THIRD AMENDMENT TO SERIES A STOCK PURCHASE AGREEMENT
THIS AMENDMENT to the Agreement (as hereinafter defined), is made as of the
26th day of September, 1997, by and among Apollon, Inc., a Pennsylvania
corporation (the "Company"), and the Investors signing the signature page hereto
(the "Investors").
WHEREAS, the Company and the Investors wish to amend the Stock Purchase
Agreement, dated as of June 25, 1992, and amended as of November 15, 1993 and as
of May 1, 1996, by and among the Company and the Investors listed in Exhibit
1(a) thereto (collectively, the "Agreement") as hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants of the Company and
the Investors, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Investors,
intending to be legally bound, hereby agree as follows:
1. The ninth line of Paragraph 7(a) of the Agreement is hereby
amended to read as follows:
"holders of Securities, Series B Securities, Series C Securities, Warrant
Stock and AHP Stock, and thereupon (except as expressly..."
2. The fifteenth line of Paragraph 7(a) of the Agreement is hereby
amended to read as follows:
"and (y) all other shares of Registerable Common Stock, Series B
Registerable Common Stock, Series C Registerable Common Stock, shares of
Warrant Stock and shares of AHP Stock, the holders..."
3. The seventh line of Paragraph 7(a)(i) is hereby amended to read
as follows:
"pursuant to this subparagraph 7(a), Section 7.1 of the Series B Agreement,
Section 7.1 of the Series C Agreement or Section 6.1 of the AHP Agreement
(except that, upon request..."
4. The eighth through twelfth lines of Paragraph 7(a)(ii) are hereby
amended to read as follows:
"Securities, Series B Securities, Series C Securities, Warrant Stock and
AHP Stock. In that event, the other holders of Securities, Series B
Securities, Series C Securities, Warrant Stock and AHP Stock shall have the
right
to include their shares of Registerable Common Stock, Series B
Registerable Common Stock, Series C Registerable Common Stock, Warrant
Stock and AHP Stock in the underwriting (unless otherwise mutually agreed
by a majority in interest of the holders of the Securities, the Series B
Securities, Series C Securities, Warrant Stock and AHP Stock). The
managing underwriter for such offering..."
5. The second line of Paragraph 7(a)(iii) is hereby amended to read
as follows:
"not permit third parties other than holders of Series B Securities, Series
C Securities, Warrant Stock and AHP Stock to include additional securities
in..."
6. The third line of Paragraph 7(a)(iii) is hereby amended to read
as follows:
"a majority of the shares of Registerable Common Stock, Series B
Registerable Common Stock, Series C Registerable Common Stock and AHP
Stock..."
7. Paragraph 7(a)(iv) is hereby amended to read as follows:
(iv) if a Demand Registration under this paragraph 7(a) is
in connection with an underwritten public offering, and if the managing
underwriters advise the Company in writing that in their opinion the amount
of Registerable Common Stock, Series B Registerable Common Stock, Series C
Registerable Common Stock, Warrant Stock and AHP Stock requested to be
included in such registration exceeds the amount of such Registerable
Common Stock, Series B Registerable Common Stock, Series C Registerable
Common Stock, Warrant Stock and AHP Stock which can be successfully sold in
such offering, the Company will nevertheless include in such registration,
prior to the inclusion of any securities which are not Registerable Common
Stock, Series B Registerable Common Stock, Series C Registerable Common
Stock, Warrant Stock or AHP Stock (notwithstanding any consent obtained in
accordance with subparagraph 7(a)(iii) hereof), the amount of Registerable
Common Stock, Series B Registerable Common Stock, Series C Registerable
Common Stock, Warrant Stock and AHP Stock requested to be included which in
the opinion of such underwriters can be sold, pro rata among the holders of
Registerable Common Stock, Series B Registerable Common Stock, Series C
Registerable Common Stock, Warrant Stock and AHP Stock requesting inclusion
on the basis of the number of shares of Registerable Common Stock, Series B
Registerable Common Stock, Series C Registerable Common Stock, Warrant
Stock and AHP Stock then owned by such holders; provided, however, that if
the
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holders of Registerable Common Stock are unable to include in such
offering at least fifty percent (50%) of the Registerable Common Stock
sought to be registered in a Demand Registration under this paragraph 7(a),
the holders of Securities will be entitled to an additional Demand
Registration under this paragraph;"
8. The sixteenth through nineteenth lines of Paragraph 7(b)(ii) are
hereby amended to read as follows:
"to sell, (B) second, all of the Registerable Common Stock, Series B
Registerable Common Stock, Series C Registerable Common Stock, Warrant
Stock and AHP Stock requested to be included in such registration, pro rata
among the holders thereof on the basis of the number of shares of
Registerable Common Stock, Series B Registerable Common Stock, Series C
Registerable Common Stock, Warrant Stock and AHP Stock then owned by
such..."
9. The eighteenth through twentieth lines of Paragraph 7(b)(iii) are
hereby amended to read as follows:
"Registerable Common Stock, Series B Registerable Common Stock, Series C
Registerable Common Stock, Warrant Stock and AHP Stock requested to be
included in such registration, pro rata among the holders thereof on the
basis of the number of shares of Registerable Common Stock, Series B
Registerable Common Stock, Series C Registerable Common Stock, Warrant
Stock and AHP Stock..."
10. The fourth and fifth lines of Paragraph 9(n) are hereby amended
to read as follows:
"the Securities, the Series B Securities and the Series C Securities held
of record as of a record date between 10 and 90 days prior to such date,
voting as a class."
11. The following definitions are hereby added to the Agreement as
Paragraphs 8(bb) and 8(cc):
"(bb) "AHP Agreement" means the Securities Purchase Agreement, dated
September 19, 1997, by and between the Company and A.H. Investments Ltd."
"(cc) "AHP Stock" means the shares of Common Stock issued or issuable
upon conversion of a convertible note in the aggregate principal amount of
$3 million issued and sold by the Company to A.H. Investments Ltd. and the
shares of Common Stock issued or issuable upon exercise of a warrant to
purchase 150,000 shares of Common Stock sold by the Company to A.H.
Investments Ltd. pursuant to the AHP Agreement."
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12. Pursuant to Paragraphs 7(j) and 9(n) of the Agreement, this
Amendment shall be effective upon the written consent of the holders of a
majority of Securities, Series B Securities and Series C Securities, voting as a
class, outstanding as of September 17, 1997 and upon the written consent of the
holders of a majority of the Securities then outstanding and shall thereafter be
binding upon each holder of Securities, Series B Securities and Series C
Securities at the time outstanding (including securities into which such
Securities, Series B Securities and Series C Securities are convertible), each
future holder of all such securities and the Company. Such written consent
shall be evidenced by the signature of the Investors signing this Amendment.
13. All other terms of the Agreement shall remain in full force and
effect.
14. This Amendment may be executed in counterparts, each of which
shall be deemed an original and all of which shall constitute together one and
the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has fully executed this
Amendment No. 3 all as of the day and year first above written.
APOLLON, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
__________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
President
INVESTORS
DSV PARTNERS IV
By: DSV MANAGEMENT LTD., a New
Jersey Limited Partnership
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
______________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
General Partner
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CENTOCOR, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
__________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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MAC & CO.
CHANCELLOR VENTURE CAPITAL LP
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
Address: c/o Chancellor Capital Management,
Inc.
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
HARE & CO.
MUNICIPAL EMPLOYEES ANNUITY & BENEFIT FUND
OF CHICAGO
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
Address: c/o Chancellor Capital Management,
Inc.
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
FOCUS & CO
STATE STREET BANK, AS TRUSTEE
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
Address: c/o Chancellor Capital Management,
Inc.
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BOOTH & CO.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________
Name:
Title:
Address: c/o Chancellor
Capital Management, Inc.
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