AMENDMENT TO STOCK PURCHASE AGREEMENT
This Amendment, made as of the 15th day of November, 1993, by and
among Apollon, Inc., a Pennsylvania corporation (the "Company"), and the
Investors listed in Exhibit A hereto (the "Investors");
WHEREAS, the Company and the Investors wish to amend the Stock
Purchase Agreement, dated as of June 25, 1992, by and among the Company and the
Investors listed in Exhibit A thereto (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. Paragraph 6(c)(iii) is hereby deleted in its entirety.
2. Paragraph 6(c)(iv) is hereby amended to be Paragraph 6(c)(iii) of
the Agreement and all references to Paragraph 6(c)(iv) in the Agreement are
hereby amended to be Paragraph 6(c)(iii). In addition, Paragraph 6(c)(iii), as
so amended, is hereby amended to read in full as follows:
"The Company will furnish to each Director as soon as practicable
and in any event at least thirty (30) days prior to the end of each fiscal
year of the Company, an annual operating budget for the Company for the
first succeeding fiscal year containing statements of operations, cash
flows and ending balance sheets for each month of such fiscal year.
Promptly upon preparation thereof, the Company
will furnish to each Director any other budgets that the Company may prepare
and any revisions of such previously furnished budgets."
3. The ninth line of Paragraph 6(g) of the Agreement is hereby amended
to read as follows:
"Preferred Stock and Series B Convertible Preferred Stock, voting as a
class, outstanding as of a record date between 10 and 90..."
4. The tenth line of Paragraph 6(h) of the Agreement is hereby amended
to read as follows:
"Convertible Preferred Stock and Series B Convertible Preferred Stock,
voting as a class, outstanding as of a record date..."
5. The sixth line of Paragraph 6(i) of the Agreement is hereby amended
to read as follows:
"A Convertible Preferred Stock or Series B Convertible Preferred Stock),
whether now or hereafter..."
6. The ninth line of Paragraph 6(i) of the Agreement is hereby amended
to read as follows:
"Preferred Stock and Series B Convertible Preferred Stock, voting as a
class, outstanding as of a record date between 10 and 90..."
7. The third line of Paragraph 6(k) of the Agreement is hereby amended
to read as follows:
"Convertible Preferred Stock or any other convertible securities of the
Company and except for Common Stock or..."
8. The seventeenth line of Paragraph 6(k) of the Agreement is hereby
amended to read as follows:
"majority of the shares of Series A Convertible Preferred Stock and Series
B Convertible Preferred Stock, voting as a class,..."
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9. The thirteenth line of Paragraph 6(p)(i) of the Agreement is hereby
amended to read as follows:
"shall have first offered to sell to the Investors and the Series B
Investors such..."
10. The sixteenth line of Paragraph 6(p)(i) of the Agreement is hereby
amended to read as follows:
"in writing delivered to each of the Investors and the Series B Investors
(the "Offer"),..."
11. The nineteenth line of Section 6(p)(i) is hereby amended to read
as follows:
"Investors and the Series B Investors."
12. The eleventh line of Paragraph 6(p)(ii) is hereby amended to read
as follows:
"Convertible Preferred Stock and Series B Convertible Preferred Stock and
of all shares issuable upon..."
13. Paragraph 6(p)(iv) of the Agreement is hereby amended to read in
full as follows:
"(iv) In the event that the Investors and the Series B
Investors do not elect to purchase all of the Offered Securities which they
are entitled to purchase under Paragraph 6(p)(ii) hereof and Section
6.15(b) of the Series B Agreement, the Company shall within 5 days of the
earlier of (A) the receipt of all of the Notices of Acceptances from the
Investors pursuant to subparagraph (iii) above and from the Series B
Investors pursuant to 6.15(c) of the Series B Agreement or (B) the
expiration of the 30-day period provided in subparagraph 6(p)(i) provide
each of the Investors who have delivered a Notice of Acceptance with
written notice of the number of Offered Securities which have not been
accepted by the Investors or the Series B Investors (the "Refused Shares"),
and each such Investor shall have 10 days to inform the Company in writing
of its intention to purchase its pro rata share of such Refused Shares.
For the purposes of this subparagraph (iv), "pro rata share" shall mean the
percentage obtained by dividing the number of Securities, Series B
Securities and other shares of Common Stock owned and to be purchased by an
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Investor who has delivered a Notice of Acceptance pursuant to subparagraph
(iii) above by the total number of Securities, Series B Securities or other
shares of Common Stock owned and to be purchased by Investors who have
delivered Notices of Acceptance pursuant to subparagraph (iii) above or by
Series B Investors who have delivered Notices of Acceptance pursuant to
Section 6.15(c) of the Series B Agreement. Upon the expiration of such
ten-day period, the Company shall have 90 days to sell all or any part of
such Refused Shares as to which the Company has not received a notice from
the Investors pursuant to subparagraph 6(p)(iii) or this subparagraph (iv)
or from the Series B Investors pursuant to Sections 6.15(c) or 6.15(d) of
the Series B Agreement to any other person or persons, but only upon terms
and conditions in all material respects, including, without limitation,
unit price and interest rates (but excluding payment of legal fees of
counsel of the purchaser), which are no more favorable, in the aggregate,
to such other person or persons or less favorable to the Company that those
set forth in the Offer. Upon the closing of the sale to such other person
or persons of all the Refused Securities, which shall include payment of
the purchase price to the Company in accordance with the terms of the
Offer, the Investors shall purchase from the Company, and the Company shall
sell to the Investors, the Offered Securities in respect of which a Notice
of Acceptance was delivered to the Company by an Investor, at the terms
specified in the Offer. The purchase by an Investor of any Offered
Securities is subject in all cases to the preparation, execution and
delivery by the Company and the Investor of a purchase agreement relating
to such Offered Securities satisfactory in form and substance to the
Investor and its counsel."
14. The fourth through sixth lines of Paragraph 6(p)(v) of the
Agreement are hereby amended to read as follows:
"hereof or by the Series B Investors in accordance with Section 6.15 of the
Series B Agreement may not be sold or otherwise disposed of until they are
again offered to the Investors and Series B Investors under the procedures
specified in subparagraphs 6(p)(i), (ii), (iii) and (iv) hereof and
Subsections 6.15(a), (b), (c) and (d) of the Series B Agreement..."
15. The first line of Paragraph 6(p)(vi) of the Agreement is hereby
amended to read as follows:
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"(vi) The rights of the Investors and Series B Investors under this..."
16. The fourth line of Paragraph 6(p)(vi)(A) of the Agreement is
hereby amended to read as follows:
"approved by the Board of Directors of the Company or a committee thereof,
or ..."
17. The third line of Paragraph 6(p)(vi)(F) of the Agreement is hereby
amended to read as follows:
"Convertible Preferred Stock or any other shares of convertible stock of
the Company as provided in the Articles..."
18. Paragraph 6(r) of the Agreement is hereby amended to read as
follows:
"(r) Board Representation. The Company shall use its best
efforts to limit the number of persons constituting the Board of Directors
to nine. So long as each of Centocor Delaware, Inc., the Chancellor
Investors (as hereinafter defined) and DSV Partners shall own at least 20%
of the issued and outstanding Common Stock of the Company, assuming
conversion into Common Stock of all convertible securities of the Company,
then each shall have the right to nominate one person for election to the
Company's Board of Directors."
19. The first sentence of Paragraph 6(s) is hereby deleted in its
entirety.
20. The fifteenth through seventeenth lines of Paragraph 6(s) are
hereby amended to read as follows:
"insurance and such other insurance as may be required by law."
21. The ninth line of Paragraph 7(a) of the Agreement is hereby
amended to read as follows:
"holders of Securities and Series B Securities, and thereupon (except as
expressly..."
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22. The fifteenth line of Paragraph 7(a) of the Agreement is hereby
amended to read as follows:
"and (y) all other shares of Registerable Common Stock and Series B
Registerable Common Stock the holders..."
23. The seventh line of Section 7(a)(i) is hereby amended to read as
follows:
"pursuant to this paragraph 7(a) or Section 7.1 of the Series B Agreement
(except that, upon request..."
24. The eighth through twelfth lines of Paragraph 7(a)(ii) are hereby
amended to read as follows:
"Securities and Series B Securities. In that event, the other holders of
Securities and Series B Securities shall have the right to include their
shares of Registerable Common Stock and Series B Registerable Common Stock
in the underwriting (unless otherwise mutually agreed by a majority in
interest of the holders of the Securities and the Series B Securities).
The managing underwriter for such offering..."
25. The second line of Paragraph 7(a)(iii) is hereby amended to read
as follows:
"not permit third parties other than holders of Series B Securities to
include additional securities in..."
26. The third line of Paragraph 7(a)(iii) is hereby amended to read as
follows:
"a majority of the shares of Registerable Common Stock and Series B
Registerable Common Stock..."
27. Paragraph 7(a)(iv) is hereby amended to read as follows:
(iv) if a Demand Registration under this paragraph 7(a) 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 and Series B Registerable Common Stock
requested to be included in such registration exceeds
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the amount of such Registerable Common Stock and Series B Registerable
Common 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 or Series B
Registerable Common Stock (notwithstanding any consent obtained in
accordance with subparagraph 7(a)(iii) hereof), the amount of Registerable
Common Stock and Series B Registerable Common Stock requested to be included
which in the opinion of such underwriters can be sold, pro rata among the
holders of Registerable Common Stock and Series B Registerable Common Stock
requesting inclusion on the basis of the number of shares of Registerable
Common Stock and Series B Registerable Common Stock of 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 paragraph 7(a), the holders of Securities will be entitled to an
additional Demand Registration under this paragraph;
28. The third line of Paragraph 7(b)(i) is hereby amended to read as
follows:
"(other than pursuant to paragraph 7(a) hereof or Section 7.1 of the Series
B Agreement), whether of..."
29. The sixteenth through nineteenth lines of Paragraph 7(b)(ii) are
hereby amended to read as follows:
"to sell, (B) second, all of the Registerable Common Stock and Series B
Registerable Common 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 and Series B Registerable Common Stock then owned
by such..."
30. The eighteenth through twentieth lines of Paragraph 7(b)(iii) are
hereby amended to read as follows:
"Registerable Common Stock and Series B Registerable Common 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 and Series B
Registerable Common Stock..."
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31. The sixth line of Paragraph 7(j) is hereby amended to read as
follows:
"Securities and Series B Securities, voting as a class, outstanding as of a
record date..."
32. The tenth through twelfth lines of Paragraph 7(j) are hereby
amended to read as follows:
"holder of Securities and Series B Securities at the time outstanding
(including securities into which such Securities and Series B Securities
are convertible), each future holder of all such Securities and Series B
Securities and the Company."
33. The following definitions are hereby added to the Agreement as
Paragraphs 8(m), 8(n), 8(o) and 8(p) and 8(q):
"(m) "Series B Agreement" means the Stock Purchase Agreement
dated as of November 15, 1993 between the Company and the Investors listed
in Exhibit 1.1 thereto relating to the purchase of shares of the Company's
Series B Convertible Preferred Stock;
(n) "Series B Convertible Preferred Stock" means the shares of
Series B Convertible Preferred Stock issued pursuant to the Series B
Agreement;
(o) "Series B Investors" means Investors as defined in the
Series B Agreement;
(p) "Series B Registerable Common Stock" means Registerable
Common Stock as defined in the Series B Agreement;
(q) "Series B Securities" means Securities as defined in the
Series B Agreement."
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IN WITNESS WHEREOF, each of the parties hereto has fully executed this
Amendment No. 1 all as of the day and year first above written.
APOLLON, INC.
By: /s/Xxxxxxx X. Xxxxxxxx, Xx.
______________________________
Xxxxxxx X. Xxxxxxxx, Xx.
President
INVESTORS
DSV PARTNERS IV
By: DSV MANAGEMENT, a New
Jersey Limited Partnership
By: /s/Xxxxxx Xxxxxxx
______________________
Xxxxxx Xxxxxxx,
General Partner
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
CENTOCOR DELAWARE, INC.
By: /s/Xxxxxx X.X. Xxxxxxxxxx
____________________________
Name: Xxxxxx X.X. Xxxxxxxxxx
Title: Chairman
Address: 0000 X. Xxxxxx Xxxxxx
Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Fax: c/o Centocor, Inc.
(000) 000-0000
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MAC & Co.
MELLON BANK, N.A., NOMINEE FOR BACK OFFICE
SERVICES AGENT FOR CHANCELLOR TRUST COMPANY
AND CHANCELLOR CAPITAL MANAGEMENT, INC. AS
DIRECTED BY CHANCELLOR CAPITAL MANAGEMENT,
INC.
By: /s/Xxxxxxx X. Yodel
___________________________
Name:
Title:
Address: c/o Chancellor Capital Management,
Inc.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
CONTINENTAL BANK, NATIONAL ASSOCIATION AS
CUSTODIAN FOR MUNICIPAL EMPLOYEES ANNUITY &
BENEFIT FUND OF CHICAGO, (AS DIRECTED BY
CHANCELLOR CAPITAL MANAGEMENT, INC.
INVESTMENT MANAGER)
By:/s/Xxxxxxx X. Xxxx
___________________________
Name:
Title: Vice President
Address: c/o Chancellor Capital Management,
Inc.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
10
FOCUS & CO
By:/s/T. Pimendel
___________________________
Name:
Title: Assistant Secretary
Address: c/o Chancellor Capital Management,
Inc.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
CONTINENTAL BANK, NATIONAL ASSOCIATION AS
CUSTODIAN, (AT THE DIRECTION OF CHANCELLOR
CAPITAL MANAGEMENT, INC., AS INVESTMENT
MANAGER) FOR THE POLICEMEN'S ANNUITY AND
BENEFIT FUND OF CHICAGO
By:/s/Xxxxxxx X. Xxxx
___________________________
Name:
Title: Vice President
Address: c/o Chancellor
Capital Management,
Inc.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
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EXHIBIT A
NAME
----
DSV Partners IV, L.P.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Centocor Delaware, Inc.
0000 X. Xxxxxx Xxxxxx
Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
MAC & Co.
Continental Bank, National
Association as Custodian
for Municipal Employees
Annuity & Benefit Fund
of Chicago (as Directed
by Chancellor Capital
Management, Inc.
Investment Manager)
Focus & Co.
Continental Bank, National
Association as Custodian
(at the Direction of
Chancellor Capital
Management, Inc., as
Investment Manager) for
the Policemen's Annuity
and Benefit Fund of
Chicago
12
