EXHIBIT 10.2
AMENDMENT NO. 1
TO
SERIES C PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
This Amendment No. 1 to the Series C Preferred Stock and Warrant Purchase
Agreement ("Agreement") is dated as of June 9, 2003 (this "Amendment"), by and
among Genaera Corporation, a Delaware Corporation with its principal place of
business located at 0000 Xxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000 (the
"Company"), and the parties listed on the "Schedule of Purchasers" attached as
Schedule 1 to the Agreement. Capitalized terms used in this Amendment but not
defined in this Amendment shall have the definitions ascribed to such terms in
the Agreement.
WITNESSETH:
WHEREAS, the parties hereto mutually desire to conclude ministerial matters
directly related to the completion of the sale of Shares and Warrants, including
to clarify the initial registration instructions related to the Shares and
Warrants issued pursuant to the Agreement by amending Schedule 1 to the
Agreement in the manner set forth herein and in Schedule 1A hereto;
WHEREAS, the Purchasers represent and warrant that the beneficial ownership
of the Shares and Warrants issued pursuant to the Agreement has not been changed
by virtue of this Amendment;
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the adequacy of which is hereby affirmed, the
parties, intending to be legally bound, hereby agree as follows:
1. Schedule 1A. Attached hereto is Schedule 1A, which clarifies the manner
in which the Shares and Warrants beneficially owned by BVF Investments, L.L.C.
pursuant to the Agreement shall be registered by the Company. Except as modified
by Schedule 1A, Schedule 1 shall be unchanged. BVF Investments, L.L.C. agrees to
return to the Company any original certificates representing Shares and Warrants
held by it prior to issuance of corrected certificates representing Shares and
Warrants as described in Schedule 1A.
2. Permitted Transferees. Section 9.3 of the Agreement shall be amended by
adding the following sentence at the end thereof: Subject to Section 5.2 hereof,
the Purchasers shall each be permitted to privately transfer any or all Shares
and Warrants held by it to BVF Partners, L.P. and its affiliates or any other
affiliate, member or limited partner of said Purchaser (the "Permitted
Transferees"); provided, that any such Permitted Transferee shall first have
agreed in writing to be bound by the provisions of this Agreement applicable to
the Purchasers; provided further that, subject to Section 5.2 hereof, the
Permitted Transferees shall each be permitted to transfer the Shares and
Warrants to any affiliate, member or limited partner of said Permitted
Transferee if such affiliate, member or limited partner of said Permitted
Transferee first agreed in writing to be bound by the provisions of this
Agreement applicable to the Purchasers.
3. Rights. Each of the Purchasers acknowledges and agrees that Sections 1
and 2 of this Amendment shall not effect as a waiver of any of the Company's
rights under the Agreement. In addition, each of the Purchasers acknowledges and
agrees that Sections 1 and 2 of this Amendment shall not in any way vitiate any
of its obligations under the last sentence of Section 5.3 that may result as a
result of any reissuance or transfer of shares effected pursuant to the
provisions of Sections 1 and 2 of this Amendment.
4. Ratification. Except as expressly set forth in this Amendment, this
Amendment shall not modify or amend any of the terms, conditions, covenants or
agreements contained in the Agreement, all of which are ratified and confirmed
in all respects and shall continue in full force and effect. References to the
Agreement in the Agreement shall mean and refer to the Agreement as amended by
this Amendment in accordance with Section 9.4 of the Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
day and year first written above.
GENAERA CORPORATION
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx, M.D.
Title: President and Chief Executive Officer
BIOTECHNOLOGY VALUE FUND LP
BVF Partners, L.P., its General Partner
BVF Inc., its General Partner
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President
BIOTECHNOLOGY VALUE FUND II LP
BVF Partners, L.P., its General Partner
BVF Inc., its General Partner
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President
INVESTMENTS 10, LLC
BVF Partners, L.P., its General Partner
BVF Inc., its General Partner
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President
BVF INVESTMENTS LLC
BVF Partners, L.P., Manager
BVF Inc., its General Partner
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President
ZIFF ASSET MANAGEMENT, L.P.
By: PBK Holdings, Inc., its General Partner
By: /s/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
Title: Vice-President
