EX-10.46






CYTOKINETICS, INCORPORATED




COMMON STOCK PURCHASE AGREEMENT




THIS COMMON STOCK PURCHASE AGREEMENT (the “Agreement”) is made as of December 22nd, 2014 (the
“Execution Date”) by and between Cytokinetics, Incorporated, a Delaware corporation (the
“Company”), and Astellas Pharma Inc. (the “Investor”). All terms not defined herein shall have the
meaning set forth for such terms in the Amended and Restated License and Collaboration Agreement,
dated as of December 22nd, 2014 by and between the Company and the Investor, as amended on the date
hereof (the “Collaboration Agreement”).



RECITALS




WHEREAS, the Company and the Investor have entered into the Collaboration Agreement of even
date herewith;



WHEREAS, in partial consideration for the additional rights granted to the Investor under the
Collaboration Agreement and pursuant to terms set forth in this Agreement the Company desires to
sell to the Investor, and the Investor desires to purchase from the Company, shares of the
Company’s common stock, par value $0.001 per share (the “Common Stock”);



NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and
contained in the Collaboration Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



SECTION 1




Purchase and Sale of Shares




1.1 Sale of Shares. Subject to the terms and conditions hereof and of the Collaboration
Agreement, the Company will issue and sell to the Investor, and the Investor will purchase from the
Company, at the Closing, Ten Million Dollars ($10,000,000) (the “Aggregate Purchase Price”) worth
of Common Stock at a price per share equal to the greater of (a) the closing price of one share of
common stock of the Company on the trading day immediately preceding the public announcement of the
entry into the Collaboration Agreement, and (b) the average of the closing price of one share of
Common Stock for each of the ten (10) trading days immediately preceding the Execution Date, in
either case with the number of such shares rounded down to the nearest whole share (such number of
shares hereafter referred to as the “Shares”) and in both cases based on the closing prices as
reported by the NASDAQ Capital Market.



1.2 Closing. The purchase and sale of the Shares shall take place at a closing (the “Closing”)
to be held at the offices of Cooley LLP, 3175 Hanover Street, Palo Alto, California 94304-1130, on
the third trading day following the date hereof, or such other time as agreed by both parties (the
“Closing Date”). At the Closing, the Company will deliver or cause to be delivered to the Investor
a certificate or certificates representing the Shares that the Investor is purchasing and,
concurrently, the Investor shall pay the Aggregate Purchase Price by (a) check payable to the
Company, (b) wire transfer in accordance with the Company’s instructions, or (c) any combination of
the foregoing.



SECTION 2




Representations and Warranties of the Company




Except as set forth on the Schedule of Exceptions attached hereto as Exhibit A, the
Company hereby represents and warrants the following as of the Execution Date:



2.1 Organization and Good Standing and Qualifications. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of Delaware and has
all requisite power and authority to own, lease, operate and occupy its properties and to carry on
its business as now being conducted. Except as set forth in the Commission Documents (as defined
below), the Company does not own more than 50% of the outstanding capital stock of or control any
other business entity. The Company is duly qualified as a foreign corporation to do business and is
in good standing in every jurisdiction in which the nature of the business conducted or property
owned or leased by it makes such qualification necessary, other than those in which the failure so
to qualify or be in good standing would not have a Material Adverse Effect. For purposes of this
Agreement, “Material Adverse Effect” shall mean any event or condition that would reasonably be
likely to have a material adverse effect on the business, operations, properties or financial
condition of the Company and its consolidated subsidiaries, taken as a whole; provided,
that none of the following shall constitute a “Material Adverse Effect”: the effects of conditions
or events that are generally applicable to the capital, financial, banking or currency markets and
the biotechnology industry, and changes in the market price of the Common Stock.



2.2 Authorization. (i) The Company has the requisite corporate power and authority to enter
into and perform its obligations under this Agreement; (ii) the execution and delivery of this
Agreement by the Company, the consummation by the Company of the transactions contemplated hereby
and thereby and the issuance, sale and delivery of the Shares have been duly authorized by all
necessary corporate action and no further consent or authorization of the Company or its Board of
Directors or stockholders is required; and (iii)  the Agreement has been duly executed and
delivered and constitutes a valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, securities, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors’ rights and remedies, or indemnification or by other equitable principles
of general application.



2.3 Valid Issuance of Shares. The issuance of the Shares has been duly authorized by all
requisite corporate action. When the Shares are issued, sold and delivered in accordance with the
terms of this Agreement for the consideration expressed herein, the Shares will be duly and validly
issued and outstanding, fully paid, and nonassessable, and will be free of restrictions on transfer
other than restrictions on transfer under this Agreement and under applicable state and federal
securities laws and, except as otherwise set forth herein or in the Collaboration Agreement, the
Investor shall be entitled to all rights accorded to a holder of shares of Common Stock. The
Company has reserved a sufficient number of shares of Common Stock for issuance to the Investor in
accordance with the Company’s obligations under this Agreement.



2.4 No Conflict. The execution, delivery and performance of this Agreement, and any other
document or instrument contemplated hereby, by the Company and the consummation by the Company of
the transactions contemplated hereby, do not: (i) violate any provision of the Certificate or
Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time
or both would become a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any material agreement, mortgage, deed of trust, indenture, note,
bond, license, lease agreement, instrument or obligation to which the Company is a party where such
default or conflict would constitute a Material Adverse Effect, (iii) create or impose a lien,
charge or encumbrance on any property of the Company under any agreement or any commitment to which
the Company is a party or by which the Company is bound, which would constitute a Material Adverse
Effect, (iv) result in a violation of any federal, state, local or foreign statute, rule,
regulation, order, writ, judgment or decree (including federal and state securities laws and
regulations) applicable to the Company or any of its subsidiaries or by which any property or asset
of the Company are bound or affected where such violation would constitute a Material Adverse
Effect, or (v) require any consent of any third-party that has not been obtained pursuant to any
material contract to which the Company is subject or to which any of its assets, operations or
management may be subject where the failure to obtain any such consent would constitute a Material
Adverse Effect. The Company is not required under federal, state or local law, rule or regulation
to obtain any consent, authorization or order of, or make any filing or registration with, any
court or governmental agency in order for it to execute, deliver or perform any of its obligations
under this Agreement or issue and sell the Shares in accordance with the terms hereof (other than
any filings that may be required to be made by the Company with the Securities and Exchange
Commission (the “Commission”), the National Association of Securities Dealers, Inc./Nasdaq or state
securities commissions subsequent to the Closing); provided that, for purposes of the
representation made in this sentence, the Company is assuming and relying upon the accuracy of the
relevant representations and agreements of the Investor herein.



2.5 Compliance. The Company is not, and the execution and delivery of this Agreement and the
consummation of the transactions contemplated herewith will not cause the Company to be (i) in
violation or default of any provision of any instrument, mortgage, deed of trust, loan, contract,
commitment filed with the Commission Documents, (ii) in violation of any provision of any judgment,
decree, order or obligation to which it is a party or by which it or any of its properties or
assets are bound, or (iii) in violation of any federal, state or, to its knowledge, local statute,
rule or governmental regulation, in the case of each of clauses (i), (ii) and (iii), which would
have a Material Adverse Effect.



2.6 Capitalization. As of October 31, 2014 (the “Reference Date”), a total of 36,608,781
shares of Common Stock were issued and outstanding, increased as set forth in the next sentence.
Other than in the ordinary course of business, the Company has not issued any capital stock since
the Reference Date other than pursuant to (i) employee benefit plans disclosed in the Commission
Documents, and (ii) outstanding warrants, options or other securities disclosed in the Commission
Documents. The outstanding shares of capital stock of the Company have been duly and validly
issued and are fully paid and nonassessable, were not issued in violation of any preemptive rights
or similar rights to subscribe for or purchase securities, and, for those shares issued until the
Closing, have been issued in compliance with all federal and state securities laws, in each case
except as would not reasonably be expected to have a Material Adverse Effect. Except as set forth
in the Commission Documents, there are no outstanding rights (including, without limitation,
preemptive rights), warrants or options to acquire, or instruments convertible into or exchangeable
for, any unissued shares of capital stock or other equity interest in the Company, or any contract,
commitment, agreement, understanding or arrangement of any kind to which the Company is a party and
relating to the issuance or sale of any capital stock of the Company, any such convertible or
exchangeable securities or any such rights, warrants or options. Without limiting the foregoing, no
preemptive right, co-sale right, right of first refusal, registration right, or other similar right
exists with respect to the Shares or the issuance and sale thereof. Except as disclosed in the
Commission Documents, there are no shareholder agreements, voting agreements or other similar
agreements with respect to the voting of the Shares to which the Company is a party or, to the
knowledge of the Company, between or among any of the Company’s shareholders.



2.7 Commission Documents, Financial Statements. The Company’s Common Stock is registered
pursuant to Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and during the past twelve (12) months the Company has timely filed all reports,
schedules, forms, statements and other documents required to be filed by it with the Commission
pursuant to the reporting requirements of the Exchange Act, including material filed pursuant to
Section 13(a) or 15(d) of the Exchange Act (all of the foregoing, including filings incorporated by
reference therein, being referred to herein as the “Commission Documents”). The Company’s Common
Stock is currently listed or quoted on the NASDAQ Capital Market. The Company is not in violation
of the listing requirements of the NASDAQ Capital Market and has no knowledge of any facts that
would reasonably lead to delisting or suspension of its common stock from NASDAQ in the foreseeable
future. As of its date, each Commission Document filed within the past twelve (12) months for the
year ended December 31, 2013 complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission promulgated thereunder applicable to
such document, and, as of its date, after giving effect to the information disclosed and
incorporated by reference therein, no such Commission Document within the past twelve (12) months
contained any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. As of their respective dates, the financial statements
of the Company included in the Commission Documents filed with the Commission during the past
twelve months complied as to form and substance in all material respects with applicable accounting
requirements and the published rules and regulations of the Commission or other applicable rules
and regulations with respect thereto. Such financial statements have been prepared in accordance
with generally accepted accounting principles (“GAAP”) applied on a consistent basis during the
periods involved (except (i) as may be otherwise indicated in such financial statements or the
notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not
include footnotes or may be condensed or summary statements), and fairly present in all material
respects the financial position of the Company as of the dates thereof and the results of
operations and cash flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments).



2.8 Internal Controls and Procedures. The Company maintains disclosure controls and procedures
as such terms are defined in, and required by, Rule 13a-15 and Rule 15d-15 under the Exchange Act.
Such disclosure controls and procedures are effective as of the latest date of management’s
evaluation of such disclosure controls and procedures as set forth in the Commission Documents to
ensure that all material information required to be disclosed by the Company in the reports that it
files or furnishes under the Exchange Act is recorded, processed, summarized and reported within
the time periods specified in the rules and forms of the Commission. The Company maintains a system
of internal controls over financial reporting sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific authorizations; and
(ii) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP.



2.9 Material Adverse Change. Except as disclosed in the Commission Documents, since September
30, 2014, no event or series of events has or have occurred that would, individually or in the
aggregate, have a Material Adverse Effect on the Company.



2.10 No Undisclosed Liabilities. To the Company’s knowledge, neither the Company nor any of
its subsidiaries has any liabilities, obligations, claims or losses (whether liquidated or
unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that would be
required to be disclosed on a balance sheet of the Company or any of its subsidiaries (including
the notes thereto) in conformity with GAAP and are not disclosed in the Commission Documents, other
than those incurred in the ordinary course of the Company’s or its subsidiaries’ respective
businesses since September 30, 2014 or which, individually or in the aggregate, do not or would not
have a Material Adverse Effect on the Company.



2.11 No Undisclosed Events or Circumstances. Except for the transactions contemplated by this
Agreement and the Collaboration Agreement, no event or circumstance has occurred or exists with
respect to the Company, its subsidiaries, or their respective businesses, properties, operations or
financial condition, which, under applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or disclosed and which,
individually or in the aggregate, would have a Material Adverse Effect on the Company.



2.12 Actions Pending. There is no action, suit, claim, investigation or proceeding pending or,
to the knowledge of the Company, threatened against the Company or any subsidiary which questions
the validity of this Agreement or the transactions contemplated hereby or any action taken or to be
taken pursuant hereto. Except as set forth in the Commission Documents or as previously disclosed
in writing to the Investor, there is no action, suit, claim, investigation or proceeding pending
or, to the knowledge of the Company, threatened, against or involving the Company, any subsidiary,
or any of their respective properties or assets that could be reasonably expected to have a
Material Adverse Effect on the Company. Except as set forth in the Commission Documents or as
previously disclosed to the Investor in writing, no judgment, order, writ, injunction or decree or
award has been issued by or, to the knowledge of the Company, requested of any court, arbitrator or
governmental agency which could be reasonably expected to result in a Material Adverse Effect.



2.13 Compliance with Law. The businesses of the Company and its subsidiaries have been and are
presently being conducted in accordance with all applicable federal, state and local governmental
laws, rules, regulations and ordinances, except as set forth in the Commission Documents or such
that would not reasonably be expected to cause a Material Adverse Effect. Except as set forth in
the Commission Documents, the Company and each of its subsidiaries have all franchises, permits,
licenses, consents and other governmental or regulatory authorizations and approvals necessary for
the conduct of its business as now being conducted by it, except for such franchises, permits,
licenses, consents and other governmental or regulatory authorizations and approvals, the failure
to possess which, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.



2.14 Exemption from Registration, Valid Issuance. Subject to, and in reliance on, the
representations, warranties and covenants made herein by the Investor, the issuance and sale of the
Shares in accordance with the terms and on the bases of the representations and warranties set
forth in this Agreement, may and shall be properly issued pursuant to Section 4(a)(2) of the
Securities Act of 1933, as amended (the “Securities Act”), Regulation D promulgated pursuant to the
Act (“Regulation D”) and/or any other applicable federal and state securities laws. The sale and
issuance of the Shares pursuant to, and the Company’s performance of its obligations under, this
Agreement will not (i) result in the creation or imposition of any liens, charges, claims or other
encumbrances upon the Shares or any of the assets of the Company, or (ii) except as previously
disclosed to the Investor in writing, entitle the holders of any outstanding shares of capital
stock of the Company to preemptive or other rights to subscribe to or acquire the Shares or other
securities of the Company.



2.15 Transfer Taxes. All stock transfer or other taxes (other than income taxes) which are
required to be paid in connection with the sale and transfer of the Shares to be sold to Investor
hereunder will be, or will have been, fully paid or provided for by the Company and all laws
imposing such taxes will be or will have been fully complied with.



2.16 Investment Company. The Company is not and, after giving effect to the offering and sale
of the Shares, will not be an “investment company” as defined in the Investment Company Act of
1940, as amended.



2.17 Brokers. Except as expressly set forth in this Agreement or the Collaboration Agreement,
no brokers, finders or financial advisory fees or commissions will be payable by the Company or any
of its subsidiaries in respect of the transactions contemplated by this Agreement or the
Collaboration Agreement.



SECTION 3




Representations and Warranties of the Investor




The Investor hereby represents and warrants the following as of the date hereof and as of the
Closing Date:



3.1 Experience. The Investor is experienced in evaluating companies such as the Company, has
such knowledge and experience in financial and business matters that the Investor is capable of
evaluating the merits and risks of the Investor’s prospective investment in the Company, and has
the ability to bear the economic risks of the investment.



3.2 Investment. The Investor is acquiring the Shares for investment for the Investor’s own
account and not with the view to, or for resale in connection with, any distribution thereof. The
Investor understands that the Shares have not been and will not be registered under the Securities
Act by reason of a specific exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the investment intent as expressed
herein. The Investor acknowledges and agrees that the Shares purchased by the Investor, until
disposition of such Shares in accordance with the provisions of this Agreement, shall remain at all
times within the Investor’s control. The Investor further represents that it does not have any
contract, undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to any third person with respect to any of the Shares.



3.3 Rule 144. The Investor acknowledges that the Shares must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such registration is
available. The Investor is aware of the provisions of Rule 144 promulgated under the Securities
Act which permit limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions. In connection therewith, the Investor acknowledges that the
Company will make a notation on its stock books regarding the restrictions on transfers set forth
in this Section 3 and will transfer the Shares on the books of the Company only to the extent not
inconsistent therewith.



3.4 Access to Information. The Investor has received and reviewed information about the
Company and has had an opportunity to discuss the Company’s business, management and financial
affairs with its management and to review the Company’s facilities. The Investor has had a full
opportunity to ask questions of and receive answers from the Company, or any person or persons
acting on behalf of the Company, concerning the terms and conditions of an investment in the
Shares. The Investor is not relying upon, and has not relied upon, any statement, representation
or warranty made by any person, except for the statements, representations and warranties contained
in this Agreement and the Collaboration Agreement.



3.5 Authorization. This Agreement when executed and delivered by the Investor will constitute
a valid and legally binding obligation of the Investor, enforceable in accordance with its terms,
subject to: (i) judicial principles respecting election of remedies or limiting the availability
of specific performance, injunctive relief, and other equitable remedies; and (ii) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in effect generally
relating to or affecting creditors’ rights.



3.6 Investor Status. The Investor acknowledges that it is either (i) an institutional
“accredited investor” as defined in Rule 501(a) of Regulation D of the Securities Act (an
“Institutional Accredited Investor”) or (ii) a “qualified institutional buyer” as defined in
Rule 144A of the Securities Act, as indicated on Schedule A hereto, and the Investor shall submit
to the Company such further assurances of such status as may be reasonably requested by the
Company.



3.7 No Inducement. The Investor was not induced to participate in the offer and sale of the
Shares by the filing of any registration statement in connection with any public offering of the
Company’s securities, and the Investor’s decision to purchase the Shares hereunder was not
influenced by the information contained in any such registration statement.



SECTION 4




Conditions to Investor’s Obligations at Closing




The obligations of the Investor under this Agreement are subject to the fulfillment on or
before the Closing of each of the following conditions, any of which may be waived in writing by
the Investor (except to the extent not permitted by law):



4.1 No Injunction, etc. No preliminary or permanent injunction or other binding order, decree
or ruling issued by a court or governmental agency shall be in effect which shall have the effect
of preventing the consummation of the transactions contemplated by this Agreement. No action or
claim shall be pending before any court or quasi-judicial or administrative agency of any federal,
state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction,
judgment, order, decree, ruling or charge would be reasonably likely to (i) prevent consummation of
any of the transactions contemplated by this Agreement, (ii) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation or (iii) have the effect of
making illegal the purchase of, or payment for, any of the Shares by the Investor.



4.2 Representations and Warranties. The representations and warranties of the Company
contained in Section 2 shall have been true and correct in all material respects (except for such
representations and warranties that are qualified by materiality which shall be true and correct in
all respects) on and as of the Execution Date with the same effect as though such representations
and warranties had been made on and as of such date.



4.3 Performance. The Company shall have performed and complied with all covenants,
agreements, obligations and conditions contained in this Agreement that are required to be
performed or complied with by it on or before the Execution Date.



4.4 Compliance Certificate. A duly authorized officer of the Company shall deliver to the
Investor at the Closing a certificate stating that the conditions specified in Sections 4.2 and 4.3
have been fulfilled and certifying and attaching the Company’s Certificate of Incorporation, Bylaws
and authorizing Board of Directors resolutions with respect to this Agreement, the Collaboration
Agreement and the transactions contemplated hereby and thereby.



4.5 Securities Laws. The offer and sale of the Shares to the Investor pursuant to this
Agreement shall be exempt from the registration requirements of the Securities Act and the
registration and/or qualification requirements of all applicable state securities laws.



4.6 Authorizations. All authorizations, approvals or permits, if any, of any governmental
authority or regulatory body that are required in connection with the lawful issuance and sale of
the Shares pursuant to this Agreement shall have been duly obtained and shall be effective on and
as of the Closing.



4.7 Legal Opinion. The Investor shall have received a legal opinion from Cooley LLP
containing the substance set forth on Exhibit B attached hereto.



SECTION 5




Conditions to the Company’s Obligations at Closing




The obligations of the Company to the Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by the Investor:



5.1 Representations and Warranties. The representations and warranties of the Investor
contained in Section 3 shall be true and correct in all material respects (except for such
representations and warranties that are qualified by materiality which shall be true and correct in
all respects) on and as of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.



5.2 Securities Law Compliance. The offer and sale of the Shares to the Investor pursuant to
this Agreement shall be exempt from the registration requirements of the Securities Act and the
registration and/or qualification requirements of all applicable state securities laws.



5.3 Authorization. All authorizations, approvals or permits, if any, of any governmental
authority or regulatory body that are required in connection with the lawful issuance and sale of
the Shares pursuant to this Agreement shall have been duly obtained and shall be effective on and
as of the Closing.



SECTION 6




Investor Covenants




6.1 Trading Restrictions.



(a) Definitions.



(i) “Affiliate” shall have the meaning set forth in Rule 12b-2 of the regulations promulgated
under the Securities Exchange Act of 1934, as amended.



(ii) “Restriction Period” shall mean the period commencing on the Closing Date and continuing
until the date that is two (2) years from such date.



(iii) “Significant Event” shall mean any of the following not involving a violation of this
Section 6: (A) the public announcement of a proposal or intention to acquire, or the acquisition,
by any person or 13D Group of beneficial ownership of Voting Securities representing 15% or more of
the then outstanding Voting Securities; (B) the public announcement of a proposal or intention to
commence, or the commencement, by any person or 13D Group of a tender or exchange offer to acquire
Voting Securities which, if successful, would result in such person or 13D Group owning, when
combined with any other Voting Securities owned by such person or 13D Group, 15% or more of the
then outstanding Voting Securities; or (C) the entry into by the Company, or the public
announcement by the Company of an intention or determination to enter into, any merger, sale or
other business combination transaction, or an agreement therefor, pursuant to which the outstanding
shares of capital stock of the Company would be converted into cash, other consideration or
securities of another person or 13D Group or 50% or more of the then outstanding shares of capital
stock of the Company would be owned by persons other than the then current holders of shares of
capital stock of the Company, or which would result in all or a substantial portion of the
Company’s assets being sold to any person or 13D Group.



(iv) “Voting Securities” shall mean at any time shares of any class of capital stock of the
Company which are then entitled to vote generally in the election of directors.



(v) “13D Group” shall mean, with respect to the Voting Securities of the Company, any group of
persons formed for the purpose of acquiring, holding, voting or disposing of such Voting Securities
which would be required under Section 13(d) of the Exchange Act and the rules and regulations
thereunder to file a statement on Schedule 13D with the Commission as a “person” within the meaning
of Section 13(d)(3) of the Exchange Act if such group beneficially owned Voting Securities
representing more than 5% of the total combined voting power of all such Voting Securities then
outstanding.



(b) Restriction Period No Sell. The Investor agrees that during the Restriction
Period, neither the Investor nor any of its Affiliates shall offer, sell, contract to sell, pledge,
grant any option to purchase, make any short sale or otherwise dispose of in any manner, either
directly or indirectly (“Sale” or “Sell”), any Shares, or any securities of the Company issued as a
dividend or distribution on, or involving a recapitalization or reorganization with respect to,
such Shares (collectively, “Covenant Shares”), other than transfers of securities between and
among the Company and any one or more of its Affiliates. The Company shall use commercially
reasonable efforts to permit the Shares to be eligible for clearance and settlement through the
facilities of The Depository Trust Company immediately following the termination of the Restriction
Period.



(c) Post-Restriction Period Selling Restrictions. After the Restriction Period,
neither the Investor nor its Affiliates shall Sell a number of Covenant Shares in any three-month
period that collectively exceeds 25% of the aggregate Covenant Shares held by the Investor and its
Affiliates as of the end of the Restriction Period (such number of Covenant Shares, the
“Post-Restriction Allowance”), provided, however, that (i) if in any such three-month period the
Investor and its Affiliates Sell a number of Covenant Shares that is less than the Post-Restriction
Allowance (such shortfall, the “Carry-Forward Allowance”), the Investor and its Affiliates
may Sell any Carry-Forward Allowance in any subsequent three-month period, along with the
Post-Restriction Allowance for such subsequent three-month period, and (ii) the Investor and its
Affiliates may continue to Sell any portion of any Carry-Forward Allowance in any three-month
period until the Investor and its Affiliates have Sold all of such Carry-Forward Allowance.
Notwithstanding the foregoing, (x) the Investor and its Affiliates may not sell a number of
Covenant Shares in any three-month period following the Restriction Period that collectively
exceeds 37.5% of the aggregate Covenant Shares held by the Investor and its Affiliates as of the
end of the Restriction Period, and (y) the limitations set forth in this Section 6.1(c) shall not
apply to transfers of securities between and among the Company and any one or more of its
Affiliates. For any proposed Sale of 100,000 or more shares of Common Stock of the Company by the
Investor or any of its Affiliates in any single transaction or series of related transactions
(“Proposed Sale Shares”), the Investor shall give the Company at least 30 days prior written notice
of such sale. During such 30 day period, the Company may seek to find a buyer for the Proposed Sale
Shares.



(d) Termination of Collaboration Agreement. The restrictions contained in Sections
6.1(b) and (c) shall expire as follows:



(i) The restrictions contained in Section 6.1(b) shall expire on the earlier of (A) the date
of the expiration of the Restriction Period or (B) the date that is six (6) months following the
expiration or termination of the Collaboration Agreement in accordance with the terms thereof;



(ii) The restrictions contained in Section 6.1(c) shall expire on the date that is six (6)
months following the expiration or termination of the Collaboration Agreement in accordance with
the terms thereof.



(e) Occurrence of Significant Event. The restrictions contained in Sections 6.1(b)
and (c) shall be suspended and shall not apply to or otherwise restrict the Investor’s actions in
respect of the Company’s securities for so long as a Significant Event has occurred and is
continuing.



6.2 Invalid Transfers. Any sale, assignment or other transfer of Covenant Shares by the
Investor or any of its Affiliates, as applicable, contrary to the provisions of this Section 6
shall be null and void, and the transferee shall not be recognized by the Company as the holder or
owner of the Covenant Shares sold, assigned, or transferred for any purpose (including, without
limitation, voting or dividend rights), unless and until the Investor or such Affiliate, as
applicable, has satisfied the requirements of this Section 6 with respect to such sale. The
Investor shall provide the Company with written evidence that such requirements have been met or
waived, prior to it or its Affiliates consummating any sale, assignment or other transfer of
securities, and no Covenant Shares shall be transferred on the books of the Company until such
written evidence has been received by the Company from the Investor. The Company, or, at the
instruction of the Company, the transfer agent of the Company, may place a legend on any
certificate representing Covenant Shares stating that such shares are subject to the restrictions
contained in this Agreement. Upon delivery by the Investor of the written evidence required above,
the Company agrees to facilitate the timely preparation and delivery (but in no event longer than
seven (7) business days) of certificates representing the Covenant Shares to be sold by the
Investor or any Affiliate free of any restrictive legends and in such denominations and registered
in such names as the Investor or such Affiliate may request in connection with such sale.



6.3 Performance by Affiliates. The Investor shall remain responsible for and guarantee its
Affiliates’ performance in connection with this Agreement, and shall cause each such Affiliate to
comply fully with the provisions of this Agreement in connection with such performance. The
Investor hereby expressly waives any requirement that the Company exhaust any right, power or
remedy, or proceed directly against such an Affiliate, for any obligation or performance hereunder,
prior to proceeding directly against the Investor.



SECTION 7




Registration Rights




7.1 Rule 144 Reporting. With a view to making available to the Investor the benefits of
certain rules and regulations of the Commission which may permit the sale of the Shares to the
public without registration, the Company agrees to use commercially reasonable efforts to:



(a) Make and keep public information available, as those terms are understood and defined in
Rule 144 promulgated under the Securities Act;



(b) File with the Commission in a timely manner all reports and other documents required of
the Company under the Exchange Act; and



(c) Furnish the Investor forthwith upon request (i) a written statement by the Company as to
its compliance with the public information requirements of said Rule 144, (ii) a copy of the most
recent annual or quarterly report of the Company, and (iii) such other reports and documents as may
be reasonably requested in availing the Investor of any rule or regulation of the Commission
permitting the sale of any such securities without registration.



7.2 Registration.



(a) If, at the end of the Restriction Period, the Shares cannot be sold without restriction
pursuant to Rule 144 promulgated under the Securities Act, then upon Investor’s written request,
received by the Company on or before the 30th day after the end of the Restriction Period, the
Company will use commercially reasonable efforts to register the Shares for resale under the
Securities Act on a Registration Statement on Form S-3 (the “Registration Statement”), filed within
60 days of such written request, and will use commercially reasonable efforts to have such
Registration Statement promptly declared effective by the Commission.



(b) The Company will use commercially reasonable efforts to keep the Registration Statement
continuously effective under the Securities Act until the earlier of (i) the date all of the Shares
covered by such Registration Statement have been sold or can be sold publicly without restriction
or limitation under Rule 144 or (ii) the date that is two years following the Closing Date.



(c) The Investor shall furnish to the Company such information regarding the Investor, and the
distribution proposed by the Investor, as the Company may reasonably request in writing and as
shall be required in connection with the Registration Statement.



(d) The Company shall pay all fees and expenses incident to the performance of or compliance
with this Section 7 by the Company.



7.3 Restrictive Legend. The certificates representing the Shares, when issued, will bear a
restrictive legend in substantially the following form:



“THE SECURITIES EVIDENCED OR CONSTITUTED HEREBY HAVE BEEN ISSUED WITHOUT REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) AND MAY NOT BE SOLD, OFFERED FOR SALE,
TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT REGISTRATION UNDER THE ACT UNLESS EITHER (i) THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
COMPANY, TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED IN CONNECTION WITH SUCH DISPOSITION OR
(ii) THE SALE OF SUCH SECURITIES IS MADE PURSUANT TO SECURITIES AND EXCHANGE COMMISSION RULE 144.”



SECTION 8




Indemnification




Each party (an “Indemnifying Party”) hereby indemnifies and holds harmless the other party,
such other party’s respective officers, directors, employees, consultants, representatives and
advisers, and any and all Affiliates (as defined in Section 6.1(a)) of the foregoing (each of the
foregoing, an “Indemnified Party”) from and against all losses, liabilities, costs, damages and
expense (including reasonable legal fees and expenses) (collectively, “Losses”) suffered or
incurred by any such Indemnified Party to the extent arising from, connected with or related to (i)
breach of any representation or warranty of such Indemnifying Party in this Agreement; and (ii)
breach of any covenant or undertaking of any Indemnifying Party in this Agreement. If an event or
omission (including, without limitation, any claim asserted or action or proceeding commenced by a
third party) occurs which an Indemnified Party asserts to be an indemnifiable event pursuant to
this Section 8, the Indemnified Party will provide written notice to the Indemnifying Party,
setting forth the nature of the claim and the basis for indemnification under this Agreement. The
Indemnified Party will give such written notice to the Indemnifying Party immediately after it
becomes aware of the existence of any such event or occurrence. Such notice will be a condition
precedent to any obligation of the Indemnifying Party to act under this Agreement but will not
relieve it of its obligations under the indemnity except to the extent that the failure to provide
prompt notice as provided in this Agreement prejudices the Indemnifying Party with respect to the
transactions contemplated by this Agreement and to the defense of the liability. In case any such
action is brought by a third party against any Indemnified Party and it notifies the Indemnifying
Party of the commencement thereof, the Indemnifying Party will be entitled to participate therein
and, to the extent that it wishes, to assume the defense and settlement thereof with counsel
reasonably selected by it and, after notice from the Indemnifying Party to the Indemnified Party of
such election so to assume the defense and settlement thereof, the Indemnifying Party will not be
liable to the Indemnified Party for any legal expenses of other counsel or any other expenses
subsequently incurred by such Indemnified Party in connection with the defense thereof, provided,
however, that an Indemnified Party shall have the right to employ separate counsel at the expense
of the Indemnifying Party if (i) the employment thereof has been specifically authorized in writing
by the Indemnifying Party; or (ii) representation of both parties by the same counsel would be
inappropriate due to actual or potential conflicts of interests between such parties (which such
judgment shall be made in good faith after consultation with counsel). The Indemnified Party
agrees to cooperate fully with (and to provide all relevant documents and records and make all
relevant personnel available to) the Indemnifying Party and its counsel, as reasonably requested,
in the defense of any such asserted claim at no additional cost to the Indemnifying Party. No
Indemnifying Party will consent to the entry of any judgment or enter into any settlement with
respect to any such asserted claim without the prior written consent of the Indemnified Party, not
to be unreasonably withheld or delayed, (a) if such judgment or settlement does not include as an
unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a
release from all liability in respect to such claim or (b) if, as a result of such consent or
settlement, injunctive or other equitable relief would be imposed against the Indemnified Party or
such judgment or settlement could materially and adversely affect the business, operations or
assets of the Indemnified Party. No Indemnified Party will consent to the entry of any judgment or
enter into any settlement with respect to any such asserted claim without the prior written consent
of the Indemnifying Party, not to be unreasonably withheld or delayed. If an Indemnifying Party
makes a payment with respect to any claim under the representations or warranties set forth herein
and the Indemnified Party subsequently receives from a third party or under the terms of any
insurance policy a sum in respect of the same claim, the receiving party will repay to the other
party such amount that is equal to the sum subsequently received.



SECTION 9




Miscellaneous




9.1 Governing Law. This Agreement shall be governed in all respects by the laws of the State
of New York as applied to agreements entered into and performed entirely in the State of New York
by residents thereof.



9.2 Survival. The representations, warranties, covenants and agreements made herein shall
survive any investigation made by the Investor and the Closing.



9.3 Successors, Assigns. Except as otherwise provided herein, the provisions hereof shall
inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto. This Agreement may not be assigned by either party without
the prior written consent of the other; except that either party may assign this Agreement to an
Affiliate (as defined in Section 6.1(a)) of such party or to any third party that acquires all or
substantially all of such party’s business, whether by merger, sale of assets or otherwise.



9.4 Notices. All notices and other communications required or permitted hereunder shall be in
writing and shall be sent by facsimile (receipt confirmed) or mailed by registered or certified
mail, postage prepaid, return receipt requested, or otherwise delivered by hand or by messenger,
addressed



if to the Investor, at the following address:



	 	 	 	 	 
	Astellas Pharma Inc.
	 	 	 	 
	2-5-1, Nihonbashi-Honcho

	Chuo-ku, Tokyo 103-8411

	Japan
	 	 	 	 
	Attn:Vice President, Legal & Compliance

	Facsimile:
	 	 	81-3-3244-5811	 






if to the Company, at the following address:




Cytokinetics, Incorporated




280 E Grand Ave




South San Francisco, CA 94080




Attention: General Counsel




Facsimile: (650) 624-3010



or at such other address as one party shall have furnished to the other party in writing. If
notice is provided by facsimile, it shall be deemed to be given one (1) business day after
transmission (with receipt of appropriate confirmation). If notice is provided by U.S. mail,
notice shall be deemed to be given ten (10) business days after proper deposit in a U.S. mailbox,
postage prepaid, and properly addressed. If notice is provided by nationally-recognized overnight
courier, it shall be deemed effective five (5) business day after dispatch.



9.5 Expenses. Each of the Company and the Investor shall bear its own expenses and legal fees
incurred on its behalf with respect to this Agreement and the transactions contemplated hereby.



9.6 Finder’s Fees. Each of the Company and the Investor shall indemnify and hold the other
harmless from any liability for any commission or compensation in the nature of a finder’s fee,
placement fee or underwriter’s discount (including the costs, expenses and legal fees of defending
against such liability) for which the Company or the Investor, or any of its respective partners,
employees, or representatives, as the case may be, is responsible.



9.7 Counterparts. This Agreement may be executed in counterparts, each of which shall be
enforceable against the party actually executing the counterpart, and all of which together shall
constitute one instrument.



9.8 Severability. In the event that any provision of this Agreement becomes or is declared by
a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall
continue in full force and effect without said provision; provided that no such severability shall
be effective if it materially changes the economic benefit of this Agreement to any party.



9.9 Entire Agreement. This Agreement and the Collaboration Agreement, including the exhibits
and schedule attached hereto and thereto, constitute the full and entire understanding and
agreement among the parties with regard to the subjects hereof and thereof. No party shall be
liable or bound to any other party in any manner with regard to the subjects hereof or thereof by
any warranties, representations or covenants except as specifically set forth herein or therein.



9.10 Waiver. The failure of either party to assert a right hereunder or to insist upon
compliance with any term or condition of this Agreement shall not constitute a waiver of that right
or excuse a similar subsequent failure to perform any such term or condition by the other party.
None of the terms, covenants and conditions of this Agreement can be waived except by the written
consent of the party waiving compliance.



IN WITNESS WHEREOF, the parties have executed this Common Stock Purchase Agreement as of the
date first set forth above.



	 	 	 
	CYTOKINETICS, INCORPORATED

By: s/Robert I. Blum

Name: Robert I. Blum

	 	ASTELLAS PHARMA INC.

By: s/Yoshihiko Hatanaka

Name: Yoshihiko Hatanaka
	 

	 	 
	Title: President and CEO

	 	Title: President and CEO
	 

	 	 






Schedule A




The Investor is an institutional “accredited investor” as defined in Rule 501(a) of Regulation D of

the Securities Act.EXHIBIT A




Schedule of Exceptions




None




EXHIBIT B




Form of Legal Opinion




1. The Company has been duly incorporated and is a validly existing corporation in good
standing under the laws of the State of Delaware.



2. The Shares have been duly authorized, and upon issuance and delivery against payment
therefor in accordance with the terms of the Agreement, the Shares will be validly issued,
outstanding, fully paid and nonassessable.



3. The offer and sale of the Shares are exempt from the registration requirements of the
Securities Act of 1933, as amended, subject to the timely filing of a Form D pursuant to Securities
and Exchange Commission Regulation D.