SEC Filings

S-1
AVEXIS, INC. filed this Form S-1 on 01/15/2016
Entire Document
 

 

Company, each Investor and Key Holder hereby agrees to sell his, her or its Common Stock on the terms and conditions approved by the stockholders described in subclauses (a) and (b) above (the “Approving Stockholders”). Each Investor and Key Holder agrees to take all necessary and desirable actions approved by the Approving Stockholders in connection with the consummation of an Approved Sale, including the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, escrow agreements and other provisions and agreements relating to such Approved Sale, provided that such representations, warranties and covenants are made solely by each Investor or Key Holder for his, her or its own account; and (B) effectuate the allocation and distribution of the aggregate consideration upon the consummation of the Approved Sale. Notwithstanding any provision of this Section 5.4 to the contrary, the Investors and the Key Holders shall have no obligation under this Section 5.4 unless the aggregate consideration payable upon the consummation of the Approved Sale is to be allocated and distributed in accordance with Article Fourth, Subsection B.2 of the Company’s Restated Certificate; each T. Rowe Price Investor shall have no obligation under this Section 5.4 unless the Approved Sale provides for payment at closing sufficient to return the Class D Original Issue Price (as such term is defined in the Restated Certificate) on each share of Class D Common Stock; Deerfield and Roche shall have no obligation under this Section 5.4 unless the Approved Sale provides for payment at closing sufficient to return the Class C Original Issue Price (as such term is defined in the Restated Certificate) on each share of Class C Common Stock; and PBM and the PBM Co-Investors shall have no obligation under this Section 5.4 unless the Approved Sale provides for payment at closing sufficient to return the Class B Original Issue Price (as such term is defined in the Restated Certificate) on each share of Class B Common Stock.

 

(b)                                 Exceptions.  Notwithstanding the foregoing, an Investor or Key Holder, as applicable, will not be required to comply with Subsection 5.4(a) above in connection with any Approved Sale unless:

 

(i)                                     any representations and warranties to be made by such Investor or Key Holder, as applicable, in connection with the Approved Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such shares, including, but not limited to, representations and warranties that (i) such Investor or Key Holder holds all right, title and interest in and to the shares such Investor or Key Holder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Investor or Key Holder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Investor or Key Holder have been duly executed by the Investor or Key Holder and delivered to the acquirer and are enforceable against the Investor or Key Holder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Investor or Key Holder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;

 

(ii)                                  the liability for indemnification, if any, of such Investor or Key Holder in the Approved Sale and for the inaccuracy of any representations and warranties made by the Company or its stockholders in connection with such Approved Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well

 

23



© AveXis, Inc. All Rights Reserved.