STOCK PURCHASE AGREEMENT
(SERIES B CONVERTIBLE PREFERRED STOCK)
Stock Purchase Agreement ("Agreement") made and entered into as of
the 20th day of September, 1994 by and among Apollon, Inc., a Pennsylvania
corporation (the "Company"), and Centocor, Inc., a Pennsylvania corporation
("Centocor").
W I T N E S S E T H
WHEREAS, the Company is in need of a biopharmaceutical manufacturing
facility and Centocor is willing to upgrade an existing Centocor
manufacturing facility to specifications suitable for the Company's needs,
and make such upgraded facility available to the Company for use in the
development and manufacture of the Company's nucleic acid-based product
candidates and genetic vaccine product candidates; and
WHEREAS, the Company desires to sell to Centocor 400,000 shares of
the Company's Series B Convertible Preferred Stock (the "Shares") in
consideration of Centocor's upgrading of its manufacturing facility and
making it available to the Company for the Company's use; and
WHEREAS, the Company desires to have, and Centocor is willing to
grant to the Company, an option to pay to the Company $1,000,000 in cash in
lieu of delivering the Shares.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, as well as the expression of intention by the
parties hereto to be legally bound by this, a written agreement, subject to
the terms and conditions hereof and in reliance upon the representations,
warranties and covenants contained herein, it is agreed as follows:
Section 1. Purchase of Shares.
1.1 Purchase and Sale. The Company shall sell, and Centocor
shall purchase, the Shares in consideration of Centocor's upgrading and
making available certain production facilities, currently leased by Centocor,
consisting of approximately 3,100 square feet, as more particularly described
in the Facilities Use Agreement (defined below) (the "Facilities"). The
Company, at its sole discretion and option, may satisfy its obligation to
deliver any of the Shares by paying to Centocor the cash equivalent of such
Shares at the price
of $2.50 per share (the "Cash Equivalent"). Any payment of the Cash
Equivalent shall be made by check in next day funds.
1.2 The Facilities. Centocor and the Company shall execute
deliver a Facilities Use Agreement (the "Facilities Use Agreement") in
substantially the form of Exhibit 1.2(a) to this Agreement. On or before the
date hereof, Centocor shall complete in full the upgrade of the Facilities in
accordance with Exhibit 1.2(b) to this Agreement, and shall make the
Facilities available to the Company in accordance with the Facilities Use
Agreement.
1.3 Initial Closing. The initial closing ("Initial Closing")
shall be held at the offices of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000 on the date the Facilities
are made available to the Company in accordance with Section 1.2, commencing
at 2:00 p.m., or at such other time, date or place as may be mutually agreed
upon (the "Initial Closing Date"). At the Initial Closing, the Company shall
deliver 200,000 Shares or the Cash Equivalent to Centocor and Centocor shall
execute and deliver to the Company the Facilities Use Agreement and shall
make the Facilities available to the Company.
1.4 Second Closing. The second closing (the "Second Closing")
shall be held at the offices of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000 on the date the Company
shall successfully manufacture in the Facilities its first GMP lot of a
genetic vaccine product candidate for use in human clinical trials,
commencing at 2:00 p.m., or at such other time, date or place as may be
mutually agreed upon (the "Second Closing Date"). At the Second Closing, the
Company shall deliver 200,000 Shares or the Cash Equivalent to Centocor.
Section 2. Conditions to the Obligations of Centocor
at Closing.
The obligation of Centocor to execute and deliver the Facilities Use
Agreement, to make the Facilities available to the Company and to purchase the
Shares at the Initial Closing is subject to the satisfaction on or prior to the
Initial Closing of the following conditions, any of which may be waived by
Centocor:
2.1 Opinion of Counsel to the Company. Centocor shall have
received an opinion, dated the Initial Closing Date, of Xxxxxxx Xxxxx Xxxxxxx
& Xxxxxxxxx, counsel for the Company, substantially in the form of Exhibit
2.1 hereto.
2.2 Representations and Warranties. All of the
representations and warranties of the Company contained in this Agreement
shall be true and correct in all material respects at and as of the Initial
Closing Date with the same effect as if made on the Initial Closing Date,
except to the extent of changes
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contemplated hereby or caused by the transactions contemplated hereby.
2.3 Performance of Covenants. All of the covenants and
agreements of the Company contained in this Agreement and required to be
performed on or prior to the Initial Closing Date shall have been performed
in a manner reasonably satisfactory in all respects to Centocor and its
counsel.
2.4 Legal Action. No action or proceeding before any court or
governmental body shall be pending or threatened wherein an unfavorable
judgment, decree or order will or could prevent the carrying out of this
Agreement or any of the transactions contemplated hereby, declare unlawful
the transactions contemplated by this Agreement, cause such transactions to
be rescinded or materially and adversely affect the financial condition or
operations of the Company.
2.5 Consents. All consents required to enable the Company to
observe and comply with all of its obligations under this Agreement and in
connection with the transactions contemplated hereby shall have been obtained
and all "blue sky" filings necessary in connection with the issuance and sale
of the Shares shall have been made.
2.6 Closing Documents. The Company shall have delivered to
Centocor (a) an officer's certificate dated the Initial Closing Date (i)
stating that the conditions in Sections 2.2 through 2.5 have been satisfied,
and (ii) attaching the Company's Articles of Incorporation, as amended (the
"Articles"), Bylaws (the "Bylaws"), all resolutions of the Board of Directors
relating to the issuance and sale of the Shares and a good standing
certificate issued by the Commonwealth of Pennsylvania, and (b) such
certificates, other documents and instruments as Centocor may reasonably
request in connection with, and to effect, the transactions contemplated by
this Agreement.
2.7 Proceedings. All corporate, shareholder and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby to be consummated at Closing and all documents incident
thereto shall be reasonably satisfactory in form and substance to Centocor
and its counsel.
Section 3. Conditions to the Obligations of the
Company at Closing.
The obligation of the Company to enter into the Facilities Use
Agreement and to deliver the Shares at the Initial Closing and to deliver the
Shares at the Second Closing is subject to the satisfaction on or prior to
the date of such
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Closing of the following conditions, any of which may be waived by the
Company:
3.1 Representations and Warranties. All of the
representations and warranties of Centocor contained in this Agreement and
the Facilities Use Agreement shall be true and correct in all material
respects at and as of the Initial Closing Date with the same effect as if
made on the Initial Closing Date, except to the extent of changes
contemplated hereby or thereby or caused by the transactions contemplated
hereby or thereby.
3.2 Legal Action. No action or proceeding before any court or
governmental body shall be threatened or pending wherein an unfavorable
judgment, decree or order would or could prevent the carrying out of this
Agreement or any of the transactions contemplated by this Agreement or cause
such transactions to be rescinded.
3.3 Agreement of Lease. The Agreement of Lease, dated
September 28, 1989, between Centocor and Xxxxx & Associates-256 Great Valley
Parkway (the "Landlord") shall be in full force and effect and no default,
and no event which, with the giving of notice or the passage of time, or
both, could constitute a default thereunder, shall have occurred.
3.4 Facilities Use Agreement. Centocor shall have upgraded
and validated the Facilities in accordance with Exhibit 1.2(b) to this
Agreement and shall have executed and delivered the Facilities Use Agreement.
Centocor shall not be in default, and no event shall have occurred which
with the giving of notice or the passage of time, or both, could constitute a
default under the Facilities Use Agreement.
3.5 Consents. Centocor shall have obtained all consents,
authorizations and approvals which are required to be obtained from any other
person, including without limitation the Landlord, to enable Centocor to
execute, deliver and perform this Agreement and the Facilities Use Agreement.
3.5 Closing Documents. Centocor shall have delivered to the
Company such certificates, other documents and instruments as the Company may
reasonably request in connection with, and to effect, the transactions
contemplated by this Agreement.
Section 4. Representations and Warranties
of the Company.
The Company represents and warrants to Centocor as follows:
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4.1 Organization, Good Standing and Qualification. The
Company is a corporation duly organized and validly subsisting under the laws
of the Commonwealth of Pennsylvania and has all requisite corporate power and
authority to carry on its business as currently conducted and as proposed to
be conducted, to own its properties, and to enter into and perform this
Agreement and the Facilities Use Agreement. The Company is not qualified as
a foreign corporation in any jurisdiction and the Company's conduct of its
business or its ownership or leasing of property does not make any such
qualification necessary, except where the failure to so qualify would not
have a material adverse effect on the financial condition or results of
operations of the Company.
4.2 Capital Stock. The authorized capital stock and the
outstanding capital stock of the Company as of the date of this Agreement
consists in each case solely of the shares indicated on Exhibit 4.2(a)
annexed hereto. All of the outstanding shares have been duly authorized and
are fully paid and non-assessable. An accurate list of the Company's
shareholders and their holdings as of the date of this Agreement is set forth
in Exhibit 4.2(b) annexed hereto. Except for the holders of Series A
Convertible Preferred Stock and the holders of Series B Convertible Preferred
Stock, no person or entity is entitled to preemptive or similar statutory or
contractual rights with respect to any securities of the Company. Except as
described on Exhibit 4.2(c) annexed hereto, as of the date of this Agreement
there are no outstanding warrants, options, convertible securities or other
agreements or arrangements of any character under which the Company is or may
be obligated to issue any equity securities of any kind, or to transfer any
equity securities of any kind owned by it, and the Company is not obligated
to issue any equity securities of any kind, or to transfer any equity
securities of any kind owned by it. Except as listed on Exhibit 4.2(c)
annexed hereto, as of the date of this Agreement the Company does not know of
any voting agreements, buy-sell agreements, option or right of first purchase
agreements or other agreements of any kind among any of the security holders
of the Company relating to the securities held by them. The voting rights,
designations, preferences, limitations and special rights of the Shares, when
issued, shall be as fully set forth in the Articles. When issued, delivered
and paid for pursuant to this Agreement, the Shares will be validly issued,
fully paid and non-assessable.
4.3 Subsidiaries. The Company does not own any shares of
stock, partnership interest, joint venture interest or any other security or
interest in any other corporation or other organization or entity.
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4.4 Corporate Proceedings. The execution, delivery and
performance of this Agreement and the Facilities Use Agreement have been duly
authorized by all requisite action on the part of the officers, directors and
shareholders of the Company. This Agreement and the Facilities Use Agreement
constitute valid and binding obligations of the Company, enforceable in
accordance with their terms. The Shares, when issued pursuant hereto, will
be free and clear of all encumbrances and restrictions except for
restrictions on transfer imposed by applicable securities laws, by this
Agreement or by the Shareholders' Agreement, dated November 15, 1993, among
the Company and Centocor and certain other shareholders of the Company (the
"Shareholders' Agreement"). The Company has reserved a sufficient number of
shares of its Common Stock (as hereinafter defined) for issuance upon the
conversion of the Shares and such shares of Common Stock, when issued in
accordance with the terms of the Shares, will be duly authorized, validly
issued, fully paid, non-assessable and free and clear of all encumbrances and
restrictions, except for restrictions on transfer imposed by applicable
securities laws, by this Agreement or by the Shareholders' Agreement.
4.5 Litigation. There are no actions, suits, proceedings,
orders, investigations or claims pending or, to the knowledge of the Company
or any officer, director or key employee of the Company, threatened against
or affecting the Company, or against the assets or business of the Company,
or against any key employee, officer, director or shareholder of the Company
in his capacity as such person or relating to any of his activities with the
Company, at law or in equity or before or by any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, except as would not have a material adverse effect on the
Company.
4.6 Compliance with Laws and Other Instruments. Neither the
execution, delivery or performance of this Agreement, nor the offer,
issuance, sale or delivery of the Shares to Centocor, nor the issuance of
shares of Common Stock upon conversion of the Shares, with or without the
giving of notice or passage of time, or both, will (i) violate, or result in
any breach of, or constitute a default under, or result in the imposition of
any encumbrance upon any asset of the Company pursuant to, any provision of
the Articles or the By-laws, or any contract, law, rule, regulation,
judgment, decree or other document or instrument to which the Company is a
party or by which it is bound or (ii) cause the Company to lose the benefit
of any right or privilege it presently enjoys, except as contemplated by this
Agreement.
4.7 Governmental Consents; Offering of Shares. No consent,
authorization, approval, permit or order of, or
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declaration to or filing with, any governmental or regulatory authority is
required in connection with the execution, delivery and performance of this
Agreement or the offer, issuance, sale or delivery of the Shares. Neither
the Company nor any agent acting on its behalf has, directly or indirectly,
sold or offered for sale, or solicited any offers to buy, any securities, or
otherwise approached or negotiated with any person or persons, so as to
subject the offer or sale of the Shares to Centocor to the provisions of
Section 5 of the Securities Act, and the Company agrees that neither it nor
any agent acting on its behalf will take any action that would subject the
offer or sale of the Shares to those provisions. Except as set forth on
Exhibit 4.7 hereto, neither the Company nor anyone acting on its behalf has
directly or indirectly offered the Series B Convertible Preferred Stock or
any part thereof or any similar security of the Company (or any other
securities convertible or exchangeable for the Series B Convertible Preferred
Stock or any similar security), for sale to, or solicited any offer to buy
the same from, anyone other than Centocor. Assuming the accuracy of the
representations and warranties of Centocor made herein, the offer, sale and
issuance of the Series B Convertible Preferred Stock and the Common Stock
issuable upon conversion of the Series B Convertible Preferred Stock do not
and will not require registration under the Securities Act.
4.8 Registration Rights. Except as described in Exhibit 4.8
to this Agreement and as contemplated by this Agreement, no person has any
right to cause the Company to effect the registration under the Securities
Act of any shares of Common Stock or any other securities (including debt
securities) of the Company.
4.9 Brokers and Finders. No person or firm has, or will have,
any right, interest or valid claim against the Company or Centocor for any
commission, fee or other compensation as a finder or broker or in any similar
capacity as a result of any act or omission by the Company or anyone acting
on behalf of the Company in connection with any transaction contemplated by
this Agreement.
4.10 Disclosure. Neither the representations and warranties
made by the Company in this Agreement or the Exhibits annexed hereto nor any
writing furnished to Centocor pursuant to this Agreement or in connection
with this Agreement by the Company or anyone acting on its behalf contains
any untrue statement of a material fact or omits to state any material fact
required to make the statements herein or therein not misleading in the light
of the circumstances under which those statements were made. There exists no
fact or circumstance which, to the knowledge of the Company or any officer or
director of the Company, materially adversely affects or could reasonably be
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anticipated to have a materially adverse effect on, the existing or expected
financial condition, operating results, assets or business prospects of the
Company.
Section 5. Representations and Warranties
of Centocor.
Centocor represents and warrants to the Company as follows:
5.1 Organization; Capacity. Centocor is a corporation
organized under the laws of Pennsylvania, with full authority (corporate or
otherwise) to make and perform its obligations under this Agreement and the
Facilities Use Agreement.
5.2 Authorization; No Breach. The execution, delivery and
performance by Centocor of this Agreement and the Facilities Use Agreement
have been duly authorized by all requisite corporate action and will not
violate Centocor's articles of incorporation or constitute a breach of or
default under any instrument to which Centocor is a party or by which any of
its properties are bound.
5.3 Binding Obligation. This Agreement and the Facilities Use
Agreement constitute valid and binding obligations of Centocor enforceable in
accordance with their terms.
5.4 No Broker. No person or firm has, or will have, any
right, interest or valid claim against the Company for any commission, fee or
other compensation as a finder or broker or in any similar capacity as a
result of any act or omission by Centocor or anyone acting on behalf of
Centocor in connection with any transaction contemplated by this Agreement.
5.5 Purchase for Investment. Centocor is purchasing the
Shares for its own account for investment and not with a view to or for sale
in connection with any distribution of the Shares.
5.6 Suitability. (a) Centocor has such knowledge and
experience in financial and business matters as to be capable of evaluating
the risks and the merits of an investment in the Company; (b) Centocor can
bear the economic risk of its investment (i.e., at the time of the investment
Centocor can afford a complete loss of the investment and can afford to hold
the investment for an indefinite period of time), and (iii) Centocor is an
"Accredited Investor" as that term is defined in Regulation D under the
Securities Act or to the extent Centocor is not an "Accredited Investor,"
Centocor is fully capable of
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making all of the representations and warranties in this Section 5, including
(a) and (b) above, and by its execution hereof does so affirm.
5.7 Registration or Sales. (a) Centocor understands that the
Securities (as hereinafter defined) are not registered under the Securities
Act nor any regulatory authority of any state and must be held indefinitely
unless they are subsequently registered under the Securities Act and any
applicable state law or an exemption from such registration is available; (b)
Centocor is aware that any routine sales of the Shares or any shares received
upon conversion of the Shares made under Rule 144 of the Commission (as
hereinafter defined) under the Securities Act may only be made in limited
amounts and in accordance with the terms and conditions of that Rule and that
in cases where that Rule is not applicable, compliance with Regulation A or
some other disclosure exemption will be required; and (c) Centocor
understands that, except as otherwise provided herein, the Company is under
no obligation whatsoever and has no intention to register the Shares or any
shares that might be received upon conversion of the Shares under the
Securities Act, to comply with any such Rule or exemption, or to supply
Centocor with any information necessary to enable Centocor to make routine
sales of the Shares, or any shares received upon conversion of the Shares,
under Rule 144.
5.8 Legended Certificates. Centocor understands that the
certificates evidencing the Shares, and any other shares or equity securities
distributed on or in respect of or in substitution for or upon conversion of
such Shares (other than Shares that shall have been transferred pursuant to
an effective registration statement), will bear a legend substantially in the
following form until the Company's counsel determines that the legend is no
longer advisable:
"The securities evidenced by this certificate have not been
registered under the Securities Act of 1933 (the "Act") and
are "restricted securities" as defined in Rule 144
promulgated under the Act. The securities may not be sold
or offered for sale or otherwise distributed except (i)
pursuant to an effective registration statement for the
securities under the Act; (ii) in compliance with Rule 144;
or (iii) after receipt of an opinion of counsel satisfactory
to the company that such registration or compliance is not
required as to said sale, offer or distribution."
9
and that appropriate stop-transfer orders will be noted on the Company's
stock records with respect to all Shares so legended.
5.9 Confidentiality. Centocor shall hold in confidence any
confidential information about the Company that Centocor has received or
hereafter receives pursuant to any provision of this Agreement under
circumstances indicating the confidentiality of such information until the
Company shall have publicly disclosed such information, except information
that otherwise comes into the public domain or is disclosed by a third party
having the right to disclose it to Centocor without breach of this Agreement
or any other agreement by which the disclosing party is bound.
5.10 Lock Up. Centocor shall not, with respect to any public
offering of the Company's securities which occurs following the Initial
Closing Date, effect any public sale or distribution of the Securities during
such period of time, if any, not to exceed 120 days, as any underwriter shall
reasonably require in connection with such public offering.
5.11 Investment Company Status. Centocor is not an "investment
company" within the meaning of the Investment Company Act of 1940.
Section 6. Shares Subject to Repurchase Option.
6.1 Repurchase Option. The Company shall have the right, but
not the obligation, to repurchase any of the Shares, upon thirty (30) days'
prior written notice from the Company to Centocor, at a purchase price of
$2.50 per share (the "Repurchase Option").
6.2 Shareholder Rights. Until such time as the Company
actually exercises its Repurchase Option, Centocor shall have all the rights
of a shareholder of the Company with respect to any Shares that have been
issued and delivered to Centocor.
6.3 Assignability of Repurchase Option. The Company, at its
sole discretion, may assign the Repurchase Option.
6.4 Expiration of Repurchase Option. The Repurchase Option
shall expire at the earlier of (a) January 1, 1995 or (b) thirty (30) days
after the Company has completed the sale of all currently authorized but
unissued shares of the Company's Series B Convertible Preferred Stock.
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Section 7. Additional Agreements of the Parties.
7.1 Intent to be Bound by Series B Agreement. The Company and
Centocor hereby covenant to each other and agree to be bound, subject to the
terms of this Agreement, by Sections 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.10,
6.11, 6.12, 6.13, 6.16, 6.18, 6.20, 6.22, 6.23, 7 and 8 of the Series B
Agreement. The Company and Centocor agree that the term "Shares" as used in
Sections 6.12, 6.13, 6.20, 7.9, 9.14 and 9.16 of the Series B Agreement, the
term "Securities" as used in Sections 7 and 9.16 of the Series B Agreement
and the term "Registerable Common Stock" as used in Section 7 of the Series B
Agreement shall include the Shares, as defined herein.
7.2 Intent to be bound by the Shareholders' Agreement.
Centocor hereby covenants and agrees that all of the Shares shall be subject
to the terms and conditions of the Shareholders' Agreement and that the term
"Shares" as used in the Shareholders' Agreement shall include the Shares, as
defined herein.
Section 8. Certain Definitions.
For the purposes of this Agreement the following terms have the
respective meanings set forth below:
8.1 "Commission" means the Securities and Exchange Commission
and includes any governmental body or agency succeeding to the functions
thereof.
8.2 "Common Stock" means the Company's Common Stock, par value
$.01 per share.
8.3 "Exchange Act" means, as of any given time, the Securities
Exchange Act of 1934, as amended, or any similar federal law then in force.
8.4 "Securities" means the Shares and any Common Stock issued
upon conversion thereof, whether at the Initial Closing or thereafter, but
shall not include any such Shares or Common Stock sold in any public offering
or in any sale pursuant to Rule 144 under the Securities Act.
8.5 "Securities Act" means, as of any given time, the
Securities Act of 1933, as amended, or any similar federal law then in force.
8.6 "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 thereto, as amended from time to time.
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8.7 "Series B Investors" means Investors as defined in the
Series B Agreement.
8.8 "Subsidiary" means any person, corporation, firm or entity
at least the majority of the equity securities (or equivalent interest) of
which are, at the time as of which any determination is being made, owned of
record or beneficially by the Company, directly or indirectly, through any
Subsidiary or otherwise.
8.9 "Terminating Public Offering" means an underwritten public
offering (whether on a "best efforts" or a "firm commitment" basis) for the
account of the Company of Common Stock or securities convertible into or
exchangeable for shares of Common Stock, where the aggregate sales price of
the securities included in such sale (after deduction of any underwriting
commissions, discounts and concessions) is at least $12,500,000 and the price
per share of such securities is at least $3.33.
Section 9. Miscellaneous.
9.1 Exhibits. The Exhibits attached to this Agreement
constitute a part of this Agreement. They are incorporated herein by
reference and shall have the same force and effect as if set forth in full in
the main body of this Agreement.
9.2 Survival of Representations, Warranties and Covenants. All
representations, warranties, covenants and agreements contained in this
Agreement, or in any document, exhibit, schedule or certificate or in any
other writing by any party delivered in connection herewith shall survive the
execution and delivery of this Agreement and the Initial Closing Date and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by or on behalf of Centocor. Notwithstanding the
foregoing, all obligations of the Company under this Agreement, other than
the obligations under Section 1.4, will cease and be of no further force and
effect upon the closing of a Terminating Public Offering.
9.3 Assigns; Parties in Interest. This Agreement shall bind
and inure to the benefit of the Company, Centocor, each other person who
shall become a registered holder of any certificate representing the
Securities and the respective successors and assigns of the Company, Centocor
and each such other person.
9.4 Governing Law. This Agreement is being delivered and is
intended to be performed in the Commonwealth of Pennsylvania and shall be
governed by and construed and enforced
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in accordance with the internal laws of said Commonwealth, and without giving
effect to conflicts of laws.
9.5 Indemnification. The Company shall, with respect to the
representations, warranties, covenants and agreements made by the Company
herein, and Centocor shall, with respect to the representations, warranties,
covenants and agreements made by Centocor herein, indemnify, defend and hold
Centocor or the Company, as the case may be, harmless against all liability,
loss or damage, together with all reasonable costs and expenses related
thereto (including legal and accounting fees and expenses), arising from the
untruth, inaccuracy or breach of any such representations, warranties,
covenants or agreements of the Company or Centocor, as the case may be.
Without limiting the generality of the foregoing, Centocor or the Company, as
the case may be, shall be deemed to have suffered liability, loss or damage
as a result of the untruth, inaccuracy or breach of any such representations,
warranties, covenants or agreements if such liability, loss or damage shall
be suffered by the Company as a result of, or in connection with, such
untruth, inaccuracy or breach of any facts or circumstances constituting such
untruth, inaccuracy or breach.
9.6 Liability and Indemnification. The Company shall, to the
full extent permitted by Sections 1741 through 1750 of the Business
Corporation Law of 1988 of the Commonwealth of Pennsylvania, as amended from
time to time, indemnify all persons whom it may indemnify thereunder. To the
fullest extent permitted by the Business Corporation Law of the Commonwealth
of Pennsylvania, as amended from time to time, a director of the Company
shall not be liable to the Company or its shareholders for monetary damages
for breach of fiduciary duty as a director.
9.7 Remedies. In case any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by the
Company or Centocor, Centocor or the Company, as the case may be, may proceed
to protect and enforce its rights either by suit in equity and/or by action
at law, including, but not limited to, an action for damages as a result of
any such breach and/or an action for specific performance of any such
covenant or agreement contained in this Agreement. Centocor or the Company
acting pursuant to this Section 9.7 shall be indemnified against all
liability, loss or damage, together with all reasonable costs and expenses
related thereto (including legal and accounting fees and expenses) in
accordance with Section 9.6.
9.8 Exchanges; Lost, Stolen or Mutilated Certificates. Upon
surrender by Centocor to the Company of any certificate representing shares
of Series B Convertible Preferred Stock (or Common Stock issuable upon
conversion thereof)
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purchased or acquired hereunder, the Company at its expense will issue in
exchange therefor, and deliver to Centocor, a new certificate or certificates
representing such shares, in such denominations as may be requested by
Centocor. Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of any certificate representing any
Securities purchased or acquired by Centocor hereunder, and in case of such
loss, theft or destruction, upon delivery of any indemnity agreement
satisfactory to the Company, or in case of any such mutilation, upon
surrender and cancellation of such certificate, the Company at its expense
will issue and deliver to Centocor a new certificate for such Series B
Preferred Stock (or Common Stock issuable upon conversion thereof) of like
tenor, in lieu of such lost, stolen or mutilated certificate.
9.9 Notices. All communications provided for in this Agreement
shall be in writing and shall be sent to each party as follows:
TO THE COMPANY TO CENTOCOR
-------------- -----------
Xxxxxxx X. Xxxxxxxx, Xx., Ph.D. Xxxxx X. Xxxxxxx
Apollon, Inc. Centocor, Inc.
One Great Valley Parkway 000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
FAX: (000) 000-0000 FAX: (000) 000-0000
With a Copy To: With a Copy To:
Xxxxxx Xxxxxxx, Xx.,Esq.
Xxxxxxx Xxxxx Xxxxxxx
& Ingersoll
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
FAX: (000) 000-0000
or to such other address as such party may hereafter specify in writing, and
shall be deemed given on the earlier of (a) physical delivery, (b) if given
by facsimile transmission, when such facsimile is transmitted to the
telephone number specified in this Agreement and telephone confirmation of
receipt thereof is received, (c) three days after mailing by prepaid first
class mail and (d) two days after mailing by prepaid overnight or express
mail.
9.10 Entire Agreement; Amendments. This Agreement and the
Facilities Use Agreement constitute the entire agreement among the parties
regarding the transactions contemplated herein. This Agreement may not be
modified or amended except by written agreement of all parties hereto.
14
9.11 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the interpretation of
this Agreement.
9.12 Counterparts. This Agreement may be executed in one or
more counterparts each of which shall be deemed to be one and the same
instrument.
9.13 Disclosures Elsewhere. No representation or warranty
contained in this Agreement or in any exhibit, schedule, certificate or other
document delivered pursuant hereto shall be considered to be breached due to
the omission of matters required to be disclosed pursuant to the terms of
this Agreement if the matter or matters giving rise to any such breach or
omission is or are disclosed anywhere in this Agreement or in any of the
exhibits, schedules, certificates or other documents delivered pursuant
hereto.
15
IN WITNESS WHEREOF, each of the parties hereto has fully executed
this Agreement all as of the day and year first above written.
APOLLON, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
-------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
President
CENTOCOR, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Exhibits
Exhibit 1.2(a) - Form of Facilities Use Agreement
Exhibit 1.2(b) - Facilities Upgrade Standards
Exhibit 2.1 - Form of Opinion of Xxxxxxx Xxxxx Xxxxxxx
& Ingersoll
Exhibit 4.2(a) - Authorized Capital Stock
Exhibit 4.2(b) - Shareholders of the Company
Exhibit 4.2(c) - Warrants, Convertable Securities, Options or Other
Agreements With Shareholders
Exhibit 4.7 - Offers of Securities
Exhibit 4.8 - Registration Rights
