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EXHIBIT 4.2
AMENDMENT NO. 1
to
PREFERRED STOCK INVESTMENT AGREEMENT
THIS AMENDMENT NO. 1 to PREFERRED STOCK INVESTMENT AGREEMENT
("Amendment") is dated as of December 14, 1998 between SciClone Pharmaceuticals,
Inc., a California corporation ("SciClone") and Halifax Fund, L.P. ("Halifax").
Capitalized terms not defined herein shall have the meanings assigned to them in
that certain Preferred Stock Investment Agreement (the "Agreement") dated as of
March 27, 1998 among SciClone, Halifax, Themis Partners L.P. ("Themis") and
Heracles Fund ("Heracles").
W I T N E S S E T H:
WHEREAS, SciClone, Halifax, Themis and Heracles entered into the
Agreement, pursuant to which SciClone issued and sold shares of its Series C
Convertible Preferred Stock ("Series C Shares") to Halifax, Themis and Heracles.
WHEREAS, prior to this Amendment, each of Themis and Heracles has
converted all of its Series C Shares to Common Stock of the Company and sold
such Common Stock pursuant to an effective registration statement; and
WHEREAS, SciClone and Halifax desire to amend the Agreement to increase
the limitation on a holder's right to convert Series C Shares.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
AGREEMENT
Section 1.1 Section 1.5 of the Agreement is hereby amended and restated
in its entirety as follows:
"Section 1.5 Limitation on Holder's Right to Convert. Notwithstanding
anything to the contrary contained herein, no Preferred Share may be converted
by a holder to the extent that, after giving effect to Common Shares to be
issued pursuant to a Conversion Notice, the total number of Common Shares deemed
beneficially owned by such holder (other than by virtue of the ownership of
Series C Preferred Stock or ownership of other securities that have limitations
on a holder's rights to convert or exercise similar to those limitations set
forth herein), together with all Common Shares deemed beneficially owned by the
holder's "affiliates" (as defined in Rule 144 of the
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Act) that would be aggregated for purposes of determining whether a group under
Section 13(d) of the Securities Exchange Act of 1934 exists, would exceed 9.9%
of the total issued and outstanding shares of the Corporation's Common Stock,
provided that each holder shall have the right to waive this restriction, in
whole or in part, upon 61 days prior notice to SciClone. The delivery of a
Conversion Notice by any holder shall be deemed a representation by such holder
that it is in compliance with this Section 1.5. A transferee of the Series C
Preferred Stock shall not be bound by this provision unless it expressly agrees
to be so bound. The term "deemed beneficially owned" as used in this Agreement
shall exclude shares that might otherwise be deemed beneficially owned by reason
of the convertibility of the Series C Preferred Stock."
Section 1.2 Except as amended hereby, the Agreement shall remain
unchanged and in full force and effect.
ARTICLE II
MISCELLANEOUS
Section 2.1 No Third Party Beneficiaries. This Amendment is intended for
the benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
Section 2.2 Governing Law. This Amendment shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without regard to such state's principles of conflict of laws.
Section 2.3 Execution. This Amendment may be executed in two or more
counterparts, all of which shall be considered one and the same agreement, it
being understood that all parties need not sign the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
SCICLONE: INVESTOR:
SCICLONE PHARMACEUTICALS, INC. HALIFAX FUND, L.P.
By: THE PALLADIN GROUP, L.P.
Attorney-in-fact
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: PALLADIN CAPITAL
---------------------------- MANAGEMENT, L.L.C.,
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ General Partner
Title: President and Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Duly Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 1 to
PREFERRED STOCK PURCHASE AGREEMENT]
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