STOCK PURCHASE AGREEMENT
(SERIES C CONVERTIBLE PREFERRED STOCK)
Stock Purchase Agreement ("Agreement") made and entered into as of May
1, 1996, by and among Apollon, Inc., a Pennsylvania corporation (the "Company"),
and the parties listed on Schedule 1.1 to this Agreement (hereinafter sometimes
referred to individually as an "Investor" and collectively as the "Investors").
W I T N E S S E T H
WHEREAS, the Company desires to sell to the Investors and the
Investors desire to purchase from the Company in the aggregate a minimum of
1,500,000 but no more than 3,000,000 shares of the Company's Series C
Convertible Preferred Stock, $.01 par value per share (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 each
Investor shall purchase, the Shares in the number and for the consideration set
forth opposite such Investor's name on Schedule 1.1 attached hereto.
1.2 CLOSING. The closing ("Closing") of the purchase by the
Investors of the Shares shall be held at the offices of Xxxxxxx Xxxxx Xxxxxxx &
Xxxxxxxxx, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000, on May 7,
1996, commencing at 12:00 p.m. local time, or at such other time, date or place
as may be mutually agreed upon (the "Closing Date").
1.3 DELIVERY OF CERTIFICATES. At Closing, the Company shall
deliver to each Investor a certificate or certificates evidencing the Shares to
be issued and delivered to each such Investor at Closing in accordance with
Schedule 1.1 attached hereto.
1.4 PAYMENT. The Investors shall pay the purchase price to be
paid at Closing by delivery to the Company at Closing of a check or checks or by
wire transfer in immediately available funds in the amounts set forth on
Schedule 1.1 attached hereto.
Section 2. CONDITIONS TO THE OBLIGATIONS OF THE
INVESTORS AT CLOSING.
The obligation of each of the Investors to purchase and pay for the
Shares to be purchased by such Investor at Closing is subject to the
satisfaction on or prior to the date of Closing of the following conditions, any
of which may be waived by such Investor:
2.1 OPINION OF COUNSEL TO THE COMPANY. The Investors shall have
received an opinion, dated the date of Closing, of Xxxxxxx Xxxxx Xxxxxxx &
Ingersoll, counsel for the Company, substantially in the form of Exhibit 2.1
attached hereto.
2.2 REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties of the Company contained in this Agreement shall be true and
complete in all material respects at and as of the date of Closing with the same
effect as if made on the date of Closing, except to the extent of changes
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 date of Closing shall have been performed in a
manner reasonably satisfactory in all respects to the Investors and their
counsel.
2.4 AMENDED ARTICLES OF INCORPORATION. The Company's Articles
of Incorporation, as amended, shall have been duly amended substantially as set
forth on Exhibit 2.4(a) attached hereto (the "Amended Articles"), and the
Company shall have filed with the Department of State of the Commonwealth of
Pennsylvania (the "Department") a Statement Affecting Class or Series of Shares
(the "Statement") establishing the Series C Convertible Preferred Stock,
substantially in the form of Exhibit 2.4(b) attached hereto.
2.5 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.
2.6 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
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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.
2.7 CLOSING DOCUMENTS. The Company shall have delivered to the
Investors (a) a certificate of the Company's President dated the date of
Closing, substantially in the form of Exhibit 2.7(a) attached hereto, stating
that the conditions set forth in Sections 2.2 through 2.6 have been satisfied,
and (b) a certificate of the Company's Secretary dated the date of Closing,
substantially in the form of Exhibit 2.7(b) attached hereto, attaching copies of
the Company's Articles of Incorporation, as amended, the Company's Bylaws (the
"Bylaws"), all resolutions of the Board of Directors of the Company relating to
the issuance and sale of the Shares and a good standing certificate issued by
the Commonwealth of Pennsylvania, and (c) such certificates, other documents and
instruments as the Investors may reasonably request in connection with, and to
effect, the transactions contemplated by this Agreement.
2.8 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 the Investors
and their counsel.
Section 3. CONDITIONS TO THE OBLIGATIONS OF THE
COMPANY AT CLOSING.
The obligation of the Company to issue and deliver the Shares to be
purchased by each Investor at Closing is subject to the satisfaction on or prior
to the date of 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 the Investors contained in this Agreement shall be true and
complete in all material respects at and as of the date of Closing with the same
effect as if made on the date of Closing, except to the extent of changes
contemplated hereby or caused by the transactions contemplated hereby.
3.2 DELIVERY OF CONSIDERATION. The Investors shall have
delivered, in accordance with Section 1.4, the consideration for the Shares set
forth opposite such Investor's name on Schedule 1.1 attached hereto.
3.3 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
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transactions contemplated by this Agreement or cause such transactions to be
rescinded.
3.4 CLOSING DOCUMENTS. The Investors 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 each Investor as follows:
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
in the Private Placement Memorandum (as defined herein), to own its properties,
and to enter into and perform this 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. On the Closing Date, the authorized capital
stock, and the outstanding capital stock, of the Company will consist in each
case solely of the shares set forth on Schedule 4.2(a) attached 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 is set forth on Schedule 4.2(b) attached hereto. Except for the
holders of Series A Convertible Preferred Stock (as defined herein) and the
holders of Series B Convertible Preferred Stock (as defined herein), 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 Schedule
4.2(c) attached hereto, there are no outstanding warrants, options 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 Schedule 4.2(c) attached hereto, the
Company does not know of any voting agreements, buy-sell agreements, option or
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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 Amended
Articles and the Statement. 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 equity security or
interest in any other corporation or other organization or entity.
4.4 CORPORATE PROCEEDINGS. The execution, delivery and
performance of this Agreement have been duly authorized by all requisite action
on the part of the officers, directors and shareholders of the Company. This
Agreement constitutes a valid and binding obligation of the Company and is
enforceable in accordance with all stated terms except as limited (a) by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other laws relating to or affecting the enforcement of creditors' rights, or (b)
by general equitable principles, whether applied in law or in equity. 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 and by this Agreement. The Company has reserved a sufficient
number of shares of its Common Stock (as defined herein) for issuance upon the
conversion of the Shares and such shares of Common Stock, when issued in
accordance with the resolutions of the Board of Directors of the Company
authorizing their issuance, 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 and by this
Agreement.
4.5 LITIGATION. There are no actions, suits, proceedings,
orders, investigations or claims pending (in which service of process or written
notice has been received by an employee of the Company) 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.
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4.6 TAX MATTERS. The Company has duly and timely filed, or
caused to be filed, all Federal, state and local tax returns required to be
filed by it and has paid all taxes shown to be due and payable on such returns,
as well as all deficiencies and assessments, notice of which has been received
by it.
4.7 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 the Investors, 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 its Articles of
Incorporation, as amended, or the Amended Articles, as the case may be, or the
Bylaws 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.
4.8 GOVERNMENTAL CONSENTS; OFFERING OF SHARES. Except as set
forth on Schedule 4.8(a) attached hereto, no consent, authorization, approval,
permit or order of, or 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 the Investors to the provisions
of Section 5 of the Securities Act (as defined herein), 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 Schedule 4.8(b) attached hereto, neither the Company nor anyone
acting on its behalf has directly or indirectly offered the Series C Convertible
Preferred Stock or any part thereof or any similar security of the Company (or
any other securities convertible or exchangeable for the Series C Convertible
Preferred Stock or any similar security), for sale to, or solicited any offer to
buy the same from, anyone other than the Investors. Assuming the accuracy of
the representations and warranties of the Investors made herein, the offer, sale
and issuance of the Series C Convertible Preferred Stock and the Common Stock
issuable upon conversion of the Series C Convertible
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Preferred Stock do not and will not require registration under the Securities
Act.
4.9 PRIOR ISSUANCE OF SECURITIES. All securities of the Company
heretofore sold and issued by it were sold and issued in compliance with all
applicable federal and state securities laws.
4.10 ENCUMBRANCES. The Company owns, or has a valid leasehold
interest in, or valid license for, all of its property and assets, real,
personal or fixed, tangible or intangible, subject to no mortgages, liens,
security interests, pledges, charges or other encumbrances of any kind.
4.11 PRIVATE PLACEMENT MEMORANDUM. The Company has previously
presented and delivered to the Investors the Private Placement Memorandum, which
Private Placement Memorandum has been material to the Investors in their
decision to enter into this Agreement and to purchase the Series C Convertible
Preferred Stock hereunder. The description of the business, operations (as
presently conducted and as proposed to be conducted), properties and assets of
the Company contained in the Private Placement Memorandum, as well as all other
factual statements contained therein, are true, correct and do not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading as
of the date of such description or statement. The financial and market
projections and other estimates contained in the Private Placement Memorandum
are based on the best estimates of the Company derived from reasonable
expectations at the time such projections and estimates were made. Neither the
projections nor the assumptions on which the projections are based have been
prepared, reviewed or approved by the Company's counsel, agents or accountants.
The projections are subject to change inasmuch as all material events and
circumstances cannot be predicted and unanticipated events and circumstances are
likely to occur. Accordingly, it is likely that there will be differences
between the projected results and the Company's actual results. These
differences may be material. Therefore, no representation or warranty as to the
accuracy of these projections can be or is being made by the Company or any of
their principals or affiliates and no assurance can be given that the projected
results will actually be achieved.
4.12 COMPLIANCE. The Company has complied with its Articles of
Incorporation, as amended, or the Amended Articles, as the case may be, and the
Bylaws, and has complied in all material respects with all federal, state, local
and foreign laws, ordinances, regulations and orders applicable to its business
or the ownership of its assets and all decrees, orders
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or judgments of any court of competent jurisdiction. The Company has all
federal, state, local and foreign governmental licenses and permits material
to and necessary in the conduct of its business; such licenses and permits
are in full force and effect, no violations have been recorded in respect of
any such licenses or permits, and no proceeding is pending or, to the
knowledge of the Company or any officer, director or key employee of the
Company, threatened to revoke or limit any thereof.
4.13 INSURANCE. All policies of liability, property, casualty,
workmen's compensation, health and other forms of insurance held by the Company
are, to the best of the Company's knowledge, valid and enforceable policies and
are outstanding and duly in force and all premiums with respect thereto are paid
to date. The amounts of coverage under such policies of insurance for the
assets and properties of the Company are adequate against risks usually insured
against by persons operating similar businesses and operating similar
properties. The Company does not carry professional liability or directors and
officers liability insurance.
4.14 RELATED TRANSACTIONS. Except as contemplated by this
Agreement and as set forth on Schedule 4.14 attached hereto, no current or
former shareholder, director, officer or employee of the Company (other than the
Investors) nor any "associate" (as defined in the rules and regulations
promulgated under the Exchange Act (as defined herein)) of any such person is
presently, directly or indirectly through his or its affiliation with any other
person or entity, a party to any transaction with the Company providing for the
furnishing of services (other than employment of such individuals by the
Company) by or to, or rental of real or personal property from or to, or
otherwise requiring cash payments to or by, any such person in excess of
$15,000. For purposes of this Agreement, a transaction of the type described in
this Section 4.14 is sometimes herein referred to as a "Related Transaction".
4.15 REGISTRATION RIGHTS. Except as contemplated by this
Agreement or as described on Schedule 4.15 attached hereto, 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.
4.16 COMPLIANCE WITH ERISA; BENEFIT PLANS. Except as described
on Schedule 4.16 attached hereto, the Company does not sponsor or maintain, and
is not required, either by law or by contract, to contribute to, any employee
welfare benefit plan, within the meaning of section 3(1) of ERISA (as defined
herein), or any employee pension benefit plan, within the meaning of
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section 3(2) of ERISA. The Company has not contributed to and is not
required to contribute to any multiemployer plan within the meaning of
section 3(37) of ERISA.
4.17 INVESTMENT COMPANY ACT. The Company is not an "investment
company" as that term is defined in, and is not otherwise subject to regulation
under, the Investment Company Act of 1940, as amended.
4.18 PATENTS, TRADEMARKS, ETC. The Company owns or has rights to
various patents, trademarks, service marks, trade names, copyrights, licenses,
applications for patents, inventions, trade secrets, know-how, proprietary
processes and formulae, and other intellectual property rights (collectively,
the "Intellectual Property"), without any known conflict with the rights of
others. Except as set forth on Schedule 4.18(a) attached hereto, the Company
knows of no additional Intellectual Property required to conduct its business as
now conducted without conflict with the rights or claimed rights of others. The
Company has not received notice of any alleged infringement by it, nor is the
Company aware of any infringement or any basis for an alleged infringement by it
of any third-party patent, trademark, service xxxx, trade name, copyright or
license. The Company has confidentiality agreements with all of its employees
substantially in the form of Exhibit 4.18(b) attached hereto. Except as set
forth on Schedule 4.18(c) attached hereto, to the best knowledge of the Company
after due inquiry, none of the Company's employees are subject to
confidentiality or similar types of agreements which would hinder or prevent
them from fully and lawfully performing their responsibilities as employees.
4.19 NO DEFAULTS. The Company has in all material respects
performed all obligations required to be performed by it, and is not in default
in any material respect, under any material contract, commitment or instrument,
and no event or condition has occurred which, with the giving of notice or
passage of time, or both, would constitute such a default. To the best
knowledge of the Company, all parties having material contracts or commitments
with the Company are in compliance therewith in all material respects. Schedule
4.19 attached hereto contains an accurate list of all material contracts or
commitments as of the date of this Agreement, oral or written.
4.20 BROKERS AND FINDERS. Except for Genesis Merchant Group
Securities, no person or firm has, or will have, any right, interest or valid
claim against the Company or any Investor 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
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Company in connection with any transaction contemplated by this Agreement.
4.21 DISCLOSURE. Neither the representations and warranties made
by the Company in this Agreement nor the Schedules attached hereto contain any
untrue statement of a material fact or omit 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 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 INVESTORS.
Each Investor severally represents and warrants to the Company as
follows:
5.1 ORGANIZATION; CAPACITY. If such Investor is not an
individual, it is a partnership or corporation organized under the laws of the
jurisdiction as indicated under its name on the signature page of this
Agreement, with full authority (corporate or otherwise) to make and perform its
obligations under this Agreement. If such Investor is an individual, such
Investor is SUI JURIS and of full capacity to make and perform his or her
obligations under this Agreement.
5.2 AUTHORIZATION; NO BREACH. The execution, delivery and
performance by such Investor of this Agreement has been duly authorized and will
not violate any partnership agreement or articles of incorporation, as amended,
of such Investor or constitute a breach of or default under any instrument to
which such Investor is a party or by which any of its, his or her properties are
bound.
5.3 BINDING OBLIGATION. This Agreement constitutes a valid and
binding obligation of such Investor enforceable in accordance with its terms.
5.4 NO BROKER. No person or firm has, or will have, any right,
interest or valid claim against the Company or any other Investor 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 such Investor or anyone acting on
behalf of such Investor in connection with any transaction contemplated by this
Agreement.
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5.5 PURCHASE FOR INVESTMENT. Such Investor is purchasing the
Shares for its, his or her 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) Such Investor 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) such Investor can bear
the economic risk of its, his or her investment in the amount set forth opposite
its, his or her name on Schedule 1.1 attached hereto (i.e., at the time of the
investment such Investor can afford a complete loss of the investment and can
afford to hold the investment for an indefinite period of time), and (c) such
Investor is an "Accredited Investor" as that term is defined in Regulation D
under the Securities Act or to the extent such Investor is not an "Accredited
Investor," such Investor is fully capable of making all of the representations
and warranties in this Section 5, including (a) and (b) above, and by its, his
or her execution hereof does so affirm.
5.7 REGISTRATION OR SALES. (a) Such Investor understands that
the Securities (as defined herein) 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) such Investor
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 defined
herein) 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) such Investor 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 such Investor with any information
necessary to enable such Investor to make routine sales of the Shares, or any
shares received upon conversion of the Shares, under Rule 144.
5.8 LEGENDED CERTIFICATES. Such Investor 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
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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, as amended (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."
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. Such Investor shall hold in confidence any
confidential information about the Company that such Investor 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 the Investor without breach of this Agreement or any
other agreement by which the disclosing party is bound.
5.10 LOCK UP. Such Investor shall not, with respect to any
public offering of the Company's securities which occurs following the Closing
Date, effect any public sale or distribution of the Securities during such
period of time, if any, not to exceed 180 days, as any underwriter shall
reasonably require in connection with such public offering.
5.11 INVESTMENT COMPANY STATUS. Such Investor is not an
"investment company" within the meaning of the Investment Company Act of 1940.
Section 6. COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Investors as follows:
6.1 USE OF PROCEEDS. The cash proceeds of the sale of the
Shares to the Investors will be used to fund the research and development of new
products and for general corporate purposes.
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6.2 BOOKS AND ACCOUNTS. The Company will (a) make and keep
books, records and accounts, which, in reasonable detail, accurately and fairly
reflect its transactions and dispositions of its assets; and (b) devise and
maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific authorization, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles (as defined herein) and in accordance
with the Company's past practices or any other criteria applicable to such
statements, and to maintain accountability for assets, (iii) access to assets is
permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
6.3 PERIODIC REPORTS; BUDGETS.
(a) The Company will furnish as soon as practicable, and in
any event within 90 days after the end of each fiscal year of the Company, to
each Investor continuing to own any Securities, an annual report of the Company,
including a balance sheet as of the end of such fiscal year and statements of
operations, shareholders' equity and cash flows for such fiscal year, together
with the related notes thereto, setting forth in each case in comparative form
corresponding figures for the preceding fiscal year, all of which will present
fairly the financial position of the Company and the results of its operations
and changes in its financial position as of the time and for the period then
ended. The financial statements shall be accompanied by a report of independent
public accountants to the effect that such financial statements have been
prepared in accordance with generally accepted accounting principles applied on
a basis consistent with prior years (except as otherwise specified in such
report), and present fairly the financial position of the Company and the
results of its operations and changes in its financial position as of the time
and for the period then ended. Notwithstanding the foregoing, the obligations
of the Company under this Section 6.3(a) will cease and be of no further force
and effect upon the closing of an Initial Public Offering (as defined herein),
and an Investor's right to receive audited annual financial statements pursuant
to this Section may be suspended by the Board of Directors of the Company if the
Board, in good faith, determines that such Investor's intentions are actually or
potentially in conflict with the interests of the Company and/or its
shareholders.
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(b) The Company will furnish as soon as practicable, and in
any event within 45 days after the end of each fiscal quarter of the Company, to
each Investor owning, as of the last day of each such quarter, not less than
125,000 shares of Common Stock or Shares convertible into at least 125,000
shares of Common Stock, a report of the Company consisting of an unaudited
balance sheet as of the end of such quarter, and unaudited statements of
operations, shareholders' equity and cash flows for such quarter, and for the
fiscal year-to-date, setting forth in each case in comparative form the
corresponding figures for the preceding year. All such reports shall be
certified by the Treasurer of the Company to present fairly the financial
position of the Company and the results of its operations and changes in its
financial position as of the time and for the period then ended and to have been
prepared in accordance with generally accepted accounting principles, subject to
normal year-end adjustments. Notwithstanding the foregoing, the obligations of
the Company under this Section 6.3(b) will cease and be of no further force and
effect upon the closing of an Initial Public Offering, and an Investor's right
to receive unaudited quarterly financial statements pursuant to this Section may
be suspended by the Board of Directors of the Company if the Board, in good
faith, determines that such Investor's intentions are actually or potentially in
conflict with the interests of the Company and/or its shareholders.
6.4 MERGER; SALE OF ASSETS; DISSOLUTION. So long as shares of
Series C Convertible Preferred Stock issued hereunder are outstanding, the
Company will not become a party to any merger or consolidation, or sell, lease
or otherwise dispose of substantially all of its assets, other than sales and
leases of assets in the ordinary course of business, or dissolve or liquidate
its assets without the prior approval of 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 outstanding as of a record date
between 10 and 90 days prior to the consummation of any such transaction, voting
together as a class, except that (a) any subsequently formed Subsidiary (as
defined herein) may merge or consolidate with the Company so long as the Company
is the surviving entity of such merger or consolidation, and (b) any
subsequently formed Subsidiary may lease, sell, transfer or otherwise dispose of
all or any part of its properties and assets to the Company.
6.5 ACQUISITION. So long as shares of Series C Convertible
Preferred Stock issued hereunder are outstanding, the Company will not acquire
any interest in any business from any person, firm or entity (whether by a
purchase of assets, purchase of stock, merger or otherwise) in which the
consideration to be
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paid, as of the date as of which any such agreement with respect to such
acquisition is entered into, represents more than 25% of the total assets of
the Company without the prior approval of 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 outstanding as of a
record date between 10 and 90 days prior to the consummation of any such
transaction, voting together as a class, except as otherwise specifically
permitted pursuant to the provisions of this Agreement.
6.6 DIVIDENDS; REPURCHASES. So long as shares of Series C
Convertible Preferred Stock issued hereunder are outstanding, the Company shall
not declare or pay any dividends on, and shall not purchase, redeem, retire or
otherwise acquire, any shares of its capital stock (other than shares of Series
A Convertible Preferred Stock, Series B Convertible Preferred Stock and Series C
Convertible Preferred Stock), whether now or hereafter outstanding, without
obtaining the prior approval of 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 outstanding as of a record date between 10
and 90 days prior to the declaration date or the date of consummation of any
such transaction, as applicable, voting together as a class.
6.7 CONSENTS. Prior to Closing, the Company shall obtain all
consents and shareholder approvals needed to enable it to perform all of its
obligations under this Agreement and the transactions contemplated hereby.
6.8 ISSUANCE OF ADDITIONAL SECURITIES. Except for Common Stock
issued on conversion of the Series C Convertible Preferred Stock or on
conversion of any other securities by their terms convertible into or
exchangeable for Common Stock and except for 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, the Company will not issue or sell, or enter
into any agreement providing for the issuance or sale of, any equity or debt
securities or
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options, warrants or other rights to subscribe for, purchase or otherwise
acquire any equity or debt securities, or any securities convertible into or
exchangeable for any equity or debt securities, without obtaining the prior
approval of 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 outstanding as of a record date between 10 and
90 days prior to the consummation of any such transaction, voting together as
a class, which approval will not be unreasonably withheld.
6.9 TAXES AND LIENS. The Company will duly pay and discharge,
when payable, all taxes, assessments and governmental charges imposed upon or
against the Company or its properties, or any part thereof or upon the income or
profits therefrom, in each case before the same become delinquent and before
penalties accrue thereon, as well as all claims for labor, materials or supplies
which if unpaid might by law become a lien upon any of its property, unless and
to the extent that the same are being contested in good faith and by appropriate
proceedings and the Company has set aside on its books adequate reserves with
respect thereto.
6.10 RESTRICTIVE AGREEMENT. Subsequent to Closing, the Company
will not be a party to any agreement or instrument which by its terms would
restrict the Company's performance of its obligations pursuant to this Agreement
or the terms of the Shares including any redemption or conversion thereof.
6.11 NOTIFICATION OF REGISTRATION UNDER THE EXCHANGE ACT. The
Company will give each holder of record of the Shares prompt written notice of
the effectiveness of any registration statement filed pursuant to the
requirements of Section 12 of the Exchange Act or pursuant to any equivalent
provision of any similar federal law then in force (a "1934 Act Registration
Statement") relating to the Common Stock of the Company, and the number of
shares of such class of equity securities outstanding at the time such
registration statement becomes effective. If the Company has filed a 1934 Act
Registration Statement or a registration statement on any form other than Form
S-8 (or any successor form) pursuant to the requirements of the Securities Act,
the Company further covenants that it will file all reports required to be filed
by it under the Securities Act or the Exchange Act and the rules and regulations
adopted by the Commission thereunder or, if the Company is not required to file
such reports, it will, upon the request of a holder of Shares, make publicly
available such information as will enable such holder to sell such Shares
without a registration statement (as described below), and will
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take such further action as such holder may request, all to the extent
required from time to time to enable such holder to sell such Shares, without
registration within the limitations of the exemptions provided by (i) Rule
144 and Rule 144A adopted by the Commission under the Securities Act, as such
rules may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the Commission.
6.12 SALE OR TRANSFER OF RESTRICTED SECURITIES. An opinion of
counsel will not be necessary for a transfer by an Investor which is a
partnership to a partner of such partnership or to a retired partner of such
partnership who retires after the date hereof, or to the estate of any partner
or retired partner, or to a trust for the benefit of an Investor or an
Investor's family members or the transfer by gift, will or intestate succession
of any partner to his spouse or lineal descendants or ancestors, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if he were an original Investor hereunder.
6.13 RIGHT OF FIRST OFFER.
(a) Except in the case of Excluded Securities (as defined
herein), the Company shall not issue, sell or exchange, agree to issue, sell or
exchange, or reserve or set aside for issuance, sale or exchange, any (A) shares
of Common Stock, (B) any other equity security of the Company, (C) any debt
security of the Company which, by its terms, is convertible into or exchangeable
for any equity security of the Company, (D) any security of the Company that is
a combination of debt and equity or (E) any option, warrant or other right to
subscribe for, purchase or otherwise acquire any equity security or any such
debt security of the Company, unless in each case the Company shall have first
offered to sell to the Investors, the Series A Investors (as defined herein) and
the Series B Investors (as defined herein) such securities (the "Offered
Securities"), at a price and on such other terms as shall have been specified by
the Company in writing delivered to each of the Investors, the Series A
Investors and the Series B Investors (the "Offer"), which Offer by its terms
shall remain open and irrevocable for a period of 30 days from the date it is
delivered by the Company to the Investors, the Series A Investors and the Series
B Investors.
(b) Each of the Investors shall have the right to purchase
up to its pro rata share (as defined below) of the Offered Securities. For the
purposes of this subsection (b), each Investor's "pro rata share" shall be that
amount of the Offered Securities which would result in such Investor owning the
same percentage of the Company's issued and outstanding Common Stock after the
issuance of Offered Securities as such Investor
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owned immediately prior to the issuance (assuming in each case the issuance
of all Common Stock issuable upon conversion of the Series A Convertible
Preferred Stock, the Series B Convertible Preferred Stock, the Series C
Convertible Preferred Stock and all shares issuable upon the conversion of
the Offered Securities).
(c) Notice of an Investor's intention to accept, in whole
or in part, an Offer shall be evidenced by a writing signed by the Investor and
delivered to the Company prior to the end of the 30-day period of such Offer,
setting forth such portion of the Offered Securities as the Investor elects to
purchase (the "Notice of Acceptance").
(d) In the event that the Investors, the Series A Investors
and the Series B Investors do not elect to purchase all of the Offered
Securities which they are entitled to purchase under Section 6.13(b) hereof,
Paragraph 6(p)(ii) of the Series A Agreement (as defined herein) and Section
6.15(b) of the Series B Agreement (as defined herein), 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 Section 6(p)(iii) of the Series A Agreement and from the Series B
Investors pursuant to Section 6.15(c) of the Series B Agreement or (B) the
expiration of the 30-day period provided in Section 6.13(a) hereof 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 A Investors or the Series B 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 (as defined below) 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 (as defined herein), Series B Securities (as defined herein) 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 B Securities and 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 and by Series B Investors who have delivered Notices of
Acceptance pursuant to Section 6.15(c) of the Series B Agreement. Upon the
expiration of such 10-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 Section 6.13(c) hereof or this subsection
(d), from the Series A Investors pursuant to Paragraphs 6(p)(iii) or 6(p)(iv) of
the Series A Agreement or
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from the Series B Investors pursuant to Sections 6.15(c) or (d) of the Series
B 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 Shares, 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.
(e) In each case, any Offered Securities not purchased by
the Investors or other person or persons in accordance with Sections 6.13(b),
(c) and (d) hereof or by the Series A Investors in accordance with Paragraph
6(p) of the Series A Agreement or by the Series B Investors in accordance with
Section 6.15 of the Series B Agreement may not be sold or otherwise disposed of
until they are again offered to the Investors, the Series A Investors and the
Series B Investors under the procedures specified in Sections 6.13(a), (b), (c)
and (d) hereof, in Paragraph 6(p) of the Series A Agreement and in Section 6.15
of the Series B Agreement.
(f) The rights of the Investors, the Series A Investors and
the Series B Investors under this Section 6.13 shall not apply to the following
securities (the "Excluded Securities"):
(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,
-19-
presently in effect or hereafter adopted or entered into by the Company;
(B) Common Stock issued as a stock dividend or upon
any stock split or other subdivision or combination of shares of Common Stock;
(C) Common Stock issued upon conversion of any of the
Series C Convertible Preferred Stock;
(D) Common Stock issued upon conversion of any other
shares of convertible stock of the Company;
(E) securities issued in connection with any
acquisition by the Company;
(F) securities issued by the Company in connection
with the redemption of the Series C Convertible Preferred Stock or any other
shares of convertible stock of the Company as provided in the Articles of
Incorporation, as amended, of the Company; and
(G) securities issued by the Company in connection
with any public offering of any securities of the Company pursuant to a
registration statement filed by the Company under the Securities Act on any form
other than Form S-8.
(g) Notwithstanding the provisions of Section 9.4 hereof,
the rights under this Section 6.13 shall not be assignable except (A) to a
partner of any of the Investors or retired partner of any of the Investors who
retires after the date hereof or the estate of any such partner or retired
partner, or (B) to an Affiliate (as such term is defined in Rule 501(b) of the
Securities Act) of an Investor. An Investor shall provide the Company with
notice of any assignment under this subsection (g) within 10 days after its
occurrence.
6.14 VISITATION RIGHTS. So long as the Investors shall continue
to own collectively at least 5% of the issued and outstanding Common Stock,
assuming conversion of all outstanding convertible securities of the Company,
those Investors continuing to own Securities collectively shall have the right
to elect one representative (the "Representative") who shall have visitation
rights at meetings of the Board of Directors of the Company; provided, however,
(a) that this Section 6.15 will cease and be of no further force and effect upon
the closing of an Initial Public Offering, and (b) an Investor's right to
participate in the election of the Representative may be suspended by the Board
of Directors of the Company if the Board, in good faith, determines that such
Investor's intentions are actually or
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potentially in conflict with the interests of the Company and/or its
shareholders.
6.15 INSURANCE. The Company shall keep its insurable properties
insured at all times to such extent and against such risks, including fire,
business interruption, and other risks insured against by extended coverage, as
is customary with companies of comparable size and financial condition in the
same or similar businesses; maintain in full force and effect product liability
insurance and public liability insurance against claims for personal injury or
death or property damage occurring upon, in, about or in connection with the use
of any properties owned, occupied or controlled by the Company, in such amount
as the Company shall reasonably deem necessary; and maintain workers'
compensation insurance and such other insurance as may be required by law.
6.16 REGISTRATION RIGHTS. In the event the Company makes an
offering of its securities subsequent to the Closing, it shall not grant
registration rights that are senior in any respect to the registration rights
granted to the Investors pursuant to Section 7 hereof; provided, however, that
the Company shall have the right to grant registration rights on a PARI PASSU
basis to the registration rights granted in Section 7 hereof.
Section 7. REGISTRATION OF COMMON STOCK.
7.1 DEMAND REGISTRATION. Upon the written request of one or
more record holders of Securities, which request will state the intended method
of disposition by such holders and will request that the Company effect the
registration under the Securities Act of all or part of the Registerable Common
Stock (as defined herein) of such holders, the Company will, within 10 days
after receipt of such request, give written notice of such requested
registration to all record holders of Securities, Series A Securities, Series B
Securities and Warrant Stock (as defined herein), and thereupon (except as
expressly provided herein) will use its best efforts to effect the registration
("Demand Registration") under the Securities Act of (x) the shares of
Registerable Common Stock included in the initial request for registration (for
disposition in accordance with the intended method of disposition stated in such
request) 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) and shares of Warrant Stock, the record holders
of which have made written request to the Company for registration thereof
within 30 days after the receipt of such written notice from the Company,
provided that:
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(a) the Company shall be required to effect only two Demand
Registrations hereunder, each of which must be initially requested by the
holders of record of at least a majority of the Securities outstanding at the
time of the request; PROVIDED that the Company shall not be required to effect
more than one registration during any one-year period pursuant to this Section
7.1, Paragraph 7(a) of the Series A Agreement or Section 7.1 of the Series B
Agreement (except that, upon request of any record holder of Securities
(regardless of the number of Securities held by such holder), the Company, if it
is then qualified to do so, shall be required to effect an unlimited number of
registrations on Form S-3, or a similar short form registration statement, which
registrations (hereinafter referred to as "Short Form Registrations") shall not
be counted for purposes of this Section 7.1(a) as the Demand Registration which
the Company is required to effect);
(b) if the holders of Registerable Common Stock who
initiated the request for registration intend to sell their Registerable Common
Stock by means of an underwriting (whether on a "best efforts" or a "firm
commitment" basis), they shall so advise the Company as part of their request,
and the Company shall include such information in the notice to the other record
holders of Securities, Series A Securities, Series B Securities and Warrant
Stock. In that event, the other record holders of Securities, Series A
Securities, Series B Securities and Warrant Stock shall have the right to
include their shares of Registerable Common Stock, Series A Registerable Common
Stock, Series B Registerable Common Stock and Warrant Stock in the underwriting
(unless otherwise mutually agreed by a majority in interest of the record
holders of Securities, Series A Securities, Series B Securities and Warrant
Stock). The managing underwriter for such offering shall be selected by the
Board of Directors of the Company. Each such holder agrees, with respect to an
underwritten public offering which occurs following the Closing Date, by its
acquisition of Securities not to effect any public sale or distribution of such
Securities or Registerable Common Stock (other than as part of such underwritten
public offering) during such period, if any, not to exceed 180 days, as shall
reasonably be requested by any underwriter;
(c) the Company shall not include and shall not permit
third parties other than (i) the holders of Series A Securities, (ii) the
holders of Series B Securities, and (iii) the holders of Warrant Stock to
include additional securities in a Demand Registration without the consent of
the holders of a majority of the shares of Registerable Common Stock, Series A
Registerable Common Stock and Series B Registerable Common Stock included in
such Demand Registration, voting together as a class;
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(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 and Warrant 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 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 A Registerable Common Stock, Series B
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 B 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 B 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 B
Registerable Common Stock and Warrant Stock then owned by 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 record holders of Securities will be entitled to an additional Demand
Registration under this Section;
(e) if the Company shall furnish to the holders requesting
a registration pursuant to this Section 7 a certificate signed by the President
of the Company stating that, in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company for a
registration statement to be filed as requested, the Company shall have the
right to defer such filing for a period of not more than 120 days after receipt
of the initial request for registration under this Section 7.1; provided,
however, that the Company may not utilize this right more than once in any
one-year period;
(f) registrations under this Section 7.1 will be on a form
permitted by the rules and regulations of the Commission selected by the
underwriters if the Demand Registration is in connection with an underwritten
public offering or otherwise by the Company; and
(g) notwithstanding anything else contained herein, the
Company will not be required to effect a Demand
-23-
Registration pursuant to this Section 7.1 unless the aggregate number of
shares of Common Stock to be registered exceeds 20% of the shares of Common
Stock then held by the holders of the Securities or issuable to such holders
upon conversion of the Shares.
7.2 INCIDENTAL REGISTRATIONS.
(a) If the Company at any time proposes to register any of
its securities under the Securities Act (other than pursuant to Section 7.1
hereof), whether of its own accord or at the demand of any holder of such
securities pursuant to an agreement with respect to the registration thereof
(provided such agreement does not prohibit third parties from including
additional securities in such registration), and if the form of registration
statement proposed to be used may be used for the registration of Registerable
Common Stock, the Company will give notice to all record holders of Securities
not less than 5 days nor more than 30 days prior to the filing of such
registration statement of its intention to proceed with the proposed
registration (the "Incidental Registration"), and, upon the written request of
any such holder made within 5 days after the receipt of any such notice (which
request will specify the Registerable Common Stock intended to be disposed of by
such holder and state the intended method of disposition thereof), the Company
will use its best efforts to cause all Registerable Common Stock as to which
registration has been requested to be registered under the Securities Act,
provided that if such registration is in connection with an underwritten public
offering, such holder's Registerable Common Stock to be included in such
registration shall be offered upon the same terms and conditions as apply to any
other securities included in such registration. Notwithstanding anything
contained in this Section 7.2 to the contrary, the Company shall have no
obligation to cause Registerable Common Stock to be registered with respect to
any Investor whose Registerable Common Stock shall be eligible for resale under
Rule 144(k) of the Securities Act.
(b) If an Incidental Registration is a primary registration
on behalf of the Company and 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 securities requested to be included in such
registration (whether by the Company, the holders of registration rights
pursuant to Section 7.2(a) hereof or other holders of its securities pursuant to
any other rights granted by the Company to demand inclusion of any such
securities in such registration) exceeds the amount of such securities which can
be successfully sold in such offering, the Company will include in such
registration the amount of securities requested to be included
-24-
which in the opinion of such underwriters can be sold, in the following order
(i) first, all of the securities the Company proposes to sell, (ii) second,
all of the Registerable Common Stock, Series A Registerable Common Stock,
Series B 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 B Registerable Common Stock and Warrant Stock then owned by
such holders, and (iii) third, any other securities requested to be included
in such registration, pro rata among the holders thereof on the basis of the
amount of such securities then owned by such holders.
(c) If an Incidental Registration is a secondary
registration on behalf of holders of securities of the Company and 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
securities requested to be included in such registration (whether by such
holders, by holders of registration rights pursuant to Section 7.2(a) hereof or
by holders of its securities pursuant to any other rights granted by the Company
to demand inclusion of securities in such registration) exceeds the amount of
such securities which can be sold in such offering, the Company will include in
such registration the amount of securities requested to be included which in the
opinion of such underwriters can be sold, in the following order (i) first, all
of the securities requested to be included by holders demanding or requesting
such registration, (ii) second, all of the Registerable Common Stock, Series A
Registerable Common Stock, Series B 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 B Registerable Common Stock and
Warrant Stock then owned by such holders, and (iii) third, any other securities
requested to be included in such registration, pro rata among the holders
thereof on the basis of the amount of such securities then owned by such
holders.
7.3 REGISTRATION PROCEDURES. If and whenever the Company is
required to use its best efforts to effect or cause the registration of any
Registerable Common Stock under the Securities Act as provided in this
Section 7, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement with respect to such Registerable Common Stock and use its best
efforts (which shall not, in any case, require the Company to incur any
unreasonable expense) to cause such registration statement to become effective;
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(b) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for a period of not less than six months or such shorter period in
which the disposition of all securities in accordance with the intended methods
of disposition by the seller or sellers thereof set forth in such registration
statement shall be completed, and to comply with the provisions of the
Securities Act (to the extent applicable to the Company) with respect to such
dispositions;
(c) furnish to each seller of such Registerable Common
Stock such number of copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits), such
number of copies of the prospectus included in such registration statement
(including each preliminary prospectus), in conformity with the requirements of
the Securities Act, and such other documents, as such seller may reasonably
request, in order to facilitate the disposition of the Registerable Common Stock
owned by such seller;
(d) use its best efforts (which shall not, in any case,
require the Company to incur any unreasonable expense) to register or qualify
such Registerable Common Stock covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as any seller reasonably
requests, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registerable Common Stock owned by such seller, except
that the Company will not for any such purpose be required to qualify generally
to do business as a foreign corporation in any jurisdiction wherein it would
not, but for the requirements of this Section 7.3(d) be obligated to be
qualified, to subject itself to taxation in any such jurisdiction, or to consent
to general service of process in any such jurisdiction;
(e) provide a transfer agent and registrar for all such
Registerable Common Stock covered by such registration statement not later than
the effective date of such registration statement;
(f) notify each seller of such Registerable Common Stock at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make
-26-
the statements therein not misleading, and, at the request of any such
seller, the Company will prepare a supplement or amendment to such prospectus
so that, as thereafter delivered to the purchasers of such Registerable
Common Stock, such prospectus will not contain an untrue statement of a
material fact or omit to state any fact required to be stated therein or
necessary to make the statements therein not misleading;
(g) use its best efforts to cause all such Registerable
Common Stock to be listed on each securities exchange on which similar
securities issued by the Company are then listed;
(h) use its best efforts to obtain a cold comfort letter
from the Company's independent public accountants in customary form and covering
such matters of the type customarily covered by cold comfort letters in such
transactions;
(i) enter into such customary agreements (including an
underwriting agreement in customary form) and take all such other actions as
reasonably required in order to expedite or facilitate the disposition of such
Registerable Common Stock; and
(j) make available for inspection by any seller of
Registerable Common Stock, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney, accountant or other
agent retained by any such seller and/or representative of such seller or
underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
7.4 REGISTRATION AND SELLING EXPENSES.
(a) All expenses incurred by the Company in connection with
the Company's performance of or compliance with this Section 7, including,
without limitation (A) all registration and filing fees (including all expenses
incident to filing with the National Association of Securities Dealers, Inc.),
(B) blue sky fees and expenses, (C) all printing expenses and (D) all fees and
disbursements of counsel and accountants for the Company (including the expenses
of any audit of financial statements) retained by the Company (all such expenses
being herein called "Registration Expenses"), will be paid by the Company except
as otherwise expressly provided in this Section 7.4.
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(b) The Company will, in any event, in connection with any
registration statement, pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal, accounting or other duties in connection therewith and expenses of audits
of year-end financial statements), and the expenses and fees for listing the
securities to be registered on one or more securities exchanges on which similar
securities issued by the Company are then listed.
(c) The Company shall bear the Registration Expenses of
each Demand Registration, each Incidental Registration and each Short Form
Registration hereunder.
(d) Notwithstanding any of the foregoing, all underwriting
discounts, selling commissions and stock transfer taxes applicable to sales of
Registerable Common Stock in connection with any Demand Registration, Incidental
Registration or Short Form Registration shall be borne by all persons who are
selling Registerable Common Stock pursuant to such Registration Statement in
proportion to the dollar value of the securities being sold by each such person.
(e) All fees and expenses required to be paid by the
holders of Registerable Common Stock pursuant to Section 7.4(d) hereof in
connection with any Incidental Registration hereunder shall be borne by said
holders in proportion to the dollar value of the securities of such holder
covered by such Incidental Registration.
7.5 OTHER CONDITIONS RELATING TO REGISTRATIONS. Except as
otherwise provided in this Agreement, the Company shall not be required to
furnish any audited financial statements at the request of any holder of
Registerable Common Stock other than those statements customarily prepared at
the end of its fiscal year, unless (a) the requesting holder of Registerable
Common Stock shall agree to reimburse the Company for the out-of-pocket costs
incurred by the Company in the preparation of such other audited financial
statements or (b) such other audited financial statements shall be required by
the Commission as a condition to declaring a Demand Registration effective under
the Securities Act.
7.6 OTHER PUBLIC SALES AND REGISTRATIONS. The Company agrees
(a) that if it has previously filed a registration statement with respect to
Registerable Common Stock in connection with a Demand Registration or Incidental
Registration hereunder, and if such previous registration has not been withdrawn
or abandoned, the Company will not file or cause to become effective any other
registration of any of its securities under the
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Securities Act or otherwise effect a public sale or distribution of its
securities (except pursuant to registration on Form S-8 or any successor form
relating to a special offering to the employees or security holders of the
Company or any Subsidiary hereafter formed or acquired), whether on its own
behalf or at the request of any holder of such securities, until at least 60
days have elapsed after the effective date of such previous registration; and
(ii) to cause each holder of securities purchased from the Company any time
after the date of this Agreement (other than in a registered public offering)
to agree not to effect any such public sale or distribution during such
60-day period of any such securities or any securities issuable on the
conversion thereof or in redemption or exchange therefor. The foregoing
60-day limitation, however, shall not preclude the Company from proceeding
with a registration statement requested by a holder of securities with
"demand" registration rights who requests registration prior to the time a
record holder of Securities requests a registration pursuant to Section 7.1
hereof.
7.7 TRANSFEREES OF SECURITIES. Notwithstanding anything else
set forth in this Section 7, no person to whom Securities are transferred shall
have any rights under this Section 7 as a holder of such Securities unless (a)
such person (i) is a partner of any Investor which is a partnership or a retired
partner of such partnership who retires after the date hereof, (ii) is a family
member of or trust for the benefit of any Investor, or (iii) acquires at least
100,000 shares of Registerable Common Stock, (b) such person agrees to be bound
by the terms and conditions of this Agreement and (c) the Company is given
prompt written notice of such transfer.
7.8 INDEMNIFICATION.
(a) The Company hereby agrees to indemnify, to the extent
permitted by law, each holder of Registerable Common Stock, its officers and
directors, if any, and each person, if any, who controls such holder within the
meaning of the Securities Act, against all losses, claims, damages, liabilities
and expenses under the Securities Act, applicable state securities laws, common
law or otherwise (including, as incurred, legal and other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, except to the extent limited by Section 7.8(c) below) caused by any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (and as amended or supplemented if the
Company has furnished any amendments or supplements thereto) or any preliminary
prospectus, which registration statement, prospectus or preliminary prospectus
shall be prepared in connection with a
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Demand Registration or Incidental Registration, or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses are caused
by any untrue statement or alleged untrue statement contained in or by any
omission or alleged omission from information furnished in writing to the
Company by such holder in connection with a Demand Registration or Incidental
Registration, provided the Company will not be liable pursuant to this
Section 7.8 if such losses, claims, damages, liabilities or expenses have
been caused by any selling security holder's failure to deliver a copy of the
registration statement or prospectus, or any amendments or supplements
thereto, after the Company has furnished such holder with a sufficient amount
of copies of the same.
(b) In connection with any registration statement in
which a holder of Registerable Common Stock is participating, each such
holder shall furnish to the Company in writing such information as is
reasonably requested by the Company for use in any such registration
statement or prospectus and shall indemnify, to the extent permitted by law,
the Company, its directors and officers and each person, if any, who controls
the Company within the meaning of the Securities Act, against any losses,
claims, damages, liabilities and expenses under the Securities Act,
applicable state securities laws, common law or otherwise (including, as
incurred, legal and other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, except to the extent
limited by Section 7.8(c) below) caused by any untrue statement or alleged
untrue statement of a material fact or any omission or alleged omission of a
material fact required to be stated in the registration statement or
prospectus or any amendment thereof or supplement thereto or necessary to
make the statements therein not misleading, but only to the extent such
losses, claims, damages, liabilities or expenses are caused by an untrue
statement or alleged untrue statement contained in or by an omission or
alleged omission from information so furnished in writing by such holder in
connection with the Demand Registration or Incidental Registration. If the
offering pursuant to any such registration is made through underwriters, each
such holder agrees to enter into an underwriting agreement in customary form
with such underwriters and to indemnify such underwriters, their officers and
directors, if any, and each person who controls such underwriters within the
meaning of the Securities Act to the same extent as hereinabove provided with
respect to indemnification by such holder of the Company. Notwithstanding
the foregoing, no such holder of Registerable Common Stock shall be liable
under this Section 7.8(b) for any amounts exceeding the product of (i) the
offering price per share of Registerable Common Stock
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pursuant to the registration statement in which such holder is participating
(less any underwriting discounts or commissions which reduce the amount such
holder receives), multiplied by (ii) the number of shares of Registerable
Common Stock being sold by such holder pursuant to such registration
statement.
(c) Promptly after receipt by an indemnified party under
Section 7.8(a) or Section 7.8(b) of notice of the commencement of any action or
proceeding, such indemnified party will, if a claim in respect thereof is or is
to be made against the indemnifying party under such Section, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under such Section. In case
any such action or proceeding is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and, to the extent that it
wishes, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party under such Section for any legal or any
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof (other than reasonable costs of investigation) unless
incurred at the written request of the indemnifying party. Notwithstanding the
above, the indemnified party will have the right to employ one counsel
(exclusive of local counsel) of its own choice in any such action or proceeding
if the indemnified party has reasonably concluded that there may be defenses
available to it which are different from or additional to those of the
indemnifying party, or counsel to the indemnified party is of the opinion that
it would not be desirable for the same counsel to represent both the
indemnifying party and the indemnified party because such representation might
result in a conflict of interest (in either of which cases the indemnifying
party will not have the right to assume the defense of any such action or
proceeding on behalf of the indemnified party or parties and such legal and
other expenses will be borne by the indemnifying party). An indemnifying party
will not be liable to any indemnified party for any settlement of any such
action or proceeding effected without the consent of such indemnifying party.
(d) If the indemnification provided for in Section 7.8(a)
or Section 7.8(b) is unavailable under applicable law to an indemnified party in
respect of any losses, claims, damages or liabilities referred to therein, then
each applicable
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indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect the relative fault of the Company on the one hand
and of the holders of Registerable Common Stock on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages, or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
holders of Registerable Common Stock on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by the Company or by the holders of Registerable
Common Stock and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages and liabilities referred to above shall be deemed to include, subject
to the limitations set forth in Section 7.8(c), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating
or defending any action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation.
(e) Promptly after receipt by the Company or any holder of
Securities of notice of the commencement of any action or proceeding, such party
will, if a claim for contribution in respect thereof is to be made against
another party (the "contributing party"), notify the contributing party of the
commencement thereof; but the omission so to notify the contributing party will
not relieve it from any liability which it may have to any other party other
than for contribution hereunder. In case any such action, suit, or proceeding
is brought against any party, and such party notifies a contributing party of
the commencement thereof, the contributing party will be entitled to participate
therein with the notifying party and any other contributing party similarly
notified. No party shall be liable for contribution with regard to the
settlement of any action or proceeding effected without its consent.
7.9 CONVERSION OF PREFERRED STOCK. Any request for a Demand
Registration or Incidental Registration with respect to Registerable Common
Stock issuable upon the conversion of Shares will provide in the intended method
of disposition accompanying such request that conversion of Shares into Common
Stock in accordance with the terms thereof will be undertaken promptly after a
registration statement has become effective but in any event before the sale
thereof to underwriters has been
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consummated so that no Shares will be distributed to the public under such
registration statement.
7.10 AMENDMENT OF SECTION 7. Any provision of this Section 7 may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and holders of record of a majority of the
Securities, the Series A Securities and the Series B Securities outstanding as
of a record date between 10 and 90 days prior to the effective date of such
amendment or waiver, voting together as a class. Any amendment or waiver
effected in accordance with this Section 7.10 shall 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, such Series A Securities or such Series B Securities, and the
Company.
Section 8. CERTAIN DEFINITIONS.
For the purposes of this Agreement, the following terms have the
respective meanings set forth below:
8.1 "CENTOCOR AGREEMENT" means the Stock Purchase Agreement,
dated September 20, 1994, by and between the Company and Centocor, Inc.
8.2 "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.
8.3 "COMMISSION" means the Securities and Exchange Commission
and includes any governmental body or agency succeeding to the functions
thereof.
8.4 "COMMON STOCK" means the Company's Common Stock, $.01 par
value per share.
8.5 "CONVERSION AGREEMENT" means the Conversion Agreement, dated
as of April 23, 1996, by and among the Company and the Series B Investors.
8.6 "ERISA" means, as of any given time, the Employee Retirement
Income Security Act of 1974, as amended.
8.7 "EXCHANGE ACT" means, as of any given time, the Securities
Exchange Act of 1934, as amended, or any similar federal law then in force.
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8.8 "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means generally
accepted accounting principles, consistently applied; and any accounting
determination or calculation required to be made under this Agreement shall be
made (unless otherwise provided) in accordance with generally accepted
accounting principles, consistently applied.
8.9 "INITIAL PUBLIC OFFERING" means an underwritten initial
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.
8.10 "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.
8.11 "PRIVATE PLACEMENT MEMORANDUM" means the Company's
Confidential Private Placement Memorandum dated March, 1996.
8.12 "REGISTERABLE COMMON STOCK" means any Common Stock issued or
issuable upon conversion of the Shares.
8.13 "SECURITIES" means the Shares and any Common Stock issued
upon conversion thereof, whether at 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. For purposes of computing at any
date any percentage of Securities required in connection with any action taken
or to be taken under this Agreement, the Shares shall be deemed to equal the
number of shares of Common Stock issuable at such date upon conversion thereof.
8.14 "SECURITIES ACT" means, as of any given time, the Securities
Act of 1933, as amended, or any similar federal law then in force.
8.15 "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.
8.16 "SERIES A CONVERTIBLE PREFERRED STOCK" means the 3,900,000
shares of the Company's Series A Convertible Preferred Stock, $.01 par value per
share, issued pursuant to the Series A Agreement.
8.17 "SERIES A INVESTORS" means Investors as defined in the
Series A Agreement.
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8.18 "SERIES A REGISTERABLE COMMON STOCK" means Registerable
Common Stock as defined in the Series A Agreement.
8.19 "SERIES A SECURITIES" means Securities as defined in the
Series A Agreement.
8.20 "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, as amended.
8.21 "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 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.
8.22 "SERIES B INVESTORS" means Investors as defined in the
Series B Agreement.
8.23 "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
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, "Series B
Registerable Common Stock" specifically excludes the Centocor Shares.
8.24 "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
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, "Series B Securities" specifically excludes the Centocor
Shares and any Common Stock issued upon conversion thereof, whether at Closing
or thereafter.
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8.25 "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.
8.26 "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 $15,000,000 and the price
per share of such securities is at least $5.00.
8.27 "WARRANT PURCHASE AGREEMENT" means the Warrant Purchase
Agreement, dated as of a date on or before the Closing Date, by and between the
Company and Genesis Merchant Group Securities.
8.28 "WARRANT STOCK" means up to 360,000 shares of the Company's
Common Stock, $.01 par value per share, issuable pursuant to the Warrant
Purchase Agreement.
Section 9. MISCELLANEOUS.
9.1 SCHEDULES. The Schedules 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 date of Closing and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by the Investors or on their behalf. Notwithstanding the
foregoing, all obligations of the Company under this Agreement (except for the
obligations of the Company under Section 7 hereof), including the obligations of
the Company under Section 6 hereof, will cease and be of no further force and
effect upon the closing of a Terminating Public Offering.
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9.3 ASSIGNS; PARTIES IN INTEREST. This Agreement shall bind and
inure to the benefit of the Company, the Investors, each other person who shall
become a record holder of any certificate representing the Securities and the
respective successors and assigns of the Company, the Investors 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 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 each Investor shall, with respect to the representations,
warranties, covenants and agreements made by such Investor, indemnify, defend
and hold the Investors 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 such Investor, as the case may be.
Without limiting the generality of the foregoing, the Investors 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 an Investor, an Investor 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
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performance of any such covenant or agreement contained in this Agreement.
An Investor 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 9.5.
9.8 EXCHANGES; LOST, STOLEN OR MUTILATED CERTIFICATES. Upon
surrender by an Investor to the Company of any certificate representing shares
of Series C Convertible Preferred Stock (or Common Stock issuable upon
conversion thereof) purchased or acquired hereunder, the Company at its expense
will issue in exchange therefor, and deliver to such Investor, a new certificate
or certificates representing such shares, in such denominations as may be
requested by the Investor. 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 the Investors 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 the Investors a new certificate for such Series C Convertible
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 THE INVESTORS
Xxxxxxx X. Xxxxxxxx, Xx., Ph.D. At the addresses set
Apollon, Inc. forth below their
One Great Valley Parkway respective names on
Xxxxxxx, XX 00000 Schedule 1.1 attached
FAX: (000) 000-0000 hereto
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
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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. This Agreement constitutes the entire
agreement among the parties regarding the transactions contemplated herein and
may not be modified or amended except by written agreement of all parties
hereto.
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 PRONOUNS. If any Investor is an individual, neuter pronouns
used in reference to Investors shall be deemed to refer to individuals as well
as corporations or partnerships.
9.13 EFFECT OF STOCK SPLITS, ETC. Whenever any rights under this
Agreement are available only when at least a specified minimum number or
percentage of Shares or price per share is involved, such number shall be
appropriately adjusted to reflect any stock split, stock dividend, combination
of securities into a smaller number of securities or reclassification of stock.
9.14 AMENDMENTS. This Agreement may be amended only by an
instrument in writing, signed by the Company and by Investors holding, on the
date of such amendment, a majority of the Securities held of record on such date
by all of the Investors.
9.15 SHARES HELD BY AFFILIATES. Whenever any rights under this
Agreement are available only when at least a specified minimum number or
percentage of Shares is involved, each Investor shall be deemed to own any
Securities that are owned by any of the partners of such Investor or any retired
partners of such Investor who retire after the date hereof or the estate of any
such partner or retired partner or the spouse, lineal descendants, ancestors or
any Affiliates of such Investor or any such partner or retired partner.
9.16 COUNTERPARTS. This Agreement may be executed in one or more
counterparts each of which shall be deemed to be one and the same instrument.
9.17 DISCLOSURES ELSEWHERE. No representation or warranty
contained in this Agreement or in any exhibit, schedule,
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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.
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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/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
ARDMORE INVESTMENTS
-----------------------------
(Print Name)
/s/ Xxxxxx X. XxXxxxxx
-----------------------------
(Signature)
Partner
-----------------------------
(Title, if applicable)
SSN/Tax ID NO: -----------------------------
Address: c/o XXXXXX XxXXXXXX
---------------------------
XX XXX 000
-----------------------------
XXXXXXX, XX 00000
-----------------------------
Number of
Shares Purchased: 17,500
-----------------------
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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/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
Xxxxxx X. Xxxxxx, M.D.
----------------------------------
(Print Name)
/s/ Xxxxxx X. Xxxxxx, M.D.
----------------------------------
(Signature)
----------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
---------------------------------
Address: One Tower Lane
----------------------------------
Suite 1140
----------------------------------
Xxxxxxxx Xxxxxxx, XX 00000
----------------------------------
Number of
Shares Purchased: 12,500
-----------------------------
-41-
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/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
Xxxxxx Xxxxx
---------------------------------
(Print Name)
/s/ Xxxxxx Xxxxx
---------------------------------
(Signature)
---------------------------------
(Title, if applicable)
SSN/Tax ID NO:
----------------------------------
Address: 0000 X. Xxxxx Xxx - Xxxxx 000
----------------------------------
Xxxxx, XX 00000
----------------------------------
----------------------------------
Number of
Shares Purchased: 25,000
----------------------------
-41-
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/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
Xxxx X. Xxxxx
------------------------------------
(Print Name)
/s/ Xxxx X. Xxxxx
---------------------------------
(Signature)
---------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
---------------------------------
Address: 000 X. Xxxxxxxx Xxxxxx
---------------------------------
Suite 1900
---------------------------------
Xxxxxxx, XX 00000
---------------------------------
Number of
Shares Purchased: 62,500
-----------------------------
-41-
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/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
Xxxxxxx X. Xxxxxxx
----------------------------------
(Print Name)
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
(Signature)
Vice President
----------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
----------------------------------
Address: 000 Xxxxxxx Xxxx
----------------------------------
Xxxxx, XX 00000
----------------------------------
----------------------------------
Number of
Shares Purchased: 18000
------------------------------
-41-
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/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
CONNECTICUT CAPITAL ASSOC. L.P.
-------------------------------
(Print Name)
/s/ J. Xxxxxx Xxxxx
-------------------------------
(Signature)
PRES., GENERAL PARTNER
-------------------------------
(Title, if applicable)
SSN/Tax ID NO: 00-0000000
-------------------------------
Address: 00 Xxxxxx Xxxx
-------------------------------
Xxxxxxxx, XX 00000
-------------------------------
-------------------------------
Number of
Shares Purchased: 50,000
-------------------------
-41-
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/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
-41-
IN WITNESS WHEREOF, each of the parties hereto has fully executed
this Agreement all as of the day and year first above written.
INVESTOR:
CENTOCOR, INC., a Pennsylvania
corporation
BY:/s/ Xxxxxx X. Xxxxx
---------------------------------
NAME: Xxxxxx X. Xxxxx
TITLE: Vice President, Corporate Counsel
and Secretary
SSN/TAX ID NO.: 00-0000000
-42-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
X. XXXXX
-------------------------------------
(Print Name)
/s/ Xxxxxxx Xxxxx
-------------------------------------
(Signature)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: 000 00 0000
-------------------------------------
Address: 000 Xxxxx Xxx.
-------------------------------------
XX 00000
-------------------------------------
-------------------------------------
Number of
Shares Purchased: $25,000
--------------------------------
6,250 shares
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
Xxxxxx X. Xxxxx
-------------------------------------
(Print Name)
/s/ S Xxxxx
-------------------------------------
(Signature)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
-------------------------------------
Address: c/o S.A.C. Capital Advisors, LLC
-------------------------------------
000 Xxxxxxx Xxxxxx, 0xx Floor
-------------------------------------
Xxx Xxxx, Xxx Xxxx 00000
-------------------------------------
Number of
Shares Purchased: $62,500
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
XXXX PARTNERS, L.P.
-------------------------------------
(Print Name)
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
(Signature)
GENERAL PARTNER
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: 00-0000000
-------------------------------------
Address: c/o
-------------------------------------
DLD HOLDINGS, INC.
0000 XXXX XXXX XXXX
-------------------------------------
XXXXX 000
XXXXX XXXX, XX 00000
-------------------------------------
Number of
Shares Purchased: 50,000
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
XXXXXX X. XXXXXXXXX
-------------------------------------
(Print Name)
/s/ T S Edginson
-------------------------------------
(Signature)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
-------------------------------------
Address: 0000 Xxxxxxxx xx xx Xxxxx
-------------------------------------
Xx Xxxxx XX 00000
-------------------------------------
-------------------------------------
Number of
Shares Purchased: 20,000
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
Xxx Xxxxx
-------------------------------------
(Print Name)
/s/ Xxx Xxxxx
-------------------------------------
(Signature)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
-------------------------------------
Address: 000 Xxxx Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxx, XX 00000
-------------------------------------
-------------------------------------
Number of
Shares Purchased: 12,500
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
FWK Investors
-------------------------------------
(Print Name)
/s/ X X Xxxxxxx
-------------------------------------
(Signature)
Partner
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: 00-0000000
-------------------------------------
Address: 000 Xxxxxxxxxx Xxxxx
-------------------------------------
Suite 2700
-------------------------------------
Xxx Xxxxxxxxx, XX 00000
-------------------------------------
Number of
Shares Purchased: 12,500
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR: XXXXXX & Xxxxx XXXXXX
TTEE FBO XXXXXX FAMILY TR
DTD 1/9/90
-------------------------------------
(Print Name) /s/ Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
(Signature)
TTEE
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
-------------------------------------
Address: 000 00xx Xx
-------------------------------------
Santa Xxxxxx
-------------------------------------
Xx 00000
-------------------------------------
Number of
Shares Purchased: 37,500
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
XXXXX X. XXXXXX
-------------------------------------
(Print Name)
/s/ Xxxxx X. Xxxxxx
-------------------------------------
(Signature)
TRUSTEE
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
-------------------------------------
Address: 9951 Xxxxxxx Xxxxx Dr.
-------------------------------------
Xxxxxxx Xxxxx, XX 00000
-------------------------------------
-------------------------------------
Number of
Shares Purchased: 25,000
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
HPB ASSOCIATES, L.P.
-------------------------------------
(Print Name)
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
(Signature)
By: HPB GROUP, LLC
By: Xxxxxx X. XXXXXXXXX
XX. MANAGING MEMBER
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: 00-0000000
-------------------------------------
Address: 000 Xxxxxxx Xxx., 00xx Xxxxx
-------------------------------------
Xxx Xxxx, Xx 00000
-------------------------------------
Number of
Shares Purchased: 187,500
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
KEIBREAUX ASSOCIATES
-------------------------------------
(Print Name)
/s/ Xxxxx Keibreaux
-------------------------------------
(Signature)
(G.P.)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: 00-0000000
-------------------------------------
Address: 000 X. Xxxxxxxx Xxxx Xx.
-------------------------------------
Suite 110
-------------------------------------
Bala Cynwyd Pa 19004
-------------------------------------
Number of
Shares Purchased: 37,500
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
XXXX XXXX
-------------------------------------
(Print Name)
/s/ Xxxx Xxxx
-------------------------------------
(Signature)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
-------------------------------------
Address: 000X Xxxxx Xxxxxx
-------------------------------------
Xxx Xxxxxxxxx, XX 00000
-------------------------------------
Number of
Shares Purchased: 6,250
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
THE LINCOLN TAX ADVANTAGED, L.P.
Xxxx Xxxxxxx
-------------------------------------
(Print Name)
/s/ Xxxx Xxxxxxx
-------------------------------------
(Signature)
Xxxx Xxxxxxx, President
-------------------------------------
(Title, if applicable)
Matlins Financial Consulting Inc.
General Partner of the Lincoln Fund
Tax Advantage, L.P.
SSN/Tax ID NO: 00-0000000
-------------------------------------
Address: 0 Xxxx Xxx Xxxxx Xxxxxxx Xxxxx
-------------------------------------
Suite 710
-------------------------------------
Xxxxxxxxxxx XX 00000
-------------------------------------
Number of
Shares Purchased: $100,000.00
---------------------------------
25,000 shares
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
XXXXX X. XXXXXXXX
-------------------------------------
(Print Name)
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
(Signature)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
-------------------------------------
Address: 000 X. 00xx Xxxxxx, #00X
-------------------------------------
Xxx Xxxx, XX 00000
-------------------------------------
Number of
Shares Purchased: 5,000
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
LZ INVESTMENTS GENERAL PARTNERSHIP
-------------------------------------
(Print Name)
/s/ Xxx Xxxx
-------------------------------------
(Signature)
TRUSTEE PARTNER
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: 00-0000000
-------------------------------------
Address: 0 Xxxxx Xxxxxxxxx Xxxxx
-------------------------------------
Suite 700
-------------------------------------
Xxxxxxx, XX 00000
-------------------------------------
Number of
Shares Purchased: 50,000
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
MARITIME CAPITAL PARTNERS, L.P.
BY MARITIME CAPITAL MANAGEMENT,
ITS GENERAL PARTNER
BY: XXXXXX X. XXXXX
-------------------------------------
(Print Name)
/s/ Xxxxxx X. Xxxxx
-------------------------------------
(Signature)
PRESIDENT
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: 00-0000000
-------------------------------------
MARITIME CAPITAL PARTNERS, L.P.
Address: 15302 25th Drive S.E
-------------------------------------
Xxxx Xxxxx, XX 00000
-------------------------------------
Number of
Shares Purchased: 125,000
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
XXXXX X. XXXXXX
-------------------------------------
(Print Name)
/s/ Xxxxx X. Xxxxxx
-------------------------------------
(Signature)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
-------------------------------------
Address: 00 XxXxxxxx XX.
-------------------------------------
Xxxxxx, XX 00000
-------------------------------------
Number of
Shares Purchased: 5,000
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
ORACLE PARTNERS, L.P.
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
(Signature)
MANAGING GENERAL PARTNER
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: 00-0000000
-------------------------------------
Address: 000 XXXXX XXX
-------------------------------------
45th FLOOR
-------------------------------------
Xxx Xxxx XX 00000
-------------------------------------
Number of
Shares Purchased: $800,000
----------------------------------
200,000
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
XXXXXXX XXXXX TRUST
XXXXXXX XXXXX TRUSTEE, UTA 3/8/88
-------------------------------------
(Print Name)
/s/ Xxxxxxx Xxxxx, TRUSTEE
-------------------------------------
(Signature)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
-------------------------------------
Address: 000 Xxx Xxxxx Xxxxxx
-------------------------------------
Xxx Xxxxxxxxx, XX 00000
-------------------------------------
Number of
Shares Purchased: 50,000
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
PORRIGE PARTNERS II
-------------------------------------
(Print Name)
/s/ [illegible signature]
-------------------------------------
(Signature)
GENERAL PARTNER
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: 00-0000000
-------------------------------------
c/o DACOSON-SAULBERG CAP. MGMT
Address: 000 XXXXXX XXXXXX
-------------------------------------
XXXXXXXXX, XX 00000
-------------------------------------
Number of
Shares Purchased: 37,500
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
QUASAR INTERNATIONAL PARTNERS
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
(Signature)
XXXXX XXXXXXXX PRESIDENT OF
ORACLE MGMT INC.
-------------------------------------
(Title, if applicable)
INVESTMENT ADVISOR
SSN/Tax ID NO: NONE FOREIGN CORP
-------------------------------------
Address: c/o ORACLE PARTNERS L.P.
-------------------------------------
000 XXXXX XXXXXX, 00XX XX.
-------------------------------------
Xxx Xxxx, X.X. 00000
-------------------------------------
Number of
Shares Purchased: $200,000
---------------------------------
50,000
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
S.A.C. Capital Associates, LLC
-------------------------------------
(Print Name)
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
(Signature)
By: S.A.C. Capital Advisors, LLC,
its attorney-in-fact
-------------------------------------
(Title, if applicable)
By: Xxxxx X. Xxxxxxxx,
Executive Vice President
SSN/Tax ID NO: N/A
-------------------------------------
Address: c/o S.A.C. Capital Advisors, LLC
-------------------------------------
000 Xxxxxxx Xxxxxx, 0xx Floor
-------------------------------------
Xxx Xxxx, Xxx Xxxx 00000
-------------------------------------
Number of
Shares Purchased: 62,500
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
Xxxx Xxxxx
-------------------------------------
(Print Name)
/s/ Xxxx Xxxxx
-------------------------------------
(Signature)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
-------------------------------------
Address: c/x Xxxxxxxxx & Xxxxxx
-------------------------------------
000 Xxxxx Xxxxxx
-------------------------------------
Xxx Xxxx, XX 00000
-------------------------------------
Number of
Shares Purchased: 25,000
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
F/B/O XXXX XXXXX
XXX Rollover
Xxxxxxxxx & Xxxxxx as Custodian
-------------------------------------
(Print Name)
/s/ Xxxx Xxxxx
-------------------------------------
(Signature)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
-------------------------------------
Address: c/x Xxxxxxxxx & Xxxxxx
-------------------------------------
000 Xxxxx Xxxxxx
-------------------------------------
Xxx Xxxx, XX 00000
-------------------------------------
Number of
Shares Purchased: 25,000
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
XXXXXXX X. XXXXXXXXXX
-------------------------------------
(Print Name)
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
(Signature)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: 000-00-00-00
-------------------------------------
Address: 000 0XX XXX
-------------------------------------
XX XX 00000
-------------------------------------
Number of
Shares Purchased: 62,500
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
Xxxxx X. Toll
-------------------------------------
(Print Name)
/s/ Xxxxx X. Toll
-------------------------------------
(Signature)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: 000-00-00000
-------------------------------------
Address: 0000 Xxxxx Xx.
-------------------------------------
Xxxxx, XX 00000
-------------------------------------
Number of
Shares Purchased: 100,000
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
Xxxxxx X. Toll
-------------------------------------
(Print Name)
/s/ Xxxxxx X. Toll
-------------------------------------
(Signature)
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: ###-##-####
-------------------------------------
Address: 0000 Xxxxxxxx Xxxxxx
-------------------------------------
Xxxxxxxxxx Xxxxxx, XX 00000
-------------------------------------
Number of
Shares Purchased: 62,500
---------------------------------
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
XXX XXXXXXX
0000 X. 00xx XX.
PARTNERSHIP
-------------------------------------
(Print Name)
/s/ Xxx Xxxxxxx
-------------------------------------
(Signature)
PARTNER
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: 00-000 0000
-------------------------------------
Address: 0000 X. 00xx Xx.
-------------------------------------
XXX XXXXXXX XX
-------------------------------------
90045-5597
-------------------------------------
Number of
Shares Purchased: 12,500
---------------------------------
($50,000)
-41-
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/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
Vice President, Finance and
Administration, and Chief Financial
Officer
INVESTOR:
WESTFIELD PERFORMANCE FUND
-------------------------------------
(Print Name)
/s/ C. Xxxxxxx Xxxxxx
-------------------------------------
(Signature)
CHAIRMAN
-------------------------------------
(Title, if applicable)
SSN/Tax ID NO: 04 306 1294
-------------------------------------
Address: WESTFIELD CAPITAL MANAGEMENT CO
-------------------------------------
ONE FINANCIAL CENTER
-------------------------------------
BOSTON, MASS 02111
-------------------------------------
Number of
Shares Purchased: 125,000
---------------------------------
-41-
EXHIBITS
Exhibit 2.1 - Form of Opinion of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll
Exhibit 2.4(a) - Form of Amendments to Articles of
Incorporation
Exhibit 2.4(b) - Form of Statement Affecting Class or Series of Shares
Exhibit 2.7(a) - Form of Certificate of President
Exhibit 2.7(b) - Form of Certificate of Secretary
Exhibit 4.18(b) - Form of Confidentiality Agreement
SCHEDULES
Schedule 1.1 - Investors, Shares to be Purchased and Consideration
Schedule 4.2(a) - Authorized Capital Stock
Schedule 4.2(b) - Shareholders of the Company
Schedule 4.2(c) - Warrants, Options or Agreements
Schedule 4.8(a) - Consents
Schedule 4.8(b) - Offers of Securities
Schedule 4.14 - Related Transactions
Schedule 4.15 - Registration Rights
Schedule 4.16 - Benefit Plans
Schedule 4.18(a) - Additional Intellectual Property Required
Schedule 4.18(c) - Confidentiality Agreements Restricting Employees
Schedule 4.19 - Material Contracts