FIRST AMENDMENT TO SERIES B 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 November 15, 1993, by and among the Company
and the Investors listed in Exhibit 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 eighth through tenth lines of Section 6.6 of the
Agreement are hereby amended to read as follows:
"record of a 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, outstanding as of a record date between
10 and 90..."
2. The ninth through eleventh lines of Section 6.7 of the Agreement
are hereby amended to read as follows:
"holders of record of a 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, outstanding as of a record
date between..."
3. The sixth and seventh lines of Section 6.8 of the Agreement are
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 outstanding
without obtaining..."
4. The ninth and tenth lines of Section 6.8 of the Agreement are
hereby amended to read as follows:
"shares of Series A Convertible Preferred Stock, Series B Convertible
Preferred Stock and Series C Convertible Preferred Stock, voting as a
class, outstanding as of..."
5. The eighteenth and nineteenth lines of Section 6.10 of the
Agreement are hereby amended to read as follows:
"shares of Series A Convertible Preferred Stock, Series B Convertible
Preferred Stock and Series C Convertible Preferred Stock, voting as a
class, outstanding as of..."
6. The twelfth and thirteenth lines of Section 6.15(a) of the
Agreement is hereby amended to read as follows:
"shall have first offered to sell to the Investors, the Series A Investors
and the Series C Investors such securities (the "Offered Securities"), at
a..."
7. The fifteenth and sixteenth lines of Section 6.15 (a) of the
Agreement are hereby amended to read as follows:
"Company in writing delivered to each of the Investors, the Series A
Investors and the Series C Investors (the "Offer"), which offer by its
terms shall..."
8. The eighteenth and nineteenth lines of Section 6.15 (a) are hereby
amended to read as follows:
"the date it is delivered by the Company to the Investors, the Series A
Investors and the Series C Investors."
9. The tenth and eleventh lines of Section 6.15(b) is hereby amended
to read as follows:
"Series A Convertible Preferred Stock, Series B Convertible Preferred Stock
and Series C Convertible Preferred Stock and of all shares issuable upon
the conversion of..."
10. Section 6.15(d) of the Agreement is hereby amended to read in full
as follows:
"(d) In the event that the Investors, the Series A Investors
and the Series C Investors do not elect to purchase all of the Offered
Securities which they are entitled to purchase under Section 6.15(b)
hereof, Paragraph 6(p)(ii) of the Series A 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 subsection (c) above, from the Series A Investors pursuant to
Paragraph 6(p)(ii) of the Series A 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 6.15(a) provide each of the
Investors who have delivered a Notice of Acceptance with
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written notice of the number of Offered Securities which have not been
accepted by the Investors, the Series A 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
subsection (d), "pro rata share" shall mean the percentage obtained by
dividing the number of Securities, Series A 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
subsection (c) above by the total number of Securities, Series A
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 subsection (c) above, by Series A Investors who have
delivered Notices of Acceptance pursuant to Paragraph 6(p)(iii) of the
Series A Agreement or by Series C Investors who have delivered Notices of
Acceptance pursuant to Section 6.13(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 subsection 6.15(c),
this subsection 6.15(d), from the Series A Investors pursuant to
subparagraphs 6(p)(iii) or 6(p)(iv) of the Series A 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 Securities satisfactory in form and substance to the
Investor and its counsel."
11. The third through eighth lines of Section 6.15(e) of the Agreement
are hereby amended to read as follows:
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"subsections 6.15(b), (c) and (d) hereof, by the Series A Investors in
accordance with Paragraph 6(p) of the Series A 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 A Investors and the Series C Investors under the
procedures specified in subsections 6.15(a), (b), (c) and (d) hereof,
Paragraph 6(p) of the Series A Agreement and Section 6.13 of the Series C
Agreement."
12. The first through third lines of Section 6.15(f) are hereby
amended to read as follows:
"The rights of the Investors, the Series A Investors and the Series C
Investors under this Section 6.15 shall not apply to the following
securities (the "Excluded Securities"):
13. Section 6.15(f)(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 Section 7.1 of the Agreement is hereby amended
to read as follows:
"holders of Securities, Series A Securities, Series C Securities and
Warrant Stock, and thereupon ..."
15. The fifteenth through seventeenth lines of Section 7.1 of the
Agreement are hereby amended to read as follows:
"such request) and (y) all other shares of Registerable Common Stock,
Series A Registerable Common Stock, Series C Registerable Common Stock and
shares of Warrant Stock, the holders of which have made written request to
the Company for..."
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16. 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 or
Section 7.1 of the Series C Agreement (except that, upon request of any
holder of..."
17. The seventh through thirteenth lines of Section 7.1(b) are hereby
amended to read as follows:
"information in the notice to the other holders of Securities, Series A
Securities, Series C Securities and Warrant Stock. In that event, the
other holders of Securities, Series A Securities, Series C Securities and
Warrant Stock shall have the right to include their shares of Registerable
Common Stock, Series A 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 A Securities, Series C Securities and Warrant Stock)..."
18. The second and third lines of Section 7.1(c) are hereby amended to
read as follows:
"not permit third parties other than holders of Series A Securities, Series
C Securities and Warrant Stock to include additional securities in a Demand
Registration..."
19. The fifth and sixth lines of Section 7.1(c) are hereby amended to
read as follows:
"majority of the shares of Registerable Common Stock, Series A Registerable
Common Stock and Series C Registerable Common Stock included in such
Demand..."
20. Section 7.1(d) is hereby amended to read in full as follows:
(d) if a Demand Registration under this Section 7.1(d) 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 C
Registerable Common Stock and Warrant Stock requested to be included in
such registration exceeds the amount of such Registerable Common Stock,
Series A 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
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are not Registerable Common Stock, Series A Registerable Common Stock,
Series C Registerable Common Stock or Warrant 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 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 A 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
A 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 Section 7.1, the holders
of Securities will be entitled to an additional Demand Registration under
this Section;"
21. The third and fourth lines of Section 7.2(a) are hereby amended to
read as follows:
"(other than pursuant to Section 7.1 hereof), whether of its own accord or
at..."
22. The sixteenth through twentieth lines of Section 7.2(b) are hereby
amended to read as follows:
"(ii) second, all of the Registerable Common Stock, Series A 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 A Registerable Common Stock, Series C Registerable Common Stock and
Warrant Stock then owned by such..."
23. The eighteenth through twenty-first lines of Section 7.2(c) are
hereby amended to read as follows:
"Stock, Series A 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 A Registerable Common Stock, Series C
Registerable Common Stock and Warrant Stock then..."
24. The fifth and sixth lines of Section 7.10 are hereby amended to
read as follows:
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"the Company and holders of record of a majority of the Securities, Series
A Securities and Series C Securities, voting as a class, outstanding as of
a ..."
25. The tenth through thirteenth lines of Section 7.10 are hereby
amended to read as follows:
"holder of Securities, Series A Securities and Series C Securities at the
time outstanding (including securities into which such Securities, Series A
Securities and Series C Securities are convertible), each future holder of
all such Securities, Series A Securities and Series C Securities and the
Company."
25. The following definitions are hereby amended to read in full as
follows:
"8.7 "Registerable Common Stock" means (a) any Common Stock
issued or issuable upon conversion of the Shares, (b) any Common Stock
issued or issuable upon conversion of the Note Shares and (c) except
for purposes of Section 6 of this Agreement, any Common Stock issued
or issuable upon conversion of the Centocor Shares. For purposes of
Section 6 of this Agreement, "Registerable Common Stock" specifically
excludes the Centocor Shares."
8.8 "Securities" means (a) the Shares and any Common Stock
issued upon conversion thereof, (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 Section 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 Section 6 of this Agreement, "Securities" specifically
excludes the Centocor Shares and any Common Stock issued upon
conversion thereof, whether at Closing or thereafter."
8.10 "Series A Agreement" means the Stock Purchase
Agreement, dated as of June 25, 1992, by and among the Company and the
Investors listed on Exhibit 1(a) attached thereto, as amended."
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26. The following definitions are hereby added to the Agreement as
follows:
8.17 "Centocor Agreement" means the Stock Purchase Agreement,
dated September 20, 1994, by and between the Company and Centocor,
Inc.
8.18 "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.
8.19 "Conversion Agreement" means the Conversion Agreement,
dated as of April 23, 1996, by and among the Company and the Series B
Investors.
8.20 "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.
8.21 "Investors" means (a) the parties listed on Exhibit 1.1
attached hereto and (b) any successors and assigns of the parties
listed on Exhibit 1.1 attached hereto who (i) have executed the
Shareholders' Agreement attached hereto as Exhibit 2.7, and (ii) have
complied with the terms of Section 9.4 of this Agreement; provided
that any such successor or assign shall not acquire any rights granted
to Investors by Section 7 of this Agreement unless the transfer and
transferee of Securities satisfy the requirements of Section 7.7 of
this Agreement.
8.22 "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 this Agreement,
(b) the Note Shares and (c) except for purposes of Section 6 of this
Agreement, the Centocor Shares. For purposes of Section 6 of this
Agreement, "Series B Convertible Preferred Stock" specifically
excludes the Centocor Shares.
8.23 "Series C Agreement" means the Stock Purchase Agreement,
dated as of May 1, 1996, by and among the Company 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.
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8.24 "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.
8.25 "Series C Investors" means Investors as defined in the
Series C Agreement.
8.26 "Series C Registerable Common Stock" means Series C
Registerable Common Stock as defined in the Series C Agreement.
8.27 "Series C Securities" means Securities as defined in the
Series C Agreement.
8.28 "Warrant Stock" means Warrant Stock as defined in the Series
C 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, L.P.
By: DSV MANAGEMENT, a New
Jersey Limited Partnership
By: ______________________
Xxxxxx Xxxxxxx,
General Partner
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
CENTOCOR, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
President
Address: 000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
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TECHNOLOGY LEADERS, L.P.
By: Technology Leaders Management, Inc., General
Partner
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
Address: 800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx XX 00000
Fax:
TECHNOLOGY LEADERS OFFSHORE, C.V.
By: Technology Leaders Management, Inc., General
Partner
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
Address: 800 The Safeguard
Building
000 Xxxxx Xxxx Xxxxx
Xxxxx XX 00000
Fax: (000) 000-0000
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EXHIBIT A
NAME
DSV Partners IV, L.P.
Centocor, Inc.
Technology Leaders, L.P.
Technology Leaders Offshore, C.V.
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