Exhibit 2.1.7
PERSEID THERAPEUTICS
LLC
VOTING AGREEMENT
September 18,
2009
TABLE OF CONTENTS
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Page
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SECTION 1 VOTING
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1
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1.1
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General
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1
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SECTION 2 ELECTION OF MANAGERS
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1
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2.1
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Voting
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1
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2.2
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Designation of
Managers
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2
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2.3
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Current
Designees
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2
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2.4
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Changes in
Designees
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2
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2.5
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Size of the
Board of Managers
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3
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2.6
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No Liability
for Election of Recommended Manager
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3
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SECTION 3 DRAG-ALONG RIGHTS
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3
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3.1
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Drag-Along
Rights
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3
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SECTION 4 TERMINATION
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4
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4.1
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Termination
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4
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SECTION 5 ADDITIONAL UNITS
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4
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5.1
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Additional
Units
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4
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SECTION 6 RESTRICTIVE LEGEND
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4
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6.1
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Restrictive
Legend
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4
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SECTION 7 MISCELLANEOUS
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4
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7.1
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Certain
Definitions
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4
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7.2
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Notices
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5
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7.3
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Governing
Law
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5
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7.4
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Successors and
Assigns
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5
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7.5
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Entire
Agreement
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6
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7.6
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Titles and
Subtitles
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6
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7.7
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Further
Assurances
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6
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7.8
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No Grant of
Proxy
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6
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7.9
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Not a Voting
Trust
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6
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7.10
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Specific
Performance
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6
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7.11
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Amendment
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6
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7.12
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Jurisdiction;
Venue
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7
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7.13
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Attorneys’ Fees
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7
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-i-
TABLE OF CONTENTS
(Continued)
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Page
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7.14
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Aggregation of
Units
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7
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7.15
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Severability
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7
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7.16
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Counterparts
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7
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7.17
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Delays or
Omissions
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7
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7.18
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Conflict
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7
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7.19
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Jury
Trial
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7
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-ii-
PERSEID THERAPEUTICS
LLC
VOTING AGREEMENT
This Voting Agreement (this “
Agreement ”) is made as of September 18,
2009 by and among Perseid Therapeutics LLC, a Delaware limited
liability company (the “ Company ”),
Maxygen, Inc., a Delaware corporation (“
Maxygen ”), and Astellas Bio Inc., a Delaware
corporation (“ Bio ”) (each of Bio and
Maxygen an “ Investor ,” and collectively
the “ Investors ”), and the persons and
entities listed on Exhibit A, as amended from time to time
(each a “ Common Unitholder ,” and
collectively the “ Common Unitholders ”).
The Investors and the Common Unitholders are also referred to
herein collectively as the “ Voting Parties
.” All capitalized terms used and not defined herein shall
have such meanings as set forth in the Master Joint Venture
Agreement by and among Maxygen, Astellas Pharma Inc., and Bio dated
as of June 30, 2009 (the “ Joint Venture
Agreement ”).
RECITALS
The Company proposes to sell
Series A Preferred Units and Series B Preferred Units
(together, “ Preferred Units ”) to the
Investors pursuant to the Series A and Series B Preferred
Unit Purchase Agreement (the “ Purchase
Agreement ”) of even date herewith (the “
Financing ”). The Company’s common units
(the “ Common Units ”) together
with the Preferred Units are referred to as the “
Units .”
The Company’s LLC Agreement
provides that (i) the board of managers of the Company shall
consist of five members; and (ii) the holders of the
Company’s Preferred Units shall be entitled to elect five
managers (the “ Preferred Managers ”) so
long as at least 6,000,000 Preferred Units (as adjusted for units
dividends, units splits, combinations of units, reorganizations,
recapitalizations, reclassifications or other similar events)
remain outstanding.
As a condition to the Financing, the
Voting Parties have agreed to enter into this Agreement.
The parties therefore agree as
follows:
SECTION 1
VOTING
1.1 General . During the
term of this Agreement, the Voting Parties each agree to vote all
Units having voting rights under the LLC Agreement (“
Voting Company Units ”) now or hereafter owned
by them, whether beneficially or otherwise, or as to which they
have voting power in accordance with the provisions of this
Agreement.
SECTION 2
ELECTION OF
MANAGERS
2.1 Voting . During the
term of this Agreement and so long as at least 6,000,000 Preferred
Units (as adjusted for units dividends, units splits, combinations
of units, reorganizations, recapitalizations, reclassifications or
other similar events) remain outstanding, each Voting Party agrees
to vote all Units in such manner as may be necessary to elect (and
maintain in office) as members of the Company’s board of
managers the following individuals:
(a) the four Majority Preferred
Designees (as defined below) as four of the Preferred Managers;
and
(b) the Minority Preferred Designee
(as defined below) as one of the Preferred Managers.
2.2 Designation of Managers
. The Preferred Managers (each a “
Designee ”) shall be selected as
follows:
(a) The four “ Majority
Preferred Designees ” shall be chosen by Maxygen;
provided that , during such time as Bio holds more than
fifty percent 50% of the outstanding Units (assuming conversion of
all outstanding Preferred Units) (the “ Outstanding
Equity ”) then the four Majority Preferred Designees
shall be chosen by Bio.
(b) The one “ Minority
Preferred Designee ” shall be chosen by Bio;
provided that , during such time as Bio is entitled to
choose the Majority Preferred Designees pursuant to
Section 2.2(a) above, then, the one Minority Preferred
Designee shall be chosen by Maxygen.
(c) Notwithstanding the foregoing,
at any such time that neither Maxygen nor Bio holds greater than
50% of the Outstanding Equity, the number of Designees to be chosen
by each of Maxygen and Bio shall be determined on a ratable basis,
based on the number of Units of Outstanding Equity held by each
such Investor, with any Designees not chosen by either Maxygen or
Bio to be chosen by a majority vote of all the Outstanding Equity.
For example, if Maxygen holds 45% of the Outstanding Equity and Bio
holds 40% of the Outstanding Equity, then each of Maxygen and Bio
shall be entitled to choose two Designees and the remaining
Designee shall be chosen by a majority vote of all the Outstanding
Equity.
2.3 Current Designees
. For the purpose of this Agreement, the initial managers of
the Company shall be the following Designees:
(a) the Majority Preferred Designees
shall be Grant Yonehiro, Isaac Stein, Jim Sulat and Gordon Ringold;
and
(b) the Minority Preferred Designee
shall be Naoki Okamura.
2.4 Changes in Designees
. From time to time during the term of this Agreement, Voting
Parties who hold sufficient Units to select a Designee pursuant to
this Agreement may, in their sole discretion:
(a) notify the Company in writing of
an intention to remove from the Company’s board of managers
any incumbent Designee who occupies a board seat for which such
Voting Parties are entitled to designate the Designee;
or
(b) notify the Company in writing of
an intention to select a new Designee for election to a board seat
for which such Voting Parties are entitled to designate the
Designee (whether to replace a prior Designee or to fill a vacancy
in such board seat).
In the event of such an initiation
of a removal or selection of a Designee under this section, the
Company shall take such reasonable actions as are necessary to
facilitate such removals or elections, including, without
limitatio