FIRST AMENDMENT TO SERIES C 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 May 1, 1996 by and among the Company and the Investors
listed in Schedule 1.1 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. The ninth and tenth lines of Section 7.1 of the Agreement are
hereby amended to read as follows:
"Securities, Series A Securities, Series B Securities, Warrant Stock (as
defined herein) and AHP Stock (as defined herein), and thereupon (except as
expressly..."
2. The sixteenth through nineteenth lines of Section 7.1 of the
Agreement are hereby amended to read as follows:
"and (y) all other shares of Registerable Common Stock, Shares of Series A
Registerable Common Stock (as defined herein), Shares of Series B
Registerable Common Stock (as defined herein), shares of Warrant Stock and
shares of AHP Stock, the record holders of which have made written..."
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 B Agreement or Section 6.1 of the AHP Agreement
(except that, ..."
4. The eighth through fifteenth lines of Section 7.1(b) are hereby
amended to read as follows:
"Securities, Warrant Stock and AHP Stock. In that event, the other holders
of Securities, Series A Securities, Series B Securities, Warrant Stock and
AHP Stock shall have the right to include their shares of Registerable
Common Stock, Series A Registerable Common Stock, Series B 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 B Securities, Warrant Stock and
AHP Stock). The managing..."
5. The second through fourth line of Section 7.1(c) are hereby
amended to read as follows:
"not permit third parties other than (i) holders of Series A Securities,
(ii) the holders of Series B Securities, (iii) the holders of Warrant Stock
and (iv) the holders of AHP Stock to include additional securities in..."
6. The sixth and seventh lines 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 B Registerable Common Stock and AHP Stock..."
7. Section 7.1(d) is hereby amended to read in full as follows:
(d) if a Demand Registration under this Section 7.1 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 B
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 B 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 B 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 B 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 B
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 B Registerable Common Stock, Warrant
Stock and AHP Stock then owned by such holders; provided, however, that if
the holders of Registerable Common Stock are unable to include
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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 twenty-first lines of Section 7.2(b) are
hereby amended to read as follows:
"Stock, Series A Registerable Common Stock, Series B 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 B Registerable Common Stock, Warrant Stock and AHP Stock then owned
by such holders, and (iii) third, any..."
9. The seventeenth through twenty-first lines of Section 7.2(c) are
hereby amended to read as follows:
"Registerable Common Stock, Series B 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 B
Registerable Common Stock, Warrant Stock and AHP Stock then..."
10. The fourth and fifth lines of Section 9.14 are hereby amended to
read as follows:
"the Securities, the Series A Securities and the Series B Securities held
of record as 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 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."
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12. Pursuant to Section 7.10 and 9.14 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 B 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 B
Securities at the time outstanding (including securities into which such
Securities, Series A Securities and Series B 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. 1 all as of the day and year first above written.
APOLLON, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
President
INVESTORS
CENTOCOR, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx
President
Address: 000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
4
ARDMORE INVESTMENTS
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------
Name:
Title:
Address: c/o Xxxxxx XxXxxxxx, III
000 Xxxxxxx Xxxxxx,
Xxxxx 000
Xxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, M.D.
Address: c/x Xxxxxx Consulting
0000 X. Xxxxx Xxxx #0000
Xxxx Xxxxxxxxxx, XX 00000
/s/ Xxxxxx Xxxxx
------------------------------
Xxxxxx Xxxxx
Address: 000 Xxxxxxxxxx Xx.
Xxx Xxxxxx, XX 00000
/s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx
Address: 000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
Address: 000 Xxxxxxx Xxxx
Xxxxx, XX 00000
CONNECTICUT CAPITAL ASSOC. L.P.
By: /s/ J. Xxxxxx Xxxxx
--------------------------
Name:
Title:
Address: 00 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
5
/s/ Xxxxxxx Xxxxx
------------------------------
Xxxxxxx Xxxxx
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
/s/ Xxxxxx X. Xxxxx
------------------------------
Xxxxxx X. Xxxxx
Address: c/o S.A.C. Capital
Advisors, LLC
000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
XXXX PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name:
Title:
Address: c/o DLD Holdings, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
XXXXXX X. XXXXXXXXX &
XXXXXX X. XXXXXXXXX TRUST
By: /s/ Xxxxxx X. Xxxxxxxxx TTEE
----------------------------
Name:
Title:
Address: 0000 Xxxxxxx xx xx Xxxxx
Xx Xxxxx, XX 00000
/s/ Xxx Xxxxx
------------------------------
Xxx Xxxxx
Address: 00 Xxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
6
FWK INVESTORS
By: /s/ X.X. Xxxxxxx
--------------------------
Name:
Title:
Address: 0 Xxxxxxxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
XXXXXX & XXXXX XXXXXX
TTEE FBO XXXXXX FAMILY TR
DTD 1/9/90
By: /s/ Xxxxxx Xxxxxx TTEE
--------------------------
Name:
Title:
Address: 000 00xx Xxxxxx
Xxxxx Xxxxxx, XX 00000
THE HADAD FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name:
Title:
Address: 000 00xx Xxxxxx
Xxxxx Xxxxxx, XX 00000
XXXXX X. XXXXXX TRUST
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name:
Title:
Address: 0000 Xxxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
HPB ASSOCIATES, L.P.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Name:
Title:
Address: 000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
7
KEIBREAUX ASSOCIATES
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Partner
Address: 0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
/s/ Xxxx Xxxx
------------------------------
Xxxx Xxxx
Address: 0000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
THE LINCOLN TAX ADVANTAGED, L.P.
By: /s/ Xxxx Xxxxxxx
--------------------------
Name:
Title:
Address: 0 Xxxx Xxx Xxxxx Xxxxxxx
Xxxxx - Xxxxx 000
Xxxxxxxxxxx, XX 00000
/s/ Xxxxx Xxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxx
Address: 000 Xxxxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
LZ INVESTMENTS GENERAL PARTNERSHIP
By: /s/ Xxxxxx X. Liebentrit
--------------------------
Name:
Title:
Address: 0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
8
MARITIME CAPITAL PARTNERS, L.P.
BY MARITIME CAPITAL MANAGEMENT,
ITS GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name:
Title:
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
/s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
Address: 00 XxXxxxxx Xxxx
Xxxxxx, XX 00000
ORACLE PARTNERS, L.P.
By: /s/ Xxxxx Xxxxxxxx
--------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
XXXXXXX XXXXX TRUST, UTA 3/8/88
By: /s/ Xxxxxxx Xxxxx Trustee U/T/D
--------------------------
Name:
Title:
Address: 000 Xxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
PORRIDGE PARTNERS II
By:
--------------------------
Name:
Title:
Address: c/o Dacoson-Saulberg Cap. Mgmt.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
9
QUASAR INTERNATIONAL PARTNERS
By: /s/ Xxxxx Xxxxxxxx
--------------------------
Name:
Title:
Address: c/o Oracle Partners L.P.
000 Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
S.A.C. CAPITAL ASSOCIATES, LLC
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name:
Title:
Address: c/o S.A.C. Capital Advisors, LLC
000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
/s/ Xxxx Xxxxx
------------------------------
Xxxx Xxxxx
Address: c/o Neuberger & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
F/B/O XXXX XXXXX
XXX Rollover
By: /s/ Xxxx Xxxxx
--------------------------
Name:
Title:
Address: c/o Neuberger & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxxx
Address: 000 0xx Xxxxxx
Xxx Xxxx, XX 00000
10
/s/ Xxxxx X. Toll
------------------------------
Xxxxx X. Toll
Address: 0000 Xxxxx Xxxx
Xxxxx, XX 00000
/s/ Xxxxxx X. Toll
------------------------------
Xxxxxx X. Toll
Address: 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxx, XX 00000
0000 X. 00XX XX. PARTNERSHIP
By: /s/ Xxxxxxx Xxxxxxx
--------------------------
Name:
Title:
Address: 0000 X. 00xx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
WESTFIELD PERFORMANCE FUND
By: /s/ Westfield Performance Fund
--------------------------
Name: C. Xxxxxxx Xxxxxx
Title: Chairman
Address: Westfield Capital Management Co.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
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