Alexza
Pharmaceuticals, Inc.
2091 Stierlin Court
Mountain View, CA 94043
Attention: Chief Executive Officer
In connection
with the acquisition of shares of Common Stock, par value $0.0001
per share (the “ Common Stock ”), of Alexza
Pharmaceuticals, Inc., a Delaware corporation (the “
Company ”), by Symphony Capital Partners, L.P.
(“ SCP ”) and Symphony Strategic Partners, LLC
(“ SSP ”), both of which are members of Symphony
Allegro Holdings LLC, a Delaware limited liability company
(“Holdings” and, together with SCP and SSP and their
respective permitted successors, assigns and transferees, “
Symphony ”), pursuant to the terms of that certain
Amended and Restated Purchase Option Agreement, dated as of
June 15, 2009, among the Company, Holdings and Symphony
Allegro, Inc. (the “ Amended and Restated Purchase Option
Agreement ”), the Company and Symphony agree as
follows:
1.
Definitions . For purposes of this letter agreement, the
following terms have the respective meanings set forth
below:
“
Affiliate ” shall mean, with respect to any Person,
(i) any Person directly or indirectly controlling, controlled
by or under common control with such Person, (ii) any officer,
director, general partner, member or trustee of such Person, or
(iii) any Person who is an officer, director, general partner,
member or trustee of any Person described in clauses (i) or
(ii) of this sentence. For purposes of this definition, the
terms “controlling,” “controlled by” or
“under common control with” shall mean the possession,
direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person or entity, whether
through the ownership of voting securities, by contract or
otherwise, or the power to elect at least 50% of the directors,
managers, general partners, or persons exercising similar authority
with respect to such Person or entities.
“
Beneficially Owns ” (including the terms “
Beneficial Ownership ” or “ Beneficially
Owned ”) shall mean beneficial ownership within the
meaning of Rule 13d-3 under the Exchange Act.
“
Board ” shall mean the Board of Directors of the
Company.
“
Exchange Act ” shall mean the U.S. Securities Exchange
Act of 1934, as amended.
“
Person ” shall mean any individual, partnership
(whether general or limited), limited liability company,
corporation, trust, estate, association, nominee or other
entity.
2.
Standstill . Except for the exercise of the Alexza Closing
Warrants (as defined in the Amended and Restated Purchase Option
Agreement) and the acquisition of Alexza Closing Warrant Shares (as
defined in the Amended and Restated Purchase Option Agreement), for
so long as Symphony and its Affiliates Beneficially Own more than
10% of the Company’s outstanding Common Stock, neither
Symphony nor any of its Affiliates shall, without the prior written
consent of a majority of the independent members of the Board who
are not Affiliated with Symphony, in any manner, whether directly
or indirectly:
(a) make,
effect, initiate, cause or participate in (i) any acquisition
of Beneficial Ownership of any securities of the Company or any
securities of any subsidiary or other Affiliate of the Company,
(ii) any acquisition of any assets of the Company or any
assets of any subsidiary or other Affiliate of the Company,
(iii) any tender offer, exchange offer, merger, business
combination, recapitalization, restructuring, liquidation,
dissolution or extraordinary transaction involving the Company or
any subsidiary or other Affiliate of the Company, or involving any
securities or assets of the Company or any securities or assets of
any subsidiary or other Affiliate of the Company, or (iv) any
“solicitation” of “proxies” (as those terms
are used in the proxy rules of the Securities and Exchange
Commission (“ SEC ”)) or consents with respect
to any securities of the Company;
(b) form,
join or participate in a “group” (as defined in the
Securities Exchange Act and the rules promulgated thereunder) with
respect to the Beneficial Ownership of any securities of the
Company;
(c) without
limiting any rights of Symphony pursuant to Section 5 hereof,
act, alone or in concert with others, to seek to control or
influence the management, board of directors or policies of the
Company;
(d) take
any action that might require the Company to make a public
announcement regarding any of the types of matters set forth in
clause “(a)” of this sentence;
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