Exhibit 10.2
AMENDMENT NO.
1
TO
NOTE REPURCHASE
AGREEMENT
This Amendment No. 1
to certain provisions of that Note Repurchase Agreement
dated as of July 1, 2008 by and between Alexandra Global
Master Fund Ltd., a British Virgin Islands International Business
Company (“ Holder ”), on the one hand, and
VaxGen, Inc., a Delaware corporation (“ Company
”), on the other hand, is effective as of this 7th day of
July, 2008 (the “ Amendment ”).
Amendment of Note
Repurchase Agreement
Whereas , the undersigned
are parties to that certain Note Repurchase Agreement, dated
July 1, 2008 (the “ Agreement ”);
Whereas , the Holder and
the Company wish to amend certain provisions of, and Schedule A to,
the Agreement; and
Whereas , pursuant to
Section 5.6 of the Agreement, any term of the Agreement may be
amended, and the observance of any term of the Agreement waived
(either generally or in a particular instance and either
retroactively or prospectively), by written consent of Holder and
the Company.
Now, Therefore , the
undersigned agree as follows:
AGREEMENT
1. Amendment .
1.1 Section 1.
Section 1 of the Agreement is hereby amended and restated to
read in its entirety as follows:
“
1. Sale of Notes . Subject to the terms
and conditions of this Agreement, the Company agrees to purchase
from the Holder, and the Holder agree to sell to the Company, the
Notes identified on Schedule A hereto, in the
aggregate principal amount and for an aggregate purchase price set
forth on Schedule A hereto. The purchase and
sale of the Notes shall take place at one or more closings, at the
time and place and on the dates indicated on
Schedule A hereto (which time and place are
designated as the “ Closing ” and the dates
thereof each, a “ Settlement Date ”). At the
Closing, the Holder shall deliver to the Company the Notes, duly
endorsed or accompanied by an assignment duly endorsed and in a
form acceptable to the Trustee, against payment of the aggregate
purchase price described on Schedule A hereto
(the “ Purchase Price ”), by wire transfer in
the amounts and using the wire transfer instructions to be provided
separately to the Company by Holder. Upon receipt by the Holder of
the Purchase Price, the Company shall become the legal and
beneficial owner of the Notes and of all rights and interest
therein or related thereto and to the monies due and to become due
under the terms of the Notes. The Holder hereby agrees that upon
receipt of the Purchase Price, the Notes shall be cancelled and the
Company shall have no further obligation to the Holder
thereunder.”
1.2
Schedule A. Schedule A to the Agreement is hereby
amended and restated to read in its entirety as set forth on
Exhibit A hereto.
2. Full Force and Effect. All other provisions of the
Agreement shall remain in full force and effect.
3. Construction. This Amendment shall be construed in
accordance with the laws of the State of New York, without regard
to its choice of law provisions.
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