SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
__________
JULY 18, 1996
Date of Report (Date of earliest event reported)
CAMBRIDGE BIOTECH CORPORATION
(Exact name of registrant as specified in charter)
Delaware 0-12081 04-2726626
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification
incorporation) Number)
365 Plantation Street, Biotechnology Research Park
Worcester, Massachusetts 01605
(Address of principal executive offices and zip code)
(508) 797-5777
(Registrant's telephone number, including area code)
Not applicable
(Former name or former address, if changed since last report)
<PAGE>
ITEM 3 BANKRUPTCY
Summary of Plan of Reorganization Confirmed by the Bankruptcy
Court
Cambridge Biotech Corporation ("CBC") filed a petition for
relief under Chapter 11 of the Bankruptcy Code on July 7, 1994,
with the United States Bankruptcy Court for the District of
Massachusetts, Western Division (the "Bankruptcy Court"), Case No.
94-43054-JFQ. (See Current Report on Form 8-K filed July 15,
1994.) On April 10, 1996, CBC filed a Chapter 11 Reorganization
Plan, which was amended on May 10, 1996, and further amended on
May 17, 1996, May 20, 1996, and July 15, 1996 (as so amended, the
"Plan"). The Plan was confirmed by order of the Bankruptcy Court
dated July 18, 1996. (See Item 5, Other Events pertaining to a
stay of the order.) The following description summarizes certain
information concerning the Reorganization Plan. This summary does
not purport to be complete and is qualified in its entirety by
reference to the text of the full Plan which is filed under Item 7
hereof. Capitalized terms which are not defined herein shall have
the meanings specified in the Plan, except that the common stock
of Aquila is herein referred to as "Aquila Common Stock" (rather
than "New Common Stock") and the common stock of CBC is referred
to as "CBC Common Stock" (rather than "Old Common Stock").
The Plan as proposed by CBC includes the following major
elements: (1) the sale of CBC's Enterics Business; (2) the
creation of a new holding company, Aquila Biopharmaceuticals, Inc.
("Aquila"), to be owned by CBC's creditors and equity security
holders which will reorganize and continue the operation of CBC's
Biopharmaceutical Business and on the Consummation Date will own
all the shares of CBC; and (3) the sale of the stock of CBC (which
will continue to own the Retroviral Business) by Aquila. Article
IV of the Plan sets forth the basic steps in implementation of the
Plan, as follows:
(i) CBC's sale of the "Enterics Business", free and clear of
liens, encumbrances, Claims and Interests, prior to consummation
of the remainder of the Plan. On June 19, 1996, the Bankruptcy
Court approved the sale of the Enterics Business to Meridian
Diagnostics, Inc. for approximately $5,700,000 in cash, and the
sale closed on June 24, 1996. (See Current Report on Form 8-K
filed July 9, 1996.)
(ii) The issuance by Aquila on the Consummation Date under
the Plan of 5,000,000 shares of Aquila Common Stock (each carrying
a related Right as described below) to the CBC equity security
holders and certain CBC creditors in exchange for their Interests
in and Claims against CBC and the payment of other creditors in
cash.
- 2 -<PAGE>
(iii) The distribution of the assets of the
Biopharmaceutical Business to Aquila as the sole stockholder of
CBC on the Consummation Date.
(iv) Immediately after giving effect to the transactions in
clauses (ii) and (iii) above, Aquila's sale of all the issued and
outstanding stock of CBC to bioMerieux Vitek, Inc. ("bioMerieux")
pursuant to a Master Acquisition Agreement dated as of April 4,
1996, between CBC, Aquila and bioMerieux for $6,500,000 in cash.
(v) A Rights Offering pursuant to which each share of Aquila
Common Stock distributed under the Plan would be entitled to
exercise a transferable right (a "Right") entitling the holder to
purchase one Unit, each Unit consisting of one share of Aquila
Common Stock and one warrant to purchase one share of Aquila
Common Stock (a "Warrant"). In addition, each holder of a Right
(or beneficial owner in the case of securities held in street
name) who has fully exercised his basic right to purchase one Unit
for each Right received (an "Eligible Rights Holder") also will
have the right to purchase any desired number of Units that have
not been subscribed for by the holders of other Rights (the
"Oversubscription Rights"), subject to proration if
oversubscribed. The Unit subscription price under the Rights will
be a dollar amount of up to $9.50 per Unit, as determined by
Aquila. However, Aquila reserves the right to reduce the
subscription price for the Units in certain circumstances.
Treatment of Claims and Interests
Under the terms of the Plan, the holders of various Claims
against and Interests in CBC are to be treated as follows:
1. Administrative and Priority Claims
Under the Plan, on the Consummation Date, or as soon
thereafter as practicable, all Allowed Administrative Claims
(currently estimated to be approximately $4,400,000) will be paid
in full in cash, except that Aquila intends to exercise its right to pay
Postpetition Incentive Stock Claims in whole or in part in Aquila
Common Stock.
There are disputes with certain creditors concerning the
applicable cure amount with respect to executory contracts or
unexpired leases to be assumed (or assumed and assigned) under the
Plan which are scheduled to be tried in the Bankruptcy Court in
the next few months. Assumption or assumption and assignment of
contracts and leases will require payment of cure amounts, as
determined by the Bankruptcy Court. The aggregate amount in
dispute is approximately $1,050,000, and a Distribution Reserve
will be established.
Certain priority claims (which CBC currently estimates
will not exceed $100,000) will be paid in full in cash on the
Consummation Date.
- 3 -<PAGE>
2. Class 2: Secured Claims
The only secured creditor under the Plan is Signet Bank/
Maryland, as the holder of mortgages on CBC's two principal
parcels of Maryland real estate securing CBC's obligations under
two separate loans. At the Petition Date, $4,042,739 was owed to
Signet under these loans. Under the Plan, Signet will receive in
full satisfaction of its claims, a promissory note from Aquila in
the original sum of $4,200,000, payable on certain terms and
conditions.
3. Class 3: General Unsecured Claims Less Than Or Equal to
$500
Class 3 Claims (currently estimated to be approximately
$46,000) will be paid in cash in full on the Consummation Date, or
as soon thereafter as practicable.
4. Class 4: General Unsecured Claims Exceeding $500
Class 4 Claims filed or deemed filed, including Disputed
Claims, amount to approximately $7,900,000, in the aggregate. At
or before the confirmation hearing, most of the Disputed Claims
were either settled or disallowed so that the total amount of
Allowed Class 4 Claims as of the Confirmation Date is currently
estimated to be approximately $3,500,000. Disputed Claims, as of
the Confirmation Date are currently estimated to be approximately
$2,500,000 for which a Distribution Reserve consisting of cash and
stock will be established. Disputed Claims will be resolved in the
Bankruptcy Court over the next few months.
Under the Plan, a holder of a Class 4 Claim could elect,
at the time it cast its ballot, to receive under Class 4 Option A
cash equal to 51% of the unpaid portion of its Allowed Class 4
Claim, subject to an aggregate cap of $2,000,000 or to receive
under Class 4 Option B shares of Aquila Common Stock valued at
$9.50 per share equal to the amount of the holder's Allowed Claim.
The total amount of claims in Class 4 which elected Option A was
$1,794,692, creating a cash obligation of $915,293. Each share of
Aquila Common Stock to be distributed to the holders of Allowed
Class 4 Claims under Option B will also include one Right.
However, no Rights will be distributed on account of any Disputed
Class 4 Claim that becomes an Allowed Class 4 Claim only after the
Initial Distribution Date.
5. Class 5: Securities Class Claims
In exchange for the Class 5 Securities Class Claims,
Aquila will issue 1,250,000 shares of Aquila Common Stock and one
Right for each share so issued to the Disbursing Agent on the
Consummation Date for the benefit of the beneficial holders of
Class 5 Claims.
- 4 -<PAGE>
In addition, CBC agreed to permit the Securities Class
Plaintiffs to prosecute CBC's claims against its former auditors,
Deloitte and Touche, subject to CBC's right to receive 10% of the
proceeds recovered thereon and from any independent claims against
Deloitte & Touche prosecuted by the Securities Class Plaintiffs on
their own behalf, net of litigation expenses, all as more
particularly described in the Securities Class Settlement
Agreements. In settlement of claims against the Securities Class
Settling Officers and Directors, the Securities Settlement Class
also shall be entitled to receive $1,050,000 in cash from an
insurance policy insuring the Securities Class Settling Officers
and Directors.
On the Initial Distribution Date, or as soon as
practicable thereafter, the Disbursing Agent shall distribute to
"Authorized Claimants" their respective shares of Aquila Common
Stock and Rights issued on the Consummation Date to the Disbursing
Agent on account of Securities Class Claims. The Aquila Common
Stock, Rights and other consideration payable to or distributable
to the Securities Settlement Class will be distributed in the
manner and according to the procedures set forth in the Securities
Class Settlement Agreements. Rights distributed on the Initial
Distribution Date will be exercisable only during the Rights
Exercise Period. No Rights shall be distributed to any Securities
Settlement Class member who is not an Authorized Claimant as of
the Initial Distribution Date.
6. Class 6: CBC Common Stock Interests
In exchange for all Class 6 CBC Common Stock Interests,
a number of shares of Aquila Common Stock currently estimated to
be approximately 3,314,755 shares, will be issued to the
Disbursing Agent on the Consummation Date, for the benefit of the
holders of Class 6 CBC Common Stock Interests, plus one Right for
each share of Aquila Common Stock so issued. This number
represents the total amount of 5,000,000 shares of Aquila Common
Stock issued under the Plan, less (i) the 1,250,000 shares issued
to the Class 5 Claimants, (ii) the approximately 124,425 shares
currently estimated to be required to be issued on account of
Postpetition Incentive Stock Claims, (iii) the approximately
184,880 shares currently estimated to be required to be issued on
account of Allowed Class 4 Claims, and (iv) the approximately
125,941 shares currently estimated to be issued for deposit in the
Distribution Reserve.
On the Initial Distribution Date, or as soon as
practicable thereafter, Aquila's transfer agent will distribute to
the holders of Allowed Class 6 CBC Common Stock Interests their
respective pro rata share of the shares of Aquila Common Stock and
Rights. Rights distributed on the Initial Distribution Date will
be exercisable during the Rights Exercise Period. No Rights shall
be distributed on account of any Disputed Class 6 Interest that
becomes an Allowed Interest only after the Initial Distribution
Date.
- 5 -<PAGE>
CBC Common Stock Outstanding and Aquila Common Stock Issued for
Claims and Interests
As of the Confirmation Date, there were 26,065,017 shares of
CBC Common Stock outstanding. On the Consummation Date, Aquila
will issue 5,000,000 shares of Aquila Common Stock and related
Rights and deliver them to the Disbursing Agent in exchange for
all Interests in CBC and certain Claims against CBC as described
above. Aquila Common Stock not distributed to holders of Disputed
Claims will be held by the Disbursing Agent pending resolution.
Assets and Liabilities of CBC
Filed under Item 7 as an Exhibit is an unaudited balance
sheet of CBC showing the assets and liabilities of CBC as of June
30, 1996, the closest practicable date to the confirmation date of
July 18, 1996.
ITEM 5 OTHER EVENTS
The United States Bankruptcy Appellate Panel for the
First Circuit entered an order on July 29, 1996, imposing a
temporary twenty-one day stay on the Bankruptcy Court order
confirming the Plan. The stay was requested by Institut Pasteur
and Pasteur Sanofi Diagnostics who are appealing the Bankruptcy
Court's confirmation of the Plan over their objection to the
assumption of various patent licenses owned by Institut Pasteur
and Pasteur Sanofi Diagnostics and licensed to CBC.
ITEM 7 FINANCIAL STATEMENTS AND EXHIBITS
(a) Exhibits
2. Confirmed Reorganization Plan (consisting of
Reorganization Plan dated May 20, 1996, and
Modification dated July 15, 1996).
99. Unaudited Balance Sheet of CBC as of June 30, 1996.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on behalf by the undersigned thereunto duly authorized.
CAMBRIDGE BIOTECH CORPORATION
Dated: August 2, 1996 By:/s/ Alison Taunton-Rigby
Alison Taunton-Rigby,
President
- 6 -
UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
)
In re: ) Chapter 11
)
CAMBRIDGE BIOTECH CORPORATION, ) Case No. 94-43054-JFQ
)
Debtor )
)
AMENDED (MAY 17, 1996)
REORGANIZATION PLAN OF CAMBRIDGE BIOTECH CORPORATION
AS FURTHER AMENDED AS OF MAY 20, 1996
BROWN, RUDNICK, FREED & GESMER, P.C.
Attorneys for Cambridge Biotech Corporation
Debtor-in-Possession
One Financial Center
Boston, MA 02111
617-856-8200
JOSEPH F. RYAN
JAMES E. McGUIRE
JEFFREY L. JONAS
ANTHONY L. GRAY
DATED: Worcester, Massachusetts
May 20, 1996<PAGE>
TABLE OF CONTENTS
INTRODUCTION............................................
ARTICLE I...............................................
A. Scope Of Definitions.................................
B. Definitions..........................................
C. Rules Of Interpretation..............................
D. Computation Of Time..................................
ARTICLE II..............................................
A. Introduction.........................................
B. Unclassified Claims (not entitled to vote on the
Plan)................................................
1. Administrative Claims.............................
2. Priority Tax Claims...............................
C. Unimpaired Class Of Claims (not entitled to vote on
the Plan)............................................
1. Class 1: Other Priority Claims...................
2. Class 3: General Unsecured Claims Less Than Or
Equal To $500 (Convenience Class).................
D. Impaired Classes Of Claims (entitled to vote on the
Plan)................................................
1. Class 2: Secured Claims..........................
2. Class 4: All Other General Unsecured Claims......
3. Class 5: Securities Class Claims.................
E. Impaired Class Of Interests (entitled to vote on the
Plan)................................................
1. Class 6: Old Common Stock Interests..............
- 2 -<PAGE>
ARTICLE III.............................................
A. Unclassified Claims..................................
1. Administrative Claims.............................
2. Priority Tax Claims...............................
B. Unimpaired Class Of Claims...........................
1. Class 1: Other Priority Claims...................
2. Class 3: General Unsecured Claims Less Than Or
Equal To $500.....................................
C. Impaired Classes Of Claims...........................
1. Class 2: Secured Claims..........................
2. Class 4: General Unsecured Claims Exceeding $500
3. Class 5: Securities Class Claims.................
D. Impaired Class Of Interests..........................
1. Class 6: Old Common Stock Interests..............
ARTICLE IV..............................................
A. Sale of Enterics Business............................
B. Formation of Aquila And Distribution Of Certain
Assets...............................................
C. Sale Of Retroviral Business..........................
1. Sale of CBC Stock.................................
D. Tax Issues...........................................
E. Rights Offering......................................
1. Rights............................................
2. Rights Exercise Period; Extension.................
3. Proration; Oversubscription Procedures............
4. Reservation Of Right To Make Certain Changes......
5. Transferability...................................
F. Directors And Officers...............................
G. Revesting Of Assets..................................
H. Substantial Contribution Compensation And Expenses
Bar Date.............................................
I. Cancellation Of Old Common Stock.....................
J. Exclusivity Period...................................
- 3 -<PAGE>
K. Retained Litigation..................................
L. Effectuating Documents; Further Transactions.........
ARTICLE V...............................................
A. Classes Entitled To Vote.............................
B. Class Acceptance Requirement.........................
C. Cramdown.............................................
ARTICLE VI..............................................
A. New Common Stock.....................................
B. Rights...............................................
C. Units................................................
D. Warrants.............................................
E. Registration/Listing.................................
ARTICLE VII.............................................
A. Date Of Distributions................................
B. Interest On Claims...................................
C. Disbursing Agent.....................................
D. Record Date For Distributions To Holders Of Old
Common Stock.........................................
E. Means Of Cash Payment................................
F. No Fractional Securities Issued; No Distribution For
Holders Who Would Receive Less Than Five Shares......
G. Delivery Of Distributions............................
H. No Voting By Disbursing Agent........................
ARTICLE VIII............................................
A. Assumed Contracts And Leases.........................
B. Payments Related To Assumption Of Executory Contracts
And Unexpired Leases; Bar to Pre-Confirmation Date
Claims...............................................
- 4 -<PAGE>
C. Rejected Contracts And Leases........................
D. Bar To Rejection Damages.............................
E. Assignment Of Executory Contracts And Unexpired
Leases To Aquila.....................................
F. Unidentified Executory Contracts and Unexpired
Leases...............................................
ARTICLE IX..............................................
A. Conditions To The Confirmation Date..................
B. Conditions To The Consummation Date..................
C. Waiver Of Conditions To The Confirmation Date Or
Consummation Date....................................
ARTICLE X...............................................
A. No Distributions Pending Allowance...................
B. Distribution Reserve.................................
C. Distributions After Allowance........................
ARTICLE XI..............................................
A. Modification Of The Plan.............................
ARTICLE XII.............................................
ARTICLE XIII............................................
A. Securities Class Action Settlement...................
1. Background........................................
2. Settlement........................................
3. Terms of Settlement...............................
- 5 -<PAGE>
ARTICLE XIV.............................................
A. Setoffs..............................................
B. Withholding And Reporting Requirements...............
C. Discharge Of CBC And Aquila..........................
D. Intentionally Omitted................................
E. Committees...........................................
F. Binding Effect.......................................
G. Revocation, Withdrawal Or Nonconsummation............
1. Right To Revoke Or Withdraw.......................
2. Effect Of Withdrawal, Revocation, Or
Nonconsummation...................................
H. Post-Confirmation Reservation Of Shares For
Issuance Upon Exercise Of Rights And Warrants........
I. Other Post-Consummation Reserves Of New Common
Stock................................................
J. Notices..............................................
K. Indemnification Obligations..........................
L. Prepayment...........................................
M. Term Of Injunctions Or Stays.........................
N. Governing Law........................................
- 6 -<PAGE>
INTRODUCTION
Cambridge Biotech Corporation, debtor-in-possession in the
above-captioned Chapter 11 reorganization case ("CBC"), hereby
proposes the following reorganization plan for the resolution of
CBC's outstanding creditor Claims and equity Interests. Reference
is made to the Disclosure Statement (as that term is defined
herein) for results of operations, projections for future
operations, risk factors, a summary and analysis of the Plan, and
certain related matters.
Pursuant to section 1125(b) of the Bankruptcy Code, a vote to
accept or reject the Plan cannot be solicited from a holder of a
Claim or Interest until such time as the Disclosure Statement has
been approved by the Bankruptcy Court and distributed to holders
of Claims and holders of Interests. All holders of Claims and
holders of Interests are encouraged to read the Plan and the
Disclosure Statement in their entirety before voting to accept or
reject the Plan.
ARTICLE I
DEFINITIONS, RULES OF INTERPRETATION, AND COMPUTATION OF TIME
A. Scope Of Definitions
For purposes of this Plan, except as expressly provided or
unless the context otherwise requires, all capitalized terms not
otherwise defined shall have the meanings ascribed to them in this
Article I of the Plan. Any term used in the Plan that is not
defined herein, but is defined in the Bankruptcy Code or the
Bankruptcy Rules, shall have the meaning ascribed to that term in
the Bankruptcy Code or the Bankruptcy Rules. Whenever the context
requires, such terms shall include the plural as well as the
singular number, the masculine gender shall include the feminine,
and the feminine gender shall include the masculine.
B. Definitions
1. "Administrative Claim" means a Claim for payment of an
administrative expense of a kind specified in section 503(b) of
the Bankruptcy Code and entitled to priority pursuant to section
507(a)(1) of the Bankruptcy Code, including, but not limited to,
the actual, necessary costs and expenses, incurred after the
Petition Date, of preserving CBC's Estate and operating the
business of CBC, including wages, salaries, or commissions for
services rendered after the commencement of the Chapter 11 Case,
Professional Fees, and all fees and charges assessed against the
Estate under chapter 123 of title 28, United States Code, and all
Allowed Claims that are entitled to be treated as Administrative
Claims pursuant to a Final Order of the Bankruptcy Court under
section 546(c)(2)(A) of the Bankruptcy Code. For distribution
purposes under the Plan, Administrative Claims shall include
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Postpetition Incentive Stock Claims, Senior Executives Stock
Options, Rockville Cash Stay Bonus Claims, and Cure payments with
respect to executory contracts and unexpired leases to be assumed
under the Plan pursuant to section 365 of the Bankruptcy Code.
2. "Allowed Claim" means a Claim or any portion thereof (a)
that has been allowed by a Final Order, (b) either (x) that is
Scheduled, other than a Claim that is Scheduled at zero or as
disputed, contingent or unliquidated, or (y) for which a proof of
claim has been timely filed with the Bankruptcy Court pursuant to
the Bankruptcy Code, any Final Order of the Bankruptcy Court, or
other applicable bankruptcy law, and as to which either (i) no
objection to its allowance has been filed within the periods of
limitation fixed by the Bankruptcy Code or by any Final Order of
the Bankruptcy Court or (ii) any objection to its allowance has
been settled or withdrawn, or has been denied by a Final Order, or
(c) that is expressly allowed in the Plan.
3. "Allowed Class ... Claim" means an Allowed Claim in the
particular Class described.
4. "Allowed Class ... Interest" means an Interest in the
particular Class described (a) that has been allowed by a Final
Order, (b) for which (i) no objection to its allowance has been
filed within the periods of limitation fixed by the Bankruptcy
Code or by any Final Order of the Bankruptcy Court or (ii) any
objection to its allowance has been settled or withdrawn, or (c)
that is expressly allowed in the Plan.
5. "Aquila Biopharmaceuticals, Inc." means a corporation
organized by CBC under the laws of the State of Delaware, for the
purpose of acquiring the Biopharmaceutical Business under the
Plan.
6. "Aquila By-laws" means Aquila's by-laws, substantially
in the form attached as Exhibit B-2 hereto.
7. "Aquila Certificate of Incorporation" means Aquila's
certificate of incorporation in effect under the laws of the State
of Delaware substantially in the form attached as Exhibit B-1
hereto.
8. "Authorized Claimants" means Securities Settlement Class
members whose Class 5 Claims are allowed for distribution purposes
as provided under the Securities Class Settlement Agreements.
9. "Ballot" means each of the forms that will be
distributed with the Disclosure Statement to holders of Claims and
holders of Interests in Classes that are impaired under the Plan
and entitled to vote under Section V.A hereof in connection with
the solicitation of acceptances of the Plan.
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10. "Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and codified in Title 11 of the United States
Code, 11 U.S.C. 101-1330.
11. "Bankruptcy Court" means the United States Bankruptcy
Court for the District of Massachusetts (Western Division) or such
other court as may have jurisdiction over the Chapter 11 Case.
12. "Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure and the Official Bankruptcy Forms, as amended, the
Federal Rules of Civil Procedure, as amended, as applicable to the
Chapter 11 Case or proceedings therein, and the Local Rules of the
Bankruptcy Court, as applicable to the Chapter 11 Case or
proceedings therein as the case may be.
13. "bioMerieux" means bioMerieux Vitek, Inc., a Missouri
corporation.
14. "Biopharmaceutical Business" means all assets and
business of CBC and the Estate, except the Enterics Business and
the Retroviral Business. The Biopharmaceutical Business
principally includes all assets and business of CBC relating to
the development, manufacture, marketing and sale of vaccines and
adjuvants.
15. "Business Day" means any day, excluding Saturdays,
Sundays, and legal holidays, on which national banks are open for
business in Boston, Massachusetts.
16. "Cash" means legal tender of the United States.
17. "CBC" means Cambridge Biotech Corporation, debtor and
debtor-in-possession, prior to the Consummation Date.
18. "CBC Certificate of Incorporation" means CBC's
certificate of incorporation in effect under the laws of the State
of Delaware, substantially in the form attached as Exhibit A
hereto.
19. "Chapter 11 Case" means the Chapter 11 Case of CBC
pending in the Bankruptcy Court and bearing case number 94-43054-
JFQ.
20. "Claim" means a claim against CBC, whether or not
asserted, as defined in section 101(5) of the Bankruptcy Code.
21. "Class" means a category of holders of Claims or holders
of Interests described in Section II.
22. "Confirmation Date" means the date on which the
Confirmation Order is entered by the Bankruptcy Court.
23. "Confirmation Order" means the order, entered by the
Bankruptcy Court, confirming the Plan.
- 9 -<PAGE>
24. "Confirmation Hearing" means the hearing on confirmation
of the Plan under section 1128 of the Bankruptcy Code.
25. "Consummation Date" means the Business Day on which all
conditions to the consummation of the Plan set forth in Section
IX.B hereof have been satisfied or waived as provided in Section
IX.C hereof, as set forth on a certificate to be filed with the
Court by the Proponent, provided that the Consummation Date shall
be not more than thirty (30) days after the Confirmation Date,
unless otherwise authorized by the Bankruptcy Court.
26. "Creditors' Committee" means the Official Committee Of
Unsecured Creditors appointed in this Chapter 11 Case on or about
July 14, 1994 to represent unsecured creditors of CBC, as such
Committee may be constituted from time to time.
27. "Cure" means the distribution of Cash, or such other
property as may be agreed upon by the parties or ordered by the
Bankruptcy Court, with respect to the assumption of an executory
contract or unexpired lease, pursuant to section 365(b) of the
Bankruptcy Code, in an amount equal to all unpaid monetary
obligations, without interest and irrespective of any otherwise
applicable penalty rate, or such other amount as may be agreed
upon by the parties, under such executory contract or unexpired
lease, to the extent such obligations are enforceable under the
Bankruptcy Code and applicable bankruptcy law.
28. "Deloitte & Touche" means Deloitte & Touche, L.L.P.,
CBC's former auditors.
29. "Diagnostic Businesses" means the Enterics Business and
the Retroviral Business.
30. "Disallowed Claim" means (a) a Claim, or any portion
thereof, that has been disallowed by a Final Order, (b) a Claim
that is Scheduled at zero or as contingent, disputed, or
unliquidated and as to which no proof of claim has been filed or
deemed timely filed with the Bankruptcy Court pursuant to either
the Bankruptcy Code or any Final Order of the Bankruptcy Court or
other applicable bankruptcy law, or (c) a Claim that has not been
Scheduled and as to which no proof of claim has been filed or
deemed timely filed with the Bankruptcy Court pursuant to either
the Bankruptcy Code or any Final Order of the Bankruptcy Court or
other applicable bankruptcy law.
31. "District Court" means the United States District Court
for the District of Massachusetts presiding over the Securities
Class Action.
32. "Disbursing Agent" means the party designated by CBC to
serve as a disbursing agent under Section VII.C of the Plan. CBC
may designate Aquila as the Disbursing Agent.
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33. "Disclosure Statement" means the written disclosure
statement(s) that relate to the Plan, as approved by the
Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code
and Bankruptcy Rule 3017, as such disclosure statement(s) may be
amended, modified, or supplemented from time to time.
34. "Disputed Claim" means a Claim, or any portion thereof,
that is neither an Allowed Claim nor a Disallowed Claim.
35. "Distribution Reserve" means all Cash, New Common Stock,
Rights, and other property that would have been distributed on the
Consummation Date or the Initial Distribution Date, as the case
may be, to the holders of Disputed Claims and Disputed Interests,
if such Disputed Claims and Disputed Interests had, in fact, then
been allowed (rather than disputed), but which amount is instead
held by the Disbursing Agent, pending resolution of such Disputed
Claims and Disputed Interests.
36. "Eligible Rights Holder" means a holder of Rights who
has subscribed for all the Units to which he is entitled under his
basic Rights.
37. "Enterics Business" means all assets and business of CBC
principally relating to the diagnosis of certain gastrointestinal
and other diseases (excluding those caused by retroviruses), all
as more particularly described on Exhibit C hereto.
38. "Enterics Business Buyer" means Carter-Wallace, Inc.,
the buyer of the Enterics Business pursuant to the Enterics
Business Purchase Agreement, or an alternative buyer, as
contemplated by the Enterics Business Purchase Agreement.
39. "Enterics Business Purchase Agreement" means that
certain Asset Purchase Agreement entered into by and between CBC
and Carter-Wallace, Inc. with respect to the sale of the Enterics
Business.
40. "Equity Committee" means the Official Committee Of
Equity Security Holders appointed in this Chapter 11 Case on
November 17, 1994 to represent equity security holders of CBC, as
such Committee may be constituted from time to time.
41. "ERISA" means the Employee Retirement Income Security
Act of 1974, 29 U.S.C. 1301 et seq., as amended.
42. "Estate" means the estate of CBC in its Chapter 11 Case,
pursuant to section 541 of the Bankruptcy Code.
43. "Face Amount" means, (a) when used in reference to a
Disputed or Disallowed Claim or Interest, the full stated amount
or the full stated number of shares asserted by the holder in any
proof of Claim or Interest, as the case may be, timely filed with
the Bankruptcy Court or otherwise deemed timely filed by any Final
Order of the Bankruptcy Court or other applicable bankruptcy law,
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and (b) when used in reference to an Allowed Claim or Interest,
the allowed amount or number of shares of such Claim or Interest,
as the case may be.
44. "Final Order" means an order or judgment, the operation
or effect of which has not been stayed, reversed, or amended and
as to which order or judgment (or any revision, modification, or
amendment thereof) the time to appeal or seek review or rehearing
has expired and as to which no appeal or petition for review or
rehearing was filed or, if filed, remains pending.
45. "Fiscal Year" means, with respect to CBC, the fiscal
year ending December 31 of each year, or such other fiscal year as
CBC may designate.
46. "Initial Distribution Date" means the date, occurring on
or as soon as practicable after the Consummation Date, upon which
the first distributions of New Common Stock and Rights are made to
holders of Allowed Claims under Classes 4, 5, and 6; provided,
however, that in no event shall the Initial Distribution Date
occur later than thirty (30) Business Days after the Consummation
Date.
47. "Interest" means the right of a holder and owner of
issued and outstanding shares of Old Common Stock or any other
equity securities of CBC authorized and issued prior to the
Confirmation Date and outstanding on the Confirmation Date. Other
Equity Securities Claims shall be treated as Interests in
accordance with the provisions of section 510 of the Bankruptcy
Code and Section III.D hereof.
48. "Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended.
49. "Maryland Real Estate" means that certain real property
owned by CBC and located at 3 and 3 1/2 Taft Court and 1500 East
Gude Drive, Rockville, Maryland.
50. "New Common Stock" means the shares of common stock of
Aquila authorized under Article VI of the Plan and the Aquila
Certificate of Incorporation.
51. "New Management and Employee Common Stock Reserve" means
the reserve of New Common Stock established pursuant to Section
XIV.I of the Plan for purposes of providing incentive equity,
whether through stock options or stock purchase plans, or
otherwise, to directors, management, employees, and consultants of
Aquila.
52. "Number of Available Units" has the meaning specified in
Section IV.E.3.
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53. "Old Common Stock" means issued and outstanding shares
of CBC's common stock, and options, warrants, or rights,
contractual or otherwise, if any, to acquire any such stock,
excluding only Senior Executives Stock Options.
54. "Other Equity Securities Claim" means all Claims, if
any, other than the Securities Class Claims, arising from or in
connection with the purchase and sale of equity securities of CBC,
including, without limitation, Old Common Stock and any stock
options, warrants, and any other rights to acquire interests in
CBC, for damages, rescission, or other relief.
55. "Other Priority Claims" means all claims entitled to
priority pursuant to section 507(a) of the Bankruptcy Code other
than Priority Tax Claims or Administrative Claims.
56. "Other Secured Claims" means Secured Claims, if any,
other than the Signet Secured Claim.
57. "Oversubscription Rights" has the meaning specified in
Section IV.E.1.
58. "Person" means an individual, corporation, partnership,
joint venture, association, joint stock company, trust, estate,
unincorporated organization, or other entity.
59. "Petition Date" means July 7, 1994, the date on which
CBC filed its petition for reorganization commencing the Chapter
11 Case.
60. "Plan" means this reorganization plan proposed by CBC
for the resolution of CBC's outstanding creditor Claims and equity
Interests in this Chapter 11 Case, as such plan may be modified
from time to time in accordance with the Bankruptcy Code.
61. "Postpetition Incentive Stock Claims" means claims under
the Postpetition Incentive Stock Programs.
62. "Postpetition Incentive Stock Programs" means (a) the
stock incentive plans for CBC's Worcester employees and senior
managers as described in CBC's Motion for Authority to Implement
(1) Stock Incentive Plan for Worcester Employees, and (2)
Corporation Restructuring Plan for Senior Managers dated September
30, 1994, and (b) the stock incentive bonus or payment
arrangements for the following additional persons made by CBC
after the Petition Date for services rendered prior to the
Confirmation Date: directors, senior managers, and consultants.
63. "Priority Tax Claim" means a Claim entitled to priority
pursuant to section 507(a)(8) of the Bankruptcy Code.
64. "Professional Fees" means a Claim of a professional,
retained in the Chapter 11 Case, pursuant to sections 327 and 1103
of the Bankruptcy Code or otherwise, for compensation or
- 13 -<PAGE>
reimbursement of costs and expenses relating to services incurred
prior to and including the Confirmation Date as, when and to the
extent any such Claim is approved by a Final Order entered
pursuant to sections 330, 331, 503(b), or 1103 of the Bankruptcy
Code.
65. "Proponent" means CBC.
66. "Pro Rata" means, at any time, the proportion that the
Face Amount of a Claim or Interest in a particular Class bears to
the aggregate Face Amount of all Claims or Interests, as the case
may be (including Disputed Claims or Interests, but excluding
Disallowed Claims or Interests), in such Class, unless the Plan
provides otherwise.
67. "Record Date" means the record date for purposes of
making distributions under the Plan to holders of Old Common Stock
on account of Allowed Interests, which date shall be the
Confirmation Date.
68. "Reinstated" or "Reinstatement" means leaving unaltered
the legal, equitable and contractual rights to which a Claim
entitles the holder of such Claim so as to leave such Claim
unimpaired in accordance with section 1124 of the Bankruptcy Code,
thereby entitling the holder of such Claim to, but not more than,
(a) reinstatement of the original maturity of the obligations on
which such Claim is based, and (b) payment of an amount of Cash
consisting solely of the sum of (i) matured but unpaid principal
installments, without regard to any acceleration of maturity,
accruing prior to the Consummation Date, (ii) accrued but unpaid
interest as of the Petition Date, (iii) interest on the amount of
unpaid principal installments accruing on and after the Petition
Date and through the Consummation Date calculated at the simple
nondefault interest rate as set forth in any agreement between CBC
and the holder of such Claim, and (iv) reasonable fees, expenses
and charges, to the extent such fees, expenses and charges are
allowed under the Bankruptcy Code and are provided for in the
agreement or agreements on which such Claim is based; provided,
however, that any contractual right that does not pertain to the
payment when due of principal and interest on the obligation on
which such Claim is based, including, but not limited to,
financial covenant ratios, negative pledge covenants, covenants or
restrictions on merger or consolidation and affirmative covenants
regarding corporate existence prohibiting certain transactions or
actions contemplated by the Plan, or conditioning such
transactions or actions on certain factors, shall not necessarily
be reinstated in order to accomplish Reinstatement.
69. "Reorganization Value" means the estimated value per
share of the New Common Stock to be issued on the Consummation
Date, after giving effect to the transactions contemplated to
occur under the Plan on or prior to the Consummation Date, which
is $9.50, subject to approval by the Bankruptcy Court.
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70. "Reorganized CBC" means CBC on and after the
Consummation Date, after giving effect to the sale of the
Retroviral Business pursuant to the Retroviral Business Purchase
Agreement.
71. "Retroviral Business" means all assets and business of
CBC principally relating to the diagnosis of retroviruses,
including those associated with AIDS, all as more particularly
described on Exhibit D hereto.
72. "Retroviral Business Buyer" means bioMerieux, the buyer
of the Retroviral Business pursuant to the Retroviral Business
Purchase Agreement, or an alternative buyer, as contemplated by
the Retroviral Purchase Agreement Bidding Procedures.
73. "Retroviral Business Purchase Agreement" means that
certain Purchase Agreement dated as of April 4, 1996, by and
between CBC and bioMerieux, a summary of which is attached hereto
as Exhibit E.
74. "Retroviral Business Purchase Agreement Bidding
Procedures" means the Bidding Procedures, as defined in the
Retroviral Business Purchase Agreement, and previously amended
and/or approved by order of the Bankruptcy Court.
75. "Right" means the transferable basic right to purchase
one Unit for each share of New Common Stock issued under this Plan
in settlement of Allowed Class 4 and Class 5 Claims and Allowed
Class 6 Interests or a Postpetition Incentive Stock Claim, plus
the right under certain conditions to exercise Oversubscription
Rights as described in Section IV.E.
76. "Rights Agent" means the Rights Agent with respect to
the Rights offering pursuant to the Rights and Warrants Agreement,
which is attached hereto as Exhibit F.
77. "Rights Certificate" means a certificate evidencing
Rights.
78. "Rights Exercise Period" means the period commencing on
the Initial Distribution Date and ending twenty (20) calendar days
thereafter, unless extended for up to fifteen (15) additional
calendar days at the option of Aquila.
79. "Rockville Cash Stay Bonus Claims" means employee Claims
under the Rockville Cash Stay Bonus Program.
80. "Rockville Cash Stay Bonus Program" means the cash stay
bonus plan for CBC's Rockville employees as described in CBC's
Motion for Authority to Assume Cash Stay Bonus Contracts for
Rockville Employees dated September 29, 1994, and approved by the
Bankruptcy Court by Final Order.
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81. "Scheduled" means, with respect to any Claim or
Interest, the status and amount, if any, of such Claim or Interest
as set forth in the Schedules.
82. "Schedules" means the schedules of assets and
liabilities and the statements of financial affairs filed in the
Bankruptcy Court by CBC on or about August 8, 1994, as such
schedules or statements have been or may be further amended or
supplemented from time to time in accordance with Bankruptcy Rule
1009.
83. "Secured Claim" means a Claim secured by a security
interest in or lien upon property of the Estate to the extent of
the value, as of the Consummation Date, or such later date as is
established by the Bankruptcy Court, of such interest or lien as
determined by a Final Order of the Bankruptcy Court pursuant to
section 506 of the Bankruptcy Code or as otherwise agreed upon in
writing by CBC and the holder of such Claim, subject to the effect
of an election under section 1111(b)(2) of the Bankruptcy Code.
84. "Securities Class Action" means the First Consolidated
and Amended Class Action Complaint filed May 15, 1995 and pending
in the United States District Court for the District of
Massachusetts, Civil Action No. 93-12486-REK, titled In re
Cambridge Biotech Corp. Securities Litigation.
85. "Securities Class Claims" means all Claims that have
been or could have been asserted against CBC by Persons eligible
for inclusion in the Securities Settlement Class, including,
without limitation, any and all claims reflected in the Securities
Class Proof of Claim, whether or not such Persons elect to be
excluded from the settlement embodied in the Securities Class
Settlement Agreements in accordance with the "opt-out" procedures
established by the District Court.
86. "Securities Class Plaintiffs" means the plaintiffs in
the Securities Class Action and all other members of the
Securities Settlement Class.
87. "Securities Class Proof of Claim" means the Class Proof
of Claim filed on December 15, 1994, in the Bankruptcy Court on
behalf of the Securities Settlement Class.
88. "Securities Class Settlement Agreements" means
collectively (a) the Agreement Of Partial Settlement dated as of
June 19, 1995 among the Securities Class Plaintiffs, certain of
the Securities Class Settling Officers and Directors, and National
Union; (b) the Agreement and Release dated as of October 5, 1995
among CBC, the Securities Class Settling Officers and Directors,
and National Union; and (c) the Stipulation And Agreement Of
Partial Settlement dated as of October 6, 1995 between the
Securities Class Plaintiffs and CBC.
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89. "Securities Class Settling Officers and Directors" means
the individual defendants named in the Securities Class Action,
together with certain other present and former officers and
directors of CBC who are parties to the Securities Class
Settlement Agreements.
90. "Securities Settlement Class" means all persons or
entities who purchased CBC's stock from and including February 28,
1992 through May 9, 1994, and were allegedly damaged thereby, but
excluding CBC, the Securities Class Settling Officers and
Directors and the members of their immediate families, Deloitte &
Touche, and parents, subsidiaries and affiliates, successors and
assigns of CBC or of Deloitte & Touche, and their respective
officers and directors.
91. "Senior Executives Stock Options" means stock options
issued to John Scott, Jeffrey T. Beaver, and Alison Taunton-Rigby
after the Petition Date that are to be converted as of the
Consummation Date into options to acquire shares of New Common
Stock, and are to be covered by the New Management and Employee
Common Stock Reserve.
92. "Signet" means Signet Bank/Maryland.
93. "Signet Collateral" means the Maryland Real Estate in
which CBC granted Signet mortgages to secure CBC's obligations
under the Signet Loan Documents, to the extent that such Maryland
Real Estate is and remains encumbered by a valid, enforceable, and
perfected mortgage lien of Signet, if any, in CBC's Estate's
interest in such property, that is not avoidable under the
Bankruptcy Code or applicable non-bankruptcy law.
94. "Signet Loan Documents" means that certain: (i)
Promissory Note dated December 21, 1979 in the original principal
amount of $703,000, (ii) Deed of Trust Note dated August 28, 1989
in the original principal amount of $4,680,000, and (iii) any and
all documents evidencing or securing the indebtedness covered
thereby, including all amendments thereto.
95. "Signet Secured Claim" means the Secured Claim of
Signet.
96. "Unit" means a unit consisting of one share of New
Common Stock and one Warrant entitling the holder to purchase one
share of New Common Stock.
97. "Unsecured Claim" means a Claim that is not an
Administrative Claim, Priority Tax Claim, Other Priority Claim,
Secured Claim, Securities Class Claim, or Other Equity Securities
Claim.
98. "Warrant" means a warrant entitling the holder thereof
to purchase one share of New Common Stock as described in Section
IV.E.
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C. Rules Of Interpretation
For purposes of the Plan (a) any reference in the Plan to a
contract, instrument, release, indenture, or other agreement or
documents being in a particular form or on particular terms and
conditions means that such document shall be substantially in such
form or substantially on such terms and conditions, (b) any
reference in the Plan to an existing document or exhibit filed or
to be filed means such document or exhibit as it may have been or
may be amended, modified, or supplemented, (c) unless otherwise
specified, all references in the Plan to Sections, Articles,
Schedules, and Exhibits are references to Sections, Articles,
Schedules, and Exhibits of or to the Plan, (d) the words "herein"
and "hereto" refer to the Plan in its entirety rather than to a
particular portion of the Plan, (e) captions and headings to
Articles and Sections are inserted for convenience of reference
only and are not intended to be a part of or to affect the
interpretation of the Plan, and the rules of construction set
forth in section 102 of the Bankruptcy Code and in the Bankruptcy
Rules shall apply.
D. Computation Of Time
In computing any period of time prescribed or allowed by the
Plan, unless otherwise expressly provided, the provisions of
Bankruptcy Rule 9006(a) shall apply.
ARTICLE II
CLASSIFICATION OF CLAIMS AND INTERESTS
A. Introduction
All Claims and Interests, except Administrative Claims and
Priority Tax Claims, are placed in the Classes set forth below.
In accordance with section 1123(a)(1) of the Bankruptcy Code,
Administrative Claims and Priority Tax Claims, as defined below,
have not been classified.
A Claim or Interest is placed in a particular Class only to
the extent that the Claim or Interest falls within the description
of that Class, and is classified in other Classes to the extent
that any portion of the Claim or Interest falls within the
description of such other Classes.
A Claim is also placed in a particular Class for the purpose
of receiving distributions pursuant to the Plan only to the extent
that such Claim is an Allowed Claim in that Class and such Claim
has not been paid, released, or otherwise settled prior to the
Consummation Date.
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B. Unclassified Claims (not entitled to vote on the Plan)
1. Administrative Claims
2. Priority Tax Claims
C. Unimpaired Class Of Claims (not entitled to vote on the Plan)
1. Class 1: Other Priority Claims
Class 1 consists of all Other Priority Claims.
2. Class 3: General Unsecured Claims Less Than Or Equal
To $500
(Convenience Class)
Class 3 consists of all Unsecured Claims less
than or equal to $500.
D. Impaired Classes Of Claims (entitled to vote on the Plan)
1. Class 2: Secured Claims
Class 2 consists of all Secured Claims
including the Signet Secured Claim and Other
Secured Claims, if any. Each holder of a
Class 2 Secured Claim shall be treated as a
separate class for all purposes under the
Plan.
2. Class 4: All Other General Unsecured Claims
Class 4 consists of all Unsecured Claims
exceeding $500.
3. Class 5: Securities Class Claims
Class 5 consists of all Securities Class
Claims.
E. Impaired Class Of Interests (entitled to vote on the Plan)
1. Class 6: Old Common Stock Interests
Class 6 consists of all Interests with respect
to Old Common Stock.
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ARTICLE III
TREATMENT OF CLAIMS AND INTERESTS
A. Unclassified Claims
1. Administrative Claims
On the Consummation Date, or as soon thereafter as
practicable, a holder of an Allowed Administrative Claim shall
receive in full satisfaction, settlement, release, and discharge
of and in exchange for such Allowed Administrative Claim, (a) Cash
equal to the unpaid portion of such Allowed Administrative Claim,
except that, at the option of Aquila, Postpetition Incentive Stock
Claims may be paid in whole or in part in New Common Stock and
Senior Executives Stock Options shall be converted into options to
acquire New Common Stock issuable out of the New Management and
Employee Common Stock Reserve, or (b) such other treatment as to
which CBC or Aquila and such holder shall have agreed upon in
writing; provided, however, that Allowed Administrative Claims
with respect to liabilities incurred by CBC in the ordinary course
of its business during the Chapter 11 Case shall be paid by Aquila
in the ordinary course of business in accordance with the terms
and conditions of any agreements relating thereto.
2. Priority Tax Claims
On the Consummation Date, or as soon thereafter as
practicable, a holder of an Allowed Priority Tax Claim shall be
entitled to receive in full satisfaction, settlement, release, and
discharge of and in exchange for such Allowed Priority Tax Claim,
either, at the option of CBC or Aquila, (a) Cash equal to the
unpaid portion of such Allowed Priority Tax Claim, or (b) deferred
Cash payments in an aggregate principal amount equal to the unpaid
portion of such Allowed Priority Tax Claim plus interest thereon
at a rate to be determined by the Bankruptcy Court (estimated to
be approximately ten percent (10%) per annum) from the
Consummation Date through the date of payment thereof, or (c) such
other treatment as to which CBC or Aquila and such holder shall
have agreed upon in writing. If deferred Cash payments are made
to a holder of an Allowed Priority Tax Claim, payments of
principal shall be made in annual installments, each such
installment amount being equal to ten percent (10%) of such
Allowed Priority Tax Claim plus accrued and unpaid interest with
the first payment to be due on the Consummation Date or as soon
thereafter as practicable, and subsequent payments to be due on
the anniversary of the first payment date or as soon thereafter as
is practicable; provided, however, that any installments remaining
unpaid on the date that is six (6) years after the date of
assessment of the tax that is the basis for the Allowed Priority
Tax Claim shall be paid on the first Business Day following such
date, together with any accrued and unpaid interest to the date of
payment; and, provided further, that Aquila reserves the right to
pay any Allowed Priority Tax Claim, or any remaining balance of
any Allowed Priority Tax Claim, in full at any time on or after
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the Consummation Date without premium or penalty; and, provided
further, that no holder of an Allowed Priority Tax Claim shall be
entitled to any payments on account of any pre-Consummation Date
interest accrued on or penalty arising after the Petition Date
with respect to or in connection with such Allowed Priority Tax
Claim.
B. Unimpaired Class Of Claims
1. Class 1: Other Priority Claims
On the Consummation Date, or as soon thereafter as
practicable, a holder of an Allowed Class 1 Claim shall receive in
full satisfaction, settlement, release, and discharge of and in
exchange for such Allowed Class 1 Claim (a) Cash equal to the
unpaid amount of such Allowed Class 1 Claim; or (b) such other
treatment as to which CBC or Aquila and such holder shall have
agreed upon in writing; or (c) at the option of Aquila, such
Claims shall be Reinstated.
2. Class 3: General Unsecured Claims Less Than Or Equal
To $500
A holder of an Allowed Class 3 Claim shall receive, in full
satisfaction, settlement, release, and discharge of and in
exchange for such Allowed Class 3 Claim, Cash payments totaling
100% of the unpaid portion of such Allowed Class 3 Claim, payable
on the Consummation Date, or as soon thereafter as practicable.
C. Impaired Classes Of Claims
1. Class 2: Secured Claims
Class 2.01 Signet Secured Claim
In full satisfaction, settlement, release, and discharge of
and in exchange for its Allowed Class 2.01 Claim and any and all
other Claims of Signet, secured or unsecured, Signet shall be
entitled to receive either: (1) $4,200,000 upon a cash sale of
the Maryland Real Estate to the Retroviral Business Buyer; or
(2) a promissory note from Aquila in the original sum of
$4,200,000, payable on the following terms and conditions:
a. The note shall be issued on the Consummation Date, and
shall mature five (5) years thereafter. Interest shall be payable
on the unpaid principal balance of the note at a variable rate
equal to Signet prime plus two (2) percentage points. Prior to
maturity, level monthly payments of principal and interest
(subject to adjustment for interest rate changes) shall be
required in an amount sufficient to amortize principal fully on a
direct reduction basis over fifteen (15) years. The note may be
prepaid at any time without premium or penalty.
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b. To secure the indebtedness evidenced by the note Signet
shall retain its mortgage liens on the Maryland Real Estate except
that the mortgages, as amended and restated, shall provide that
the full note indebtedness shall be secured by each of the
separate parcels without limitations on full cross-
collateralization.
c. The note, mortgages and other documentation with respect
to the transaction shall contain other customary terms mutually
agreeable to the parties, and shall provide further that:
(i) Aquila shall direct tenants to remit rents to a
lockbox in the name of Aquila but under Signet's control; Signet
shall remit to Aquila monthly all rents received in excess of
monthly Signet debt service;
(ii) Aquila shall have the right to sell either the Taft
Court or Gude Drive properties included in the Maryland Real
Estate and to obtain a release of Signet's mortgage lien to the
property to be sold if the purchase price is not less than the
following amounts: Taft Court - $1,900,000; Gude Drive -
$3,400,000; provided all net proceeds from the sale, after closing
adjustments and sale expenses, are paid over to Signet and applied
to the note; and
(iii) Signet shall execute reasonable non-
disturbance agreements with respect to the lease to be executed by
the Retroviral Business Buyer, provided the lease is on terms
substantially similar to those set forth in Exhibit E to the Plan
and the prospective tenant is reasonably credit-worthy in Signet's
reasonable opinion. Signet will consider in good faith and not
unreasonably refuse to consent to any requests for non-disturbance
agreements made by other tenants at the Maryland Real Estate.
d. If the Consummation Date does not occur by September 30,
1996, then, in addition to the note described herein, Signet shall
be entitled to receive interest on $4,200,000 from and after
September 30, 1996, at a variable rate equal to Signet's prime,
payable monthly. If the Consummation Date does not occur by
December 31, 1996, Signet's agreement to accept the foregoing
treatment of its Claims shall expire.
Classes 2.02 et seq. Other Secured Claims
Each Other Secured Claim, if any, shall be classified as a
subclass under Class 2 (which for all purposes, including voting,
under the Plan shall be considered a separate class).
On the Consummation Date, or as soon thereafter as
practicable, the holder of an Allowed Class 2.02 Claim, in full
satisfaction, settlement, release and discharge of and in exchange
for such Allowed Class 2.02 Claim, shall, in the sole discretion
of Aquila, (a) retain its liens securing its Allowed Class 2.01
Claim and receive deferred Cash payments totaling at least the
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unpaid portion of such Allowed Class 2.02 Claim, of a value, as of
the Consummation Date, of a least the value of such holder's
interest in the Estate's interest in the collateral securing the
Class 2.02 Claim, (b) upon abandonment by Reorganized CBC or
Aquila receive the collateral securing the Class 2.02 Claim, (c)
receive payments or liens amounting to the indubitable equivalent
of the value of such holder's interest in the Estate's interest in
the collateral securing the Class 2.02 Claim, (d) be Reinstated,
or (e) receive such other treatment as CBC and such holder shall
have agreed upon in writing as announced at or prior to the
Confirmation Hearing.
2. Class 4: General Unsecured Claims Exceeding $500
A holder of a Class 4 Claim (Allowed or Disputed), in
full satisfaction, settlement, release, and discharge of and in
exchange for such Class 4 Claim (to the extent such claim is or
becomes an Allowed Class 4 Claim), may elect, at the time such
holder casts its ballot, treatment under either Class 4 Option A
or Class 4 Option B, as described below. Any holder of a Class 4
Claim who does not make such an election shall be deemed to have
elected Class 4 Option B.
a. Class 4 Option A.
A holder electing treatment under Class 4 Option A shall
receive Cash on the Consummation Date, or as soon as practicable
thereafter, equal to fifty-one percent (51%) of the unpaid portion
of such Allowed Class 4 Claim (the "Claim Settlement Amount");
provided, however, that if the total amount of Cash distributable
on account of all Allowed Class 4 Claims electing Class 4 Option A
exceeds $2,000,000, then any holder of an Allowed Class 4 Claim
electing Class 4 Option A shall receive instead its Pro Rata share
(based on the amount of its Allowed Class 4 Claim in relation to
all Allowed Class 4 Claims electing Class 4 Option A) of
$2,000,000 in Cash, payable on the Consummation Date, or as soon
as practicable thereafter, plus shares of New Common Stock
(together with one (1) Right per share), distributable on the
Initial Distribution Date, or as soon as practicable thereafter,
of a value (exclusive of the value of the Rights), based on
Reorganization Value equal to one hundred thirty-five percent
(135%) of the Cash Deficiency (as defined below) to the extent the
Cash Deficiency is equal to or less than five percent (5%) of the
Allowed Claim, and one hundred forty-five percent (145%) of the
Cash Deficiency, to the extent the Cash Deficiency is greater than
five percent (5%) and less than ten percent (10%) of the Allowed
Claim, and one hundred sixty percent (160%) of the Cash
Deficiency, to the extent the Cash Deficiency is equal to or
greater than ten percent (10%) and less than fifteen percent (15%)
of the Allowed Claim, and one hundred eighty-five percent (185%)
of the Cash Deficiency, to the extent the Cash Deficiency is equal
to or greater than fifteen percent (15%) of the Allowed Claim.
Cash Deficiency shall mean the difference between the Claim
Settlement Amount and the holder's Pro Rata share of the
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$2,000,000 in Cash available to be paid on account of Allowed
Class 4 Claims electing Class 4 Option A.
b. Class 4 Option B.
A holder electing treatment under Class 4 Option B shall
receive on the Initial Distribution Date, or as soon as
practicable thereafter, shares of New Common Stock of a value,
based on Reorganization Value, equal in amount to the holder's
Allowed Class 4 Claim.
c. Rights to Accompany New Common Stock, Whether Under
Option A or Option B.
Each share of New Common Stock to be distributed to the
holders of Allowed Class 4 Claims, whether the holder has elected
Class 4 Option A or Class 4 Option B shall carry with it one (1)
Right, provided, however, that Rights distributed on the Initial
Distribution Date shall be exercisable only during the Rights
Exercise Period, and no Rights shall be distributed on account of
any Disputed Class 4 Claim that becomes an Allowed Class 4 Claim
only after the Initial Distribution Date.
d. Issuance of New Common Stock and Rights to
Disbursing Agent and Distribution Reserve.
On the Consummation Date shares of New Common Stock and
Rights shall be issued to the Disbursing Agent, for the benefit of
the holders of Class 4 Claims, in sufficient number to satisfy the
requirements of Class 4 Option A and Class 4 Option B, taking into
account all Allowed Class 4 Claims and all Disputed Class 4
Claims, as provided in Section X hereof. If fifty-one percent
(51%) of the aggregate amount of Allowed and Disputed Class 4
Claims electing Class 4 Option A exceeds $2,000,000 (or such
higher amount as CBC, in its discretion, is prepared to fund, if
any), no distribution of New Common Stock (or Rights) shall be
made to any holder electing Class 4 Option A until such time as
the amount of all Disputed Claims electing Class 4 Option A are
determined to be Allowed Claims or Disallowed Claims, provided,
however, that at any time prior to the time all Disputed Claims
electing Class 4 Option A are so determined, any holder of an
Allowed Claim electing Class 4 Option A may by written notice to
CBC prior to the Consummation Date, or to Aquila after the
Consummation Date, elect to accept New Common Stock (and Rights)
in full satisfaction of its then outstanding Cash Deficiency
(computed based on Allowed Claims and Disputed Claims) and to
waive any right to receive Cash if and when Disputed Claims are
disallowed. The amount of New Common Stock to which the holder
will be entitled shall be computed in accordance with paragraph a
("Class 4 Option A") above, except that "Cash Deficiency" shall be
computed as described in this paragraph d. Any Cash so waived by
the holder shall be retained by Aquila. The notice shall be sent
to CBC or Aquila, as the case may be, at Biotechnology Research
- 24 -<PAGE>
Park, 365 Plantation Street, Worcester, MA 01605-2376, Attn:
Corporate Secretary.
3. Class 5: Securities Class Claims
In full satisfaction, settlement, release, and discharge of
and in exchange for the Class 5 Securities Class Claims, there
shall be issued to the Disbursing Agent on the Consummation Date,
or as soon as practicable thereafter, for the benefit of the
beneficial holders of Class 5 Claims:
a. 1,250,000 shares of New Common Stock; and
b. One (1) Right for each share so issued.
CBC shall also permit the Securities Class Plaintiffs to
prosecute CBC's claims against CBC's former auditors, Deloitte and
Touche, at their own expense, subject to CBC's right to receive
10% of the proceeds recovered thereon net of litigation expenses,
all as more particularly described in the Securities Class
Settlement Agreements.
On the Initial Distribution Date, or as soon as practicable
thereafter, the Disbursing Agent shall distribute to "Authorized
Claimants" their respective shares of New Common Stock and Rights
issued on the Consummation Date to the Disbursing Agent on account
of Securities Class Claims. The New Common Stock, Rights and
other consideration payable or distributable to the Securities
Settlement Class shall be distributed in the manner and according
to the procedures set forth in the Securities Class Settlement
Agreements. Rights distributed on the Initial Distribution Date
shall be exercisable only during the Rights Exercise Period. No
Rights shall be distributed to any Securities Settlement Class
member who is not an Authorized Claimant as of the Initial
Distribution Date.
In settlement of claims against the Securities Class Settling
Officers and Directors, the Securities Settlement Class also shall
be entitled to receive $1,050,000 in cash from an insurance policy
insuring the Securities Class Settling Officers and Directors, as
provided in the Securities Class Settlement Agreements.
Any holder of a Class 5 Claim that elects, pursuant to the
procedures established by the District Court, to be excluded from
the settlement embodied in the Securities Class Settlement
Agreements shall be entitled to receive no distribution under the
Plan or the Securities Class Settlement Agreements; provided,
however, that if a timely filed proof of claim has been filed with
respect to such holder's Class 5 Claim, other than the Securities
Class Proof of Claim, and such Claim is allowed by the Bankruptcy
Court, the holder shall be entitled to receive its Pro Rata share
of the New Common Stock and Rights issued in settlement of all
Class 5 Claims as if such holder had not opted-out of the
settlement, but no other property. For purposes of distributions
- 25 -<PAGE>
on Class 5 Claims, a holder's Pro Rata share shall be calculated
in the manner set forth in the Securities Class Settlement
Agreements.
D. Impaired Class Of Interests
1. Class 6: Old Common Stock Interests
In full satisfaction, settlement, release, and discharge of
and in exchange for all Class 6 Old Common Stock Interests, there
shall be issued to the Disbursing Agent, on the Consummation Date,
or as soon as practicable thereafter, for the benefit of the
holders of Class 6 Old Common Stock Interests:
a. 3,750,000 shares of New Common Stock, less (i) the
number of shares required to be issued on account of the
Postpetition Incentive Stock Claims under the Postpetition
Incentive Stock Programs, and (ii) the number of shares required
to be issued on account of Allowed Class 4 Claims; and
b. one (1) Right for each share of New Common Stock so
issued.
On the Initial Distribution Date, or as soon as practicable
thereafter, the Disbursing Agent shall distribute to the holders
of Allowed Class 6 Old Common Stock Interests their respective Pro
Rata share of the shares of New Common Stock and Rights issued on
the Consummation Date to the Disbursing Agent on account of Old
Common Stock Interests. Rights distributed on the Initial
Distribution Date shall be exercisable only during the Rights
Exercise Period. No Rights shall be distributed on account of any
Disputed Class 6 Interest that becomes an Allowed Interest only
after the Initial Distribution Date.
If any Other Equity Securities Claims have been timely filed,
the Bankruptcy Court, at the request of CBC or Aquila, shall
estimate such Claims for voting and allowance purposes under
section 502(c) of the Bankruptcy Code. If the Bankruptcy Court
allows any Other Equity Securities Claims in an amount greater
than $0, such Claims shall be treated for purposes of the Plan,
including voting and distribution, as Class 6 Old Common Stock
Interests, in accordance with the provisions of section 510 of the
Bankruptcy Code, and the Bankruptcy Court shall convert the
allowed amount of such Claims into Old Common Stock on such basis
as may be equitable. No distributions shall be made on account of
outstanding options, warrants, or other rights to purchase Old
Common Stock which remain unexercised as of the Record Date,
except as may otherwise be provided in the Postpetition Incentive
Stock Programs, or with respect to Senior Executives Stock
Options, which are to be converted into options with respect to
New Common Stock issuable out of the New Management and Employee
Common Stock Reserve.
- 26 -<PAGE>
ARTICLE IV
MEANS FOR IMPLEMENTATION OF THE PLAN
A. Sale of Enterics Business
Prior to the Confirmation Date, CBC will sell the Enterics
Business to the Enterics Business Buyer, free and clear of liens,
encumbrances, Claims, and Interests, except as may otherwise be
provided in the Enterics Business Purchase Agreement (or other
sale documents between CBC and the Enterics Business Buyer), the
Plan, and the Confirmation Order.
B. Formation of Aquila And Distribution Of Certain Assets
Aquila has been organized by CBC under Delaware law. The New
Common Stock and related Rights shall be issued and delivered to
the Disbursing Agent on the Consummation Date in exchange for all
Interests in CBC and certain Claims against CBC as described
elsewhere in this Plan, and CBC shall become a wholly owned
subsidiary of Aquila. The number of shares of New Common Stock to
be issued to the Disbursing Agent shall be 5,000,000 shares of New
Common Stock.
Each share of New Common Stock so issued shall carry with it
one (1) Right (provided that Rights not exercised during the
Rights Exercise Period shall expire, and may not thereafter be
exercised).
On the Consummation Date, the assets of the Biopharmaceutical
Business shall be distributed to Aquila as the sole stockholder of
CBC.
C. Sale Of Retroviral Business
1. Sale of CBC Stock
Immediately after giving effect to the transactions described
in Sections IV.A and B, Aquila will sell all of the issued and
outstanding stock of CBC to bioMerieux pursuant to the Retroviral
Business Purchase Agreement, or to another Retroviral Business
Buyer pursuant to the Retroviral Business Purchase Agreement
Bidding Procedures. Reorganized CBC shall retain assets of the
Retroviral Business free and clear of liens, encumbrances, Claims
and Interests except as otherwise provided in the Retroviral
Business Purchase Agreement (or other sale documents between
Aquila and the Retroviral Business Buyer), the Plan and the
Confirmation Order.
D. Tax Issues
The transactions described in this Article will be structured
to the extent possible so as to preserve the net operating loss
carryover of CBC for Aquila, to the extent not consumed in
offsetting income that may be realized by CBC or Aquila by reason
- 27 -<PAGE>
of the sale of assets prior or pursuant to the Plan. The sale of
stock in CBC to the Retroviral Business Buyer is intended to be
treated as if CBC had sold its assets and then liquidated into
Aquila pursuant to section 338(h)(10) of the Internal Revenue
Code. It is intended that the distribution of assets from CBC to
Aquila pursuant to the Plan will not result in taxable income to
either corporation, and that Aquila will succeed to CBC's adjusted
tax basis in such assets.
E. Rights Offering
1. Rights
Each share of New Common Stock distributed pursuant to the
Plan on account of an Allowed Class 4 or Class 5 Claim, an Allowed
Class 6 Interest or a Postpetition Incentive Stock Claim shall
carry with it a transferable right (a "Right"). Each Right
entitles the holder to purchase one (1) Unit, each Unit consisting
of one share of New Common Stock and one warrant to purchase one
(1) share of New Common Stock (a "Warrant"). In addition, each
holder of a Right who has fully exercised his basic right to
purchase one Unit for each Right received (an "Eligible Rights
Holder") also has the right to purchase any desired number of
Units that have not been subscribed for by the holders of other
Rights (the "Oversubscription Rights"), subject to proration if
oversubscribed. The Unit subscription price under the Rights will
be a dollar amount up to 100% of the Reorganization Value, as
determined by Aquila. However, Aquila reserves the right to
reduce the subscription price for the Units in certain
circumstances.
The Rights will be evidenced by a certificate (the "Rights
Certificate"). Rights can be exercised only to purchase whole
Units. No fractional Rights Certificates will be issued. The
Rights may be exercised by mailing or delivering a duly executed
and completed Rights Certificate, together with payment of the
full subscription price for each Unit purchased under the basic
Right, and a subscription for such portion of the Oversubscription
Rights as the holder may elect to subscribe for, to the Rights
Agent. The Rights Certificates must be received by the Rights
Agent on or before the end of the Rights Exercise Period, and any
subscriptions received after that date may not be honored. All
unexercised Rights Certificates will expire after the Rights
Exercise Period and will become worthless. The Rights and
Warrants will be issued pursuant to a Rights and Warrants
Agreement with a Rights Agent substantially in the form attached
as Exhibit F hereto.
2. Rights Exercise Period; Extension
On the Initial Distribution Date, shares of the New Common
Stock will be distributed to holders of Allowed Class 4 and Class
5 Claims, and Allowed Class 6 Interests, and on account of
Postpetition Incentive Stock Claims. Each share of New Common
- 28 -<PAGE>
Stock so distributed shall carry with it a Right to purchase one
Unit, which shall be evidenced by a Rights Certificate. These
Rights will be exercisable at any time after distribution until
5:00 p.m. Eastern Time on the twentieth (20th) calendar day after
the Initial Distribution Date, unless the period of exercise is
extended prior to such twentieth day at the option of Aquila for
up to fifteen (15) additional calendar days (including any such
extension, the "Rights Exercise Period"). No Rights may be
exercised after the Rights Exercise Period.
If Aquila elects to extend the Rights Exercise Period beyond
the initial twenty (20) days or to reduce the Unit subscription
price pursuant to Section IV.E.4 below, it will cause the Rights
Agent to promptly give written notice of such change to all record
holders of Rights. In the case of a reduction in the Unit
subscription price, Aquila will extend the Rights Exercise Period
to the extent necessary so that it will end on a date not earlier
than ten (10) calendar days after the date of notice of the price
reduction.
3. Proration; Oversubscription Procedures
Within three (3) Business Days after expiration of the Rights
Exercise Period, the Rights Agent will advise Aquila of the extent
to which the Rights were subscribed for.
To the extent that the rights were not fully subscribed for
through the exercise of basic subscription Rights, within five (5)
Business Days after expiration of the Rights Exercise Period, the
Rights Agent shall notify those subscribers who exercised
Oversubscription Rights of the additional amount of Units
allocated to them, and all such subscribers shall have until
5:00 p.m. Eastern Time on the tenth (10th) Business Day after
expiration of the Rights Exercise Period to make full payment of
the subscription price for each Unit subscribed for under the
Oversubscription Rights.
If the aggregate number of Units subscribed for through the
exercise of Oversubscription Rights is more than the number of
Units available for purchase, the available Units will be
apportioned among the Eligible Rights Holders who exercised the
Oversubscription Rights in proportion to the number of basic
Rights originally issued by Aquila to, and exercised by, each of
them through repeated application of the proration procedure
described in the next paragraph. Each time the procedure is
applied, the "Number of Available Units" shall mean the number of
Units not apportioned by prior applications of the procedures
described therein.
The Number of Available Units shall be apportioned among all
those Eligible Rights Holders who have not yet been apportioned
(through previous applications of this procedure) the full number
of Units subscribed for by them in their respective exercises of
Oversubscription Rights. Apportionment among them shall be based
- 29 -<PAGE>
on the ratio of the number of basic Rights originally issued by
Aquila to, and exercised by, each; provided that, if the number of
Units so apportioned to any Eligible Rights Holder exceeds the
number of Units subscribed for by that Eligible Rights Holder's
exercise of Oversubscription Rights, then the excess shall not be
apportioned, and that Eligible Rights Holder shall thereafter not
be apportioned any additional Units should there be further
applications of this procedure. This procedure shall be repeated
until either (i) the Number of Available Units is zero, or (ii) a
sufficient number of Units has been apportioned to all Eligible
Rights Holders to satisfy all of their exercised Oversubscription
Rights, whichever occurs first.
Notwithstanding the preceding proration procedures, in no
event shall any Eligible Rights Holder be able to purchase through
the exercise of Oversubscription Rights a number of Units greater
than the number which would result in that person or the members
of any group (as such term is used in Rule 13d-5 under the
Securities Exchange Act of 1934) of which it is a member owning of
record a number of shares of New Common Stock equal to fifteen
percent (15%) of the total of (i) the number of shares of New
Common Stock outstanding on the last day of the Rights Exercise
Period, plus (ii) the shares included in the Units purchased in
the Rights Offering (but before taking into account shares
issuable upon exercise of the Warrants), plus (iii) the number of
shares reserved for issuance under options which are outstanding
as of the last day of the Rights Exercise Period, unless the
limitation is waived by Aquila. Any Eligible Rights Holder whose
subscription would otherwise cause it to exceed the fifteen
percent (15%) limitation shall have its subscription treated as
having been for a number sufficient only to bring it to fifteen
percent (15%).
4. Reservation Of Right To Make Certain Changes
Aquila reserves the right to alter the terms of the Rights
Offering or the Rights or Warrants, in any respect, provided that,
after the Initial Distribution Date, it may not alter any term in
a manner adverse to the interests of Rights or Warrant holders.
It may enter into agreements with investors, including holders of
Claims or Interests, to acquire and exercise Oversubscription
Rights to purchase all or a portion of the Units not otherwise
subscribed for by exercise of the basic Rights. The terms of any
such agreements may vary. However, if Aquila negotiates a
transaction where the negotiated price for the Units is less than
the Rights subscription price set forth herein, Aquila shall
reduce the subscription price for all Units purchased in the
Rights Offering to the same price per Unit negotiated with such
investor(s) and written notice of such reduction and any necessary
extension of the Rights Exercise Period shall be given by the
Rights Agent in accordance with Section IV.E.2 above. In such
event, Aquila will recalculate the number of Units purchasable at
the new subscription price with the consideration tendered on
Rights already exercised and issue to the exercising holder the
- 30 -<PAGE>
larger number of Units, subject to proration in the event of
oversubscription.
5. Transferability
Both the Rights Certificates and the Warrants shall be freely
transferable. The shares of New Common Stock included in the Unit
and received upon exercise of the Warrant shall be freely
transferable.
F. Directors And Officers
On the Consummation Date, the term of the current board of
directors of CBC shall expire, and the individuals identified and
set forth in the Disclosure Statement shall become the initial
board of directors of Aquila. The board of directors of Aquila
shall have the responsibility for the management, control, and
operation of Aquila on and after the Consummation Date.
G. Revesting Of Assets
All property of CBC transferred or to be transferred to
Aquila pursuant to the Plan shall vest in Aquila free and clear of
all liens, encumbrances, Claims and Interests, except as otherwise
expressly provided in this Plan or the Confirmation Order.
Thereafter, Aquila may operate its business and may use, acquire,
and dispose of property free of any restrictions of the Bankruptcy
Code, the Bankruptcy Rules, and the Bankruptcy Court. Without
limiting the foregoing, Aquila may, without application to or
approval by the Bankruptcy Court, pay fees that are incurred after
the Confirmation Date for professional fees and expenses.
H. Substantial Contribution Compensation And Expenses Bar Date
Any person or entity who requests compensation or expense
reimbursement for making a substantial contribution in the
Chapter 11 Case pursuant to sections 503(b)(3), (4), and (5) of
the Bankruptcy Code must file a request with the clerk of the
Bankruptcy Court, on or before 4:00 p.m. Eastern Time on June 25,
1996, or be forever barred from seeking such compensation or
expense reimbursement.
I. Cancellation Of Old Common Stock
On the Consummation Date, the Old Common Stock Interests
shall be deemed cancelled and of no further force and effect
without further action on the part of the Bankruptcy Court or any
Person. The holders thereof shall have no rights against CBC or
Aquila arising from or relating to such Old Common Stock, or the
cancellation thereof, except the rights provided under this Plan.
Except to the extent otherwise provided for herein, any agreements
entered into in connection herewith, or the Confirmation Order, as
a condition to participating in distributions under the Plan,
within two (2) years following the Consummation Date, a holder of
- 31 -<PAGE>
certificates representing shares of Old Common Stock shall
surrender the share certificate or certificates representing such
equity securities to the Disbursing Agent.
Following the Consummation Date, holders of Old Common Stock
shall receive, from the Disbursing Agent, specific instructions
regarding the time and manner in which the stock certificates are
to be surrendered. Pending such surrender, such Old Common Stock
shall be deemed cancelled and shall represent only the right to
receive the distributions to which the holder is entitled under
the Plan. Failure to surrender shares of Old Common Stock within
two (2) years from the Consummation Date shall result in the
treatment of the distribution attributable thereto as an
undeliverable distribution, in accordance with Section VII.G
herein. Any stock certificate which is lost, stolen, mutilated,
or destroyed, shall be deemed surrendered when the holder of the
Interest based thereon delivers to the Disbursing Agent
(i) evidence satisfactory to the Disbursing Agent of the loss,
theft, mutilation, or destruction of such certificate, and
(ii) such security as may be required by the Disbursing Agent to
hold the Disbursing Agent harmless with respect thereto.
J. Exclusivity Period
CBC shall retain the exclusive right to amend or modify the
Plan and to solicit acceptances of any amendments to or
modifications of the Plan, through and until the Consummation
Date.
K. Retained Litigation
In accordance with section 1123(b)(3) of the Bankruptcy Code,
and except as otherwise provided herein or in the Retroviral
Business Purchase Agreement, Aquila shall retain and may enforce,
at its expense, all claims, rights of action, suits, and
proceedings, whether in law or in equity, whether known or
unknown, that CBC or the Estate may hold against any entity.
Aquila or any of its successors may pursue such retained
litigation claims in accordance with the best interests of Aquila
or its successors who hold such rights of action.
L. Effectuating Documents; Further Transactions
The Chairman of the Board of Directors, the President, or any
other appropriate officer of Aquila, or CBC, as the case may be,
shall be authorized to execute, deliver, file, or record such
contracts, instruments, releases, indenture, and other agreements
or documents, and take such actions as may be necessary or
appropriate to effectuate and further evidence the terms and
conditions of the Plan. The Secretary or Assistant Secretary of
Aquila or CBC, as the case may be, shall be authorized to certify
or attest to any of the foregoing actions, if necessary.
- 32 -<PAGE>
ARTICLE V
ACCEPTANCE OR REJECTION OF THE PLAN; EFFECT OF
REJECTION BY ONE OR MORE CLASSES OF CLAIMS OR INTERESTS
A. Classes Entitled To Vote
Each impaired Class shall be entitled to vote to accept or
reject the Plan. Any unimpaired Class of Claims shall be deemed
to have accepted the Plan and shall not be entitled to vote to
accept or reject the Plan.
B. Class Acceptance Requirement
Under section 1126(c) of the Bankruptcy Code, an impaired
Class of Claims has accepted the Plan if the holders of at least
two-thirds (2/3) in dollar amount and more than one-half (1/2) in
number of the Allowed Claims of such Class who have voted on the
Plan, have voted to accept the Plan.
Under section 1126(d) of the Bankruptcy Code, an impaired
Class of Interests has accepted the Plan if the holders of at
least two-thirds (2/3) in amount of the Interests of such Class
who have voted on the Plan, have voted to accept the Plan.
C. Cramdown
CBC hereby requests confirmation of the Plan, as it may be
modified from time to time, under section 1129(b) of the
Bankruptcy Code, if necessary.
ARTICLE VI
DESCRIPTION OF SECURITIES TO BE
ISSUED IN CONNECTION WITH THE PLAN
A. New Common Stock
The principal terms of the New Common Stock to be issued by
Aquila under the Plan shall be as follows:
Authorization 30,000,000 shares
Initial Issuance 5,000,000 shares
Par Value $.01 per share
Voting One vote per share
Preemptive Rights None
Transfer Limitations None
- 33 -<PAGE>
B. Rights
Each Right shall entitle the holder thereof to purchase
during the Rights Exercise Period (including any extension) one
(1) Unit (each Unit consisting of one (1) share of New Common
Stock and a Warrant to purchase one (1) additional share of New
Common Stock).
C. Units
Each Unit shall consist of one (1) share of New Common Stock
having the terms described in Section VI.A above and a Warrant to
purchase one (1) additional share of New Common Stock having the
rights described in Section VI.D below. The subscription price
per Unit shall be a dollar amount up to 100% of the Reorganization
Value, as determined by Aquila.
D. Warrants
The principal terms of the Warrants to be issued by Aquila in
connection with the Plan are as follows:
Initial Issuance 5,000,000 Warrants
Warrant Exercise Period The Warrants are exercisable at any
time after issuance.
Expiration Date The Warrants expire on the third
anniversary of the Initial
Distribution Date.
Warrant Exercise Price From the commencement of the Warrant
Exercise Period until the Warrants
Expiration Date, the Warrant
Exercise Price shall be 150% of the
subscription price per Unit.
Redemption Aquila may redeem outstanding
Warrants at any time upon not less
than thirty (30) days' written
notice at a price of $.10, provided
that the Warrants may not be
redeemed by Aquila prior to the
Warrants Expiration Date, unless the
Warrants are then exercisable and
the price of the New Common Stock
shall have been at least 150% of the
Warrant Exercise Price for twenty
(20) consecutive Business Days
ending within ten (10) trading days
of the date of the notice of
redemption. If Aquila exercises its
right to redeem the Warrants, the
Warrants will be exercisable until
- 34 -<PAGE>
4:00 p.m. Eastern Time on the
Business Day immediately preceding
the date fixed for redemption in
such notice. If any Warrant called
for redemption is not exercised by
such time, it will cease to be
exercisable, and the holders thereof
will be entitled to only the
redemption price. The exercise
price and number of shares of the
New Common Stock or other securities
issuable on exercise of the Warrants
and the redemption triggering price
set forth above are subject to
adjustment in certain circumstances,
including in the event of a stock
dividend, stock split,
recapitalization, reorganization,
merger or consolidation of Aquila.
E. Registration/Listing
The New Common Stock and Warrants will be registered under
Section 12(g) of the Securities Exchange Act of 1934, following
the Initial Distribution Date, and listing on the Nasdaq National
Market will be sought. The Rights and Units will be transferable,
but will not be registered or listed for trading.
ARTICLE VII
PROVISIONS GOVERNING DISTRIBUTIONS
A. Date Of Distributions
Distributions under the Plan shall be made as provided under
the other relevant provisions of the Plan, except as otherwise
provided for herein or ordered by the Bankruptcy Court.
B. Interest On Claims
Unless otherwise specifically provided for in the Plan or
Confirmation Order, or required by applicable bankruptcy law,
interest shall not accrue on Claims, and no holder of a Claim
shall be entitled to interest accruing on or after the Petition
Date on any Claim. Interest shall not accrue or be paid upon any
Disputed Claim in respect of the period from the Petition Date to
the date a final distribution is made thereon if and after such
Disputed Claim becomes an Allowed Claim.
C. Disbursing Agent
The Disbursing Agent shall make all distributions required
under this Plan (subject to the provisions of Section VII hereof).
The Disbursing Agent shall not be required to give any bond or
- 35 -<PAGE>
surety or other security for the performance of its duties unless
otherwise ordered by the Bankruptcy Court. If otherwise so
ordered, all costs and expenses of procuring any such bond shall
be paid by Aquila.
D. Record Date For Distributions To Holders Of Old Common Stock
At the close of business on the Record Date, the transfer
ledgers of the Old Common Stock shall be closed, and there shall
be no further changes in the record holders of the Old Common
Stock and the Disbursing Agent shall have no obligation to
recognize any transfer of the Old Common Stock occurring after the
Record Date. The Disbursing Agent shall be entitled instead to
recognize and deal for all purposes hereunder with only those
record holders stated on the transfer ledgers as of the close of
business on the Record Date.
E. Means Of Cash Payment
Cash payments made pursuant to this Plan shall be in U.S.
funds, by the means agreed to by the payor and the payee,
including by check or wire transfer, or, in the absence of an
agreement, such commercially reasonable manner as the payor shall
determine in its sole discretion.
F. No Fractional Securities Issued; No Distribution For Holders
Who Would Receive Less Than Five Shares
No fractional shares of New Common Stock, and no fractional
Rights shall be issued or distributed under the Plan or by any
Disbursing Agent. Each holder entitled under the Plan to receive
New Common Stock or Rights shall receive the total number of whole
New Common Stock or Rights Certificates to which such holder is
entitled. Whenever any distribution to a particular holder would
otherwise call for distribution under the Plan of a fraction of a
share or Right, the Disbursing Agent shall allocate separately to
each such holder one whole share in order of the fractional
portion of their entitlements, starting with the largest such
fractional portion, until all remaining whole shares have been
allocated. Upon the allocation of a whole share, as the case may
be, to a holder in respect of the fractional portion of its
entitlement, such fractional portion shall be cancelled. If two
or more holders are entitled to equal fractional entitlements and
the number of holders so entitled exceeds the number of whole
shares which remain to be allocated, the Disbursing Agent shall
allocate the remaining whole shares to such holders by random lot
or such other impartial method as the Disbursing Agent deems fair.
One whole Right will then accompany each whole share. Upon the
allocation of all of the whole shares or Rights authorized under
this Plan, all remaining fractional portions of the entitlements
shall be cancelled and shall be of no further force and effect.
- 36 -<PAGE>
Any holder of an Allowed Claim or Interest who would receive
fewer than five (5) shares of New Common Stock and related Rights
shall not receive any distribution.
G. Delivery Of Distributions
Distributions to holders of Allowed Claims and Allowed
Interests shall be made by the Disbursing Agent (a) at the
addresses set forth on the proofs of claim filed by such holders
(or at the last known addresses of such holders if no proof of
claim is filed or if CBC or Aquila has been notified of a change
of address), (b) at the addresses set forth in any written notices
of address changes delivered to the Disbursing Agent after the
date of any related proof of claim, (c) at the addresses reflected
in the Schedules if no proof of claim has been filed and the
Disbursing Agent has not received a written notice of a change of
address, or (d) at the addresses of the record holders of
Interests as of the Record Date.
If any holder's distribution is returned as undeliverable, no
further distributions to such holder shall be made unless and
until the Disbursing Agent is notified of such holder's then
current address, at which time all missed distributions shall be
made to such holder without interest. Amounts in respect of
undeliverable distributions made through the Disbursing Agent
shall be returned to Aquila until such distributions are claimed.
All claims for undeliverable distributions shall be made on or
before the second anniversary of the Consummation Date. After
such date, all unclaimed property shall revert to Aquila and the
claim of any holder or successor to such holder with respect to
such property shall be discharged and forever barred
notwithstanding any federal or state escheat laws to the contrary.
H. No Voting By Disbursing Agent
Neither the Disbursing Agent, nor any other party, shall be
entitled to vote any shares of the New Common Stock held by the
Disbursing Agent, whether in the Distribution Reserve or
otherwise. In the event that any matter requires approval by the
shareholders of Aquila prior to the distribution or cancellation
of all shares of New Common Stock held by the Disbursing Agent,
the shares of New Common Stock held by the Disbursing Agent shall
be deemed only for voting purposes not to have been issued.
ARTICLE VIII
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
A. Assumed Contracts And Leases
All executory contracts and unexpired leases specifically
listed on the schedule of assumed contracts and leases attached
hereto as Exhibit G shall be deemed automatically assumed as of
- 37 -<PAGE>
the Consummation Date. The Confirmation Order shall constitute an
order of the Bankruptcy Court approving such assumptions, pursuant
to section 365 of the Bankruptcy Code.
Each executory contract and unexpired lease that is assumed
and relates to the use or occupancy of real property shall include
(a) all modifications, amendments, supplements, restatements, or
other agreements made directly or indirectly by any agreement,
instrument, or other document that in any manner affect such
executory contract or unexpired lease and (b) all executory
contracts or unexpired leases appurtenant to the premises,
including all easements, licenses, permits, rights, privileges,
immunities, options, rights of first refusal, powers, uses,
usufructs, reciprocal easement agreements, vaults, tunnel or
bridge agreements or franchises, and any other interests in real
estate or rights in rem related to such premises, unless any of
the foregoing agreements have been rejected pursuant to a Final
Order of the Bankruptcy Court or is listed on the schedule of
rejected contracts and leases attached hereto as Exhibit H.
B. Payments Related To Assumption Of Executory Contracts And
Unexpired Leases; Bar to Pre-Confirmation Date Claims
Any monetary amounts by which each executory contract and
unexpired lease to be assumed under the Plan may be in default
shall be satisfied, under section 365(b)(1) of the Bankruptcy Code
by Cure. Exhibit G sets forth as to each executory contract and
unexpired lease whether such contract or lease is, in CBC's
opinion, in default, and the amount, if any, required to Cure. By
Order dated May 9, 1996, the Bankruptcy Court established July 9,
1996 as the deadline for other parties to such contracts and
leases to file objections to assumption (and, where applicable,
assignment) of such contracts and leases, including any
disagreements with CBC as to whether such contracts or leases are
in default, the amount required to Cure, if any, and the adequacy
of future performance assurances, and any other objections. Any
party who fails to file such an objection timely is and shall be
forever barred from objecting to assumption (and, where
applicable, assignment), and from asserting any claim arising out
of a default prior to the Confirmation Date; provided only that,
as to any default acknowledged by CBC on Exhibit G, Cure shall be
made in accordance with the terms set forth on Exhibit G. Any
dispute regarding (i) whether or not an executory contract or
unexpired lease is in default, (ii) the nature or the amount of
any Cure, (iii) the ability of Aquila to provide "adequate
assurance of future performance" (within the meaning of section
365 of the Bankruptcy Code) under the contract or lease to be
assumed, or (iv) any other matter pertaining to assumption (and,
where applicable, assignment) shall be heard and determined by the
Bankruptcy Court, and, except to the extent determination of a
particular dispute is deferred with the consent of CBC, all such
disputes shall be determined no later than the Confirmation Date,
and the Confirmation Order shall constitute an order determining
all such disputes.
- 38 -<PAGE>
C. Rejected Contracts And Leases
All executory contracts and unexpired leases specifically
listed on the schedule of rejected contracts and leases attached
hereto as Exhibit H shall be deemed automatically rejected as of
the Consummation Date. The Confirmation Order shall constitute an
order of the Bankruptcy Court approving such rejections, pursuant
to section 365 of the Bankruptcy Code.
D. Bar To Rejection Damages
By order dated May 9, 1996, the Bankruptcy Court established
July 9, 1996 as the deadline for other parties to executory
contracts and unexpired leases which CBC proposes to reject to
file proofs of claims arising from the rejection of such contracts
or leases.
E. Assignment Of Executory Contracts And Unexpired Leases To
Aquila
On the Consummation Date, each of the executory contracts and
unexpired leases that is being or previously has been assumed and
is specifically listed on the schedule of assumed and assigned
executory contracts and unexpired leases which is attached as
Exhibit I hereto, shall be assigned to Aquila, pursuant to section
365 of the Bankruptcy Code. The Confirmation Order shall
constitute an order of the Bankruptcy Court approving such
assignments, pursuant to section 365 of the Bankruptcy Code.
F. Unidentified Executory Contracts and Unexpired Leases
Any executory contract or unexpired lease of CBC which is not
specifically listed on either Exhibit G, H, or I, shall be deemed
to be automatically rejected as of the Consummation Date. The
Confirmation Order shall constitute an order of the Bankruptcy
Court approving such rejection, pursuant to section 365 of the
Bankruptcy Code. No rejection shall affect the obligations of any
party to CBC or Aquila under confidentiality covenants executed in
favor of CBC, which covenants shall survive rejection.
ARTICLE IX
CONDITIONS PRECEDENT
A. Conditions To The Confirmation Date
The following are conditions precedent to confirmation of the
Plan that may be satisfied or waived in accordance with Section
IX.C of the Plan:
1. The Bankruptcy Court shall have approved a disclosure
statement with respect to the Plan in form and substance
reasonably acceptable to the Proponent.
- 39 -<PAGE>
2. The Confirmation Order shall be in form and substance
reasonably acceptable to the Proponent.
B. Conditions To The Consummation Date
The following are conditions precedent to the occurrence of
the Consummation Date, each of which may be satisfied or waived in
accordance with Section IX.C of the Plan:
1. The Confirmation Order shall have been entered by the
Court and shall not be stayed, suspended, or vacated.
2. The Confirmation Order shall, among other things,
provide that:
a. The provisions of the Confirmation Order are
nonseverable and mutually dependent;
b. The Court shall approve the assumption or the
assumption and assignment, as the case may be, of all executory
contracts and unexpired leases proposed to be assumed or assumed
and assigned by CBC on the terms provided in the Plan, or
substantially similar thereto, and all executory contracts or
unexpired leases assumed (or assumed and assigned) by CBC during
the Chapter 11 Case or under the Plan and so designated by CBC
shall remain in full force and effect for the benefit of
Reorganized CBC or Aquila, as assignee and transferee as the case
may be, notwithstanding any provision in such contract or lease
(including those described in sections 365(b) (2) and (f) of the
Bankruptcy Code) that prohibits such assignment or transfer or
that enables or requires termination of such contract or lease;
c. The transfers of property by CBC (a) to Reorganized
CBC or Aquila (i) are or shall be legal, valid, and effective
transfers of property, (ii) vest or shall vest Reorganized CBC and
Aquila with good title to such property free and clear of all
liens, charges, Claims, encumbrances, or Interests, except as
expressly provided in the Plan or Confirmation Order, (iii) do not
and shall not constitute avoidable transfers under the Bankruptcy
Code or under applicable bankruptcy or nonbankruptcy law, and (iv)
do not and shall not subject Reorganized CBC or Aquila to any
liability by reason of such transfer under the Bankruptcy Code or
under applicable nonbankruptcy law, including, without limitation,
any laws affecting successor or transferee liability, and (b) to
holders of Claims and holders of Interests under the Plan are for
good consideration and value and are in the ordinary course of
CBC's business;
d. Except as expressly provided in the Plan, CBC shall
be discharged effective upon the Confirmation Date from any "debt"
(as that term is defined in section 101(12) of the Bankruptcy
Code), and CBC's liability in respect thereof is extinguished
completely, whether reduced to judgment or not, liquidated or
unliquidated, contingent or noncontingent, asserted or unasserted,
- 40 -<PAGE>
fixed or unfixed, matured or unmatured, disputed or undisputed,
legal or equitable, or known or unknown, or that arose from any
agreement of CBC that has either been assumed or rejected in the
Chapter 11 Case or pursuant to the Plan, or obligation of CBC
incurred before the Confirmation Date, or from any conduct of CBC
prior to the Confirmation Date, or that otherwise arose before the
Confirmation Date, including, without limitation, all interest, if
any, on any such debts, whether such interest accrued before or
after the Petition Date;
e. Except as expressly provided in the Plan, all
Interests shall be terminated effective upon the Consummation
Date;
f. The Plan does not provide for the liquidation of
all or substantially all of the property of CBC and its
confirmation is not likely to be followed by the liquidation of
Reorganized CBC or Aquila or the need for further financial
reorganization; and
g. The Bankruptcy Court shall have determined that the
New Common Stock and Rights (and the Units shares, Warrants and
Warrant shares issued pursuant thereto) to be issued under the
Plan and distributed by the Disbursing Agent in exchange for
Claims against or Interests in CBC are exempt from registration
under the Securities Act of 1933 pursuant to section 1145 of the
Bankruptcy Code, except to the extent that holders of any such
securities are "underwriters," as that term is defined in section
1145 of the Bankruptcy Code.
h. The Bankruptcy Court shall have determined that the
Reorganization Value is not less than $9.50/share of New Common
Stock.
3. The Bankruptcy Court shall have entered one or more
orders (which may be the Confirmation Order) authorizing the
assignment of all assumed leases and executory contracts as
designated by CBC to Aquila.
4. The Bankruptcy Court shall have estimated all Disputed
Claims for purposes of establishing the Distribution Reserve.
5. No request for revocation of the Confirmation Order
under section 1144 of the Bankruptcy Code shall have been made,
or, if made, shall remain pending.
C. Waiver Of Conditions To The Confirmation Date Or Consummation
Date
The conditions set forth in Section IX.A and IX.B of the Plan
may be waived by CBC, without notice or a hearing. The failure to
satisfy or waive any condition to the Confirmation Date or
Consummation Date may be asserted by CBC regardless of the
circumstances giving rise to the failure of such condition to be
- 41 -<PAGE>
satisfied (including any action or inaction by CBC). The failure
of CBC to exercise any of the foregoing rights shall not be deemed
a waiver of any other rights, and each such right shall be deemed
an ongoing right, which may be asserted at any time.
ARTICLE X
PROCEDURES FOR RESOLVING AND TREATING
DISPUTED AND CONTINGENT CLAIMS AND INTERESTS
A. No Distributions Pending Allowance
Notwithstanding any other provision of the Plan, no payments
or distributions shall be made with respect to all or any portion
of a Disputed Claim or Disputed Interest unless and until all
objections to such Disputed Claim or Disputed Interest have been
settled or withdrawn or have been determined by Final Order,
provided, however, where an objection is made only to a portion of
a Claim and no timely objection is made to the balance of such
Claim, such undisputed balance shall be treated as an Allowed
Claim for purposes of distribution.
B. Distribution Reserve
The Disbursing Agent shall withhold the Distribution Reserve
from the Cash and other property to be distributed under the Plan.
As to any Disputed Claim or Disputed Interest, upon a request for
estimation by CBC or Aquila, the Bankruptcy Court shall determine
what amount is sufficient to include in the Distribution Reserve.
CBC shall request estimation for every Disputed Claim that is
unliquidated and the estimated amount of such Claims shall be used
to compute the Distribution Reserve. If CBC elects not to request
such an estimation from the Bankruptcy Court with respect to a
Disputed Claim that is liquidated, the Distribution Reserve shall
be computed based upon the Face Amount of such Claim. The
Disbursing Agent shall also place in the Distribution Reserve any
dividends, payments, or other distributions made on account of, as
well as any obligations arising from, the property withheld as the
Distribution Reserve under this Section, to the extent that such
property continues to be withheld as Distribution Reserve at the
time such distributions are made or such obligations arise. For
purposes of establishing the Distribution Reserve disputed Cure
amounts shall constitute Disputed Claims.
C. Distributions After Allowance
Payments and distributions from the Distribution Reserve to
each holder of a Disputed Claim or Disputed Interest, to the
extent that all or part of such Claim or Interest ultimately
becomes an Allowed Claim or Allowed Interest shall be made in
accordance with the provisions of the Plan governing the class of
Claims or Interests to which the respective holder belongs.
Promptly after the date that the order or judgment of the
Bankruptcy Court allowing all or part of such Claim or Interest
- 42 -<PAGE>
becomes a Final Order, the Disbursing Agent shall distribute to
the holder of such Claim or Interest any Cash and other property
in the Distribution Reserve that would have been distributed on
the Consummation Date or the Initial Distribution Date, as the
case may be, had such Allowed Claim or Allowed Interest been then
allowed. After a Final Order has been entered, or other final
resolution has been reached, with respect to each and every
Disputed Claim and Disputed Interest, (i) any Cash held in the
Distribution Reserve shall become property of Aquila, and (ii) any
New Common Stock shall be distributed Pro Rata to the holders of
Allowed Class 6 Old Common Stock Interests.
ARTICLE XI
MODIFICATIONS AND AMENDMENTS
A. Modification Of The Plan
CBC may alter, amend, or modify the Plan or any Exhibits
thereto under section 1127(a) of the Bankruptcy Code at any time
prior to the Confirmation Date. After the Confirmation Date and
prior to substantial consummation of the Plan as defined in
section 1101(2) of the Bankruptcy Code, CBC or Aquila may, under
section 1127(b) of the Bankruptcy Code, institute proceedings in
the Bankruptcy Court to remedy any defect or omission or reconcile
any inconsistencies in the Plan, the disclosure statement approved
with respect to the Plan, or the Confirmation Order, and such
matters as may be necessary to carry out the purposes and effects
of the Plan so long as such proceedings do not adversely affect
the treatment of holders of Claims or holders of Interests under
the Plan; provided, however, that prior notice of such proceedings
shall be served in accordance with the Bankruptcy Rules or order
of the Bankruptcy Court.
ARTICLE XII
RETENTION OF JURISDICTION
After the Confirmation Date and until the Chapter 11 Case is
closed:
1. The Bankruptcy Court shall retain jurisdiction over the
Chapter 11 Case for the following purposes:
a. to hear and determine any and all pending or future
proceedings for the estimation of or objections to the allowance
of Claims or Interests relating to events or transactions
occurring on or prior to the Consummation Date;
b. to consider and act on the compromise and
settlement of any Claim against or Interest in CBC, or cause of
action on behalf of CBC's Estate provided, however, that there
shall be no requirement that CBC seek Bankruptcy Court approval of
any such compromise and settlement;
- 43 -<PAGE>
c. to hear and determine all pending or future
controversies, suits, and disputes that may arise under the Plan,
and controversies arising in connection with the interpretation of
the Plan, including any and all schedules, documents, and exhibits
hereto, or any documents intended to implement the provisions of
the Plan;
d. to hear and determine any and all applications for
the allowance of compensation and reimbursement of expenses;
e. to hear and determine any and all pending
applications for rejection or assumption of executory contracts
and unexpired leases to which CBC is a party or with respect to
which CBC may be liable, and to hear and determine, if necessary,
or to estimate or liquidate, any and all Claims arising therefrom
or from assumption or rejection of executory contracts or
unexpired leases pursuant to the Plan or otherwise;
f. to consider any modifications of the Plan;
g. to correct any defect, cure any omission, or
reconcile any inconsistency in the Plan, including any Exhibit
thereto, or in any order of the Bankruptcy Court, including the
Confirmation Order, as may be necessary, to carry out the purposes
and intent of the Plan and to implement and effectuate the Plan;
h. to determine such other matters as may be provided
for in the Confirmation Order or other orders of the Bankruptcy
Court as may be authorized under the provisions of the Bankruptcy
Code or any other applicable law;
i. to enforce all orders, judgments, injunctions, and
rulings entered in connection with CBC's Chapter 11 Case;
j. to issue such orders as may be necessary or
appropriate in aid of confirmation, and to facilitate
consummation, of the Plan; and
k. to enter an order closing the Chapter 11 Case.
2. The Bankruptcy Court shall retain and have original, but
not exclusive, jurisdiction over the Chapter 11 Case to hear and
determine any and all applications, adversary proceedings, and
contested and litigated matters pending on the Confirmation Date
or thereafter instituted by or on behalf of Aquila, including,
without limitation, all proceedings for the estimation of or
objection to Claims, any disputes between Aquila and the
Retroviral Business Buyer or the Enterics Business Buyer
concerning the sale of the Retroviral Business and the Enterics
Business, respectively, except as otherwise provided in the
Retroviral Business Purchase Agreement with respect to Post-
Consummation Date matters, any and all applications for the
allowance of compensation and reimbursement of expenses, and any
claims by or on behalf of Aquila arising under the Bankruptcy Code
- 44 -<PAGE>
to avoid any preferences, fraudulent transfers, or other avoidable
transfers.
ARTICLE XII
SETTLEMENTS
Pursuant to section 1123(b)(3) of the Bankruptcy Code and
Bankruptcy Rule 9019(a), CBC shall effectuate the compromise(s)
and settlement(s) described below.
A. Securities Class Action Settlement
1. Background
In the Securities Class Action, the Securities Class
Plaintiffs have asserted claims against CBC, certain of the
Securities Class Settling Officers and Directors, and Deloitte &
Touche. Claims against CBC were stayed and have been incorporated
in the Securities Class Proof of Claim. Claims against Deloitte &
Touche were dismissed without prejudice. The Securities Class
Plaintiffs alleged that CBC violated Rule 10(b)-5, under the
Securities Exchange Act of 1934, by disseminating materially false
and misleading information to the public. The Securities Class
Plaintiffs allege that, as a result, they purchased CBC's stock at
artificially inflated prices between February 28, 1992 through May
9, 1994.
2. Settlement
Pursuant to the Securities Class Settlement Agreements, the
Securities Class Plaintiffs have agreed to settle all claims
against CBC and the Securities Class Settling Officers and
Directors. Pleadings have been filed with the United States
District Court for the District of Massachusetts for the purpose
of approving the settlement. The District Court: (i) has
withdrawn the reference with respect to the Securities Class Proof
of Claim; (ii) has certified the Securities Settlement Class for
purposes of settling both the Securities Class Claims against CBC
and the claims against the Securities Class Settling Officers and
Directors; (iii) approved and/or authorized counsel to the
Securities Class Plaintiffs to file the Securities Class Proof of
Claim and to vote such Claim in the Chapter 11 Case; and (iv)
approved the terms of the Securities Class Settlement Agreements
as being fair and reasonable from the standpoint of the Securities
Class Plaintiffs. A hearing on final approval of the Securities
Class Settlement Agreements was held on April 4, 1996. Without
objection, the District Court entered a Final Order and Judgment
approving the Securities Class Settlement Agreements.
3. Terms of Settlement
Under the Securities Class Settlement Agreements the holders
of the Securities Class Claims will be entitled to receive their
- 45 -<PAGE>
Pro Rata share of: (i) 1,250,000 shares of New Common Stock and
1,250,000 Rights to be distributed to them on the Initial
Distribution Date; and (ii) 90% of any recoveries from prosecution
of claims (whether held by the Securities Class Plaintiffs or
CBC), if any, against CBC's former accountants, Deloitte & Touche.
CBC also shall permit the Securities Class Plaintiffs to prosecute
CBC's claims against CBC's former accountants, at their own
expense. CBC shall be entitled to receive 10% of any recoveries
from prosecution of such claims. All distributions, whether to
holders of Securities Class Claims or to CBC, shall be net of any
fees and expenses of legal counsel to the Securities Class
Plaintiffs which are approved by the District Court.
Under the Securities Class Settlement Agreements members of
the Securities Settlement Class will also be entitled to receive
their Pro Rata share of $1,050,000 in insurance proceeds payable
under a National Union insurance policy (reduced from the original
face amount of $3,000,000) insuring the Securities Class Settling
Officers and Directors against amounts paid in settlement of
claims against them, net of fees and expenses of legal counsel to
the Securities Class Plaintiffs which are approved by the District
Court.
The Securities Class Settlement Agreements also provide for
reimbursement of up to $100,000 of legal fees and expenses of the
Securities Class Settling Officers and Directors payable under the
same National Union insurance policy.
The Securities Class Action Settlement Agreements include
provisions retroactively amending the National Union insurance
policy as of the date of policy inception to reduce the limit of
liability amount from $3,000,000 to $1,150,000, with National
Union relinquishing any and all rights to CBC's 10% share of any
recoveries from Deloitte & Touche. This amended limit of
liability will be exhausted by National Union's payment of
$1,050,000 to the Securities Settlement Class and further
reimbursement of up to $100,000 for legal fees and expenses of the
Securities Class Settling Officers and Directors, and no further
insurance recoveries from National Union will be possible.
CBC is requesting that the Bankruptcy Court determine that
the Securities Class Settlement Agreements are fair and reasonable
from the standpoint of CBC and the Estate, which the Bankruptcy
Court will determine at the Confirmation Hearing. Accordingly,
the Securities Class Settlement Agreements are subject to
confirmation of the Plan.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
A. Setoffs
Aquila may, but shall not be required to, set off against any
Claim, and the payments or other distributions to be made pursuant
- 46 -<PAGE>
to the Plan in respect of such Claim, claims of any nature
whatsoever that CBC may have against the holder of such Claim; but
neither the failure to do so nor the allowance of any Claim
hereunder shall constitute a waiver or release by CBC of any such
claim that CBC may have against such holder.
B. Withholding And Reporting Requirements
In connection with the Plan and all instruments issued in
connection therewith and distributions thereon, Aquila shall
comply with all withholding and reporting requirements imposed by
any federal, state, local, or foreign taxing authority, and all
distributions hereunder shall be subject to any such withholding
and reporting requirements.
C. Discharge Of CBC And Aquila
All property distributed under the Plan shall be in exchange
for, and in complete satisfaction, settlement, discharge, and
release of, all Claims of any nature whatsoever against CBC,
Reorganized CBC, and Aquila and/or any of their assets or
properties, and, except as otherwise provided herein or in the
Confirmation Order, and upon the Confirmation Date, CBC,
Reorganized CBC, and Aquila shall be deemed discharged and
released under section 1141(d)(i)(A) of the Bankruptcy Code from
any and all debts. The Confirmation Order shall be a judicial
determination of discharge of all liabilities of CBC, Reorganized
CBC, and Aquila, subject to the occurrence of the Consummation
Date.
D. Intentionally Omitted
E. Committees
The Equity Committee and the Creditors' Committee shall
terminate on the Consummation Date.
F. Binding Effect
The Plan shall be binding upon and inure to the benefit of
CBC, Aquila, Reorganized CBC, the holders of Claims, the holders
of Interests, and their respective successors and assigns.
G. Revocation, Withdrawal Or Nonconsummation
1. Right To Revoke Or Withdraw
The Proponent reserves the right to revoke or withdraw the
Plan at any time prior to the Confirmation Date.
2. Effect Of Withdrawal, Revocation, Or Nonconsummation
If the Proponent revokes or withdraws the Plan prior to the
Confirmation Date, or if the Confirmation Date or the Consummation
- 47 -<PAGE>
Date does not occur, then the Plan, any settlement or compromise
effected in the Plan (including the fixing or limiting to an
amount certain any Claim or Class of Claims), assumption or
rejection of executory contracts or leases affected by the Plan,
and any document or agreement executed pursuant to the Plan, shall
be deemed null and void. In such event, nothing contained herein,
and no acts taken in preparation for consummation of the Plan,
shall be deemed to constitute a waiver or release of any Claims by
or against CBC or any other Person, to prejudice in any manner the
rights of CBC or any Person in any further proceedings involving
CBC, or to constitute an admission of any sort by CBC or any other
Person.
H. Post-Confirmation Reservation Of Shares For Issuance Upon
Exercise Of Rights And Warrants
Aquila shall at all times keep reserved, out of authorized
and unissued New Common Stock, a number of shares of New Common
Stock sufficient to provide for (i) exercise of the subscription
rights under the Units, and (ii) the exercise of the right to
purchase New Common Stock upon exercise of the Warrants.
I. Other Post-Consummation Reserves Of New Common Stock
Aquila shall establish a New Management and Employee Common
Stock Reserve consisting of 2,400,000 shares of New Common Stock.
The New Common Stock reserved in the New Management and Employee
Common Stock Reserve shall be used to grant incentive equity,
whether through stock options or stock purchase plans, or
otherwise, to directors, management, employees, and consultants of
Aquila, pursuant to Aquila's (i) Employee Stock Purchase Plan,
(ii) Stock Award and Option Plan, and (iii) Directors Stock Award
and Option Plan, as each such plan is summarized on Exhibit J
hereto. This shall include, without limitation, the Senior
Executives Stock Options. Confirmation of the Plan will be deemed
to constitute approval of these plans for purposes of Rule 16b-
3(b) of the Securities Exchange Act of 1934 and section 422 of the
Internal Revenue Code.
J. Notices
Any notice required or permitted to be provided to CBC under
the Plan shall be in writing and served by (a) certified mail,
return receipt requested, (b) hand delivery, or (c) overnight
delivery service, to be addressed as follows:
Cambridge Biotech Corporation
Biotechnology Research Park
365 Plantation Street
Worcester, MA 01605-2376
Attn: President
with a copy to:
- 48 -<PAGE>
Brown, Rudnick, Freed & Gesmer, P.C.
One Financial Center
Boston, MA 02111
Attn: Joseph F. Ryan, Esquire
Jeffrey L. Jonas, Esquire
K. Indemnification Obligations
Except as otherwise provided in the Plan, the Securities
Class Settlement Agreements, or any ancillary documents executed
in connection therewith, Aquila will assume any obligations of CBC
to indemnify Frederick V. Casselman and any of CBC's officers or
directors employed as of the Petition Date, or subsequent thereto,
pursuant to the CBC Certificate Of Incorporation, by-laws, and
policy of providing employee indemnification, and applicable state
law or specific agreements in respect of claims, based upon any
act or omission related to their service with, for, or on behalf
of CBC, irrespective of whether indemnification is owed in
connection with an occurrence before or after the Petition Date;
provided, however, any obligation to indemnify such indemnitees
for matters arising prior to the Petition Date shall survive only
to the extent a timely proof of claim therefor was duly filed by
the affected indemnitee.
L. Prepayment
Unless the Plan or the Confirmation Order otherwise provides,
Aquila shall have the right to prepay, without penalty, all or any
portion of an Allowed Claim at any time; provided, however, that
any such prepayment shall not be violative of, or otherwise
prejudice, the relative priorities and parities among the Classes
of Claims.
M. Term Of Injunctions Or Stays
Unless otherwise provided in the Plan or the Confirmation
Order, all injunctions or stays provided for in the Chapter 11
Case under section 105 or 362 of the Bankruptcy Code or otherwise,
and extant on the Confirmation Date, shall remain in full force
and effect until the Consummation Date.
N. Governing Law
Unless a rule of law or procedure is supplied by federal law
(including the Bankruptcy Code and Bankruptcy Rules), the laws of
Commonwealth of Massachusetts shall govern the construction and
implementation of the Plan and any agreements, documents, and
instruments executed in connection with the Plan. The laws of
State of Delaware shall govern corporate governance matters.
- 49 -<PAGE>
Dated: As of May 20, 1996 CAMBRIDGE BIOTECH CORPORATION
Worcester, Massachusetts
By: /s/ Alison Taunton-Rigby
Name: Alison Taunton-Rigby,
Ph.D.
Title: President and Chief
Executive Officer
Joseph F. Ryan
James E. McGuire
Jeffrey L. Jonas
Anthony L. Gray
BROWN, RUDNICK, FREED & GESMER, P.C.
Attorneys for Cambridge Biotech Corporation
One Financial Center
Boston, MA 02111
617-856-8200
- 50 -
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED
OF
CAMBRIDGE BIOTECH CORPORATION
FIRST. The name of the corporation is Cambridge Biotech
Corporation.
SECOND. The address of its registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
THIRD. The nature of the business or purpose to be
conducted or promoted is:
To engage in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of Delaware.
FOURTH.
A. Number of Shares.
The total number of shares of capital stock which the
corporation shall have the authority to issue is forty-five
million (45,000,000) shares, of which forty million (40,000,000)
shares shall be common stock, par value $.01 per share, and five
million (5,000,000) shares shall be preferred or special stock,
par value $.01 per share.
The number of authorized shares of preferred or special
stock may be increased or decreased (but not below the number of
shares outstanding) by the affirmative vote of the holders of a
majority of the common stock, without a vote of the holders of the
preferred or special stock, or of any class or series thereof,
unless a vote of any such holders is required pursuant to the
certificate or certificates establishing the class or series of
preferred or special stock.
B. General.
No holder of any stock of the corporation shall be
entitled as such, as a matter of right, to subscribe for or
purchase any part of any new or additional issue of stock of any
class whatsoever of the corporation, or of securities convertible
into stock of any class whatsoever, whether now or hereafter
authorized, or whether issued for cash or other consideration or
by way of dividend.<PAGE>
The designations, powers, preferences and rights of, and
the qualifications, limitations and restrictions upon, each class
or series of stock shall be as set forth below in Paragraphs C and
D of this Article FIFTH.
C. Preferred or Special Stock.
Subject to any limitations prescribed by law, the board
of directors of the corporation is expressly authorized to provide
for the issuance of the shares of preferred or special stock in
one or more classes or one or more series within any class, and by
filing a certificate pursuant to applicable law of the State of
Delaware, to establish or change from time to time the number of
shares to be included in each such class or series, and to fix the
designation, powers, preferences and rights of the shares of each
such class or series and any qualifications, limitations and
restrictions thereof. Any action by the board of directors under
this Paragraph C shall require the affirmative vote of a majority
of the directors then in office. The authority of the board of
directors with respect to each class or series of preferred or
special stock shall include, but not be limited to, the right to
determine or fix one or more of the following:
(a) The distinctive class or serial designation and the
number of shares constituting such class or series;
(b) The dividend rates or the amount of dividends to be
paid on the shares of such class or series, whether dividends
shall be cumulative and, if so, from which date or dates, the
payment date or dates for dividends, and the participating and
other rights, if any, with respect to dividends;
(c) The voting powers, full or limited, if any, of the
shares of such class or series;
(d) Whether the shares of such class or series shall be
redeemable and, if so, the price or prices at which, and the terms
and conditions on which, such shares may be redeemed;
(e) The amount or amounts payable upon the shares of
such class or series and any preferences applicable thereto in the
event of the voluntary or involuntary liquidation, dissolution or
winding up of the corporation;
(f) Whether the shares of such class or series shall be
entitled to the benefit of a sinking or retirement fund to be
applied to the purchase or redemption of such shares, and if so
entitled, the amount of such fund and the manner of its
application, including the price or prices at which such shares
may be redeemed or purchased through the application of such fund;<PAGE>
(g) Whether the shares of such class or series shall be
convertible into, or exchangeable for, shares of any other class
or classes or of any other series of the same or any other class
or classes of stock of the corporation and, if so convertible or
exchangeable, the conversion price or prices, or the rate or rates
of exchange, and the adjustments thereof, if any, at which such
conversion or exchange may be made, and any other terms and
conditions of such conversion or exchange;
(h) The price or other consideration for which the
shares of such class or series shall be issued;
(i) Whether the shares of such class or series which
are redeemed or converted shall have the status of authorized but
unissued shares of preferred or special stock and whether such
shares may be reissued as shares of the same or any other class or
series of stock; and
(j) Such other powers, preferences, rights,
qualifications, limitations and restrictions thereof as the board
of directors of the company may deem advisable.
All stock issued pursuant to this Paragraph C shall be
hereinafter referred to as "preferred stock."
D. Common Stock.
Subject to all of the rights of the preferred stock, and
except as provided by law or in this Article FIFTH (or in any
certificate of designations of any class or series of preferred
stock) or by the board of directors pursuant to this Article
FIFTH:
(a) the holders of the common stock shall have the
exclusive right to vote for the election of directors and on all
other matters requiring shareholder action, each share being
entitled to one vote;
(b) dividends may be declared and paid or set apart for
payment upon the common stock out of any assets or funds of the
corporation legally available for the payment of dividends, but
only when and as declared by the board of directors or any
committee thereof authorized by the board of directors to declare
dividends; and
(c) upon the voluntary or involuntary liquidation,
dissolution or winding up of the corporation, the net assets of
the corporation shall be distributed pro rata to the holders of
the common stock in accordance with their respective rights and
interests.<PAGE>
FIFTH. In furtherance and not in limitation of the powers
conferred by the State of Delaware:
A. The board of directors shall have the power to
adopt, alter, amend and repeal the by-laws of the corporation.
Any by-laws of the corporation adopted by the directors under the
powers conferred hereby may be altered, amended or repealed by the
directors or by the shareholders. Notwithstanding the foregoing
or any other provisions of this certificate of incorporation or
the by-laws of the corporation to the contrary, any such action by
the board of directors to adopt, alter, amend or repeal the by-
laws of the corporation shall require the affirmative vote of a
majority of the directors then in office at a duly constituted
meeting of the board of directors. Notwithstanding the foregoing
or any other provisions of this certificate of incorporation or
the by-laws of the corporation to the contrary, any action by the
shareholders to adopt, alter, amend or repeal the by-laws of the
corporation shall require the affirmative vote of the holders of
at least eighty percent of the then outstanding shares of stock
entitled to vote thereon, voting together as a single class, at a
duly constituted meeting of shareholders called expressly for such
purpose.
B. Elections of directors need not be by written
ballot unless the by-laws of the corporation shall so provide.
C. The books of the corporation may be kept at such
place within or without the State of Delaware as the by-laws of
the corporation may provide or as may be designated from time to
time by the board of directors of the corporation.
D. A director of the corporation shall not be
personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal
benefit. If the Delaware General Corporation law is amended after
approval by the stockholders of this Paragraph D to authorize
corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of this Paragraph D by the stockholders
of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time
of such repeal or modification.<PAGE>
E. Except as otherwise fixed pursuant to the
provisions of Article FIFTH hereof relating to the rights of the
holders of any class or series of preferred stock to elect
directors, the number of directors of the corporation shall be
fixed from time to time by or in the manner provided in the
corporation's by-laws. The directors, other than those who may be
elected by the holders of any class or series of preferred stock,
shall be classified, with respect to the term for which they
severally hold office into three classes, as nearly equal in
number as possible, as shall be provided in the manner specified
in the by-laws.
At the annual shareholders, meeting in 1989, one class
of such directors shall be elected for a one-year term, one class
for a two-year term and one class for a three-year term, with the
members of each class to hold office until their respective
successors are elected and qualified. Commencing with the annual
shareholders' meeting in 1990 and at each succeeding annual
meeting of the shareholders of the corporation, the successors to
the class of directors whose term expires at that meeting shall be
elected to hold office for a term expiring at the annual meeting
of shareholders held in the third year following the year of their
election and until their respective successors are elected and
qualified. If the number of directors is changed, any increase or
decrease in the number of directors shall be apportioned by the
board of directors among the classes so as to maintain the number
of directors comprising each class as nearly equal as possible,
provided that no decrease in the number of directors shall affect
the term of any director then in office.
F. Subject to the rights of any class or series of
preferred stock to elect or remove directors, any director
(including persons elected by directors to fill vacancies in the
board of directors) may be removed from office only with cause and
by the affirmative vote of (i) the holders of at least eighty
percent of the then outstanding shares of stock entitled to vote
generally in the election of directors, voting together as a
single class, at a duly constituted meeting of shareholders called
expressly for such purpose, or (ii) at least two-thirds of the
directors then in office. A director may not be removed from
office without cause. At least 30 days prior to any such meeting
of shareholders, written notice shall be sent to the director
whose removal will be considered at the meeting.
G. Except as otherwise fixed pursuant to the
provisions of Article FIFTH hereof relating to the rights of the
holders of any class or series of preferred stock to elect
directors, any vacancy occurring in the board of directors,
including any newly created directorships resulting from an
increase in the number of directors or any vacancy resulting from
death, resignation, disqualification, removal or other cause,
shall be filled solely by the affirmative vote of a majority of
the remaining directors then in office, even though less than a
quorum of the board of directors. Any director appointed in<PAGE>
accordance with the preceding sentence shall hold office for the
remainder of the full term of the class of directors in which the
new directorship was created or the vacancy occurred and until
such director's successor shall have been elected and qualified.
SIXTH. Any action required by law to be taken at any
annual or special meeting of stockholders of the corporation, or
any action which may be taken at any annual or special meeting of
such stockholders, shall be taken only at such a meeting.
Except as otherwise required by law and subject to the
rights of the holders of any class or series of preferred stock,
special meetings of the shareholders of the corporation may be
called only by (i) the board of directors pursuant to a resolution
approved by the affirmative vote of a majority of the directors
then in office, (ii) the Chairman of the board, if one is elected,
or (iii) the President. Only those matters set forth in the
notice of the special meeting may be considered or acted upon at
such special meeting, unless otherwise provided by law. Advance
notice of any matters which shareholders intend to propose for
action at an annual meeting shall be given in the manner provided
in the by-laws of the corporation.
SEVENTH. Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them
and/or between this corporation and its stockholders or any class
of them, any court of equitable jurisdiction within the State of
Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this
corporation under Section 291 of Title 8 of the Delaware Code or
on the application of trustees in dissolution or of any receiver
or receivers appointed for this corporation under Section 279 of
Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be
summoned in such manner as the said court directs. If a majority
in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of this
corporation as a consequence of such compromise or arrangement,
the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on
this corporation.
EIGHTH. The corporation reserves the right to repeal, alter
or amend this certificate of incorporation in the manner now or
hereafter prescribed by statute and this certificate of
incorporation, and all rights conferred upon shareholders herein
are granted subject to this reservation. No repeal, alteration or<PAGE>
amendment of this certificate of incorporation shall be made
unless the same is first approved by the board of directors of the
corporation pursuant to a resolution adopted by the affirmative
vote of a majority of the directors then in office, and thereafter
approved by the shareholders. For the purposes of the foregoing
sentence, and notwithstanding any other provisions of this
certificate of incorporation or the by-laws of the corporation
(and notwithstanding the fact that a lesser percentage may be
specified by law, this certificate of incorporation or the by-laws
of the corporation), the affirmative vote of the holders of at
least two-thirds, or eighty percent in the case of Sections A, B
and F of Article SIXTH, of the then outstanding shares of stock
entitled to vote thereon (or such greater proportion as may be
required by law) voting together as a single class, at a duly
constituted meeting of shareholders called expressly for such
purpose, shall be required to repeal, alter or amend any provision
of, or adopt any provision inconsistent with, this Article NINTH,
Sections B, C and D of Article FIFTH, Article SIXTH, or Article
SEVENTH.
EXHIBIT B-1
CERTIFICATE OF INCORPORATION
OF
AQUILA BIOPHARMACEUTICALS, INC.
[As Proposed to Be Amended and Restated]
FIRST. The name of the corporation is Aquila
Biopharmaceuticals, Inc.
SECOND. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of the
registered agent at such address is The Corporation Trust Company.
THIRD. The nature of the business or purpose to be conducted
or promoted is: to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.
FOURTH. The name and address of the incorporator is:
Jane V. Hawkes of 311 Main Street, Worcester, Massachusetts.
FIFTH.
A. Number of Shares.
The total number of shares of capital stock which the
corporation shall have the authority to issue is thirty-one
million five hundred thousand (31,500,000) shares, of which thirty
million (30,000,000) shares shall be common stock, par value $.01
per share, and one million five hundred thousand (1,500,000)
shares shall be preferred or special stock, par value $.01 per
share.
The number of authorized shares of preferred or special stock
may be increased or decreased (but not below the number of shares
outstanding) by the affirmative vote of the holders of a majority
of the common stock, without a vote of the holders of the
preferred or special stock, or of any class or series thereof,
unless a vote of any such holders is required pursuant to the
certificate or certificates establishing the class or series of
preferred or special stock.
B. General.
No holder of any stock of the corporation shall be entitled
as such, as a matter of right, to subscribe for or purchase any
part of any new or additional issue of stock of any class
whatsoever of the corporation, or of securities convertible into
stock of any class whatsoever, whether now or hereafter
authorized, or whether issued for cash or other consideration or
by way of dividend.<PAGE>
The designations, powers, preferences and rights of, and the
qualifications, limitations and restrictions upon, each class or
series of stock shall be as set forth below in Paragraphs C or D
of this Article FIFTH; provided, that in no event shall the
corporation have authority to issue any class or series of stock
which does not have the right to vote generally in the election of
directors, notwithstanding anything in Paragraphs C or D of
Article FIFTH to the contrary.
C. Preferred or Special Stock.
Subject to any limitations prescribed by law, the board of
directors of the corporation is expressly authorized to provide
for the issuance of the shares of preferred or special stock in
one or more classes or one or more series within any class, and by
filing a certificate pursuant to applicable law of the State of
Delaware, to establish or change from time to time the number of
shares to be included in each such class or series, and to fix the
designation, powers, preferences and rights of the shares of each
such class or series and any qualifications, limitations and
restrictions thereof. Any action by the board of directors under
this Paragraph C shall require the affirmative vote of a majority
of the directors then in office. The authority of the board of
directors with respect to each such class or series of preferred
or special stock shall include, but not be limited to, the right
to determine or fix one or more of the following:
(a) The distinctive class or serial designation and the
number of shares constituting such class or series;
(b) The dividend rates or the amount of dividends to be paid
on the shares of such class or series, whether dividends shall be
cumulative and, if so, from which date or dates, the payment date
or dates for dividends, and the participating and other rights, if
any, with respect to dividends;
(c) The voting powers, full or limited, if any, of the
shares of such class or series;
(d) Whether the shares of such class or series shall be
redeemable and, if so, the price or prices at which, and the terms
and conditions on which, such shares may be redeemed;
(e) The amount or amounts payable upon the shares of such
class or series and any preferences applicable thereto in the
event of the voluntary or involuntary liquidation, dissolution or
winding up of the corporation;
(f) Whether the shares of such class or series shall be
entitled to the benefit of a sinking or retirement fund to be
applied to the purchase or redemption of such shares, and if so
entitled, the amount of such fund and the manner of its
application, including the price or prices at which such shares
may be redeemed or purchased through the application of such fund;
- 2 -<PAGE>
(g) Whether the shares of such class or series shall be
convertible into, or exchangeable for, shares of any other class
or classes or of any other series of the same or any other class
or classes of stock of the corporation and, if so convertible or
exchangeable, the conversion price or prices, or the rate or rates
of exchange, and the adjustments thereof, if any, at which such
conversion or exchange may be made, and any other terms and
conditions of such conversion or exchange;
(h) The price or other consideration for which the shares of
such class or series shall be issued;
(i) Whether the shares of such class or series which are
redeemed or converted shall have the status of authorized but
unissued shares of preferred or special stock and whether such
shares may be reissued as shares of the same or any other class or
series of stock; and
(j) Such other powers, preferences, rights, qualifications,
limitations and restrictions thereof as the board of directors of
the corporation may deem advisable.
All stock issued pursuant to this Paragraph C shall be
hereinafter referred to as "preferred stock".
D. Common Stock
Subject to all of the rights of the preferred stock, and
except as provided by law or in this Article FIFTH (or in any
certificate of designations of any class or series of preferred
stock) or by the board of directors pursuant to this Article
FIFTH:
(a) the holders of the common stock shall have the right to
vote for the election of directors and on all other matters
requiring stockholder action, each share being entitled to one
vote;
(b) dividends may be declared and paid or set apart for
payment upon the common stock out of any assets or funds of the
corporation legally available for the payment of dividends, but
only when and as declared by the board of directors or any
committee thereof authorized by the board of directors to declare
dividends; and
(c) upon the voluntary or involuntary liquidation,
dissolution or winding up of the corporation, the net assets of
the corporation shall be distributed pro rata to the holders of
the common stock in accordance with their respective rights and
interests.
SIXTH. In furtherance and not in limitation of the powers
conferred by the State of Delaware:
- 3 -<PAGE>
A. The board of directors shall have the power to adopt,
alter, amend and repeal the by-laws of the corporation. Any by-
laws of the corporation adopted by the directors under the powers
conferred hereby may be altered, amended or repealed by the
directors or by the shareholders. Notwithstanding the foregoing
or any other provisions of this certificate of incorporation or
the by-laws of the corporation to the contrary, any such action by
the board of directors to adopt, alter, amend or repeal the by-
laws of the corporation shall require the affirmative vote of a
majority of the directors then in office at a duly constituted
meeting of the board of directors. Notwithstanding the foregoing
or any other provisions of this certificate of incorporation or
the by-laws of the corporation to the contrary, any action by the
shareholders to adopt, alter, amend or repeal the by-laws of the
corporation shall require the affirmative vote of the holders of
at least sixty-six and two-thirds percent (66 2/3%) of the then
outstanding shares of stock entitled to vote thereon, voting
together as a single class, at a duly constituted meeting of the
stockholders called expressly for such purpose.
B. Elections of directors need not be by written ballot
unless the by-laws of the corporation shall so provide.
C. The books of the corporation may be kept at such place
within or without the State of Delaware as the by-laws of the
corporation may provide or as may be designated from time to time
by the board of directors of the corporation.
D. A director of the corporation shall be relieved of any
personal liability to the corporation or its stockholders for
monetary damages for breach of his or her fiduciary duty as a
director of the corporation to the extent provided either (i) in
the order of the United States Bankruptcy Court for the District
of Massachusetts confirming the Reorganization Plan of Cambridge
Biotech Corporation (Case No. 94-43054-JFQ), but in any event to
no greater extent than is permitted by Section 102(b)(7) or any
successor or similar provision of the Delaware General Corporation
Law, or (ii) by the Delaware General Corporation Law, as now or
hereafter in effect and interpreted by the courts of the State of
Delaware, in the absence of any specific provision in a
corporation's certificate of incorporation.
E. Except as otherwise fixed pursuant to the provisions of
Article FIFTH hereof relating to the rights of the holders of a
class or series of preferred stock to elect directors, the number
of directors of the corporation shall be fixed from time to time
by or in the manner provided in the corporation's by-laws. The
directors, other than those who may be elected by the holders of
any class or series of preferred stock, shall be classified with
respect to the term for which they severally hold office into
three classes, as nearly equal in number as possible, as shall be
provided in the manner specified in the by-laws.
- 4 -<PAGE>
The corporation shall call a special meeting of stockholders
for a date approximately one hundred twenty days after the
Consummation Date under the Reorganization Plan of Cambridge
Biotech Corporation confirmed by the United States Bankruptcy
Court for the District of Massachusetts (Case No. 94-43054-JFQ).
At that meeting, the term of office of the class of directors
designated as the Class I directors shall expire and new Class I
directors shall be elected for a term to expire at the annual
stockholders meeting in 1999. At the annual stockholders meeting
in 1997, the term of office of the class of directors designated
as the Class II directors shall expire and new Class II directors
shall be elected for a term expiring in 2000, and at the annual
shareholders meeting in 1998, the term of office of the class of
directors designated as the Class III directors shall expire and
new Class III directors shall be elected for a term expiring in
2001. At each succeeding annual meeting of stockholders of the
corporation, the successors to the class of directors whose terms
expire at that meeting shall be elected to hold office for a term
expiring at the annual meeting of shareholders held in the third
year following the year of their election and until their
respective successors are elected and qualified. If the number of
directors is changed, any increase or decrease in the number of
directors shall be apportioned by the board of directors so that
each class is as nearly equal as possible, provided that no
decrease in the number of directors shall affect the term of any
director then in office.
F. Subject to the rights of any class or series of
preferred stock to elect or remove directors, any director
(including persons elected by directors to fill vacancies on the
board of directors) may be removed from office, with or without
cause, by the affirmative vote of (i) the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the then outstanding
shares of stock entitled to vote generally in the election of
directors, voting together as a single class, at a duly
constituted meeting of stockholders called expressly for such
purpose, or (ii) at least two-thirds of the directors then in
office. At least thirty (30) days prior to any such meeting of
shareholders, written notice shall be sent to the director whose
removal will be considered at the meeting.
G. Except as otherwise fixed pursuant to the provisions of
Article FIFTH hereof relating to the rights of the holders of any
class or series of preferred stock to elect directors, any vacancy
occurring in the board of directors, including any newly created
directorships resulting from an increase in the number of
directors or any vacancy resulting from death, resignation,
disqualification, removal or other cause, shall be filled solely
by the affirmative vote of a majority of the remaining directors
then in office, even though less than a quorum of the board of
directors. Any director appointed in accordance with the
preceding sentence shall hold office for the remainder of the full
term of the class of directors in which the new directorship was
- 5 -<PAGE>
created or the vacancy occurred and until such director's
successor shall have been elected and qualified.
SEVENTH. Any action required by law to be taken at any
annual or special meeting of stockholders of the corporation, or
any action which may be taken at any annual or special meeting of
such stockholders, shall be taken only at such a meeting.
Except as otherwise required by law and subject to the rights
of the holders of any class or series of preferred stock, special
meetings of the shareholders of the corporation may be called only
by (i) the board of directors pursuant to a resolution approved by
affirmative vote of majority of the directors then in office, (ii)
the Chairman of the Board, if one is elected, (iii) the President,
or (iv) the holders of at least sixty-six and two-thirds percent
(66 2/3%) of the then outstanding shares of stock entitled to vote
generally in the election of directors. Only those matters set
forth in the notice of special meeting may be considered or acted
upon at such special meeting, unless otherwise provided by law.
Advance notice of any matters which shareholders intend to propose
for action at an annual meeting shall be given in the manner
provided in the by-laws of the corporation.
EIGHTH. Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them
and/or between this corporation and its stockholders or any class
of them, any court of equitable jurisdiction within the State of
Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this
corporation under Section 291 of Title 8 of Delaware Code or on
the application of trustees in dissolution or of any receiver or
receivers appointed for this corporation under Section 279 of
Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be
summoned in such manner as the said court directs. If a majority
in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of this
corporation as a consequence of such compromise or arrangement,
the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on
this corporation.
NINTH. The corporation reserves the right to repeal, alter
or amend this certificate of incorporation in the manner now or
hereafter prescribed by statute and this certificate of
incorporation, and all rights conferred upon stockholders herein
are granted subject to this reservation. No repeal, alteration or
- 6 -<PAGE>
amendment of this certificate of incorporation shall be made
unless the same is first approved by the board of directors of the
corporation pursuant to a resolution adopted by the affirmative
vote of a majority of the directors then in office, and thereafter
approved by the shareholders. For the purposes of the foregoing
sentence, and notwithstanding any other provisions of this
certificate of incorporation or the by-laws of the corporation
(and notwithstanding the fact that a lesser percentage may be
specified by law, this certificate of incorporation or the by-laws
of the corporation), the affirmative vote of the holders of at
least sixty-six and two-thirds percent (66 2/3%) of the then
outstanding shares of stock entitled to vote thereon (or such
greater proportion as may be required by law), voting together as
a single class, at a duly constituted meeting of shareholders
called expressly for such purpose, shall be required to repeal,
alter or amend any provision of, or adopt any provision
inconsistent with, this Article NINTH, Sections B, C and D of
Article FIFTH, Article SIXTH, or Article SEVENTH.
- 7 -
EXHIBIT B-2
AQUILA BIOPHARMACEUTICALS, INC.
BY-LAWS
ARTICLE I
MEETING OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the
stockholders shall be held at such place within or without the
State of Delaware as may be fixed from time to time by the board
of directors or the chief executive officer, or if not so
designated, at the registered office of the corporation.
Section 2. Annual Meeting. Annual meetings of stockholders
shall be held on the second Tuesday in April in each year if not
a legal holiday, and if a legal holiday, then on the next secular
day following, at 10:00 a.m., or at such other date and time as
shall be designated from time to time by the board of directors
or the chief executive officer, at which meeting the stockholders
shall elect by a plurality vote a board of directors and shall
transact such other business as may properly be brought before
the meeting. If no annual meeting is held in accordance with the
foregoing provisions, the board of directors shall cause the
meeting to be held as soon as thereafter as convenient.
Section 3. Matters to be Considered at Meetings. At a
meeting of stockholders, only such business shall be conducted,
and only such proposals shall be acted upon, as shall have been
properly brought before the meeting (i) by, or at the direction
of, a majority of the board of directors, or (ii) by any
stockholder of the corporation who complies with the notice
procedures set forth in this Section 3. For a proposal to be
properly brought before the meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to
the secretary of the corporation. To be timely, a stockholder's
notice must be delivered to, or mailed and received at, the
principal executive offices of the corporation not less than 60
days nor more than 150 days prior to the scheduled meeting,
regardless of any postponements, deferrals or adjournments of
that meeting to a later date; provided, however, that if less
than 70 days' notice of prior public disclosure of the date of
the scheduled meeting is given or made, notice by the stockholder
to be timely must be so delivered or received not later than the
close of business on the 10th day following the earlier of (1)
the day on which such notice of the date of the scheduled meeting
was mailed or (2) the day on which such public disclosure was
made. A stockholder's notice to the secretary shall set forth as
to each matter the stockholder proposes to bring before the
meeting (a) a brief description of the proposal desired to be
brought before the meeting and the reasons for conducting such
business at the meeting, (b) the name and address, as they appear
on the corporation's stock transfer books, of the stockholder
proposing such business and of the beneficial owners (if any) of
the stock registered in such stockholder's name and the name and<PAGE>
address of other stockholders known by such stockholder to be
supporting such proposal, (c) the class and number of shares of
the corporation's capital stock which are beneficially owned by
such stockholder and beneficial owners (if any) on the date of
such stockholder's notice and by any other stockholders known by
such stockholder to be supporting such proposal on the date of
such stockholder's notice, and (d) any financial interest of the
stockholder in such proposal.
If the board of directors, or a designated committee
thereof, determines that any stockholder proposal was not timely
made in accordance with the terms of this Section 3, the board of
directors may determine that such stockholder proposal will not
be acted upon at the meeting. If the board of directors, or a
designated committee thereof, determines that the information
provided in a stockholder's notice does not satisfy the
informational requirements of this Section 3 in any respect, the
secretary of the corporation shall promptly notify such
stockholder of the deficiency in the notice. The stockholder
shall have an opportunity to cure the deficiency by providing
additional information to the secretary within such period of
time, not to exceed seven days from the date such deficiency
notice is mailed or five days from the date such deficiency
notice is given to the stockholder, as the board of directors or
such committee shall reasonably determine. If the deficiency is
not cured within such period, or if the board of directors or
such committee determines that the additional information
provided by the stockholder, together with the information
previously provided, does not satisfy the requirements of this
Section 3 in any respect, then the board of directors may
determine that such stockholder proposal will not be acted upon
at the meeting. The secretary of the corporation shall notify a
stockholder in writing if the board of directors, or a designated
committee thereof, determines that his proposal does not meet the
time and informational requirements of this Section 3; provided,
however, that any notice from a person or entity who is not a
stockholder of record shall not be deemed to be a "notice" for
the purposes of this Section 3 and may be disregarded by the
corporation and its officers.
Notwithstanding the procedure set forth in the preceding
paragraph, if neither the board of directors nor such committee
makes a determination as to the validity of any stockholder
proposal, the presiding officer of the meeting shall determine
and declare at the meeting whether the stockholder proposal was
made in accordance with the terms of this Section 3. If the
presiding officer determines that a stockholder proposal was made
in accordance with the terms of this Section 3, he shall so
declare at the meeting and ballots, if so requested by such
stockholder, shall be provided for use at the meeting with
respect to any such proposal. If the presiding officer
determines that a stockholder proposal was not made in accordance
with the terms of this Section 3, he shall so declare at the
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meeting and any such proposal shall not be acted upon at the
meeting.
The provisions of this Section 3 shall not prevent the
consideration and approval or disapproval at the meeting of
reports of officers, directors and committees of the board of
directors, but in connection with such reports, no new business
shall be acted upon at such meeting unless the proposal with
respect thereto has been stated, filed and received as herein
provided.
Section 4. Special Meetings. Special meetings of the
stockholders of the corporation may be called only in the manner
provided in the certificate of incorporation.
Section 5. Matters to be Considered at Special Meetings.
Only those matters set forth in the notice of the special meeting
may be considered or acted upon at such special meeting, unless
otherwise provided by law.
Section 6. Notice of Meetings. Except as otherwise
provided by law, written notice of each meeting of stockholders,
annual or special, stating the place, date and hour of the
meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given not less
than ten or more than sixty days before the date of the meeting,
to each stockholder entitled to vote at such meeting.
Section 7. Voting List. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least
ten days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city or town where
the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is
present.
Section 8. Quorum. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business,
except as otherwise provided by statute, the certificate of
incorporation or these by-laws. Where more than one class or
series of capital stock is entitled to vote separately at such a
meeting, a majority of the shares of each such class or series of
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capital stock entitled to vote at such meeting shall constitute a
quorum at such meeting.
Section 9. Adjournments. Any meeting of stockholders may
be adjourned from time to time to any other time and to any other
place at which a meeting of stockholders may be held under these
by-laws, which time and place shall be announced at the meeting,
by a majority of the stockholders present in person or
represented by proxy at the meeting and entitled to vote, though
less than a quorum, or, if no stockholder is present or
represented by proxy, by any officer entitled to preside at or to
act as secretary of such meeting, without notice other than
announcement at the meeting. At such adjourned meeting at which
a quorum shall be present or represented any business may be
transacted which might have been transacted at the original
meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the
meeting.
Section 10. Action at Meetings. When a quorum is present at
any meeting, the vote of the holders of a majority of the stock
present in person or represented by proxy and entitled to vote on
the question shall decide any other question brought before such
meeting, unless the question is one upon which by express
provision (whether of law, the certificate of incorporation or
these by-laws) a different vote is required, in which case such
express provision shall govern and control the decision of such
question.
Section 11. Voting and Proxies. Unless otherwise provided
in the certificate of incorporation, each stockholder shall at
every meeting of the stockholders be entitled to one vote for
each share of capital stock having voting power held of record by
such stockholder. Each stockholder entitled to vote at a meeting
of stockholders may authorize another person or persons to act
for him by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a
longer period. Proxies shall be filed with the secretary of the
meeting, or of any adjournment thereof, before being voted.
Except as otherwise limited therein, proxies shall entitle the
persons authorized thereby to vote at any adjournment of such
meeting, but they shall not be valid after final adjournment of
such meeting. A proxy with respect to stock held in the name of
two or more persons shall be valid if executed by or on behalf of
any one of them unless at or prior to the exercise of the proxy
the corporation receives a specific written notice to the
contrary from any one of them.
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ARTICLE II
DIRECTORS
Section 1. Number, Election, Tenure and Qualification. The
number of directors which shall constitute the whole board shall
be not less than one. Except as otherwise fixed pursuant to the
provisions of Article FIFTH of the certificate of incorporation
relating to the rights of the holders of any class or series of
preferred stock to elect directors, the number of directors of
the corporation shall be fixed by resolution duly adopted from
time to time by the board of directors. The directors, other
than those who may be elected by the holders of any class or
series of preferred stock, shall be classified, with respect to
the term for which they severally hold office, into three
classes, as nearly equal in number as possible as determined by
the board of directors. The directors shall be elected at the
annual meeting of the stockholders, except as provided in
Section 4 of this Article, and each director elected shall hold
office until his successor is elected and qualified or until his
earlier death, resignation or removal. Directors need not be
stockholders.
Section 2. Enlargement. The number of the board of
directors may be increased at any time by vote of a majority of
the directors then in office.
Section 3. Director Nominations. Nominations of candidates
for election as directors of the corporation at any annual or
special meeting of stockholders at which directors will be
elected may be made (a) by, or at the direction of, a majority of
the board of directors or a subcommittee thereof or (b) by any
stockholder entitled to vote at such meeting. Only persons
nominated in accordance with the procedures set forth in this
Section 3 shall be eligible for election as directors at a
meeting of stockholders.
Nominations, other than those made by, or at the
direction of, the board of directors or a committee thereof,
shall be made pursuant to timely notice in writing to the
secretary of the corporation as set forth in this Section 3. To
be timely, a stockholder's notice shall be delivered to, or
mailed to and received at, the principal executive offices of the
corporation not less than 60 days nor more than 150 days prior to
the date of the scheduled annual or special meeting, regardless
of postponements, deferrals, or adjournments of that meeting to a
later date; provided, however, that if less than 70 days' notice
or prior public disclosure of the date of the scheduled meeting
is given or made, notice by the stockholder to be timely must be
so delivered or received not later than the close of business on
the 10th day following the earlier of (a) the day on which such
notice of the date of the scheduled meeting was mailed or (b) the
day on which such public disclosure was made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director
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(i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such
person, (iii) the class and number of shares of the corporation's
capital stock which are beneficially owned by such person on the
date of such stockholder notice and (iv) any other information
relating to such person that is required to be disclosed in
solicitations of proxies with respect to nominees for election as
directors, pursuant to Regulation 14A promulgated by the
Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended (or any subsequent provisions replacing
such act or rules and regulations promulgated thereunder); and
(b) as to the stockholder giving the notice (i) the name and
address, as they appear on the corporation's stock transfer
books, of such stockholder and of the beneficial owners (if any)
of the stock registered in such stockholder's name and the name
and address of other stockholders known by such stockholder to be
supporting such nominees and (ii) the class and number of shares
of the corporation's capital stock which are beneficially owned
by such stockholder and beneficial owners (if any) on the date of
such stockholder notice and by any other stockholders known by
such stockholder to be supporting such nominees on the date of
such stockholder notice. At the request of the board of
directors, any person nominated by, or at the direction of, the
board of directors or a committee thereof for election as a
director at a stockholder meeting shall furnish to the secretary
of the corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee.
No person shall be elected by the stockholders as a
director of the corporation unless nominated in accordance with
the procedures set forth in this Section 3 and unless such
candidate is placed into nomination by the board of directors or
a stockholder at the meeting. Election of directors at a meeting
need not be by written ballot, unless otherwise provided by the
board of directors or presiding officer at such annual meeting.
If written ballots are to be used, ballots bearing the names of
all the persons who have been nominated at the meeting for
election as directors at the meeting in accordance with the
procedures set forth in this Section 3 shall be provided.
The board of directors may reject any nomination by a
stockholder not timely made in accordance with the requirements
of this Section 3. If the board of directors, or a designated
committee thereof, determines that the information provided in a
stockholder's notice does not satisfy the informational
requirements of this Section 3 in any respect, the secretary of
the corporation shall promptly notify such stockholder of the
deficiency in the notice. The stockholder shall have an
opportunity to cure the deficiency by providing additional
information to the secretary within such period of time, not to
exceed seven days from the date such deficiency notice is mailed
or five days from the date such deficiency notice is given to the
stockholder, as the board of directors or such committee shall
reasonably determine. If the deficiency is not cured within such
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period, or if the board of directors or such committee reasonably
determines that the additional information provided by the
stockholder, together with the information previously provided,
does not satisfy the requirements of this Section 3 in any
respect, then the board of directors may reject such
stockholder's nomination. The secretary of the corporation shall
notify a stockholder in writing if the board of directors, or a
designated committee thereof, determines that his nomination does
not meet the time and informational requirements of this Section
3; provided, however, that any notice from a person or entity who
is not a stockholder of record shall not be deemed to be a
"notice" for purposes of this Section 3 and may be disregarded by
the corporation and its officers.
Notwithstanding the procedure set forth in the preceding
paragraph, if neither the board of directors nor such committee
makes a determination as to the validity of any nominations by a
stockholder, the presiding officer of the meeting shall determine
and declare at the meeting whether a nomination was made in
accordance with the terms of this Section 3. If the presiding
officer determines that a nomination was made in accordance with
the terms of this Section 3, he shall so declare at the meeting
and ballots, if so requested by such stockholder, shall be
provided for use at the meeting with respect to such nominee. If
the presiding officer determines that a nomination was not made
in accordance with the terms of this Section 3, he shall so
declare at the meeting and such nomination shall be disregarded.
Section 4. Vacancies. Any vacancy occurring on the board
of directors, including any newly created directorships resulting
from an increase in the number of directors or any vacancy
resulting from death, resignation, disqualification, removal or
other cause, shall be filled in the manner provided in Article
SIXTH, paragraph G of the certificate of incorporation.
Section 5. Resignation and Removal. Any director may
resign at any time upon written notice to the corporation at its
principal place of business or to the president or secretary.
Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the
happening of some other event. Any director may be removed from
office in the manner provided in Article SIXTH, paragraph F of
the certificate of incorporation.
Section 6. General Powers. The business and affairs of the
corporation shall be managed by its board of directors, which may
exercise all powers of the corporation and do all such lawful
acts and things as are not by statute or by the certificate of
incorporation or by these by-laws directed or required to be
exercised or done by the stockholders. In the event of a vacancy
in the board of directors, the remaining directors, except as
otherwise provided by law, may exercise the powers of the full
board until the vacancy is filled.
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Section 7. Chairman of the Board. If the board of
directors appoints a chairman of the board, he shall, when
present, preside at all meetings of the board of directors. He
shall perform such duties and possess such powers as are
customarily vested in the office of the chairman of the board or
as may be vested in him by the board of directors.
Section 8. Place of Meetings. The board of directors of
the corporation may hold meetings, both regular and special,
either within or without the State of Delaware.
Section 9. Regular Meetings. Regular meetings of the board
of directors may be held without notice at such time and at such
place as shall from time to time be determined by the board;
provided that any director who is absent when such a
determination is made shall be given notice of such determination
at least three days in advance of any such meeting. A regular
meeting of the board of directors may be held without notice
immediately after and at the same place as the annual meeting of
stockholders.
Section 10. Special Meetings, Notice. Special meetings of
the board may be called by the chief executive officer,
secretary, or on the written request of two or more directors, or
by one director in the event that there is only one director in
office. Two days notice to each director, orally, by overnight
courier service or by written electronic means permitted by
Section I of Article IV sent to his business or home address, or
three days notice by written notice deposited in the mail, shall
be given to each director by the secretary or by the officer or
one of the directors calling the meeting. A notice or waiver of
notice of a meeting of the board of directors need not specify
the purposes of the meeting.
Section 11. Quorum, Action at Meeting, Adjournments. At all
meetings of the board, a majority of directors shall constitute a
quorum for the transaction of business and the act of a majority
of the directors present at any meeting at which there is a
quorum shall be the act of the board of directors, except as may
be otherwise specifically provided by law or by the certificate
of incorporation. If a quorum shall not be present at any
meeting of the board of directors, a majority of the directors
present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a
quorum shall be present.
Section 12. Action by Consent. Unless otherwise restricted
by the certificate of incorporation or these by-laws, any action
required or permitted to be taken at any meeting of the board of
directors or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case
may be, consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the board or
committee.
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Section 13. Telephonic Meetings. Unless otherwise
restricted by the certificate of incorporation or these by-laws,
members of the board of directors, or any committee designated by
the board of directors, may participate in a meeting of the board
of directors, or of such committee, by means of conference
telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and
such participation in a meeting shall constitute presence in
person at the meeting.
Section 14. Committees. The board of directors may, by
resolution passed by a majority of the whole board, designate one
or more committees, each committee to consist of one or more of
the directors of the corporation. The board may designate one or
more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee. Any such committee, to the extent provided in the
resolution of the board of directors, shall have and may exercise
all the powers and authority of the board of directors in the
management of the business and affairs of the corporation, and
may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of
incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease, exchange,
mortgage, pledge or encumbrance of all or substantially all of
the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of
a dissolution, or amending the by-laws of the corporation; and,
unless the resolution designating such committee or the
certificate of incorporation expressly so provides, no such
committee shall have the power or authority to declare a dividend
or to authorize the issuance of stock. Such committee or
committees shall have such name or names as may be designated
from time to time by resolution adopted by the board of
directors. Each committee shall keep regular minutes of its
meetings and make such reports to the board of directors as the
board of directors may request. Except as the board of directors
may otherwise determine, any committee may make rules for the
conduct of its business, but unless otherwise provided by the
directors or in such rules, its business shall be conducted as
nearly as possible in the same manner as is provided in these by-
laws for the conduct of its business by the board of directors.
Section 15. Compensation. Unless otherwise restricted by
the certificate of incorporation or these by-laws, the board of
directors shall have the authority to fix from time to time the
compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the board of
directors and the performance of their responsibilities as
directors and may be paid a fixed sum for attendance at each
meeting of the board of directors and/or a stated salary as
director. No such payment shall preclude any director from
serving the corporation or its parent or subsidiary corporations
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in any other capacity and receiving compensation therefor. The
board of directors may also allow members of special or standing
committees compensation for service on such committees.
ARTICLE III
INDEMNIFICATION
Section 1. Actions Other than by or in the Right of the
Corporation. The corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason
of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceedings, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
Section 2. Suits by or in Right of Corporation. The
corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
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the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery of the
State of Delaware or such other court shall deem proper.
Section 3. Success on the Merits. To the extent that any
person described in Section 1 and 2 of this Article III has been
successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in said Sections, or in defense of
any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 4. Specific Authorizations. Any indemnification
under Sections 1 and 2 of this Article III (unless ordered by a
court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of any
person described in said Sections is proper in the circumstances
because he has met the applicable standard of conduct set forth
in said Sections. Such determination shall be made (1) by the
board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or even is
obtainable but a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the
stockholders of the corporation.
Section 5. Advance Payment. Expenses incurred in defending
a civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of any person described in Sections 1 and 2 of this Article III
to repay such amount if it shall ultimately be determined that he
is not entitled to indemnification by the corporation as
authorized in this Article III.
Section 6. Non-Exclusivity. The indemnification and
advancement of expenses provided by, or granted pursuant to, the
other sections of this Article III shall not be deemed exclusive
of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
Section 7. Insurance. The board of directors may
authorize, by a vote of the majority of the full board, the
corporation to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the
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power to indemnify him against such liability under the provision
of this Article III.
Section 8. Benefits. The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article
shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs,
executors or administrators of such person.
Section 9. Severability. If any word, clause or provision
of this Article III or any award made hereunder shall for any
reason be determined to be invalid, all the other provisions
hereof shall not otherwise be affected thereby but shall remain
in full force and effect.
Section 10. Intent of Article. The intent of this Article
III is to provide for indemnification to the fullest extent
permitted by Section 145 of the General Corporation Law of
Delaware. To the extent that such Section or any successor
section may be amended or supplemented from time to time, this
Article III shall be amended automatically and construed so as to
permit indemnification to the fullest extent from time to time
permitted by law.
ARTICLE IV
NOTICES
Section 1. Delivery. Whenever, under the provisions of
law, the certificate of incorporation or these by-laws, written
notice is required to be given to any director or stockholder,
such notice may be given by mail, addressed to such director or
stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be
given by telegram, cable, telecopy, telex or similar electronic
means or by overnight courier services, addressed to such
director or stockholder at his address as it appears on the
records of the corporation, in which case such notice shall be
deemed to be given when delivered into the control of the persons
charged with effecting such transmission, the transmission charge
to be paid by the corporation or the person sending such notice
and not by the addressee. Oral notice or other in-hand delivery
(in person or by telephone) shall be deemed given at the time it
is actually given.
Section 2. Waiver of Notice. Whenever any notice is
required to be given under the provisions of law or of the
certificate of incorporation or of these by-laws, a waiver
thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
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ARTICLE V
OFFICERS
Section 1. Enumeration. The officers of the corporation
shall be chosen by the board of directors and shall be a
president, a secretary and a treasurer and such other officers
with such titles, terms of office and duties as the board of
directors shall from time to time determine, including a chairman
of the board, one or more vice-presidents, and one or more
assistant secretaries and assistant treasurers. If authorized by
resolution of the board of directors, the chairman of the board,
if any, or the president may be empowered to appoint from time to
time assistant secretaries and assistant treasurers. Any number
of offices may be held by the same person, unless the certificate
of incorporation or these by-laws otherwise provide.
Section 2. Election. The board of directors at its first
meeting after each annual meeting of stockholders shall choose a
president, a secretary and a treasurer. Other officers may be
appointed by the board of directors at such meeting, at any other
meeting, or by written consent.
Section 3. Compensation. The compensation of all officers
of the corporation shall be fixed from time to time by the board
of directors.
Section 4. Tenure. Each officer of the corporation shall
hold office until his successor is chosen and qualified, unless a
different term is specified in the vote choosing or appointing
him, or until his earlier death, resignation or removal. Any
officer elected or appointed by the board of directors or a
committee duly authorized to do so. Any vacancy occurring in any
office of the corporation may, at its discretion, be filled by
the board of directors. Any officer may resign by delivering his
written resignation to the corporation at its principal place of
business or to the president or the secretary. Such resignation
shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some other
event.
Section 5. President. The president shall be the chief
operating officer of the corporation. He shall also be the chief
executive officer unless the board of directors otherwise
provides. The president shall, unless the board of directors
provides otherwise in a specific instance or generally, preside
at all meetings of the stockholders and the board of directors,
have general and active management of the business of the
corporation and see that all orders and resolutions of the board
of directors are carried into effect. The president shall
execute bonds, mortgages, and other contracts requiring a seal,
under the seal of the corporation except where required or
permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly
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delegated by the board of directors to some other officer or
agent of the corporation.
Section 6. Vice Presidents. In the absence of the
president or in the event of his inability or refusal to act, the
vice-president (or in the event there be more than one vice-
president, the vice-presidents in the order designated, or in the
absence of any designation, then in the order of their election),
shall perform the duties of the president, and when so acting,
shall have all the powers of and be subject to all the
restrictions upon the president. The vice-president shall
perform such other duties and have such other powers as the board
of directors or the chief executive officer of the corporation
may from time to time prescribe.
Section 7. Secretary. The secretary shall have such powers
and perform such duties as are incident to the office of
secretary. He shall maintain a stock ledger and prepare lists of
stockholders and their addresses as required and shall be the
custodian of corporate records. The secretary shall attend all
meetings of the board of directors and all meetings of the
stockholders and record all the proceedings of the meetings of
the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be
given, notice of all meetings of the stockholders and special
meetings of the board of directors, and shall perform such other
duties as may be from time to time prescribed by the board of
directors or chief executive officer of the corporation, under
whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any
instrument requiring it. When so affixed, it may be attested by
his signature or by the signature of such assistant secretary.
The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 8. Assistant Secretaries. The assistant secretary,
or if there be more than one, the assistant secretaries in the
order determined by the board of directors (or if there be no
such determination, then in the order of their election), shall,
in the absence of the secretary or in the event of his inability
or refusal to act, perform the duties and exercise the powers of
the secretary and shall perform such other duties and have such
other powers as the board of directors, the chief executive
officer of the corporation or the secretary may from time to time
prescribe. In the absence of the secretary or any assistant
secretary at any meeting of stockholders or directors, the person
presiding at the meeting shall designate a temporary or acting
secretary to keep a record of the meeting.
Section 9. Treasurer. The treasurer shall perform such
duties and shall have such powers as may be assigned to him by
- 14 -<PAGE>
the board of directors or the chief executive officer. In
addition, the treasurer shall perform such duties and have such
powers as are incident to the office of treasurer. The treasurer
shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to
the credit of the corporation in such depositories as may be
designated by the board of directors. He shall disburse the
funds of the corporation as may be ordered by the board of
directors, taking proper vouchers for such disbursements, and
shall render to the chief executive officer and the board of
directors, when the board of directors or chief executive officer
so requires, an account of all his transactions as treasurer and
of the financial condition of the corporation.
Section 10. Assistant Treasurers. The assistant treasurer,
or if there shall be more than one, the assistant treasurers in
the order determined by the board of directors (or if there be no
such determination, then in the order of their election), shall,
in the absence of the treasurer or in the event of his inability
or refusal to act, perform the duties and exercise the powers of
the treasurer and shall perform such other duties and have such
other powers as the board of directors, the chief executive
officer or the treasurer may from time to time prescribe.
Section 11. Bond. If required by the board of directors,
any officer shall give the corporation a bond in such sum and
with such surety or sureties and upon such terms and conditions
as shall be satisfactory to the board of directors, including
without limitation a bond for the faithful performance of the
duties of his office and for the restoration to the corporation
of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control and
belonging to the corporation.
ARTICLE VI
CAPITAL STOCK
Section 1. Certificates of Stock. Every holder of stock in
the corporation shall be entitled to have a certificate, signed
by, or in the name of the corporation by, the chairman or vice-
chairman of the board of directors or the president or a vice-
president and by the treasurer or an assistant treasurer, or the
secretary or an assistant secretary of the corporation certifying
the number of shares owned by him in the corporation. Any or all
of the signatures on the certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer, transfer agent
or registrar before such certificate is issued, it may be issued
- 15 -<PAGE>
by the corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Certificates may be issued for partly paid shares and in such
case upon the face or back of the certificates issued to
represent any such partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon
shall be specified.
Section 2. Lost Certificates. The board of directors may
direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed. When
authorizing such issue of new certificate or certificates, the
board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his
legal representative, to give reasonable evidence of such loss,
theft or destruction, to advertise the same in such manner as it
shall require and/or to give the corporation a bond in such sum
as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged
to have been lost, stolen or destroyed or the issuance of such
new certificate.
Section 3. Transfer of Stock. Upon surrender to the
corporation or the transfer agent of the corporation of a
certificate for shares, duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it
shall be the duty of the corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 4. Record Date. In order that the corporation may
determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the board of directors may
fix, in advance, a record date, which shall not be more than
sixty days nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action to
which such record date relates. A determination of stockholders
of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
If no record date is fixed, the record date for
determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the
day before the day on which notice is given, or, if notice is
waived, at the close of business on the day before the day on
which the meeting is held. The record date for determining
- 16 -<PAGE>
stockholders for any other purpose shall be at the close of
business on the day on which the board of directors adopts the
resolution relating to such purpose.
Section 5. Registered Stockholders. The corporation shall
be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for
calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VII
CERTAIN TRANSACTIONS
Section 1. Transaction with Interested Parties. No
contract or transaction between the corporation and one or more
of its directors or officers, or between the corporation and any
other corporation, partnership, association, or other
organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting
of the board or committee thereof which authorizes the contract
or transaction or solely because his or their votes are counted
for such purpose, if:
(a) The material facts as to his relationship
or interest and as to the contract or transaction are
disclosed or are known to the board of directors or the
committee, and the board or committee in good faith
authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be
less than a quorum; or
(b) The material facts as to his relationship
or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to
vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the
stockholders; or
(c) The contract or transaction is fair as to
the corporation as of the time it is authorized,
approved or ratified by the board of directors, a
committee thereof, or the stockholders.
- 17 -<PAGE>
Section 2. Quorum. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of
the board of directors or of a committee which authorizes the
contract or transaction.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of
the corporation, if any, may be declared by the board of
directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the
capital stock, subject to the provisions of the certificate of
incorporation. The directors may set apart out of any funds of
the corporation available for dividends a reserve or reserves for
any proper purpose and may abolish any such reserve.
Section 2. Statement of Condition. The board of directors
shall present at each annual meeting, and at any special meeting
of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the
corporation.
Section 3. Checks. All checks or demands for money and
notes of the corporation shall be signed by such officer or
officers or such other person or persons as the board of
directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the corporation
shall be fixed by resolution of the board of directors.
Section 5. Seal. The board of directors may, by
resolution, adopt a corporate seal. The corporate seal shall
have inscribed thereon the name of the corporation, the year of
its organization and the word "Delaware." The seal may be used
by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise. The seal may be altered from time to
time by the board of directors.
ARTICLE IX
AMENDMENTS
These by-laws may be altered, amended or repealed, or new by-
laws may be adopted, by the board of directors or by the
stockholders, in each case in the manner provided in the
certificate of incorporation.
- 18 -
EXHIBIT C
SUMMARY OF ENTERICS ASSETS AND BUSINESS
The Enterics Business consists of tangible and intangible assets
related to the following products (the "Enteric Products")
manufactured by CBC:
Rotaclone
Adenoclone GSA
Adenoclone 40/41
Cytoclone A+B
Lyme EIA
Included in the assets, as they relate to the Enteric Products,
are inventories of finished product held by CBC; customer lists,
historical customer records, contracts and pending purchase
orders; goodwill; copyrights and trademarks specifically related
to the Enteric Products; marketing materials; manufacturing
documentation; product development documentation; technical
information, trade secrets, patents, patent applications and
licenses; regulatory permits and authorization, filings and
documentation; and certain equipment and instrumentation.
In connection with the sale of the Enterics Business, Aquila
expects to have ongoing obligations, to be performed during 1996,
to manufacture approximately one year's supply of Enteric
Products, to supply certain raw materials, to assist in
transferring the manufacturing technology to the purchaser, and to
train certain of the purchaser's personnel in various aspects of
the business.
EXHIBIT D
SUMMARY OF RETROVIRAL ASSETS AND BUSINESS
All right, title and interest of CBC in and to the assets
constituting the Diagnostics Business (as defined on Annex G),
including all the following:
A. All CBC's right, title and interest in the machinery,
equipment, and inventories of raw materials and supplies,
manufactured and purchased parts, goods in process and finished
goods, furniture, automobiles, trucks, tractors, trailers, tools,
jigs and dies) of CBC located in Rockville, Maryland.
B. All rights and obligations under employment contracts with
employees located in Rockville, Maryland.
C. All claims, deposits, prepayments, refunds, causes of
action, choses in action, rights of recovery, rights of set off
and rights of recoupment, including any such item relating to the
payment of Taxes.
D. All franchises, approvals, permits, licenses, orders,
registration, certificates, variances and similar rights obtained
from governments and governmental agencies that pertain to the
Diagnostics Business.
E. All CBC's right, title and interest to the following
intellectual property, including any goodwill associated
therewith, licenses and sublicenses granted and obtained with
respect thereto (except as otherwise provided below), rights
thereunder, remedies against infringements thereof and rights to
protection of interests therein under the laws of all
jurisdictions:
1 The following United States patents and patent
applications (and corresponding foreign patents and patent
applications) and rights under the licenses owned or
controlled by CBC:
Immunoassay Strip Cutter U.S. Patent No. 4,738,177
(abandoned)
Process for Purifying U.S. Patent No. 06/911/455<PAGE>
Recombinant Proteins, and 4,734,362
Use of Products Thereof
(the "Protein Purifying
Patent")
Detection of Antibodies to U.S. Patent No. 07/044,665
Human immunodeficiency 4,921,787
Agglutination of Antigen
Coated Latex
Diagnostic Proteins To U.S. Patent No. 07/433,7O9
Test for More Than
One Antibody
T-Lymphocropic Virus U.S. Patent No. 08/378,872
U.S. Patent No. 5,145,784, Double Capture Assay
License Agreement with Harvard University dated May 1, 1987
as amended, covering among other patents and patent
applications the following (the "Harvard Patents"):
U.S. Patent Nos. 4,743,678 and 5,045,448, HTLV-I virus
proteins and antigens (gp61) and diagnostic methods
U.S. Patent No. 4,725,669 and U.S. Patent Application
Ser. No. 056,134, HIV Glycoproteins (gp120) and
diagnostic methods
U.S. Patent Application Ser. No. 07/602,846, T-
Lymphotrophic Virus proteins and antigens (SIV/HIV-2)
and diagnostic methods
U.S. Patent No. 5,068,174, T-Cell Lymphotrophic Virus
Protein (p27) and Assay
License Agreement between the President and fellows of
Harvard and CDC, dated October 29, 1993. (CBC has abandoned
the patent which is the subject of this Agreement.)
License Agreement among National Technical Information
Service, E.I. Du Pont de Nemours and Company and Biotech
Research Laboratories, Inc. dated June 19, 1984.
License Agreement with National Technical Information
Service dated February 1, 1989 relating to HIV-1 (Gallo
portfolio).
License Agreement dated June 15, 1988 with National
Technical information Service relating to HTLV-I
- 2 -<PAGE>
Royalty-Bearing Cross License Agreement, Royalty-Free Cross
License Agreement (and associated Agreements not to
Challenge) with Diagnostic Pasteur dated October 25, 1989,
covering the patents and patent applications identified
therein (the "DP HIV Technology").
Biological Material Transfer Agreement effective April 17,
1991 with the Centers for Disease Control/Center for
Infectious Disease (HIV-2 cell line)
License Agreement with Hugh Cottingham dated February 15,
1982, as amended, covering the patents and patent
application issuing therefrom (agglutinographic reaction
chamber and detection apparatus) including:
U.S. Des. Patent No. 355,493, Slide Immunoassay Detection
System
U.S. Patent No. 4,459,361, Ligand Assay with I or 2
Particulate Reagents, (1984)
U.S. Patent No. 4,806,015, Agglutination Detection
Apparatus, (1989)
U.S. Patent No. 07/984,231, T-Lymphotropic Virus (1985)
Methods of Conjugation of Proteins for FC Capture Assays, no
patent applied for.
2 The following agreements:
License Agreement between Syva Company, Syntex (U.S.A.)
Inc., and CBC dated June 29, 1992, covering the "Tom" patent
(U.S. Patent No. 4,366,241).
License Agreement between CBC and Syva Company dated
June 29, 1992.
Biomira-CBC License Agreement dated February 28, 1994
(relating to Biomira's cancer markers).
License Agreement between CBC and Biomira dated February 28,
1994.
License Agreement between CBC and ADI Diagnostics, Inc.
dated February 28, 1994 (hepatitis and syphilis antigens).
License Agreement between CBC and ADI Diagnostics, Inc.
dated February 28, 1994.
Selfcare/Galway Agreements dated November 30, 1993
pertaining to Sale of Irish Subsidiary and Related
Transactions (approved by Order of U.S. Bankruptcy Court on
November 14, 1994).
- 3 -<PAGE>
License, Supply and Development Agreement among CBC, Ortho
Diagnostics Systems Inc. and Chiron Corporation, dated
March 30, 1993 (relating to the following Harvard patents
licensed by CBC: 4,743,678; 5,045,448; 795,944; 664,972)
unless rejected at Purchaser's direction pursuant to Section
6.18 of the Agreement.
License Agreement between CBC and F. Hoffman-La Roche Ltd.,
dated March 29, 1991 (relating to the following patent
licensed by CBC: 4,596,695).
License Agreement between Hoffman-La Roche, Inc. and
Angenics, dated August 19, 1986 (relating to the following
patent licensed by CBC: 4,596,695).
License Agreement between Hoffman-La Roche, Inc. and
Angenics, dated July 23, 1986 (relating to the following
patent licensed by CBC: 4,597,944).
Sublicense Agreement between CBC and Abbott Laboratories,
dated December 2, 1988 (relating to the following Harvard
patents licensed by CBC: 4,725,669 and 056,134).
Sublicense Agreement between CBC and Abbott Laboratories,
dated June 30, 1992 (relating no the following Harvard
patents: 4,743,678 and 5,045,448).
Sublicense Agreement between CBC and Baxter International,
Inc., dated June 21, 1989 (relating to the following Harvard
patents licensed by CBC: 4,725,669 and 056,134).
Sublicense Agreement between CBC and Smithkline Beckman
Corporation, dated June 30, 1989 (relating to the following
Harvard patents licensed by CBC: 4,725,669 and 056,134)
Sublicense Agreement between CBC and Pharmacia ENI Diagnos-
tics, Inc., dated December 29, 1989 (relating to the
following Harvard patents licensed by CBC: 4,725,669;
056,134; and 795,997).
Sublicense Agreement between CBC and Becton, Dickinson and
Company, dated January 3, 1989 (relating to the following
Harvard patents licensed by CBC: 4,725,669 , 795,997 and
056,134).
Sublicense Agreement between CBC and Behringwerke
Aktiengesellschaft, dated September 30, 1989 (relating to
the following Harvard patents licensed by CBC: 4,725,669,
795,997 and 056,134).
Sublicense Agreement between CBC and IAF Biochem
International, Inc., dated June 26, 1991 (relating to the
following Harvard patents licensed by CBC: 4,725,669 and
056,134).
- 4 -<PAGE>
Sublicense Agreement between CBC and Progenics
Pharmaceuticals, Inc., dated March 17, 1995.
Sublicense Agreement between CBC and Urnotech Calypte
Biomedical Corporation, dated March 31, 1992 (relating to
the following Harvard patents licensed by CBC: 4,725,669 and
056,134).
Cross-License Agreement among CBC, Chiron Corporation and
The President and Fellows of Harvard College, dated
September 23, 1991 (relating to the following Harvard
patents licensed by CBC: 4,725,669 and 056,134).
Sublicense Agreement between CBC and Chiron Corporation,
dated August 21, 1992 (relating to the following Harvard
patents licensed by CBC: 4,725,669 and 056,134).
Sublicense Agreement between CBC and Genentech, Inc., dated
September 30, 1991 (relating to the following Harvard
patents licensed by CBC: 4,725,669 and 056,134).
Sublicense Agreement between CBC and Repligen Corporation,
dated April 4, 1990 (relating to the following Harvard
patents licensed by CBC: 4,725,669, and 056,134).
License and Sublicense Agreement between International Murex
Technologies Corp. and CBC, dated June 30, 1992 (relating to
the following Harvard patents licensed to CBC: 4,743,678 and
5,045,448).
License Agreement between Mitest Ltd. and CBC, dated
December 15, 1993 (relating to the following patents
licensed by CBC: 4,596,695 and 4,775,515).
Amended License Agreement between CBC and Pasteur Merieux
Serums & Vaccins, S.A., dated December 14, 1990 (relating to
CBC-owned patent: 4,734,362 and CBC-licensed Harvard patent
4,725,669).
Sublicense Agreement between MicroGeneSys, Inc., dated
February 29, 1996 (relating to the CDC-licensed Harvard
patent 4,725,669) (subject to the approval of the Bankruptcy
Court).
License Agreements among Angenics, Hugh V. Cottingham, and
Carter-Wallace, Inc., dated April 1, 1987.
3 Manufacturing and research and development trade
secrets and documentation relating to the Products.
4 Clones and seed stocks relating to the Products.
- 5 -<PAGE>
5 U.S. Patent No. 4,753,873, Peptides for the Diagnosis
of HTLV-III Antibodies, Their Preparation and Use; provided
that CBC shall grant to the Seller a paid-up worldwide non-
exclusive license, not sublicensable except as to
affiliates, to make, have made, use and sell products using
the patented technology in the diagnostic field.
6 All copyrights, trademarks and tradenames applicable to
or used in connection with the Products including the
following: RECOMBIGEN, CAPILLUS, and CAMBRIDGE BIOTECH and
"VIRUS" design. To the extent necessary, arrangements shall
be made for the Seller to receive rights to use the name
Recombigen in connection with Products for which it shall be
responsible.
F. All CBC's supply and distribution agreements relating to the
Products .
including the following:
Any distribution agreement with Ortho Diagnostic Systems
Inc. which CBC may enter into.
License, Supply and Development Agreement among CBC, Ortho
Diagnostic Systems, Inc. and Chiron Corporation, dated
March 30, 1993 (HTLV).
Material Transfer and License Agreement between CBC and
Ortho Diagnostic Systems, Inc., dated November 15, 1993.
Material Transfer and License Agreement between CBC and
Chiron Corporation, dated November 15, 1993.
Material Transfer Agreement between Ortho, Chiron and CBC
dated January 7, 1993.
Any distribution agreement with Dade Diagnostics Pty Ltd
which CBC may enter into.
Any agreement with Calypte Biomedical, relating to
modification of the HIV-1 Western Blot product for use with
urine samples and distribution of such product, which CBC
may enter into.
Any Agreement with Seradyn, Inc. relating to distribution of
HIV-1 Western blot products for use with urine samples.
Any agreement with Direct Access which CBC may enter into.
- 6 -<PAGE>
G. All books, records, ledgers, files, documents,
regulatory file histories, correspondence, lists, plats,
architectural plans, drawings and specifications, creative
materials, advertising, promotional or sales and marketing
materials, laboratory notebooks, vendor information,
studies, reports and other printed or written material or
documentation of CBC located in Worcester, Massachusetts and
Rockville, Maryland relating to (i) the development,
manufacture, use or sale of the Products or (ii) the Diag-
nostics Business.
H. CBC's equity interest in CBC Affiliate Corp. ("CAC").
I. Sublease Agreement between CBC and DynCorp, dated April
6, 1995 for 1,044 square feet of office and laboratory space
in a building located at 1 Taft Court, Rockville, Maryland.
As used above, the term "Diagnostics Business" refers to
(i)
such operations which relate to the line of screening
and confirmatory products directed to retroviruses and
other infectious diseases, except for (a) Lyme EIA
products, (b) enterics products to the extent rights
thereto are retained (c) diagnostic products for tick
borne diseases including human granulocytic
ehrlichiosis, and (d) CBC's animal health diagnostic
tests, but including, without limitation, HIV-1 Western
Blot (FDA-licensed), HIV-1 AP Western Blot, HIV-2
Western Blot, HTLV-1/IT Western Blot, HTLV-I EIA, HTLV-
I (rp21e) EIA, HTLV Envelope EIA, Recombigen HIV-1 LA,
Lyme IgM Western Blot, and Lyme IgG Western Blot,
recombinant antigen p21e, HIV-1 EIA, HIV-1/2 EIA,
Microtrak HIV-1 EIA and HIV-1/2 EIA and Recombigen HIV-
1 LA (Such line of included screening and confirmatory
products being referred to herein as the "Products").
(ii) all operations and the assets thereof of CBC
located in Rockville, Maryland and all assets of CBC
(a) utilized by CBC for the manufacture, use and sale
of the Products, and (b) relating to the intellectual
property identified in paragraph (iii) below (except,
in the case of (a) and (b), real property, plant and
equipment located in Worcester, Massachusetts and real
property located in Rockville, Maryland except to the
extent a leasehold interest therein is to be conveyed
to CBC, and
(iii) all CBC's patents, patent applications,
licenses, cross-licenses, and other intellectual
property, including, without limitation, trade secrets
and know-how, in the retroviral area, in respect of
HTLV-I and -II, and in respect of the Products
(excluding the License Agreement with Stanford
University dated August 1, 1988 (Cohen-Boyer
portfolio), and the Licnse Agreement with Genentech,
Inc. dated December 31, 1989 (methods of recombinant
production)), and certain intellectual property in
respect of hepatitis antigens from ADI, capillus patent
portfolio (subject to the provisions of Section 6.16(d)
hereof and Lyme Western Blots.
- 7 -
EXHIBIT E
SUMMARY OF RETROVIRAL BUSINESS PURCHASE AGREEMENT
Pursuant to the Retroviral Business Purchase Agreement, bioMerieux
has agreed to purchase from Aquila all of the outstanding stock of
CBC for $6,500,000. At closing, Reorganized CBC's assets will
consist principally of CBC's retroviral intellectual property and
CBC's manufacturing operations in Rockville, Maryland.
("Reorganized CBC" means CBC after acquisition thereof by
bioMerieux).
In summary, the transaction is as follows:
Price: $6,500,000 cash, paid to Aquila at
closing, in consideration of all of the
outstanding stock in CBC.
Lease: bioMerieux will lease from Aquila
approximately 40,300 square feet of
manufacturing and laboratory space
located in Rockville, Maryland. The
lease term is ten years with an
opportunity to extend thereafter at fair
market value. The per foot rental rate,
triple net, is $11.50 for the first three
years, $12.50 for the next four years,
and $13.50 for the last three years.
bioMerieux also has an option to purchase
Aquila's Rockville, Maryland real estate
at fair market value.
Principal Assets: The assets of the retroviral business at
the time of sale are set forth in detail
in Exhibit D to the Plan. In summary,
the principal assets are as follows:
Products Manufactured in Rockville: CBC manufactures in
Rockville the following FDA-licensed products: HIV-1 Western
Blot and HTLV-I (rp21e-enhanced) EIA. In addition, CBC has
product license applications pending with the FDA for Western
blots for HIV-2 and HTLV-I and an amendment to its HIV-1
Western Blot license to permit use of urine samples. CBC has
recently completed development of two Western blot products
for the diagnosis of Lyme disease. Under bioMerieux
ownership, Reorganized CBC is expected to continue to
commercialize these products and is leasing the necessary
facilities in Rockville, including viral lysate manufacturing
laboratories and manufacturing suites for the EIA and Western
blot products.<PAGE>
Products Manufactured in Worcester: CBC manufactures in
Worcester the following FDA-licensed products: Recombigen
HIV-1 EIA and Syva MicroTrak HIV-1 EIA. In addition, CBC has
product license applications pending with the FDA for
Recombigen HIV-1/2 EIA and Syva MicroTrak HIV-1/2 EIA. After
bioMerieux acquires the stock of CBC, ownership of the
intellectual property necessary for these assets will remain
with Reorganized CBC, but the equipment and manufacturing
assets used for production of these products in Worcester
will remain with Aquila. Under contract between Reorganized
CBC and Aquila, Aquila will continue to manufacture some of
these products for existing CBC customers for a limited time.
CBC manufactures its recombinant diagnostic antigens in
Worcester. After bioMerieux acquires the CBC stock, Aquila,
as operator of the Worcester facility will supply one of
these antigens in bulk to Reorganized CBC during 1996.
Intellectual Property: By purchasing all of the outstanding
stock of CBC, bioMerieux will acquire all of CBC's diagnostic
intellectual property relating to retroviruses. This
includes, among other things, CBC's patented CBre3 antigen
for detection of HIV-1; exclusive licenses from Harvard
University relating to HIV-1 and HTLV-I; licenses from Sanofi
Diagnostic Pasteur relating to HIV-1 and HIV-2; licenses from
the National Institutes of Health relating to HIV-1 and HTLV-
I; a license from the Centers for Disease Control relating to
HIV-2; and a license from Hugh Cottingham relating to rapid
testing by latex agglutination. Reorganized CBC will also
continue to hold relevant seed stocks, clones, and
manufacturing documentation.
Business Relationships: Reorganized CBC will assume rights
and obligations under various supply and distribution
agreements. At present, it is expected these will include
arrangements with Ortho Diagnostic Systems.
Excluded Assets: Excluded from the purchase is CBC's
enterics diagnostics business, its Lyme disease EIA test, any
assets included in the biopharmaceutical business, and any
assets physically located in CBC's Worcester facility.
As part of the Chapter 11 reorganization process, bioMerieux
will acquire CBC free of all pre-existing liabilities except
certain liabilities which bioMerieux has agreed to assume and
certain other potential liabilities with respect to which
Aquila has agreed to indemnify bioMerieux.
Aquila will have certain ongoing support obligations to
Reorganized CBC. Aquila also will supply Reorganized CBC with
certain proteins up to the end of 1996. Aquila also will provide
certain management information systems support services.
EXHIBIT F
AQUILA BIOPHARMACEUTICALS, INC.
a Delaware corporation
and
THE FIRST NATIONAL BANK OF BOSTON
RIGHTS AND WARRANTS AGREEMENT
TABLE OF CONTENTS
ARTICLE I - RIGHTS AGENT
1.1. Appointment as Rights Agent
1.2. Form of Rights Certificates
1.3. Issuance of Rights Certificates
1.4. Exercise of Rights
1.5 Oversubscription Procedures
1.6 Rules Applicable to Exercise
1.7. Subdivision and Transfer of Rights
1.8. Mutilated or Missing Rights Certificates
1.9. Information Provided to the Company
ARTICLE II - ESCROW
2.1. Establishment of Escrow Account
2.2. Escrow Period
2.3. Collection Procedure
2.4. Cancellation of Rights Offering; Return of Funds
ARTICLE III - WARRANT AGENT
3.1. Appointment As Warrant Agent
3.2. Form of Warrant
3.3. Issuance of Warrants; Registration
3.4. Exercise of Warrants
3.5. Transfers and Exchanges
3.6. Mutilated or Missing Warrants
3.7. Payment of Taxes
3.8. Reservation of Common Stock
3.9. Warrant Exercise Price Adjustments
3.10. Fractional Interest
3.11. Notices to Warrantholders
3.12. Redemption of Warrants
3.13. Disposition of Proceeds on Exercise of Warrants
ARTICLE IV - MISCELLANEOUS
4.1. Definitions
4.2. Duties of FNBB
4.3. Merger or Consolidation or Change of Name of FNBB
4.4. Change of Warrant Agent
4.5. Identity of Transfer Agent
4.6. Legal Counsel
4.7. Compensation for Services
4.8. Notices
4.9. Supplements and Amendments
4.10. Governing Law
4.11. Benefits of this Agreement
4.12. Successors <PAGE>
RIGHTS AND WARRANTS AGREEMENT
RIGHTS AND WARRANTS AGREEMENT ("Agreement") dated as of
July 29, 1996, by and between AQUILA BIOPHARMACEUTICALS, INC., a
Delaware corporation (the "Company"), and THE FIRST NATIONAL BANK
OF BOSTON, a national bank, (referred to herein, variously, as
"FNBB," the "Rights Agent," and the "Warrants Agent" as the
circumstances require). (Certain capitalized terms used herein
are defined in Section 4.1)
W I T N E S S E T H:
WHEREAS, the Company intends to issue up to a maximum of
5,000,000 rights (the "Rights") to its holders of Claims and
Interests who receive Common Stock pursuant to the confirmed Plan
of Reorganization in Case 94-43054-JFQ in the United States
Bankruptcy Court for the District of Massachusetts (the "Plan")
entitling them to purchase a Unit consisting of one share of its
Common Stock, and one warrant to purchase a share of common stock
(a "Warrant"), for each share of Common Stock held of record on
the Consummation Date (the "Rights Offering"); and
WHEREAS, the Company desires that FNBB act on behalf of the
Company, and FNBB is willing to so act, in various capacities
herein described in connection with the Rights Offering; and
NOW THEREFORE, for good and valuable consideration, receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I - RIGHTS AGENT
1.1. Appointment as Rights Agent. The Company hereby
appoints FNBB to act as Rights Agent in connection with the Rights
Offering, and FNBB hereby accepts such appointment.
1.2. Form of Rights Certificates. The Rights Certificates
shall be substantially in the form annexed hereto as Exhibit A
(the provisions of which are hereby incorporated herein). The
Rights Certificates shall be dated the date of issuance thereof
(whether upon initial issuance, transfer, exchange or in lieu of
mutilated, lost, stolen or destroyed Rights Certificates).
1.3. Issuance of Rights Certificates.
(a) Upon written order of or on behalf of the Company, on
the Initial Distribution Date the Rights Agent shall mail or
deliver Rights Certificates to those persons entitled to receive
Common Stock pursuant to the Plan. During the Rights Exercise
Period, the Rights Agent shall issue Rights Certificates in whole
number denominations to the person entitled thereto in connection
with any partial exercise, transfer or exchange permitted under<PAGE>
this Agreement to the extent there is sufficient time to do so
prior to the end of the Rights Exercise Period.
(b) The Rights Agent shall keep a register of the registered
holders reflecting the ownership of all Rights Certificates and
the transfer and exchange thereof. Except as provided in this
Agreement, no Rights Certificates shall be issued during the
Rights Exercise Period, except (i) Rights Certificates initially
issued hereunder, (ii) Rights Certificates issued, upon the
exercise of any Rights, to evidence unexercised Rights held by the
exercising registered holder and (iii) Rights Certificates issued
upon any transfer or exchange of Rights, or in lieu of mutilated,
lost, stolen or destroyed Rights Certificates. No Rights
Certificates shall be issued after the Right Exercise Period.
(c) All Rights Certificates surrendered to the Rights Agent
shall be promptly cancelled by the Rights Agent and thereafter
retained by it for one year, and then shall be delivered to the
Company.
1.4. Exercise of Rights.
(a) The Rights represented by Rights Certificates may be
exercised at any time on or after the Initial Distribution Date,
but not after 5:00 p.m., Eastern Time on the last day of the
Rights Exercise Period, upon the terms and subject to the
conditions set forth herein, in the Plan and in the Rights
Certificates. Payment must be made in cash or by check, bank
certified or bank check or wire transfer payable to the order of
"First National Bank of Boston" in an amount of lawful money of
the United States of America equal to the Rights Exercise Price of
the Rights exercised.
(b) A Rights Certificate shall be deemed to have been
properly exercised if before the end of the Rights Exercise Period
a properly completed and signed Rights Certificate has been
deposited with a bank, trust company, or member firm of the New
York Stock Exchange, American Stock Exchange or National
Association of Securities Dealers, Inc., and the Rights Agent has
received a notice, by mail, telegraph or telefax from such bank,
trust company or member firm that: (i) sets forth the name of the
holder of the Rights Certificate(s), the serial number(s) of the
Rights Certificate(s) being exercised, and the number of Units
represented by the Rights Certificate to be purchased, (ii)
specifies the number of Units, if any, for which Oversubscription
Rights are exercised, (iii) guarantees payment of the full Rights
Exercise Price for all Units subscribed, including the
Oversubscription Units, and (iv) states that the Rights
Certificate has been properly completed and signed and has been or
will be promptly forwarded to the Rights Agent by such bank, trust
company, or member firm. Rights exercised in this manner will be
included in the Rights Offering only if the properly completed
Rights Certificate(s) and full payment are received within three
Business Days after the Rights Expiration Date.
- 2 -<PAGE>
(c) The Rights Agent will date and time stamp, upon receipt,
all documents received by it as Rights Agent. The Rights Agent
shall examine the Rights Certificates and other documents
delivered or mailed to the Rights Agent by or for shareholders of
the Company to ascertain whether (i) the Rights Certificates are
properly completed and duly executed in accordance with the
instructions set forth herein, (ii) the proper payment accompanies
the Rights Certificates, (iii) any other necessary documents are
properly completed and duly executed. The Rights Agent need not
pass on the legal sufficiency of any signature or verify any
signature guarantee. The Rights Agent is authorized, upon
consultation with the Company or one or more of its
representatives, to request from any person exercising Rights such
additional undertakings as the Rights Agent may deem appropriate.
The Rights Agent is not authorized to accept any alternative,
conditional or contingent purchase, or any purchase of fractional
Units.
(d) Once a registered holder of Rights has delivered or
mailed a completed Rights Certificate, the exercise of the Rights
represented thereby is not revocable for any reason.
1.5. Oversubscription Procedures
(a) If less than all Units are subscribed for through
exercise of the Rights represented by the Rights Certificates, the
Rights Agent shall allocate the unsubscribed Units among those
Eligible Rights Holders who in the exercise of their Rights
elected to purchase additional Units by completing the
Oversubscription election. Within five Business Days after
expiration of the Rights Exercise Period, the Rights Agent shall
notify those Eligible Rights Holders who exercised
Oversubscription Rights of the additional number of Units
allocated to them. All such subscribers shall have until 5:00
p.m. Eastern Time on the tenth Business Day after expiration of
the Rights Exercise Period to make full payment of the
subscription price for each Unit subscribed for pursuant to the
Oversubscription Rights in the same manner as for Rights
represented by the Rights Certificate under Section 1.4(b) hereof.
(b) Only an Eligible Rights Holder shall be eligible to
exercise Oversubscription Rights.
(c) If the aggregate number of Units subscribed for through
the exercise of Oversubscription Rights is more than the number of
Units available for purchase, the available Units will be
apportioned among the Eligible Rights Holders who exercised the
Oversubscription Rights in proportion to the number of basic
Rights originally issued by the Company to, and exercised by, each
through repeated application of the proration procedure described
in the next paragraph. Each time the procedure is applied, the
"Number of Available Units" shall mean the number of Units not
apportioned by prior applications of the procedures described
therein.
- 3 -<PAGE>
(d) The Number of Available Units shall be apportioned among
all those Eligible Rights Holders who have not yet been
apportioned (through previous applications of this procedure) the
full number of Units subscribed for by them in their respective
exercises of Oversubscription Rights. Apportionment among them
shall be based on the ratio of the number of basic Rights
originally issued by the Company to, and exercised by, each;
provided however, that if the number of Units so apportioned to
any Eligible Rights Holder exceeds the number of Units subscribed
for by that Eligible Rights Holder's exercise of Oversubscription
Rights, then the excess shall not be apportioned, and that
Eligible Rights Holder shall thereafter not be apportioned any
additional Units should there be further applications of this
procedure. This procedure shall be repeated until either (i) the
Number of Available Units is zero, or (ii) a sufficient number of
Units has been apportioned to all Eligible Rights Holders to
satisfy all of their exercised Oversubscription Rights, whichever
occurs first.
(e) Notwithstanding the preceding proration procedures, in
no event shall any Eligible Rights Holder be able to purchase
through the exercise of Oversubscription Rights a number of Units
greater than the number which would result in that person owning
of record a number of shares of Common Stock equal to fifteen
percent (15%) of the total of (i) the number of shares of Common
Stock outstanding on the last day of the Rights Exercise Period,
plus (ii) the shares included in the Units purchased in the Rights
Offering (but before taking into account shares issuable upon
exercise of the Warrants), plus (iii) the number of shares
reserved for issuance under options which are outstanding as of
the last day of the Rights Exercise Period, unless the limitation
is waived by Aquila. Any Eligible Rights Holder whose
subscription would otherwise cause it to exceed the fifteen
percent (15%) limitation shall have its subscription treated as
having been for a number sufficient only to bring it to fifteen
percent (15%).
1.6 Rules Applicable to Exercise
(a) The Rights Agent shall direct the Transfer Agent to
issue certificates for the Shares and Warrants purchased in the
Rights Offering not later than the Closing Date specified in
Section 2.3, provided that the Rights Agent shall have previously
received good funds in the amount of the Rights Exercise Price
therefor. No Rights holder, as such, shall be a shareholder with
respect to such Shares and no such Shares shall be deemed to be
outstanding until such Shares are issued in accordance herewith.
(b) The Company shall not issue any fractional Rights nor
any fractional Units upon exercise of a Rights Certificate. In
the event that payment is submitted in an amount less than the
Rights Exercise Price for the Rights intended to be exercised,
only the number of whole Units for which payment was received will
be issued. If a holder of Rights exercises for fewer than all of
- 4 -<PAGE>
the Units to which his Rights Certificate applies, the Rights
Agent shall issue a new Rights Certificate representing the
balance of the unsubscribed Rights, to the extent that there is
sufficient time to do so prior to the expiration of the applicable
Rights Exercise Date.
(c) The Company shall pay all federal and state transfer
taxes required to be paid on the issuance of Rights or of Units,
Common Stock or Warrants upon exercise of Rights.
(d) The Rights Agent shall promptly notify the Company of
any irregularities in any documents related to exercise of Rights
received by the Rights Agent. All questions as to the validity,
form, eligibility (including times of receipt and matters
pertaining to the beneficial ownership) and the acceptance of
subscriptions and payment of the Rights Exercise Price will be
determined by the Company, which determinations will be final and
binding. No alternative, conditional or contingent exercises of
Rights will be accepted. The Company reserves the absolute right
to reject any or all exercises of Rights not properly submitted or
the acceptance of which would, in the opinion of the Company's
counsel, be unlawful. The Company also reserves the right to
waive any irregularities or conditions, and the Company's
interpretations of the terms and conditions of the Rights Offering
shall be final and binding. Any irregularities in connection with
exercises of Rights must be cured within such time as the Company
shall determine, unless waived. Rights will not be deemed to have
been exercised until such irregularities have been cured or
waived. Rights Certificates received by the Rights Agent that are
not properly submitted and as to which the irregularities have not
been cured or waived shall be returned by the Rights Agent to the
appropriate holder of the Rights, to the extent there is
sufficient time to do so prior to the expiration of the applicable
Rights Exercise Period; and funds submitted with such Rights
Certificates shall be returned without interest by the Rights
Agent to such holder.
(e) The Rights Agent will follow and act upon any
amendments, modifications or supplements to these instructions,
and upon any further information in connection with the terms of
the Rights Offering, any of which may be given to the Rights Agent
by the Company or by its legal counsel, including instructions
with respect to (i) any extension or other modifications of the
Rights Offering, (ii) the amount or manner of payment for any
Units purchased, and (iii) the cancellation of the Rights
Offering.
(f) If the Company determines to reduce the Rights Exercise
Price as permitted by the Plan, to the extent practicable and
permissable under applicable rules, including those of the
Depository Trust Company, the Rights Agent shall recalculate the
number of Units purchasable at the reduced price with subscription
monies received on Rights already exercised and shall issue any
resulting additional share certificates or Warrants in accordance
- 5 -<PAGE>
with the terms hereof; otherwise it will return the extra funds
without interest to the exercising Rights Holder.
1.7. Subdivision and Transfer of Rights.
(a) Subject to any provisions to the contrary contained in
this Agreement, Rights Certificates may be subdivided into other
Rights Certificates representing an equal aggregate number of
Rights. Rights Certificates to be subdivided shall be surrendered
to the Rights Agent, and the Rights Agent shall deliver in
exchange therefor in denominations of 100 Rights (or multiples
thereof), as requested by the registered holder thereof, Rights
Certificates representing the Rights which the registered holder
making the exchange shall be entitled to receive; provided,
however, that the Rights Agent may issue, in response to requests
for subdivision, two but not more than two Rights Certificates of
a denomination that is not a multiple of 100.
(b) Rights may be transferred in whole by endorsing the
Rights Certificate for transfer. Rights may be transferred in
part by delivering to the Rights Agent a Rights Certificate which
has been properly endorsed for transfer, with instructions to
reissue the Rights in part in the name of the transferee and
reissue the balance to the registered holder thereof or an
additional transferee. The Rights Certificate must be received by
the Rights Agent by the close of business on the second Business
Day prior to the expiration of the applicable Rights Exercise
Period for a Rights Certificate to be reissued upon transfer or
subdivision.
(c) Prior to due presentment for registration of transfer
thereof, the Company and the Rights Agent may deem and treat the
registered holder of any Rights Certificate as the absolute owner
thereof and of each Right represented thereby (notwithstanding any
notation of ownership or writing thereon made by anyone other than
the Company or the Rights Agent) for all purposes and shall not be
affected by any notice to the contrary.
1.8. Mutilated or Missing Rights Certificates. In case any
of the Rights Certificates shall be mutilated, lost, stolen or
destroyed, the Company may, in its discretion, issue and the
Rights Agent shall countersign and deliver in exchange and
substitution for and upon cancellation of the mutilated Rights
Certificate, or in lieu of and in substitution for the Rights
Certificate lost, stolen or destroyed, a new Rights Certificate of
like tenor and representing an equivalent right or interest, but
only upon receipt of evidence satisfactory to the Company and the
Rights Agent of such loss, theft or destruction and, in case of a
lost, stolen or destroyed Rights Certificate, indemnity, if
requested, also satisfactory to them. Applicants for such
substitute Rights Certificates shall also comply with such other
reasonable regulations and pay such reasonable charges as the
Company or the Rights Agent may prescribe.
- 6 -<PAGE>
1.9. Information Provided to the Company.
(a) The Rights Agent will record and hold all Rights
Certificates received by it and promptly notify the Company by
facsimile after the close of business on each Business Day as to
the total number of Units covered by Rights exercised on such day
and the cumulative number of Units exercised and funds received
through the time of such call. The Company's facsimile number for
such reports is 508-751-5585.
(b) In addition, the Rights Agent will also provide, and
will cooperate in making available to the Company, upon oral
request made from time to time, such other information as the
Company may reasonably request.
ARTICLE II - ESCROW
2.1. Establishment of Escrow Account. On or prior to the
date of commencement of the Rights Offering, the Company shall
establish an interest-bearing escrow account with State Street
Bank & Trust Company, as Escrow Agent, which escrow account shall
be entitled "Aquila Biopharmaceuticals, Inc. Rights Offering
Escrow Account" (the "Escrow Account"). Subscribers in the Rights
Offering shall be directed to make checks for subscriptions
payable to the order of the Rights Agent.
2.2. Escrow Period. The period during which funds shall
remain in escrow (the "Escrow Period") with respect to the Rights
Exercise Period shall begin with the commencement of the Rights
Offering and shall terminate upon the earlier to occur of the
following dates:
(a) The date which shall not be later than ten Business Days
after (i) the last day of the Rights Exercise Period, or (ii) the
later expiration of the Oversubscription Period in Section 1.5
above, on which the Rights Agent directs the Transfer Agent to
issue the certificates for shares and Warrants purchased under
Sections 1.4 and 1.5 hereof and release the purchase price for
such certificates to the Company ("Closing Date"); or
(b) The date upon which the Rights Offering is cancelled.
During the Escrow Period, the Company shall not be entitled
to any funds received into escrow and no amounts deposited in the
Escrow Account shall become the property of the Company or any
other entity, or be subject to the debts of the Company or any
other entity.
2.3. Collection Procedure. If the Rights Agent rejects any
Rights exercise (including any Oversubscription) for which the
Escrow Agent has already collected funds, the Escrow Agent shall
promptly issue a refund check to the rejected subscriber. If the
Rights Agent rejects any Rights exercise for which the Escrow
- 7 -<PAGE>
Agent has not yet collected funds but has submitted the
subscriber's check for collection, the Escrow Agent shall promptly
issue a check in the amount of the subscriber's check to the
rejected subscriber after the Escrow Agent has cleared such funds.
If the Escrow Agent has not yet submitted a rejected subscriber's
check for collection, the Escrow Agent shall promptly remit the
subscriber's check directly to the subscriber.
2.4. Cancellation of Rights Offering; Return of Funds. In
the event the Rights Offering is withdrawn for any reason, upon
the Company's direction, the Rights Agent shall direct the Escrow
Agent to refund to each subscriber the amount received from the
subscriber.
ARTICLE III - WARRANT AGENT
3.1. Appointment As Warrant Agent. The Company hereby
appoints the FNBB to act as Warrant Agent for the Company in
accordance with the instructions hereinafter set forth, and FNBB
hereby accepts such appointment.
3.2. Form of Warrant.
(a) The text of the Warrants and of the form of election to
purchase Common Stock to be printed on the reverse thereof shall
be substantially as set forth in Exhibit B attached hereto.
3.3. Issuance of Warrants; Registration.
(a) Warrants shall be dated as of the date of issuance by
the Warrant Agent, either upon initial issuance or upon transfer
or exchange. The Warrants shall be executed on behalf of the
Company by the manual or facsimile signature of the present
Chairman of the Board or Vice Chairman of the Board or any future
President or Vice President of the Company, attested to by the
manual or facsimile signature of the present or any future
Secretary or Assistant Secretary of the Company.
(b) The Warrant Agent shall maintain books for the transfer
and registration of Warrants. Upon the initial issuance of the
Warrants, the Warrant Agent shall issue and register the Warrants
in the names of the respective holders thereof. The Warrants
shall be countersigned manually or by facsimile by the Warrant
Agent (or by any successor to the Warrant Agent then acting as
warrant agent under this Agreement) and shall not be valid for any
purpose unless so countersigned. Warrants may, however, be so
countersigned by the Warrant Agent (or by its successor as Warrant
Agent) and be delivered by the Warrant Agent, notwithstanding that
the persons whose manual or facsimile signatures appear thereon as
proper officers of the Company shall have ceased to be such
officers at the time of such countersignature or delivery.
3.4. Exercise of Warrants.
- 8 -<PAGE>
(a) Subject to the provisions of this Agreement, each
registered holder of Warrants shall have the right, which may be
exercised commencing on the date of issuance and continuing until
the Warrant Expiration Date, to purchase from the Company (and the
Company shall issue and sell to such registered holder of
Warrants) the number of fully paid and non-assessable shares of
Common Stock specified in such Warrants upon surrender of such
Warrants to the Company at the office of the Warrant Agent, with
the form of election to purchase on the reverse thereof duly
filled in and signed, and upon payment to the Company of the
Warrant Exercise Price for the number of shares of Common Stock in
respect of which such Warrants are then exercised. Payment of
the Warrant Exercise Price shall be made in cash or by certified
check or bank draft to the order of the Company.
(b) Subject to Section 3.7 and any applicable Federal or
state securities law restrictions, upon surrender of Warrants and
payment of the Warrant Exercise Price, the Company shall issue and
cause to be delivered with all reasonable dispatch to or upon the
written order of the registered holder of such Warrants and in
such name or names as such registered holder may designate, a
certificate or certificates for the number of full shares of
Common Stock so purchased upon the exercise of such Warrants.
Such certificate or certificates shall be deemed to have been
issued and any person so designated to be named therein shall be
deemed to have become a holder of record of such shares of Common
Stock as of the date of the surrender of such Warrants and payment
of the Warrant Exercise Price as aforesaid.
(c) The rights of purchase represented by the Warrants shall
be exercisable, at the election of the registered holders thereof,
either as an entirety or from time to time for a portion of the
shares of Common Stock specified therein and, in the event that
any Warrant is exercised in respect of less than all of the shares
of Common Stock specified therein at any time prior to the Warrant
Expiration Date, a new Warrant or Warrants will be issued to the
registered holder for the remaining number of shares of Common
Stock specified in the Warrant so surrendered, and the Warrant
Agent is hereby irrevocably authorized to countersign and to
deliver the required new Warrants pursuant to the provisions of
this Section and of Section 3.3 of this Agreement and the Company,
whenever requested by the Warrant Agent, will supply the Warrant
Agent with Warrants duly executed on behalf of the Company for
such purpose.
3.5. Transfers and Exchanges. The Warrant Agent shall
transfer on and after the Closing Date any outstanding Warrants
upon the books to be maintained by the Warrant Agent for that
purpose, upon surrender thereof for transfer properly endorsed or
accompanied by appropriate instructions for transfer. Upon any
such transfer, a new Warrant shall be issued to the transferee and
the surrendered Warrant shall be cancelled by the Warrant Agent.
Warrants so cancelled shall be delivered by the Warrant Agent to
the Company from time to time upon request. Warrants may be
- 9 -<PAGE>
exchanged at the option of the holder thereof, when surrendered at
the office of the Warrant Agent, for another Warrant, or other
Warrants of different denominations of like tenor and representing
in the aggregate the right to purchase a like number of shares of
Common Stock.
3.6. Mutilated or Missing Warrants. In case any of the
Warrants shall be mutilated, lost, stolen or destroyed, the
Company may, in its discretion, issue and the Warrant Agent shall
countersign and deliver in exchange and substitution for and upon
cancellation of the mutilated Warrant, or in lieu of and in
substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and representing an equivalent right or
interest, but only upon receipt of evidence satisfactory to the
Company and the Warrant Agent of such loss, theft or destruction
and, in case of a lost, stolen or destroyed Warrant, indemnity, if
requested, also satisfactory to them. Applicants for such
substitute Warrants shall also comply with such other reasonable
regulations and pay such reasonable charges as the Company or the
Warrant Agent may prescribe.
3.7. Payment of Taxes. The Company will pay any documentary
stamp taxes attributable to the initial issuance of Common Stock
issuable upon the exercise of Warrants; provided, however, that
the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issue or
delivery of any certificates of shares of Common Stock in a name
other than that of the registered holder of Warrants in respect of
which such shares are issued, and in such case, neither the
Company nor the Warrant Agent shall be required to issue or
deliver any certificate for shares of Common Stock or any Warrant
until the person requesting the same has paid to the Company the
amount of such tax or has established to the Company's
satisfaction that such tax has been paid.
3.8. Reservation of Common Stock. There have been reserved,
and the Company shall at all times keep reserved, out of the
authorized and unissued shares of Common Stock, a number of shares
of Common Stock sufficient to provide for the exercise of the
rights of purchase represented by the Warrants, and the transfer
agent for the shares of Common Stock and every subsequent transfer
agent for any shares of the Company's Common Stock issuable upon
the exercise of the Warrants are irrevocably authorized and
directed at all times to reserve such number of authorized and
unissued shares of Common Stock as shall be required for such
purpose. The Company agrees that all shares of Common Stock
issued upon exercise of the Warrants shall be, at the time of
delivery of the certificates for such shares, validly issued and
outstanding, fully paid and nonassessable and shall be listed on
any national securities exchange or automated stock trading system
upon which the other shares of Common Stock are then listed. The
Company will keep a copy of this Agreement on file with the
transfer agent for the shares of Common Stock and with every
subsequent transfer agent for any shares of the Company's Common
- 10 -<PAGE>
Stock issuable upon the exercise of the rights of purchase
represented by the Warrants. The Warrant Agent is irrevocably
authorized to requisition from time to time from such transfer
agent stock certificates required to honor outstanding Warrants.
The Company will supply such transfer agent with duly executed
stock certificates for that purpose. All Warrants surrendered in
the exercise of the rights thereby evidenced shall be cancelled by
the Warrant Agent and shall thereafter be delivered to the
Company, and such cancelled Warrants shall constitute sufficient
evidence of the number of shares of Common Stock which have been
issued upon the exercise of such Warrants. Promptly after the
Warrant Expiration Date, the Warrant Agent shall certify to the
Company the total aggregate amount of Warrants then outstanding,
and thereafter no shares of Common Stock shall be subject to
reservation in respect of such Warrants which shall have expired.
3.9. Warrant Exercise Price Adjustments.
(a) Price Adjustment. The Warrant Exercise Price shall
be subject to adjustment from time to time as follows:
(i) In case the Company shall at any time after
the date hereof pay a dividend in shares of Common Stock or make a
distribution in shares of Common Stock, then upon such dividend or
distribution the Warrant Exercise Price in effect immediately
prior to such dividend or distribution shall forthwith be reduced
to a price determined by dividing:
(A) an amount equal to the total number of
shares of Common Stock outstanding immediately prior to such
dividend or distribution multiplied by the Warrant Exercise Price
in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Common
Stock outstanding immediately after such issuance or sale.
For the purposes of any computation to be made in accordance
with the provisions of this clause (i), Common Stock issuable by
way of dividend or other distribution on any stock of the Company
shall be deemed to have been issued immediately after the opening
of business on the date following the date fixed for the
determination of stockholders entitled to receive such dividend or
other distribution.
(ii) In case the Company shall at any time
subdivide or combine the outstanding Common Stock, the Warrant
Exercise Price shall forthwith be proportionately decreased in the
case of subdivision or increased in the case of combination to the
nearest one cent. Any such adjustment shall become effective at
the time such subdivision or combination shall become effective.
(b) Share Adjustment. In the event that the number
of outstanding shares of Common Stock is increased by a stock
- 11 -<PAGE>
dividend payable in Common Stock or by a subdivision of the
outstanding Common Stock, then, from and after the time at which
the adjusted Warrant Exercise Price becomes effective pursuant to
paragraph (a) of this Section by reason of such dividend or
subdivision, the number of shares of Common Stock issuable upon
the exercise of each Warrant shall be increased in proportion to
such increase in outstanding shares. In the event that the
number of shares of Common Stock outstanding is decreased by a
combination of the outstanding Common Stock, then, from and after
the time at which the adjusted Warrant Exercise Price becomes
effective pursuant to paragraph (a) of this Section by reason of
such combination, the number of shares of Common Stock issuable
upon the exercise of each Warrant shall be decreased in proportion
to such decrease in the outstanding shares of Common Stock.
(c) Reorganization. In the case of any
reorganization or reclassification of the outstanding Common Stock
(other than a change in par value, or from par value to no par
value, or as a result of a subdivision or combination), or in case
of any consolidation of the Company with, or merger of the Company
into, another corporation, or in case of any sale or conveyance to
another corporation of the property of the Company as an entirety
or substantially as an entirety, the holder of each Warrant then
outstanding shall thereafter have the right to purchase the kind
and amount of shares of Common Stock and other securities and
property receivable upon such reorganization, reclassification,
consolidation, merger, sale or conveyance by a holder of the
number of shares of Common Stock which the holder of such Warrant
shall then be entitled to purchase; such adjustments shall apply
with respect to all such changes occurring between the date of
this Agreement and the date of exercise of such Warrant. If, at
any time, as a result of an adjustment made pursuant to this
paragraph, the holders of a Warrant or Warrants shall become
entitled to purchase any securities other than shares of Common
Stock, thereafter the number of such securities so purchasable
upon exercise of each Warrant and the Warrant Exercise Price for
such shares shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in
paragraphs (a) and (b).
(d) Calculation of Adjustments. The following
provisions shall apply with respect to any adjustments under
paragraphs (a)-(c) above:
(i) Within a reasonable time after the close of
each quarterly fiscal period of the Company during which the
Warrant Exercise Price has been adjusted as provided in paragraph
(a), the Company shall file with the Warrant Agent a certificate
signed by the President, Vice President, the Treasurer or
Assistant Treasurer or the Secretary or an Assistant Secretary of
the Company, showing in detail the facts requiring all such
adjustments occurring during such period and the Warrant Exercise
Price after each such adjustments.
- 12 -<PAGE>
(ii) The Company may retain a firm of independent
public accountants (who may be any such firm regularly employed by
the Company) to make any computation required under this Section,
and any certificate setting forth such computation signed by such
firm shall be conclusive evidence of the correctness of any
computation made under this Section.
(iii) Notwithstanding anything contained herein
to the contrary, no adjustment of the Warrant Exercise Price shall
be made if the amount of such adjustment shall be less than $.10,
but in such case any adjustment that would otherwise be required
then to be made shall be carried forward and shall be made at the
time and together with the next subsequent adjustment which,
together with any adjustment so carried forward, shall amount to
not less than $.10.
(iv) The Warrant Agent shall have no duty with
respect to any such certificate filed with it except to keep the
same on file and available for inspection by holders of Warrants
during reasonable business hours, and the Warrant Agent may
conclusively rely upon the latest certificate furnished to it
hereunder. The Warrant Agent shall not at any time be under any
duty or responsibility to any holder of a Warrant to determine
whether any facts exist which may require any adjustment of the
Warrant Exercise Price, or with respect to the nature or extent of
any adjustment of the Warrant Exercise Price when made, or with
respect to the method employed in making any such adjustment, or
with respect to the nature or extent of the property or securities
deliverable hereunder. In the absence of a certificate having
been furnished, the Warrant Agent may conclusively rely upon the
provisions of the Warrants with respect to the Common Stock
deliverable upon the exercise of the Warrants and the applicable
Warrant Exercise Price thereof.
(e) Any adjustment pursuant to this Section 3.9 shall
be made on the basis of the number of shares of Common Stock which
the holder of the Warrant would have been entitled to acquire by
the exercise of the Warrant immediately prior to the event giving
rise to such adjustment.
(f) Irrespective of any adjustments in the Warrant
Exercise Price or the number or kind of shares purchasable upon
exercise of the Warrants, Warrants previously or thereafter issued
may continue to express the same price and number and kind of
shares as are stated in the similar Warrants initially issuable
pursuant to this Agreement.
(g) Dissolution. In case of the dissolution,
liquidation or winding up of the Company, all rights under the
Warrants shall terminate on a date fixed by the Company, such date
to be no earlier than ten (10) days prior to the effectiveness of
such dissolution, liquidation or winding up and not later than
five (5) days prior to such effectiveness. Notice of such
termination of purchase rights shall be given to the last
- 13 -<PAGE>
registered holder of the Warrants, as the same shall appear on the
books of the Company maintained by the Warrant Agent, by
registered mail at least thirty (30) days prior to such
termination date.
(h) Subscription Offering. In case the Company shall,
at any time prior to the expiration of the Warrants and prior to
the exercise thereof, offer to the holders of its Common Stock any
rights to subscribe for additional shares of any class of the
Company (other than the Rights under Article I hereof), then the
Company shall give written notice thereof to the last registered
holder of the Warrants not less than ten (10) days prior to the
date on which the books of the Company are closed or a record date
is fixed for the determination of the stockholders entitled to
such subscription rights. Such notice shall specify the date as
which the books shall be closed or the record date fixed with
respect to such offer of subscription and the right of the holder
of the Warrant to participate in such offer of subscription shall
terminate if the Warrant shall not be exercised on or before the
date of such closing of the books or such record date.
3.10. Fractional Interest. The Warrants may only be
exercised to purchase full shares of Common Stock and the Company
shall not be required to issue fractions of shares of Common Stock
on the exercise of Warrants. However, if a Warrant holder
exercises all Warrants then owned of record by him and such
exercise would result in the issuance of a fractional share, the
Company will pay to such Warrant holder, in lieu of the issuance
of any fractional share otherwise issuable, an amount of cash
based on the Daily Market Price on the last trading day prior to
the Warrant Exercise Date.
3.11. Notices to Warrantholders.
(a) Upon any adjustment of the Warrant Exercise Price and
the number of shares of Common Stock issuable upon exercise of a
Warrant, then and in each such case, the Company shall give
written notice thereof to the Warrant Agent, which notice shall
state the Warrant Exercise Price resulting from such adjustment
and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting
forth in reasonable detail the method of calculation and the facts
upon which such calculation is based. The Company may also mail
such notice to the holders of the Warrants at their addresses
appearing in the Warrant register. Failure to give or mail such
notice, or any defect therein, shall not affect the validity of
the adjustments.
(b) In case at any time:
(i) the Company shall pay dividends payable in
stock upon its Common Stock or make any distribution (other than
regular cash dividends) to the holders of its Common Stock; or
- 14 -<PAGE>
(ii) the Company shall offer for subscription pro
rata to the holders of its Common Stock any additional shares of
stock of any class or other rights; or
(iii) there shall be any capital reorganization
or reclassification of the capital stock of the Company, or
consolidation or merger of the Company with, or sale of
substantially all of its assets to another corporation; or
(iv) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then in any one or more of such cases, the Company shall give
written notice in the manner set forth in Section 3.11(a) of the
date on which (A) a record shall be taken for such dividend,
distribution or subscription rights, or (B) such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up shall take place, as the case may be.
Such notice shall also specify the date as of which the holders of
Common Stock of record shall participate in such dividend,
distribution or subscription rights, or shall be entitled to
exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding
up as the case may be. Such notice shall be given at least ten
(10) days prior to the action in question and not less than ten
(10) days prior to the record date in respect thereof. Failure to
give such notice, or any defect therein, shall not affect the
legality or validity of any of the matters set forth in this
Section 3.11.
(c) The Company shall cause copies of all financial
statements and reports, proxy statements and other documents that
are sent to its stockholders to be sent by first-class mail,
postage prepaid, on the date of mailing to such stockholders, to
each registered holder of Warrants at his address appearing in the
warrant register as of the record date for the determination of
the stockholders entitled to such documents.
3.12. Redemption of Warrants.
(a) The then outstanding Warrants may be redeemed, at the
option of the Company, at a price of $.10 per Warrant at any time
prior to Warrant Expiration Date; provided, however, that they may
not be so redeemed unless the Daily Market Price per share of the
Common Stock for twenty consecutive Business Days shall have
equaled or exceeded 150% of the then current Warrant Exercise
Price as a result of adjustments in the Warrant Exercise Price
under Section 3.9. The Daily Market Price of the Common Stock
shall be determined by the Company as of the end of each Business
Day (or, if no trading occurred in the Common Stock on such day,
as of the end of the immediately preceding day in which trading
occurred) and verified by the Warrant Agent before the Company may
give notice of redemption. All outstanding Warrants must be
- 15 -<PAGE>
redeemed if any are redeemed, and any right to exercise an
outstanding Warrant shall terminate at 5:00 p.m. (Eastern time) on
the Business Day immediately preceding the date fixed for
redemption. A trading day shall mean a day in which trading of
securities occurred on the New York Stock Exchange.
(b) The Company may exercise its right to redeem the
Warrants by giving the notice set forth in the following sentence
by the end of the tenth Business Day after the provisions of
Section 3.12(a) hereof have been satisfied. In case the Company
shall exercise its rights to redeem, it shall give notice to the
Warrant Agent and the registered holders of the outstanding
Warrants, by mailing to such registered holders a notice of
redemption, first class, postage prepaid, at their address as
shall appear on the records of the Warrant Agent. Any notice
mailed in the manner provided herein shall be conclusively
presumed to have been duly given whether or not the registered
holder actually receives such notice.
(c) The notice of redemption shall specify the redemption
price, the date fixed for redemption (which shall be not sooner
than on the thirtieth (30th) Business Day after such notice is
mailed), the place where the Warrant certificate shall be
delivered and the redemption price shall be paid, and that the
right to exercise the Warrant shall terminate at 4:00 p.m.
(Central time) on the Business Day immediately preceding the date
fixed for redemption.
3.13. Disposition of Proceeds on Exercise of Warrants.
(a) The Warrant Agent shall promptly forward to the
Company all monies received by the Warrant Agent for the purchase
of shares of Common Stock through the exercise of such Warrants.
(b) The Warrant Agent shall keep copies of this
Agreement available for inspection by holders of Warrants during
normal business hours.
ARTICLE IV - MISCELLANEOUS
4.1. Definitions.
(a) As used herein, the following terms shall have the
following meanings, unless the context shall otherwise require:
"Common Stock" means the Company's Common Stock, $.01
par value per share.
"Closing Date" has the meaning specified on Section 2.3.
"Daily Market Price" means (i) if the Common Stock is
traded in the over-the-counter market and not in the Nasdaq
National Market nor on any national securities exchange, the
- 16 -<PAGE>
closing bid price of the Common Stock on the trading day in
question, as reported by Nasdaq or an equivalent generally
accepted reporting service, or (ii) if the Common Stock is traded
in the Nasdaq National Market or on a national securities
exchange, then the closing sale price of the Common Stock in the
Nasdaq National Market or on the principal stock exchange on which
it is listed on the trading day in question, as the case may be.
For purposes of clause (i) above, if trading in the Common Stock
is not reported by Nasdaq, the bid price referred to in said
clause shall be the lowest bid price as reported in the "pink
sheets" published by National Quotation Bureau, Incorporated or
the NASD Electronic Bulletin Board. The closing price referred to
in clause (ii) above shall be the last reported sale price or, in
case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices, in either case in the
Nasdaq National Market or on the national securities exchange on
which the Common Stock is then listed.
"Initial Distribution Date" means the date on which the
Rights Certificates were initially issued as provided in the Plan.
"Oversubscription Rights" means the right to elect to
purchase additional Units beyond the number represented by the
Rights Certificate from among all of the Units not purchased by
holders of Rights, as provided in Section 1.5.
"Plan" means the Plan of Reorganization confirmed by
order of the Bankruptcy Court for the District of Massachusetts in
Case No. 94-43054-SFQ.
"Rights" means the rights to purchase Units in
accordance with the terms of the Rights Offering approved by the
Board of Directors of the Company.
"Rights Certificate" means a certificate evidencing
Rights.
"Rights Exercise Period" has the meaning specified in
the Plan.
"Rights Exercise Price" means the price at which Rights
may be exercised to acquire Units, which price shall be specified
in the Plan and set forth on the Rights Certificate.
"Shares" means shares of Common Stock included within
the Units.
"Unit" means the right to purchase one share of Common
Stock and one Warrant to purchase a share of Common Stock, as
described in the Plan.
"Warrants" means the common stock purchase warrants
included in the Units.
- 17 -<PAGE>
"Warrant Exercise Date" means the date on which a
Warrant is surrendered to the Warrant Agent for exercise in
accordance with the terms hereof.
"Warrant Exercise Price" means the price at which Common
Stock shall be purchasable upon the exercise of the Warrants, as
specified in the Plan and as set forth in the Warrant Certificate,
subject to adjustment as provided in Section 3.9.
"Warrant Expiration Date" means the date upon which the
Warrants expire, which date shall be 5:00 p.m., Eastern time on
the third anniversary of the Initial Distribution Date. In the
event the Warrant Expiration Date falls on a Saturday or Sunday,
or on a legal holiday on which the New York Stock Exchange is
closed, then the Warrants shall expire at 5:00 p.m. Eastern time
on the next succeeding Business Day.
(b) `Any capitalized term used in this Agreement and not
defined herein shall have the meaning specified in the Plan.
4.2. Duties of FNBB. FNBB, as Rights Agent and Warrant
Agent, undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which
the Company and the holders of Rights and Warrants, by their
acceptance thereof, shall be bound:
(a) The statements of fact and recitals contained herein and
in the Rights and Warrants shall be taken as statements of the
Company, and FNBB assumes no responsibility for the correctness of
any of the same except such as describe FNBB or action taken or to
be taken by it. FNBB assumes no responsibility with respect to
the distribution of the Rights or Warrants except as herein
expressly provided.
(b) FNBB shall not be responsible for any failure of the
Company to comply with any of the covenants in this Agreement or
in the Rights or Warrants to be complied with by the Company.
(c) FNBB may consult at any time with counsel satisfactory
to it (who may be counsel for the Company) and shall incur no
liability or responsibility to the Company or to any holder of any
Right or Warrant in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the
reasonable opinion or advice of such counsel.
(d) FNBB shall incur no liability or responsibility to the
Company or to any holder of any Right or Warrant for any action
taken in reliance on any notice, resolution, waiver, consent,
order, certificate or other instrument believed by it to be
genuine and to have been signed, sent or presented by the proper
party or parties.
(e) The Company agrees to reimburse FNBB in the execution of
this Agreement, to reimburse FNBB for all expenses, taxes and
- 18 -<PAGE>
governmental charges and other charges incurred by FNBB in the
execution of this Agreement and to indemnify FNBB and save it
harmless against any and all liabilities, including judgments,
costs and reasonable counsel fees, for anything done or omitted by
FNBB in the execution of this Agreement except as a result of
FNBB's negligence, willful misconduct or bad faith.
(f) FNBB, in its capacity as Rights Agent or Warrant Agent
shall be under no obligation to institute any action, suit or
legal proceeding or to take any other action likely to involve
expenses unless the Company or one or more registered holders of
Rights or Warrants shall furnish it with reasonable security and
indemnity for any costs and expenses which may be incurred, but
this provision shall not affect the power of FNBB to take such
action as it may consider proper, whether with or without any such
security or indemnity. All rights of action under this Agreement
or under any of the Rights or Warrants may be enforced by FNBB
without the possession of any of the Rights or Warrants or the
production thereof at any trial or other proceeding, and any such
action, suit or proceeding instituted by FNBB shall be brought if
FNBB, in its capacity as Rights Agent or Warrant Agent as the case
may be, and any recovery of judgment shall be for the ratable
benefit of he registered holders of the Rights or Warrants, as
their respective rights and interests may appear.
(g) FNBB and any stockholder, director, officer, partner or
employee of FNBB may buy, sell or deal in any of the Rights or
Warrants or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be
interested, or contract with or lend money to or otherwise act as
fully and freely as though it were not FNBB under this Agreement.
Nothing herein shall preclude FNBB from acting in any other
capacity for the Company or for any other legal entity.
(h) FNBB shall act hereunder solely as agent and its duties
shall be determined solely by the provisions hereof.
(i) FNBB may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and it shall not
be answerable or accountable for any such attorneys or agents or
for any loss to the Company resulting from such neglect or
misconduct, provided reasonable care had been exercised in the
selection and continued retention thereof.
(j) Any request, direction, election, order or demand of the
Company shall be sufficiently evidenced by an instrument signed in
the name of the Company by its President or a Vice President or
its Secretary or an Assistant Secretary or its Treasurer or an
Assistant Treasurer (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board
of Directors may be evidenced to FNBB by a copy thereof certified
by the Secretary or a Assistant Secretary of the Company.
- 19 -<PAGE>
4.3. Merger or Consolidation or Change of Name of FNBB.
(a) Any corporation or company which may succeed to the
corporate trust business of FNBB by any merger or consolidation or
otherwise shall be the successor to it as Rights Agent and Warrant
Agent hereunder without the execution or filing of any paper or
any further act on the part of any of the parties hereto, provided
that such corporation would be eligible for appointment as a
successor Warrant Agent, and Rights Agent under the provisions of
this Agreement. In case, at the time such successor shall succeed
to the agency created by this Agreement, any of the Rights or
Warrants shall have been countersigned but not delivered, any such
successor to FNBB may adopt the countersignature of the original
Warrant Agent and deliver such Warrants or Rights so
countersigned.
(b) In case at any time the name of the Rights Agent or
Warrant Agent, shall be changed and at such time any of the
Warrants or Rights shall have been countersigned but not
delivered, the Warrant Agent or the Rights Agent may adopt the
countersignature under its prior name and deliver Warrants or
Rights so countersigned. In all such cases such Warrants or
Rights shall have the full force provided in the Warrants and in
the Agreement.
4.4. Change of Warrant Agent. FNBB may resign as Warrant
Agent and be discharged from its duties under this Agreement by
giving to the Company notice in writing, and to the holders of the
Warrants notice by mailing such notice to the holders at their
addresses appearing on the Warrant register, of such resignation,
specifying a date when such resignation shall take effect. FNBB
may be removed by like notice to FNBB from the Company and the
like mailing of notice to the holders of the Warrants. If FNBB
shall resign or be removed or shall otherwise become incapable of
acting in any of those capacities, the Company shall appoint a
successor to the Warrant Agent. If the Company shall fail to make
such appointment within a period of thirty (30) days after such
removal or after it has been notified in writing of such
resignation or incapacity or after the Company has received such
notice from a registered holder of a Warrant (who shall, with such
notice, submit his Warrant for inspection by the Company), then
the registered holder of any Warrant may apply to any court of
competent jurisdiction for the appointment of a successor to the
Warrant Agent. Any successor Warrant Agent, whether appointed by
the Company or by such a court, shall be a bank or trust company,
in good standing, incorporated under federal law or the laws of
the Commonwealth of Massachusetts. After appointment, the
successor Warrant Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally
named as Warrant Agent without further act or deed and the former
Warrant Agent shall deliver and transfer to the successor Warrant
Agent all cancelled Rights or Warrants, records and property at
the time held by it hereunder, and execute and deliver any further
assurance or conveyance necessary for the purpose. Failure to
- 20 -<PAGE>
file or mail any notice provided for in this Section, however, or
any defect therein, shall not affect the validity of the
resignation or removal of the Warrant Agent or the appointment of
the successor Warrant Agent, as the case may be.
4.5. Identity of Transfer Agent. Forthwith upon the
appointment of any transfer agent for the shares of Common Stock
or of any subsequent transfer agent for the shares of Common Stock
or other shares of the Company's Common Stock issuable upon the
exercise of the rights of purchase represented by the Rights or
Warrants, the Company will file with the Rights Agent and Warrant
Agent a statement setting forth the name and address of such
transfer agent.
4.6. Legal Counsel. FNBB may consult with legal counsel, and
the opinion of such counsel shall be full and complete
authorization and protection to FNBB as to an action taken or
omitted by it in accordance with such opinion.
4.7. Compensation for Services. The Company agrees to pay
FNBB for its services hereunder and reimburse it for its
reasonable expenses hereunder, all in accordance with the fee
agreements attached as Exhibit C hereto and made a part hereof by
this reference.
4.8. Notices. Any notice pursuant to this Agreement to be
given by FNBB, or by the registered holder of any Right or Warrant
to the Company, shall be sufficiently given if sent by first-class
mail, postage prepaid, addressed (until another is filed in
writing by the Company with the Warrant Agent) as follows:
Aquila Biopharmaceuticals, Inc.
365 Plantation Street
Worcester, MA 01605
Attn: General Counsel
and a copy thereof to:
Joseph F. Ryan
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, MA 02111
Any notice pursuant to this Agreement to be given by the
Company or by the registered holder of any Right or Warrant to the
Rights Agent or Warrant Agent shall be sufficiently given if sent
by first-class mail, postage prepaid, addressed (until another
address is filed in writing by such agent with the Company) as
follows:
The First National Bank of Boston
P.O. Box 1889
Mail Stop 42-02-53
Boston, MA 02105
- 21 -<PAGE>
4.9. Supplements and Amendments. The Company and FNBB may
from time to time supplement or amend this Agreement in order to
cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions in regard
to matters or questions arising hereunder which the Company and
FNBB may deem necessary or desirable and which shall not be
inconsistent with the provisions of the Rights or Warrants and
which shall not adversely affect the interest of the holders of
Rights or Warrants.
4.10. Governing Law. This Agreement shall be deemed to
be a contract made under the laws of the State of Delaware and
shall be construed in accordance with the laws of Delaware
applicable to agreements to be performed wholly within Delaware.
4.11. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation
other than the Company, the Rights Agent or Warrant Agent and the
registered holders of the Rights or Warrants any legal or
equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent, Warrant Agent and the registered
holders of the Rights or Warrants.
4.12. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or FNBB shall
bind and inure to the benefit of their respective successors and
assigns hereunder.
IN WITNESS WHEREOF, the parties have entered into this
Agreement on the date first above written.
AQUILA BIOPHARMACEUTICALS, INC.
By: ______________________________
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
as Rights Agent and Warrant Agent
By: ______________________________
Name:
Title:
- 22 -<PAGE>
EXHIBITS
Exhibit A - Form of Rights Certificate
Exhibit B - Form of Warrant Certificate
Exhibit C - Fee Agreement
- 23 -
EXHIBIT A
THE RIGHTS EVIDENCED HEREBY WILL EXPIRE AT 5:00 P.M., EASTERN
TIME, ON AUGUST ___, 1996 (UNLESS EXTENDED PRIOR TO THAT DATE) AND
WILL BE VALUELESS THEREAFTER
(See Reverse hereof)
RIGHTS CERTIFICATE
Certificate
for
Units, Each Comprising One Share of Common Stock and
a Warrant to Purchase One Share of Common Stock
of
AQUILA BIOPHARMACEUTICALS, INC.
Incorporated under the laws of Delaware
No. ____________ Certificate for _______ Rights
THIS CERTIFIES THAT
or registered assigns, is the registered owner of the number of
Rights set forth above, each of which entitles the owner to
subscribe to purchase one Unit of Aquila Biopharmaceuticals, Inc.,
a Delaware corporation (the "Company") in exchange for each Right
held. The price to be paid to exercise each Right is $________.
________. If the number of Rights exercised results in a fraction
of a cent, the holder should make payment that has been rounded
downward to the nearest cent.
Each Unit consists of one share of the Company's Common Stock
and one Warrant to purchase an additional share of Common Stock
for $___________. _______________ during the period from the
issue date to August ____, 1999. Certificates representing the
shares of Common Stock and the Warrants purchased will be issued
to holders exercising their Rights within ten Business Days after
the expiration of the Rights Exercise Period or after the later
expiration of the Oversubscription allotment period, provided full
payment has been made.
The Rights are exercisable until 5:00 p.m., Eastern Time, on
August ____, 1996 unless prior to that date the Company extends
the Rights Exercise Period to not later than 5:00 p.m., Eastern
Time on September ____, 1996. The Rights are only exercisable
upon the terms specified herein and in the Rights, Warrants and
Escrow Agreement between the Company and the Rights Agent dated
July ____, 1996. The exercise of all of the Rights represented by
this certificate shall also entitle the holder to exercise
Oversubscription Rights to purchase Units not purchased by the
other holders of Rights, as more fully described in the Rights,
and Warrants Agreement.<PAGE>
The holder of this Rights Certificate, as such, shall not be
entitled to vote or receive dividends or be deemed for any purpose
the holder of the Common Stock, Warrants or of any other
securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained herein, be construed
to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election
of directors or upon any matter submitted to stockholders at any
meeting of the Company, or to give or withhold consent to any
corporate action, or, to receive notice of meetings or other
actions affecting stockholders, or otherwise, until all or a
portion of the Rights evidenced by this Rights Certificate have
been exercised and the shares of Common Stock and Warrants have
been issued.
This Certificate shall not be valid for any purpose unless
countersigned by the Rights Agent.
WITNESS the facsimile seal of the Company and facsimile
signature of the proper officers thereof.
DATED: AQUILA BIOPHARMACEUTICALS, INC.
COUNTERSIGNED: By:
President
The First National Bank of Boston
as Rights Agent
By
Attest:
Authorized Signature Secretary
Please mail, deliver cash, check or money order payable to The
First National Bank of Boston for $_______ for each Unit
subscribed for pursuant to the exercise of Basic Rights only to
the following:
By Overnight of Express Delivery: By Facsimile Transmissions:
The First National Bank of Boston The First National Bank of
Shareholder Services Division Boston
150 Royall Street Corporate Reorganization
Mail Stop: 45-02-53 Dept.
Canton, MA 02021 (617) 774-4519
- 2 -<PAGE>
By Hand Delivery: By First Class Mail:
BancBoston Trust Company The First National Bank of Boston
of New York P.O. Box 1889
55 Broadway, 3rd Floor Mail Stop: 45-02-53
New York, NY Boston, MA 02105
___________________________________________________________________
FORM 1 - BASIC EXERCISE
TO EXERCISE THE RIGHTS, complete the following section and return
this Rights Certificate, with your check, to The First National
Bank of Boston:
Upon the terms and conditions set forth in the Disclosure
Statement, I hereby exercise the number of Rights set forth below.
Number of Rights Exercised:
(Note: No fractional Rights may be exercised)
Payment Required*: No. of basic Rights exercised x ______ per
Right = $___________.
(*Make your check payable to The First National Bank of Boston.
If the number of Rights exercised results in a fraction of a cent,
you should round downward to the nearest cent. If the
subscription price per Unit is for any reason reduced, the
corporation reserves the right to accept your subscription and
either treat your subscription as one to buy the increased number
of Units purchasable for the aggregate payment amount, or return
the difference.)
Payment in Full Must Accompany this Certificate
to Exercise the Basic Rights
Authorized Signature of Subscriber:
Print Name:
Telephone Number(s): (_____) _________________ (_____)
Social Security No.:
If you have any questions, call: (617) 575-3100
___________________________________________________________________
FORM 2 - OVERSUBSCRIPTION EXERCISE
IF YOU WISH TO EXERCISE OVERSUBSCRIPTION RIGHTS, complete the
following form as well as Form 1 above. You may not exercise
Oversubscription Rights unless you have exercised the basic
Rights in full (or, in the case of securities held in street name,
the particular beneficial owner has exercised its basic Rights in
full).
Upon the terms and conditions set forth in the Disclosure
Statement, I hereby irrevocably elect to purchase the additional
number of Units set forth below, to the extent such Units are
- 3 -<PAGE>
available for purchase. I understand that the actual number
available for purchase will depend upon the number of basic Rights
exercised by all holders hereof, and is subject to proration as
set forth in the Rights and Warrants Agreement and described in
the Disclosure Statement.
Payment Required:_____________ x ___________ = __________
No. of Units elected per Unit Total price
for purchase
I hereby irrevocably promise to make payment of the purchase price
for the Units actually allotted to me in cash, by bank certified
or bank cashier's check or by wire transfer of funds within ten
Business Days after expiration of the Rights Exercise Period.
I hereby certify that I have been provided with a copy of the Plan
and the Disclosure Statement.
Date:____________, 1996
Authorized Signature
If you have any questions call (617) 575-3100
___________________________________________________________________
FORM 3 -TO SELL OR TRANSFER RIGHTS
For value received, _____ hereby sell, assign and transfer unto
________________________________ Rights to purchase Units
represented by the within Certificate , and do hereby irrevocably
constitute and appoint _____________________ to transfer said
Rights on the books of the within corporation with full power of
substitution in the premises.
Holder's Signature
(Your signature must appear exactly as your name appears on the
other side of this Certificate.)
Dated:
Signature Guaranteed by:
(To be guaranteed by your bank, your broker, etc. See
instructions in the Rights Offering Description and Subscription
Instructions.)
DELIVERY INSTRUCTIONS
(Fill out ONLY if delivery is to be made to an address not shown
on the other side of this Certificate.)
Name:
Address:
- 4 -
EXHIBIT B
WARRANT NO. Number of Shares: _______
W-______________
VOID AFTER 5:00 P.M., EASTERN TIME, ON ____________, 1999
WARRANT
TO PURCHASE
SHARES OF COMMON STOCK OF
AQUILA BIOPHARMACEUTICALS, INC.
Incorporated Under the Laws of the State of Delaware
This certifies that
or registered assigns (the "Holder"), is entitled to purchase from
Aquila Biopharmaceuticals, Inc., a Delaware corporation (the
"Company"), at any time after 9:00 a.m. Eastern time on the date
of issuance and before 5:00 p.m., Eastern time, on ______________,
1999, at the purchase price per share of $______ (the "Warrant
Exercise Price"), the number of shares of Common Stock, $.01 par
value, of the Company set forth above (the "Shares"). This
Warrant is subject to redemption by the Company at a redemption
price of $.10 per Share of Common Stock purchasable upon exercise
hereof at any time prior to expiration of the Warrant; provided,
that the Warrant is not subject to redemption unless the Warrant
is then exercisable and the Daily Market Price per share of the
Company's Common Stock for 20 consecutive Business Days shall have
equaled or exceeded $_______ (the "Redemption Trigger Price"),
ending within 10 Business Days prior to the date of the notice of
redemption. The number of Shares purchasable upon exercise of
this Warrant, the Warrant Exercise Price per Share and the
Redemption Trigger Price shall be subject to adjustment from time
to time as set forth in the Rights and Warrants Agreement referred
to below.
This Warrant is one of a duly authorized issue of Common
Stock Purchase Warrants with rights to purchase an aggregate of up
to 5,000,000 shares of Common Stock, $.01 par value, of the
Company and is issued under and in accordance with a Rights and
Warrants Agreement dated as of _____________, 1996, between the
Company and The First National Bank of Boston (the "Warrant
Agent"), and is subject to the terms and provisions contained in
such agreement, to all of which the Holder of this Warrant by
acceptance hereof consents. A copy of the Rights and Warrants
Agreement may be obtained for inspection by the Holder hereof upon
written request to the Warrant Agent.
This Warrant may be exercised in whole or in part by
presentation of this Warrant with the Purchase Form on the reverse
side hereof duly executed (with a signature guarantee as provided<PAGE>
in the Rights and Warrants Agreement) and simultaneous payment of
the Warrant Exercise Price at the principal office of the Warrant
Agent in Boston, Massachusetts. Payment of such price shall be
made at the option of the Holder in cash or by certified or bank
check, all as provided in the Rights and Warrants Agreement.
Upon any partial exercise of this Warrant, there shall be
countersigned and issued to the Holder a new Warrant in respect of
the Shares as to which this Warrant shall not have been exercised.
This Warrant may be exchanged at the office of the Warrant Agent
by surrender of this Warrant properly endorsed (with a signature
guarantee) either separately or in combination with one or more
other Warrants for one or more new Warrants to purchase the same
aggregate number of Shares as here evidenced in the Warrant or
Warrants exchanged. No fractional Shares will be issued upon the
exercise of rights to purchase hereunder, but the Company shall
pay the cash value of any fraction upon the exercise of one or
more Warrants. This Warrant is transferable at the office of the
Warrant Agent in the manner and subject to the limitations set
forth in the Rights and Warrants Agreement.
The Holder hereof may be treated by the Company, the Warrant
Agent and all other persons dealing with this Warrant as the
absolute owner hereof for all purposes and as the person entitled
to exercise the rights represented hereby, or to the transfer
hereof on the books of the Company, any notice to the contrary
notwithstanding, and until such transfer is entered on such books,
the Company may treat the Holder hereof as the owner for all
purposes.
This Warrant does not entitle the Holder hereof to any of the
rights of a stockholder of the Company.
This Warrant shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Warrant Agent.
WITNESS the facsimile seal of the Company and the proper officers
thereof
Dated ____________, 1996
- 2 -<PAGE>
COUNTERSIGNED:
The First National Bank of Boston, AQUILA BIOPHARMACEUTICALS,
as Warrant Agent INC.
By: By: ______________________
Authorized Signature President
Attest:
By:_______________________
Treasurer
[REVERSE SIDE OF WARRANT CERTIFICATE]
By Overnight or Express Delivery:
The First National Bank of Boston
Shareholder Services Division
150 Royal Street
Mail Stop 45-02-53
Canton, MA 02021
By Facsimile Transmission:
The First National Bank of Boston
Corporate Reorganization Dept.
(617)575-2233 or 2232
By Hand Delivery:
BancBoston Trust Company of New York
55 Broadway, 3rd Floor
New York, NY
By First Class Mail:
The First National Bank of Boston
P.O. Box 1889
Mail Stop: 45-02-53
Boston, MA 02105
FORM 1 - TO EXERCISE THE WARRANT, complete the following section
and return this Certificate, with your check, to The First
National Bank of Boston:
I hereby exercise the number of Warrants set forth below.
Number of Warrants Exercised:
(Note: No fractional shares)
Payment Required*: No. of Warrants Exercised x then current
Warrant Exercise Price = $___________
- 3 -<PAGE>
(*Make your check payable to " The First National Bank of Boston".
If the number of Warrants exercised results in a fraction of a
cent, you should round downward to the nearest cent.)
Payment in Full Must Accompany this Certificate
to Exercise the Warrant
Signature of Recordholder: _______________________________________
Print Name: ___________________________________________
Telephone Number(s): (_____) ____________________ (_____)
________________
Social Security No.: _____________________________
______________________________________________
If you have questions, call:(617) 575-3100
______________________________________________
FORM 2 - TO SELL OR TRANSFER A WARRANT, you should contact your
broker, or if you have questions on how to complete this section,
call(617) 575-3100.
For Value Received, ______ hereby sell, assign and transfer
unto _____________________
Warrants to purchase shares of the capital stock represented by
the within Certificate, and do hereby irrevocably constitute and
appoint __________________________________________________ to
transfer the said Warrant on the books of the within named
Corporation with full power of substitution in the premises.
Dated ______________ 199_ ___________________________
Signature
Signature Guaranteed
________________________
- 4 -
EXHIBIT G
(Assumed)
Employment Description Cost to Cure*
Agreements Date Signed Amount (in
Dollars)
Alison Taunton-Rigby Employment Agmt. 4/6/95 0.00
Gerald A. Beltz Employment Agmt. 8/21/95 0.00
Deborah Grabbe Employment Agmt. 8/21/95 0.00
Robert Kammer Employment Agmt. 8/21/95 0.00
Rebecca Leaper Employment Agmt. 5/1/95 0.00
Stephen J. DiPalma Employment Agmt. 3/1/96 0.00
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 1
EXHIBIT G
(Assumed)
Description Cost to Cure*
*Consulting Agreement Date Signed Amount
Frederick Casselman Consulting Agmt. 6/14/1994 0.00
Elliott Hillback Consulting Agmt. 11/10/95 0.00
Keystone Consulting Consulting Agmt. 11/9/1995 0.00
Science Regulatory Service Consulting Agmt. 10/29/92 0.00
Inter.
Arthur Hurvitz Consulting Agmt. 1/1/95 0.00
John David Consulting Agmt. 1/1/95 0.00
Takis Papas Consulting Agmt. 1/1/95 0.00
Mary-Lou Clements Consulting Agmt. 1/1/95 0.00
Richard J. Whitley Consulting Agmt. 1/1/95 0.00
Michael Hawkins Consulting Agmt. 1/1/95 0.00
William Goodger Consulting Agmt. 1/27/95 0.00
Edwin C. Allen Consulting Agmt. 11/1/94 0.00
Musket Research Associates, Consulting Agmt. 5/25/95 0.00
Inc.
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 2<PAGE>
EXHIBIT G
(Assumed)
Leases Description Cost to Cure*
Real Estate & Equipment Date Signed Amount
Worcester Business Development Lease - 1/1/87, & all 148,841.51
Corporation amendments (365 Plantation St.
Worcester, MA)
Shrewsbury Central Park Assoc. Entension and Amendment of 15,298.00
Lease for Unit 2 at 840 Boston
Turnpike Road - 8/10/93
1 Taft Court Lease between Dyncorp & CBC 0.00
Rockville, MD 4/6/95
3 Taft Court Lease between CBC and 0.00
Rockville, MD BTRL contracts & Services Inc.
6/30/92
Pitney Bowes Credit Corporation Equipment Leasing 288.00
General DATA Comm Leasing 11/1/95-10/31/96 0.00
Data Training Equipment
Rockville & Worcester
AT&T Leasing Communication and Equipment 0.00
Leasing
Norwest Equipment Finance, Inc. Equipment Lease Contract No. 962.00
001-0007911-700
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 3<PAGE>
EXHIBIT G
(Assumed)
Description Cost to Cure*
Insurance Date Signed Amount
Glen Falls Insurance Property/Boiler 0.00
11/1/95-11/1/96
Glen Falls Insurance Commercial General Liability 0.00
11/1/95-11/1/96
Glen Falls Insurance Out of State Automobile 0.00
11/1/95-11/1/96
Glen Falls Insurance Umrella LIability 0.00
11/1/95-11/1/96
Glen Falls Insurance Mass Auto 0.00
11/1/95-11/1/96
Firemand Fund Inland Marine/Ocean Cargo 0.00
11/1/95-11/1/96
Chubb Crime/Kidnap & Ransom 0.00
11/1/95-11/1/96
MEDMARC/National Union Fire Product Liability 0.00
Ins. Co. 5/1/95-5/1/96
Fidelity & Casulty Co. of NY/ Foreign Liabilty/Foreign Auto/ 0.00
Continental
Foreign Workers Compensation
11/1/95-11/1/96
Injured Workers' Insurance Fund Maryland Workers Compensation 0.00
open effective 7/7/94
Continental/National Ben Illinoise Workers Compensation 0.00
Franklin
2/28/95-2/28/96
Atlantic Employers New Jersey Workers Compensation 0.00
10/31/95-10/31/96
Mass Biotech SIG c/o Chubb Mass Workers Compensation 0.00
Services
1/1/95-1/1/96
Continental Florida & Texas Workers Comp. 0.00
6/4/95-6/4/96
The Travelers Georgia Workers Compensation 0.00
6/4/95-6/4/96
State Compensation Insurance California Workers Compensation 0.00
Fund
open effective 7/7/94
U.S. Fire Ins. Co./Crum & Excess Umbrella 0.00
Forster
11/1/95-11/1/96
Pacific Ins. Co./Continental Product Liability - Adjuvants 0.00
Excess
& Select 12/1/95-12/1/96
Reliance Standard Life Business Travel Accident 0.00
2/11/95-2/11/96
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 4
EXHIBIT G
(Assumed)
Description Cost to Cure*
GRANTS Date Signed Amount
National Institute of Health A135193 0.00
7/1/95 - 6/30/96
National Institute of Health A130837 0.00
9/1/95 - 8/31/96
World Health Organization EBA-175 0.00
3/1/95-2/28/96
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 5
EXHIBIT G
(Assumed)
Description Cost to Cure*
BIOPHARM General Date Signed Amount
American Cyanamid Supply Agmt. 4/27/93 0.00
American Cyanamid License Agmt. License Agmt. - 4/27/93 0.00
AXIS Genetics Limited Collaborative research and 0.00
development agreement 3/28/94
Bell Flavors and Fragrances, Agmt. 3/17/1994 0.00
Inc.
Berghausen Corp Agmt. 3/2/1994 0.00
Genentech License Agmt. - 12/31/89 27,535.00
Genentech License and Supply Agmt. - 0.00
6/29/92
Immucell Corp. Research & Evaluation and Tech. 0.00
Transfer Agmt. (7/22/92)
Inserm Research Agmt. 0.00
Leland Stanford Junior License Agmt. 8/1/88 76,359.00
University
Mallinckrodt Veterinary, Inc. Agmt. 10/16/1991all amendments, 0.00
and all agmt. referred therein
or thereto
Mallinckrodt Veterinary, Inc. Confidential Disclosure Agmt. 0.00
12/17/1993 all amendments, and
all agmt. referred therein or
thereto
Mallinckrodt Veterinary, Inc. Agmt. 10/16/1991 0.00
Memorial Sloan Kettering Research Agmts. - 9/24/92 0.00
New York Medical College Memorandum of Agmt. for
Research Contract 12/5/91, as
amended
Pasteur Merieux Serums & Agmt. - 3/30/92, all 0.00
Vaccins. S.A. amendments, and
all agmt. referred therein or
thereto
Pasteur Merieux Serums & Agmt. - 9/28/1992 0.00
Vaccins, S.A.
SmithKline Beecham, P.L.C. Dated 9/11/92 0.00
License, Dvlp. and Supply Agmt
as amended, and all associated
Agmts. referenced therein &
thereto
Univax Biologics, Inc. License and Supply Agmt. 0.00
4/20/93
as amendments & all associated
Agmts. referenced therein &
thereto
The Regents of theUnivercity of License - 10/5/92 0.00
California
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 6
EXHIBIT G
(Assumed)
University of Wisconsin-Madison Standard Research Agmt. 0.00
- 3/13/95
as may be amended from time to
time, & all referenced therein
& thereto
Virbac S.A. Agmt. between Virbac S.A. and 0.00
CBC, dated XXXas of June 1983,
all amendments thereto and all
associated agmts.
referenced therein and thereto.
Virbac S.A. Agmt. between Virbac S.A. and 0.00
CBC, dated as of June 1991, all
amendments thereto and all
associated agmts.
referenced therein and thereto.
Virbac Inc. Agmt. between Virbac S.A. and 0.00
CBC, dated as of May 1989, all
amendments thereto and all
associated agmts. referenced
therein and thereto.
Alfa-Laval Agri International Agmt. dated as of 11/16/92 by 0.00
AB/CBC and between CBC and Alfa-Laval
Agri Int. AB, as amended from
time to time and all associated
Agmts. referenced therein or
thereto.
Virbac S.A. Agmt. dated as of 9/30/93, as 0.00
amended from time to time and
all associated Agmts.
referenced threin or thereto.
Walter Reed Army Instit. of Agmt. 10/23/90 0.00
Research
GRF Corporation Joint Venture Agmt. - 7/23/1992 0.00
among CBC, OT Company,
BioNebraska, Inc., & GRF
Corporation and all associated
agmts. referred therein.
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 7
EXHIBIT G
(Assumed)
Description Cost to Cure*
Scientific Cooperation Date Signed Amount
Agreements
Affymax MTA - 7/26/93 0.00
British Bio-technology Ltd. MTA - 6/2/94 0.00
Imclone MTA - 6/23/93 0.00
Inselburg, Joseph MTA- 5/23/94 0.00
Max-Planch Institut for MTA - 5/19/94 0.00
Biologic
Medimmune MTA - 2/2/94 0.00
Therion Biologic Corporation MTA 8/25/94 0.00
Univercity of California MTA 10/5/94 0.00
Johns Hopkin MTA dated as of: 0.00
a) 6/17/94
b) 8/16/93
University of Kentucky MTA - 5/13/94 0.00
Ludwig Institute MTA. - 5/25/94 0.00
BioMira Inc. 8/2/93 0.00
BioMira Inc. 8/2/93 0.00
Escola Paulista De Medicina 11/30/93 0.00
Leonard Wood Memorial American 4/23/93 0.00
Leprosy Foundation
Medical Universitats Klinik 7/9/93 0.00
Perseptive Biosystems 2/22/93 0.00
Pharmakon Research 8/6/93 0.00
International Inc.
The Wistar Institute 4/25/93 0.00
"USAID" U.S. Agency for 11/24/93 0.00
International Dev./"NYU"/CBC
U.S. Army Medical Research 6/30/93 0.00
Institute of Infectious
Diseases
University of Rhode Island of 8/26/93 0.00
Kingston ("URI")
British Bio-technology Limited 6/3/94 0.00
Lyophilization Technology 1/5/94 0.00
St. Louis University 3/22/94 0.00
Ulfik, Lawrnece A. 2/16/94 0.00
University of Connecticut 4/5/94 0.00
Health Center
University of Kentucky 5/13/94 0.00
University of Kentucky 5/13/94 0.00
University of Oxford 1/7/94 0.00
University of Oxford 3/1/94 0.00
Cornell University School of 1/18/90 0.00
Veterinary Medicine
University of Washington School 11/10/92 0.00
of Medicine
University of Kentucky / 5/13/94 0.00
Chandler Medical Ctr
NCI, Frederick Cancer Research 9/6/94 0.00
Ctr
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 8
EXHIBIT G
(Assumed)
Harvard University School of 1/19/93 0.00
Public Health
Stanford University School of 5/7/92 0.00
Medicine
Centers for Disease Control 7/13/93 0.00
The Scripps Institute 6/3/92 0.00
Dartmouth University Medical 7/14/93 0.00
School
US Army Medical R&D Command 7/20/93 0.00
Memorial Sloan-Kettering Cancer 9/12/89 0.00
Center
Memorial Sloan-Kettering Cancer 9/24/92 0.00
Center
University of Alabama at 6/24/92 0.00
Birmingham
Johns Hopkins Univ. School of 8/17/93 0.00
Medicine
Walter Reed Army Institute of 6/7/91 0.00
Research
State Veterinary Inst. for 6/25/91 0.00
Virus Research
MedImmune, Inc. 2/3/94 0.00
Therion Biologics 8/26/94 0.00
Max-Planck Institute 5/20/94 0.00
Dartmouth Medical School 5/23/94 0.00
Britsh Bio-Technology 6/6/94 0.00
Novo Nordisk A/S NDA - 10/29/92 0.00
St. Louis University School of 3/22/94 0.00
Medicine
New York Univ. School of 5/11/95 0.00
Medicine
NCI-NIH 9/12/94 0.00
UCLA 4/3/95 0.00
US Army Inst. of Research 11/4/94 0.00
New York Medical College 10/17/94 0.00
NIAID-NIH 4/6/95 0.00
Newcastle Mater Hospital, 4/4/95 0.00
Australia
Johns Hopkins Univ. 6/20/94 0.00
Univ. of California - Irvine 6/14/94 0.00
Roswell Park Cancer Institute 7/27/95 0.00
Harvard School of Public Health 11/14/94 0.00
Thomas Jefferson Univ. Medical 3/21/95 0.00
School
MD Anderson Cancer Ctr, Univ. 12/20/95 0.00
of Texas
NIAID-NIH 4/6/95 0.00
Univ. of Rochester 4/6/95 0.00
Univ. of Virginia 7/27/95 0.00
Dana Farber Cancer Institute 0.00
The Immune Response Corporation 2/13/95 0.00
Hawaii Biotechnology Group 3/17/95 0.00
Georgia State University 3/30/95 0.00
PHRI, New York, NY 6/29/95 0.00
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 9
EXHIBIT G
(Assumed)
MicroCarb 1/16/95 0.00
National Cancer Institute-NIH 8/31/94 0.00
Tulane Univ. Medical Center 11/28/94 0.00
New Jersey Medical School 10/24/94 0.00
Wishard Memorial Hospital 10/14/94 0.00
Univ. of Tennessee Medical 4/19/95 0.00
Center
Int'l Center for Med. Res. & 11/2/95 0.00
Training - Columbia
der Technischen Universitat 6/6/95 0.00
Munchen - Germany
National Institutes of Health 7/27/95 0.00
Montana State Univ. 7/27/95 0.00
Fox Chase Cancer Center 11/28/95 0.00
University of London - England 10/18/95 0.00
M. D. Anderson Cancer Center, 8/25/95 0.00
Univ. of Texas
Statens Seruminstitut - Denmark 12/7/95 0.00
Frederick Cancer Research & 10/26/95 0.00
Development Center - NCI
Universidad Nacional de 8/4/95 0.00
Colombia
Queen Elizabeth II Medical 12/1/95 0.00
Center
Ludwig Institute for Cancer 0.00
Research
National Institute of Allergy & 8/24/95 0.00
Infectious Diseases - NIH
Yale University 8/9/95 0.00
University of Newcastle 12/7/95 0.00
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 10
EXHIBIT G
(Assumed)
Description Cost to Cure*
DIAGNOSTIC AGREEMENTS Date Signed Amount
Abbott Laboratories Sublicense Agmt. - 12/2/88 0.00
Abbott Laboratories Sublicense Agmt. - 6/30/92 0.00
Baxter International, Inc. Sublicense Agmt. 6/21/89 0.00
Becton, Dickinson and Company Sublicense Agmt. 1/4/89 0.00
Behringwerke Aktiengesellschaft Sublicense Agmt. 9/30/89 0.00
Biochem International Inc. Sublicense Agmt. - 6/26/91 0.00
Calypte Biomedical Corporation Sublicense Agmt. 3/31/92 0.00
Chiron Corporation Cross License Agmt. - Among 0.00
Chiron Corp. the President &
Fellows of Harvard College, &
CBC as of 9/23/91
Chiron Corporation Agmt. - 8/21/1992 0.00
Diagnostics Pasteur Agmt's among Diagnostic 38,450.00
Pasteur, CBC, the Fellows of
Harvard college, dated 10/89,
and any amendments thereto, and
all associated agmts.
referenced therein or thereto.
Genentech Sublicense Agmt. - 9/30/91 0.00
Murex Diagnostics Ltd. License & Supply 6/30/92 0.00
President & Fellows of Harvard License Agmt. - 5/1/87 59,026.00
College
Pasteur Merieux Serums & Amended License Agmt. 0.00
Vaccins, S.A. 12/14/1990
Pasteur Merieux Serums & Termination Agmt. - 12/14/90 0.00
Vaccins, S.A.
Pharmacia AGMT 12/29/1989 0.00
President & Fellows of Harvard License Agmt. 0.00
College
10/29/93
Progenics Pharmaceuticals, Inc. Sublicense - 3/17/95 0.00
Repligen Corporation Sublicense Agmt. - 4/4/90 0.00
SmithKline Beecham Sublicense 6/30/89 0.00
Syva Sublicense - 6/29/92 0.00
Carter Wallace Sublicense Agmt. - 4/1/1989 0.00
MicroGeneSys Inc. Sublicense Agmt. - 2/29/1996 0.00
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 11
EXHIBIT G
(Assumed)
Diagnostic Agreements Description Cost to Cure*
General Date Signed Amount
Hugh Cottingham License Agmt. 2/15/82 17,198.00
between Cottingham & Angenics
and all amendments
Center for Disease Control License Agmt. - 11/15/93 7,273.00
Hoffman-La Roche Inc. Agmts. dated 7/23/86-8/19/86- 0.00
3/29/91 Hoffman-LaRoche,
Angneics Inc, & CBC and all
agmts, & all associated
agmts. referred therein &
thereto
Massachusetts Institute of License Agmt. - 11/1/85 31,130.00
Technology
MIT Development Corporation Nondisclosure Agmt. - 11/19/91 0.00
MITEST Ltd. License Agmt. - 12/15/93 0.00
National Technical Information License Agmt. 6/1/84 137,431.50
Service
National Technical Information 2/1/89 137,431.50
Service
National Technical Information License Agmt. 105,137.00
Service
6/15/88
Ortho/Chiron/CBC Among Ortho Diag. Inc.; Chiron 0.00
Corp. & CBC; dated 3/30/93 &
any amendts & all associated
agmts. referrenced therein &
thereto.
Ortho/Chiron/CBC Among Ortho Diag. Inc.; Chiron 0.00
Corp. & CBC; dated 6/10/93 &
any amendts & all associated
agmts. referrenced therein &
thereto.
Ortho/Chiron/CBC Among Ortho Diag. Inc.; Chiron 0.00
Corp. & CBC; dated 11/15/93 &
any amendts & all associated
agmts. referrenced therein &
thereto.
Otsuka Pharmaceutical Nondisclosure Agmt. 9/17/1992 0.00
SelfCare Inc. Purchase & Sale of the 0.00
Authorized Share
Capital of Ordinary Shares of
Cambridge
Biotech Limited, by CBC to
Selfcare, Inc.
dated as of 11/30/94, and any
amendments and all assciated
Agreements referenced therein &
thereto.
Sienna Biotech Inc. Option Agmt. 11/12/1992 0.00
Gary Pearson & Biotech Research 0.00
Laboratories, Inc.
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 12
EXHIBIT G
(Assumed)
Syva Company License Agmt. - 6/29/1992 147,297.00
between Syva Co., Syntex
(U.S.A.) Inc.
and CBC
The Regents of the Univ. of 10/26/84 1,070.00
California
The Regents of the Univ. of Research Agmt. - 10/5/1992 0.00
California
Univ. of Alabama at Birmingham Contract Services Agmt. - 0.00
11/18/1992
University of Massachusetts License Agmt. 6/17/1988 6,411.00
University of Massachusetts License Agmt. 11/1/1984 42,358.00
Virginia Tech Intellectual Licensing Agmt. 4/19/1990 21,379.00
Properties, Inc.
Toray Fuji Distribution Agmt. 11/1/1987 0.00
Stock Purchase and Transfer
Agmt. btwn. CBC and BioMira, 0.00
Inc. - 2/28/1994
Transfer Agmt. btwn. CBC and
ADI
Diagnostics, Inc. - 2/28/1994 0.00
CBC-BioMira Licence Agmt. - 0.00
2/28/1994
BioMira-CBC Licence Agmt. - 0.00
2/28/1994
CBC-ADI License Agmt. - 0.00
2/28/1994
ADI-CBC License Agmt. -
2/28/1994
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 13
EXHIBIT G
(Assumed)
Description Cost to Cure*
Miscellaneous Date Signed Amount
Sepragen Corp. 10/2/92 0.00
Actigen Incorporated 9/7/93 0.00
BioChem ImmunoSystems 3/25/93 0.00
Children's Hospital 5/14/93 0.00
CSL Limited 3/18/93 0.00
Diamond Associates 11/17/93 0.00
Direct Access Diagnostics 11/10/93 0.00
Empyrean Diagnostics, Inc. 11/29/93 0.00
Hunneman Commercial Company 11/5/93 0.00
Immunetics, Inc. 9/24/93 0.00
NYU Medical Center 4/6/93 0.00
Serex International, Inc. 4/30/93 0.00
University of Alabama at 9/9/93 0.00
Birmingham ("UAB Research
Foundation")
University of PA 2/24/93 0.00
University of Pennsylvania 3/16/93 0.00
Boston BioMedical Consultants 2/28/94 0.00
Ciba Corning Diagnostics 2/9/94 0.00
Corporation
Genelabs Diagnostics Ptd. Ltd 2/15/94 0.00
Meridian Diagnostics, Inc. 6/27/94 0.00
Riverside Partners 6/29/94 0.00
Therion Biologics Corporation 4/15/94 0.00
Tulane University Medical 6/22/94 0.00
Center
Wampole Laboratories 6/27/94 0.00
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 14
EXHIBIT G
(Assumed)
Description Cost to Cure*
Post Petition Agreements Date Signed Amount
Alexon 8/4/94 0.00
Amvax, Inc. 7/15/94 0.00
Anonymous Test Services, Inc. 9/12/94 0.00
BASF Bioresearch Corporation 12/13/94 0.00
Becton Dickinson Microbilogy 11/1/94 0.00
Systems (Div.of Bec. Dick. &
Co)
Biochem Pharma Inc. 8/30/94 0.00
Bio-Rad Laboratories, Inc., 10/17/94 0.00
Boehringer Mannheim 9/23/94 0.00
International SA
Boston Biomedica, Inc. 7/25/94 0.00
Capricorn Products 7/14/94 0.00
Capricorn Products 7/24/94 0.00
ChemTrak 9/20/94 0.00
Ciba Corning Diagnostics 9/20/94 0.00
Corporation
Department of Health & Human 8/30/94 0.00
Services
Department of Health & Human 8/30/94 0.00
Services
Department of The Army 11/10/94 0.00
Dynagen, Inc. 9/22/94 0.00
F.J.D. Enterprises, Inc. 11/18/94 0.00
Focus/MRL, Inc. 9/28/94 0.00
Genzyme Diagnostics 9/23/94 0.00
Grayson & Associates 9/16/94 0.00
Gull Laboratories 8/31/94 0.00
Harvard University School of 11/14/94 0.00
Public Health
Hemagen Diagnostics, Inc. 7/27/94 0.00
Manuso, Alexander & Associates, 10/18/94 0.00
Inc.
Medicorp Inc. 7/26/94 0.00
Dr. Frans W.H.M. Merkus 10/29/94 0.00
Microcarb, Inc. 10/7/94 0.00
Microbiology Reference 9/6/94 0.00
Laboratory
Organon Teknika Corporation 12/15/94 0.00
Quidel 8/30/94 0.00
Roche Diagnostics 7/12/94 0.00
Sanofi Diagnostics Pasteur, 10/13/94 0.00
Inc.
S R Technologies, Inc. 9/26/94 0.00
Syva Company 7/22/94 0.00
T. Cell Sciences, Inc. 8/9/94 0.00
Allergenics, Inc. 12/19/95 0.00
Alcon Laboratories, Inc. 7/21/95 0.00
Allen & Company Incorporated 2/2/95 0.00
Alza Corporation 7/10/95 0.00
Alza Corporation 11/20/95 0.00
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 15
EXHIBIT G
(Assumed)
American Cyanamid Company 10/2/95 0.00
American Standard Inc. 6/26/95 0.00
Analytical Biosystems 1/25/95 0.00
Auerbach, Pollak & Richardson, 7/17/95 0.00
Inc.
BancBoston State Street 10/1/95 0.00
Investor Services
Benchmark Consulting Group, 8/10/95 0.00
Inc.
BioMerieux Vitek 5/3/95 0.00
Booth, Melvin D. 2/9/95 0.00
Boston Biomedica, Inc. 5/16/95 0.00
Boston University School of 11/8/95 0.00
Medicine
Calypte Biomedical 3/4/95 0.00
Centers for Disease Control 4/17/95 0.00
("CDC")
Chemsyn Science Laboratories 10/24/95 0.00
Clinetics Corporation 9/29/95 0.00
Clinetics Corporation 12/28/95 0.00
Davos Chemical Corp. / Plasto 12/21/95 0.00
SA (Synkem Division)
Davos Chemical Corp. / Separex 10/23/95 0.00
Division Chromatographie
Diamedix Corporation 8/17/95 0.00
Fox Chase Cancer Center 11/14/95 0.00
Fox Chase Cancer Center 11/14/95 0.00
Genzyme Diagnostics 2/1/95 0.00
Great American Insurance Co. 3/15/95 0.00
Intracel Corp. 7/14/95 0.00
Klaud, Stephen 4/7/95 0.00
Lane, Richard J. 2/9/95 0.00
Levy, Nelson L. 1/6/95 0.00
Macrochen Corporation 12/12/95 0.00
MedTech Capital 8/10/95 0.00
Mehta and Isaly 9/22/95 0.00
Michelene Powers 3/22/95 0.00
MicroCarb, Inc. 1/16/95 0.00
National Cancer Institute 9/29/95 0.00
National Institutes of Health 10/13/95 0.00
Nelson, John 4/5/95 0.00
NERAC, Inc. 12/19/95 0.00
The Ohio State University 12/20/95 0.00
Organon Teknika Corporation 1/24/95 0.00
Pharmacia Inc. 10/16/95 0.00
Pharmakon Research 12/19/95 0.00
INternational, Inc.
Pharm-Eco Laboratories, Inc. 11/15/95 0.00
Poorman-Douglas 9/20/95 0.00
Presidio Life Sciences Group 8/31/95 0.00
Prochrom Lab 2/14/95 0.00
REAADS Medical Products, Inc. 8/7/95 0.00
SAF Bulk Chemicals 10/23/95 0.00
Sanborn, Henry N. 4/7/95 0.00
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 16
EXHIBIT G
(Assumed)
Scheer Partners, Inc. 5/17/95 0.00
Scheer Partners, Inc. 8/1/95 0.00
Scumaci, Robert F. 2/22/95 0.00
Selfcare, Inc. 6/28/95 0.00
Separex Division 10/23/95 0.00
Chromatographie / Davos
Chemical Corp.
Seradyne, Inc. 6/30/95 0.00
Stanford University School of 6/23/95 0.00
Medicine/Perimmune, Inc.
Strategic Diagnostics Inc. 9/5/95 0.00
Statens Seruminstitut 11/30/95 0.00
Statens Seruminstitut 11/30/95 0.00
Sullivan, Charles 4/7/95 0.00
Svrluga, Richard 1/6/95 0.00
TM Capital Corp. (Michael 6/16/95 0.00
Goldman)
TSI Washington Laboratories 3/13/95 0.00
U.S. Army Medical Research 10/27/95 0.00
Insitiute of Infectious
Diseases
University of Newcastle 12/7/95 0.00
University of Newcastle 11/30/95 0.00
University of Texas 8/23/95 0.00
University of Texas 8/25/95 0.00
Walter Reed Army Institute of 10/21/95 0.00
Research
Whitlow, M. Blanton 1/6/95 0.00
WHO Collaborative Center for 11/6/95 0.00
Rickettsial Reference and
Research
WHO Collaborative Center for 10/31/95 0.00
Rickettsial Reference and
Research
Willis Cornoon Corp. of Mass 3/15/95 0.00
***Institut Pasteur 1/15/96 0.00
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 17
EXHIBIT G
(Assumed)
Allergenics, Inc. 1/15/96 0.00
Bayer Diagnastics 2/19/96 0.00
Carter-Wallace, Inc./Immune 1/19/96 0.00
Probe Inc.
Carter-Wallace, Inc./JDL 1/19/96 0.00
Associates
IncStar Corporation 1/9/96 0.00
Ohio State University 1/29/96 0.00
Perlmmune, Inc. 1/2/96 0.00
Perlmmune, Inc. 1/2/96 0.00
Pharmakon Research 1/25/96 0.00
International, Inc.
Remel Limited Partnership 1/19/96 0.00
UF/USAD/SADC Heartwater 1/29/96
Research Project, Veterinary
Research Lab
UF/USAD/SADC Heartwater 1/24/96 0.00
Research Project, Veterinary
Research Lab
Unisyn Technologies, Inc. 2/14/96
U.S. Naval Medical Research 2/21/96 0.00
Unit, No. 3
U.S. Naval Medical Research 2/21/96 0.00
Unit, No. 3
The University of Alabama at 1/19/96 0.00
Birmingham
The University of Alabama at 1/19/96 0.00
Birmingham
Viral and Rickettsial Disease 1/4/96 0.00
Laboratory
Diatech Diagnostics 3/12/96 0.00
Microbiological Associates, Agmt. No. 2311 2/29/96 0.00
Inc.
Naples, John Letter Agmt. 1/23/96 0.00
Swigs Tropical Institute Agmt. signed 1/19/96 and 2/22/
96
Carter-Wallace, Inc. Asset Purchase Agreement dated
as of 5/1/96
and related Escrow Agreement 0.00
and Supply Agreement
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 18
EXHIBIT G
(Assumed)
Employee Description Cost to Cure
Confidentiality Agmts Date Signed Amount
Amsden, Jennifer A. 11/1/93 0.00
Anderson, Christine A. 12/18/90 0.00
Anderson, David A> 12/11/91 0.00
Anderson, Robert C. 7/24/89 0.00
Austin-Ritchie, Tammy L. 10/30/94 0.00
Ayers, June G. 9/17/90 0.00
Balkovic, Edward S. 11/1/93 0.00
Baronouskas, Loriann 8/14/95 0.00
Barbon, Jeffrey 9/26/95 0.00
Barbosa, Arnoldo 3/13/95 0.00
Barton, Sandra L. 8/3/92 0.00
Beaver, Jeffrey T. 6/20/94 0.00
Beltz, Gerald A. 8/18/83 0.00
Bille, Curtis G. 1/14/93 0.00
Bagosian, Laura A. 4/24/87 0.00
Breen, Susan 2/8/94 0.00
Bulger, Patrice A. 11/2/87 0.00
Caron, Jr., Kenneth A. 11/25/91 0.00
Cassaneli, Paula A. 3/6/89 0.00
Chan, Teresa H. 6/24/91 0.00
Chiavoloni, Jose R. 11/28/89 0.00
Chin, Rena S.L. 10/28/91 0.00
Chioda, John P. 10/31/89 0.00
Cloufier, Penny A. 10/8/85 0.00
Conrad, David I. 2/14/95 0.00
Cooper, Jeff K. 4/25/89 0.00
Corbo, Joanne 10/19/92 0.00
Corey, Maria P. 3/10/95 0.00
Coughlin, Richard T. 4/11/87 0.00
Cox, Daniel E. 9/27/89 0.00
Cusson, Nancy A. 8/8/88 0.00
Davis, Kathryn R. 6/15/92 0.00
Dean, Angela K. 12/15/87 0.00
Denogean, Luis Alex 3/14/95 0.00
Dixson, Mark S. 3/29/93 0.00
Duncan, Cynthia E. Brown 3/1/95 0.00
Dvorak, Gillian I. 6/29/87 0.00
Ekinci, Fatma J. 4/1/92 0.00
Enyim, Koff 8/19/91 0.00
Feigelman, Rhonda E. 12/7/92 0.00
Finn, Mary 2/1/90 0.00
Foxhan, Daniel P. 3/10/94 0.00
Foulkrod, Paul, M. 8/22/94 0.00
Freeman, Bente 7/24/89 0.00
Fumonavicius, Maria C. 7/10/94 0.00
Gagne, Linda L. 11/17/89 0.00
Ganley, Mellyn 10/2/95 0.00
Gallagher, Kathleen E. 2/28/94 0.00
Gardner, Bonnie H. 9/18/89 0.00
Gilles, David W. 1/14/94 0.00
Gingrich-Hicker, Cindy A. 3/23/87 0.00
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 19
EXHIBIT G
(Assumed)
Grabbe, Deborah B. 4/14/93 0.00
Green, Karen T. 10/15/87 0.00
Greer, Cynthia A. 9/24/87 0.00
Hallaron, Paul F. 10/16/89 0.00
Harte, Karen M. 8/27/89 0.00
Hawthorne, Rita L. 4/15/91 0.00
Hay, Stephen 10/23/95 0.00
Hoang, Han Viet ???? 0.00
Hogan, Cheryl M. 2/28/94 0.00
Hollender, Norma A. 1/3/95 0.00
James, Duane L. 5/30/91 0.00
Kammer, Robert 5/18/93 0.00
Kashala, Lukemena O. 8/23/92 0.00
Kelly, Jr., Thomas H. 1/31/92 0.00
Kensil, Charlotte A. 12/5/85 0.00
Kilmer, Richard H. 1/31/95 0.00
Kissiday, Stephanie 5/4/87 0.00
Kohl, John H. 3/1/93 0.00
Kozberg, Patricia M. 6/13/89 0.00
Lachapelle, Nelson 12/26/95 0.00
Larkham, Louie 8/4/95 0.00
Lazarus, Gary 11/30/95 0.00
Listenwilk, Suzel D. 8/13/93 0.00
Li, Joice X. 4/19/95 0.00
Long, Gary E. 3/23/89 0.00
Lord, John A. 8/29/92 0.00
Mard, Shawn 1/15/96 0.00
Marshall, Jay R. 5/25/93 0.00
Mason, Lori J. 9/15/89 0.00
Meenan, Karen F. 7/14/92 0.00
Melady, Wendy A. 2/17/89 0.00
Mesale, Jr., Albert D. 12/12/88 0.00
Munroe, Kenneth J. 11/12/90 0.00
Murphy, Cheryl J. 6/25/87 0.00
Murphy, Matthew R. 3/23/93 0.00
Nelson, Rosemary 7/6/95 0.00
Obeg, Mark P. ?????? 0.00
Odom, Kevin A. 4/14/93 0.00
Osowski, Barbara J. 12/6/91 0.00
Oslowski, Jean 12/12/87 0.00
Packard, Kevin M. 2/21/95 0.00
Parousis, Christina 3/9/92 0.00
Parousis, Christos 4/18/94 0.00
Percorelli, Marlee 3/6/95 0.00
Pelken, Loreta M. ??? 0.00
Pelletier, James R. 4/1/91 0.00
Plume, Sharry A. 6/13/88 0.00
Quinn, William P. 3/23/92 0.00
Radcliff, Wilfred 9/28/89 0.00
Rarick, RIsa Marie 11/30/94 0.00
Recchia, Joanne 11/1/86 0.00
Reidy, Thomas J. 11/22/93 0.00
Richert, Linda A. 4/12/94 0.00
Rich, Linda E. 2/16/95 0.00
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 20
EXHIBIT G
(Assumed)
Robert, Roxanne M. 7/30/90 0.00
Robinson, Lisa M. 11/10/93 0.00
Seals, Jonathan R. 7/16/87 0.00
Shaffer, Douglas J. 6/17/91 0.00
Sillman, Deborah 3/3/93 0.00
Simms, Karen E. 9/27/89 0.00
Soltysik, Sean 9/13/90 0.00
Stone, Carol A. 4/6/87 0.00
Storey, James R. 7/29/84 0.00
Sullivan, Debra Lee 1/3/95 0.00
Tounton-Rigby, Alison 4/6/95 0.00
Warren, Susan P. 2/13/89 0.00
Weissman, Bruce A. 3/14/95 0.00
Wendler, Paul B. 9/6/90 0.00
Wheeler, Deborah A. 8/14/91 0.00
Wheeler, James J. 10/31/94 0.00
White, Abbie C. 5/23/89 0.00
Wilson, Mary-Jane 8/12/87 0.00
Wu, Jia-Yan 7/22/89 0.00
* If Cost to Cure is listed at 0.00, there are no defaults;
if an amount greater than 0.00 is listed, such amount is maximum
amount due on account of any and all defaults. Page 21
EXHIBIT H
(Rejected)
Employment Description
Agreements Date Signed
James C. Bass Employment Agmt. 7/20/93
Thomas T. Broomall Agmt. 3/16/94
Patrick J. Leonard Employment Agmt. 7/1/93
Description
Page 1<PAGE>
EXHIBIT H
(Rejected)
*Consulting Agreement Date Signed
Thomas Li Employment Consulting Agmt.
5/1/90
Jack Cassorla Consulting Agmt. 12/4/92
Jiri Vystyd Consulting Agmt. 10/4/93
Page 2<PAGE>
EXHIBIT H
(Rejected)
Diagnostic Agreements Description
General Date Signed
Dynagen License & Supply - 12/14/92
E.I. duPont deNemours and Distribution Agmt. - 10/15/92
Company
Liveris, John Consulting Agmt.
Murex Diagnostics Ltd. HIV-1 AP Western Blot - 5/28/92
Gary Pearson Letter Agreement Gary Pearson Letter Agreement -
11/3/91
Saudi Arabia Distribution Agmt. 1/7/1994
Contract of Agency
Syva Company Dev./Supply Agmt. - 6/29/1992
Swaebe International Corporation Consult., and Comp. Agmt.
12/22/93
Uganda Virus Research Institute Memo of Understanding 3/20/1992
Porex Technologies Corp. of Confidentiality of Information
Georgia Agmt.; Addendums 5/1/1989
TSI Mason Laboratories Terms and Conditions of Quotation
Performance of Services Agmt.
7/30/93 Description
Page 3<PAGE>
EXHIBIT H
(Rejected)
Miscellaneous Date Signed
Codiapharm, SA 12/20/91
Codiapharm, SA Cancellation Agmt.
1/21/93
Demetriou Realty, Inc. 11/15/90
ABE Qjimica Internacional de 4/3/93
Venezuela
AHSECO Peru S.A. 4/12/93
Arquisa 5/17/93
Chem-Lab. S.A. 4/12/93
Commercial Mersal S.A. 4/12/93
Daewong Pharmaceutical 4/13/93
Daewong Pharmaceutical Distribution and Sales
Representation Agmt. -
4/13/1993
First National Bank of Boston Rights of Shareholder to purchase
Common Stock prusuant to &
subject to the conditions of the
Shareholders Rights Agreement
between CBC & The First National
Bank of Boston, as Rights Agmt. -
3/17/89
H.S. Biosystem Produtos 6/9/93
Hospitalares Ltda.
Immunotech LTDA 5/11/93
Labhospy 5/11/93
Labtec Asociados Ltda. 5/17/93
O.B.R.A 16 S.R.L. 6/9/93
ADI Distribution Agmt 3/30/92
Page 4<PAGE>
EXHIBIT H
(Rejected)
Capricorn Products 8/24/94
Thomas LaMont, M.D.
Thomas LaMont, M.D. / Harry Letter dated 9/10/84
Pothovlakis
Page 5
EXHIBIT I
Contracts Assigned to Aquila
Employment Description
Agreements Date Signed
Alison Taunton-Rigby Employment Agmt. 4/6/95
Gerald A. Beltz Employment Agmt. 8/21/95
Deborah Grabbe Employment Agmt. 8/21/95
Robert Kammer Employment Agmt. 8/21/95
Stephen J. DiPalma Employment Agmt. 3/1/96
Description
Consulting Agreement Date Signed
Frederick Casselman Consulting Agmt. 6/14/94
Elliott Hillback Consulting Agmt. 11/10/95
Keystone Consulting Consulting Agmt. 11/9/95
Science Regulatory Service Inter. Consulting Agmt. 10/29/92
Arthur Hurvitz Consulting Agmt. 1/1/95
John David Consulting Agmt. 1/1/95
Takis Papas Consulting Agmt. 1/1/95
Mary-Lou Clements Consulting Agmt. 1/1/95
Richard J. Whitley Consulting Agmt. 1/1/95
Michael Hawkins Consulting Agmt. 1/1/95
William Goodger Consulting Agmt. 1/27/95
Edwin C. Allen Consulting Agmt. 11/1/94
Musket Research Associates, Inc. Consulting Agmt. 5/25/95<PAGE>
Leases Description
Real Estate & Equipment Date Signed
Worcester Business Development Lease - 1/1/87, & all amendments
Corporation (365 Plantation St. Worcester,
MA)
Shrewsbury Central Park Assoc. Extension and Amendment of Lease
for Unit 2 at 840 Boston
Turnpike Road - 8/10/93
Pitney Bowes Credit Corporation Equipment Leasing
AT&T Leasing Communication and Equip. Leasing
3 Taft Court Lease between CBC and BTRL
Rockville, MD Contracts& Services, Inc.
6/30/92
General DataCom Leasing 11/1/95 - 10/31/96
Data Training Equipment
(Worc. and Rockville)
Description
Insurance Date Signed
Glen Falls Insurance Property/Boiler
11/1/95-11/1/96
Glen Falls Insurance Commercial General Liability
11/1/95-11/1/96
Glen Falls Insurance Out of State Automobile
11/1/95-11/1/96
Glen Falls Insurance Umbrella Liability
11/1/95-11/1/96
Glen Falls Insurance Mass Auto
11/1/95-11/1/96
Fireman's Fund Inland Marine/Ocean Cargo
11/1/95-11/1/96
Chubb Crime/Kidnap & Ransom
11/1/95-11/1/96
Fidelity & Casualty Co. of Foreign Liabilty/Foreign Auto/
NY/Continental Foreign Workers Compensation
11/1/95-11/1/96
Continental/National Ben Illinois Workers Compensation
Franklin 2/28/95-2/28/96
- 2 -<PAGE>
Atlantic Employers New Jersey Workers Compensation
10/31/95-10/31/96
Mass Biotech SIG c/o Chubb Mass Workers Compensation
Services 1/1/95-1/1/96
Continental Florida & Texas Workers Comp.
6/4/95-6/4/96
The Travelers Georgia Workers Compensation
6/4/95-6/4/96
State Compensation Insurance California Workers Compensation
Fund open effective 7/7/94
U.S. Fire Ins. Co./Crum & Excess Umbrella
Forster 11/1/95-11/1/96
Pacific Ins. Co./Continental Product Liability - Adjuvants
Excess & Select 12/1/95-12/1/96
Reliance Standard Life Business Travel Accident
2/11/95-2/11/96
Description
GRANTS Date Signed
National Institute of Health A135193
7/1/95 - 6/30/96
National Institute of Health A130837
9/1/95 - 8/31/96
World Health Organization EBA-175
3/1/95-2/28/96
Description
BIOPHARM General Date Signed
American Cyanamid Supply Agmt. - 4/27/93
American Cyanamid License License Agmt. - 4/27/93
Agmt.
AXIS Genetics Limited Collaborative research and
development agreement 3/28/94
Bell Flavors and Fragrances, Agmt. - 3/17/94
Inc.
Berghausen Corp Agmt. - 3/2/94
- 3 -<PAGE>
Genentech License Agmt. - 12/31/89
Genentech License and Supply Agmt. - 6/29/92
Immucell Corp. Research & Evaluation and Tech.
Transfer Agmt. (7/22/92)
Inserm Research Agmt.
Leland Stanford Junior License Agmt. - 8/1/88
University
Mallinckrodt Veterinary, Agmt. - 10/16/91, all amendments
Inc. and all agmts. referenced therein
Mallinckrodt Veterinary, Inc. Confidential Disclosure Agmt. -
12/17/93 all amendments, and all
agmts. referenced therein
Mallinckrodt Veterinary, Inc. Agmt. - 10/16/91
Memorial Sloan Kettering Research Agmts. - 9/24/92
New York Medical College Memorandum of Agmt. for Research
Contract - 12/5/91, as amended
Pasteur Merieux Serums & Agmt. - 3/30/92, all amendments,
Vaccins, S.A. and all agmts. referenced therein
Pasteur Merieux Serums & Agmt. - 9/28/92
Vaccins, S.A.
SmithKline Beecham, P.L.C. License, Dvlp. and Supply Agmt. -
9/11/92 as amended, and all
associated agmts. referenced
therein
Univax Biologics, Inc. License and Supply Agmt. - 4/20/93
as amended and all associated
Agmts. referenced therein
The Regents of the University
of California License - 10/5/92
University of Wisconsin- Standard Research Agmt. - 3/13/95,
Madison as amended and all agmts.
referenced therein
Virbac S.A. Agmt. - 6/83, all amendments
thereto and all associated agmts.
referenced
therein
- 4 -<PAGE>
Virbac S.A. Agmt. - 6/91, all amendments
thereto and all associated agmts.
referenced therein
Virbac Inc. Agmt. - 5/89, all amendments
thereto and all associated agmts.
referenced therein
Alfa-Laval Agri International Agmt. - 11/16/92, as amended and
AB/CBC all associated agmts. referenced
therein
Virbac S.A. Agmt. - 9/30/93, as amended and all
associated Agmts. referenced threin
Walter Reed Army Instit. Agmt. - 10/23/90
of Research
GRF Corporation Joint Venture Agmt. - 7/23/92 among
CBC, OT Company, BioNebraska, Inc.,
and GRF Corporation and all
asociated agmts. referenced therein
Description
SCIENTIFIC COOPERATION AGMTS. Date Signed
Affymax 7/26/93
British Bio-technology Ltd. 6/2/94
Imclone 6/23/93
Inselburg, Joseph 5/23/94
Max-Planch Institut for 5/19/94
Biologic
Medimmune 2/2/94
Therion Biologic Corporation 8/25/94
University of California 10/5/94
Johns Hopkin dated as of:
a) 6/17/94
b) 8/16/93
University of Kentucky 5/13/94
Ludwig Institute 5/25/94
BioMira Inc. 8/2/93
- 5 -<PAGE>
BioMira Inc. 8/2/93
Escola Paulista De Medicina 11/30/93
Leonard Wood Memorial American
Leprosy Foundation 4/23/93
Medical Universitats Klinik 7/9/93
Perseptive Biosystems 2/22/93
Pharmakon Research
International Inc. 8/6/93
The Wistar Institute 4/25/93
U.S. Agency for International
Dev./"NYU"/CBC 11/24/93
U.S. Army Medical Research
Institute of Infectious
Diseases 6/30/93
University of Rhode Island
of Kingston 8/26/93
British Bio-technology Limited 6/3/94
Lyophilization Technology 1/5/94
St. Louis University 3/22/94
Ulfik, Lawrence A. 2/16/94
University of Connecticut
Health Center 4/5/94
University of Kentucky 5/13/94
University of Kentucky 5/13/94
University of Oxford 1/7/94
University of Oxford 3/1/94
Cornell University School of
Veterinary Medicine 1/18/90
University of Washington
School of Medicine 11/10/92
University of Kentucky /
Chandler Medical Ctr 5/13/94
- 6 -<PAGE>
NCI, Frederick Cancer Research
Ctr 9/6/94
Harvard University School of
Public Health 1/19/93
Stanford University School of
Medicine 5/7/92
Centers for Disease Control 7/13/93
The Scripps Institute 6/3/92
Dartmouth University Medical
School 7/14/93
US Army Medical R&D Command 7/20/93
Memorial Sloan-Kettering Cancer
Center 9/12/89
Memorial Sloan-Kettering Cancer
Center 9/24/92
University of Alabama at
Birmingham 6/24/92
Johns Hopkins Univ. School
of Medicine 8/17/93
Walter Reed Army Institute
of Research 6/7/91
State Veterinary Inst. for Virus
Research 6/25/91
MedImmune, Inc. 2/3/94
Therion Biologics 8/26/94
Max-Planck Institute 5/20/94
Dartmouth Medical School 5/23/94
Britsh Bio-Technology 6/6/94
Novo Nordisk A/S NDA - 10/29/92
St. Louis University School
of Medicine 3/22/94
New York Univ. School
of Medicine 5/11/95
- 7 -<PAGE>
NCI-NIH 9/12/94
UCLA 4/3/95
US Army Inst. of Research 11/4/94
New York Medical College 10/17/94
NIAID-NIH 4/6/95
Newcastle Mater Hospital,
Australia 4/4/95
Johns Hopkins Univ. 6/20/94
Univ. of California - Irvine 6/14/94
Roswell Park Cancer Institute 7/27/95
Harvard School of Public
Health 11/14/94
Thomas Jefferson Univ. Medical
School 3/21/95
MD Anderson Cancer Ctr, Univ.
of Texas 12/20/95
NIAID-NIH 4/6/95
Univ. of Rochester 4/6/95
Univ. of Virginia 7/27/95
Dana Farber Cancer Institute
The Immune Response
Corporation 2/13/95
Hawaii Biotechnology Group 3/17/95
Georgia State University 3/30/95
PHRI, New York, NY 6/29/95
MicroCarb 1/16/95
National Cancer Institute-NIH 8/31/94
Tulane Univ. Medical Center 11/28/94
New Jersey Medical School 10/24/94
Wishard Memorial Hospital 10/14/94
- 8 -<PAGE>
Univ. of Tennessee Medical
Center 4/19/95
Int'l Center for Med. Res. &
Training - Columbia 11/2/95
der Technischen Universitat
Munchen - Germany 6/6/95
National Institutes of Health 7/27/95
Montana State Univ. 7/27/95
Fox Chase Cancer Center 11/28/95
University of London - England 10/18/95
M. D. Anderson Cancer Center,
Univ. of Texas 8/25/95
Statens Seruminstitut -
Denmark 12/7/95
Frederick Cancer Research &
Development Center - NCI 10/26/95
Universidad Nacional de
Colombia 8/4/95
Queen Elizabeth II Medical
Center 12/1/95
Ludwig Institute for Cancer Research
National Institute of Allergy &
Infectious Diseases - NIH 8/24/95
Yale University 8/9/95
University of Newcastle 12/7/95
Description
DIAGNOSTIC AGREEMENTS Date Signed
Pasteur Merieux Serum and Termination Agrmnt 12/14/90
Vaccines S.A.
- 9 -<PAGE>
Diagnostic Agreements Description
General Date Signed
MIT Development Corporation Nondisclosure Agmt. - 11/19/91
Ortho/Chiron/CBC Material Transfer Agmt. - 6/10/93
and any amendts and all associated
agmts. referrenced therein
Gary Pearson and Biotech Research
Laboratories, Inc. Agreement - 9/20/87
Sienna Biotech Inc. Option Agmt. - 11/12/92
Univ. of Alabama at Contract Services Agmt. - 11/18/92
Birmingham
The Regents of the Univ.
of California 7/30/93
The Regents of the Univ.
of California 10/26/84
Description
Miscellaneous Date Signed
Sepragen Corp. 10/2/92
Actigen Incorporated 9/7/93
BioChem ImmunoSystems 3/25/93
Children's Hospital 5/14/93
CSL Limited 3/18/93
Diamond Associates 11/17/93
Direct Access Diagnostics 11/10/93
Empyrean Diagnostics, Inc. 11/29/93
Hunneman Commercial Company 11/5/93
Immunetics, Inc. 9/24/93
NYU Medical Center 4/6/93
Serex International, Inc. 4/30/93
University of Alabama at
Birmingham 9/9/93
- 10 -<PAGE>
University of Pennsylvania 2/24/93
University of Pennsylvania 3/16/93
Boston BioMedical Consultants 2/28/94
Ciba Corning Diagnostics
Corporation 2/9/94
Genelabs Diagnostics Ptd. Ltd 2/15/94
Meridian Diagnostics, Inc. 6/27/94
Riverside Partners 6/29/94
Therion Biologics Corporation 4/15/94
Tulane University Medical
Center 6/22/94
Wampole Laboratories 6/27/94
Description
ADI Date Signed
Stock Purchase and Transfer
Agreement btwn CBC and Bio Mira
Inc.- 2/28/94
Transfer Agmt. between CBC and
ADI Diagnostics, Inc. - 2/28/94
Post Petition Contracts
SIGNED AGMTS FROM JULY 7, 1994 Description
FORWARD Date Signed
Alexon 8/4/94
Amvax, Inc. 7/15/94
Anonymous Test Services, Inc. 9/12/94
BASF Bioresearch Corporation 12/13/94
Becton Dickinson Microbilogy Systems
(Div.of Bec. Dick. & Co) 11/1/94
Biochem Pharma Inc. 8/30/94
Bio-Rad Laboratories, Inc., 10/17/94
- 11 -<PAGE>
Boehringer Mannheim
International SA 9/23/94
Boston Biomedica, Inc. 7/25/94
Capricorn Products 7/14/94
Capricorn Products 7/24/94
ChemTrak 9/20/94
Ciba Corning Diagnostics
Corporation 9/20/94
Department of Health & Human
Services 8/30/94
Department of Health & Human
Services 8/30/94
Department of The Army 11/10/94
Dynagen, Inc. 9/22/94
F.J.D. Enterprises, Inc. 11/18/94
Focus/MRL, Inc. 9/28/94
Genzyme Diagnostics 9/23/94
Grayson & Associates 9/16/94
Gull Laboratories 8/31/94
Harvard University School of
Public Health 11/14/94
Hemagen Diagnostics, Inc. 7/27/94
Manuso, Alexander &
Associates, Inc. 10/18/94
Medicorp Inc. 7/26/94
Dr. Frans W.H.M. Merkus 10/29/94
Microcarb, Inc. 10/7/94
Microbiology Reference
Laboratory 9/6/94
Organon Teknika Corporation 12/15/94
Quidel 8/30/94
- 12 -<PAGE>
Roche Diagnostics 7/12/94
Sanofi Diagnostics Pasteur,
Inc. 10/13/94
S R Technologies, Inc. 9/26/94
Syva Company 7/22/94
T. Cell Sciences, Inc. 8/9/94
Allergenics, Inc. 12/19/95
Alcon Laboratories, Inc. 7/21/95
Allen & Company Incorporated 2/2/95
Alza Corporation 7/10/95
Alza Corporation 11/20/95
American Cyanamid Company 10/2/95
American Standard Inc. 6/26/95
Analytical Biosystems 1/25/95
Auerbach, Pollak & Richardson,
Inc. 7/17/95
BancBoston State Street Investor
Services 10/1/95
Benchmark Consulting Group,
Inc. 8/10/95
BioMerieux Vitek 5/3/95
Booth, Melvin D. 2/9/95
Boston Biomedica, Inc. 5/16/95
Boston University School of
Medicine 11/8/95
Calypte Biomedical 3/4/95
Centers for Disease Control 4/17/95
Chemsyn Science Laboratories 10/24/95
Clinetics Corporation 9/29/95
Clinetics Corporation 12/28/95
- 13 -<PAGE>
Davos Chemical Corp./
Plasto SA (Synkem Division) 12/21/95
Davos Chemical Corp./Separex
Division Chromatographie 10/23/95
Diamedix Corporation 8/17/95
Fox Chase Cancer Center 11/14/95
Fox Chase Cancer Center 11/14/95
Genzyme Diagnostics 2/1/95
Great American Insurance Co. 3/15/95
Intracel Corp. 7/14/95
Klaud, Stephen 4/7/95
Lane, Richard J. 2/9/95
Levy, Nelson L. 1/6/95
Macrochen Corporation 12/12/95
MedTech Capital 8/10/95
Mehta and Isaly 9/22/95
Michelene Powers 3/22/95
MicroCarb, Inc. 1/16/95
National Cancer Institute 9/29/95
National Institutes of Health 10/13/95
Nelson, John 4/5/95
NERAC, Inc. 12/19/95
The Ohio State University 12/20/95
Organon Teknika Corporation 1/24/95
Pharmacia Inc. 10/16/95
Pharmakon Research
International, Inc. 12/19/95
Pharm-Eco Laboratories, Inc. 11/15/95
Poorman-Douglas 9/20/95
- 14 -<PAGE>
Presidio Life Sciences Group 8/31/95
Prochrom Lab 2/14/95
REAADS Medical Products, Inc. 8/7/95
SAF Bulk Chemicals 10/23/95
Sanborn, Henry N. 4/7/95
Scheer Partners, Inc. 5/17/95
Scheer Partners, Inc. 8/1/95
Scumaci, Robert F. 2/22/95
Selfcare, Inc. 6/28/95
Separex Division Chromatographie/
Davos Chemical Corp. 10/23/95
Seradyne, Inc. 6/30/95
Stanford University School of
Medicine/Perimmune, Inc. 6/23/95
Strategic Diagnostics Inc. 9/5/95
Statens Seruminstitut 11/30/95
Statens Seruminstitut 11/30/95
Sullivan, Charles 4/7/95
Svrluga, Richard 1/6/95
TM Capital Corp.
(Michael Goldman) 6/16/95
TSI Washington Laboratories 3/13/95
U.S. Army Medical Research Insitiute
of Infectious Diseases 10/27/95
University of Newcastle 12/7/95
University of Newcastle 11/30/95
University of Texas 8/23/95
University of Texas 8/25/95
Walter Reed Army Institute
of Research 10/21/95
- 15 -<PAGE>
Whitlow, M. Blanton 1/6/95
WHO Collaborative Center for
Rickettsial Reference and
Research 11/6/95
WHO Collaborative Center for
Rickettsial Reference and
Research 10/31/95
Willis Cornoon Corp. of Mass 3/15/95
Allergenics, Inc. 1/15/96
Bayer Diagnastics 2/19/96
Carter-Wallace, Inc./Immune
Probe Inc. 1/19/96
Carter-Wallace, Inc./JDL
Associates 1/19/96
IncStar Corporation 1/9/96
Ohio State University 1/29/96
Perlmmune, Inc. 1/2/96
Perlmmune, Inc. 1/2/96
Pharmakon Research
International, Inc. 1/25/96
Remel Limited Partnership 1/19/96
UF/USAD/SADC Heartwater Research
Project, Veterinary Research
Lab 1/29/96
UF/USAD/SADC Heartwater Research
Project, Veterinary Research
Lab 1/24/96
Unisyn Technologies, Inc. 2/14/96
U.S. Naval Medical Research
Unit, No. 3 2/21/96
U.S. Naval Medical Research
Unit, No. 3 2/21/96
The University of Alabama at
Birmingham 1/19/96
- 16 -<PAGE>
The University of Alabama at
Birmingham 1/19/96
Viral and Rickettsial Disease
Laboratory 1/4/96
Diatech Diagnostics 3/12/96
Microbiological Associates,
Inc. Agmt. No. 2311 2/29/96
Naples, John Letter Agmt. 1/23/96
Swigs Tropical Institute Agmt. - 1/119/96 and 2/22/96
Carter-Wallace, Inc. Asset Purchase Agreement dated as
of 5/1/96 and related Escrow
Agreement and Supply Agt.
Meridian Diagnostics, Inc. Asset Purchase Agreement - 6/24/96
and related Supply Agmt. and Escrow
Agmt.
Advanced BioScience
Laboratories, Inc. 5/21/96
Advanced BioScience
Laboratories, Inc. 5/21/96
Bergen Community Regional
Blood Center 4/25/96
bioMerieux Vitek/Aquila
Biopharmaceuticals 4/4/96
bioMerieux Vitek, Inc. 5/23/96
Calypte Biomedical
Corporation 4/12/96
Calypte Biomedical
Corporation 4/12/96
Carter-Wallace, Inc. 5/3/96
Cottingham, Hugh 5/3/96
Diatech Diagnostics, Inc. 3/12/96
Eisenwinter, Ronald Keith 5/18/96
Hale and Dorr 4/11/96
- 17 -<PAGE>
Institut Fur Med. Mikrobiologie
and Hygiene, Der Technischen
universitat Munchen 4/9/96
Kemp Biotechnologies 5/20/96
Knox College 4/4/96
Knox College 4/4/96
Mallinckrodt Veterinary, Inc. 3/20/96
Mallinckrodt Veterinary, Inc. 5/15/96
Mallinckrodt Veterinary, Inc. 5/15/96
New York Medical College 5/3/96
Prochrom, Inc. 5/1/96
Statistics Unlimited, Inc. 5/13/96
Stroock & Stroock & Lavan 5/3/96
Swiss Tropical Institute 3/18/96
University of Massachusetts
- Lowell 5/16/96
University of Washington 4/1/96
Viral Technologies, Inc. 4/26/96
Employmee Description
Confidentiality Agreements Date Signed
Amsden, Jennifer A. 11/1/93
Anderson, Christine A. 12/18/90
Anderson, David A. 12/11/91
Anderson, Robert C. 7/24/89
Austin-Ritchie, Tammy L. 10/30/94
Ayers, June G. 9/17/90
Balkovic, Edward S. 11/1/93
Baronouskas, Loriann 8/14/95
- 18 -<PAGE>
Barbon, Jeffrey 9/26/95
Barbosa, Arnoldo 3/13/95
Barton, Sandra L. 8/3/92
Beaver, Jeffrey T. 6/20/94
Beltz, Gerald A. 8/18/83
Bille, Curtis G. 1/14/93
Bagosian, Laura A. 4/24/87
Breen, Susan 2/8/94
Bulger, Patrice A. 11/2/87
Caron, Jr., Kenneth A. 11/25/91
Cassaneli, Paula A. 3/6/89
Chan, Teresa H. 6/24/91
Chiavoloni, Jose R. 11/28/89
Chin, Rena S.L. 10/28/91
Chioda, John P. 10/31/89
Cloufier, Penny A. 10/8/85
Conrad, David I. 2/14/95
Cooper, Jeff K. 4/25/89
Corbo, Joanne 10/19/92
Corey, Maria P. 3/10/95
Coughlin, Richard T. 4/11/87
Cox, Daniel E. 9/27/89
Cusson, Nancy A. 8/8/88
Davis, Kathryn R. 6/15/92
Dean, Angela K. 12/15/87
Denogean, Luis Alex 3/14/95
Dixson, Mark S. 3/29/93
- 19 -<PAGE>
Duncan, Cynthia E. Brown 3/1/95
Dvorak, Gillian I. 6/29/87
Ekinci, Fatma J. 4/1/92
Enyim, Koff 8/19/91
Feigelman, Rhonda E. 12/7/92
Finn, Mary 2/1/90
Foxhan, Daniel P. 3/10/94
Foulkrod, Paul, M. 8/22/94
Freeman, Bente 7/24/89
Fumonavicius, Maria C. 7/10/94
Gagne, Linda L. 11/17/89
Ganley, Mellyn 10/2/95
Gallagher, Kathleen E. 2/28/94
Gardner, Bonnie H. 9/18/89
Gilles, David W. 1/14/94
Gingrich-Hicker, Cindy A. 3/23/87
Grabbe, Deborah B. 4/14/93
Green, Karen T. 10/15/87
Greer, Cynthia A. 9/24/87
Hallaron, Paul F. 10/16/89
Harte, Karen M. 8/27/89
Hawthorne, Rita L. 4/15/91
Hay, Stephen 10/23/95
Hoang, Han Viet ????
Hogan, Cheryl M. 2/28/94
Hollender, Norma A. 1/3/95
James, Duane L. 5/30/91
- 20 -<PAGE>
Kammer, Robert 5/18/93
Kashala, Lukemena O. 8/23/92
Kelly, Jr., Thomas H. 1/31/92
Kensil, Charlotte A. 12/5/85
Kilmer, Richard H. 1/31/95
Kissiday, Stephanie 5/4/87
Kohl, John H. 3/1/93
Kozberg, Patricia M. 6/13/89
Lachapelle, Nelson 12/26/95
Larkham, Louie 8/4/95
Lazarus, Gary 11/30/95
Listenwilk, Suzel D. 8/13/93
Li, Joice X. 4/19/95
Long, Gary E. 3/23/89
Lord, John A. 8/29/92
Mard, Shawn 1/15/96
Marshall, Jay R. 5/25/93
Mason, Lori J. 9/15/89
Meenan, Karen F. 7/14/92
Melady, Wendy A. 2/17/89
Mesale, Jr., Albert D. 12/12/88
Munroe, Kenneth J. 11/12/90
Murphy, Cheryl J. 6/25/87
Murphy, Matthew R. 3/23/93
Nelson, Rosemary 7/6/95
Obeg, Mark P. ??????
Odom, Kevin A. 4/14/93
- 21 -<PAGE>
Osowski, Barbara J. 12/6/91
Oslowski, Jean 12/12/87
Packard, Kevin M. 2/21/95
Parousis, Christina 3/9/92
Parousis, Christos 4/18/94
Percorelli, Marlee 3/6/95
Pelken, Loreta M. ???
Pelletier, James R. 4/1/91
Plume, Sharry A. 6/13/88
Quinn, William P. 3/23/92
Radcliff, Wilfred 9/28/89
Rarick, RIsa Marie 11/30/94
Recchia, Joanne 11/1/86
Reidy, Thomas J. 11/22/93
Richert, Linda A. 4/12/94
Rich, Linda E. 2/16/95
Robert, Roxanne M. 7/30/90
Robinson, Lisa M. 11/10/93
Seals, Jonathan R. 7/16/87
Shaffer, Douglas J. 6/17/91
Sillman, Deborah 3/3/93
Simms, Karen E. 9/27/89
Soltysik, Sean 9/13/90
Stone, Carol A. 4/6/87
Storey, James R. 7/29/84
Sullivan, Debra Lee 1/3/95
Tounton-Rigby, Alison 4/6/95
- 22 -<PAGE>
Warren, Susan P. 2/13/89
Weissman, Bruce A. 3/14/95
Wendler, Paul B. 9/6/90
Wheeler, Deborah A. 8/14/91
Wheeler, James J. 10/31/94
White, Abbie C. 5/23/89
Wilson, Mary-Jane 8/12/87
Wu, Jia-Yan 7/22/89
- 23 -
EXHIBIT J
SUMMARY OF STOCK PLANS
1996 Stock Award and Option Plan. The first plan is a new
1996 Stock Award and Option Plan (the "Employee Plan") to replace
the previously existing CBC plan. The purposes of the 1996 Plan,
which is substantially similar to the prior CBC plan, are to
provide long-term incentives and rewards to those key employees of
Aquila and its subsidiaries and any other persons who are in a
position to contribute to the long-term success and growth of
Aquila and its subsidiaries, to assist Aquila in retaining and
attracting executives and key employees of requisite experience
and ability and to associate more closely the interests of such
executives and key employees with those of Aquila's stockholders.
Under the Employee Plan, Aquila may grant (i) options
intended to qualify under Section 422 of Code as incentive stock
options, (ii) other options which are not qualified as incentive
stock options ("nonqualified stock options"), (iii) Stock
Appreciation Rights, either alone or in tandem with options
("SARs"), (iv) discounted stock options, (v) deferred stock
awards, and (vi) restricted stock awards. Incentive stock options
may only be granted to persons who are employees of Aquila at the
time of grant, which may include officers who are also employees.
All of the other types of options and awards may be granted to
persons who are officers or employees of Aquila are eligible for
incentive stock options and they are approximately fewer than 5
consultants are eligible for other options and awards under the
Employee Plan.
Administration of the Employee Plan will be delegated by the
Board of Directors to the Compensation Committee. Subject to the
terms of the Employee Plan, the Compensation Committee will
determine the persons to whom options or awards are granted, the
number of shares covered by the option or award, the term of any
option or award and the time during which any option is
exercisable. In the discretion of the Compensation Committee,
options or shares acquired by exercise of an option may be
forfeitable if the recipient does not continue as an employee of
Aquila for a specified period.
Incentive stock options under the Employee Plan may not be
granted after ten years after the Consummation Date and may not be
exercised subsequent to ten years from the date of grant (five
years after the date of grant for incentive stock options granted
to holders of more than 10% of Aquila's New Common Stock).
No incentive stock option granted pursuant to the Employee
Plan may be exercised more than three months after the option
holder ceases to be an employee of Aquila, except that in the
event of death or permanent and total disability of the option<PAGE>
holder, the option may be exercised by the holder of his estate
for a period of up to one year after the date of such death or
permanent and total disability.
Discounted stock options may be granted at an exercise price
equal to a stated percentage of the fair market value of the New
Common Stock on the date of the grant, in the discretion of the
Compensation Committee. Incentive stock options and non-qualified
stock options may not be granted at less than the fair market
value of the New Common Stock, and incentive stock options may be
granted to those persons holding more than 10% of the New Common
Stock only at an exercise price of at least 110% of the fair
market value of the New Common Stock on the date of grant.
In order to assist an optionee in the acquisition of shares
of New Common Stock pursuant to the exercise of an option granted
under the Employee Plan, the Compensation Committee may authorize
payment (i) in cash, (ii) by delivery of shares of New Common
Stock having a fair market value equal to the purchase price of
the shares, (iii) by the exercise of SARs, or (iv) any combination
of the foregoing or any other means the Compensation Committee
approves.
A total of 2,000 shares of New Common Stock will be available
for issuance under the Employee Plan (subject to adjustment for
any recapitalization, reclassification, stock split, stock
combination, stock dividend or certain other corporate
reorganizations). The shares issued may include either authorized
but unissued shares of New Common Stock or treasury shares.
Shares subject to any option that ceases to be exercisable for any
reason will be available for subsequent option grants. Options or
awards that will be granted under the Employee Plan in the future
are not presently determinable.
The Board of Directors may amend, suspend or terminate the
Employee Plan; provided, however, that without stockholder
approval, neither the Board of Directors nor the Compensation
Committee may modify the Employee Plan to increase the number of
shares available for issuance, change the class of persons
eligible to receive awards, or make any other modification
requiring the approval of the stockholders under Section 424 of
the Internal Revenue Code for incentive stock options or under
Rule 16b-3 under the Securities Exchange Act of 1934 in order to
continue to qualify for exemption under that rule.
1996 Director Stock Award and Option Plan. The second plan
in a 1996 Director Stock Award and Option Plan (the "Directors
Plan"). The purpose of the Directors Plan is to attract and
retain the services of experienced and knowledgeable directors of
Aquila for the benefit of Aquila and its stockholders and to
provide additional incentives for such independent directors to
continue to work for the best interests of Aquila and its
stockholders through continuing ownership of the New Common Stock.
- 2 -<PAGE>
Under the Directors Plan, Aquila may grant the same types of
awards, subject to the same limitations as are described above
under the Employees Plan, except that SARs under the Directors
Plan may only be granted during a ten day period beginning on the
third business day following release of annual or quarterly
earnings reports and SARs may not be settled earlier than six
months after the date of grant.
Each director of Aquila or any of its subsidiaries (presently
four persons) will be eligible to receive awards under the
Directors Plan, although only directors who are also employees
(one person) will be eligible for incentive stock options.
Under the Directors Plan, each eligible director will receive
an initial grant on or about the Initial Distribution Date, one-
fourth vesting on that date and an additional one-fourth vesting
on each of the next three anniversaries thereafter. Directors
will also receive an annual automatic grant of an option for up to
2,500 shares on the 1st day of July, at fair market value on the
date of the grant.
A total of 200,000 shares of New Common Stock has been
reserved for issuance under the Directors Plan (subject to
adjustment for any recapitalization, reclassification, stock
split, stock combination, stock dividend or certain other
corporate reorganizations). The shares issued may include
treasury shares, authorized but unissued shares, and shares
previously reserved for issuance upon exercise of options which
have expired or terminated. Shares subject to an option that
ceases to be exercisable for any reason will be available for
subsequent option grants.
The Board of Directors may amend, suspend or terminate the
Director Plan; provided, however, that without stockholder
approval, neither the Board of Directors nor the Compensation
Committee may modify the Directors Plan to increase the number of
shares available for issuance, change the class of persons
eligible to receive awards, decrease the exercise price of
options, or materially increase benefits in any manner requiring
the approval of the stockholders under Section 424 of the Internal
Revenue Code for incentive stock options or under Rule 16b-3 under
the Securities Exchange Act of 1934 in order to continue to
qualify for exemption under that rule.
1996 Employee Stock Purchase Plan. The third Plan is a 1996
Employee Stock Purchase Plan (the "Stock Purchase Plan"). The
Stock Purchase Plan is intended to provide employees of Aquila
with additional incentives by permitting them to acquire a
proprietary interest in Aquila through the purchase of shares of
Aquila's New Common Stock. The Stock Purchase Plan will be
administered by the Compensation Committee.
The Stock Purchase Plan provides that all employees of Aquila
(including officers and directors) who work more than twenty hours
- 3 -<PAGE>
per week and more than five months in any calendar year who are
employed on or before the first day of the applicable Purchase
Period are eligible to participate. However, no employee who
holds five percent (5%) or more of the total combined voting power
of Aquila's capital stock will be eligible to participate. At
present, approximately 56 persons are eligible to participate in
the Stock Purchase Plan. Further, no employee may be granted an
option pursuant to which the employee's right to purchase New
Common Stock under the Stock Purchase Plan accrues at a rate which
exceeds $25,000 of fair market value of such stock per year.
An eligible employee of Aquila may elect to participate in
the Stock Purchase Plan by giving notice to Aquila and instructing
Aquila to withhold a specified amount equal to a whole percentage
of his or her Compensation from the employee's salary during the
following "Purchase Period", running from a date specified by the
Compensation Committee within the first fifteen days of January
and ending twelve months later. On the last business day of the
Purchase Period, the amount withheld will be used to purchase New
Common Stock at a price equal to the lesser of 85% of the fair
market value of the New Common Stock on either the first day (the
"Date of Offering") or on the last day of the Purchase Period,
whichever is less (the "Option Exercise Price"). For this
purpose, fair market value is the public market price, if any, or
a value determined in good faith by the Board of Directors.
Aquila technically will grant an option to each participant on the
Date of Offering, to purchase, on the last day of the Purchase
Period, at the Option Exercise Price, that number of shares of New
Common Stock that his or her accumulated payroll deductions on the
last day of the Purchase Period will pay for at such price with a
maximum number of shares equal to three times the number of shares
calculated by dividing the estimated contribution amounts during
the Payment Period by fair market value of the New Common Stock on
the first day of the Payment Period. The option is automatically
deemed to be exercised if the employee is still a participant on
the last day of the Purchase Period. Participation will end
automatically on termination of employment with Aquila.
A participating employee may authorize a payroll deduction of
an even percent (i.e., 1%, 2%, etc.), equal to not more than ten
percent (10%) of his or her Compensation (defined as the rate of
salary in effect for an employee on the Date of Offering).
Deductions from any employee's Compensation may not be increased
or decreased during a Purchase Period.
An employee may withdraw from the Stock Purchase Plan, and
withdraw all of the payroll deductions credited to his or her
account under the Stock Purchase Plan, at any time prior to the
last regular payroll deduction of any Purchase Period. Aquila
will refund without interest the entire remaining balance of the
Employee's deductions.
The maximum number of shares of New Common Stock which may be
purchased by employees under the Stock Purchase Plan is 200,000
- 4 -<PAGE>
shares (subject to adjustments for stock splits, stock dividends
and similar transactions). Such shares may be authorized but
unissued shares of New Common Stock or shares of New Common Stock
reacquired by Aquila, including shares purchased in the open
market.
The Stock Purchase Plan may be amended by the Board of
Directors from time to time in any respect; provided, however,
that without stockholder approval no amendment shall be effective
to increase the number of shares under the plan, decrease the
purchase price per share other than as provided in the plan,
withdraw administration from the Committee, or change the
subsidiaries eligible to participate.
The Stock Purchase Plan is intended to qualify as an
"employee stock purchase plan" under Section 423 of the Internal
Revenue Code. Provided that certain conditions are met, an
employee will not recognize income on the grant or exercise of an
option under the Stock Purchase Plan, and Aquila will not have a
deduction.
- 5 -
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MASSACHUSETTS
)
In re: ) Chapter 11
)
CAMBRIDGE BIOTECH CORPORATION, ) Case No. 94-43054-JFQ
)
Debtor )
)
MOTION OF CAMBRIDGE BIOTECH CORPORATION PURSUANT
TO SECTION 1127 OF THE BANKRUPTCY CODE AND
FED. R. BANKR. PROC. 3019 FOR APPROVAL OF MODIFICATIONS TO PLAN
Cambridge Biotech Corporation, debtor and debtor-in-
possession ("CBC"), submits this motion with respect to certain
modifications (as set forth below) (the "Modifications") to
Amended (May 17, 1996) Reorganization Plan of Cambridge Biotech
Corporation as Further Amended As of May 20, 1996 (the "Plan").
Because the Modifications do not adversely change the treatment of
the claim of any creditor or the interest of any equity security
holder, CBC requests that the Court find and order the
Modifications deemed accepted by all creditors and equity security
holders who have previously accepted the Plan. As grounds
therefore and in support thereof, CBC states as follows:
1. CBC has filed the Plan with the Court, and the
Disclosure Statement with respect to Amended (May 17, 1996)
Reorganization Plan of Cambridge Biotech Corporation as Further
Amended As of May 20, 1996 ( the "Disclosure Statement"), was
approved by the Court in all respects on or about May 17, 1996
(the "Disclosure Statement Approval Order").
- 1 -<PAGE>
2. Pursuant to the Disclosure Statement Approval Order, the
Disclosure Statement (and Plan) were mailed to, among others, all
holders of Claims and Interests. The Plan was overwhelmingly
accepted by all impaired Classes of creditors and equity security
holders, with the exception of Class 4 (Non-Convenience Class
General Unsecured Claims). The Court has scheduled a confirmation
hearing on the Plan for July 15, 1996.
3. Since the Disclosure Statement was mailed, CBC has had
continuing negotiations with the Equity Committee in an effort to
resolve the Equity Committee's objections to the Plan. Moreover,
CBC has reviewed the Plan and determined that certain
modifications are necessary to correct scrivenor`s errors and
clarify certain issues including, without limitation, in
connection with corporate mechanics of the stock exchange between
CBC and Aquila Biopharmaceuticals, Inc. ("Aquila") and the
mechanics of the Rights Offering which is a part of the Plan.
None of the Modifications modify the Plan so that it fails to meet
the requirements of Sections 1122 and 1123 of the Bankruptcy Code.
Accordingly, pursuant to Section 1127(a) of the Bankruptcy Code,
upon CBC's filing of this motion (with the Modifications), the
Plan, as modified, becomes the Plan.
A. Amendments to the Plan
Amend the Plan as follows:
1. Amend Article I.B.7 to read:
7. "Aquila Certificate of Incorporation" means Aquila's
amended and restated certificate of incorporation in effect
- 2 -<PAGE>
under the laws of the State of Delaware substantially in the
form attached as Exhibit B-1 hereto.
2. Amend Article I.B.32 to read:
32. "Disbursing Agent" means the Person(s) designated
by CBC to serve as Disbursing Agent under Section VII of the
Plan. CBC may designate Aquila as Disbursing Agent. The
Disbursing Agent shall be deemed to include The First
National Bank of Boston in its capacity as the transfer
agent, exchange agent, rights agent, warrant agent, registrar
or any similar function for either CBC or Aquila.
3. Amend Article I.B.36 to read:
36. "Eligible Rights Holder" means a holder of Rights
(or in the case of Rights held in street name, each
beneficial owner) who has subscribed for all of the Units to
which he is entitled under his basic Rights.
4. Amend Article I.B.67 to read:
67. "Record Date" means the record date for purposes of
making distributions under the Plan to holders of Old Common
Stock on account of Allowed Interests, which date shall be
the Consummation Date.
5. Amend the third sentence of the first paragraph of
Article IV.E.1 to read:
In addition, each holder of a Right (or in the case of
securities held in street name, each beneficial owner) who
has fully exercised his basic Right to purchase one Unit for
each Right received (an "Eligible Rights Holder") also has
the right to purchase any desired number of Units that have
- 3 -<PAGE>
not been subscribed for by the holders of other Rights (the
"Oversubscription Rights"), subject to proration if
oversubscribed.
6. Amend Article IV.F by adding the following to the end
thereof:
John Nelson and Elliot Hillback shall serve as Class I
Directors; Alison Taunton-Rigby shall serve as a Class II
Director; and Jeffrey Beaver shall serve as a Class III
Director (as such Classes are described in the Aquila
Certificate of Incorporation). The Aquila Board of Directors
shall appoint as a fifth director Mr. Keith J. Dorrington, a
candidate nominated by the Equity Committee, who shall serve
as a Class III Director. Mr. Dorrington shall be one of the
members of the Nominating Committee established under the
Aquila By-Laws.
7. Amend the second sentence of the second paragraph
of Article IV.I to read:
On the Consummation Date, the Old Common Stock Interests
shall be transferred to Aquila in exchange for the interests
in Aquila to which Class VI Claimants are entitled under this
Plan and Reorganized CBC shall issue a single certificate for
100 shares of common stock (which shall constitute all
outstanding capital stock of Reorganized CBC) to Aquila, and
the stock certificates for the Old Common Stock shall be
deemed canceled and of no force and effect without further
action on the part of the Bankruptcy Court or any Person.
- 4 -<PAGE>
8. Amend the second sentence of the second paragraph of
Article IV.I to read:
Pending such surrender, the certificates for the Old
Common Stock shall be deemed canceled and shall represent
only the right to receive the distributions to which the
holder is entitled under the Plan.
9. Amend IV.I by adding the following to the end thereof:
On the Consummation Date, the certificates for the
initial Aquila common stock held by CBC will be automatically
canceled.
B. Certificate of Incorporation
Amend the Certificate of Incorporation of Aquila
Biopharmaceuticals, Inc. which is Exhibit B-1 to the Plan as
follows:
10. Amend Article FIFTH, Paragraph A, first paragraph, to
change the number of shares of preferred or special stock
authorized to be issued from 1,500,000 to 5,000,000 shares.
11. Amend Article FIFTH, Paragraph C, the first clause of
the first paragraph to read:
"Subject to any limitation prescribed by law or by
Paragraph D of this Article FIFTHd Article FIFTH by adding a
new Paragraph D to read as follows:
D. Limitations on Issuance of Preferred Stock During
Initial Period
- 5 -<PAGE>
The authority of the board of directors to establish a
class or series of preferred stock under Paragraph C above is
subject to the following limitations:
(a) Prior to the conclusion of the Initial Special
Meeting described in Paragraph E of Article SIXTH, no class
or series of preferred stock shall be established or shares
thereof issued unless approved either (i) by a unanimous vote
of the board of directors, or (ii) by vote of a majority of
the shares of capital stock represented in person or by proxy
at a meeting of stockholders.
(b) From the conclusion of the Initial Special Meeting
until the conclusion of the corporation's 1997 annual
meeting, no class or series of preferred stock shall be
established or shares thereof issued unless (i) if there are
then five directors, it was approved by at least three
directors, and (ii) if there are then six or seven directors,
it was approved by a majority of the directors present and
voting, including a majority of all of the "approved
directors." For purposes of this Paragraph D, an approved
director means any director who either (i) was elected at the
Initial Special Meeting or (ii) was nominated for director
pursuant to Section IV.F of the Reorganization Plan (as
defined below) by the Equity Committee defined in the
Reorganization Plan. The Reorganization Plan means Cambridge
Biotech Corporation's reorganization plan confirmed by the
Bankruptcy Court in the Chapter 11 proceeding filed by
Cambridge Biotech Corporation in the United States Bankruptcy
- 6 -<PAGE>
Court for the District of Massachusetts, Case No. 94-43054-
JFQ (the "Chapter 11 Case").
13. Amend the first sentence of Article SIXTH, Paragraph E,
third paragraph, to read as follows:
The corporation shall call a special meeting of
stockholders for the later of (i) December 15, 1996, or (ii)
the date which is ninety (90) days after the Consummation
Date established pursuant to the Reorganization Plan, or if
such date is not a business day, then on the next business
day (the "Initial Special Meeting").
14. Amend the fourth paragraph of Article SIXTH, paragraph E
by adding two additional sentences at the end thereof to read
as follows:
The number of directors may not be increased to more
than seven prior to the conclusion of the 1997 annual meeting
of stockholders. Any additional directors appointed by the
board of directors or elected by stockholders prior to the
1997 annual meeting of stockholders shall be "independent
directors" as defined by the Council of Institutional
Investors.
15. Amend the first line of Article SEVENTH, second
paragraph, by adding the phrase "or Article SIXTH" after the
word "law."
16. Amend Articles FIFTH, SIXTH, and NINTH to correct cross-
references and conform defined terms as a result of the
foregoing changes.
- 7 -<PAGE>
C. Amendments to Bylaws
Amend the Bylaws of Aquila which are Exhibit B-2 to the
Plan as follows:
17. Amend Article I, Section 10 to read as follows:
Section 10. Action at Meetings. When a quorum is
present at any meeting, a plurality of the votes properly
cast for election to any office shall elect to such office,
and a majority of the votes properly cast shall decide any
other question brought before such meeting, unless the
question is one upon which by express provision (whether of
law, the certificate of incorporation or these by-laws) a
different vote is required, in which case such express
provision shall govern and control the decision of such
question.
18. Amend Article II, Section 1 to read as follows:
Section 1. Number, Election, Tenure and
Qualification. The number of directors which shall
constitute the whole board shall be not less than one.
Except as otherwise fixed pursuant to the provisions of
Articles FIFTH or SIXTH of the certificate of incorporation,
the number of directors of the corporation shall be fixed by
resolution duly adopted from time to time by the board of
directors. The directors, other than those who may be
elected by the holders of any class or series of preferred
stock, shall be classified, with respect to the term for
which they severally hold office, into three classes, as
nearly equal in number as possible as determined by the board
- 8 -<PAGE>
of directors. Except as provided in Section 4 of this
Article or Article SIXTH of the certificate of incorporation,
the directors shall be elected at the annual meeting of the
stockholders, and each director elected shall hold office
until his successor is elected and qualified or until his
earlier death, resignation or removal. Directors need not be
stockholders.
19. Amend Article II, Section 2 by adding to the beginning
thereof the phrase, "Subject to the provisions of Article
SIXTH of the Certificate of Incorporationd Article II,
Section 3, first paragraph, first sentence, clause (a) by
deleting the phrase "the board of directors or a subcommittee
thereof" and inserting in lieu thereof the phrase "the
nominating committee established pursuant to Section 14 of
this Article II."
21. Amend Article II, Section 3, second paragraph, both the
first and the last sentences thereof, by deleting the phrase
"board of directors or a committee thereof" and inserting in
lieu thereof the phrase "the nominating committee".
22. Amend Article II by renumbering Section 15 as Section 16
and inserting a new Section 15 to read as follows:
Section 15. Nominating Committee. The board of
directors shall appoint a nominating committee which shall be
responsible for selecting the nominees of the board of
directors for election as directors of the corporation. The
nominating committee shall consist of not less than three nor
more than five members.
- 9 -<PAGE>
23. Amend Exhibit F, the Rights and Warrants Agreement and
the form of the Rights Certificate which is an exhibit
thereto, to the extent required to conform to any of the
foregoing amendments to the Plan.
D. Amendments to Plan Exhibits
Amend Exhibits G (Assumed Contracts) and I (Assumed and
Assigned Contracts) to include those items listed on Exhibit
A hereto (which generally represent additional post-petition
contracts to be assumed by CBC and assigned to Aquila).
4. Because the Modifications do not adversely change the
treatment of the claim of any creditor or the interests of any
equity security holder, pursuant to Fed. R. Bankr. Proc. 3019, the
Court should deem the Modifications accepted by all creditors and
equity security holders who have previously accepted the Plan.
WHEREFORE, CBC respectfully requests that the Court:
1. Enter an order in the form attached hereto finding that
the Modifications do not adversely change the treatment of the
claim of any creditor or the interest of any equity security
holder and deeming the Modifications accepted by all creditors and
equity security holders who have previously accepted the Plan; and
2. Grant to CBC such other relief as appropriate and just
under the circumstances.
- 10 -<PAGE>
Dated: July 15, 1996 Respectfully submitted,
CAMBRIDGE BIOTECH CORPORATION,
By its attorneys,
Joseph F. Ryan
Jeffrey L. Jonas
Anthony L. Gray
BROWN, RUDNICK, FREED & GESMER,
P.C.
One Financial Center
Boston, MA 02111
617-856-8200
#497396 v1 - JONASJL - @nsk01!.DOC - 18017/1
- 11 -<PAGE>
EXHIBIT A
(Additions to Exhbiits G and I to Plan)
Agreements Date Cost
to Cure
Advanced BioScience Laboratories, Inc. 5/21/96 0
Advanced BioScience Laboratories, Inc. 5/21/96 0
Bergen Community Regional Blood Center 4/25/96 0
bioMerieux Vitek/Aquila Biopharmaceuticals 4/4/96 0
bioMerieux Vitek, Inc. 5/23/96 0
Calypte Biomedical Corporation 4/12/96 0
Calypte Biomedical Corporation 4/12/96 0
Carter-Wallace, Inc. 5/3/96 0
Cottingham, Hugh 5/3/96 0
Diatech Diagnostics, Inc. 3/12/96 0
Eisenwinter, Ronald Keith 5/18/96 0
Hale and Dorr 4/11/96 0
Institut Fur Med. Mikrobiologie und Hygiene, 4/9/96 0
Der Technischen universitat Munchen
Kemp Biotechnologies 5/20/96 0
Knox College 4/4/96 0
Knox College 4/4/96 0
Mallinckrodt Veterinary, Inc. 3/20/96 0
Mallinckrodt Veterinary, Inc. 5/15/96
Mallinckrodt Veterinary, Inc. 5/15/96 0
New York Medical College 5/3/96 0
Prochrom, Inc. 5/1/96 0
Statistics Unlimited, Inc. 5/13/96 0
Stroock & Stroock & Lavan 5/3/96 0
Swiss Tropcial Institute 3/18/96 0
University of Massachusetts - Lowell 5/16/96 0
University of Washington 4/1/96 0
Viral Technologies, Inc. 4/26/96 0
Any executory contracts entered into by CBC on or after 5/31/96
(except that certain Agreement dated 6/9/96 with Direct
Diagnostics which will be assumed but not assigned).
- 12 -
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MASSACHUSETTS
)
In re: ) Chapter 11
)
CAMBRIDGE BIOTECH CORPORATION, ) Case No. 94-43054-JFQ
)
Debtor )
)
ORDER APPROVING MODIFICATIONS TO PLAN
PURSUANT TO SECTION 1127 OF THE
BANKRUPTCY CODE AND FED. R. BANKR. PROC. 3019
On the Motion of Cambridge Biotech Corporation Pursuant to
Section 1127 of the Bankruptcy Code and Fed. R. Bankr. Proc. 3019.
For Approval of Modifications to Plan (the "Modification Motion"),
after notice and hearing as appropriate under the circumstances,
it is hereby FOUND, ORDERED, ADJUDGED and DECREED that the
Modifications (as defined (and described) in the Modification
Motion) do not modify the Plan (as defined in the Modification
Motion) so that it fails to meet the requirements of Sections 1122
and 1123 of the Bankruptcy Code and do not adversely change the
treatment of the claim of any creditor or the interest of any
equity security holder. Accordingly, the Modifications are deemed
accepted by all creditors and equity security holders who have
previously accepted the Plan.
Dated: July ____, 1996
James F. Queenan
United States Bankruptcy Judge
#497398 v1 - JONASJL - @nsm01!.DOC - 18017/11
- 1 -
CAMBRIDGE BIOTECH CORPORATION
(Debtor-In-Possession)
Consolidated Balance Sheets
(Unaudited)
(In Thousands)
Assets 6/30/96 12/31/95
-------- --------
Current Assets:
Cash and cash equivalents $13,876 $ 6,856
Restricted Cash 1,000 0
Marketable Securities 0 216
Accounts receivable
-trade (net of allowance
for doubtful accounts) 2,828 2,638
Other receivables 131 126
Inventories 4,856 4,368
Prepaid expenses & other
current assets 455 695
------ ------
Total Current Assets 23,146 14,899
Investments 300 0
Property, plant, and equipment,
net 5,613 6,986
Patents and purchased
technology, net 503 1,055
Other assets 105 105
------ ------
Total Assets $ 29,667 $23,045
======= =======
Liabilities & Shareholders'
Equity
Current Liabilities:
Accounts payable $ 626 850
Accrued royalties 776 1,192
Accrued professional fees 1,142 753
Accrued incentive
compensation 1,226 1,458
Accrued restructuring costs 211 257
Other accrued expenses 2,791 2,001
Deferred revenue 3,156 411
------ -----
Total Current Liabilities 9,928 6,922
Deferred Revenue 1,879 2,287
Liabilities subject to
Chapter 11 proceedings 9,886 9,880
------ -----
Total Liabilities 21,693 19,090
Minority Interest 10 9
Shareholders' Equity:
Preferred Stock, par value:
$.01 per share, authorized:
5,000,000 shares, none issued 0 0
Common stock, par value:
$.01 per share, authorized:
40,000,000 shares, issued:
26,057,006 shares 261 261
Additional paid in
capital 120,382 120,382
Unearned compensation (138) (138)
Deficit (112,541) (116,559)
------- -------
Total Shareholders'Equity 7,964 3,946
------- -----
Total Liabilities and
Shareholder's Equity $29,667 $23,045
======= ========
The accompanying notes are an integral part of these unaudited consolidated
financial statements.
- -----------------------------------------------------------------------------
