CONSENT TO AMENDMENT
Exhibit 10.5
CONSENT TO AMENDMENT
OF
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
The undersigned, a party to that certain Amended and Restated Investor Rights Agreement dated February 5, 2002, as amended (the “Rights Agreement”) by and among Xcyte Therapies, Inc., a Delaware corporation (the “Company”), the parties identified on Schedule A and Schedule B attached thereto (the “Investors”), by execution of this document, hereby consents, pursuant to Section 8.1 of the Rights Agreement, to the amendment of the Rights Agreement as set forth below. Capitalized terms used herein but not defined herein shall have the meaning given to them in the Rights Agreement.
The Company and the Investors hereby agree to add The Trustees of the University of Pennsylvania (“Penn”) to the Rights Agreement and Penn, upon signing a counterpart signature page to the Rights Agreement, shall be deemed as “Investor” and a “Holder” for purposes of Section 1.1(c) thereof and related sections thereto in the Rights Agreement and subject to all of the rights and obligations of the Rights Agreement therein, and the 350,000 shares of Common Stock issued to Penn pursuant to the License Agreement between Penn and the Company dated as of May 15, 2002 shall be considered “Registrable Securities” under the Rights Agreement for purposes of Section 1.1(g) thereof.
This amendment to the Rights Agreement is effective as of the date the Company and Investors holding at least a majority in interest of the Registrable Securities execute this Consent.
[signature page follows]
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| COMPANY: | ||
| XCYTE THEREAPIES, INC., a Delaware corporation | ||
| By: | /s/ RONALD J. BERENSON | |
| Ronald J. Berenson, President and Chief Executive Officer | ||
| INVESTOR: | ||
| ALTA CALIFORNIA PARTNERS, L.P., By: Alta California Management Partners, L.P. | ||
| By: | ||
| General Partner | ||
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| COMPANY: | ||
| XCYTE THEREAPIES, INC., a Delaware corporation | ||
| By: | ||
| Ronald J. Berenson, President and Chief Executive Officer | ||
| INVESTOR: | ||
| ALTO EMBARCADERO PARTNERS, LLC | ||
| By: | ||
| Under Power of Attorney | ||
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| COMPANY: | ||
| XCYTE THEREAPIES, INC., a Delaware corporation | ||
| By: | ||
| Ronald J. Berenson, President and Chief Executive Officer | ||
ARCH VENTURE FUND II, L.P.,
a Delaware limited Partnership
| By: | ARCH MANAGEMENT PARTNERS II, L.P. |
a Delaware limited partnership, its
General Partner
| By: | ARCH VENTURE PARTNERS, L.P., |
A Delaware limited partnership, its
General Partner
| By: | ARCH VENTURE CORPORATION |
An Illinois corporation, its
General Partner
ARCH VENTURE FUND III, L.P.,
a Delaware limited partnership
| By: | ARCH VENTURE PARTNERS, L.L.C., |
a Delaware limited partnership, its
General Partner
| INVESTOR: | ||
| By: | ||
| Title: | ||
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| COMPANY: | ||
| XCYTE THEREAPIES, INC., a Delaware corporation | ||
| By: | ||
| Ronald J. Berenson, President and Chief Executive Officer | ||
| INVESTOR: | ||
| By: | ||
| Title: | ||
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