exv10w52






Exhibit 10.52




August 26, 2009




Alexza Pharmaceuticals, Inc.

2091 Stierlin Court

Mountain View, CA 94043

Attention: Chief Executive Officer



Ladies and Gentlemen:



In connection with the acquisition of shares of Common Stock, par value $0.0001 per share (the
“Common Stock”), of Alexza Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), by Symphony Capital Partners, L.P. (“SCP”) and Symphony Strategic
Partners, LLC (“SSP”), both of which are members of Symphony Allegro Holdings LLC, a
Delaware limited liability company (“Holdings” and, together with SCP and SSP and their respective
permitted successors, assigns and transferees, “Symphony”), pursuant to the terms of that
certain Amended and Restated Purchase Option Agreement, dated as of June 15, 2009, among the
Company, Holdings and Symphony Allegro, Inc. (the “Amended and Restated Purchase Option
Agreement”), the Company and Symphony agree as follows:




          1. Definitions. For purposes of this letter agreement, the following terms have the
respective meanings set forth below:




          “Affiliate” shall mean, with respect to any Person, (i) any Person directly or
indirectly controlling, controlled by or under common control with such Person, (ii) any officer,
director, general partner, member or trustee of such Person, or (iii) any Person who is an officer,
director, general partner, member or trustee of any Person described in clauses (i) or
(ii) of this sentence. For purposes of this definition, the terms “controlling,”
“controlled by” or “under common control with” shall mean the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of a Person or entity,
whether through the ownership of voting securities, by contract or otherwise, or the power to elect
at least 50% of the directors, managers, general partners, or persons exercising similar authority
with respect to such Person or entities.




     “Beneficially Owns” (including the terms “Beneficial Ownership” or
“Beneficially Owned”) shall mean beneficial ownership within the meaning of Rule 13d-3
under the Exchange Act.



     “Board” shall mean the Board of Directors of the Company.



     “Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended.



     “Person” shall mean any individual, partnership (whether general or limited), limited
liability company, corporation, trust, estate, association, nominee or other entity.



 









 





          2. Standstill. Except for the exercise of the Alexza Closing Warrants (as defined in
the Amended and Restated Purchase Option Agreement) and the acquisition of Alexza Closing Warrant
Shares (as defined in the Amended and Restated Purchase Option Agreement), for so long as Symphony
and its Affiliates Beneficially Own more than 10% of the Company’s outstanding Common Stock,
neither Symphony nor any of its Affiliates shall, without the prior written consent of a majority
of the independent members of the Board who are not Affiliated with Symphony, in any manner,
whether directly or indirectly:




          (a) make, effect, initiate, cause or participate in (i) any acquisition of Beneficial
Ownership of any securities of the Company or any securities of any subsidiary or other Affiliate
of the Company, (ii) any acquisition of any assets of the Company or any assets of any subsidiary
or other Affiliate of the Company, (iii) any tender offer, exchange offer, merger, business
combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction
involving the Company or any subsidiary or other Affiliate of the Company, or involving any
securities or assets of the Company or any securities or assets of any subsidiary or other
Affiliate of the Company, or (iv) any “solicitation” of “proxies” (as those terms are used in the
proxy rules of the Securities and Exchange Commission (“SEC”)) or consents with respect to
any securities of the Company;




          (b) form, join or participate in a “group” (as defined in the Securities Exchange Act and the
rules promulgated thereunder) with respect to the Beneficial Ownership of any securities of the
Company;




          (c) without limiting any rights of Symphony pursuant to Section 5 hereof, act, alone or in
concert with others, to seek to control or influence the management, board of directors or policies
of the Company;




          (d) take any action that might require the Company to make a public announcement regarding any
of the types of matters set forth in clause “(a)” of this sentence;




          (e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any
action prohibited by clause “(a)”, “(b)”, “(c)” or “(d)” of this sentence;




          (f) assist, induce or encourage any other Person to take any action of the type prohibited by
clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence;




          (g) enter into any discussions, negotiations, arrangement or agreement with any other Person
relating to any of the foregoing; or




          (h) request or propose that the Company or any of the Company’s Affiliates amend, waive or
consider the amendment or waiver of any provision set forth in this Section 2.




          3. No Effect on Directors. Notwithstanding any of the foregoing, the provisions set
forth in Section 2 shall in no way limit the ability of any individual who is serving as a director
of the Company to take any actions (or to refrain from taking any actions) in his or her capacity
as a director of the Company.




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          4. Voting Agreement. In the event Symphony and its Affiliates Beneficially Own more
than 33% of the Company’s outstanding Common Stock, any shares of Common Stock entitled to vote for
the election of directors Beneficially Owned by Symphony and its Affiliates in excess of 33% of the
shares of Common Stock then outstanding, with respect to the election or removal of directors only,
shall be voted either, solely at Symphony’s election (a) as recommended by the Board or (b)(i) in
an election, in the same proportion with the votes of shares of Common Stock voted in such election
(excluding shares with respect to which the votes were withheld, abstained or otherwise not cast)
and not Beneficially Owned by Symphony (excluding withheld shares and abstentions) or (ii) in a
removal vote, in the same proportions as all outstanding shares of Common Stock not Beneficially
Owned by Symphony (including shares with respect to which the votes were withheld, abstained or
otherwise not cast), whether at an annual or special meeting of stockholders of the Company, by
written consent or otherwise. Symphony shall retain its right to vote (or to withhold its vote)
all of its shares on all other matters.




          5. Member of the Board. For so long as Symphony and its Affiliates Beneficially Own
more than 10% of the Company’s outstanding Common Stock, then, subject to applicable law and the
rules and regulations of the SEC and the NASDAQ Stock Market, the Company will nominate and use its
commercially reasonable efforts to cause to be elected and cause to remain as a director on the
Board one (1) individual designated by Symphony.




          6. Representations. Each party represents to the other that: (a) this letter
agreement has been duly authorized by all necessary corporate or partnership action, as the case
may be; and (b) this letter agreement is a valid and binding agreement of such party, enforceable
against it in accordance with its terms.




          7. Specific Enforcement; Legal Effect. The parties hereto agree that any breach of
this letter agreement would result in irreparable injury to the other party and that money damages
would not be an adequate remedy for such breach. Accordingly, without prejudice to the rights and
remedies otherwise available under applicable law, either party shall be entitled to specific
performance and equitable relief by way of injunction or otherwise if the other party breaches or
threatens to breach any of the provisions of this letter agreement. It is further understood and
agreed that no failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any right, power or privilege
hereunder. If any term, provision, covenant or restriction in this letter agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this letter agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, provided that the parties hereto
shall negotiate in good faith to attempt to place the parties in the same position as they would
have been in had such provision not been held to be invalid, void or unenforceable. This letter
agreement contains the entire agreement between the parties hereto concerning the matters addressed
herein. No modification of this letter agreement or waiver of the terms and conditions hereof
shall be binding upon either party hereto, unless approved in writing by each such party;
provided, however, that no waiver or amendment shall be effective as against the
Company unless such waiver or amendment is approved in writing by the vote of






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a majority of the independent members of the Board who are not Affiliated with Symphony. This
Agreement shall be governed by and construed in accordance with the law of the State of New York.




          8. Termination. This agreement shall continue in full force and effect from the date
hereof until such time as Symphony and its Affiliates Beneficially Own less than 10% of the
Company’s outstanding Common Stock.




          9. Counterparts. This letter agreement may be executed in counterpart (including by
facsimile), each of which shall be deemed an original.




[Remainder of page left blank intentionally]





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     If you are in agreement with the terms set forth above, please sign this letter agreement in
the space provided below and return an executed copy to the undersigned.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	SYMPHONY ALLEGRO HOLDINGS LLC
	 
	 	 	 	 
	 

	 	By:
	 	Symphony Capital Partners, L.P.,

its Manager
	 
	 	 	 	 
	 

	 	By:
	 	Symphony Capital GP, L.P.,

its General Partner
	 
	 	 	 	 
	 

	 	By:
	 	Symphony GP, LLC,

its General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Mark Kessel
	 

	 	 	 	 
	 

	 	Name:

Title:
	 	Mark Kessel

 Managing Member
	 
	 	 	SYMPHONY CAPITAL PARTNERS, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	Symphony Capital GP, L.P.,

its General Partner
	 
	 	 	 	 
	 

	 	By:
	 	Symphony GP, LLC,

its General Partner
	 
	 	 	By:  	 	/s/ Mark Kessel
 
	 	 	 	 	Name: Mark Kessel 
	 	 	 	 	Title: Managing Member 
	 
	 	 	SYMPHONY STRATEGIC PARTNERS, LLC

 
	 	 	By:  	 	/s/ Mark Kessel
 
	 	 	 	 	Name: Mark Kessel 
	 	 	 	 	Title: Managing Member 
	 


Confirmed and Agreed:




ALEXZA PHARMACEUTICALS, INC.




	 	 	 
	By:

	 	/s/ August J. Moretti
	 

	 	 
	Name: 
	 	August J. Moretti


	Title:

	 	
Senior Vice President and

Chief Financial Officer









Signature Page to Corporate Governance Agreement