SEC Form SC 13D/A filed by Exelixis Inc. (Amendment)

1.

Joint Acquisition Statement Pursuant to Section 240.13d-1(k), dated March 20, 2023*

2.

Form of Nomination Agreement

(a)

In the event Nominee was, is or becomes a party to or other participant in, or is threatened to be made a party to or other participant in, a Claim by reason of (or arising or allegedly arising in any manner out of or relating to in whole or in part) an Indemnifiable Event, Farallon or a designee thereof, to the fullest extent permitted by applicable law, shall indemnify and hold harmless Nominee from and against any and all Losses suffered, incurred or sustained by Nominee or to which Nominee becomes subject, arising out of such Claim (it being understood and agreed that, except as provided in Section 4(c) with respect to Expenses, reimbursements of any such Losses payable hereunder shall be made as soon as practicable but in any event no later than 30 days after written request is made to Farallon accompanied by reasonable supporting documentation).

(b)

In the case of the commencement of any Claim against Nominee in respect of which he or she may seek indemnification from Farallon hereunder, Farallon will be entitled to participate therein, including, without limitation, the negotiation and approval of any settlement of such Claim.  In addition, Farallon shall have, in its sole discretion, the right to assume control of the defense of such Claim with counsel chosen by Farallon.  To the extent that Farallon may wish to assume the defense of any Claim against Nominee in respect of which Nominee may seek indemnification from Farallon hereunder, Farallon shall provide Nominee with written notice of Farallon’s election to assume the defense of such Claim.  From and after such election by Farallon to assume defense of a Claim, Farallon will not be liable to Nominee under this Agreement for any Expenses subsequently incurred by Nominee in connection with the defense thereof other than reasonable costs of investigation and preparation therefor (including, without limitation, appearing as a witness and reasonable fees and expenses of legal counsel in connection therewith).  If, in any action for which indemnity may be sought hereunder, Farallon shall not have timely assumed the defense thereof, or Nominee shall have been advised by his or her independent counsel in writing that it would constitute a conflict of interest for the same counsel to represent both Nominee and Farallon in such action, or if Nominee has been advised by his or her independent counsel that Nominee has separate or additional defenses than those available to Farallon with regard to such action, Nominee shall have the right to employ his or her own counsel reasonably satisfactory to Farallon in such action, in which event Farallon shall pay directly or reimburse Nominee for any reasonable documented costs not paid directly for all reasonable documented out-of-pocket legal fees and expenses incurred by Nominee in connection with the defense thereof; provided, however, that Farallon shall be obligated to pay for only one firm to serve as counsel for all of Farallon’s nominees for election to the Board of Directors, unless Nominee has been informed by independent counsel that there are conflicts of interest or additional defenses for Nominee relative to the other nominees.  Nominee shall not settle any action, and Farallon shall not be responsible for any settlement of any claim against Nominee covered by this Agreement, without the prior written consent of Farallon, which consent shall not be unreasonably delayed or withheld.  Farallon shall not settle any Claim in any manner that would impose any expense, penalty, obligation or limitation on Nominee that could reasonably be viewed as an acknowledgment of wrongdoing on the part of Nominee, without Nominee’s prior written consent (which consent shall not be unreasonably conditioned, delayed or withheld).

(c)

Nominee’s right to indemnification pursuant to this Section 4 shall include the right of Nominee to be advanced by Farallon or a designee thereof any Expenses incurred in connection with any Indemnifiable Event as such expenses are incurred by Nominee; provided, however, that all amounts advanced in respect of such Expenses shall be promptly repaid to Farallon or a designee thereof by Nominee to the extent it shall ultimately be determined in a final judgment by a court of competent jurisdiction that Nominee is not entitled to be indemnified for or advanced such Expenses.  The indemnification and reimbursement arrangements contemplated herein shall only take effect if Nominee is publicly named by Farallon or an affiliate thereof as a member of the Slate.

(d)

Notwithstanding any other provision of this Agreement to the contrary, the indemnity and expense reimbursement obligations of Farallon under this Agreement will not apply to any event or occurrence (i) prior to the date hereof, (ii) subsequent to the conclusion of the Solicitation or as such earlier time as you are no longer a member of the Slate or (iii) relating to or directly or indirectly arising out of Nominee’s service as a director of the Company.