanding, (2) 1,000,000 shares designated as Series A-2 Stock, all of which will be issued and outstanding, (3) 1,000,000 shares designated as Series A-3 Stock, all of which will be issued and outstanding, (4) 24,390,790 shares designated as Series B Stock, of which 23,664,713 shares will be issued and outstanding and 726,077 shares will be reserved for issuance upon exercise of outstanding warrants to purchase Series B Stock, (5) 5,048,469 shares designated as Series C Stock, all of which will be issued and outstanding, (6) 7,750,655 shares designated as Series D Stock, all of which will be issued and outstanding and (7) 6,800,000 shares designated as Series E Stock of which 6,800,000 shares (assuming the sale and/or issuance of 6,800,000 of Series E Stock in the Offering) will be outstanding; (ii) all issued and outstanding shares of capital stock of the Company (including the Shares) are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and were not issued in violation of or subject to any preemptive or similar rights; and (iii) except as otherwise set forth in this Section 3.4, the Company will not have outstanding any shares of capital stock or voting stock of the Company, stock or other securities convertible into or exchangeable for any shares of capital stock of the Company, any rights to subscribe for or to purchase or any options for the purchase of, or any agreements providing for the issuance (contingent or otherwise) of any capital stock, or any stock or securities convertible into or exchangeable for any capital stock of the Company. All shares of Common Stock issuable upon conversion of the Shares have been duly authorized and validly reserved for issuance and, when issued in accordance with the terms of the Certificate, will be validly issued, fully paid and nonassessable and will be free and clear of any liens, charges or other encumbrances or restrictions on sale created by or through the Company and will be free and clear of all preemptive or similar rights.
3.5 Authorization . All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution, delivery and performance of the Agreements by the Company, the authorization, sale, issuance and delivery of the Shares and the performance of all of the Company’s obligations under the Agreements has been taken or will be taken prior to the Closing. The Agreements, when executed and delivered by the Company, shall constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except (i) as subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies and (ii) to the extent the indemnification provisions in the Investors Rights Agreement may be limited by applicable federal or state securities laws. The Shares, when issued in compliance with the provisions of this Agreement, will be validly issued and will be fully paid and nonassessable. The shares of Common Stock issued upon conversion of the Shares (together with the Shares, the “ Securities ”) in accordance with the Certificate will be duly authorized, validly issued, fully paid and non-assessable. The Series E Stock will have the rights, preferences and privileges described in the Certificate. The Shares will be free of any liens, charges or encumbrances or restrictions on sale created by or through the Company and free and clear of all preemptive or similar rights; provided , however , that the Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein and the Investors Rights Agreement.
3.6 Labor Agreements and Actions . The Company is not bound by or subject to (and none of its assets or properties is bound by or subject to) any written or oral, express or
implied, contract, commitment or arrangement with any labor union, and no labor union has requested or, to the knowledge of the Company, has sought to represent any of the employees, representatives or agents of the Company. There is no strike or other labor dispute involving the Company pending, or to the knowledge of the Company threatened, which could have a material adverse effect on the assets, properties, financial condition, operating results, or business of the Company, nor is the Company aware of any labor organization activity involving its employees. The Company is not aware that any officer or key employee, or that any group of key employees, intends to terminate their employment with the Company, nor does the Company have a present intention to terminate the employment of any of the foregoing. Each officer and each employee of the Company is not party to any employment agreement and the employment of such individuals is terminable at the will of the Company.
3.7 Agreements; Action .
(a) Except for agreements explicitly contemplated hereby, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, affiliates, or any affiliate thereof nor are there agreements or understandings between any person and/or entities, which affect or relate to the voting or giving of written consents with respect to any security or by a director of the Company.
(b) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to the Company in excess of, $100,000.00, (ii) the license of any patent, copyright, trade secret or other proprietary right to or from the Company, or (iii) provisions restricting or affecting the development, manufacture or distribution of the Company’s products or services.
(c) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) made any loans or advances to any person, other than ordinary advances for travel expenses, (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business, or (iv) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of $100,000.00 or collectively in excess of $500,000.00.
(d) For the purposes of subsections (b) and (c) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.
(e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Certificate or Bylaws, that adversely affects its business as now conducted or as proposed to be conducted, its properties or its financial condition.
(f) The Company has not engaged in the past three (3) months in any discussion (i) with any representative of any corporation or corporations regarding the merger of the Company with or into any such corporation or corporations, (ii) with any representative of any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company would be disposed of, or (iii) regarding any other form of liquidation, dissolution or winding up of the Company.
(g) Each of the contracts listed in Section 3.7 of the Schedule of Exceptions (the “ Material Contracts ”) is a valid and binding obligation of the Company. No event or circumstance has occurred which would result in a breach or default under any of the Material Contracts by the parties thereto nor is any party thereto currently in breach or default under any Material Contract, other than which would not reasonably be expected to have a material adverse affect on the business, properties, prospects or financial condition of the Company.
3.8 Title . The Company has good and marketable title to its properties and assets and has good title to all its leasehold interests, in each case subject to no mortgage, pledge, lien, lease, encumbrance or charge, other than (i) the lien of current taxes not yet due and payable and (ii) liens and encumbrances which do not in any case materially detract from the value of the property subject thereto or materially impair the operations of the Company, and which have not arisen otherwise than in the ordinary course of business.
3.9 Compliance with Other Instruments . The Company is not in violation or default of any term of its Certificate or Bylaws, or of any term or provision of any material mortgage, indebtedness, indenture, contract, agreement, instrument, judgment, order or decree, and to its knowledge is not in violation of any statute, rule or regulation applicable to the Company where such violation would materially and adversely affect the Company. The execution, delivery and performance of and compliance with the Agreements, and the issuance of the Shares, has not resulted and will not result in any material violation of, or conflict with, or constitute with or without the passage of time and the giving of notice a material violation or default under, the Company’s Certificate or Bylaws or any material agreements or instruments to which the Company is a party or by which the Company is otherwise bound nor result in the creation of, any mortgage, security interest, pledge, lien, encumbrance or charge upon any of the properties or assets of the Company nor violate any material order, judgment, law, statute, rul