UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 2)
ANTEX BIOLOGICS INC.
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(Name of Issuer)
Common Stock, $.01 Par Value
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(Title of Class of Securities)
03672W-100
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(CUSIP Number)
Edgar B. Cale III, SmithKline Beecham Corporation
One Franklin Plaza, Philadelphia, PA 19102
Telephone 215-751-3027
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
September 13, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP NO. 03672W-100 Page 2 of 6 Pages
This Amendment No. 2 further amends and supplements the Statement on Schedule
13D electronically filed with the Securities and Exchange Commission (the
"Commission") on May 17, 1996 (the "Initial Statement") by SmithKline Beecham
Biologicals Manufacturing s.a. and amended on June 5, 1996.
The undersigned hereby amends and supplements Items 5 and 6 of the Initial
Statement by the following information (capitalized terms used herein without
definition shall have the same meaning as set forth in the Initial Statement).
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SCHEDULE 13D
CUSIP NO. 03672W-100 Page 3 of 6 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
SmithKline Beecham Biologicals Manufacturing s.a.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Belgium
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7 SOLE VOTING POWER
NUMBER OF
SHARES 8,327,222
BENEFICIALLY
OWNED BY -------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON None
WITH
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9 SOLE DISPOSITIVE POWER
8,327,222
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10 SHARED DISPOSITIVE POWER
None
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,327,222
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.76%
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14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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Page 4 of 6 Pages
Item 1. Security and Issuer.
Item 2. Identity and Background.
Item 3. Source and Amount of Funds or Other Consideration.
Item 4. Purpose of Transaction.
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Page 5 of 6 Pages
Item 5. Interest in Securities of the Issuer.
(a) Amount and Percent Beneficially Owned
Registered Name Class No. of Shares Percent
SmithKline Beecham
Biologicals
Manufacturing s.a. Common Stock 8,327,222 20.76%
(b) Power to Vote and Dispose of Shares
SBBM has sole voting and investment power to vote and to dispose
of all the shares of Common Stock identified in subparagraph (a) above.
(c) Transactions in the Class of Securities
On September 13, 1999, SBBM exchanged 262.5 shares of common
stock of MHVI owned by it for 3,595,264 shares of Common Stock identified in
subparagraph (a) above pursuant to the terms and conditions of an Exchange
Option Agreement dated May 6, 1996 between SBBM and Issuer. On September 13,
1999, SBBM's Warrant dated May 6, 1996 to purchase shares of common Stock was
amended and restated to, among other things, change the number of shares of
Common Stock purchasable thereunder to 3,865,769, with an additional 866,189
shares of Common Stock purchasable thereunder if Issuer is provided with
$666,667 in research and development funding prior to October 1, 1999.
(d) Right to Receive or Power to Direct the Receipt of Dividends from,
or Proceeds from the Sale of, such Securities
None.
Item 6. Contracts, Arrangements, Understandings or Relationship with respect
to Securities of the Issuer.
Pursuant to the terms of an Omnibus Agreement effective as of
September 1, 1999, the transactions described in Item 5(c) were effected, the
Exchange Option Agreement was cancelled and the Stock Purchase Agreement was
cancelled. Under the Omnibus Agreement, Issuer retains a right of first offer
originally granted in the Stock Purchase Agreement with respect to certain sales
by SBBM of shares of Common Stock.
Item 7. Materials to be Filed as Exhibits.
Exhibit 1. Omnibus Agreement effective as of September 1, 1999.
Exhibit 2. Amended and Restated Warrant effective as of
September 1, 1999.
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Page 6 of 6 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, the undersigned certifies that the information set forth in the
Statement is true, correct and complete.
SMITHKLINE BEECHAM BIOLOGICALS MANUFACTURING S.A.
By:/s/ Jean Stephenne
------------------------------
Jean Stephenne
President, General Manager
DATED: September 24, 1999
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OMNIBUS AGREEMENT
This OMNIBUS AGREEMENT dated September 13, 1999 is by and among
SmithKline Beecham Biologicals Manufacturing s.a., a Belgian corporation ("SB
Bio"),SmithKline Beecham plc, an English corporation ("SB plc"), Antex Biologics
Inc., a Delaware corporation formerly known as Microcarb Inc. ("Antex") and
Microcarb Human Vaccines Inc., a Delaware corporation ("MCHV"). This OMNIBUS
AGREEMENT shall be effective as of September 1, 1999 (the "Effective Date").
WITNESSETH:
WHEREAS, SmithKline Beecham Corporation, MCHV and Antex were
parties to a Research and Development, Research Support and License Agreement
dated May 6, 1996 (the "Original License Agreement") that was terminated
effective as of September 1, 1999;
WHEREAS, SB Bio, Antex and MCHV are parties to a Stock Purchase
Agreement dated May 6, 1996 (the "Stock Purchase Agreement") pursuant to which,
among other things, SB Bio acquired 262.5 shares of the common stock, par value
$.01 per share, of MCHV (the "MCHV Common Stock") and Antex acquired 737.5
shares of the MCHV Common Stock;
WHEREAS, SB Bio, Antex and MCHV are parties to an Exchange Option
Agreement dated May 6, 1996 (the "Exchange Option Agreement") pursuant to which,
among other things, Antex granted SB Bio an option to exchange its shares of the
MCHV
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Common Stock for shares of the common stock, par value $.01 per share of Antex
(the "Common Stock");
WHEREAS, SB Bio, Antex and MCHV are parties to a Stockholders
Agreement dated May 6, 1996 (the "Stockholders Agreement") which provides, among
other things, for the corporate governance of MCHV;
WHEREAS, Antex and SB Bio are parties to a Warrant dated May 6,
1996 (the "Warrant") pursuant to which Antex granted SB Bio the right to
purchase certain shares of the Common Stock;
WHEREAS, Antex and SB Bio are parties to a Registration Rights
Agreement dated May 6, 1996 (the "Registration Rights Agreement") pursuant to
which Antex granted SB Bio certain rights to register certain shares of the
Common Stock owned by SB Bio following its exercise of the Warrant; and
WHEREAS, the parties hereto desire to (i) enter into a new
research and development, research support and license agreement (ii) terminate
the Stock Purchase Agreement (other than Sections 11.8, 11.9 and 11.10 thereof);
(iii) exchange 262.5 shares of MCHV Common Stock owned by SB Bio for 3,595,264
shares of the Common Stock pursuant to the Exchange Option Agreement and
terminate the Exchange Option Agreement; (iv) merge MCHV with and into Antex;
(v) terminate the Stockholders Agreement; (vi) amend and restate the Warrant;
(vii) amend and restate the Registration Rights Agreement; and (viii) provide SB
Bio with visitation rights for meetings of the Board of Directors of Antex.
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NOW, THEREFORE, in consideration of the premises and of the
representations, warranties and covenants which are to be made and performed by
the respective parties hereto, the parties hereto, intending to be legally
bound, agree as follows.
Article I
Entrance into New License Agreement
Section 1.1. Entrance into New License Agreement. Contemporaneous
with the execution and delivery of this Agreement by all of the parties hereto,
SB plc and Antex shall execute and deliver a new Research and Development,
Research Support and License Agreement (the "New License Agreement") in form of
Exhibit A attached hereto.
Article II
Termination of Stock Purchase Agreement
Section 2.1. Termination of Stock Purchase Agreement.
Contemporaneous with the execution and delivery of this Agreement by all of the
parties hereto, the Stock Purchase Agreement shall be terminated; provided,
however, that the provisions of Sections 11.8, 11.9 and 11.10 thereof are
restated herein and shall continue in full force and effect. Sections 11.8, 11.9
and 11.10 provide as follows:
Section 11.8 Standstill Obligations. For a period of ten (10) years
from May 6, 1996, except with the prior consent of Antex, which consent may not
be unreasonably withheld, SB Bio and its Affiliates, as defined below, shall
not, directly or indirectly, acquire
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any Equity Securities, as defined below (except by way of (i) stock splits,
stock dividends or other distributions or offerings made available to other
holders of Common Stock generally, or (ii) stock options, warrants or other
rights to purchase Common Stock approved by the Board of Directors of Antex) if
the effect of such acquisition would be to increase the total percentage
interest of SB Bio and its Affiliates, as defined below, in any class of the
Equity Securities to more than twenty-eight percent (28%) (the "Threshold
Percentage") of the then outstanding shares of any class of the Equity
Securities; provided that:
(a) SB Bio may acquire Equity Securities without regard to the
limitations set forth above if any of the following events shall occur:
(i) If a bona fide tender or exchange offer is made by
any Person, as defined below, or 13D Group, as defined
below (other than an Affiliate of SB Bio) to acquire shares of Common Stock
which, if added to the shares of Common Stock, if any, already owned by such
Person or 13D Group, would represent ownership of the then outstanding shares of
Common Stock greater than the Threshold Percentage; or
(ii)If it is publicly disclosed or SB Bio otherwise
learns that shares of Common Stock representing more than
twenty percent (20%) of the then outstanding shares of Common Stock have been
acquired in a nonpublic transaction or that a bona fide offer has been made to
acquire more than twenty percent (20%) of the then outstanding shares of Common
Stock in a nonpublic transaction by any Person or 13D Group (other than an
Affiliate of SB Bio).
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(b) SB Bio shall not be obligated to dispose of any shares of
Common Stock if the aggregate percentage ownership of SB Bio is increased as a
result of (i) a recapitalization of Antex, (ii) a repurchase of shares of Common
Stock by Antex or (iii) any other reason not in violation of this Agreement.
(c) If any event identified in Section 11.8(a)(i) or (ii)
occurs, SB Bio shall be permitted to take such action and make such offers as
may be considered to be of the same nature and type of action or offer and
directed to the same Person or Persons and for the same resulting number of
shares as that which is being taken by such Person or 13D Group. In proceeding
with any action or offer permitted under this Section 11.8, SB Bio shall be
permitted to offer more favorable terms such as price, cash versus securities or
other such terms as may be consistent with an offer of the same nature and type
of consideration as that which is being proposed by such Person or 13D Group.
(d) In the event that SB Bio or an Affiliate sells, assigns or
otherwise transfers five percent (5%) or more of the then outstanding shares of
Common Stock, or sells, assigns or otherwise transfers any shares of Common
Stock to a Person to whom SB Bio or an Affiliate has previously sold, assigned
or transferred any shares of Common Stock, or to any Person, so that upon such
sale, assignment or transfer, such Person owns in the aggregate five percent
(5%) or more of the then outstanding shares of Common Stock at a price per share
of Common Stock which is greater than the sum of (a) $.37 and (b) the product of
(i) the number of months from May 6, 1996 to the date of such sale, assignment
or other transfer pursuant to Section 11.9(c) and (ii) $.37 and (iii) .0167,
than
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the standstill obligations of this Section 11.8 shall be binding upon the
Person who purchases such shares. Except as set forth in the immediately
preceding sentence, the standstill obligations of this Section 11.8(d) shall not
be binding upon any Person who purchases shares of Common Stock from SB Bio or
an Affiliate.
Section 11.9. Transfer by SB Bio of Shares of Common Stock.
(a) SB Bio may sell, assign or otherwise transfer shares of
Common Stock from time to time owned by it to Affiliates without restriction.
Notwithstanding the preceding sentence, neither SB Bio nor its Affiliates may
sell, assign or otherwise transfer shares of Common Stock except in accordance
with the terms of this Agreement.
(b) Except as otherwise provided in Section 11.9(c), SB Bio may
sell, assign or otherwise transfer shares of Common Stock from time to time
owned by it which have been registered with the Securities and Exchange
Commission without restriction. Except as otherwise provided in Section 11.9(c),
SB Bio may sell, assign or otherwise transfer shares of Common Stock from time
to time owned by it which have not been registered with the Securities and
Exchange Commission without restriction other than the requirements of Rule 144
promulgated under the Securities Act of 1933, as from time to time in effect,
including the volume limitations under Rule 144 irrespective of whether Rule
144(k) applies.
(c) If at any time prior to May 6, 2006 SB Bio proposes to sell
five percent (5%) or more of the then outstanding shares of Common Stock, SB Bio
shall give written notice (the "Transfer Notice") to Antex specifying the number
of shares of Common Stock
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that SB Bio desires to transfer (the "Transfer Stock") and the price at which SB
Bio is offering to sell the Transfer Stock (the "Offering Price"). The Transfer
Notice shall constitute an offer to sell all, but not less than all, of the
Transfer Stock to Antex (or its designee) at the Offering Price with payment in
immediately available funds. Antex or its designee shall have a period of thirty
(30) calendar days to accept SB Bio's offer to sell all, but not less than all,
of the Transfer Stock and an additional period of sixty (60) calendar days after
the date that it accepts SB Bio's offer contained in the Transfer Notice to
complete the purchase of all, but not less than all, of the Transfer Stock at
the Offering Price. If Antex or its designee does not accept the offer contained
in the Transfer Notice without modification within the time period prescribed in
the preceding sentence, declines the offer contained in the Transfer Notice or
accepts the offer contained in the Transfer Notice without modification, but
fails to complete the purchase of all of the Transfer Stock within the time
period specified in the preceding sentence, SB Bio may sell any or all of the
Transfer Stock at an offering price which is not less than the Offering Price
for a period of one (1) year from the date of the Transfer Notice. If SB Bio has
not sold the Transfer Stock within such one (1) year period from the date of the
Transfer Notice, SB Bio must comply with the provisions of this Section 11.9(c)
prior to consummating any sale of such Transfer Stock. If SB Bio proposes to
sell any of the Transfer Stock which constitutes five percent (5%) or more of
the then outstanding shares of Common Stock within such one (1) year period for
a price which is less than the Offering Price specified in the Transfer Notice,
SB Bio must comply with the provisions of this Section 11.9(c) prior to
consummating any sale of such Transfer Stock.
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Section 11.10 Non-Solicitation of Employees. For a period
commencing on the date of this Agreement and ending two (2) years after the
expiration of the New License Agreement (the "Non-Solicitation Period"), SB Bio
and Antex each agree that neither they nor their Affiliates shall solicit,
without the prior consent of the other party, for employment any individual who
is employed by such other party during the Non-Solicitation Period so long as
such individual is employed by the other party.
Section 2.2 Definitions. For purposes of thisArticle II, the
following terms shall have the following meanings:
(i) "13D Group" means any group of Persons formed for the purpose
of acquiring, holding, voting or disposing of Common Stock (or any other class
of the Equity Securities) which would be required under the Exchange Act to file
a statement on Schedule 13D with the Securities and Exchange Commission as a
"person" within the meaning of Section 13(d)(3) of the Exchange Act if such
group beneficially owned sufficient securities to require such a filing under
the Exchange Act.
(ii)"Affiliate" of another Person means a Person which directly or
indirectly owns, is owned by or is under common ownership with another Person to
the extent of at least fifty percent (50%) of the equity (or such lesser
percentage which is the maximum allowed to be owned by a foreign corporation in
a particular jurisdiction) having the power to vote on or direct the affairs of
the entity and any Person actually controlled by, controlling or under common
control with another Person.
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(iii) "Equity Securities" shall mean the Common Stock and the
Preferred Stock, par value $.01 per share, of Antex.
(iv) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by the Securities
and Exchange Commission.
(v) "Person" means and includes an individual, a partnership, a
joint venture, a corporation or trust, an unincorporated organization, a group
or a government or other department or agency thereof.
Article III
Exchange of MCHV Common Stock for Common Stock;
Termination of Exchange Option and Stockholders Agreement;
Merger of MCHV with and into Antex
Section 3.1. Exchange of MCHV Common Stock for Common Stock.
Contemporaneous with the execution and delivery of this Agreement by all of the
parties hereto, (i) SB Bio shall deliver to Antex the original stock certificate
representing 262.5 shares of MCHV Common Stock registered in SB Bio's name and
(ii) Antex shall deliver to SB Bio a duly executed stock certificate
representing 3,595,264 shares of the Common Stock registered in SB Bio's name,
which exchange shall be completed pursuant to the Exchange Option Agreement.
Following the completion of such exchange, the Exchange Option Agreement shall
be terminated, cancelled and of no further force or effect.
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Section 3.2. Termination of the Stockholders Agreement.
Contemporaneous with the execution and delivery of this Agreement by all of the
parties hereto, the Stockholders Agreement shall be terminated, cancelled and of
no further force or effect.
Section 3.3. Merger of MCHV with and into Antex. Contemporaneous
with the execution and delivery of this Agreement by all of the parties hereto,
Antex and MCHV shall execute and file with the Secretary of State of Delaware a
Certificate of Merger in the form of Exhibit B attached hereto.
Article IV
Amendment of the Warrant
Section 4.1. Amendment of the Warrant. Contemporaneous with the
execution and delivery of this Agreement by all of the parties hereto, (i) SB
Bio shall deliver to Antex the original Warrant and (ii) Antex shall deliver to
SB Bio a duly executed Amended and Restated Warrant in the form of Exhibit C
attached hereto.
Article V
Amendment of the Registration Rights Agreement
Section 5.1. Amendment of the Registration Rights Agreement.
Contemporaneous with the execution and delivery of this Agreement by all of the
parties hereto, SB Bio and Antex shall execute and deliver to one another an
amended and restated Registration Rights Agreement in the form of Exhibit D
attached hereto.
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Article VI
Board Visitation Rights
Section 6.1. Board Visitation Rights. For so long as SB Bio or any
or its Affiliates own in the aggregate at least ten percent (10%) of the
outstanding shares of Common Stock (such outstanding shares calculated without
taking into account any shares of Common Stock issuable upon exercise or
conversion of any exercisable or convertible securities), Antex shall (i)
provide SB Bio notice of each meeting of Antex's Board of Directors (the
"Board") at the same time and in the same manner as it provides notice of such
meeting to any other member of the Board; (ii) provide SB Bio all written
materials provided to members of the Board in anticipation of, and at, each
meeting of the Board at the same time and in the same manner as it provides such
written materials to any other member of the Board; and (iii) allow one
representative of SB Bio (or any of its Affiliates)(the "SB Bio Representative")
to attend in a non-voting, observer capacity each meeting of the Board in person
or, to the extent the meeting of the Board is to be held by teleconference, to
attend such meeting by telephone conference call. Each SB Bio Representative
must be approved by the Board of Directors of Antex in advance of any meeting of
the Board, such approval not to be unreasonably withheld or delayed; provided,
however, that at each annual meeting of shareholders of Antex, the Board of
Directors shall pre-approve three (3) acceptable SB Bio Representatives who
shall be deemed approved by the Board of Directors until the next annual meeting
of shareholders of Antex. Until the next annual meeting of shareholders of Antex
(expected to be in June 2000), the approved SB Bio Representatives shall be
Oliver Boucher, Moncef Slaoui and Jean Stephenne, with
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Oliver Boucher designated as the primary SB Bio Representative. All information
which is received by SB Bio in connection with the exercise of its rights under
this Section 6.1 shall be held by it in accordance with the confidentiality
provisions of the New License Agreement. Notwithstanding the foregoing, it is
understood and agreed that Antex reserves the right to withhold any information
and to exclude the SB Bio Representative from any meeting or portion thereof to
the extent access to such information or attendance at such meeting (i) would
adversely affect the attorney-client privilege between Antex and its counsel or
(ii) would violate an obligation of confidentiality to a third party.
Article VII
Representations and Warranties of Antex
Antex represents and warrants to SB Bio and SB plc, and SB Bio and
SB plc in agreeing to consummate the transactions contemplated by this Agreement
and each of the agreements attached as exhibits to this Agreement (collectively
the "Related Agreements") have relied upon such representations and warranties,
that, as of the signature date of this Agreement:
Section 7.1. Valid and Binding Agreements; Status of Common Stock.
Antex has all requisite corporate power and authority and has taken all
necessary corporate action to enter into this Agreement and the Related
Agreements to which it is a party and to consummate the transactions
contemplated hereby and thereby including without limitation the merger of MCHV
with and into Antex. The shares of the Common Stock delivered to SB Bio pursuant
to Section 3.1 are duly authorized, validly issued, fully paid
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and nonassessable shares of the Common Stock, free and clear of all liens,
security interests, pre-emptive rights, claims and other encumbrances. This
Agreement and the Related Agreements to which Antex is a party have been duly
and validly executed and delivered by Antex, and constitute valid and binding
agreements of Antex, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization or similar laws relating to creditors'
rights generally.
Section 7.2. Corporate Organization.
(a) Antex is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has the requisite
power and authority to carry on its business as currently conducted and to own
the properties and assets it now owns.
(b) Antex is duly licensed or qualified to do business as a
foreign corporation, and is in good standing, in Maryland. The nature of Antex's
business does not require it to be qualified to conduct business in any other
jurisdictions.
(c) The copies of the certificate of incorporation, and all
amendments thereto, of Antex as certified by the appropriate authorities of
Delaware, and the by-laws, as amended to date, of Antex, as certified by its
Secretary, which have heretofore been delivered to SB Bio, are true, complete
and correct copies of the articles of incorporation and by-laws of Antex, as
amended and in effect on the date hereof.
Section 7.3. Capitalization.
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(a) The authorized capital stock of Antex consists solely of
95,000,000 shares of the Common Stock, of which 25,863,726 shares are issued and
outstanding, and 5,000,000 shares of preferred stock, par value $.01 per share,
of which none are issued or outstanding. The issued and outstanding shares of
the Common Stock are duly authorized, validly issued, fully paid and
nonassessable, and none of the issued and outstanding shares of the Common Stock
were issued in violation of the preemptive rights of any person.
(b) Except as set forth in Section 7.3(a) and on Schedule 7.3, (i)
there are no shares of capital stock or other equity securities of Antex
outstanding, (ii) there are no outstanding subscriptions, options, warrants or
rights to purchase or acquire any equity securities of, (iii) no equity
securities of Antex are reserved for issuance for any purpose, and (iv) there
are no contracts, commitments, agreements, understandings, arrangements or
restrictions, whether written or oral, to which Antex is a party or by which
Antex is bound relating to any shares of the capital stock or other equity
securities of Antex, whether or not outstanding.
Section 7.4. Subsidiaries and Affiliates. Antex owns no capital
stock of any other person or has any other type of interest (whether ownership
or other) in any other person other than MCHV and Antex Pharma Inc. Antex is not
subject to any obligation or requirement to provide funds for, or to make any
investment (in the form of a loan, capital contribution or otherwise) to or in,
any person.
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Section 7.5. No Violation, Etc. Neither the execution and delivery
of this Agreement or the Related Agreements to which Antex is a party nor the
consummation of the transactions contemplated hereby or thereby nor compliance
by Antex with any of the provisions hereof or thereof will (i) violate or
conflict with any provisions of Antex's certificate of incorporation or by-laws,
(ii) violate or conflict with any statute, code, ordinance, rule, regulation,
judgment, order, writ, decree or injunction applicable to it, or (iii) violate,
or conflict with, or result in a breach in any provision of, or constitute a
default (or any event that, with or without due notice or lapse of time, or
both, would constitute such a default) under, or result in the termination of,
accelerate the performance required by, or result in the creation of any lien,
security interest, charge or other encumbrance upon the 3,595,264 shares of
Common Stock received pursuant to Section 3.1 or any of the properties or assets
of Antex under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation of which Antex is a party or by which it or any of its
assets is bound.
Section 7.6. Consents and Approvals. No permit, consent, approval
or authorization of, or declaration, filing or registration with, any
governmental authority is necessary in connection with the execution and
delivery by Antex of this Agreement or the Related Agreements to which it is a
party or the consummation by Antex of the transactions contemplated hereby or
thereby and no consent of any third party is required to consummate any of the
transactions contemplated hereby or thereby.
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Section 7.7. Disclosure. No representation or warranty made by or
on behalf of Antex contained in this Agreement or the Related Agreements to
which it is a party, and no statement contained in the Schedules hereto or
thereto or any certificate or other document furnished to SB Bio pursuant to the
provisions hereof or thereof, contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary in order
to make the statements herein or therein, in light of the circumstances under
which such statements are made, not misleading.
Section 7.8. Securities and Exchange Commission Documents. Antex
has timely filed with the Securities and Exchange Commission all material
filings (the "Commission Documents") required to be filed by it pursuant to the
Exchange Act and the Securities Act of 1933, and the Commission Documents
complied in all material respects with the Exchange Act and the Securities Act
of 1933, and none of the Commission Documents contain any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements contained therein not misleading. SinceJune 30, 1999, Antex has
conducted its business only in the ordinary course and in substantially the same
manner as previously conducted and there has not been any material adverse
change in the business, financial condition or prospects of Antex.
Section 7.9. Authorization of Reserved Shares. On the date hereof,
the issuance, sale and delivery by Antex of the Common Stock issuable upon the
exercise of the Amended and Restated Warrant (the "Reserved Shares") have been
duly authorized by all requisite corporate action of Antex and have been duly
reserved for issuance, and when so
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issued, sold, paid for and delivered in accordance with the terms of the Amended
and Restated Warrant, the Reserved Shares will be validly issued, fully paid and
nonassessable, and not subject to any preemptive rights of any stockholder of
Antex.
Section 7.10. Litigation. There are no (a) legal, administrative
or arbitrable claims, actions, suits, proceedings, investigations or inquiries
pending or threatened by or pending or, to the knowledge of Antex, threatened
against Antex, and (b) judgments, decrees, arbitration awards, agreements or
orders binding upon Antex. No material claims have been asserted against Antex
since its incorporation on September 15, 1992. Antex is not aware and has no
reason to be aware of any basis for any claim, action, suit, proceeding,
investigation or inquiry.
Section 7.11 Intellectual Property. (a) With the exception of U.S.
Patent No. 5,552,144 and all corresponding foreign patents and patent
applications corresponding hereto and all continuations and divisions thereof
(the "144Patent") which is co-owned by Antex and the United States of America
and certain march-in rights of the United States of America, Department of the
Navy with respect to Campylobacter, and with the exception of rights granted to
Pasteur Merieux Serums et Vaccines S.A. ("Pasteur") pursuant to that certain
license agreement dated December 1, 1994, Antex owns and possesses all right,
title and interest in and to or will have license rights in the Intellectual
Property (as such term in defined in the New License Agreement). With the
exception of the rights granted to Pasteur, the march-in rights of the United
States of America, Department of the Navy, and the rights owned by the United
States of America with respect to the 144 Patent, Antex has
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the sole and exclusive right to use and license other persons to use the
Intellectual Property and none of the past or present employees, officers,
directors or shareholders of Antex, or any other Person, has any rights with
respect thereto. The consummation of the transactions contemplated hereby will
not alter or impair any rights to use and license others to use the Intellectual
Property. Antex has not received any notice or claim of infringement or any
claim challenging or questioning the validity or effectiveness of Antex's rights
in or to any of the items of Intellectual Property, and Antex is aware of no
valid basis for any such claim. Except as noted above, Antex is not liable, nor
has it made any contract or arrangement whereby it may become liable, to any
Person for any royalty or other compensation for use of any of the items of
Intellectual Property. Following consummation of the Merger of MCHV with and
into Antex, Antex will possess all right, title and interest in all Intellectual
Property that was at any time owned by MCHV. When executed and delivered, the
New License Agreement will effectively grant the license and other rights which
are expressly granted to SB plc therein.
Article VIII
Representations and Warranties of SB Bio and SB plc
SB Bio and SB plc represent and warrant to Antex, and Antex in
agreeing to consummate the transactions contemplated by this Agreement and the
Related Agreements has relied upon such representations and warranties, that, as
of the signature date of this Agreement:
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Section 8.1. Organization, Standing and Power. SB Bio is a
corporation duly organized under the laws of Belgium and has the requisite
corporate power and authority to carry on its business as now being conducted
and to own the properties and assets it presently owns. SB plc is a corporation
duly organization under the laws of the United Kingdom and has the requisite
corporate power and authority to carry on its business as now being conducted
and to own the properties and assets it presently owns.
Section 8.2. Valid and Binding Agreements. All necessary corporate
action on the part of SB Bio and SB plc has been taken to authorize the
execution and delivery of this Agreement and the Related Agreements to which
they are a party, the performance of their obligations hereunder and thereunder
and the consummation of the transactions contemplated hereby and thereby. This
Agreement and the Related Agreements to which they are a party have been duly
and validly executed and delivered by SB Bio and SB plc and constitute valid and
binding agreements of SB Bio and SB plc, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization or similar laws or
equitable principles relating to creditors' rights generally.
Section 8.3. No Violation. Neither the execution and delivery of
this Agreement or the Related Agreements to which SB Bio and SB plc are a party
nor the consummation of the transactions contemplated hereby or thereby nor
compliance by SB Bio and SB plc with any of the provisions hereof or thereof
will (a) violate or conflict with the organizational documents of SB Bio and SB
plc, or (b) violate or conflict with any statute, code, ordinance, rule,
regulation, judgment, order, writ, decree or injunction
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applicable to SB Bio and SB plc, or (c) violate or conflict with, or result in a
breach of any of the provisions of, or constitute a default (or any event which,
with or without due notice or lapse of time, or both, would constitute such a
default) under, or result in the termination of, or accelerate the performance
required by, or result in the creation of any lien, security interest, charge or
other encumbrance upon the stock or any of the properties or assets of SB Bio or
SB plc under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or other
instrument of which SB Bio or SB plc is a party or by which they or any of their
assets are bound.
Section 8.4. Consents and Approvals. No permit, consent, approval
or authorization of, or declaration, filing or registration with, any
governmental authority is necessary in connection with the execution and
delivery of this Agreement or the Related Agreements to which they are a party
by SB Bio or SB plc or the consummation by SB Bio or SB plc of the transactions
contemplated hereby or thereby and no consent of any third party is required to
consummate any of the transactions contemplated hereby or thereby.
Section 8.5. Investor Status. SB Bio is an "accredited investor"
as such term is defined in any of paragraphs (1) through (3), (7), (8) or Rule
501(a) under the Securities Act of 1933, as amended.
Article IX
Miscellaneous
Section 9.1. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and may be delivered personally
(including by courier or
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nationally recognized courier), by first class registered or certified mail
(return receipt requested), postage prepaid, or by facsimile (with written
confirmation of receipt) addressed to the following addresses or facsimile
numbers or to other such addresses or facsimile numbers as may be furnished in
writing by one party to the others:
(a) if to Antex:
Antex Biologics Inc.
300 Professional Drive
Gaithersburg, MD 20879, USA
Attention: Chief Executive Officer
Facsimile: (301) 590-1252
with a copy to:
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004-6000, USA
Attention: Alfred H. Moses, Esq.
Facsimile: (202) 778-5196
(b) if to SB Bio:
SmithKline Beecham Biologicals Manufacturing s.a.
Rue de L'Institut 89
B-1330 Rixensart
Belgium
Attention: President, General Manager
Facsimile: 011-32-2-656-8026
if to SB plc:
SmithKline Beecham plc
c/o SmithKline Beecham Corporation
One Franklin Plaza
P.O. Box 7929
Philadelphia, PA 19101-7929, USA
Attention: Edgar B. Cale III, Esq.
Facsimile: (215) 751-3935
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with a copy to:
Dickstein Shapiro Morin & Oshinsky LLP
2101 L Street, N.W.
Washington, D.C. 20037, USA
Attention: Neil Lefkowitz, Esq.
Facsimile: (202) 887-0689
Any such notice or communication shall be presumed to have been received (i) in
the case of personal delivery or facsimile transmission, on the date of such
delivery and (ii) in the case of nationally-recognized courier, on the business
day after the date sent.
Section 9.2. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Maryland, without
regard to such jurisdiction's conflicts of laws principles.
Section 9.3. Modification; Waiver. This Agreement shall not be
altered or otherwise amended except pursuant to an instrument in writing signed
by SB Bio, SB plc and Antex. Any party may waive any misrepresentation by any
other party, or any breach of warranty by, or failure to perform any covenant,
obligation or agreement of, any other party, provided that mere inaction or
failure to exercise any right, remedy or option under this Agreement, or
delaying in exercising the same, will not operate as nor shall be construed as a
waiver, and no waiver will be effective unless set forth in writing and only to
the extent specifically stated therein.
Section 9.4. Entire Agreement. This Agreement, the Related
Agreements, the Schedules and Exhibits hereto and any other agreements or
certificates delivered pursuant
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hereto constitute the entire agreement of the parties hereto with respect to the
matters contemplated hereby and supersede all previous written or oral
negotiations, commitments, representations and agreements.
Section 9.5. Assignment; Successors and Assigns. This Agreement
may not be assigned by any party, without the prior written consent of the other
parties; provided, however, that SB Bio and SB plc may each assign this
Agreement and any of their rights hereunder to any of their affiliates or to any
corporation with which it may merge or consolidate or sell all or substantially
all of their respective assets without any prior consent; and Antex may assign
this Agreement to any corporation with which Antex may merge, consolidate or
sell all or substantially all of its assets without any prior consent. All
covenants, representations, warranties and agreements of the parties contained
herein shall be binding upon and inure to the benefit of their respective
successors and permitted assigns.
Section 9.6. Public Announcements. No public announcement of the
transactions contemplated hereby or of the terms hereof at any time shall be
made by any party without the prior written consent of the other parties, not to
be unreasonably withheld or delayed, except to the extent as may be required by
law in the opinion of counsel to SB plc or counsel to Antex and in the latter
case, only upon at least five (5) days prior notification of the proposed
announcement to the other party.
Section 9.7. Expenses. The parties shall each pay all costs and
expenses incurred by them or on their behalf in connection with the preparation
of this Agreement and the
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transactions contemplated hereby, including without limitation, fees and
expenses of their own attorneys, accountants and advisors.
Section 9.8. Severability. The provisions of this Agreement are
severable, and in the event that any one or more provisions are deemed illegal
or unenforceable, the remaining provisions shall remain in full force and
effect.
Section 9.9. No Third Party Beneficiary. This Agreement is
intended and agreed to be solely for the benefit of the parties hereto, and no
third party shall accrue any benefit, claim or right of any kind whatsoever
pursuant to, under, by or through this Agreement.
Section 9.10. Opinion of Counsel to Antex. Within five (5)
business days of the execution and delivery of this Agreement by all of the
parties hereto, Covington & Burling, counsel to Antex, shall deliver its opinion
addressed to SB Bio concerning (i) the transactions contemplated by this
Agreement and (ii) the issuance of shares of the Common Stock and the Amended
and Restated Warrant to SB Bio, in the form set forth on Exhibit E attached
hereto.
Section 9.11. Execution in Counterpart. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which shall constitute one and the same instrument.
[The balance of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement on
the date first above written.
MicroCarb Human Vaccines Inc.
By: /s/ V.M. Esposito
------------------------------------
Name: V.M. Esposito
Title: President
Antex Biologics Inc.
By: /s/ V.M. Esposito
------------------------------------
Name: V.M. Esposito
Title: Chairman & CEO
SmithKline Beecham Biologicals
Manufacturing s.a.
By: /s/ Jean Stephenne
------------------------------------
Name: Jean Stephenne
Title: President, General Manager
SmithKline Beecham plc
By: /s/ Jean Stephenne
------------------------------------
Name: Jean Stephenne
Title: Attorney-In-Fact
This Amended and Restated Warrant and the Common Stock
issuable upon exercise hereof have not been registered or
qualified for sale under the Securities Act of 1933, as
amended, or any state securities law and may not be sold or
transferred in the absence of such registration or an
exemption therefrom under said Act or any such state laws
which may be applicable.
No. of Shares: 3,865,769 (which number is subject to adjustment as provided
herein)
AMENDED AND RESTATED WARRANT
To Purchase Common Stock of
ANTEX BIOLOGICS INC.
WHEREAS, in connection with the execution and delivery of that
certain Research and Development, Research Support and License Agreement (the
"Original License Agreement") dated May 6, 1996, by and among MicroCarb Human
Vaccines, Inc., MicroCarb, Inc. (the former name of Antex Biologics Inc.) and
SmithKline Beecham Corporation, MicroCarb, Inc. granted SmithKline Beecham
Biologicals Manufacturing s.a. a warrant (the "Original Warrant") dated May 6,
1996 to purchase certain shares of its common stock, $.01 par value per share;
and
WHEREAS, MicroCarb Human Vaccines, Inc., Antex Biologics Inc. and
SmithKline Beecham Corporation have terminated the Original License Agreement on
the date hereof and, in connection with the termination of the Original License
Agreement, Antex Biologics Inc. has entered into a new research and development,
research support and license agreement (the "New License Agreement") with
SmithKline Beecham plc, and has also agreed in a separate omnibus agreement (the
"Omnibus Agreement") dated the date hereof between Antex Biologics Inc.,
MicroCarb Human Vaccines, Inc. and SmithKline Beecham Biologicals Manufacturing
s.a. to among other things amend and restate the Original Warrant as set forth
herein.
THIS AMENDED AND RESTATED WARRANT CERTIFIES THAT, for value
received, the registered holder hereof, SmithKline Beecham Biologicals
Manufacturing s.a., a Belgian company, whose address is Rue de L'Institut 89,
B-1330 Rixensart Belgium, or its successors and assigns, is entitled to purchase
from ANTEX BIOLOGICS INC., a corporation organized and existing under the laws
of Delaware, 3,865,769 shares of the Common Stock (as hereinafter defined) at
the Basic Purchase Price (as hereinafter defined) at any time on or before 5:00
p.m., Eastern Standard time on September 1, 2003. Notwithstanding the
immediately preceding sentence, the number of shares of the Common Stock
purchasable hereunder shall be cumulatively increased by the
<PAGE>
following number of shares of the Common Stock in the following circumstance:
the number of shares of the Common Stock purchasable hereunder shall be
immediately increased by an additional 866,189 shares of the Common Stock if
SmithKline Beecham Corporation provides Antex Biologics Inc. an additional U.S.
$666,667 in research and development funding under the Amended License Agreement
on or before October 1, 1999. The number of shares of the Common Stock
purchasable hereunder and the Basic Purchase Price therefor are subject to
further adjustment as hereinafter provided in Section 5.
Section 1. Definitions. For all purposes of this Amended and
Restated Warrant, the following terms shall have the meanings indicated:
"Basic Purchase Price" shall mean the price of U.S. $0.37 per
share of the Common Stock, at which price the registered holder hereof may
exercise this Amended and Restated Warrant prior to any adjustments being made
as provided in Section 5. Notwithstanding the immediately preceding sentence,
the Basic Purchase Price for the 866,189 additional shares of the Common Stock
purchasable hereunder if SmithKline Beecham Corporation provides Antex Biologics
Inc. an additional U.S. $666,667 in research and development funding under the
New License Agreement on or before October 1, 1999 shall be the Market Price of
the Common Stock as of October 1, 1999 prior to any adjustments being made as
provided in Section 5.
"Business Day" shall mean any day except a Saturday, a Sunday, or
a legal holiday in the City of New York other than a legal holiday on which the
New York Stock Exchange is open for trading on a regular basis.
"Commission" shall mean the Securities and Exchange Commission and
any other similar or successor agency of the federal government then
administering the Securities Act or the Exchange Act.
"Common Stock" shall mean and include the Company's authorized
common stock, $.01 par value per share, as constituted on the date of this
Amended and Restated Warrant, and shall also include any class of the capital
stock of the Company hereafter authorized which shall neither (i) be limited to
a fixed sum or a percentage of par value in respect of the rights of the holders
thereof to receive dividends and to participate in the distribution of assets
upon the voluntary or involuntary liquidation, dissolution or winding-up of the
Company, nor (ii) be subject at any time to redemption by the Company.
"Company" shall mean Antex Biologics Inc. and its successors.
"Convertible Securities" shall mean any stock or securities
convertible into or exchangeable for shares of the Common Stock.
"Exchange Act" shall mean the Securities Exchange Act of 1934, and
any similar or successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Market Price" shall mean, as of any date, 5% of the sum for each
of the 20 consecutive Trading Days immediately prior to such date, of the
average of either:
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(i) the high and low sales prices of the Common Stock on such
Trading Day on the New York Stock Exchange or;
(ii) if the Common Stock shall not on such Trading Day then be
listed on such Exchange, such high and low sales prices on the principal
(determined by the highest volume of the Common Stock during the month
immediately preceding the month in which occurs the date as of which Market
Price is being determined) national securities exchange (as defined in the
Exchange Act) on which the Common Stock may then be listed, or;
(iii) if there shall have been no sales on any such Exchange or
exchange on any such Trading Day, the bid and asked prices on such Exchange or
exchange at the end of such Trading Day, or;
(iv) if the Common Stock shall not be so listed on any such
Trading Day, the representative bid and asked prices at the end of such Trading
Day in the over-the-counter market as reported by the National Association of
Securities Dealers Automated Quotations System ("Nasdaq"), or;
(v) if there be no such representative prices reported by Nasdaq,
the bid and asked prices at the end of such Trading Day in the over-the-counter
market.
For purposes of determining Market Price, the term "Trading Day" shall mean a
Business Day on which the amount greater than zero can be calculated with
respect to the Common Stock under any one or more of the foregoing categories
(i) , (ii), (iii), (iv) or (v), and the end of the Trading Day, for the purposes
of categories (iv) and (v), shall mean the exact time at which trading shall end
on the New York Stock Exchange.
"Person" shall mean any individual, partnership, joint venture,
limited liability company, unincorporated organization, government or department
or agency of a government.
"Purchase Price" shall mean as of any date, the Basic Purchase
Price, as the same has been adjusted from time to time pursuant to the
provisions of Section 5.
"Registrable Securities" shall mean the Warrants and the Warrant
Shares.
"Securities Act" shall mean the Securities Act of 1933, and any
similar or successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Warrantholders" shall mean, as of any date, the then registered
holders of the Warrants and the then registered holders of the Warrant Shares.
"Warrants" shall mean this Amended and Restated Warrant and any
other warrant of the Company hereafter issued to SmithKline Beecham Biologicals
Manufacturing s.a., including all amendments thereto, and together with all
Warrants issued in exchange, transfer or replacement of any thereof.
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"Warrant Shares" shall mean all shares of the Common Stock
purchased or purchasable by the registered holders of the Warrants upon the
exercise thereof pursuant to Section 4 thereof.
All terms used in this Amended and Restated Warrant which are not
defined in this Section 1 have the meanings respectively set forth therefor
elsewhere in this Amended and Restated Warrant.
Section 2. Ownership of this Amended and Restated Warrant. The
Company may deem and treat the Person in whose name this Amended and Restated
Warrant is registered as the holder and owner hereof, notwithstanding any
notations of ownership or writing hereon made by anyone other than the Company,
for all purposes and shall not be affected by any notice to the contrary, until
presentation of this Amended and Restated Warrant for registration or transfer
as provided in Section 3. The Company shall maintain, at its office or agency at
300 Professional Drive, Gaithersburg, Maryland 20879 (or at such other office or
agency of the Company as the Company shall designate from time to time by notice
to the registered holder of this Amended and Restated Warrant), a register for
the Warrants, in which the Company shall record the name and address of the
Person in whose name each Warrant has been issued, as well as the name and
address of each transferee and each prior owner of such Warrant.
Section 3. Exchange, Transfer and Replacement. This Amended and
Restated Warrant is exchangeable, upon the surrender hereof by the registered
holder to the Company at its office or agency provided for in Section 2, for new
Warrants of like tenor, representing in the aggregate the right to purchase the
number of shares of the Common Stock purchasable hereunder, each of such new
Warrants to represent the right to purchase such number of shares of the Common
Stock as shall be designated by said registered holder at the time of such
surrender. This Amended and Restated Warrant and all rights hereunder are
transferable without the necessity of obtaining any consent to such transfer, in
whole or in part, only upon the register provided for in Section 2, by the
registered holder hereof in Person or by duly authorized attorney, and a new
Warrant shall be made and delivered by the Company, of the same tenor as this
Amended and Restated Warrant but registered in the name of the transferee, upon
surrender of this Amended and Restated Warrant with the Assignment Form attached
hereto duly completed, at said office or agency of the Company. Upon receipt by
the Company at its office or agency provided for in Section 2 of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Amended and Restated Warrant, the Company will make and deliver a new
Warrant of like tenor in replacement of this Amended and Restated Warrant. This
Amended and Restated Warrant shall be promptly cancelled by the Company upon the
surrender hereof in connection with any exchange, transfer or replacement. The
Company shall pay all taxes and all other expenses and charges payable in
connection with the preparation, execution and delivery of Warrants pursuant to
this Section 3.
Section 4. Exercise of this Amended and Restated Warrant.
A. Procedure for Exercise. In order to exercise this Amended and
Restated Warrant in whole or in part, the registered holder hereof shall
complete the Subscription Form attached hereto, and deliver this Amended and
Restated Warrant to the Company, at its office or agency provided for in Section
2, together with one or more of the following
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types of consideration in an aggregate amount equal to the aggregate Purchase
Price of the shares of the Common Stock then being purchased: (i) cash or check;
and (ii) shares of the Common Stock (which shall be valued at their Market Price
on the date of exercise). In addition to delivering the consideration specified
in the preceding sentence, the registered holder of the Amended and Restated
Warrant may make a "cashless" exercise of this Amended and Restated Warrant by
instructing the Company to withhold Warrant Shares that would otherwise be
issued upon the exercise of this Amended and Restated Warrant (which shall be
valued at their Market Price on the date of exercise). The exercise of this
Amended and Restated Warrant shall be deemed to have been effected and the
Purchase Price and the number of shares of the Common Stock issuable in
connection with such exercise shall be determined as of the close of business on
the Business Day prior to the date on which such completed Subscription Form
shall have been delivered at such office or agency. Upon receipt of such Form
and the consideration referenced in the first sentence of this Section 4, the
Company shall, as promptly as practicable, and in any event within 10 Business
Days thereafter, execute or cause to be executed and delivered to said holder by
an air courier which guarantees next day delivery a certificate or certificates
representing the aggregate number of shares of the Common Stock specified in
such Form. Each stock certificate so delivered shall be in such authorized
denomination as may be requested by the registered holder hereof and shall be
registered in the name of said holder or such other name as shall be designated
by said holder, and the Person in whose name any such stock certificate shall be
issued upon such exercise shall be deemed to have become the holder of record of
the shares represented thereby as of the time when the exercise of this Amended
and Restated Warrant with respect to such shares shall be deemed to have been
effected. If this Amended and Restated Warrant shall have been exercised only in
part, the Company shall, at its expense at the time of delivery of said stock
certificate or certificates, deliver to such holder a new Warrant of like tenor
evidencing the rights of such holder to purchase the remaining shares of the
Common Stock covered by this Amended and Restated Warrant. The Company shall pay
all taxes, other expenses and charges payable in connection with the
preparation, execution and delivery of stock certificates pursuant to this
Section 4.
B. Acknowledgment of Continuing Obligation. The Company will, at
the time of the exercise of this Amended and Restated Warrant, in whole or in
part, upon request of the registered holder hereof but at the expense of the
Company, acknowledge in writing its continuing obligation to said holder in
respect of any rights to which said holder shall continue to be entitled after
such exercise in accordance with this Amended and Restated Warrant.
C. Character of Warrant Shares. All shares of the Common Stock
issuable upon the exercise of this Amended and Restated Warrant shall, when
issued, be duly authorized, validly issued, previously unissued, fully paid and
non-assessable.
Section 5. Anti-Dilution Provisions.
A. Adjustment of Purchase Price and Number of Warrant Shares. The
Purchase Price shall be subject to adjustment from time to time as hereinafter
in this Section 5 provided. Except as otherwise expressly provided in Section
5E, upon each adjustment of the Purchase Price pursuant to this Section 5, the
registered holder of this Amended and Restated Warrant shall thereafter be
entitled to purchase, at the Purchase Price resulting
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<PAGE>
from such adjustment, the number of shares of the Common Stock (calculated to
the nearest whole share) obtained by multiplying the Purchase Price in effect
immediately prior to such adjustment by the number of shares of the Common Stock
purchasable pursuant hereto immediately prior to such adjustment and dividing
the product thereof by the Purchase Price resulting from such adjustment.
B. Purchase Price Adjustment Formulas. If and whenever after the
date of this Amended and Restated Warrant, the Company shall (i) declare a
dividend or other distribution upon any capital stock of the Company which is
payable in shares of the Common Stock or Convertible Securities, (ii) declare a
dividend or any other distribution upon the Common Stock payable otherwise than
out of the current earnings, retained earnings or earned surplus or (iii)
subdivide or combine the shares of the Common Stock, then in each such case the
Purchase Price shall be forthwith changed as provided in Sections 5C, 5D and 5E,
respectively.
C. Stock Dividends. In case at any time the Company shall declare
a dividend or any other distribution upon the Common Stock of the Company which
is payable in shares of the Common Stock or Convertible Securities, then the
Purchase Price in effect immediately prior to the declaration of such dividend
or distribution shall be reduced to the quotient obtained by dividing (1) the
product of (x) the number of shares of the Common Stock outstanding and deemed
(in accordance with the last sentence of this Section 5C) to be outstanding
immediately prior to such declaration, multiplied by (y) the then effective
Purchase Price, by (2) the total number of shares of the Common Stock
outstanding and deemed (in accordance with the last sentence of this Section 5C)
to be outstanding immediately after such declaration (but in no event shall the
Purchase Price be reduced to less than the par value per share of the Common
Stock). All shares of the Common Stock and all Convertible Securities issuable
in payment of any dividend or other distribution upon the Common Stock of the
Company shall be deemed after such declaration to have been issued or sold
without consideration. The number of shares of the Common Stock deemed to be
outstanding shall be the total maximum number of shares of the Common Stock
issuable upon (i) the exercise of all outstanding rights or options to subscribe
for or to purchase shares of the Common Stock and (ii) the conversion or
exchange of (A) all outstanding Convertible Securities and (B) all Convertible
Securities issuable upon the exercise of rights or options to subscribe for or
purchase Convertible Securities.
D. Extraordinary Dividends and Distributions. In case at any time
the Company shall declare a dividend or any other distribution upon the Common
Stock payable otherwise than out of current earnings, retained earnings or
earned surplus and otherwise than in shares of the Common Stock or Convertible
Securities, the Purchase Price in effect immediately prior to such declaration
shall be reduced by an amount equal, in the case of a dividend or distribution
in cash, to the amount thereof payable per share of the Common Stock or, in the
case of any other dividend or distribution, to the fair value thereof per share
of the Common Stock at the time such dividend or distribution was declared, as
determined by the Board of Directors of the Company (but in no event shall the
Purchase Price be reduced to less than the par value per share of the Common
Stock). For the purposes of the foregoing a dividend or distribution other than
in cash shall be considered payable out of earnings, retained earnings or earned
surplus only to the extent that such current earnings, retained earnings or
earned surplus are charged an amount equal to the
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fair value of such dividend or distribution at the time of the declaration
thereof, as determined by the Board of Directors of the Company. Such reductions
shall take effect as of the date on which a record is taken for the purposes of
such dividend or distribution, or, if a record is not taken, the date as of
which the holders of record of the Common Stock entitled to such dividend or
distribution are to be determined.
E. Stock Splits and Reverse Splits. In case at any time the
Company shall subdivide its outstanding shares of the Common Stock into a
greater number of shares, the Purchase Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of Warrant Shares
purchasable upon the exercise of this Amended and Restated Warrant immediately
prior to such subdivision shall be proportionately increased, and conversely, in
case at any time the Company shall combine the outstanding shares of the Common
Stock into a smaller number of shares, the Purchase Price in effect immediately
prior to such combination shall be proportionately increased and the number of
Warrant Shares purchasable upon the exercise of this Amended and Restated
Warrant immediately prior to such combination shall be proportionately reduced.
F. Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, Etc. If at any time the Company shall be a party to any
transaction (including without limitation a merger, consolidation, sale of all
or substantially all of the Company's assets or a recapitalization of the Common
Stock) in which the previously outstanding shares of the Common Stock shall be
changed into or exchanged for different securities of the Company or changed
into or exchanged for common stock or other securities of another corporation or
other property (including cash) or any combination of any of the foregoing (each
such transaction being hereinafter referred to as the "Transaction"; the Company
(in the case of a recapitalization of the Common Stock) or such other
corporation being hereinafter referred to as the "Acquiring Company"; and the
common stock of the Acquiring Company being hereinafter referred to as the
"Acquiror's Stock"), then, as a condition to the consummation of the
Transaction, lawful and adequate provisions shall be made so that, upon the
basis and the terms and in the manner provided in this Section 5F, each holder
of any Warrants, upon the exercise of such Warrants at any time after the
consummation of the Transaction, shall be entitled to receive, in lieu of the
shares of the Common Stock issuable upon such exercise prior to such
consummation, at the election of such holder given by notice to the Company on
or before the later of (x) the day on which the holders of the Common Stock
approve the Transaction, or (y) the thirtieth day following the date of delivery
or mailing to such holder of the last proxy statement relating to the vote on
the Transaction by the holders of the Common Stock:
(i) the stock and other securities, cash and property to which
such holder would have been entitled upon the consummation of the
Transaction if such holder had exercised this Amended and Restated
Warrant immediately prior thereto (subject to adjustments from and
after) the date of the consummation of the Transaction (the
"Consummation Date") as nearly equivalent as possible to the
adjustments provided for in Sections 5A and 5F); or
(ii) if the Acquiring Company meets the requirements set forth
in this Section 5F, the number of shares of the Acquiror's Stock
or, if the Acquiring Company fails to meet, but a Parent (as
defined in this
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Section 5F) does meet such requirements, the number of shares of
such Parent's common stock (subject to adjustments from and after
the Consummation Date as nearly equivalent as possible to the
adjustments provided for in Sections 5A and 5F), determined by
dividing (i) the product obtained by multiplying (a) the number of
shares of the Common Stock to which the holder of this Amended and
Restated Warrant would have been entitled had such holder
exercised this Amended and Restated Warrant immediately prior to
the consummation of the Transaction, times (b) the greater of the
Purchase Price or the Acquisition Price (as defined in this
Section 5F) in effect on the date immediately preceding the
Consummation Date, by (ii) the Market Value of the Acquiror's
Stock on the date immediately preceding the Consummation Date.
For the purposes of this Section 5F: the term "Market Value" shall
mean, for any share of common stock on any date specified herein, the last sale
price, regular way, on such date or, if no sale takes place on such date, the
average of the closing bid and asked prices on such date, in each case as
reported on the New York Stock Exchange or, if such common stock is not listed
on the New York Stock Exchange but is authorized for quotation on the Nasdaq
National Market, the last transaction price per share of common stock as
reported by the Nasdaq National Market on such date; and the term "Acquisition
Price" shall mean the consideration per share to be paid for or received by the
holders of the previously outstanding shares of the Common Stock in accordance
with the terms of the Transaction, determined (x) in the case where the holders
of the previously outstanding shares of Common Stock received solely shares of
the Acquiror's Stock in the Transaction, by multiplying the Market Value of the
Acquiror's Stock as of the date immediately preceding the Consummation Date by a
fraction the numerator of which shall be the aggregate number of shares of the
Acquiror's Stock to be received in the Transaction in exchange for all of the
previously outstanding shares of the Common Stock and the denominator of which
shall be the aggregate number of such previously outstanding shares of the
Common Stock, and (y) in any other case, by dividing the aggregate fair market
value (using Market Value for any shares of the Acquiror's Stock), as of the
date immediately preceding the Consummation Date of the aggregate consideration
to be received by the holders of such previously outstanding shares of Common
Stock by the number of shares of such previously outstanding Common Stock. The
requirements referred to in clause (ii) of this Section 5F with reference to the
Acquiring Company or to a corporation (herein referred to as a "Parent") which
directly or indirectly controls the Acquiring Company are as follows: (AA) its
common stock is listed on the New York Stock Exchange or quoted on the Nasdaq
National Market and such common stock continues to meet such requirements for
listing or quotation thereon, (BB) it is required to file, and in each of its
three fiscal years immediately preceding the Consummation Date has filed,
reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act,
and (CC) in the case of a Parent, such Parent is required to include the
Acquiring Company in the consolidated financial statements contained in the
Parent's Annual Report on Form 10-K and is not itself included in the
consolidated financial statements of any other Person (other than its
consolidated subsidiaries). Notwithstanding anything contained in this Amended
and Restated Warrant to the contrary, the Company shall not effect any
Transaction unless prior to or simultaneously with the consummation of such
Transaction the survivor or successor corporation (if other than the Company)
resulting from such
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<PAGE>
Transaction shall assume by written instrument executed and delivered to each
Warrantholder, the obligation to deliver to such Warrantholder such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
such Warrantholder may be entitled to receive, and containing the express
assumption by such successor corporation of the due and punctual performance and
observance of every provision of this Amended and Restated Warrant to be
performed and observed by the Company and of all liabilities and obligations of
the Company hereunder.
G. Statement Regarding Adjustments. Upon each adjustment of the
Purchase Price and upon each change in the number of shares of the Common Stock
issuable upon exercise of this Amended and Restated Warrant, and in the event of
any change in the rights of the holder of this Amended and Restated Warrant by
reason of other events herein set forth, then and in each such case, the Company
will promptly obtain an opinion of a firm of independent certified public
accountants of recognized national standing (who may be the regular auditors of
the Company) selected by the Company's chief financial officer, stating the
adjusted Purchase Price and the new number of shares so issuable, or specifying
the other shares of stock, securities or assets and the amount thereof
receivable as a result of such change in rights, and setting forth in reasonable
detail the method of calculation and the facts upon which such calculation is
based. The Company will promptly mail a copy of such accountants' opinion to the
registered holder of this Amended and Restated Warrant.
H. Outside Opinion. In case at any time or from time to time
conditions arise by reason of action taken by the Company, which in the opinion
of its Board of Directors, are not adequately covered by the provisions of this
Section 5, and which might materially and adversely affect the exercise rights
of the registered holders of the Warrants, the Board of Directors of the Company
may appoint a firm of independent certified public accountants of recognized
national standing, which may be the firm regularly retained by the Company,
which shall give their opinion upon the adjustment, if any, on a basis
consistent with the standards established in the other provisions of this
Section 5, necessary with respect to the Purchase Price, so as to preserve,
without dilution, the exercise rights of the registered Warrantholders. If the
Board of Directors of the Company does not appoint a firm of independent
certified public accountants to give the opinion described in the preceding
sentence, the Company's chief financial officer shall render such opinion. Upon
receipt of such opinion from either the independent certified public accountants
or the Company's chief financial officer, the Board of Directors of the Company
shall forthwith make the adjustments described herein.
Section 6. Certain Agreements of the Company. The Company
covenants and agrees that:
A. Will Reserve Shares. The Company will authorize, reserve and
set apart and have available for issuance at all times, free from preemptive
rights, that number of the shares of the Common Stock which are deliverable upon
the exercise of this Amended and Restated Warrant, and the Company will have at
all times such other rights or privileges which are necessary to enable it at
any time to fulfill all of its obligations hereunder.
B. Will Avoid Certain Actions. The Company will not, by amendment
of its certificate of incorporation or through any reorganization, transfer of
assets, consolidation, merger, issue or sale of securities or otherwise, avoid
or take any action which would have
9
<PAGE>
the effect of avoiding the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in carrying out all of the provisions of this Amended and Restated
Warrant. Without limiting the generality of the foregoing, the Company will not
take any action to revoke, call, redeem, cancel or otherwise terminate this
Amended and Restated Warrant or the rights granted under this Amended and
Restated Warrant.
C. Will Secure Governmental Approvals. If any shares of the Common
Stock required to be reserved for the purposes of exercise of this Amended and
Restated Warrant require registration with or approval of any governmental
authority under any federal law (other than the Securities Act) or under any
state law before such shares of the Common Stock may be issued upon exercise of
this Amended and Restated Warrant, the Company will, at its expense, as
expeditiously as possible use its best efforts to cause such shares to be duly
registered or approved, as the case may be.
D. Will Pay Certain Taxes and Fees. The Company will pay all issue
or transfer taxes with respect to the issuance or transfer of shares of the
Common Stock to each holder of the Warrants in connection with each exercise of
the Warrants, as well as all fees and expenses incurred by the Company in
connection with each such issuance or transfer.
E. Will Bind Successors. This Amended and Restated Warrant will be
binding upon any corporation succeeding to the Company by merger, consolidation
or acquisition of all or substantially all of the Company's assets.
Section 7. Notifications by the Company. In case at any time:
(1) the Company shall declare upon the Common Stock any
dividend or other distribution (except out of current earnings,
retained earnings or earned surplus) to the holders of the Common
Stock;
(2) the Company shall make an offer for subscription pro rata
to the holders of the Common Stock of any additional shares of
stock of any class or other rights;
(3) the Board of Directors of the Company shall authorize
(whether definitively or subject to any conditions) any capital
reorganization, or reclassification of the capital stock of the
Company, or consolidation or merger of the Company with, or sale
of all or substantially all of its assets to, another Person;
(4) the Board of Directors of the Company shall authorize
(whether definitively or subject to any conditions) a voluntary
dissolution, liquidation or winding-up of the Company; or
(5) the Company shall become subject to involuntary
dissolution, liquidation or winding-up;
then, in each of such cases, the Company shall give notice to the registered
holder of this Amended and Restated Warrant of the date on which (a) the books
of the Company shall close or a record shall be taken for such dividend,
distribution or subscription rights, or (b)
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<PAGE>
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up shall take place or be voted upon by stockholders of
the Company, as the case may be. Such notice shall also specify the date as of
which the holders of record of shares of the Common Stock shall participate in
such dividend, distribution or subscription rights, or shall be entitled to
exchange their shares of the Common Stock or securities for 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 not less than 30 and not more than 90 days prior to the action in
question and not less than 30 days and not more than 90 days prior to the record
date or the date on which the Company's transfer books are closed in respect
thereto and such notice shall state that the action in question or the record
date is subject to the effectiveness of a registration statement under the
Securities Act, or to a favorable vote of stockholders, if either is required.
Section 8. Rights of a Stockholder. This Amended and Restated
Warrant shall not entitle any Warrantholder to any voting rights or any other
rights, or subject any Warrantholder to any liabilities, as a stockholder of the
Company.
Section 9. Modification; Waivers. This Amended and Restated
Warrant may be modified or amended only with the written consent of each
Warrantholder. The Company shall not be released from its obligations hereunder
without the written consent of each Warrantholder. The observance of any term of
this Amended and Restated Warrant may be waived (either generally or in a
particular instance and either retroactively or prospectively) by the Person
entitled to enforce such term, but any such waiver shall be effective only if in
a writing signed by the Person against which such waiver is to be asserted.
Except as otherwise specifically provided herein, no delay on the part of any
Person in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party hereto of any
right, power or privilege hereunder operate as a waiver of any other right,
power or privilege hereunder nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
Section 10. Entire Agreement. This Amended and Restated Warrant,
the Omnibus Agreement, the New License Agreement, and that certain Amended and
Restated Registration Rights Agreement dated the date hereof between the Company
and SmithKline Beecham Biologicals Manufacturing s.a.and SmithKline Beecham plc
represent the entire understanding and agreement between the parties thereto
with respect to the subject matter hereof and supersede all other prior
agreements and understandings, both written and oral, between the parties
thereto with respect to the subject matter hereof and thereof.
Section 11. Severability. If any provision of this Amended and
Restated Warrant, or the application of such provision to any Person or
circumstance, shall be held invalid, the remainder of this Amended and Restated
Warrant or the application of such provision to other Persons or circumstances
shall not be affected thereby; provided, that the parties shall negotiate in
good faith with respect to an equitable modification of the provision or
application thereof held to be invalid.
Section 12. Notices.
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<PAGE>
A. Any notice or communication to any Person shall be duly given
if in writing and delivered in Person, receipt requested, or overnight air
courier guaranteeing next day delivery or by facsimile (with written
confirmation of receipt), to such other party's address (or to such other
address as such other party shall have specified in a notice given in accordance
with this Section 12.)
If to the Company:
300 Professional Drive
Gaithersburg, Maryland 20879
Attention: President and Chief Executive Officer
Facsimile: (301) 590-1252
If to SmithKline Beecham Biologicals Manufacturing s.a.:
Rue de L'Institut 89
B-1330 Rixensart
Belgium
Attention: President, General Manager
Facsimile: 011-32-2-656-8026
with a copy to:
SmithKline Beecham Corporation
One Franklin Plaza
P.O. Box 7929
Philadelphia, Pennsylvania 19101-7929
Attention: Edgar B. Cale III, Esq.
Facsimile: (215) 751-3935
B. All notices and communications will be deemed to have been duly
given: at the time delivered by hand, if personally delivered; and the next
business day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Section 13. Headings. The Section headings in this Amended and
Restated Warrant are for convenience of reference only, and shall not be deemed
to alter or affect the meaning or interpretation of any provision hereof.
Section 14. Construction. This Amended and Restated Warrant shall
be governed, construed and enforced in accordance with the laws of the State of
Delaware, without regard to its principles of conflict of laws.
Section 15. No Adverse Agreements. The Company has not previously,
and will not hereafter, enter into any agreement with respect to its securities
which is adverse to the rights granted to SmithKline Beecham Biologicals
Manufacturing s.a. and its successors and assigns under this Amended and
Restated Warrant.
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<PAGE>
Section 16. Specific Performance. The Company agrees that this
Amended and Restated Warrant cannot be purchased or sold in the open market and
that, for these reasons, among others, each Warrantholder will be irreparably
damaged in the event that this Amended and Restated Warrant is not specifically
enforceable. Accordingly, in the event of any controversy concerning this
Amended and Restated Warrant, or any right or obligation hereunder, such right
or obligation shall be enforceable in a court of equity by specific performance.
The rights granted in this Section 16 shall be cumulative and not exclusive, and
shall be in addition to any and all other rights which the Warrantholder may
have hereunder, at law or in equity.
Section 17. Transfer and Assignment. The registered holder of this
Warrant may transfer and assign this Warrant and its rights hereunder without
the necessity of obtaining any consent to such transfer or assignment, provided
that the registered holder is permitted to transfer or assign its shares of the
Common Stock under the terms of Section 2.1 of the Omnibus Agreement.
[The Balance of This Page Intentionally Left Blank]
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<PAGE>
IN WITNESS WHEREOF, Antex Biologics Inc. has caused this Amended
and Restated Warrant to be executed and delivered by its duly authorized officer
under its corporate seal, attested by its duly authorized officer and to be
dated September 1, 1999.
ANTEX BIOLOGICS INC.
By: /s/ V.M. Esposito
-------------------------------------
Name: V.M. Esposito
Title: Chairman & CEO
[Corporate Seal]
Attest:
/s/ Gregory C. Zakarian
- ----------------------------------
Name: Gregory C. Zakarian
Title: Secretary
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<PAGE>
SUBSCRIPTION FORM
To be Executed by the Registered Holder
Desiring to Exercise the Within Warrant of
ANTEX BIOLOGICS INC.
The undersigned registered holder hereby exercises the right to
purchase _______ shares of the Common Stock covered by the within Warrant,
according to the conditions thereof, and herewith makes payment in full of the
Purchase Price of such shares, $__________________ by delivery of
__________________________________.
[Alternatively. The undersigned registered holder hereby exercises the right to
purchase ___ shares of the Common Stock covered by the within Warrant, according
to the terms thereof and herewith makes a "cashless" exercise of the within
Warrant and instructs Antex Biologics Inc. to withhold ___ shares of the Common
Stock that would otherwise be issued upon the exercise of the within Warrant.]
-------------------------------
Name of Registered Holder
-------------------------------
Signature
-------------------------------
Title
Address
--------------------------
--------------------------
Dated:
-------------------------
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<PAGE>
ASSIGNMENT FORM
To Be Executed by the Registered Holder
Desiring to Transfer the Within Warrant of
ANTEX BIOLOGICS INC.
FOR VALUE RECEIVED, the undersigned registered holder hereby
sells, assigns and transfer unto _________________ the right to purchase
____________________ shares of the Common Stock covered by the within Warrant,
and does hereby irrevocably constitute and appoint ______________________
Attorney to transfer the said Warrant on the books of the Company (as defined in
said Warrant), with full power of substitution.
-------------------------------
Name of Registered Holder
-------------------------------
Signature
-------------------------------
Title
Address
--------------------------
--------------------------
Dated:
-------------------------
In the presence of
- -------------------------
NOTICE:
The signature to the foregoing Assignment Form must correspond to
the name as written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
16
