Exhibit 4.3
AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
AND CONSENT
THIS AMENDMENT TO REGISTRATION RIGHTS AGREEMENT AND CONSENT is made and
entered into as of the 31st day of July, 1998, by and between Maxygen, Inc., a
Delaware corporation (the "Company"), and the undersigned holders (the
"Investors") of the Company's Series A Preferred Stock, $0.0001 par value per
share (the "Series A Preferred") and Series B Preferred Stock, $0.0001 par value
per share (the "Series B Preferred").
RECITALS
The Company and certain of the Investors and their predecessors in interest
(the "Series A Investors") have entered into that certain Registration Rights
Agreement dated the 14th day of March, 1997, attached hereto as Exhibit A (the
"Rights Agreement"), that provides that such Investors are to receive certain
registration rights with respect to Maxygen Common Stock ("Common Stock") and
the Series A Preferred.
Certain additional investors (the "Series B Investors") have subscribed to
purchase shares of the Company's Series B Preferred Stock, $0.0001 par value per
share (the "Series B Preferred").
The Series A Investors constitute the holders of a majority of the
outstanding Registrable Securities for the purposes of Sections 13 and 17 of the
Rights Agreement.
The Company and the Investors wish to amend the Rights Agreement to add the
Series B Preferred as Registrable Securities.
The Series A Investors wish to consent to the granting of registration
rights to the Series B Investors.
The Series B Investors wish to become parties to the Rights Agreement, as
amended hereby.
NOW, THEREFORE, in consideration of the promises, mutual covenants and
conditions herein contained, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Pursuant to Section 17 of the Rights Agreement, the definition of
"Registrable Securities" contained in Section 1(d) of the Rights Agreement is
hereby amended to read as follows:
(d) "Registrable Securities" shall mean (i) shares of Common Stock
issued or issuable upon conversion of the Series A Preferred or the Series B
Preferred, (ii) shares of Common Stock held of record by any of the Investors,
(iii) shares of Common Stock issued or issuable upon conversion of any other
series of Preferred Stock of the Company as shall be agreed to in writing by a
majority of the then outstanding Registrable Securities, and (iv) shares of
Common Stock issued as a dividend or distribution with respect to, or in
exchange or in replacement of, the foregoing;
2. By executing this Agreement on the Series B Investor Signature Page,
each Series B Investor becomes a party to the Rights Agreement, as amended, as
though such Series B Investor had executed the Rights Agreement as of the date
thereof.
3. Pursuant to Section 13 of the Rights Agreement, the Investors consent
to the Company entering into the Rights Agreement with the Series B Investors.
This Agreement may be signed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment and Consent as
of the date first above written.
MAXYGEN, INC.
3410 Central Expressway
Santa Clara, California 95051
/s/ Russell J. Howard
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Signature
Russell J. Howard
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Name (please print)
President & CEO
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Title
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SERIES A INVESTORS
AFFYMAX TECHNOLOGIES N.V.
Glaxo Wellcome House
Berkeley Avenue
Greenford, Middlesex,
United Kingdom UB6 0NN
Attn:_________________
Fax:__________________
/s/ Adrian Hennah
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Signature
Adrian Hennah
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Name (please print)
Director
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Title
TECHNOGEN ASSOCIATES, L.P.
525 University Avenue, Suite 700
Palo Alto, California 94301
By: TECHNOGEN MANAGERS, L.L.C.,
its general partner
/s/ Isaac Stein
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Signature
Isaac Stein
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Name (please print)
Manager
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Title
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SERIES B INVESTOR
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT CONTINUED
SERIES B INVESTORS
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Entity (if applicable)
/s/
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Signature
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Name (please print)
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Title (if applicable)
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