EXHIBIT 10.6
SECOND AMENDMENT TO PRIVATE EQUITY LINE FINANCING AGREEMENT
This SECOND AMENDMENT TO PRIVATE EQUITY LINE FINANCING AGREEMENT (this
"Amendment No. 2"), is effective as of April 17, 2002, between CORIXA
CORPORATION, a Delaware corporation ("Corixa"), and BNY CAPITAL MARKETS, INC., a
registered broker dealer organized under the laws of New York and a subsidiary
of The Bank of New York (the "Investor").
WHEREAS, the Company and the Investor entered into that certain Private
Equity Line Financing Agreement dated as of December 3, 2001 (the "Financing
Agreement");
WHEREAS, the Company and the Investor entered into that certain
amendment to the Financing Agreement dated as of February 28, 2002 ("Amendment
No. 1"); and
WHEREAS, the Company and the Investor now desire to amend the Financing
Agreement and Amendment No. 1 as provided herein;
NOW, THEREFORE, in consideration for the foregoing premises, the
representations, warranties, covenants and agreements contained herein and in
the Financing Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledge, intending to be legally
bound hereby, the parties hereto agree as follows:
1. CAPITALIZED TERMS. Except as otherwise defined in this Amendment No.
2, all capitalized terms used herein shall have the meaning set forth in the
Financing Agreement. All references to the term "Agreement" in the Financing
Agreement shall be deemed to include this Amendment No. 2.
2. AMENDMENT NO. 2 SUPERSEDES AMENDMENT NO. 1. This Amendment No. 2
supersedes Amendment No. 1 in its entirety.
3. AMENDMENT TO SECTION 6.02(a)(II) OF THE FINANCING AGREEMENT. Section
6.02(a)(II) of the Financing Agreement, is hereby amended and restated to read
in its entirety as follows:
(II) The Company shall not have failed to obtain effectiveness of the
Registration Statement within 230 days from the Closing Date, and the
Registration Statement, after its initial effectiveness, shall not
have lapsed in effect such that sales of all of the Registrable
Securities otherwise cannot be made thereunder (whether by reason of
the Company's failure to amend or supplement the prospectus included
therein in accordance with the Registration Rights Agreement or
otherwise) for more than thirty (30) consecutive Trading Days or more
than ninety (90) Trading Days in any twelve (12) month period after
the Registration Statement becomes effective;
4. AMENDMENT TO SECTION 7.02(d) OF THE FINANCING AGREEMENT. Section
7.02(d) of the Financing Agreement, is hereby amended and restated to read in
its entirety as follows:
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(d) The Registration Statement shall not have been declared
effective by the Commission on or before the date which is 230
days from the date of this Agreement; or
5. FULL FORCE AND EFFECT. Except as expressly modified herein, the
Financing Agreement shall continue in full force and effect in accordance with
its terms. To the extent, there are any inconsistencies or ambiguities between
this Amendment No. 2 and the Financing Agreement; the terms of this Amendment
No. 2 shall supersede the Financing Agreement.
6. COUNTERPARTS. This Amendment No. 2 may be executed in counterparts,
each of which shall be deemed an original instrument, and all of which together
shall constitute one and the same instrument.
7. GOVERNING LAW. This Amendment No. 2 shall be governed by and
construed in accordance with the internal law of the state of New York, without
giving effect to the principles of conflicts of law thereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to be executed by the undersigned, thereunto duly authorized, as of the date
first above written.
CORIXA CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Chief Operating Officer
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BNY CAPITAL MARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title: Managing Director
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