SECOND AMENDMENT TO SERIES B STOCK PURCHASE AGREEMENT
THIS AMENDMENT to the Agreement (as hereinafter defined), is made as of the
26th day of September, 1997, by and among Apollon, Inc., a Pennsylvania
corporation (the "Company"), and the Investors signing the signature page hereto
(the "Investors").
WHEREAS, the Company and the Investors wish to amend the Stock Purchase
Agreement, dated as of November 15, 1993 and amended as of May 1, 1996, by and
among the Company and the Investors listed in Exhibit 1.1 thereto (collectively,
the "Agreement") as hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants of the Company and
the Investors, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Investors,
intending to be legally bound, hereby agree as follows:
1. The ninth line of Section 7.1 of the Agreement is hereby amended
to read as follows:
"holders of Securities, Series A Securities, Series C Securities, Warrant
Stock and AHP Stock, and thereupon . . . "
2. The fifteenth through seventeenth lines of Section 7.1 of the
Agreement are hereby amended to read as follows:
"such request and (y) all other shares of Registerable Common Stock, Series
A Registerable Common Stock, Series C Registerable Common Stock, shares of
Warrant Stock and shares of AHP Stock, the holders of which have made
written request to the Company for..."
3. The seventh and eighth lines of Section 7.1(a) are hereby amended
to read as follows:
"pursuant to this Section 7.1, Paragraph 7(a) of the Series A Agreement,
Section 7.1 of the Series C Agreement or Section 6.1 of the AHP Agreement
(except that, upon request of any holder of..."
4. The seventh through thirteenth lines of Section 7.1(b) are hereby
amended to read as follows:
"information in the notice to the other holders of Securities, Series A
Securities, Series C Securities, Warrant Stock and AHP Stock. In that
event, the other
holders of Securities, Series A Securities, Series C Securities, Warrant
Stock and AHP Stock shall have the right to include their shares of
Registerable Common Stock, Series A Registerable Common Stock, Series C
Registerable Common Stock, Warrant Stock and AHP Stock in the underwriting
(unless otherwise mutually agreed by a majority in interest of the holders
of the Securities, the Series A Securities, Series C Securities, Warrant
Stock and AHP Stock)..."
5. The second and third lines of Section 7.1(c) are hereby amended
to read as follows:
"not permit third parties other than holders of Series A Securities, Series
C Securities, Warrant Stock and AHP Stock to include additional securities
in a Demand..."
6. The fifth and sixth lines of Section 7.1(c) are hereby amended to
read as follows:
"majority of the shares of Registerable Common Stock, Series A Registerable
Common Stock, Series C Registerable Common Stock and AHP Stock included in
such Demand..."
7. Section 7.1(d) is hereby amended to read in full as follows:
(d) if a Demand Registration under this Section 7.1(d) is
in connection with an underwritten public offering, and if the managing
underwriters advise the Company in writing that in their opinion the amount
of Registerable Common Stock, Series A Registerable Common Stock, Series C
Registerable Common Stock, Warrant Stock and AHP Stock requested to be
included in such registration exceeds the amount of such Registerable
Common Stock, Series A Registerable Common Stock, Series C Registerable
Common Stock, Warrant Stock and AHP Stock which can be successfully sold in
such offering, the Company will nevertheless include in such registration,
prior to the inclusion of any securities which are not Registerable Common
Stock, Series A Registerable Common Stock, Series C Registerable Common
Stock, Warrant Stock or AHP Stock (notwithstanding any consent obtained in
accordance with Section 7.1(c) hereof), the amount of Registerable Common
Stock, Series A Registerable Common Stock, Series C Registerable Common
Stock, Warrant Stock and AHP Stock requested to be included which in the
opinion of such underwriters can be sold, pro rata among the holders of
Registerable Common Stock, Series A Registerable Common Stock, Series C
Registerable Common Stock, Warrant Stock and AHP Stock requesting inclusion
on the basis of the number of shares of Registerable Common Stock, Series A
Registerable Common Stock, Series C Registerable Common Stock, Warrant
Stock and AHP Stock then
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owned by such holders; provided, however, that if the holders of
Registerable Common Stock are unable to include in such offering at least
fifty percent (50%) of the Registerable Common Stock sought to be registered
in a Demand Registration under this Section 7.1, the holders of Securities
will be entitled to an additional Demand Registration under this Section;"
8. The sixteenth through twentieth lines of Section 7.2(b) are
hereby amended to read as follows:
"(ii) second, all of the Registerable Common Stock, Series A Registerable
Common Stock, Series C Registerable Common Stock, Warrant Stock and AHP
Stock requested to be included in such registration, pro rata among the
holders thereof on the basis of the number of shares of Registerable Common
Stock, Series A Registerable Common Stock, Series C Registerable Common
Stock, Warrant Stock and AHP Stock then owned by such..."
9. The eighteenth through twenty-first lines of Section 7.2(c) are
hereby amended to read as follows:
"Stock, Series A Registerable Common Stock, Series C Registerable Common
Stock, Warrant Stock and AHP Stock requested to be included in such
registration, pro rata among the holders thereof on the basis of the number
of shares of Registerable Common Stock, Series A Registerable Common Stock,
Series C Registerable Common Stock, Warrant Stock and AHP Stock then..."
10. The fourth and fifth lines of Section 9.15 are hereby amended to
read as follows:
"the Securities, the Series A Securities and the Series C Securities held
of record as of a record date between 10 and 90 days prior to such date,
voting together as a class."
11. The following definitions are hereby added to the Agreement as
follows:
"8.29 "AHP Agreement" means the Securities Purchase Agreement, dated
September 19, 1997, by and between the Company and A.H. Investments Ltd."
"8.30 "AHP Stock" means the shares of Common Stock issued or issuable
upon conversion of a convertible note in the aggregate principal amount of
$3 million issued and sold by the
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Company to A.H. Investments Ltd. and the shares of Common Stock issued or
issuable upon exercise of a warrant to purchase 150,000 shares of Common
Stock sold by the Company to A.H. Investments Ltd. pursuant to the AHP
Agreement."
12. Pursuant to Sections 7.10 and 9.15 of the Agreement, this
Amendment shall be effective upon the written consent of the holders of a
majority of Securities, Series A Securities and Series C Securities, voting as a
class, outstanding as of September 17, 1997 and upon the written consent of the
holders of a majority of the Securities then outstanding and shall thereafter be
binding upon each holder of Securities, Series A Securities and Series C
Securities at the time outstanding (including securities into which such
Securities, Series A Securities and Series C Securities are convertible), each
future holder of all such securities and the Company. Such written consent
shall be evidenced by the signature of the Investors signing this Amendment.
13. All other terms of the Agreement shall remain in full force and
effect.
14. This Amendment may be executed in counterparts, each of which
shall be deemed an original and all of which shall constitute together one and
the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has fully executed this
Amendment No. 2 all as of the day and year first above written.
APOLLON, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
__________________________
Xxxxxxx X. Xxxxxxxx, Xx.
President
INVESTORS
DSV PARTNERS IV
By: DSV MANAGEMENT LTD., a New
Jersey Limited Partnership
By: /s/ Xxxxxx Xxxxxxx
______________________
Xxxxxx Xxxxxxx,
General Partner
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
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CENTOCOR, INC.
By: /s/ Xxxxx X. Xxxxxxx
__________________________
Xxxxx X. Xxxxxxx
President
Address: 000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
TECHNOLOGY LEADERS, L.P.
By: Technology Leaders Management, Inc.,
General Partner
By: /s/ Xxxxx Xxxxxx
___________________________
Name: Xxxxx Xxxxxx
Title: Managing Director
Address: 800 The Safeguard
Building
000 Xxxxx Xxxx Xxxxx
Xxxxx XX 00000
Fax: (000) 000-0000
TECHNOLOGY LEADERS OFFSHORE, C.V.
By: Technology Leaders Management,
Inc., General Partner
By: /s/ Xxxxx Xxxxxx
___________________________
Name: Xxxxx Xxxxxx
Title: Managing Director
Address: 800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx XX 00000
Fax: (000) 000-0000
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