AS
23
PROVIDED IN THE INOVIO FINANCING (THE "PREFERRED EXCHANGE").
THE INOVIO
FINANCING AND THE PREFERRED EXCHANGE ARE TOGETHER THE "COLLATERAL TRANSACTIONS,"
AND SUCH PURCHASER INTENDS TO PARTICIPATE AS A PURCHASER IN THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT NOTWITHSTANDING THE COLLATERAL TRANSACTIONS AND
NOTWITHSTANDING THAT THE COMPANY HAS NOT OFFERED, AND IS NOT PERMITTING, ALL
PURCHASERS TO ENGAGE IN THE COLLATERAL TRANSACTIONS.
EACH OF THE PURCHASERS
(OTHER THAN THOSE ENGAGING IN THE COLLATERAL TRANSACTIONS), WAIVES ANY RIGHT
SUCH PURCHASER MAY OTHERWISE HAVE TO ENGAGE IN THE COLLATERAL TRANSACTION OR TO
RECEIVE THE CONSIDERATION FROM THE COMPANY BEING PROVIDED TO THE PURCHASERS
ENGAGING IN THE COLLATERAL TRANSACTION.
(M)
NO LIENS ON SHARES.
SUCH PURCHASER FURTHER UNDERTAKES NOT TO AT
ANY TIME CREATE A LIEN UPON ITS SHARES OR ANY PORTION THEREOF (NOT INCLUDING THE
CALL UNDER THIS AGREEMENT).
IMMEDIATELY PRIOR TO AN EXCHANGE, SUCH PURCHASER
SHALL BE LEGALLY AND BENEFICIALLY ENTITLED TO THE WHOLE OF THE INTEREST IN ITS
SHARES, AND THERE SHALL BE NO LIEN WHATSOEVER ON ANY OF THE SHARES.
The Company acknowledges and agrees that each Purchaser does not make or has not
made any representations or warranties with respect to the transactions
contemplated hereby other than those set forth in this Section 3.3.
ARTICLE IV.
EXCHANGE OF SHARES
4.1
RIGHT TO EXCHANGE OF SHARES.
EACH SHARE ISSUED TO A PURCHASER
PURSUANT TO THIS AGREEMENT SHALL BE EXCHANGEABLE FOR THE EXCHANGE CONSIDERATION
AS FOLLOWS:
(A)
EXCHANGE RATIO.
EACH SHARE ISSUED TO A PURCHASER PURSUANT TO THIS
AGREEMENT SHALL BE EXCHANGEABLE FOR ONE (1) EXCHANGE SHARES, PLUS AN EXCHANGE
WARRANT EXERCISABLE TO PURCHASE 0.35 EXCHANGE WARRANT SHARES (THE "EXCHANGE
RATIO"), SUBJECT TO ADJUSTMENT FOR SHARE DIVIDENDS, SHARE SPLITS,
RECAPITALIZATIONS, REORGANIZATIONS OR SIMILAR EVENTS UNDERTAKEN BY IAPL, WITH
RESPECT TO ITS ORDINARY SHARES, AND BY THE COMPANY WITH RESPECT TO ITS COMMON
STOCK.
ALL SHARES TO BE EXCHANGED BY A PURCHASER SHALL BE AGGREGATED TOGETHER
IN DETERMINING THE NUMBER OF EXCHANGE SHARES AND EXCHANGE WARRANT SHARES SUCH
PURCHASER IS ENTITLED TO PURSUANT TO AN EXCHANGE.
(B)
LEAD PURCHASER COMPENSATION.
THE COMPANY AGREES TO HONOR ANY
ADJUSTMENTS TO THE PLANNED DISTRIBUTION OF THE EXCHANGE WARRANTS AGREED TO BY
THE PURCHASERS UPON RECEIPT OF A WRITTEN, EXECUTED AGREEMENT DOCUMENTING ANY
SUCH ARRANGEMENT FOR COMPENSATION OF THE LEAD PURCHASER; PROVIDED, HOWEVER, THE
COMPANY SHALL NOT BE REQUIRED TO (I) ISSUE ANY EXCHANGE CONSIDERATION IN EXCESS
OF THE AGGREGATE AMOUNT OTHERWISE REQUIRED PURSUANT TO THE EXCHANGE RATIO, AS
ADJUSTED PURSUANT TO SECTION 4.1(A) OF THIS AGREEMENT, AND (II) SHALL NOT BE
REQUIRED TO ISSUE ANY SECURITIES TO A PERSON WHO DOES NOT MEET THE REQUIREMENT
FOR TRANSFER OF THE SECURITIES PURSUANT TO SECTION 5.3 OF THIS AGREEMENT.
THE
LEAD PURCHASER SHALL INDEMNIFY AND HOLD HARMLESS THE COMPANY, IAPL, THEIR
AFFILIATES, EACH OF THEIR OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES AND AGENTS
AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL THIRD
PARTY ACTIONS, SUITS, PROCEEDINGS, CLAIMS, DEMANDS, JUDGMENTS, COSTS AND
EXPENSES (INCLUDING REASONABLE LEGAL FEES AND EXPENSES) OR OTHER LOSSES WHICH
ARE