SECOND AMENDMENT TO SERIES A STOCK PURCHASE AGREEMENT
This Amendment, made as of the 1st day of May, 1996, 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, and amended as of November 15,
1993, by and among the Company and the Investors listed in Exhibit 1(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. The ninth line of Paragraph 6(g) of the Agreement is
hereby amended to read as follows:
"Preferred Stock, Series B Convertible Preferred Stock and Series C
Convertible Preferred Stock, voting as a class, outstanding as of a record
date between 10 and 90..."
2. The tenth line of Paragraph 6(h) of the Agreement is hereby amended
to read as follows:
"Convertible Preferred Stock, Series B Convertible Preferred Stock and
Series C Convertible Preferred Stock, voting as a class, outstanding as of
a record date..."
3. The sixth line of Paragraph 6(i) of the Agreement is hereby amended
to read as follows:
"A Convertible Preferred Stock, Series B Convertible Preferred Stock or
Series C Convertible Preferred Stock), whether now or hereafter..."
4. The ninth line of Paragraph 6(i) of the Agreement is hereby amended
to read as follows:
"Preferred Stock, Series B Convertible Preferred Stock and Series C
Convertible Preferred Stock, voting as a class, outstanding as of a record
date between 10 and 90..."
5. 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, Series B
Convertible Preferred Stock and Series C Convertible Preferred Stock,
voting as a class,..."
6. 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, the Series B Investors
and the Series C Investors such..."
7. 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, the Series B Investors and
the Series C Investors (the "Offer"),..."
8. The nineteenth line of Paragraph 6(p)(i) is hereby amended to read
as follows:
"delivered by the Company to the Investors, the Series B Investors and the
Series C Investors."
9. The eleventh line of Paragraph 6(p)(ii) is hereby amended to read
as follows:
"Convertible Preferred Stock, Series B Convertible Preferred Stock and
Series C Convertible Preferred Stock and of all shares issuable upon..."
10. Paragraph 6(p)(iv) of the Agreement is hereby amended to read in
full as follows:
"(iv) In the event that the Investors, the Series B Investors
and the Series C Investors do not elect to purchase all of the Offered
Securities which they are entitled to purchase under Paragraph 6(p)(ii)
hereof, Section 6.15(b) of the Series B Agreement and Section 6.13(b) of
the Series C 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, from the Series B Investors
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pursuant to Section 6.15(c) of the Series B Agreement and the Series C
Investors pursuant to Section 6.13(c) of the Series C 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, the Series B Investors or the Series C 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, Series C Securities and other shares of
Common Stock owned and to be purchased by an Investor who has delivered a
Notice of Acceptance pursuant to subparagraph (iii) above by the total
number of Securities, Series B Securities, Series C 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, by
Series B Investors who have delivered Notices of Acceptance pursuant to
Section 6.13(c) of the Series B Agreement or by Series C Investors who have
delivered Notices of Acceptance pursuant to Section 6.15(c) of the Series C
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), this subparagraph (iv), from the Series B Investors
pursuant to Sections 6.15(c) or 6.15(d) of the Series B Agreement or from
the Series C Investors pursuant to Sections 6.13(c) or 6.13(d) of the Series
C 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
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Securities satisfactory in form and substance to the Investor and its
counsel."
11. The fourth through sixth lines of Paragraph 6(p)(v) of the
Agreement are hereby amended to read as follows:
"hereof, by the Series B Investors in accordance with Section 6.15 of the
Series B Agreement or by the Series C Investors in accordance with Section
6.13 of the Series C Agreement may not be sold or otherwise disposed of
until they are again offered to the Investors, the Series B Investors and
the Series C Investors under the procedures specified in subparagraphs
6(p)(i), (ii), (iii) and (iv) hereof, Subsections 6.15(a), (b), (c) and (d)
of the Series B Agreement and Subsections 6.13(a), (b), (c) and (d) of the
Series C Agreement."
12. The first through third lines of Paragraph 6(p)(vi) are hereby
amended to read as follows:
"The rights of the Investors, the Series B Investors and the Series C
Investors under this subparagraph 6(p) shall not apply to the following
securities (the "Excluded Securities"):"
13. Paragraph 6(p)(vi)(A) is hereby amended to read in full as
follows:
"(A) Common Stock, securities by their terms convertible into or
exchangeable for Common Stock (including Common Stock issuable on
conversion thereof) and options, warrants and other rights to subscribe
for, purchase or otherwise acquire Common Stock or securities by their
terms convertible into or exchangeable for Common Stock (including Common
Stock issuable on conversion thereof) issued, issuable, sold or granted to
existing or prospective officers, directors or employees of, or consultants
to, the Company, pursuant to any stock option, stock incentive, stock
appreciation, stock bonus, stock award, compensation plan or arrangement or
employment letter, or any other agreement, plan, arrangement or letter,
presently in effect or hereafter adopted or entered into by the Company;"
14. The ninth line of Paragraph 7(a) of the Agreement is hereby
amended to read as follows:
"holders of Securities, Series B Securities, Series C Securities and
Warrant Stock, and thereupon (except as expressly..."
4
15.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, Series B
Registerable Common Stock, Series C Registerable Common Stock and shares of
Warrant Stock, the holders..."
16. The seventh line of Paragraph 7(a)(i) is hereby amended to read as
follows:
"pursuant to this subparagraph 7(a), Section 7.1 of the Series B Agreement
or Section 7.1 of the Series C Agreement (except that, upon request..."
17. The eighth through twelfth lines of Paragraph 7(a)(ii) are hereby
amended to read as follows:
"Securities, Series B Securities, Series C Securities and Warrant Stock.
In that event, the other holders of Securities, Series B Securities, Series
C Securities and Warrant Stock shall have the right to include their shares
of Registerable Common Stock, Series B Registerable Common Stock, Series C
Registerable Common Stock and Warrant Stock in the underwriting (unless
otherwise mutually agreed by a majority in interest of the holders of the
Securities, the Series B Securities, Series C Securities and Warrant
Stock). The managing underwriter for such offering..."
18. 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, Series
C Securities and Warrant Stock to include additional securities in..."
19. The third line of Paragraph 7(a)(iii) is hereby amended to read as
follows:
"a majority of the shares of Registerable Common Stock, Series B
Registerable Common Stock and Series C Registerable Common Stock..."
20. 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, Series B Registerable Common Stock, Series C
Registerable Common Stock and Warrant Stock
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requested to be included in such registration exceeds the amount of such
Registerable Common Stock, Series B Registerable Common Stock, Series C
Registerable Common Stock and Warrant 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 B Registerable Common Stock, Series C
Registerable Common Stock or Warrant Stock (notwithstanding any consent
obtained in accordance with subparagraph 7(a)(iii) hereof), the amount of
Registerable Common Stock, Series B Registerable Common Stock, Series C
Registerable Common Stock and Warrant 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 B Registerable Common Stock, Series C
Registerable Common Stock and Warrant Stock requesting inclusion on the
basis of the number of shares of Registerable Common Stock, Series B
Registerable Common Stock, Series C Registerable Common Stock and Warrant
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;
21. The third line of Paragraph 7(b)(i) is hereby amended to read as
follows:
"(other than pursuant to paragraph 7(a) hereof), whether of..."
22. 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, Series B
Registerable Common Stock, Series C Registerable Common Stock and Warrant
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 B Registerable Common Stock, Series C Registerable Common
Stock and Warrant Stock then owned by such..."
23. The eighteenth through twentieth lines of Paragraph 7(b)(iii) are
hereby amended to read as follows:
"Registerable Common Stock, Series B Registerable Common Stock, Series C
Registerable Common Stock and Warrant Stock requested to be included in
such registration, pro rata among the holders thereof on the basis of the
number of shares of
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Registerable Common Stock, Series B Registerable Common Stock, Series C
Registerable Common Stock and Warrant Stock..."
24. The sixth line of Paragraph 7(j) is hereby amended to read as
follows:
"Securities, Series B Securities and Series C Securities, voting as a
class, outstanding as of a record date..."
25. The tenth through twelfth lines of Paragraph 7(j) are hereby
amended to read as follows:
"holder of Securities, Series B Securities and Series C Securities at the
time outstanding (including securities into which such Securities, Series B
Securities and Series C Securities are convertible), each future holder of
all such Securities, Series B Securities and Series C Securities and the
Company."
26. The following definitions are hereby amended to read as follows:
"(m) "Series B Agreement" means the Stock Purchase Agreement,
dated as of November 15, 1993, by and among the Company and the Investors
listed on Exhibit 1.1 attached thereto relating to the purchase of shares
of the Company's Series B Convertible Preferred Stock, as amended.
"(n) "Series B Convertible Preferred Stock" means (a) the
2,000,000 shares of the Company's Series B Convertible Preferred Stock,
$.01 par value per share, issued pursuant to the Series B Agreement, (b)
the Note Shares and (c) except for purposes of Paragraph 6 of this
Agreement, the Centocor Shares. For purposes of Paragraph 6 of this
Agreement, "Series B Convertible Preferred Stock" specifically excludes the
Centocor Shares.
(o) "Series B Investors" means Investors as defined in the
Series B Agreement.
(p) "Series B Registerable Common Stock" means (a) Registerable
Common Stock as defined in the Series B Agreement, (b) any Common Stock
issued or issuable upon conversion of the Note Shares and (c) except for
purposes of Paragraph 6 of this Agreement, any Common Stock issued or
issuable upon conversion of the Centocor Shares. For purposes of Paragraph
6 of this Agreement, "Series B Registerable Common Stock" specifically
excludes the Centocor Shares.
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(q) "Series B Securities" means (a) Securities as defined in the
Series B Agreement, (b) the Note Shares and any Common Stock issued upon
conversion thereof, whether at Closing or thereafter, but shall not include
any such Note Shares or Common Stock sold in any public offering or in any
sale pursuant to Rule 144 under the Securities Act, and (c) except for
purposes of Paragraph 6 of this Agreement, the Centocor Shares and any
Common Stock issued upon conversion thereof, whether at Closing or
thereafter but shall not include any such Centocor Shares or Common Stock
sold in any public offering or in any sale pursuant to Rule 144 under the
Securities Act. For purposes of Paragraph 6 of this Agreement, "Series B
Securities" specifically excludes the Centocor Shares and any Common Stock
issued upon conversion thereof, whether at Closing or thereafter."
27. The following definitions are hereby added to the Agreement as
Xxxxxxxxxx 0(x), 0(x), 0(x), 0(x), 0(x), 8(w), 8(x), 8(y), 8(z) and 8(aa):
"(r) "Centocor Agreement" means the Stock Purchase Agreement,
dated September 20, 1994, by and between the Company and Centocor, Inc.
(s) "Centocor Shares" means the 400,000 shares of the Company's
Series B Convertible Preferred Stock, $.01 par value per share, issued to
Centocor, Inc. pursuant to the Centocor Agreement.
(t) "Conversion Agreement" means the Conversion Agreement, dated
as of April 23, 1996, by and among the Company and the Series B Investors.
(u) "Investors" means (a) the parties listed on Exhibit 1(a)
attached hereto and (b) any successors and assigns of the parties listed on
Exhibit 1(a) hereto who (i) have executed the Shareholders' Agreement
attached hereto as Exhibit 2(k), and (ii) have complied with the terms of
Paragraph 9(c) of this Agreement; provided that any such successor or
assign shall not acquire any of the rights granted to Investors by
Paragraph 7 of this Agreement unless the transfer and the transferee of
Securities satisfy the requirements of Paragraph 7(g) of this Agreement.
(u) "Note Shares" means the 1,600,000 shares of the Company's
Series B Convertible Preferred Stock, $.01 par value per share, issued
pursuant to the Conversion Agreement.
(v) "Series C Agreement" means the Stock Purchase Agreement,
dated as of May 1, 1996, by and among the Company
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and the Investors listed on Schedule 1.1 attached thereto relating to the
purchase of shares of the Company's Series C Convertible Preferred Stock, as
it may be amended, from time to time.
(w) "Series C Convertible Preferred Stock" means the up to
3,000,000 shares of the Company's Series C Convertible Preferred Stock,
$.01 par value per share, issued pursuant to the Series C Agreement.
(x) "Series C Investors" means Investors as defined in the
Series C Agreement.
(y) "Series C Registerable Common Stock" means Series C
Registerable Common Stock as defined in the Series C Agreement.
(z) "Series C Securities" means Securities as defined in the
Series C Agreement.
(aa) "Warrant Stock" means Warrant Stock as defined in the Series
C Agreement."
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, Xx.
______________________________
Xxxxxxx X. Xxxxxxxx, Xx.
President
INVESTORS
DSV PARTNERS IV, L.P.
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
9
CENTOCOR, INC.
By: /s/ Xxxxx X. Xxxxxxx
____________________________
Xxxxx X. Xxxxxxx
President and CEO
Address: 000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Mellon Bank, N.A., solely in its capacity as
Custodian for Chancellor Capital Management
Inc under agreement dated November 23, 1992
-- Chancellor Venture Capital L.P., (as
directed by Chancellor Capital Management,
Inc.), and not in its individual capacity
By: /s/ Xxxxxxx Xxxxxx
----------------------------- MAC & Co.
Name: Xxxxxxx Xxxxxx
Title: Officer
Address: c/o Chancellor Capital Management,
Inc.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
HARE & CO.
By: /s/ (Signature Illegible)
-----------------------------
Name:
Title: Executive Director
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/ Focus & Co.
___________________________
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Assistant Vice President
Address: c/o Chancellor Capital Management,
Inc.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
BOOTH & CO.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-----------------------------
Name:
Title:
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.
Centocor, Inc.
MAC & Co.
Hare & Co.
Focus & Co.
Booth & Co.
