exv10w19






Exhibit 10.19




AMENDMENT NO. 1 TO

STOCK PURCHASE AGREEMENT

AND

ESCROW AGREEMENT




     This Amendment No. 1 (the “Amendment”) to (i) the Stock Purchase Agreement, dated as
of September 25, 2009 (the “Purchase Agreement”), by and among Anthera Pharmaceuticals,
Inc., a Delaware corporation (the “Company”) and the investors listed on Exhibit A
thereto (the “Investors”), and (ii) the Escrow Agreement, dated as of September 25, 2009
(the “Escrow Agreement”), by and among the Company, the Investors and Fremont Bank (the
“Escrow Agent”), is made as of November 3, 2009 by and among the Company, the Investors,
the Escrow Agent and Shionogi & Co., Ltd. (“Shionogi”). Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in the Purchase Agreement.



RECITALS




     WHEREAS, the Company desires to sell, and Shionogi desires to purchase, additional shares of
the Company’s Common Stock, par value $0.001 per share, equal to $500,000 (the “Additional
Investment”) divided by the Purchase Price (the “Additional Shares”) pursuant to the
terms of the Purchase Agreement, as amended by this Amendment;



     WHEREAS, the Company and the Investors desire to amend the Purchase Agreement to allow for the
sale of the Additional Shares to Shionogi under the terms of the Purchase Agreement, as amended by
this Amendment;



     WHEREAS, the Company, the Investors and the Escrow Agent desire to amend the Escrow Agreement
to allow for the inclusion of the Additional Investment as Escrowed Funds (as defined therein)
under the terms of the Escrow Agreement, as amended by this Amendment;



     WHEREAS, Section 7.9 of the Purchase Agreement provides that the Purchase Agreement may be
amended with the written consent of the Company and the Investors; and



     WHEREAS, Section 2.1 of the Escrow Agreement provides that the Escrow Agreement may be amended
with the written consent of the Company, the Investors and the Escrow Agent.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which the
parties hereby acknowledge, the parties hereto agree as follows:



AGREEMENT




     1. Section 1.1 of the Purchase Agreement is hereby amended and restated in its entirety as
follows:



          “1.1 Authorization and Escrow. The Company will, prior to the Closing
(as defined below), authorize the sale and issuance to the Investors of a
number of shares of the Company’s Common Stock (the


 









 







“Shares”), par value $0.001 per share, equal to $20,500,000 divided by
the Purchase Price (as defined below). On or prior to September 28, 2009,
each Investor shall deposit with Fremont Bank (the “Escrow Agent”), pursuant
to the Escrow Agreement attached as Exhibit B (the “Escrow
Agreement”), the amount set forth opposite such Investor’s name on the
Schedule of Investors, to be held in escrow (and not as the Company’s
property) for release at the Closing (or if earlier, for payment to the
Investors, as provided in the Escrow Agreement); provided,
however, that Shionogi & Co., Ltd. (“Shionogi”) shall
deposit such amount with the Escrow Agent no later than two (2) business
days following the execution of Amendment No. 1 to this Agreement by each of
the parties thereto.”




     2. Exhibit A to the Purchase Agreement is hereby amended and restated in its entirety to read
as set forth on Exhibit A-1 hereto.



     3. The first recital of the Escrow Agreement is hereby amended and restated in its entirety as
follows:



          “WHEREAS, the Purchasers will be purchasing from the Company, severally
and not jointly with the other Purchasers, with the Purchasers’ funds
(hereinafter the “Subscription Amounts”), in the aggregate,
$20,500,000 of the Company’s Common Stock (the “Securities”) at the
Closing as set forth in the Stock Purchase Agreement between the Purchasers
and the Company (the “Purchase Agreement”);”




     4. Section 1.4 of the Escrow Agreement is hereby amended and restated in its entirety as
follows:



          “1.4. Deposit of Funds. Each Purchaser shall deposit with the
Escrow Agent, on or prior to September 28, 2009, such Purchaser’s
Subscription Amount as set forth on Exhibit A hereto;
provided, however, that Shionogi & Co., Ltd.
(“Shionogi”) shall deposit such amount with the Escrow Agent no
later than two (2) business days following the execution of Amendment No. 1
to this Agreement by each of the parties thereto. Wire transfers to the
Escrow Agent shall be made as follows:




Domestic Instructions

Fremont Bank

Beneficiary Name: Fremont Bank as Escrow Agent for Anthera Pharmaceuticals, Inc.

Fremont Bank Account Number

ABA# 121107882




International Wires

Swift: BOFAUS3N

Correspondent Bank: Bank of America

Correspondent Bank ABA: 026009593




2









 








     5. Exhibit A to the Escrow Agreement is hereby amended and restated in its entirety to read as
set forth on Exhibit A-2 hereto.



     6. Shionogi and the other parties to this Amendment agree and acknowledge that, upon execution
of this Amendment, Shionogi shall be considered an “Investor” under the Purchase Agreement and a
“Purchaser” under the Escrow Agreement, each as amended by this Amendment, for all purposes. The
Company represents and warrants to Shionogi that, except as set forth on the Schedule of
Exceptions, the representations and warranties set forth in Section 3 of the Purchase Agreement are
true and correct as of the date hereof. Shionogi represents and warrants to the Company that, as
to Shionogi, the representations and warranties set forth in Section 4 of the Purchase Agreement
are true and correct as of the date hereof.



     7. This Amendment shall be governed by and construed under the laws of the State of California
in all respects as such laws are applied to agreements among California residents entered into and
performed entirely within California, without giving effect to conflict of law principles thereof.



     8. This Amendment may be executed in one or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument.



     9. Except as specifically amended hereby, each of the Purchase Agreement and the Escrow
Agreement shall remain in full force and effect.



(Signature Pages Follow)




3









 





     IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 as of the date first
written above.



	 	 	 	 	 	 	 	 	 
	COMPANY:	 	 	 	SHIONOGI:
	 
	 	 	 	 	 	 	 	 
	ANTHERA PHARMACEUTICALS, INC.	 	 	 	SHIONOGI & CO., LTD.
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Paul F. Truex
	 	 	 	By:
	 	/s/ Sachio Tokaji
	 

	 	 
	 	 	 	 	 	 
	 

	 	Paul F. Truex
	 	 	 	 	 	Sachio Tokaji
	 

	 	President and Chief Executive Officer
	 	 	 	 	 	Director of the Board
	 

	 	 	 	 	 	 	 	Senior Executive Officer






SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.

AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT




 









 








     IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 as of the date first
written above.



	 	 	 	 	 
	 	 	INVESTORS:
	 
	 	 	 	 
	 	 	VANTAGEPOINT VENTURE PARTNERS IV (Q), L.P.
	 	 	VANTAGEPOINT VENTURE PARTNERS IV, L.P.
	 	 	VANTAGEPOINT VENTURE PARTNERS IV PRINCIPALS
	 	 	       FUND, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	VantagePoint Venture Associates IV,
	 

	 	 	 	L.L.C., its General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Alan E. Salzman
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:
	 	Alan E. Salzman
	 

	 	Title:
	 	Managing Member






SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.

AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT




 









 








     IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 as of the date first
written above.



	 	 	 	 	 
	 	 	INVESTORS:
	 
	 	 	 	 
	 	 	SOFINNOVA VENTURE PARTNERS VI, L.P.,
	 
	 	 	 	 
	 	 	as nominee for
	 	 	SOFINNOVA VENTURE PARTNERS VI, L.P.
	 	 	SOFINNOVA VENTURE PARTNERS VI GMBH CO. K.G.
	 	 	SOFINNOVA VENTURE AFFILIATES VI, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	Sofinnova Management VI, LLC
	 

	 	 	 	Its General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ James Healy
	 

	 	 	 	 
	 

	 	Name:
	 	James Healy
	 

	 	Title:
	 	Managing Member






SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.

AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT




 









 








     IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 as of the date first
written above.



	 	 	 	 	 
	 	 	INVESTORS:
	 
	 	 	 	 
	 	 	A. M. PAPPAS LIFE SCIENCE VENTURES III, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Ford S. Worthy
	 

	 	 	 	 
	 

	 	Name:
	 	Ford S. Worthy
	 

	 	Title:
	 	Partner & CEO
	 
	 	 	 	 
	 	 	PV III CEO FUND, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Ford S. Worthy
	 

	 	 	 	 
	 

	 	Name:
	 	Ford S. Worthy
	 

	 	Title:
	 	Partner & CEO






SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.

AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT




 









 








     IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 as of the date first
written above.



	 	 	 	 	 
	 	 	INVESTORS:
	 
	 	 	 	 
	 	 	CAXTON ADVANTAGE LIFE SCIENCES FUND, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	Caxton Advantage Venture Partners,
L.P.,

Its General Partner
	 
	 	 	 	 
	 

	 	By:
	 	Advantage Life Science Partners, LLC,

Its Managing Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ A. Rachel Leheny
	 

	 	 	 	 
	 

	 	Name:
	 	A. Rachel Leheny
	 

	 	Title:
	 	Member






SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.

AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT




 









 








     IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 as of the date first
written above.



	 	 	 	 	 
	 	 	INVESTORS:
	 
	 	 	 	 
	 	 	HBM BIOCAPITAL
	 
	 	 	 	 
	 	 	HBM BioCapital (EUR) L.P.
	 

	 	By:
	 	HBM BioCapital Ltd.
	 

	 	Its:
	 	General Partner
	 
	 	 	 	 
	 

	 	 	 	/s/ John Arnold
	 

	 	 	 	 
	 

	 	By:
	 	John Arnold
	 

	 	Its:
	 	Chairman & Managing Director
	 
	 	 	 	 
	 	 	HBM BioCapital (USD) L.P.
	 

	 	By:
	 	HBM BioCapital Ltd.
	 

	 	Its:
	 	General Partner
	 
	 	 	 	 
	 

	 	 	 	/s/ John Arnold
	 

	 	 	 	 
	 

	 	By:
	 	John Arnold
	 

	 	Its:
	 	Chairman & Managing Director






SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.

AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT




 









 








     IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 as of the date first
written above.



	 	 	 	 	 
	 	 	ESCROW AGENT:
	 
	 	 	 	 
	 	 	FREMONT BANK
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Andrew Mastorakis
	 

	 	 	 	 
	 

	 	 	 	Andrew Mastorakis
	 

	 	 	 	President






SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.

AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT




 









 








EXHIBIT A-1




SCHEDULE OF INVESTORS




	 	 	 	 	 	 
	Investor	 	Aggregate Purchase Price	 
	VantagePoint Venture Partners IV (Q), L.P.
	 	$	8,280,659.71	 	 
	1001 Bayhill Drive, Suite 300

San Bruno, CA 94066
	 	 	 	 	 
	VantagePoint Venture Partners IV, L.P.
	 	$	828,979.95	 	 
	1001 Bayhill Drive, Suite 300

San Bruno, CA 94066
	 	 	 	 	 
	VantagePoint Venture Partners IV Principals Fund, L.P.
	 	$	30,161.34	 	 
	1001 Bayhill Drive, Suite 300

San Bruno, CA 94066
	 	 	 	 	 
	Sofinnova Venture Partners VI, L.P.
	 	$	5,902,150.00	 	 
	140 Geary Street, 10th Floor

San Francisco, CA 94108
	 	 	 	 	 
	A. M. Pappas Life Science Ventures III, L.P.
	 	$	1,451,117.95	 	 
	P.O. Box 110287

Research Triangle Park, NC 27709
	 	 	 	 	 
	PV III CEO Fund, L.P.
	 	$	90,165.05	 	 
	P.O. Box 110287

Research Triangle Park, NC 27709
	 	 	 	 	 
	Caxton Advantage Life Sciences Fund, L.P.
	 	$	1,708,383.00	 	 
	500 Park Avenue

New York, NY 10022

Attention: Rachel Leheny

Email: rleheny@caxtonadvantage.com
	 	 	 	 	 
	HBM BioCapital (EUR) L.P.
	 	$	1,452,125.55	 	 
	John Arnold

HBM BioCapital Ltd.

Centennial Towers, 3rd Floor

2454 West Bay Road

Grand Cayman

Cayman Islands
	 	 	 	 	 
	HBM BioCapital (USD) L.P.
	 	$	256,257.45	 	 
	John Arnold

HBM BioCapital Ltd.

Centennial Towers, 3rd Floor

2454 West Bay Road

Grand Cayman

Cayman Islands
	 	 	 	 	 
	Shionogi & Co., Ltd.
	 	$	500,000.00	 	 
	1-8 Doshomachi 3-chome

Chuo-ku, Osaka

Japan
	 	 	 	 	 
	TOTAL
	 	$	20,500,000.00	 	 







 









 





EXHIBIT A-2




SCHEDULE OF PURCHASERS




	 	 	 	 	 	 	 	 	 
	Purchaser	 	Subscription Amount	 	Subscription %
	VantagePoint Venture Partners IV (Q), L.P.
	 	$	8,280,659.71	 	 	 	40.39	%
	1001 Bayhill Drive, Suite 300

San Bruno, CA 94066
	 	 	 	 	 	 	 	 
	VantagePoint Venture Partners IV, L.P.
	 	$	828,979.95	 	 	 	4.04	%
	1001 Bayhill Drive, Suite 300

San Bruno, CA 94066
	 	 	 	 	 	 	 	 
	VantagePoint Venture Partners IV Principals Fund, L.P.
	 	$	30,161.34	 	 	 	0.15	%
	1001 Bayhill Drive, Suite 300

San Bruno, CA 94066
	 	 	 	 	 	 	 	 
	Sofinnova Venture Partners VI, L.P.
	 	$	5,902,150.00	 	 	 	28.79	%
	140 Geary Street, 10th Floor

San Francisco, CA 94108
	 	 	 	 	 	 	 	 
	A. M. Pappas Life Science Ventures III, L.P.
	 	$	1,451,117.95	 	 	 	7.08	%
	P.O. Box 110287

Research Triangle Park, NC 27709
	 	 	 	 	 	 	 	 
	PV III CEO Fund, L.P.
	 	$	90,165.05	 	 	 	0.44	%
	P.O. Box 110287

Research Triangle Park, NC 27709
	 	 	 	 	 	 	 	 
	Caxton Advantage Life Sciences Fund, L.P.
	 	$	1,708,383.00	 	 	 	8.33	%
	500 Park Avenue

New York, NY 10022

Attention: Rachel Leheny

Email: rleheny@caxtonadvantage.com
	 	 	 	 	 	 	 	 
	HBM BioCapital (EUR) L.P.
	 	$	1,452,125.55	 	 	 	7.08	%
	John Arnold

HBM BioCapital Ltd.

Centennial Towers, 3rd Floor

2454 West Bay Road

Grand Cayman

Cayman Islands
	 	 	 	 	 	 	 	 
	HBM BioCapital (USD) L.P.
	 	$	256,257.45	 	 	 	1.25	%
	John Arnold

HBM BioCapital Ltd.

Centennial Towers, 3rd Floor

2454 West Bay Road

Grand Cayman

Cayman Islands
	 	 	 	 	 	 	 	 
	Shionogi & Co., Ltd.
	 	$	500,000.00	 	 	 	2.44	%
	1-8 Doshomachi 3-chome

Chuo-ku, Osaka

Japan
	 	 	 	 	 	 	 	 
	TOTAL
	 	$	20,500,000.00	 	 	 	100.00	%