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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
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CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 20, 2004
EXELIXIS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 0-30235 04-3257395
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(State or Other (Commission File Number) (IRS Employer
Jurisdiction of Incorporation) Identification No.)
170 Harbor Way
P.O. Box 511
South San Francisco, California 94083
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(Address of principal executive offices, and including zip code)
(650) 837-7000
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(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01 Entry into a Material Definitive Agreement
On September 20, 2004, Exelixis, Inc. (the "Company") and SmithKlineBeecham
Corporation ("GSK"), entered into a Second Amendment (the "Amendment") to the
Loan and Security Agreement, dated October 28, 2002 (the "Loan Agreement").
Under the terms of the Amendment, the Company may comply either with its
existing financial covenants set forth in Sections 11.1 and 11.2 of the Loan
Agreement and the Amendment or with an alternative new financial covenant set
forth in Section 11.3 of the Amendment. The Company may comply with the
alternative new financial covenant for a period from September 15, 2004 through
March 31, 2005 after which time the Company must again comply with its existing
financial covenants.
Under Section 11.1 of the Loan Agreement and the Amendment, the Company must not
permit Working Capital (as defined in the Loan Agreement and the Amendment) to
be less than $25,000,000.
Under Section 11.2 of the Loan Agreement and the Amendment, the Company must not
permit Tangible Net Worth (as defined in the Loan Agreement and the Amendment)
to be less than $10,000,000.
Under Section 11.3 of the Amendment, the Company must not permit Cash and
Investments (as defined in the Amendment) to be less than $50,000,000.
A copy of the Amendment is attached hereto as Exhibit 10.1. The description of
the Amendment in this Current Report on Form 8-K is qualified in its entirety by
reference to the complete copy of the Amendment attached hereto as an exhibit.
The Loan Agreement is part of the collaboration between the Company and GSK that
was established in October 2002 to discover and develop novel therapeutics in
the areas of vascular biology, inflammatory disease and oncology. The
collaboration involves three agreements: (a) a Product Development and
Commercialization Agreement; (b) a Stock Purchase and Stock Issuance Agreement;
and (c) the Loan Agreement.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
Exhibit 10.1 Second Amendment to Loan and Security Agreement, effective
September 20, 2004, between Exelixis, Inc. and SmithKline Beecham Corporation
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: September 23, 2004
Exelixis, Inc.
/s/ Christoph Pereira
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Christoph Pereira
Vice President, Legal Affairs and Secretary
SECOND AMENDMENT TO LOAN AND SECURITY
AGREEMENT
THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (the "Second
Amendment") is made and effective as of this 20th day of September, 2004
("Effective Date") by and between Exelixis, Inc., a Delaware corporation
("Exelixis"), and SmithKline Beecham Corporation, a Pennsylvania corporation,
doing business as GlaxoSmithKline ("GSK"). Exelixis and GSK are each referred to
herein by name or as a "Party" or collectively, as "Parties". All capitalized
terms used, but not specifically defined, herein shall have the same meaning
provided for such terms in the Loan Agreement.
WHEREAS, Exelixis and GSK are parties to that certain Loan and Security
Agreement dated October 28, 2002 as amended by a First Amendment to Loan and
Security Agreement dated December 5, 2002 (the Loan and Security Agreement as
amended by such First Amendment, the "Loan Agreement");
WHEREAS, Exelixis and GSK desire to amend certain covenants contained in
the Loan Agreement in furtherance of the Parties' ongoing collaboration; and
WHEREAS, pursuant to Section 8.1 of the Loan Agreement, the Parties may
agree to amend the Loan Agreement by mutual written agreement of the Parties.
NOW, THEREFORE, in consideration of the foregoing and of other good and
valuable consideration, the receipt and sufficiency of which are herby
acknowledged, GSK and Exelixis agree that Article 11 of the Loan Agreement shall
be amended in its entirety effective as of September 15, 2004 to read as
follows:
ARTICLE 11
FINANCIAL COVENANTS
Exelixis covenants and agrees that for the period from September 15, 2004
through March 31, 2005 Exelixis shall comply either with (a) the covenants set
forth in both Sections 11.1 and 11.2 or (b) the covenant set forth in Section
11.3. For the period from April 1, 2005 through the balance of the Term,
Exelixis shall comply with the covenants set forth in both Sections 11.1 and
11.2.
11.1 Working Capital. Exelixis shall not cause or permit Working Capital to
be less than Twenty-Five Million Dollars ($25,000,000), the term "Working
Capital" meaning, as of the time of any determination thereof, the amount
determined in accordance with GAAP, by which the current assets of Exelixis
exceed its current liabilities.
11.2 Tangible Net Worth. Exelixis shall not cause or permit Tangible Net
Worth to be less than Ten Million Dollars ($10,000,000), the term "Tangible Net
Worth" meaning, as of the time of any determination thereof, total stockholder
equity less good will and other intangible assets as reported by Exelixis in its
SEC Filings prepared in accordance with GAAP.
11.3 Minimum Cash and Investments. Exelixis shall not cause or permit Cash
and Investments to be less than Fifty Million Dollars ($50,000,000). The term
"Cash and Investments" meaning, as of the time of any determination thereof,
total cash, cash equivalents and investments as reported by Exelixis in its SEC
Filings prepared in accordance with GAAP.
All other conditions of the Loan Agreement, as amended and all other
writings submitted by Exelixis to GSK pursuant thereto, shall remain unchanged
and in full force and effect.
This Second Amendment shall not constitute a waiver or modification of any
of GSK's rights and remedies or any of the terms, conditions, warranties,
representations, or covenants contained in the Loan Agreement, as amended,
except as specifically set forth above, and GSK hereby reserves all of its
rights and remedies pursuant to the Loan Agreement and applicable law.
In WITNESS WHEREOF, the parties have executed this Second Amendment to Loan
and Security Agreement as of the date written above.
Exelixis, Inc.
By: /s/ Frank Karbe
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Name: Frank Karbe
Title: Senior Vice President &
Chief Financial Officer
SmithKline Beecham Corporation
By: /s/ Donald F. Parman
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Name: Donald F. Parman
Title: Vice President & Secretary