AMENDMENT NO. 1 TO SERIES B PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
Exhibit
10.2
AMENDMENT
NO. 1 TO
This
AMENDMENT
NO. 1 TO SERIES B PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
(this
“Amendment”)
is
dated June 1, 2007 and is entered into by and among Alteon Inc., a Delaware
corporation (the “Company”),
and
the purchasers (the “Purchasers”)
identified on the signature pages to that certain Series B Preferred Stock
and
Warrant Purchase Agreement dated as of April 5, 2007 (the “Purchase
Agreement”),
by
and among the Company and the purchasers named therein.
WHEREAS,
the Company and the Purchasers are parties to the Purchase Agreement;
and
WHEREAS,
in accordance with Section 6.4 of the Purchase Agreement, the Company and the
Purchasers desire to amend the Purchase Agreement as set forth
herein.
NOW
THEREFORE, in consideration of the mutual covenants contained herein, and for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and each of the Purchasers agree as follows:
1.
Amendments.
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a)
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The
definition of Per Share Purchase Price is hereby deleted in its entirety
and replaced with the following:
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“‘Per
Share Purchase Price’
means
$0.05 per share (to be adjusted for all subsequent stock splits, stock
dividends, consolidations, recapitalizations and reorganizations, including,
but
not limited to, the Reverse Stock Split).”
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b)
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Section
4.11(a) of the Purchase Agreement is hereby deleted in its entirety
and
replaced with the following:
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“As
promptly as practicable after the execution of this Agreement, the Company
shall
prepare and file with the Commission the Proxy Statement in form and substance
reasonably satisfactory to the Company and the Purchasers in order to duly
call,
give notice of and hold the Shareholder Meeting on or prior to July 31, 2007.
The Company shall respond to any comments of the Commission and use its
commercially reasonable efforts to complete the Commission’s review of the Proxy
Statement and distribute the same to the Company’s stockholders as promptly as
practicable.”
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c)
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Section
4.11(b)(i) of the Purchase Agreement is hereby deleted in its entirety
and
replaced with the following:
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“the
approval of a reverse split of 1-for-75 of the Company’s outstanding shares of
Common Stock, or such other amount within the range of 1-for-50 to 1-for-100
as
may be determined by the Board of Directors and reasonably acceptable to the
Purchasers who surrender Convertible Promissory Notes (the “Reverse
Stock Split”)”
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d)
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Section
4.13 of the Purchase Agreement is hereby deleted in its entirety
and
replaced with the following:
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“Board
of Directors. At the Shareholder Meeting, the Company will fix the size of
its Board of Directors at seven (7) persons, which will consist of the
following: (a) upon and after the Closing, three (3) incumbent directors, (b)
one (1) vacancy that may be filled at any time after the Closing with a new
director designated by the Purchasers who surrender Convertible Promissory
Notes
(the “Bridge
Lenders”),
which
new director shall be reasonably acceptable to the Company (the “Initial Purchaser
Designee”),
and
(c) three (3) additional vacancies. For so long as the Bridge Lenders hold
at
least that number of shares of Series B Preferred Stock that is equal to 50%
of
the Shares issued to the Bridge Lenders at the Closing, such Purchasers will
have the right, but not the obligation, to designate the Initial Purchaser
Designee and two (2) additional directors to the Board of Directors
(the “Subsequent Purchaser
Designees”
and,
together with the Initial Purchaser Designee, the “Purchaser
Designees”),
to
fill the two (2) additional vacancies that will exist following the Closing.
Upon the Bridge Lenders’ request at the Closing or from time to time thereafter,
the Company shall cause the Purchaser Designees or any successor designee
identified in writing by the Bridge Lenders to become members of the Board
of
Directors. The Company further covenants and agrees that it will take all
reasonably necessary actions to ensure that the Purchaser Designees will be
included on the Company’s slate of nominees for the Board of Directors submitted
for a shareholder vote at any applicable annual meeting of stockholders after
the Closing, including preparation of proxy materials and solicitation of the
Company’s stockholders to give effect to this Section 4.13.”
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e)
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Section
5.1 of the Purchase Agreement is hereby deleted in its entirety and
replaced with the following:
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“Termination.
If the conditions to the Purchasers’ obligations at Closing have not been
satisfied or waived on before the date that is fifteen (15) days after the
applicable deadline for the Shareholder Meeting (i.e.,
May 31,
2007, unless the proxy statement relating to the Shareholder Meeting is reviewed
by the Commission, in which case such date shall be extended to July 31, 2007),
then this Agreement may be terminated at any time thereafter upon written notice
to the Company by Purchasers representing at least a majority in interest of
the
Shares to be purchased hereunder. The provisions of Article VI shall survive
the
termination of this Agreement.”
2
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f)
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Fees
and Expenses.
The Company’s obligation to reimburse the holders of Convertible
Promissory Notes (as such term is defined in the Purchase Agreement)
for
fees and expenses in Section 6.1 of the Purchase Agreement is hereby
amended from a maximum of “One Hundred Thousand Dollars ($100,000)” to
“One Hundred Seventy-Five Thousand Dollars
($175,000).”
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2.
Ratification.
The
parties hereby ratify and confirm in all respects the Purchase Agreement, as
amended by this Amendment.
3. Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of the Transaction Documents shall be governed by and construed and enforced
in
accordance with the internal laws of the State of New York, without regard
to
the principles of conflicts of law thereof.
4. Other
Matters.
The
Company hereby acknowledges and agrees that the execution and delivery by the
Purchasers of this Amendment shall not be deemed to create a course of dealing
or otherwise obligate the Purchasers to execute similar extensions, amendments
or waivers under the same or similar circumstances in the future.
5. Execution.
This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
[remainder
left intentionally blank]
3
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to Series
B
Stock and Warrant Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated above.
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ALTEON
INC.
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Address
for Notice:
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By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
President
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▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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With
a copy to (which shall not constitute notice):
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇, P.C.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 Series B
Stock
and Warrant Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated above.
| ▇▇▇▇▇/▇▇▇▇▇ INVESTMENTS, L.P. | Address for Notice: |
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By:
▇▇▇▇▇/Tisch
Capital, L.P.,
its
general partner
By:
▇▇▇▇▇/▇▇▇▇▇
Capital (GP), LLC,
its
general partner
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇, Ph.D.
Title:
Managing Member
▇▇▇▇▇
BIOTECH FUND I, L.P.
By:
▇▇▇▇▇
Biotech Capital, L.P.,
its
general partner
By:
▇▇▇▇▇
Biotech Capital (GP), LLC,
its
general partner
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇, Ph.D.
Title:
Managing Member
▇▇▇▇▇
Brothers Life Sciences, L.P.
By:
▇▇▇▇▇
Brothers Life Sciences Capital, L.P.
its
general partner
By:
▇▇▇▇▇
Brothers Life Sciences Capital (GP), LLC
its
general partner
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇, Ph.D.
Title:
Managing Member
14159,
L.P.
By:
14159
Capital, L.P.,
its
general partner
By:
14159
Capital (GP), LLC,
its
general partner
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇, Ph.D.
Title:
Managing Member
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax:
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IN
WITNESS WHEREOF, the undersigned have caused this Amendment No.1 to Series
B
Stock and Warrant Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated above.
| Atticus Global Advisors, Ltd. | Address for Notice: |
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By:
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Director
Green
Way Managed Account Series, Ltd.,
in
respect to its segregated account, Green Way Portfolio D
By:
Name:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇
Title:
President and Director
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c/o Atticus Capital LP
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
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