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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
[ ] PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) March 15, 2000
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ANTEX BIOLOGICS INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 0-20988 52-1563899
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation or organization) Identification No.)
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300 PROFESSIONAL DRIVE
GAITHERSBURG, MARYLAND 20879
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (301) 590-0129
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(Former name or former address, if changed since last report)
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ITEM 5 OTHER EVENTS
On March 15, 2000 (the "Closing Date"), Antex Biologics Inc. (the
"Company") completed an equity financing in which it raised gross proceeds of
$15,293,790 (the "Financing"). In the Financing, the Company offered and sold
18,717,864 A Units and 4,454,545 B Units, in each case at a price of $0.66 per
Unit. The Financing was effected by means of a private placement in accordance
with Rule 506 under the Securities Act of 1933, as amended (the "1933 Act").
TERMS OF THE FINANCING
Each A Unit consisted of (i) one share of common stock, par value $.01
per share, of the Company ("Common Stock") and (ii) one Class A Warrant. Each
Class A Warrant has a five-year term and is exercisable immediately upon
issuance to purchase one share of Common Stock at an exercise price of $1.50 per
share. At the election of the Company, the Class A Warrants may be redeemed,
upon 30 days prior written notice to the holders, at a redemption price of $.10
per Warrant, if (i) after 18 months from the date of issuance of the Class A
Warrants, the average market price of the Common Stock exceeds $7.50 per share
for 20 consecutive trading days or (ii) after 24 months from the date of
issuance of the Class A Warrants, the average market price of the Common Stock
exceeds $4.50 per share for 20 consecutive trading days. The redemption of the
Class A Warrants is contingent upon the effectiveness of a registration
statement under the 1933 Act, registering for resale by the holders of the Class
A Warrants (and the holders of the Class B Warrants referred to below) the
shares of Common Stock acquired upon the exercise thereof.
Each B Unit consisted of (i) one-one hundredth (1/100) of a share of
Series A Convertible Preferred Stock ("Preferred Stock") and (ii) one Class B
Warrant. Beginning one year following the date of issuance, each one-one
hundredth (1/100) of a share of Preferred Stock is convertible, at the option of
the holder, into one share of Common Stock. The Preferred Stock has no dividend
rights, has no voting rights (except as required by law), and is entitled to
participate in a dissolution and liquidation of the Company with the holders of
Common Stock on an as converted basis. The Class B Warrants are identical to the
Class A Warrants, except that the Class B Warrants do not become exercisable
until one year following the date of issuance. (The Class A Warrants and the
Class B Warrants, along with the Class C Warrants and the Class D Warrants
referred to below, are collectively referred to herein as the "Warrants".)
The Company has agreed to file with the Securities and Exchange
Commission, and use its best efforts to have declared effective, a registration
statement under the Securities Act registering for resale (i) the shares of
Common Stock included in the A Units, (ii) the shares of Common Stock issuable
upon the conversion of the Preferred Stock, and (iii) the shares of Common Stock
issuable upon the exercise of the Warrants (the "Registerable Securities"). The
Company further has agreed to use its best efforts to maintain the effectiveness
of this registration statement for a period of five years from the Closing Date
or, if earlier, until such time as the Registerable Securities are eligible for
resale by the holders in accordance with Rule 144(k) under the Securities Act.
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In connection with the financing, the Company has paid compensation to
certain entities as follows:
(a) Harbor Trust, a purchaser of 553,030 A Units and 4,454,545
B Units in the financing, received (i) 1,666,666 B Units, (ii) 2,599,091 Class C
Warrants, each having a five-year term and exercisable beginning one year
following the date of issuance to purchase one share of Common Stock at an
exercise price of $.66 per share (the "Class C Warrants") and (iii) 2,599,091
Class D Warrants, each having a five-year term and exercisable beginning one
year following the date of issuance to purchase one share of Common Stock at an
exercise price of $1.50 per share ("Class D Warrants"). Neither the Class C
Warrants nor the Class D Warrants are redeemable by the Company.
(b) CHL Medical Partners LP, a purchaser of 1,515,151 A Units
in the financing, received (i) 300,000 Class C Warrants and (ii) 300,000 Class D
Warrants.
(c) Janssen/Meyers Associates, L.P. received (i) $100,000, (ii)
250,000 Class C Warrants, and (iii) 250,000 Class D Warrants.
(d) The Biotech Consulting Group, Incorporated ("BCG") received
(i) 200,000 Class C Warrants and (ii) 200,000 Class D Warrants.
(e) PRISM Ventures received (i) 60,000 Class C Warrants and
(ii) 60,000 Class D Warrants.
The issuance of the shares of Preferred Stock to Harbor Trust and the
exercise of the Warrants issued to each of the foregoing entities
(collectively, the "Compensation Securities") is subject to the approval by the
stockholders of the Company of an amendment to the Company's Certificate of
Incorporation increasing the number of shares of Common Stock that the Company
is authorized to issue.
In addition, the Company will enter into a two-year consulting agreement
with BCG pursuant to which it will provide strategic consulting advice to the
Company for a fee of $3,000 per month (the "Consulting Agreement").
After giving effect to the Financing (but excluding the shares of Common
Stock issuable upon the conversion or exercise of the Compensation Securities),
the holders of Common Stock and Preferred Stock (assuming conversion) own
approximately 44% of the outstanding Common Stock.
REASONS FOR THE TRANSACTION
After taking into account the expenses associated with the Financing, the
net proceeds will be approximately $15,100,000. The Company's current intention
is to use the net proceeds primarily for working capital purposes. In addition,
the Company expects to investigate the possibility of acquiring new technologies
and products for development, in which case a portion
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of the proceeds may be used for this purpose. However, the Company at this time
has not engaged in any negotiations with any third parties regarding possible
acquisition candidates.
In its Form 10-QSB for the quarter ended September 30, 1999, the Company
disclosed that it would not be able to sustain its research and development
program beyond the first calendar quarter of 2000 without additional financing.
With the net proceeds of the Financing, the Company believes that it has
sufficient funds, barring unforeseen developments, to sustain its operations
through December 2001.
At the time that the Company commenced the offering of the Units, the
closing bid price of the Common Stock was $ 1.47 per share (and the average of
the closing bid prices for the preceding 60 trading days was approximately
$.66). On the Closing Date, the closing bid price of the Common Stock was $ 2.75
per share. The Board of Directors nevertheless elected to proceed with the
Financing, notwithstanding the discount to the market price, for the following
reasons: (i) during recent months the Company, despite substantial efforts, had
been unable to raise significant funds on more favorable terms and (ii) because
the Company had only sufficient cash to sustain the Company's operation for
several more weeks, an attempt to effect a financing at a higher valuation,
assuming that such a financing would be possible, was considered by the Board to
entail unacceptable risks based on the market price history during the preceding
six months. These risks included the possible defection of scientists and other
key personnel due to the uncertainty regarding the Company's prospects and
potential bankruptcy should the Company not be successful.
INVOLVEMENT OF CERTAIN PERSONS
The negotiations with respect to terms of the Financing were conducted
primarily between the Company and David Blech. The Company believes that a large
portion of the purchasers of the Units were introduced to the Company by Mr.
Blech. In the Financing, entities related to Mr. Blech (including Harbor Trust)
purchased 1,155,303 A Units and 4,454,545 B Units and other entities related to
Mr. Blech (Harbor Trust and BCG) received compensation consisting of 1,666,666 B
Units, 2,799,091 Class C Warrants and 2,799,091 Class D Warrants. After giving
effect to the Financing, persons and entities related to Mr. Blech own (assuming
conversion of the Preferred Stock included in the B Units) approximately 13.4%
of the outstanding Common Stock (without giving effect to (i) the exercise of
any of the Warrants or (ii) the ownership of any shares of Common Stock that Mr.
Blech or any such related persons or entities may have acquired other than
pursuant to the Financing).
The Company is aware that in 1999, Mr. Blech pled guilty in a criminal
proceeding to two counts of securities fraud and was sentenced to probation.
Count One charged that in 1994 Mr. Blech had engaged in a scheme to defraud (i)
the brokerage firm that served as the clearing broker for D. Blech & Co., a
registered broker-dealer of which Mr. Blech was the president and controlling
stockholder, (ii) customers of D. Blech & Co., and (iii) other broker-dealers.
The scheme was carried out through a series of sham, unauthorized and fictitious
transactions involving accounts at D. Blech & Co. and other brokerage firms.
Count Two charged that, in 1997 and 1998, Mr. Blech had obtained discretionary
trading authority over 67 brokerage accounts that were in the names of various
friends, family members, business associates and
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other entities through which he engaged in unauthorized and unlawful trading in
the stock of three public companies with the expectation that his trading
activity would increase the market price of the stock.
The Company also is aware that in July 1999, the Securities and Exchange
Commission (the "SEC") in a civil proceeding filed a complaint against Mr. Blech
in the United States District Court for the Southern District of New York
relating to the same conduct addressed in the criminal proceeding. Specifically,
in an amended complaint filed in September 1999, the SEC alleged that Mr. Blech
and others, during the period June 1994 through September 1994, manipulated the
securities of at least six biotechnology companies by engaging in unauthorized
trading (in some cases through accounts opened with forged documents) and by
causing false representations to be made, and in this connection directly
violated the antifraud provisions of the federal securities laws, and as control
person of D. Blech & Co. was responsible for the firm's related violations of
the SEC's net capital rule and various SEC recordkeeping rules. The complaint
seeks to enjoin Mr. Blech from further violations of the federal securities
laws, the disgorgement of illicit profits and civil monetary penalties. The
Company has been advised by Mr. Blech that he is in settlement negotiations with
the SEC.
In addition, the Company is aware that Mr. Blech is one of several
defendants in a pending class action law suit brought on behalf of plaintiffs
who purchased the stock of 22 biotechnology companies that had been underwritten
by Blech & Co., a registered broker-dealer of which Mr. Blech was the managing
director and sole shareholder, or for which Blech & Co. was the principal
market-maker. The suit alleges that Blech & Co., Mr. Blech and other defendants
engaged in a scheme of market manipulation that had the purpose and effect of
inflating the market prices for the 22 companies through sham or prearranged
transactions during the period July 1991 through September 1994. In May 1999,
the suit was certified by the court as a class action.
In 1996, Mr. Blech was censured and barred from associating with any
member of the National Association of Securities Dealers, Inc. (the "NASD") in
any capacity by a Business Conduct Committee of NASD Regulation, Inc. for
failing to respond to repeated NASD requests for documentation pertaining to
customer complaints against D. Blech & Company, Incorporated.
In deciding to proceed with the Financing, the Company's Board of
Directors recognized the association with Mr. Blech could entail significant
risks. In an Agreement, dated March 15, 2000, between the Company and Mr. Blech
(the "Agreement"), Mr. Blech agreed that:
(i) neither he nor (A) any current or future "affiliate" (as such term is
defined by Rule 405 under the 1933 Act) of Mr. Blech, (B) any "associate" (as
such term is defined by Rule 405 under the 1933 Act) of Mr. Blech whose
investment activities are directed by Mr. Blech or (C) Harbor Trust, BCG,
Chassman Graphics, Inc. and the Blech Family Trust (collectively, the entities
referred to in clauses (A), (B) and (C) being referred to as "Covered Persons")
will solicit a proxy or consent to vote any shares of capital stock of the
Company, unless approved in advance by the Company's Board of Directors;
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(ii) for so long as Mr. Blech and all Covered Persons, in the aggregate,
beneficially own 5% or more of the Company's capital stock, neither Mr. Blech
nor any Covered Person shall, without the prior written consent of the Company's
Board of Directors, purchase any additional shares of the Company's capital
stock in the open market, in private transactions, or otherwise (except pursuant
to the exercise of Warrants);
(iii) neither Mr. Blech nor any Covered Person shall be entitled to
participate in the affairs of the Company, nor will any of them be entitled to
receive from the Company any information pertaining to the Company, other than
(a) in the case of Mr. Blech and BCG only, to the extent consistent with the
Consulting Agreement and (b) otherwise only to the extent such participation is
afforded, or information is provided, to stockholders of the Company generally;
(iv) neither Mr. Blech nor any Covered Person shall engage in any
transaction with the Company other than in the ordinary course of business,
except, in the case of Mr. Blech and BCG only, to the extent provided for in the
Consulting Agreement;
(v) for so long as Mr. Blech and all Covered Persons, in the aggregate,
beneficially own 5% or more of the Company's capital stock, neither Mr. Blech
nor any Covered Person shall trade in, or take any action to cause any other
person or entity to trade in, the Company's capital stock; and
(vi) for so long as Mr. Blech and all Covered Persons, in the aggregate,
beneficially own 5% or more of the Company's capital stock, neither Mr. Blech
nor any Covered Person shall make any public statements concerning the Company
or their investment in the Company, except to the extent informed by counsel in
writing that any such statement is required by law to be made.
The Board of Directors sought and obtained the foregoing representations
and warranties and covenants in view of Mr. Blech's prior misconduct and alleged
misconduct. In addition, in the course of the Financing, an officer and two of
the Company's directors met personally with Mr. Blech and received assurances
from him that he has overcome certain past difficulties. However, the Board of
Directors recognized that there is no assurance that either the Agreement or Mr.
Blech's personal assurances will necessarily protect the Company.
The Board also recognized that the association of Mr. Blech with the
Company may have adverse collateral consequences, including (i) difficulties in
obtaining additional financing, (ii) difficulties in finding commercial partners
for new ventures and licensing transactions, (iii) the inability of the Company
to qualify its securities for sale in one or more states, (iv) disqualification
of the Company from taking advantage of certain exemptions which would allow the
Company to effect securities placements without registration of the securities
under the 1933 Act and (v) difficulties in listing the Company's securities on a
stock exchange or NASDAQ.
After taking the foregoing factors into account, the Board of Directors
elected to proceed with the transaction primarily on the grounds that the
Company has no other viable alternative other than the suspension of operations
due to a lack of funds.
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ITEM 7 FINANCIAL STATEMENTS AND EXHIBITS
(c)(1) Warrant Agreement, dated as of March 15, 2000, between the Company
and American Stock Transfer & Trust Company, as warrant agent, with forms of
Class A Warrant, Class B Warrant, Class C Warrant, and Class D Warrant attached.
(c)(2) Registration Rights Agreement, dated as of March 15, 2000, between
the Company and each purchaser of Units or recipient of Warrants.
(c)(3) Agreement, dated as of March 15, 2000, between the Company and
David Blech.
(c)(4) Certificate of the Voting Powers, Designations, Preferences and
Relative Participating, Optional and Other Special Rights and Qualifications,
Limitations or Restrictions of Series A Convertible Preferred Stock of Antex
Biologics Inc., dated March 15, 2000.
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SIGNATURES
Pursuant to the registration requirements of the Securities and Exchange Act of
1934, the registrant has duly cause this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Antex Biologics Inc.
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(Registrant)
March 22, 2000 /s/ Gregory C. Zakarian
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(Date) Name: Gregory C. Zakarian
Title: Vice President, Finance
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EXHIBIT INDEX
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PAGE NUMBER ON
SEQUENTIALLY EXHIBIT
NUMBERED COPY. NO. DESCRIPTION
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(c)(1) Warrant Agreement, date
as of March 15, 2000,
between the Company and
American Stock Transfer
& Trust Company, as
warrant agent, with
forms of Class A
Warrant, Class B
Warrant, Class C
Warrant, and Class D
Warrant attached.
(c)(2) Registration Rights
Agreement, dated as of
March 15, 2000, between
the Company and each
purchaser of Units or
recipient of Warrants.
(c)(3) Agreement, dated as of
March 15, 2000, between
the Company and David
Blech.
(c)(4) Certificate of the
Voting Powers,
Designations,
Preferences and Relative
Participating, Optional
and Other Special Rights
and Qualifications,
Limitations or
Restrictions of Series A
Convertible Preferred
Stock of Antex Biologics
Inc., dated March 15,
2000.
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Exhibit c(1)
WARRANT AGREEMENT
This WARRANT AGREEMENT (this "Agreement"), dated as of March 15, 2000, is
between ANTEX BIOLOGICS INC., a Delaware corporation (the "Company"), and
AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation, as warrant
agent (the "Warrant Agent").
WHEREAS, the Company intends to issue four series of warrants
(individually, the "Callable Class A Warrants", "Callable Class B Warrants",
"Non-Callable Class C Warrants" and "Non-Callable Class D Warrants", and,
collectively, the "Warrants"), each representing the right to purchase, upon the
terms and conditions set forth in this agreement, one share of the Company's
common stock, par value $0.01 per share ("Common Stock"), subject to variation
as to exercise price, exercise period and callability, as part of an offering by
the Company of units consisting of its capital stock and Warrants.
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company and the Warrant Agent is willing to act in connection with the issuance,
transfer, exchange, and exercise of the Warrants, the replacement of Warrant
Certificates (as defined below) and other matters provided herein; and
WHEREAS, the Company desires to enter into this Agreement to set forth
the terms and conditions of the Warrants and the rights of the holders thereof.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions in this Agreement, and the Warrant Agent hereby accepts such
appointment.
2. Exercise Price; Form of Warrants. The Warrants shall be in
registered form only. The text of the Warrants and of the form of assignment and
the form of election to exercise included as the last page thereof (the "Warrant
Certificates") shall be substantially as set forth in Exhibit A relating to the
Callable Class A Warrants, Exhibit B relating to the Callable Class B Warrants,
Exhibit C relating to the Non-Callable Class C Warrants, and Exhibit D relating
to the Non-Callable Class D Warrants, which are made a part hereof by reference.
Each Warrant Certificate shall evidence the number of Warrants specified
therein. The Warrant Certificates may have such letters, numbers or other marks
of identification or designation and such legends, summaries or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law, or with any rule or regulation made pursuant
thereto, or with any rule or regulation of any stock exchange on which the
Common Stock may be listed, or to conform to usage.
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Subject to the provisions of this Agreement, each Warrant shall
entitle the holder thereof to purchase one share of Common Stock at the
applicable exercise price specified in Section 6 hereof, subject to adjustment
as provided in Section 11. All Warrant Certificates shall be executed on behalf
of the Company by the manual or facsimile signatures of the present or any
future President of the Company and the present or any future Secretary or
Assistant Secretary of the Company, under its corporate seal, affixed or in
facsimile.
3. Registration and Countersignature. The Warrant Agent shall
maintain books for the registration, and registration of transfer, of the
Warrants. Such registers shall show the names and addresses of the respective
holders of the Warrant Certificates and the number and type of Warrants
evidenced by each such Warrant Certificate. The Warrant Certificates shall be
countersigned by the Warrant Agent and shall not be valid for any purpose unless
so countersigned. The Warrant Certificates shall be so countersigned, however,
by the Warrant Agent and shall 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.
Prior to the due presentment for registration of transfer of the
Warrants, the Company and the Warrant Agent may deem and treat the registered
holder thereof as the absolute owner of the Warrants (notwithstanding any
notation of ownership or other writing thereon made by anyone other than the
Company or the Warrant Agent) for the purpose of any exercise thereof and for
all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
4. Subsequent Issue of Warrant Certificates. Subsequent to their
original issuance, no Warrant Certificates shall be reissued except (i) Warrant
Certificates issued upon transfer thereof in accordance with Section 5 hereof,
(ii) Warrant Certificates issued upon any combination, split-up or exchange of
Warrant Certificates pursuant to Section 5 hereof, (iii) Warrant Certificates
issued in replacement of mutilated, destroyed, lost or stolen Warrant
Certificates pursuant to Section 9 hereof, (iv) Warrant Certificates issued upon
the partial exercise of Warrants pursuant to Section 6 hereof and (v) Warrant
Certificates issued to reflect any adjustment or change in the number or kind of
securities purchasable thereunder pursuant to Section 11 hereof. The Warrant
Agent is hereby irrevocably authorized to countersign and deliver, in accordance
with the provisions of said Sections 5, 6, 9 and 11, the new Warrant
Certificates required for purposes thereof, and the Company, whenever required
by the Warrant Agent, will supply the Warrant Agent with Warrant Certificates
duly executed on behalf of the Company for such purposes.
5. Registration of Transfers and Exchanges. The Warrant Agent shall
from time to time register the transfer of any outstanding Warrants upon the
books to be maintained by the Warrant Agent for that purpose upon surrender of
Warrant Certificates evidencing such Warrants to the Warrant Agent accompanied
(if so required by the Company or the Warrant Agent) by a written instrument or
instruments of transfer in form
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satisfactory to the Company and the Warrant Agent, duly executed by the
registered holder or by a duly authorized representative or attorney. Upon any
such registration of transfer, a new Warrant Certificate shall be issued to the
transferee and the surrendered Warrant Certificate shall be cancelled by the
Warrant Agent. Warrant Certificates so cancelled shall be delivered by the
Warrant Agent to the Company from time to time or otherwise disposed of by the
Warrant Agent in a manner satisfactory to the Company. Warrant Certificates may
be exchanged at the option of the holder thereof, when surrendered at the office
designated by the Warrant Agent from time to time as the office at which
business related to this Warrant Agreement and the Warrants may be transacted
(the "Designated Office"), for another Warrant Certificate or Certificates of
like tenor and representing in the aggregate the number of Warrants evidenced by
the Warrant Certificate or Certificates so surrendered. The Warrant Agent shall
countersign and deliver, in accordance with the provisions of this Section 5 and
of Section 3, the new Warrant Certificate or Certificates required pursuant to
the provisions of this Section, and the Company, whenever required by the
Warrant Agent, will supply the Warrant Agent with Warrant Certificates duly
executed on behalf of the Company for such purpose.
6. Duration and Exercise of Warrants. Unless such Warrants have been
redeemed as provided in Section 7 below, (i) the Callable Class A Warrants may
be exercised in whole at any time or in part from time to time commencing on the
date of issue, and (ii) the Callable Class B Warrants, the Non-Callable Class C
Warrants and the Non-Callable Class D Warrants may be exercised in whole at any
time or in part from time to time commencing on March 15, 2001. The Warrants
shall expire at the close of business on March 14, 2005 (the "Expiration Date"),
at which time all rights evidenced by the Warrants shall cease, and the Warrants
shall become void. For purposes of this Agreement, the term "close of business"
on any given date shall mean 5:00 p.m., Washington, DC time, on such date;
provided however, that if such date is a day on which banking institutions in
the city in which the Designated Office is then located are authorized or
obligated by law to be closed (a "Business Day"), it shall mean 5:00 p.m.,
Washington, D.C. time, on the next succeeding Business Day.
Subject to the provisions of this Agreement (including Section
10), each Warrant shall entitle the holder thereof to purchase from the Company
(and the Company shall issue and sell to such holder of a Warrant) one fully
paid and nonassessable share of Common Stock at an exercise price of (i)1.50 for
each Callable Class A Warrant, Callable Class B Warrant or Non-Callable Class D
Warrant or (ii) $0.66 for each Non-Callable Class C Warrant, in each case
subject to adjustment as provided in Section 11 (as applicable, the "Exercise
Price"), upon surrender of the Warrant Certificate evidencing the Warrant to the
Warrant Agent at the Designated Office, with the form of election to purchase
appearing as the last page thereof duly filled in and signed, and upon payment
of the Exercise Price in lawful money of the United States of America to the
order of the Company. No adjustment shall be made for any cash dividends,
whether paid or declared, on any securities issuable upon exercise of a Warrant.
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The Exercise Price payable upon exercise of Warrants may, at the
option of the holder, be paid by check, cash or bank draft. Subject to Sections
7 and 10, upon such surrender of a Warrant Certificate and payment of the
Exercise Price, the Warrant Agent shall issue and cause to be registered,
countersigned and delivered to or upon the written order of the registered
holder of such Warrant, and in such name or names as may duly be designated, a
certificate or certificates for the shares of Common Stock being issued pursuant
to the Warrant then being exercised. 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 share or shares of
Common Stock, as of the date of the surrender of such Warrant Certificate and
payment in full of the Exercise Price; provided, however, that if, at the date
of surrender of such Warrant Certificate and payment of such Exercise Price, the
transfer books for the Common Stock shall be closed, the certificate for such
share or shares of Common Stock shall be issuable as of the date on which such
books shall next be opened (whether before, on or after the Expiration Date) and
until such date the Company shall be under no duty to deliver any certificate
for such share or shares; provided, further, that such books, unless otherwise
required by law, shall not be closed at any one time for a period longer than 20
days.
The Warrants evidenced by any Warrant Certificate shall be
exercisable, at the election of the registered holder thereof, either as an
entirety or, from time to time, for only part of the number of securities
purchasable upon exercise of the Warrants as so evidenced. In the event that
fewer than all of the shares purchasable upon the exercise of the Warrants
evidenced by any Warrant Certificate are acquired by exercise of such Warrants,
a new Warrant Certificate of like tenor will be issued for the remaining number
of Warrants, and the Warrant Agent shall countersign and deliver the required
new Warrant Certificate pursuant to the provisions of this Section 6 and of
Section 3, and the Company, whenever required by the Warrant Agent, will supply
the Warrant Agent with Warrant Certificates duly executed on behalf of the
Company for such purpose.
7. Redemption of Callable Class A Warrants and Callable Class B
Warrants. Provided that a registration statement under the Securities Act of
1933 Act, as amended (the "1933 Act") registering for resale the shares of
Common Stock issuable upon the exercise of the Callable Class A Warrants and the
Callable Class B Warrants is then effective and provided further that the holder
of a Callable Class A Warrant or a Callable Class B Warrant shall not have
exercised such Warrant before the close of business on the date set for
redemption: (a) at any time after September 15, 2001, the Callable Class A
Warrants and/or the Callable Class B Warrants may be redeemed at the option of
the Company at any time at a price equal to $0.10 per Callable Class A Warrant
or Callable Class B Warrant (the "Redemption Price"), provided that the average
of the closing sale prices (or, if closing sale prices are not available, the
closing bid prices), of the Common Stock, as publicly reported by the principal
national securities exchange, if any, on which the Common Stock is listed or, if
not listed on a national securities exchange, as publicly reported by NASDAQ or,
if not traded on NASDAQ, the OTC Bulletin Board, shall exceed $7.50 per share
for any period of 20 consecutive trading days (not counting any day during which
a Blackout Period (as defined in the Registration Rights Agreement dated as of
March
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<PAGE> 5
3, 2000 by and among the Company and various purchasers; such agreement, the
"Registration Rights Agreement") is in effect, or any day during which a
Holdback Period (as defined in the Registration Rights Agreement) is in effect),
ending prior to the date on which notice of redemption is given, and (b) at any
time after March 15, 2002, the Callable Class A Warrants and/or the Callable
Class B Warrants may be redeemed at the option of the Company at any time at the
Redemption Price, provided that the average of the closing sale prices (or, if
closing sale prices are not available, the closing bid prices), of the Common
Stock, as publicly reported by the principal national securities exchange, if
any, on which the Common Stock is listed or, if not listed on a national
securities exchange, as publicly reported by NASDAQ or, if not traded on NASDAQ,
the OTC Bulletin Board, shall exceed $4.50 per share for any period of 20
consecutive trading days (not counting any day during which a Blackout Period is
in effect, or any day during which a Holdback Period is in effect), ending prior
to the date on which notice of redemption is given. On the redemption date, the
registered holders of redeemed Callable Class A Warrants and/or Callable Class B
Warrants shall be entitled to payment of the Redemption Price upon surrender of
the Warrant Certificates evidencing such redeemed Warrants to the Warrant Agent
at the Designated Office. The Company is required to redeem all of the
outstanding Callable Class A Warrants if any are redeemed, and the Company is
required to redeem all of the outstanding Callable Class B Warrants if any are
redeemed.
Notice of redemption of Callable Class A Warrants and/or Callable
Class B Warrants shall be given at least 30 days prior to the redemption date by
mailing, by registered or certified mail, return receipt requested, a copy of
such notice to all of the registered holders of Callable Class A Warrants and/or
Callable Class B Warrants to be redeemed at their respective addresses appearing
on the books or transfer records of the Company or such other address designated
in writing by the registered holder to the Warrant Agent not less than 10 days
prior to the date on which the notice of redemption is given and shall be
effective upon such mailing.
From and after the redemption date, all rights of the holders of
Callable Class A Warrants and/or the Callable Class B Warrants (except the right
to receive the Redemption Price) shall terminate, but only if (a) on or prior to
the redemption date the Company shall have irrevocably deposited with the
Warrant Agent, as paying agent, an amount sufficient to pay on the redemption
date the Redemption Price for all Callable Class A Warrants and/or Callable
Class B Warrants called for redemption, and (b) the notice of redemption shall
have stated the name and address of the Warrant Agent and the intention of the
Company to deposit such amount with the Warrant Agent on or before the
redemption date.
The Warrant Agent shall pay to the registered holders of redeemed
Callable Class A Warrants and/or Callable Class B Warrants all monies received
by the Warrant Agent for the redemption of Callable Class A Warrants and/or
Callable Class B Warrants to which the registered holders of such redeemed
Callable Class A Warrants and/or Callable Class B Warrants who shall have
surrendered their Callable Class A Warrants and/or Callable Class B Warrants are
entitled under the provisions of this
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<PAGE> 6
Agreement. The Warrant Agent need not make any payment unless and until it shall
have received such monies from the Company.
Any amounts deposited with the Warrant Agent that are not required
for redemption of Callable Class A Warrants and/or Callable Class B Warrants may
be withdrawn by the Company. Any amounts deposited with the Warrant Agent that
shall be unclaimed six months after the redemption date may be withdrawn by the
Company, and thereafter the holders of the Callable Class A Warrants and/or
Callable Class B Warrants called for redemption shall be required to look solely
to the Company for payment. The Company shall be entitled to the interest, if
any, earned on funds deposited with the Warrant Agent, and the holders of
redeemed Callable Class A Warrants and/or Callable Class B Warrants shall have
no right to any such interest.
8. Payment of Taxes. The Company will pay all documentary, stamp or
similar taxes and other government charges that may be imposed with respect to
the issuance of the Warrants or the issuance or delivery of any shares of Common
Stock upon the exercise of the Warrants, unless the shares of Common Stock are
to be delivered to a purchaser other than the registered holder of the Warrants,
in which case such delivery will be made only upon payment by the registered
holder or such purchaser, as the case may be, of any such taxes or other
charges. Any documentary, stamp or similar taxes and other governmental charges
imposed with respect to the transfer of any Warrants shall be borne by the
transferor or transferee, as applicable, and payment of such taxes or other
charges shall be a condition to the effective transfer of such Warrants.
9. Mutilated, Destroyed, Lost or Stolen Warrant Certificates. In case
any of the Warrant Certificates shall be mutilated, lost, stolen or destroyed,
the Company may in its discretion issue, and the Warrant Agent may countersign
and deliver in exchange and substitution for and upon cancellation of the
mutilated Warrant Certificate, or in lieu of and substitution for the lost,
stolen or destroyed Warrant Certificate, a new Warrant Certificate of like tenor
and evidencing the number of Warrants evidenced by the Warrant Certificate so
mutilated, lost, stolen or destroyed, but only upon receipt of evidence
satisfactory to the Warrant Agent of such loss, theft or destruction of such
Warrant Certificate and indemnity, if requested, also satisfactory to the
Warrant Agent and the Company. Persons requesting the issuance of a substitute
Warrant Certificate shall also comply with such other reasonable regulations and
pay such other reasonable charges as the Company or the Warrant Agent may
prescribe.
10. Reservation of Equity Securities. Subject to shareholder approval
as to additional authorized shares in respect of the Warrants which the Company
is issuing as compensation to Janssen/Meyers Associates, L.P., The Biotech
Consulting Group Incorporated, CHL Medical Partners, LP, Prism Ventures LLC
and Harbor Trust (the "Compensation Warrants"), which the Company shall use its
reasonable best efforts to obtain, there have been reserved, and the Company
shall at all times keep reserved and available, free of pre-emptive rights, out
of the authorized and unissued shares of Common Stock and other equity
securities that may be, from time to time, issuable upon exercise of the
Warrants, a number of such
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<PAGE> 7
securities sufficient to provide for the exercise of the Warrants. The Company
will keep a copy of this Agreement on file with its Transfer Agent. Subject to
the shareholder approval requirement described above, the Warrant Agent is
hereby irrevocably authorized to requisition from time to time from such
Transfer Agent stock certificates issuable upon exercise of outstanding
Warrants. The Company will supply such Transfer Agent with duly executed stock
certificates for such purpose. Unless all Warrants shall have been exercised
prior to the time of the expiration of the Warrants, the Warrant Agent shall
certify to the Company, as of the close of business on the date of such
expiration, 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.
11. Adjustments to Number of Shares. The number and kind of securities
or other property purchasable upon exercise of a Warrant shall be subject to
adjustment from time to time upon the occurrence, after the date hereof, of the
following events:
(a) If the Company shall issue shares of Common Stock as a
stock dividend or distribution or subdivide the number of outstanding shares of
Common Stock into a greater number of shares, then the number of shares of
Common Stock issuable upon exercise of each Warrant shall be proportionately
increased; and if the Company shall combine the outstanding shares of Common
Stock into a lesser number of shares, then the number of shares of Common Stock
issuable upon exercise of each Warrant shall be proportionately reduced. In any
such event, the Exercise Price of each Warrant shall remain unchanged.
(b) In case of any change in the Common Stock through merger,
consolidation, reclassification, reorganization, partial or complete
liquidation, or other change in the capital structure of the Company, then, as a
condition of the change in the capital structure of the Company, lawful and
adequate provision will be made so that the holder of each Warrant will have the
right thereafter to receive upon exercise of such Warrant the kind and amount of
shares of stock or other securities or property to which such holder would have
been entitled if, immediately prior to such merger, consolidation,
reclassification, reorganization, recapitalization, or other change in the
capital structure, such holder had held the number of shares of Common Stock
obtainable upon the exercise of the Warrant. In any such case, appropriate
adjustments will be made in the application of the provisions set forth herein
with respect to the rights and interest thereafter of the holders of Warrants,
to the end that the provisions set forth herein will thereafter be applicable,
as nearly as reasonably may be, in relation to any shares of stock or other
property thereafter deliverable upon the exercise of Warrants. The Company will
not permit any change in its capital structure to occur unless the issuer of the
shares of stock or other securities to be received by the holders of Warrants,
if not the Company, agrees to be bound by and comply with the provisions of this
Agreement.
(c) In case:
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<PAGE> 8
(i) the Company shall take a record of the holders of
its Common Stock for the purpose of entitling them to receive a dividend or any
other distribution in respect of the Common Stock payable in cash or other
property (other than ordinary dividends payable out of retained earnings); or
(ii) the Company shall take a record of the holders of
its Common Stock for the purpose of entitling them to subscribe for or purchase
any shares of stock of any class or to receive any other rights; or
(iii) the Company shall take a record of the holders of
its Common Stock for the purpose of any classification, reclassification or
other reorganization of the capital stock of the Company, consolidation or
merger of the Company with or into another corporation, or conveyance of all or
substantially all of the assets of the Company; or
(iv) the Company shall take a record of the holders of
its Common Stock for the purpose of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, and in any such case, the Company shall mail to each holder of Warrants,
at least 15 days prior thereto, a notice stating the date or expected date on
which a record is to be taken for the purpose of such dividend, distribution or
rights, or the date on which such classification, reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up, as the case may be, is to take place. Such notice shall also specify
the date or expected date, if any is to be fixed, on which said dividend,
distribution or rights, or an exchange of shares of Common Stock for securities
or other property deliverable upon such classification, reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up, as the case may be, is expected to occur. The failure to give such
notice shall entitle any holder of Warrants who did not receive such notice, and
who otherwise did not have actual notice of such event, the right to require the
Company, or its successor, to treat all Warrants held by such holder as having
been exercised prior to such record date (provided that such holder has paid the
exercise price), but such failure shall not affect the validity of any such
proceeding or transaction.
(d) Whenever an adjustment required by the provisions of this
Section 11 shall occur, the Company shall forthwith file in the custody of its
Secretary at its principal office and with the Warrant Agent an officer's
certificate showing the adjustment or adjustments determined as therein
provided, setting forth in reasonable detail the facts requiring such
adjustment, and such other facts as shall be necessary to show the reason for
and the manner of computing such adjustment. Each such officer's certificate
shall be made available at all reasonable times for inspection by a registered
holder of Warrants, and the Company, forthwith after each such adjustment, shall
mail a copy of such certificate to each registered holder, and thereafter said
certificate shall be conclusive and shall be binding upon each registered holder
unless contested by such holder by written notice to the Company within ten days
after receipt of the certificate by the holder. Neither the Warrant
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<PAGE> 9
Agent nor the Company's Transfer Agent shall be deemed to have knowledge of any
adjustment unless and until it shall have received such certificate.
12. Fractional Securities. If any fraction (calculated to the nearest
one-hundredth) of a share of Common Stock or other securities would, except for
the provisions of this Section, be issuable upon the exercise of any Warrant,
the Company shall deliver to the purchaser, in lieu of such fractional security,
an amount in cash equal to the current value of such fraction computed on the
basis of the closing market price on the trading day immediately preceding the
date of exercise in accordance with Section 6 hereof. By accepting a Warrant
Certificate, the holder thereof expressly waives any right to receive any
fractional security upon exercise of a Warrant. The "closing market price" of
such fractional interest shall be determined as follows:
(a) If the Common Stock or other security is listed on a
national securities exchange or admitted to unlisted trading privileges on such
exchange, the closing market price shall be the last reported sale price of the
Common Stock or other security on such exchange immediately preceding the date
of exercise or if no such sale has occurred on such day, the average closing bid
and asked prices for such day on such exchange; or
(b) If paragraph (a) above shall not be applicable, the closing
market price shall be the last reported sale price on the trading day
immediately preceding the date of exercise as reported by The National Market
System of the National Association of Securities Dealers, Inc. or if no such
sale has occurred on such day, the average closing high bid and low asked prices
for such day as so reported, if the Common Stock qualifies as a NASDAQ/NMS
security; or
(c) If neither paragraph (a) nor (b) above shall be applicable,
the closing market price shall be the last reported sale price as furnished by
the National Association of Securities Dealers, Inc. electronic inter-dealer
quotation system ("NASDAQ") or, if last reported sale prices are not so
furnished, then the average of the high and the low asked prices furnished by
NASDAQ, in either case on the trading day immediately preceding the date of
exercise, or if not so quoted on NASDAQ, the closing market price shall be the
average of the high bid and the low asked prices as reported by the OTC Bulletin
Board for the last trading day prior to the date of exercise; provided that the
term "trading day" as used in this sentence shall mean a day on which trading in
securities took place in the domestic over-the-counter market; or
(d) If none of paragraphs (a), (b) or (c) above shall be
applicable, the closing market price shall be an amount determined in such
reasonable manner as may be prescribed by the Board of Directors of the Company.
13. Limitation on Exercise. The Warrants may not be exercised by the
registered holder hereof unless (a) the shares of Common Stock purchasable upon
the exercise thereof are registered under the 1933 Act, or the transaction in
which the shares of Common Stock are to be issued is exempted from the
application of the registration
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<PAGE> 10
provisions of the 1933 Act, and (b) such shares of Common Stock are registered
or otherwise qualified for sale under the securities laws of the State in which
the registered holder resides or an exemption from such registration or
qualification is available under such laws. Notwithstanding any provision of
this Warrant Agreement to the contrary, no Warrant is exercisable if the
issuance of the shares of Common Stock purchasable upon such exercise is
unlawful under the laws of any applicable jurisdiction. The Compensation
Warrants may not be exercised absent receipt of shareholder approval of an
increase in the number of authorized shares of Common Stock of the Company.
14. Warrant Holder Not Deemed a Shareholder. No holder, as such, of
any Warrant shall be entitled to vote or receive dividends or to be deemed the
holder of Common Stock or any other securities of the Company that may at any
time be issuable on the exercise thereof for any purpose whatever, nor shall
anything contained herein or in any Warrant be construed to confer upon the
holder of any Warrant, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon any recapitalization, issue of stock,
reclassification of stock, change of par value, consolidation, merger,
conveyance or otherwise), or to receive notice of meetings, or to receive
dividends or subscription rights, or otherwise, until such Warrant shall have
been exercised in accordance with the provisions hereof.
15. Right of Action. All rights of action that might arise under this
Agreement, other than a right of action that could be asserted by the Warrant
Agent in its own right, are vested in the respective registered holders of
Warrants; and any registered holder of any Warrant, without the consent of the
Warrant Agent or of any other holder of a Warrant, on his own behalf and for his
own benefit, may enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce or otherwise in respect of, his right
to exercise the Warrants for the purchase of shares of Common Stock or other
securities or property in the manner provided in the Warrant Certificate and in
this Agreement.
16. Agreement of Holders of Warrants. Every holder of a Warrant by
accepting the same consents and agrees with the Company, the Warrant Agent and
with every other holder of a Warrant that:
(a) The Warrants are transferable on the registry books of the
Warrant Agent only upon the terms and conditions set forth in this Agreement.
(b) The Company and the Warrant Agent may deem and treat the
person in whose name a Warrant is registered as the absolute owner of the
Warrant (notwithstanding any notation of ownership or other writing thereon made
by anyone other than the Company or the Warrant Agent) for all purposes
whatsoever, and neither the Company nor the Warrant Agent shall be affected by
any notice to the contrary.
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<PAGE> 11
17. Cancellation of Warrant Certificates. In the event that the
Company shall purchase or otherwise acquire any Warrant after the issuance
thereof, the Warrant Certificate or Certificates therefor shall thereupon be
delivered to the Warrant Agent and be cancelled by it and retired. The Warrant
Agent shall also cancel any Warrant Certificate delivered to it for exercise, in
whole or in part, or delivered to it for transfer, split-up, combination or
exchange. Warrant Certificates so cancelled shall be delivered by the Warrant
Agent to the Company from time to time or disposed of in accordance with the
instructions of the Company.
18. Disposition of Proceeds on Exercise of Warrants.
(a) The Warrant Agent shall account promptly to the Company
with respect to Warrants exercised and concurrently pay to the Company all
monies received by the Warrant Agent for the purchase of shares of Common Stock
or other securities or property 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 at
the Designated Office.
19. Merger or Consolidation or Change or Name of Warrant Agent. Any
corporation into which the Warrant Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which the Warrant Agent shall be a party, or any corporation succeeding to the
shareholder services business of the Warrant Agent, shall be the successor to
the 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 under
the provisions of Section 21. In case at the time such successor to the Warrant
Agent shall succeed to the agency created by this Agreement, and in case at that
time any of the Warrants shall have been countersigned but not delivered, any
such successor to the Warrant Agent may adopt the countersignature of the
predecessor warrant agent and deliver such Warrants so countersigned; and in
case at that time any of the Warrants shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrants either in the name
of the predecessor warrant agent or in the name of the successor warrant agent;
and in all such cases, such Warrants shall have the full force and effect
provided in the Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed
and at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior name
and deliver Warrants so countersigned; and in case at that time any of the
Warrants shall not have been countersigned, the Warrant Agent may countersign
such Warrants either in its prior name or in its changed name; and in all such
cases, such Warrants shall have the full force and effect provided in the
Warrants and in this Agreement.
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<PAGE> 12
20. Duties of Warrant Agent; Undertaking of the Company. The Warrant
Agent undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and, by their
acceptance thereof, the holders of Warrants shall be bound:
(a) The statements contained herein and in the Warrant
Certificate shall be taken as statements of the Company, and the Warrant Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. The Warrant
Agent assumes no responsibility with respect to the delivery of Warrants, except
as provided herein.
(b) The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants to be complied with by the
Company.
(c) The Warrant Agent 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 the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorney or agent or for any loss to the Company resulting from such
neglect or misconduct of any such attorney or agent, provided reasonable care
shall have been exercised by the Warrant Agent in the selection and continued
employment thereof.
(d) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder of
any Warrant in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel,
provided the Warrant Agent shall have exercised reasonable care in the selection
and continued employment of such counsel.
(e) The Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant for any action
taken in reliance on any notice, resolution, waiver, consent, order, certificate
or other paper, document or instrument reasonably believed by it to be genuine
and to have been signed, sent or presented by the proper party or parties.
(f) The Company agrees (i) to pay to the Warrant Agent
reasonable compensation for all services rendered by the Warrant Agent in the
execution of this Agreement, (ii) to reimburse the Warrant Agent for all
expenses, taxes and governmental charges and other charges of any kind and
nature incurred by the Warrant Agent in the execution of this Agreement, (iii)
to indemnify the Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs and counsel fees, for anything done or
omitted by the Warrant Agent in the execution and performance of this Agreement,
except as a result of the Warrant Agent's negligence or bad faith, and (iv) upon
request, to advance to the Warrant Agent funds to pay cash in lieu of fractional
shares of Common Stock or other fractional securities issuable on exercise of
Warrants.
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<PAGE> 13
(g) The Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more registered holders of Warrants
shall furnish the Warrant Agent with reasonable security and indemnity for any
costs and expenses that may be incurred.
(h) To the extent permitted by law, the Warrant Agent and any
shareholder, director, officer or employee of the Warrant Agent may buy, sell or
deal in any of the 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 Warrant Agent under this Agreement. Nothing herein
shall preclude the Warrant Agent from acting in any other capacity for the
Company or for any other legal entity.
(i) The Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder from
any one of the Chairman of the Board, the President, any Vice President, the
Secretary or the Treasurer of the Company, and to apply to such officers for
advice or instructions in connection with its duties, and it shall not be liable
for any action taken or suffered by it in good faith in accordance with
instructions of any such officer or for any delay in acting while waiting for
those instructions. Any application by the Warrant Agent for written
instructions from the Company may, at the option of the Warrant Agent, set forth
in writing any action proposed to be taken or omitted by the Warrant Agent under
this Agreement and the date on and/or after which such action shall be taken or
such omission shall be effective. The Warrant Agent shall not be liable for any
action taken by, or omission of, the Warrant Agent in accordance with a proposal
included in any such application on or after the date specified in such
application (which date shall not be less than five Business Days after the date
any officer of the Company actually receives such application, unless any such
officer shall have consented in writing to an earlier date) unless, prior to
taking any such action (or the effective date in the case of an omission), the
Warrant Agent shall have received written instructions in response to such
application specifying the action to be taken or omitted.
21. Change of Warrant Agent. The Warrant Agent may resign and be
discharged from its duties under this Agreement by giving to the Company notice
in writing, by first-class mail, postage prepaid, specifying a date when such
resignation shall take effect, which notice shall be received by the Company at
least 30 days prior to the date so specified. If the Warrant Agent shall resign,
the Company shall appoint a successor to the Warrant Agent. If the Company shall
fail to make such appointment within a period of 30 days after it has been
notified in writing of such resignation by the resigning Warrant Agent, 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. 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; but the former Warrant Agent shall
deliver and transfer to the successor warrant agent any property at the
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time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose.
22. Issuance of New Warrant Certificates. Notwithstanding any of the
provisions of this Agreement or the Warrant Certificate to the contrary, the
Company may, at its option, issue new Warrant Certificates in such form as may
be approved by its Board of Directors to reflect any adjustment or change in the
number or kind of shares purchasable pursuant to the terms of the Warrants made
in accordance with the provisions of this Agreement.
23. Notices. Any notice pursuant to this Agreement to be given by the
Warrant Agent or by the registered holder of any Warrant to the Company shall be
sufficiently given if sent by messenger, overnight delivery service, or
first-class mail, postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent) as follows:
Antex Biologics Inc.
300 Professional Drive
Gaithersburg, MD 20879
Attn: Secretary
Any notice pursuant to this Agreement to be given by the Company or by the
registered holder of any Warrant to the Warrant Agent shall be sufficiently
given if sent by messenger, overnight delivery service, or first-class mail,
postage prepaid, addressed (until another address is filed in writing by the
Warrant Agent with the Company) as follows:
American Stock Transfer & Trust Company
40 Wall Street, 46th Floor
New York, New York 10005
24. Modification of Agreement. The Warrant Agent may, without the
consent or concurrence of the holders of the Warrants, by supplemental agreement
or otherwise, concur with the Company in making any changes or corrections in
this Agreement that the Warrant Agent shall have been advised by counsel (who
may be counsel for the Company) are necessary or desirable to cure any ambiguity
or to correct any defective or inconsistent provision or clerical omission or
mistake or manifest error herein contained, or to make any other provisions in
regard to matters or questions arising hereunder and that shall not be
inconsistent with the provisions of the Warrant Certificate and that shall not
adversely affect the interests of the holders of the Warrants. As of the date
hereof, this Agreement contains the entire and only agreement, understanding,
representation, condition, warranty or covenant between the parties and the
registered holders of the Warrants hereto with respect to the matters herein,
supersedes any and all other agreements between the parties hereto relating to
such matters and may be modified or amended only by a written agreement signed
by both parties hereto pursuant to the authority granted by the first sentence
of this Section 24.
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<PAGE> 15
25. Successors. All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Warrant Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
26. Termination. This Agreement shall terminate as of the close of
business on the Expiration Date, or such earlier date upon which all Warrants
shall have been exercised or redeemed, except that the Warrant Agent shall
account to the Company as to all Warrants outstanding and all cash held by it as
of the close of business on the Expiration Date.
27. Governing Law. This Agreement and each Warrant issued hereunder
shall be deemed to be a contract made under the laws of the State of Maryland by
Maryland residents and to be performed entirely within the State of Maryland.
28. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or entity, other than the Company, the Warrant
Agent and the registered holders of the Warrants, any legal or equitable right,
remedy or claim under this Agreement; and this Agreement shall be for the sole
and exclusive benefit of the Company, the Warrant Agent and the registered
holders of the Warrants.
29. Descriptive Headings. The descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meanings or construction of any of the provisions hereof.
30. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute one and the
same instrument.
31. No Impairment. The Company shall not, by amendment to its
certificate of incorporation or By-laws or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issue, sale, grant or
assumption of securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of this Warrant Agreement or
the Warrants.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ANTEX BIOLOGICS INC.
[SEAL] By: /s/ V. M. Esposito
--------------------
V.M. Esposito
President
-15-
<PAGE> 16
AMERICAN STOCK TRANSFER & TRUST COMPANY
[SEAL] By:
---------------------
Name
Title
-16-
<PAGE> 17
EXHIBIT A
FORM OF FACE OF CALLABLE CLASS A WARRANT CERTIFICATE
ANTEX BIOLOGICS INC.
CALLABLE CLASS A WARRANT
TO PURCHASE SHARES OF COMMON STOCK
VOID AFTER
5:00 P.M., WASHINGTON, D.C. TIME,
ON MARCH 14, 2005
CALLABLE
WARRANT
NUMBER
WC-A-___ __________ WARRANTS
THIS CERTIFIES THAT for value received, __________________________, the
registered holder hereof or his or her registered assign(s) (the "Holder"), is
entitled to purchase from Antex Biologics Inc., a Delaware corporation (the
"Company"), at any time during the period beginning at 5:00 p.m., Washington,
D.C. Time, on the date hereof, and ending at 5:00 p.m., Washington, D.C. Time,
on March 14, 2005 (the "Expiration Date"), unless earlier redeemed, the number
of shares of Common Stock of the Company (the "Shares") set forth above. The
purchase price for one Share shall be $1.50 (the "Exercise Price"). Upon the
occurrence of certain events, the amount and/or type of securities purchasable
upon exercise of this Warrant Certificate shall be subject to modification or
adjustment as provided in Section 11 of the Warrant Agreement referred to below
(the "Warrant Agreement").
After eighteen months from the date hereof, the Company may redeem each
Callable Class A Warrant at a price of $0.10 per Callable Class A Warrant (the
"Redemption Price") upon at least 30 days' written notice to the Holder by
following the procedures set forth in the Warrant Agreement, if the average of
the closing sale prices (or, if closing sale prices are not available, the
closing bid prices) of the Common Stock shall exceed $7.50 per share for any
period of 20 consecutive trading days prior to the date on which the notice of
redemption is given, and provided further, that the Holder shall not have
exercised the Callable Class A
A-1
<PAGE> 18
Warrants before the close of business on the date set for redemption. After
twenty-four months from the date hereof, the Company may redeem each Callable
Class A Warrant at the Redemption Price upon at least 30 days' written notice to
the Holder by following the procedures set forth in the Warrant Agreement, if
the average of the closing sale prices (or, if closing sale prices are not
available, the closing bid prices) of the Common Stock shall exceed $4.50 per
share for any period of 20 consecutive trading days prior to the date on which
the notice of redemption is given, and provided further, that the Holder shall
not have exercised the Callable Class A Warrants before the close of business on
the date set for redemption. After the close of business on the date fixed for
redemption, the Holder shall have no rights with respect to the Callable Class A
Warrants, except the right to receive the Redemption Price upon surrender of
this Certificate. The Callable Class A Warrants may not be exercised by the
Holder hereof unless (a) the shares of Common Stock purchasable upon the
exercise thereof are registered under the Securities Act of 1933, as amended
(the "1933 Act"), or the transaction in which the shares of Common Stock are to
be issued is exempted from the application of the registration provisions of the
1933 Act, and (b) such shares of Common Stock are registered or otherwise
qualified for sale under the securities laws of the State in which the Holder
resides or an exemption from such registration or qualification is available
under such laws. Notwithstanding any provision of the Warrant Agreement or this
Callable Class A Warrant Certificate to the contrary, the Callable Class A
Warrants are not exercisable if the issuance of the shares of Common Stock
purchasable upon such exercise is unlawful under the laws of any applicable
jurisdiction.
All or a portion of the Callable Class A Warrants may be exercised by
presentation and surrender of this Callable Class A Warrant Certificate, with
the Purchase Form on the reverse side hereof duly executed, together with the
Exercise Price, at the office of American Stock Transfer & Trust Company (the
"Warrant Agent"), at 40 Wall Street, New York, New York, or at such other office
as may from time to time be designated by the Warrant Agent (the "Designated
Office"). Payment of the Exercise Price shall be made in lawful money of the
United States by cash or personal check or bank draft made payable to Antex
Biologics Inc., except that if payment is made by personal check, no shares of
Common Stock issuable upon such exercise will be issued until such check has
cleared.
Upon any partial exercise of this Callable Class A Warrant Certificate,
there shall be countersigned and issued to the Holder a new Callable Class A
Warrant Certificate for the number of Callable Class A Warrants as to which this
Callable Class A Warrant Certificate was not exercised. This Callable Class A
Warrant Certificate may be exchanged at the Designated Office of the Warrant
Agent by surrender of this Callable Class A Warrant Certificate properly
endorsed either separately or in combination with one or more other Callable
Class A Warrant Certificates for one or more new Callable Class A Warrant
Certificates of like tenor entitling the Holder thereof to purchase the same
aggregate number of Callable Class A Warrants as were purchasable on exercise of
the Callable Class A Warrant Certificate or Callable Class A Warrant
Certificates exchanged.
No fractional Shares will be issued upon the exercise of this Callable
Class A Warrant Certificate singly or in combination with any other Callable
Class A Warrant
A-2
<PAGE> 19
Certificates, and in lieu thereof the Company will pay to the Holder the cash
value of any such fraction, as provided in the Warrant Agreement. This Callable
Class A Warrant Certificate is transferable at the Designated Office of the
Warrant Agent set forth above, in the manner and subject to the limitations set
forth in the Warrant Agreement. The Holder or any transferee, as the case may
be, shall be responsible for any applicable transfer tax or other governmental
charge.
This Callable Class A Warrant is issued under and in accordance with an
Agreement, dated as of March 15, 2000, between the Company and the Warrant Agent
and is subject in all respects to the terms and provisions contained in the
Warrant Agreement, to which the Holder of the Callable Class A Warrants by
acceptance hereof consents. A copy of the Warrant Agreement may be obtained by
the Holder upon written request to the Warrant Agent.
Prior to due presentment for registration of transfer of the Callable
Class A Warrants, the Company and the Warrant Agent may deem and treat the
registered holder thereof as the absolute owner of the Callable Class A Warrants
(notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Company or the Warrant Agent) for the purpose of any
exercise thereof and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
The Callable Class A Warrants do not entitle the Holder to any rights of
a shareholder of the Company, including the right to vote, to receive dividends
or other distributions, or to receive any notice of any proceedings of the
Company, except as provided in the Warrant Agreement.
This Callable Class A Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the Warrant Agent.
DATED:
Countersigned:
AMERICAN STOCK TRANSFER & ANTEX BIOLOGICS INC.
TRUST COMPANY
as Warrant Agent
By: By:
------------------------------- ----------------------
Authorized Signature President
By:
----------------------
Secretary
A-3
<PAGE> 20
FORM OF REVERSE OF CALLABLE CLASS A WARRANT CERTIFICATE
ANTEX BIOLOGICS INC.
CALLABLE CLASS A WARRANT
PURCHASE FORM
Mailing Address:
---------------------------
---------------------------
---------------------------
The undersigned Holder hereby irrevocably elects to exercise the right,
represented by this Callable Class A Warrant Certificate, to purchase _________
shares of Common Stock (the "Shares"), herewith tenders payment for such Shares
by cash, check or bank draft payable to the order of Antex Biologics Inc. in the
amount of $______ and requests that certificates for such Shares be issued in
the name of
- --------------------------------------------------------------------------------
(PLEASE PRINT NAME, ADDRESS AND SOCIAL SECURITY NUMBER)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
If the number of Shares to be purchased as indicated above is fewer than all of
the Shares purchasable upon the exercise of the Callable Class A Warrants
evidenced by this Callable Class A Warrant Certificate, the undersigned further
requests that a new Callable Class A Warrant Certificate of like tenor
evidencing Callable Class A Warrants to purchase the balance remaining of the
Shares be registered in the name of the undersigned Holder (or his or her
assignee as indicated below) and delivered to the address stated below, unless
otherwise indicated by completion of the form of assignment below.
DATED: _____________ __, 200_
SIGNATURE GUARANTEED:
A-4
<PAGE> 21
-------------------------------------------
(Signature of Holder of Callable
Warrant or Assignee)
-------------------------------------------
(Signature of Holder of Callable Warrant or
Assignee)
NOTE: THE ABOVE SIGNATURES MUST
CORRESPOND WITH THE NAMES AS WRITTEN UPON
THE FACE OF THIS CALLABLE CLASS A WARRANT
CERTIFICATE IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER, UNLESS THIS CALLABLE CLASS A
WARRANT CERTIFICATE HAS BEEN ASSIGNED, IN
WHICH CASE THE SIGNATURE SHALL BE THE
NAME OF THE ASSIGNEE INDICATED BELOW, AND
MUST BE GUARANTEED BY A COMMERCIAL BANK,
TRUST COMPANY, SAVINGS ASSOCIATION OR
CREDIT UNION OR BY A MEMBER OF A NATIONAL
SECURITIES EXCHANGE OR THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS.
SIGNATURE GUARANTEED:
-------------------------------------------
Address:
-------------------------------------------
-------------------------------------------
A-5
<PAGE> 22
ASSIGNMENT
(To be signed only upon assignment of Callable Class A Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
- --------------------------------------------------------------------------------
(NAME AND ADDRESS OF ASSIGNEE MUST BE PRINTED OR TYPEWRITTEN)
- --------------------------------------------------------------------------------
__________ of the Callable Class A Warrants represented by the
Callable Class A Warrant Certificate, and hereby irrevocably constituting and
appointing
- --------------------------------------------------------------------------------
as his or her lawful attorney to transfer said Callable Class A Warrants on the
books of the Company, with full power of substitution in the premises.
DATED: ___________________,200_
-------------------------------------------
(Signature of Holder)
-------------------------------------------
(Signature of Holder)
NOTE: THE ABOVE SIGNATURES MUST
CORRESPOND WITH THE NAMES AS WRITTEN UPON
THE FACE OF THIS CALLABLE CLASS A WARRANT
CERTIFICATE IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATSOEVER AND MUST BE GUARANTEED BY A
COMMERCIAL BANK, TRUST COMPANY, SAVINGS
ASSOCIATION OR CREDIT UNION OR BY A
MEMBER OF A NATIONAL SECURITIES EXCHANGE
OR THE
A-6
<PAGE> 23
NATIONAL ASSOCIATION OF SECURITIES DEALERS.
SIGNATURE GUARANTEED:
-------------------------------------------
Address: ----------------------------------
-------------------------------------------
A-7
<PAGE> 24
EXHIBIT B
FORM OF FACE OF CALLABLE CLASS B WARRANT CERTIFICATE
ANTEX BIOLOGICS INC.
CALLABLE CLASS B WARRANT
TO PURCHASE SHARES OF COMMON STOCK
VOID AFTER
5:00 P.M., WASHINGTON, D.C. TIME,
ON MARCH 14, 2005
CALLABLE
WARRANT
NUMBER
WC-B-___ __________ WARRANTS
THIS CERTIFIES THAT for value received, __________________________, the
registered holder hereof or his or her registered assign(s) (the "Holder"), is
entitled to purchase from Antex Biologics Inc., a Delaware corporation (the
"Company"), at any time during the period beginning at 5:00 p.m., Washington,
D.C. Time, March 15, 2001, and ending at 5:00 p.m., Washington, D.C. Time, on
March 14, 2005 (the "Expiration Date"), unless earlier redeemed, the number of
shares of Common Stock of the Company (the "Shares") set forth above. The
purchase price for one Share shall be $1.50 (the "Exercise Price"). Upon the
occurrence of certain events, the amount and/or type of securities purchasable
upon exercise of this Warrant Certificate shall be subject to modification or
adjustment as provided in Section 11 of the Warrant Agreement referred to below
(the "Warrant Agreement").
After eighteen months from the date hereof, the Company may redeem each
Callable Class B Warrant at a price of $0.10 per Callable Class B Warrant (the
"Redemption Price") upon at least 30 days' written notice to the Holder by
following the procedures set forth in the Warrant Agreement, if the average of
the closing sale prices (or, if closing sale prices are not available, the
closing bid prices) of the Common Stock shall exceed $7.50 per share for any
period of 20 consecutive trading days prior to the date on which the notice of
redemption is given, and provided further, that the Holder shall not have
exercised the Callable Class B Warrants before the close of business on the date
set for redemption. After twenty-four months from the date hereof, the Company
may redeem each Callable Class B Warrant at the Redemption Price upon at least
30 days' written notice to the Holder by
B-1
<PAGE> 25
following the procedures set forth in the Warrant Agreement, if the average of
the closing sale prices (or, if closing sale prices are not available, the
closing bid prices) of the Common Stock shall exceed $4.50 per share for any
period of 20 consecutive trading days prior to the date on which the notice of
redemption is given, and provided further, that the Holder shall not have
exercised the Callable Class B Warrants before the close of business on the date
set for redemption. After the close of business on the date fixed for
redemption, the Holder shall have no rights with respect to the Callable Class B
Warrants, except the right to receive the Redemption Price upon surrender of
this Certificate. The Callable Class B Warrants may not be exercised by the
Holder hereof unless (a) the shares of Common Stock purchasable upon the
exercise thereof are registered under the Securities Act of 1933, as amended
(the "1933 Act"), or the transaction in which the shares of Common Stock are to
be issued is exempted from the application of the registration provisions of the
1933 Act, and (b) such shares of Common Stock are registered or otherwise
qualified for sale under the securities laws of the State in which the Holder
resides or an exemption from such registration or qualification is available
under such laws. Notwithstanding any provision of the Warrant Agreement or this
Callable Class B Warrant Certificate to the contrary, the Callable Class B
Warrants are not exercisable if the issuance of the shares of Common Stock
purchasable upon such exercise is unlawful under the laws of any applicable
jurisdiction, or, if the Callable Class B Warrants are Compensation Warrants, if
shareholder approval pursuant to Section 10 of the Warrant Agreement has not
been received authorizing a sufficient number of shares of Common Stock for
reservation..
All or a portion of the Callable Class B Warrants may be exercised by
presentation and surrender of this Callable Class B Warrant Certificate, with
the Purchase Form on the reverse side hereof duly executed, together with the
Exercise Price, at the office of American Stock Transfer & Trust Company (the
"Warrant Agent"), at 40 Wall Street, New York, New York, or at such other office
as may from time to time be designated by the Warrant Agent (the "Designated
Office"). Payment of the Exercise Price shall be made in lawful money of the
United States by cash or personal check or bank draft made payable to Antex
Biologics Inc., except that if payment is made by personal check, no shares of
Common Stock issuable upon such exercise will be issued until such check has
cleared.
Upon any partial exercise of this Callable Class B Warrant Certificate,
there shall be countersigned and issued to the Holder a new Callable Class B
Warrant Certificate for the number of Callable Class B Warrants as to which this
Callable Class B Warrant Certificate was not exercised. This Callable Class B
Warrant Certificate may be exchanged at the Designated Office of the Warrant
Agent by surrender of this Callable Class B Warrant Certificate properly
endorsed either separately or in combination with one or more other Callable
Class B Warrant Certificates for one or more new Callable Class B Warrant
Certificates of like tenor entitling the Holder thereof to purchase the same
aggregate number of Callable Class B Warrants as were purchasable on exercise of
the Callable Class B Warrant Certificate or Callable Class B Warrant
Certificates exchanged.
B-2
<PAGE> 26
No fractional Shares will be issued upon the exercise of this Callable
Class B Warrant Certificate singly or in combination with any other Callable
Class B Warrant Certificate, and in lieu thereof the Company will pay to the
Holder the cash value of any such fraction, as provided in the Warrant
Agreement. This Callable Class B Warrant Certificate is transferable at the
Designated Office of the Warrant Agent set forth above, in the manner and
subject to the limitations set forth in the Warrant Agreement. The Holder or any
transferee, as the case may be, shall be responsible for any applicable transfer
tax or other governmental charge.
This Callable Class B Warrant is issued under and in accordance with an
Agreement, dated as of March 15, 2000, between the Company and the Warrant Agent
and is subject in all respects to the terms and provisions contained in the
Warrant Agreement, to which the Holder of the Callable Class B Warrants by
acceptance hereof consents. A copy of the Warrant Agreement may be obtained by
the Holder upon written request to the Warrant Agent.
Prior to due presentment for registration of transfer of the Callable
Class B Warrants, the Company and the Warrant Agent may deem and treat the
registered holder thereof as the absolute owner of the Callable Class B Warrants
(notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Company or the Warrant Agent) for the purpose of any
exercise thereof and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
The Callable Class B Warrants do not entitle the Holder to any rights of
a shareholder of the Company, including the right to vote, to receive dividends
or other distributions, or to receive any notice of any proceedings of the
Company, except as provided in the Warrant Agreement.
This Callable Class B Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the Warrant Agent.
DATED:
Countersigned:
AMERICAN STOCK TRANSFER & ANTEX BIOLOGICS INC.
TRUST COMPANY
as Warrant Agent
By: By:
---------------------------- --------------------------
Authorized Signature President
By:
--------------------------
Secretary
B-3
<PAGE> 27
FORM OF REVERSE OF CALLABLE CLASS B WARRANT CERTIFICATE
ANTEX BIOLOGICS INC.
CALLABLE CLASS B WARRANT
PURCHASE FORM
Mailing Address:
---------------------------
---------------------------
---------------------------
The undersigned Holder hereby irrevocably elects to exercise the right,
represented by this Callable Class B Warrant Certificate, to purchase _________
shares of Common Stock (the "Shares"), herewith tenders payment for such Shares
by cash, check or bank draft payable to the order of Antex Biologics Inc. in the
amount of $______ and requests that certificates for such Shares be issued in
the name of
- --------------------------------------------------------------------------------
(PLEASE PRINT NAME, ADDRESS AND SOCIAL SECURITY NUMBER)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
If the number of Shares to be purchased as indicated above is fewer than all of
the Shares purchasable upon the exercise of the Callable Class B Warrants
evidenced by this Callable Class B Warrant Certificate, the undersigned further
requests that a new Callable Class B Warrant Certificate of like tenor
evidencing Callable Class B Warrants to purchase the balance remaining of the
Shares be registered in the name of the undersigned Holder (or his or her
assignee as indicated below) and delivered to the address stated below, unless
otherwise indicated by completion of the form of assignment below.
DATED: _____________ __, 200_
SIGNATURE GUARANTEED:
B-4
<PAGE> 28
-------------------------------------------
(Signature of Holder of Callable
Warrant or Assignee)
-------------------------------------------
(Signature of Holder of Callable Warrant or
Assignee)
NOTE: THE ABOVE SIGNATURES MUST
CORRESPOND WITH THE NAMES AS WRITTEN
UPON THE FACE OF THIS CALLABLE CLASS B
WARRANT CERTIFICATE IN EVERY PARTICULAR
WITHOUT ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER, UNLESS THIS CALLABLE
CLASS B WARRANT CERTIFICATE HAS BEEN
ASSIGNED, IN WHICH CASE THE SIGNATURE
SHALL BE THE NAME OF THE ASSIGNEE
INDICATED BELOW, AND MUST BE GUARANTEED
BY A COMMERCIAL BANK, TRUST COMPANY,
SAVINGS ASSOCIATION OR CREDIT UNION OR
BY A MEMBER OF A NATIONAL SECURITIES
EXCHANGE OR THE NATIONAL ASSOCIATION OF
SECURITIES DEALERS.
SIGNATURE GUARANTEED:
-------------------------------------------
Address:
-------------------------------------------
-------------------------------------------
B-5
<PAGE> 29
ASSIGNMENT
(To be signed only upon assignment of Callable Class B Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
- --------------------------------------------------------------------------------
(NAME AND ADDRESS OF ASSIGNEE MUST BE PRINTED OR TYPEWRITTEN)
- --------------------------------------------------------------------------------
__________ of the Callable Class B Warrants represented by the Callable
Class B Warrant Certificate, and hereby irrevocably constituting and appointing
- --------------------------------------------------------------------------------
as his or her lawful attorney to transfer said Callable Class B Warrants on the
books of the Company, with full power of substitution in the premises.
DATED: ___________________,200_
-------------------------------------------
(Signature of Holder)
-------------------------------------------
(Signature of Holder)
NOTE: THE ABOVE SIGNATURES MUST
CORRESPOND WITH THE NAMES AS WRITTEN
UPON THE FACE OF THIS CALLABLE CLASS B
WARRANT CERTIFICATE IN EVERY PARTICULAR
WITHOUT ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATSOEVER AND MUST BE GUARANTEED
BY A COMMERCIAL BANK, TRUST COMPANY,
SAVINGS ASSOCIATION OR CREDIT UNION OR
BY A MEMBER OF A NATIONAL SECURITIES
EXCHANGE OR THE
B-6
<PAGE> 30
NATIONAL ASSOCIATION OF SECURITIES DEALERS.
SIGNATURE GUARANTEED:
-------------------------------------------
Address: ----------------------------------
B-7
<PAGE> 31
EXHIBIT C
FORM OF FACE OF NON-CALLABLE CLASS C WARRANT CERTIFICATE
ANTEX BIOLOGICS INC.
NON-CALLABLE CLASS C WARRANT
TO PURCHASE SHARES OF COMMON STOCK
VOID AFTER
5:00 P.M., WASHINGTON, D.C. TIME,
ON MARCH 14, 2005
NON-CALLABLE
WARRANT
NUMBER
WC-C-___ __________ WARRANTS
THIS CERTIFIES THAT for value received, __________________________, the
registered holder hereof or his or her registered assign(s) (the "Holder"), is
entitled to purchase from Antex Biologics Inc., a Delaware corporation (the
"Company"), at any time during the period beginning at 5:00 p.m., Washington,
D.C. Time, on March 15, 2001, and ending at 5:00 p.m., Washington, D.C. Time, on
March 14, 2005 (the "Expiration Date"), unless earlier redeemed, the number of
shares of Common Stock of the Company (the "Shares") set forth above. The
purchase price for one Share shall be $0.66 (the "Exercise Price"). Upon the
occurrence of certain events, the amount and/or type of securities purchasable
upon exercise of this Warrant Certificate shall be subject to modification or
adjustment as provided in Section 11 of the Warrant Agreement referred to below
(the "Warrant Agreement").
The Non-Callable Class C Warrants may not be exercised by the Holder
hereof unless (a) the shares of Common Stock purchasable upon the exercise
thereof are registered under the Securities Act of 1933, as amended (the "1933
Act"), or the transaction in which the shares of Common Stock are to be issued
is exempted from the application of the registration provisions of the 1933 Act,
and (b) such shares of Common Stock are registered or otherwise qualified for
sale under the securities laws of the State in which the Holder resides or an
exemption from such registration or qualification is available under such laws.
Notwithstanding any provision of the Warrant Agreement or this Non-Callable
C-1
<PAGE> 32
Class C Warrant Certificate to the contrary, the Non-Callable Class C Warrants
are not exercisable if the issuance of the shares of Common Stock purchasable
upon such exercise is unlawful under the laws of any applicable jurisdiction or,
if the Callable Class B Warrants are Compensation Warrants, if shareholder
approval pursuant to Section 10 of the Warrant Agreement has not been received
authorizing a sufficient number of shares of Common Stock for reservation.
All or a portion of the Non-Callable Class C Warrants may be exercised by
presentation and surrender of this Non-Callable Class C Warrant Certificate,
with the Purchase Form on the reverse side hereof duly executed, together with
the Exercise Price, at the office of American Stock Transfer & Trust Company
(the "Warrant Agent"), at 40 Wall Street, New York, New York, or at such other
office as may from time to time be designated by the Warrant Agent (the
"Designated Office"). Payment of the Exercise Price shall be made in lawful
money of the United States by cash or personal check or bank draft made payable
to Antex Biologics Inc., except that if payment is made by personal check, no
shares of Common Stock issuable upon such exercise will be issued until such
check has cleared.
Upon any partial exercise of this Non-Callable Class C Warrant
Certificate, there shall be countersigned and issued to the Holder a new
Non-Callable Class C Warrant Certificate for the number of Non-Callable Class C
Warrants as to which this Non-Callable Class C Warrant Certificate was not
exercised. This Non-Callable Class C Warrant Certificate may be exchanged at the
Designated Office of the Warrant Agent by surrender of this Non-Callable Class C
Warrant Certificate properly endorsed either separately or in combination with
one or more other Non-Callable Class C Warrant Certificates for one or more new
Non-Callable Class C Warrant Certificates of like tenor entitling the Holder
thereof to purchase the same aggregate number of Non-Callable Class C Warrants
as were purchasable on exercise of the Non-Callable Class C Warrant Certificate
or Non-Callable Class C Warrant Certificates exchanged.
No fractional Shares will be issued upon the exercise of this
Non-Callable Class C Warrant Certificate singly or in combination with any other
Non-Callable Class C Warrant Certificate, and in lieu thereof the Company will
pay to the Holder the cash value of any such fraction, as provided in the
Warrant Agreement. This Non-Callable Class C Warrant Certificate is transferable
at the Designated Office of the Warrant Agent set forth above, in the manner and
subject to the limitations set forth in the Warrant Agreement. The Holder or any
transferee, as the case may be, shall be responsible for any applicable transfer
tax or other governmental charge.
This Non-Callable Class C Warrant is issued under and in accordance with
an Agreement, dated as of March 15, 2000, between the Company and the Warrant
Agent and is subject in all respects to the terms and provisions contained in
the Warrant Agreement, to which the Holder of the Non-Callable Class C Warrants
by acceptance hereof consents. A copy of the Warrant Agreement may be obtained
by the Holder upon written request to the Warrant Agent.
C-2
<PAGE> 33
Prior to due presentment for registration of transfer of the Non-Callable
Class C Warrants, the Company and the Warrant Agent may deem and treat the
registered holder thereof as the absolute owner of the Non-Callable Class C
Warrants (notwithstanding any notation of ownership or other writing thereon
made by anyone other than the Company or the Warrant Agent) for the purpose of
any exercise thereof and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
The Non-Callable Class C Warrants do not entitle the Holder to any rights
of a shareholder of the Company, including the right to vote, to receive
dividends or other distributions, or to receive any notice of any proceedings of
the Company, except as provided in the Warrant Agreement.
This Non-Callable Class C Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the Warrant Agent.
DATED:
Countersigned:
AMERICAN STOCK TRANSFER & ANTEX BIOLOGICS INC.
TRUST COMPANY
as Warrant Agent
By: By:
------------------------------ ----------------------------
Authorized Signature President
By:
----------------------------
Secretary
C-3
<PAGE> 34
FORM OF REVERSE OF NON-CALLABLE CLASS C WARRANT CERTIFICATE
ANTEX BIOLOGICS INC.
NON-CALLABLE CLASS C WARRANT
PURCHASE FORM
Mailing Address:
---------------------------
---------------------------
---------------------------
The undersigned Holder hereby irrevocably elects to exercise the right,
represented by this Non-Callable Class C Warrant Certificate, to purchase
_________ shares of Common Stock (the "Shares"), herewith tenders payment for
such Shares by cash, check or bank draft payable to the order of Antex Biologics
Inc. in the amount of $______ and requests that certificates for such Shares be
issued in the name of
- --------------------------------------------------------------------------------
(PLEASE PRINT NAME, ADDRESS AND SOCIAL SECURITY NUMBER)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
If the number of Shares to be purchased as indicated above is fewer than all of
the Shares purchasable upon the exercise of the Non-Callable Class C Warrants
evidenced by this Non-Callable Class C Warrant Certificate, the undersigned
further requests that a new Non-Callable Class C Warrant Certificate of like
tenor evidencing Non-Callable Class C Warrants to purchase the balance remaining
of the Shares be registered in the name of the undersigned Holder (or his or her
assignee as indicated below) and delivered to the address stated below, unless
otherwise indicated by completion of the form of assignment below.
DATED: _____________ __, 200_
C-4
<PAGE> 35
SIGNATURE GUARANTEED:
-------------------------------------------
(Signature of Holder of Non-Callable
Warrant or Assignee)
-------------------------------------------
(Signature of Holder of Non-Callable
Warrant or Assignee)
NOTE: THE ABOVE SIGNATURES MUST
CORRESPOND WITH THE NAMES AS WRITTEN
UPON THE FACE OF THIS NON-CALLABLE CLASS
C WARRANT CERTIFICATE IN EVERY
PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER,
UNLESS THIS NON-CALLABLE CLASS C WARRANT
CERTIFICATE HAS BEEN ASSIGNED, IN WHICH
CASE THE SIGNATURE SHALL BE THE NAME OF
THE ASSIGNEE INDICATED BELOW, AND MUST
BE GUARANTEED BY A COMMERCIAL BANK,
TRUST COMPANY, SAVINGS ASSOCIATION OR
CREDIT UNION OR BY A MEMBER OF A
NATIONAL SECURITIES EXCHANGE OR THE
NATIONAL ASSOCIATION OF SECURITIES
DEALERS.
SIGNATURE GUARANTEED:
-------------------------------------------
Address:
-------------------------------------------
-------------------------------------------
C-5
<PAGE> 36
ASSIGNMENT
(To be signed only upon assignment of Non-Callable Class C Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
- --------------------------------------------------------------------------------
(NAME AND ADDRESS OF ASSIGNEE MUST BE PRINTED OR TYPEWRITTEN)
- --------------------------------------------------------------------------------
__________ of the Non-Callable Class C Warrants represented by the
Non-Callable Class C Warrant Certificate, and hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
as his or her lawful attorney to transfer said Non-Callable Class C Warrants on
the books of the Company, with full power of substitution in the premises.
DATED: ________________ __,200_
-------------------------------------------
(Signature of Holder)
-------------------------------------------
(Signature of Holder)
NOTE: THE ABOVE SIGNATURES MUST
CORRESPOND WITH THE NAMES AS WRITTEN
UPON THE FACE OF THIS NON-CALLABLE CLASS
C WARRANT CERTIFICATE IN EVERY
PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER AND
MUST BE GUARANTEED BY A COMMERCIAL BANK,
TRUST COMPANY, SAVINGS ASSOCIATION OR
CREDIT UNION OR BY A MEMBER OF A
NATIONAL SECURITIES EXCHANGE OR THE
C-6
<PAGE> 37
NATIONAL ASSOCIATION OF SECURITIES
DEALERS.
SIGNATURE GUARANTEED:
-------------------------------------------
Address:
-------------------------------------------
-------------------------------------------
C-7
<PAGE> 38
EXHIBIT D
FORM OF FACE OF NON-CALLABLE CLASS D WARRANT CERTIFICATE
ANTEX BIOLOGICS INC.
NON-CALLABLE CLASS D WARRANT
TO PURCHASE SHARES OF COMMON STOCK
VOID AFTER
5:00 P.M., WASHINGTON, D.C. TIME,
ON MARCH 14, 2005
NON-CALLABLE
WARRANT
NUMBER
WC-D-___ __________ WARRANTS
THIS CERTIFIES THAT for value received, __________________________, the
registered holder hereof or his or her registered assign(s) (the "Holder"), is
entitled to purchase from Antex Biologics Inc., a Delaware corporation (the
"Company"), at any time during the period beginning at 5:00 p.m., Washington,
D.C. Time, on March 15, 2001, and ending at 5:00 p.m., Washington, D.C. Time, on
March 14, 2005 (the "Expiration Date"), unless earlier redeemed, the number of
shares of Common Stock of the Company (the "Shares") set forth above. The
purchase price for one Share shall be $1.50 (the "Exercise Price"). Upon the
occurrence of certain events, the amount and/or type of securities purchasable
upon exercise of this Warrant Certificate shall be subject to modification or
adjustment as provided in Section 11 of the Warrant Agreement referred to below
(the "Warrant Agreement").
The Non-Callable Class D Warrants may not be exercised by the Holder
hereof unless (a) the shares of Common Stock purchasable upon the exercise
thereof are registered under the Securities Act of 1933, as amended (the "1933
Act"), or the transaction in which the shares of Common Stock are to be issued
is exempted from the application of the registration provisions of the 1933 Act,
and (b) such shares of Common Stock are registered or otherwise qualified for
sale under the securities laws of the State in which the Holder resides or an
exemption from such registration or qualification is available under such laws.
Notwithstanding any provision of the Warrant Agreement or this Non-Callable
Class D Warrant Certificate to the contrary, the Non-Callable Class D Warrants
are not
D-1
<PAGE> 39
exercisable if the issuance of the shares of Common Stock purchasable
upon such exercise is unlawful under the laws of any applicable jurisdiction or,
if the Non-Callable Class D Warrants are Compensation Warrants, if shareholder
approval pursuant to Section 10 of the Warrant Agreement has not been received
authorizing a sufficient number of shares of Common Stock for reservation.
All or a portion of the Non-Callable Class D Warrants may be exercised by
presentation and surrender of this Non-Callable Class D Warrant Certificate,
with the Purchase Form on the reverse side hereof duly executed, together with
the Exercise Price, at the office of American Stock Transfer & Trust Company
(the "Warrant Agent"), at 40 Wall Street, New York, New York, or at such other
office as may from time to time be designated by the Warrant Agent (the
"Designated Office"). Payment of the Exercise Price shall be made in lawful
money of the United States by cash or personal check or bank draft made payable
to Antex Biologics Inc., except that if payment is made by personal check, no
shares of Common Stock issuable upon such exercise will be issued until such
check has cleared.
Upon any partial exercise of this Non-Callable Class D Warrant
Certificate, there shall be countersigned and issued to the Holder a new
Non-Callable Class D Warrant Certificate for the number of Non-Callable Class D
Warrants as to which this Non-Callable Class D Warrant Certificate was not
exercised. This Non-Callable Class D Warrant Certificate may be exchanged at the
Designated Office of the Warrant Agent by surrender of this Non-Callable Class D
Warrant Certificate properly endorsed either separately or in combination with
one or more other Non-Callable Class D Warrant Certificates for one or more new
Non-Callable Class D Warrant Certificates of like tenor entitling the Holder
thereof to purchase the same aggregate number of Non-Callable Class D Warrants
as were purchasable on exercise of the Non-Callable Class D Warrant Certificate
or Non-Callable Class D Warrant Certificates exchanged.
No fractional Shares will be issued upon the exercise of this
Non-Callable Class D Warrant Certificate singly or in combination with any other
Non-Callable Class D Warrant Certificate, and in lieu thereof the Company will
pay to the Holder the cash value of any such fraction, as provided in the
Warrant Agreement. This Non-Callable Class D Warrant Certificate is transferable
at the Designated Office of the Warrant Agent set forth above, in the manner and
subject to the limitations set forth in the Warrant Agreement. The Holder or any
transferee, as the case may be, shall be responsible for any applicable transfer
tax or other governmental charge.
This Non-Callable Class D Warrant is issued under and in accordance with
an Agreement, dated as of March 15, 2000, between the Company and the Warrant
Agent and is subject in all respects to the terms and provisions contained in
the Warrant Agreement, to which the Holder of the Non-Callable Class D Warrants
by acceptance hereof consents. A copy of the Warrant Agreement may be obtained
by the Holder upon written request to the Warrant Agent.
D-2
<PAGE> 40
Prior to due presentment for registration of transfer of the Non-Callable
Class D Warrants, the Company and the Warrant Agent may deem and treat the
registered holder thereof as the absolute owner of the Non-Callable Class D
Warrants (notwithstanding any notation of ownership or other writing thereon
made by anyone other than the Company or the Warrant Agent) for the purpose of
any exercise thereof and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
The Non-Callable Class D Warrants do not entitle the Holder to any rights
of a shareholder of the Company, including the right to vote, to receive
dividends or other distributions, or to receive any notice of any proceedings of
the Company, except as provided in the Warrant Agreement.
This Non-Callable Class D Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the Warrant Agent.
DATED:
Countersigned:
AMERICAN STOCK TRANSFER & ANTEX BIOLOGICS INC.
TRUST COMPANY
as Warrant Agent
By: By:
------------------------------ -------------------------
Authorized Signature President
By:
-------------------------
Secretary
D-3
<PAGE> 41
FORM OF REVERSE OF NON-CALLABLE CLASS D WARRANT CERTIFICATE
ANTEX BIOLOGICS INC.
NON-CALLABLE CLASS D WARRANT
PURCHASE FORM
Mailing Address:
---------------------------
---------------------------
---------------------------
The undersigned Holder hereby irrevocably elects to exercise the right,
represented by this Non-Callable Class D Warrant Certificate, to purchase
_________ shares of Common Stock (the "Shares"), herewith tenders payment for
such Shares by cash, check or bank draft payable to the order of Antex Biologics
Inc. in the amount of $______ and requests that certificates for such Shares be
issued in the name of
- --------------------------------------------------------------------------------
(PLEASE PRINT NAME, ADDRESS AND SOCIAL SECURITY NUMBER)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
If the number of Shares to be purchased as indicated above is fewer than all of
the Shares purchasable upon the exercise of the Non-Callable Class D Warrants
evidenced by this Non-Callable Class D Warrant Certificate, the undersigned
further requests that a new Non-Callable Class D Warrant Certificate of like
tenor evidencing Non-Callable Class D Warrants to purchase the balance remaining
of the Shares be registered in the name of the undersigned Holder (or his or her
assignee as indicated below) and delivered to the address stated below, unless
otherwise indicated by completion of the form of assignment below.
DATED: ________________, 200_
SIGNATURE GUARANTEED:
-------------------------------
<PAGE> 42
(Signature of Holder of Non-Callable
Warrant or Assignee)
-------------------------------------------
(Signature of Holder of Non-Callable
Warrant or Assignee)
NOTE: THE ABOVE SIGNATURES MUST
CORRESPOND WITH THE NAMES AS
WRITTEN UPON THE FACE OF THIS
NON-CALLABLE CLASS D WARRANT
CERTIFICATE IN EVERY PARTICULAR
WITHOUT ALTERATION OR ENLARGEMENT
OR ANY CHANGE WHATEVER, UNLESS THIS
NON-CALLABLE CLASS D WARRANT
CERTIFICATE HAS BEEN ASSIGNED, IN
WHICH CASE THE SIGNATURE SHALL BE
THE NAME OF THE ASSIGNEE INDICATED
BELOW, AND MUST BE GUARANTEED BY A
COMMERCIAL BANK, TRUST COMPANY,
SAVINGS ASSOCIATION OR CREDIT UNION
OR BY A MEMBER OF A NATIONAL
SECURITIES EXCHANGE OR THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS.
SIGNATURE GUARANTEED:
-------------------------------------------
Address: ----------------------------------
-------------------------------------------
D-5
<PAGE> 43
ASSIGNMENT
(To be signed only upon assignment of Non-Callable Class D Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
- --------------------------------------------------------------------------------
(NAME AND ADDRESS OF ASSIGNEE MUST BE PRINTED OR TYPEWRITTEN)
- --------------------------------------------------------------------------------
__________ of the Non-Callable Class D Warrants represented by the
Non-Callable Class D Warrant Certificate, and hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
as his or her lawful attorney to transfer said Non-Callable Class D Warrants on
the books of the Company, with full power of substitution in the premises.
DATED: ___________________,200_
-------------------------------------------
(Signature of Holder)
-------------------------------------------
(Signature of Holder)
NOTE: THE ABOVE SIGNATURES MUST
CORRESPOND WITH THE NAMES AS WRITTEN
UPON THE FACE OF THIS NON-CALLABLE
CLASS D WARRANT CERTIFICATE IN EVERY
PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER
AND MUST BE GUARANTEED BY A COMMERCIAL
BANK, TRUST COMPANY, SAVINGS
ASSOCIATION OR CREDIT UNION OR BY A
MEMBER OF A NATIONAL SECURITIES
EXCHANGE OR THE NATIONAL ASSOCIATION
OF SECURITIES DEALERS.
D-6
<PAGE> 44
SIGNATURE GUARANTEED:
-------------------------------------------
Address:
-------------------------------------------
-------------------------------------------
D-7
<PAGE> 1
Exhibit c(2)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of March 3, 2000, by and among: ANTEX BIOLOGICS INC. (the "Company");
the purchasers signatory hereto (the "A Purchasers"), each of whom has executed
a Subscription Agreement (the "A Purchase Agreements") electing to purchase
units (the "A Units"), each consisting of one share (the "Shares") of the
Company's common stock, par value $.01 per share (the "Common Stock"), and one
Callable Class A Warrant (the "Class A Warrants"), each exerciseable to purchase
one share of Common Stock at an initial exercise price of $1.50 (the "Class A
Warrant Shares"); the purchasers signatory hereto (the "B Purchasers"), each of
whom has executed a Subscription Agreement (the "B Purchase Agreements")
electing to purchase units (the "B Units"), each consisting of one-one hundredth
of one share of the Company's Series A Convertible Preferred Stock, par value
$.01 per share (the "Series A Preferred"), convertible into one share of Common
Stock (the "Conversion Shares"), and one Callable Class B Warrant (the "Class B
Warrants") each exerciseable to purchase one share of Common Stock at an initial
exercise price of $1.50 (the "Class B Warrant Shares" ); JANSSEN/MEYERS
ASSOCIATES, L.P. ("Janssen/Meyers") to which the Company is issuing 250,000
Non-Callable Class C Warrants (the "Class C Warrants") each exerciseable to
purchase one share of Common Stock at an initial exercise price of $.66 (the
"Class C Warrant Shares") and 250,000 Non-Callable Class D Warrants (the "Class
D Warrants"), each exerciseable to purchase one share of Common Stock at an
initial exercise price of $1.50 (the "Class D Warrant Shares"); THE BIOTECH
CONSULTING GROUP INCORPORATED ("TBCGI"), to which the Company is issuing 200,000
Class C Warrants and 200,000 Class D Warrants; CHL MEDICAL PARTNERS LP ("CH&L"),
to which the Company is issuing 300,000 Class C Warrants and 300,000 Class D
Warrants; PRISM VENTURES LLC to which the Company is issuing 60,000 Class C
Warrants and 60,000 Class D Warrants; and HARBOR TRUST ("HT") to which the
Company is issuing 1,666,666 B Units, 2,599,091 Class C Warrants and 2,599,091
Class D Warrants.
In order to induce the A Purchasers to enter into the A Purchase
Agreements, to induce the B Purchasers to enter into the B Purchase Agreements,
and to induce Janssen/Meyers, TBCGI, CH&L and HT to render services in
connection with the offering of the A Units and the B Units (the "Offering"),
the Company has agreed to provide the registration rights set forth in this
Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings set forth below:
"Business Day" means any day other than a Saturday, Sunday or
legal holiday on which banks in Washington, D.C. are open for the conduct
of their commercial banking business.
"Commission" means the United States Securities and Exchange
Commission.
"Entity" means any general partnership, limited partnership,
corporation, joint venture, trust, business trust, real estate investment
trust, limited liability company, cooperative or association.
<PAGE> 2
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the
time.
"Governmental Body" means any foreign, federal, state, municipal
or other government, or any department, commission, investigative body,
board, bureau, agency, public authority or instrumentality thereof or any
court, mediator, arbitrator or other tribunal.
"Holder" means any person that owns, or, if the context requires,
has the right to acquire, Registrable Securities.
"Person" means any individual or Entity.
"Prospectus" means the Prospectus included in the Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference in such
Prospectus.
"Registrable Securities" means (i) the Shares included in the A
Units to be sold to the Purchasers pursuant to the A Purchase Agreements,
(ii) the Warrant Shares issuable upon exercise of the Warrants, (iii) the
Conversion Shares issuable upon the conversion of the Series A Preferred
included in the B Units, and (iv) any other Common Stock issued or
issuable with respect to the Shares, the Series A Preferred, the
Warrants, the Warrant Shares or the Conversion Shares by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or
otherwise.
"Restricted Registrable Securities" means the Registrable
Securities until (i) a registration statement under the Securities Act
covering such Registrable Securities has been declared effective and they
have been disposed of pursuant to such effective registration statement,
(ii) they are eligible for distribution to the public pursuant to Rule
144(k) (or any similar provision then in force) under the Securities Act
or (iii) they have been otherwise transferred and the Company has
delivered new certificates or other evidences of ownership for them not
subject to any stop transfer order or other restriction on transfer
(including, without limitation, sale) by reason of any requirements of
the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Underwritten registration" or "underwritten offering" means a
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
-2-
<PAGE> 3
"Warrants" means, collectively, the Class A Warrants, the Class B
Warrants, the Class C Warrants and the Class D Warrants
"Warrant Shares" means, collectively, the Class A Warrant Shares,
the Class B Warrant Shares, the Class C Warrant Shares and the Class D
Warrant Shares
The following terms are defined elsewhere in this Agreement.
Term Section
"A Purchase Agreements" preamble
"A Purchasers" preamble
"A Units" preamble
"B Purchase Agreements" preamble
"B Purchasers" preamble
"B Units" preamble
"Blackout Period" Section 2.1(c)(i)
"CH&L" preamble
"Class A Warrants" preamble
"Class A Warrant Shares" preamble
"Class B Warrants" preamble
"Class B Warrant Shares" preamble
"Class C Warrants" preamble
"Class C Warrant Shares" preamble
"Class D Warrants" preamble
"Class D Warrant Shares" preamble
"Common Stock" preamble
"Company" preamble
"Conversion Shares" preamble
"Effectiveness Period" Section 2.1(c)
"HT" preamble
"Janssen/Meyers" preamble
"Offering" preamble
"Registration Statement" Section 2.1(a)
"Series A Preferred" preamble
"Shares" preamble
"TBCGI" preamble
2. SHELF REGISTRATION.
2.1 (a) Shelf Registration Statement. The Company shall file with the
Commission a registration statement for an offering to be made on a continuous
basis pursuant to Rule 415 under the Securities Act covering the resale of all
of the Restricted Registrable Securities (the "Registration Statement") and the
Company shall use its reasonable best efforts to cause the
-3-
<PAGE> 4
Registration Statement to be declared effective under the Securities Act on or
prior to the 180th day after the date of closing of the Offering. The Company
shall use its reasonable best efforts to keep the Registration Statement
continuously effective under the Securities Act until all the Warrants have
expired or are exercised, or until such earlier time as all the Registrable
Securities have ceased to be Restricted Registrable Securities (the
"Effectiveness Period"). The Registration Statement shall be on Form S-3 or
other appropriate form permitting registration of such Restricted Registrable
Securities for resale by the Holders thereof in the manner or manners designated
by them (including, without limitation, one or more underwritten offerings).
(b) Underwritten Offerings. If one or more Holders elect to effect an
underwritten offering of any Restricted Registrable Securities under the
Registration Statement for which such Holders pay the Registration Expenses, the
managing underwriter and any additional investment bankers and managers for use
in connection with any underwritten offering shall be selected by the Holders of
a majority of the Registrable Securities to be included in the underwritten
offering, subject to the consent of the Company which may be withheld in its
sole and absolute discretion. No Holder shall be permitted to participate in any
underwritten offering pursuant to the Registration Statement unless such Holder
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of customary underwriting arrangements.
(c) Limitations Regarding Offerings.
(i) Each Holder shall discontinue the disposition of
Registrable Securities pursuant to the Shelf Registration if (i) the Board of
Directors of the Company determines in good faith that continuing such
disposition at such time would have a material adverse effect upon a proposed
sale of all (or substantially all) of the assets of the Company or a merger,
reorganization, recapitalization or similar current transaction materially
affecting the capital structure or equity ownership of the Company or (ii) the
Company is in possession of material information which the Board of Directors of
the Company determines in good faith is not in the best interests of the Company
to disclose in a registration statement at such time (each period as described
above, a "Blackout Period"). Such Blackout Periods shall not, in the aggregate,
exceed sixty (60) trading days in any twelve-month period.
(ii) The Company shall promptly notify the Holders in writing of
any decision of the Company to suspend sales of Registrable Securities pursuant
to this Section 2.1(c), which notice shall set forth the reason for such
decision (but not disclosing any nonpublic material information) and shall
include an undertaking by the Company promptly to notify the Holders as soon as
sales may resume.
3. HOLD-BACK AGREEMENTS. Each Holder of Registrable Securities agrees, if
requested by the managing underwriter or underwriters in an underwritten
offering of securities of the Company, not to effect any public sale or
distribution of its remaining equity securities of the Company, including a sale
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act, during the 14-day period prior to, and during the 90-day period
(or such shorter period as may be agreed to by the parties hereto) beginning on,
the effective date of the
-4-
<PAGE> 5
registration statement for such offering (or such lesser restrictions as to
which the Company agrees to be bound in such offering) (each period as described
above, a "Holdback Period").
4. REGISTRATION PROCEDURES
In connection with the registration provided for in Section 2, the
Company will, at its expense:
(a) before filing the Registration Statement, furnish to
counsel for the Holders a copy of such document sufficiently in advance of
filing to provide counsel with a reasonable opportunity to review such documents
and comment thereon;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep such Registration Statement continuously effective during the Effectiveness
Period; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act; and comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all securities covered by
such Registration Statement during the Effectiveness Period;
(c) notify each Holder of Restricted Registrable Securities
included in the Registration Statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, promptly, and (if
requested by any such Person) confirm such notice in writing, (1) when a
prospectus or any prospectus supplement has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective, (2) of any request by the Commission for amendments or supplements to
the Registration Statement or related prospectus or for additional information,
(3) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose, (4) if at any time the representations and warranties of the
Company contained in agreements contemplated by Section 4(m) cease to be true
and correct, (5) of the receipt by the Company of any notification with respect
to the suspension of the qualification of any of the Restricted Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (6) of the happening of any event as a result of
which the prospectus included in the Registration Statement (as then in effect)
contains any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
(in the case of the prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading and (7) of the
Company's reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate;
(d) at any time when a prospectus relating thereto is required
to be delivered under the Securities Act and other than during a Blackout
Period, upon the occurrence of any event contemplated by Section 4(c)(6) or (7),
prepare a supplement or post-effective amendment to the Registration Statement
or related prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers
of
-5-
<PAGE> 6
the Restricted Registrable Securities being sold thereunder, such prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(e) use reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement, or the
lifting of any suspension of the qualification of any of the Restricted
Registrable Securities for sale in any jurisdiction required pursuant to Section
4(i), as soon as reasonably possible;
(f) if requested by a managing underwriter or any Holder of
Restricted Registrable Securities, promptly include in a prospectus supplement
or post-effective amendment such information concerning such Holder of
Restricted Registrable Securities, the managing underwriter or underwriters or
the intended method of distribution as the managing underwriter or underwriters
or the Holder of Restricted Registrable Securities reasonably requests to be
included therein and as is appropriate in the reasonable judgment of the
Company, including, without limitation, information with respect to the number
of shares of the Restricted Registrable Securities being sold to such
underwriter or underwriters, the purchase price being paid therefor by such
underwriter or underwriters and with respect to any other terms of the
underwritten (or best efforts underwritten) offering of the Restricted
Registrable Securities to be sold in such offering; and make all required
filings of such prospectus supplement or post-effective amendment as soon as
practicable after the Company has received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(g) furnish to each Holder of Restricted Registrable
Securities included in the Registration Statement and each managing underwriter,
if any, without charge, one manually-signed copy of the Registration Statement
and any post-effective amendments thereto, including financial statements and
schedules, and, upon request, all documents incorporated therein by reference
and all exhibits (including those incorporated by reference);
(h) deliver to each Holder of Restricted Registrable
Securities included in the Registration Statement, without charge, as many
copies of the prospectus or prospectuses (including each preliminary Prospectus)
and any amendment or supplement thereto as such Persons may reasonably request;
(i) prior to any public offering of Restricted Registrable
Securities use its reasonable best efforts to register or qualify, or cooperate
with the Holders of Restricted Registrable Securities included in the
Registration Statement, in the qualification of, such Restricted Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any Holder or underwriter reasonably requests in writing; use
its reasonable best efforts to keep each such registration or qualification
effective, including through new filings or amendments or renewals, during the
Effectiveness Period and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Restricted
Registrable Securities covered by the Registration Statement; provided, however,
that the Company will not be required to qualify to do business or take any
action that would subject it to taxation or general service of process in any
jurisdiction where it is not then so qualified or subject;
-6-
<PAGE> 7
(j) cooperate with the Holders of Restricted Registrable
Securities included in the Registration Statement and the managing underwriter
or underwriters, if any, to facilitate (1) the timely preparation and delivery
of certificates (not bearing any restrictive legends) representing Restricted
Registrable Securities that have been sold under the Registration Statement or
(2) the timely transfer of beneficial ownership of such Restricted Registrable
Securities in book-entry fashion under the auspices of The Depository Trust
Company or other similar organization; and cause such Restricted Registrable
Securities to be in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or such Holders may request;
(k) use its reasonable best efforts to cause the Restricted
Registrable Securities covered by the Registration Statement to be registered
with or approved by such Governmental Bodies consistent with the provisions of
Section 4(i) as may be necessary to enable the Holders thereof or the managing
underwriter or underwriters, if any, to consummate the disposition of such
Restricted Registrable Securities;
(l) cause all Restricted Registrable Securities included in
the Registration Statement to be (1) listed, by the date of first sale of
Restricted Registrable Securities pursuant to the Registration Statement, on
each securities exchange, if any, on which the Common Stock is listed, or (2)
quoted on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") or the National Market System of NASDAQ if the Common Stock is
then quoted thereon;
(m) enter into such agreements and take all such other
reasonable actions in connection therewith in order to expedite or facilitate
the disposition of the Restricted Registrable Securities and in such connection,
in the case of an underwritten offering, enter into an underwriting agreement in
form, scope and substance as is customary in underwritten offerings and use its
best efforts to comply with and satisfy the covenants and conditions of such
underwriting agreement, including, without limitation, providing opinions of
counsel to the Company, indemnifications, and "comfort" letters from the
Company's independent public accountants;
(n) make available for inspection by a representative of the
Holders of the Restricted Registrable Securities included in the Registration
Statement, any underwriter participating in any disposition pursuant to such
Registration Statement and any lawyer, accountant or other advisors retained by
such selling Holders or underwriter, all pertinent financial and other records,
pertinent trust documents and properties of the Company as they may reasonably
request, and cause the Company's officers, trustees and employees to supply all
information reasonably requested by any such representative, underwriter,
lawyer, accountant or other advisors in connection with such Registration
Statement; provided, however, that any records, information or documents that
are furnished by the Company and that are nonpublic shall be used only in
connection with such registration and shall be made available upon the entry by
the recipient into a confidentiality agreement satisfactory to the Company; and
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<PAGE> 8
(o) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission and make generally
available to its security holders earnings statements satisfying the provisions
of Section 11(a) of the Securities Act, and the rules and regulations thereunder
(including Rule 158), no later than 90 days after the end of any 12-month period
commencing at the end of any fiscal quarter in which Registrable Securities are
sold to underwriters in a firmly underwritten offering.
Each Holder of Restricted Registrable Securities shall furnish
promptly to the Company such information regarding the distribution of such
securities as the Company may from time to time reasonably request in writing.
Each Holder of Restricted Registrable Securities (i) shall sell
its securities covered by the Registration Statement in accordance with the plan
of distribution provided for therein and (ii) upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
4(c)(2), (3), (5), (6) or (7), shall forthwith discontinue disposition of
Registrable Securities covered by such Registration Statement or prospectus
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 4(d), or until it is advised in writing by
the Company that the use of the applicable prospectus may be resumed. The
Company shall be obligated to use its reasonable best efforts to cause such
Registration Statement and prospectus to conform to all legal requirements and
to notify the Holders that the use of the applicable prospectus may be resumed.
Nothing in this paragraph shall create an exception to the permitted duration of
any Blackout Period imposed pursuant to and subject to Section 2 of this
Agreement.
5. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with state securities or blue
sky laws, including reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities under the laws of such jurisdictions as the managing underwriter or
underwriters may reasonably designate, and fees and disbursements of counsel for
the Company and of the Company's independent public accountants (including the
expenses of any special audit and "cold comfort" letters required by or incident
to such performance) (all such expenses being herein called "Registration
Expenses") will be borne by the Company whether or not the Registration
Statement becomes effective. None of the following expenses shall be paid by the
Company: transfer taxes, discounts, commissions or fees of underwriters, selling
brokers, dealer managers or similar securities industry professionals relating
to the distribution of the Restricted Registrable Securities and the legal fees
and disbursements of counsel to the Holders.
6. INDEMNIFICATION
6.1 Indemnification by the Company. The Company agrees to indemnify,
defend and hold harmless, to the full extent permitted by law, each Holder of
Restricted Registrable Securities and each of its affiliates, each of their
respective officers, directors, employees, agents,
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<PAGE> 9
representatives, successors and assigns and each Person who controls such Holder
or affiliate (within the meaning of the Securities Act) against any and all
actions, causes of action, suits, losses, liabilities, obligations, damages,
deficiencies, demands, claims, judgments, assessments, settlement costs, court
costs and other costs and expenses, including, without limitation, interest,
penalties, fines, costs of investigation, discovery, case preparation, defense
or appeal, expert witness fees and expenses and reasonable attorneys' and
paralegal fees and disbursements (collectively, "Losses") incurred by any such
Person in any capacity and caused by any untrue statement of a material fact
contained in the Registration Statement, Prospectus or preliminary Prospectus or
any omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a Prospectus or any
preliminary Prospectus, in light of the circumstances under which they were
made) not misleading, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such Holder or its
representative expressly for use therein; provided, however, that such
indemnification with respect to any preliminary Prospectus shall not be
applicable if a copy of the Prospectus (including as amended or supplemented)
was not sent or given by or on behalf of such Holder on the sale, if the
Prospectus (including as amended or supplemented) would have cured the defect
giving rise to such Losses.
6.2 Indemnification by Holders. In connection with this Agreement,
each Holder will promptly furnish to the Company in writing such information and
affidavits with respect to such Holder as the Company reasonably requests for
use in connection with the Registration Statement or Prospectus and agrees to
indemnify, defend and hold harmless, to the full extent permitted by law, the
Company, its directors, officers, employees, agents, representatives, successors
and assigns and each Person who controls the Company (within the meaning of the
Securities Act) against any Losses incurred by any such Person in any capacity
and caused by any untrue statement of a material fact contained in the
Registration Statement, Prospectus or preliminary Prospectus or any omission of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of a Prospectus, in the light of the
circumstances under which they were made) not misleading, to the extent, but
only to the extent, that such untrue statement or omission is contained in any
information with respect to such Holder furnished in writing by such Holder or
its representatives to the Company specifically for inclusion in such
Registration Statement or Prospectus. In no event shall the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the
proceeds received by such Holder upon the sale of the Restricted Registrable
Securities giving rise to such indemnification obligation. The Company shall be
entitled to receive indemnities from underwriters to the same extent as provided
above with respect to information so furnished in writing by such persons or
their representatives to the Company specifically for inclusion in the
Registration Statement or any prospectuses.
6.3 Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. Notwithstanding the
foregoing, any Person entitled to indemnification hereunder shall have the right
to employ
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<PAGE> 10
separate counsel and to participate in the defense of such claim, but the
reasonable fees and expenses of such counsel shall be at the expense of such
Person unless (a) the indemnifying party has agreed in writing to pay such fees
or expenses, (b) the indemnifying party declines to assume the defense of such
claim or (c) a conflict of interest exists between such Person and the
indemnifying party (it being understood that (x) in the case of each of (a), (b)
and (c) above, the reasonable fees and expenses of such separate counsel to such
Person shall be paid by the indemnifying party and (y) in the case of (c) above,
if the Person notifies the indemnifying party in writing that such Person elects
to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such claim
on behalf of such Person). If such defense is not assumed by the indemnifying
party, the indemnifying party will not be subject to any liability for any
settlement made without its consent (but such consent will not be unreasonably
withheld or delayed). No indemnifying party shall consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to the indemnified party of
a release from all liability in respect to such claim or litigation. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the reasonable fees and expenses of more
than one counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless a conflict of interest exists between such
indemnified party and any other indemnified party with respect to such claim.
6.4 Contribution. If the indemnification provided for in this
Section 6 from the indemnifying party is unavailable to an indemnified party in
respect of any Losses, then the indemnifying party in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and
indemnified parties in connection with the actions which resulted in such
Losses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action; provided, however, that in no event shall the obligation of
any selling Holder hereunder be greater in amount than the difference between
the dollar amount of the proceeds received by such Holder upon the sale of the
Restricted Registrable Securities giving rise to such contribution obligation
and all amounts previously contributed by such Holder with respect to such
Losses. The amount paid or payable by a party as a result of the Losses referred
to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 6.4 were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately paragraph. No person
guilty of fraudulent misrepresentation (within the meaning of
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<PAGE> 11
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
7. RULE 144
The Company agrees that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder, to the extent required from
time to time to enable such Holder to sell Restricted Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (b) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any Holder of Registrable
Securities, the Company will deliver to such Holder a written statement as to
whether it has complied with such information and requirements.
8. MISCELLANEOUS
8.1 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Holders of a majority of the Registrable Securities (assuming the exercise of
all Warrants and the Conversion of the Series A Preferred). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter which relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Registration Statement
and which does not directly or indirectly affect the rights of other Holders may
be given by Holders owning a majority of the shares of the Registrable
Securities being sold by such Holders, provided that the provisions of this
sentence may not be amended, modified, or supplemented except in accordance with
the provisions of the immediately preceding sentence.
8.2 Notices. Any notice or other communication required or permitted
hereunder shall be deemed to be delivered if in writing (or in the form of a
telecopy) addressed as provided below and if either (a) actually delivered or
telecopied to said address or (b) in the case of overnight delivery of a notice,
the next business day after properly posted with postage prepaid:
If to the Company, then to Antex Biologics Inc., 300 Professional
Drive, Gaithersburg, MD 20879, Attention: President, or such other
address or addresses of which the Holders shall have been given notice.
If to any Holder, to it at its address set forth on the books and
records of the Company.
8.3 Counterparts. This Agreement and any amendments, waivers, consents
or supplements thereto may be executed in two or more counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all
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<PAGE> 12
of which taken together shall constitute one and the same instrument. This
Agreement shall become effective with respect to a Holder upon the execution of
a counterpart by such Holder.
8.4 Headings. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
8.5 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Maryland applicable to agreements
made and to be performed entirely within such State by residents of such state,
without regard to the choice of law provisions thereof.
8.6 Consent to Jurisdiction; Waiver of Jury Trial. (a) Any action,
suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby shall be instituted in any federal court of the
District of Maryland or any state court located in Montgomery County, State of
Maryland, and each party agrees not to assert, by way of motion, as a defense or
otherwise, in any such action, suit or proceeding, (1) any claim that it is not
subject personally to the jurisdiction of such court, (2) that the action, suit
or proceeding is brought in an inconvenient forum, (3) that the venue of the
action, suit or proceeding is improper or (4) that this Agreement or the subject
matter hereof may not be enforced in or by such court. The parties irrevocably
submit to the exclusive jurisdiction of such court in any such action, suit or
proceeding. Any and all service of process and any other notice in any such
action, suit or proceeding shall be effective against any party if given
personally or by registered or certified mail, return receipt requested, or by
any other means of mail that requires a signed receipt, postage prepaid, mailed
to such party as herein provided.
(b) EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES TRIAL BY
JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM, WHETHER AT LAW OR EQUITY,
BROUGHT BY EITHER OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
8.7 Severability. The invalidity, illegality or unenforceability in
any jurisdiction of any provision in or obligation under this Agreement shall
not affect or impair the validity, legality and enforceability of the remaining
provisions or obligations under this Agreement or of such provision or
obligation in any other jurisdiction.
8.8 Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein, other than the provisions of any other
documents specifically referred to herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Restricted Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter. Without limitation of the foregoing, the parties agree that the
registration rights contained herein apply only to the Restricted Registrable
Securities
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<PAGE> 13
and the Company shall never be obligated to register any of the Warrants or the
Series A Preferred.
8.9 Construction. The signatories hereto acknowledge that each of them
has had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement with its legal counsel and that this
Agreement shall be construed as if jointly drafted by the Company and the
signatories hereto.
8.10 Successors and Assigns. The Company may not sell, assign, transfer
or otherwise convey any of its rights or delegate any of its duties under this
Agreement, except to a corporation that succeeds to substantially all of the
business and assets of the Company and has assumed in writing its obligations
under this Agreement. This Agreement shall be binding upon the Company and each
such successor. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by each Holder and its permitted successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
ANTEX BIOLOGICS INC.
By: /s/ V.M. Esposito
----------------------------------------
Name: V.M. Esposito
Title: President
[signature pages continue]
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<PAGE> 14
THE BIOTECH CONSULTING
GROUP INCORPORATED
By: /s/ David Blech
-----------------------------------
Name David Blech
Title
JANSSEN/MEYERS ASSOCIATES, L.P.
By: Bruce Meyers , its general partner
-----------------
By: /s/ Bruce Meyers
-------------------------------
Name Bruce Meyers
Title General Partner
CHL MEDICAL PARTNERS, LP
By: Collinson Howe & Lennox, its general partner
------------------------
By: /s/ Jeffrey J. Collinson
-------------------------------
Name Jeffrey J. Collinson
Title President
PRISM VENTURES LLC
By: /s/ Judson Cooper
-----------------------------------
Name Judson Cooper
Title
HARBOR TRUST
By: /s/ Rabbi Mordachai Jofen
-----------------------------------
Name Rabbi Mordachai Jofen
Title Trustee
[signature pages continue]
<PAGE> 15
/s/ Jeffrey Alexander
----------------------------------------
Jeffrey Alexander
/s/ Lorie Alexander
----------------------------------------
Lorie Alexander
ANFEL TRADING LIMITED
By: /s/ A. Zolty
-------------------------------------
Name: Andre Zolty
ATU HOLDINGS LLC
By: /s/ Mark David Rozen
-------------------------------------
Name: Mark David Rozen
AUSTOST ANSTALT SCHAAN
By: /s/ Thomas Hackl
-------------------------------------
Name: Thomas Hackl
/s/ Marvin Azrak
----------------------------------------
Marvin Azrak
-2-
<PAGE> 16
/s/ Jeffrey Baron
----------------------------------------
Jeffrey Baron
BALMORE S.A.
By: /s/ Francois Morax
-------------------------------------
Name: Francois Morax
/s/ Arnaldo & Maria Barros
----------------------------------------
Arnaldo & Maria Barros
/s/ Ira Block & Madelon Rosenfeld
----------------------------------------
Ira Block & Madelon Rosenfeld
BLECH FAMILY TRUST
By: /s/ Nicholas R. Madonia
-------------------------------------
Name: Nicholas R. Madonia
BRITANNICA ASSOCIATES LIMITED
By: /s/ Tony Hurley
-------------------------------------
Name: Tony Hurley
-3-
<PAGE> 17
/s/ Frank Bulkley III
----------------------------------------
Frank Bulkley III
CENTRAL YESHIVA BETH JOSEPH
By: /s/ Rabbi Mordachai Jofen
-------------------------------------
Name: Rabbi Mordachai Jofen
/s/ Gabriel Cerrone
----------------------------------------
Gabriel Cerrone
/s/ Frederick Chassman
----------------------------------------
Frederick Chassman
CHASSMAN GRAPHICS
By: /s/ Margie Chassman
-------------------------------------
Name: Margie Chassman
/s/ Peter S. Chung
----------------------------------------
Peter S. Chung
-4-
<PAGE> 18
DAN VENTURES, LLC
By: /s/ Ruthy Parnes
-------------------------------------
Name: Ruthy Parnes
DARE INVESTMENTS, INC.
By: /s/ Aaron Stefansky
-------------------------------------
Name: Aaron Stefansky
/s/ Indrajit De
----------------------------------------
Indrajit De
/s/ Robert H. Donehew
-------------------------------------
Robert H. Donehew
ELLIS ENTERPRISES
By: /s/ Julian Ungar
-------------------------------------
Name: Julian Ungar
/s/ Burt D. Ensley
----------------------------------------
Burt D. Ensley
-5-
<PAGE> 19
/s/ Robert Falco
----------------------------------------
Robert Falco
/s/ Moshe & Fagie Faskowitz
----------------------------------------
Moshe & Fagie Faskowitz
/s/ Rose Faskowitz
----------------------------------------
Rose Faskowitz
/s/ David Fiedler
----------------------------------------
David Fiedler
/s/ Saul & Deena Fiedler
----------------------------------------
Saul & Deena Fiedler
FIRST LINCOLN HOLDINGS, INC.
By: /s/ D. Taylor
-------------------------------------
Name: David Taylor
----------------------------------------
Dora Fried
-6-
<PAGE> 20
/s/ William H. Fullerton III
----------------------------------------
William H. Fullerton III
G.I.G. CAPITAL PARTNERS, INC.
By: /s/ Jacob Y. Stefansky
-------------------------------------
Name: Jacob Y. Stefansky
/s/ Albert V. Guido
----------------------------------------
Albert V. Guido
H.A.A. INC.
By: /s/ Aron Langsam
-------------------------------------
Name: Aron Langsam
HAMAAYAN INSTITUTE
By: /s/ Esther Griner
-------------------------------------
Name: Esther Griner
/s/ Tehillah Harris
----------------------------------------
Tehillah Harris
-7-
<PAGE> 21
/s/ Josef Havas
----------------------------------------
Josef Havas
/s/ Ira Honig
----------------------------------------
Ira Honig
JANSSEN PARTNERS, INC.
By: /s/ Peter Janssen
-------------------------------------
Name: Peter Janssen
BENJAMIN J. JESSELSON 8/21/74 TRUST
By: /s/ Michael G. Jesselson
-------------------------------------
Name: Michael G. Jesselson
/s/ Michael G. Jesselson
----------------------------------------
Michael G. Jesselson
MICHAEL G. JESSELSON 4/8/71 TRUST
By: /s/ Michael G. Jesselson
-------------------------------------
Name: Michael G. Jesselson
-8-
<PAGE> 22
OCTOBER 1983 TRUST FBO JESSELSON
GRANDCHILDREN
By: /s/ Michael G. Jesselson
-------------------------------------
Name: Michael G. Jesselson
/s/ Cary Krumholtz
----------------------------------------
Cary Krumholtz
LEVAL TRADING, INC.
By: /s/ Thierry Ullmann
-------------------------------------
Name: Thierry Ullmann
/s/ Eli Levitin
----------------------------------------
Eli Levitin
/s/ George Lichtenstein
----------------------------------------
George Lichtenstein
M & G EQUITIES
By: /s/ Michael Karfunkel
-------------------------------------
Name: Michael Karfunkel
-9-
<PAGE> 23
/s/ Lawrence P. MacDonald
----------------------------------------
Lawrence P. MacDonald
MAGIC CONSULTING CORP.
By: /s/ Michelle McDonough
-------------------------------------
Name: Michelle McDonough
/s/ Martin Marlow
----------------------------------------
Martin Marlow
/s/ Jack N. Mayer
----------------------------------------
Jack N. Mayer
/s/ Howard P. Milstein
----------------------------------------
Howard P. Milstein
MOMAR CORP.
By:/s/ Philippe D Katz
-------------------------------------
Name: Philippe D Katz
-10-
<PAGE> 24
MPI PARTNERS
By:/s/ Nicholas R. Madonia
-------------------------------------
Name: Nicholas R. Madonia
MWDD PARTNERSHIP
By:/s/ Morris Wolfson
-------------------------------------
Name: Morris Wolfson
/s/ Alexandra Nichols
----------------------------------------
Alexandra Nichols
NORDBERG CAPITAL GROUP INC.
By:/s/ H. Gerald Nordberg Jr.
-------------------------------------
Name: H. Gerald Nordberg Jr.
/s/ Elizabeth A. Nordberg
----------------------------------------
Elizabeth A. Nordberg
GERALD NORDBERG PENSION PLAN
By:/s/ H. Gerald Nordberg Jr.
-------------------------------------
Name: H. Gerald Nordberg Jr.
MEREDITH B. NORDBERG FAMILY
TRUST
By:/s/ H.Gerald Nordberg Jr.
-------------------------------------
Name: H.Gerald Nordberg Jr.
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<PAGE> 25
/s/ Francis G. O'Connor
----------------------------------------
Francis G. O'Connor
/s/ Jospeh Palermo
----------------------------------------
Joseph Palermo
/s/ William Pasqua
----------------------------------------
William Pasqua
/s/ Joseph A. Penner
----------------------------------------
Joseph A. Penner
/s/ David A. Perrault
----------------------------------------
David A. Perrault
/s/ Rickardo Plummer
----------------------------------------
Rickardo Plummer
/s/ Dorothy Merlo Prodani
----------------------------------------
Prudential Securities C/F
Dorothy Merlo Prodani
/s/ Joel Rosenfeld
----------------------------------------
Joel Rosenfeld
-12-
<PAGE> 26
/s/ Jacob Safier
----------------------------------------
Jacob Safier
SAM VITAMIN DBA GNC 6510
By:/s/ Brian Sullivan
-------------------------------------
Name: Brian Sullivan
/s/ Marvin Schick
----------------------------------------
Marvin Schick
/s/ Howard M. Schneider
----------------------------------------
Howard M. Schneider
/s/ Abraham Shapiro
----------------------------------------
Abraham Shapiro
/s/ Stanley K. Shapiro
----------------------------------------
Stanley K. Shapiro
/s/ James P. Sheehy
----------------------------------------
James P. Sheehy
-13-
<PAGE> 27
/s/ Jacqueline Chassman Siegmund
----------------------------------------
Jacqueline Chassman Siegmund
/s/ Jose F. Silva
----------------------------------------
Jose F. Silva
/s/ Michael Steifman
----------------------------------------
Michael Steifman
/s/ Richard B. Stone
----------------------------------------
Richard B. Stone
STRATA EQUITIES LTD.
By:/s/ Ernest A. Morrison
-------------------------------------
Name: Ernest A. Morrison
/s/ Ronald Suster
----------------------------------------
Ronald Suster
/s/ Robert N. Swetnick
----------------------------------------
Robert N. Swetnick
-14-
<PAGE> 28
TALBIYA B. INVESTMENTS LTD
By:/s/ John D. Clarke
-------------------------------------
Name: John D. Clarke
/s/ Judy Tenenbaum
----------------------------------------
Judy Tenenbaum
/s/ Nelson Tuchman
----------------------------------------
Nelson Tuchman
/s/ Inesa Veraro
----------------------------------------
Inesa Veraro
/s/ Zvi Weinreb
----------------------------------------
Zvi Weinreb
/s/ Howard Weiss
----------------------------------------
Howard Weiss
/s/ F. Bradford Wilson, Jr.
----------------------------------------
F. Bradford Wilson, Jr.
-15-
<PAGE> 29
/s/ Aaron Wolfson
----------------------------------------
Aaron Wolfson
/s/ Abraham Wolfson
----------------------------------------
Abraham Wolfson
/s/ Morris Wolfson
----------------------------------------
Morris Wolfson
/s/ Martin Zabel & Paula Kramer
----------------------------------------
Martin Zabel & Paula Kramer
/s/ Laurence Zalk
----------------------------------------
Laurence Zalk
/s/ Jay Zises
----------------------------------------
Jay Zises
-16-
<PAGE> 1
Exhibit c(3)
AGREEMENT
This AGREEMENT (this "Agreement") is entered into as of the 15th
day of March 2000, by and between Antex Biologics Inc., a Delaware corporation
(the "Company"), and David Blech ("Blech").
WHEREAS, the Company is seeking to raise up to $16 million in new
equity capital through an offer and sale of units (the "Units"), each Unit
consisting of (i) one share of common stock, par value $0.01 per share, of the
Company ("Common Stock") and (ii) one warrant to purchase one share of Common
Stock (a "Warrant");
WHEREAS, the Company intends to effect the offer and sale of the
Units (the "Offering") without the registration thereof under the Securities Act
of 1933, as amended (the "1933 Act"), in reliance on a private placement
exemption;
WHEREAS, certain entities related to Blech wish to purchase Units
in the offering;
WHEREAS, the Company is willing to allow such related entities to
purchase Units on the condition that Blech makes the representations and
warranties, and agrees to perform the covenants, that are set forth in this
Agreement.
NOW, THEREFORE, in consideration of these premises and other good
and valuable consideration (including, in the case of the Company, its agreement
to allow certain entities related to Blech to purchase Units), receipt of which
is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 The term "Affiliate" has the meaning ascribed to such term in
Rule 405 under the 1933 Act.
SECTION 1.2 The term "Associate" has the meaning ascribed to such term in
Rule 405 under the 1933 Act.
SECTION 1.3 The terms "Beneficially Own" and "Beneficial Ownership" shall
mean ownership determined in accordance with the requirement of Rule 13d-3 under
the Securities Exchange Act of 1934, as amended.
SECTION 1.4 The term "Covered Person" means (i) any current or future
Affiliate of Blech, (ii) any Associate of Blech whose investment activities are
directed by Blech, and (iii) Harbor Trust (formerly known as the Edward Blech
Trust), The Biotech Consulting Group, Incorporated, Chassman Graphics, Inc., and
the Blech Family Trust (whether or not any of such entities are an Affiliate or
Associate of Blech).
<PAGE> 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF BLECH
Blech represents and warrants to the Company for himself, and, to the
extent any representation and warranty is made with respect to an Associate or a
Covered Person, to the best of Blech's knowledge, information and belief, as
follows:
SECTION 2.1 Authority. Each Covered Person that has subscribed to
purchase Units has the legal authority, and has obtained all necessary consents
and approvals, required to subscribe for and purchase the Units subscribed for
by such person or entity.
SECTION. 2.2 Binding Effect. This Agreement, in the case of Blech, and
each other agreement entered into by Blech or any Covered Person with the
Company in connection with the Offering is a valid, legal and binding obligation
of such person or entity, and is enforceable against such person or entity in
accordance with its terms.
SECTION 2.3 No Violation of Securities Laws. Blech's activities in
connection with the offer and sale by the Company of the Units have not
violated, and will not violate, any provision of (a) the federal securities
laws, (b) the securities laws of any state in which the Units are being offered
and sold, or (c) the rules and regulations of any national securities exchange
or securities self-regulatory organization.
SECTION 2.4 No Conflicts. Blech's activities in connection with the offer
and sale of the Units have not, and will not, (a) violate or conflict with any
order, judgment, or decree of, any restriction or limitation imposed by, or any
consent, agreement or arrangement entered into by Blech with, any federal or
state judicial, governmental or regulatory authority, or any national securities
exchange or other securities self-regulatory organization or (b) or constitute a
breach of or a default under any contract, agreement, commitment, indenture,
mortgage, deed of trust, lease, pledge agreement, note, bond, license or other
instrument or obligation to which Blech is a party or is bound.
SECTION 2.5 No General Solicitation. In connection with the Offering,
Blech has not engaged in any general solicitation within the meaning of Rule
502(c) under the 1933 Act, and to the best of his knowledge, information and
belief no person or entity has been solicited to participate in the Offering who
is not an "accredited investor" as defined by Rule 501 under the 1933 Act.
SECTION 2.6 Disclosure. Blech has disclosed to the Company in writing (in
reasonable detail) any of the following that has occurred within the past five
years with respect to Blech or any of his Affiliates or Associates: (a) the
conviction of such person or entity in a criminal proceeding, (b) the naming of
such person or entity as a defendant in a pending criminal proceeding, (c) the
entry of any order, judgment or decree by any court of competent jurisdiction,
the Securities and Exchange Commission, any national securities exchange or any
other securities self-regulatory organization (i) permanently or temporarily
enjoining any such person or entity from engaging in any business practice or
activity or from associating with any person
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<PAGE> 3
engaged in any practice or activity or (ii) imposing on such person or entity
any fine, sanction or other penalty, and (d) the settlement or the entry of any
judgment in any past or pending civil proceeding in which a finding has been
made that Blech or any of his Affiliates has violated the federal or state
securities, commodities or banking laws. Blech agrees to provide to the Company
such documentation pertaining the foregoing matters as the Company may
reasonably request.
SECTION 2.7 No Omitted Covered Persons.
The persons and entities listed in clause (iii) of Section 1.4 is a
complete and accurate list of the persons and entities who are either Affiliates
or Associates of Blech and are acquiring securities of the Company in connection
with the Offering.
ARTICLE III
COVENANTS
Blech on his own behalf, and on behalf of each Covered Person covenants
and agrees as follows:
SECTION 3.1 No Solicitation of Proxies or Consents. Blech agrees that
neither he nor any Covered Person will solicit any proxy or consent to vote the
shares of capital stock of any stockholder of the Company unless approved in
advance by the Company's Directors of the Company.
SECTION 3.2 No Purchase of Additional Shares. For so long as Blech and
all Covered Persons, in the aggregate, Beneficially Own five percent (5%) or
more of the Company's capital stock, neither Blech nor any Covered Person shall,
without the prior written consent of the Company's Board of Directors, purchase
any additional shares of the Company's capital stock in the open market, in
private transactions, or otherwise (except pursuant to the exercise of the
Warrants acquired by them in the Offering).
SECTION 3.3 No Participation or Special Access to Information. Neither
Blech nor any Covered Person shall be entitled to participate in the affairs of
the Company, nor will any of them be entitled to receive from the Company any
information pertaining to the Company, other than (a) in the case of Blech and
The Biotech Consulting Group, Incorporated ("BCG") only, to the extent
consistent with the consulting agreement to be entered into between the Company
and BCG (the "Consulting Agreement") and (b) otherwise only to the extent such
participation is afforded, or information is provided, to stockholders of the
Company generally.
SECTION 3.4 No Transactions with the Company. Neither Blech nor any
Covered Person shall engage in any transaction with the Company other than in
the ordinary course of business, except, in the case of Blech and BCG only, to
the extent provided for in the Consulting Agreement.
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SECTION 3.5 No Trading in Capital Stock of the Company. For so long as
Blech and all covered Persons, in the aggregate, Beneficially Own five percent
(5%) or more of the Company's capital stock, neither Blech nor any Covered
Person shall trade in, or take any action to cause any other person or entity to
trade in, the Company's capital stock.
SECTION 3.6 No Public Statements. For so long as Blech and all Covered
Persons, in the aggregate, Beneficially Own five percent (5%) or more of the
Company's capital stock, neither Blech nor any Covered Person shall make any
public statements concerning the Company or their investment in the Company,
except to the extent informed by counsel in writing that any such statement is
required by law to be made.
ARTICLE IV
OTHER PROVISIONS
SECTION 4.1 Survival. All representations, warranties, covenants and
agreements set forth in this Agreement shall survive the execution and delivery
of this Agreement and the acquisition by the Covered Persons of Units.
SECTION 4.2 Notices. Any notices and consents required or permitted to be
given under this Agreement shall be sufficient only if in writing and delivered
by hand or sent by mail or facsimile transmission, addressed to the party to be
so notified at the address set forth below. All notices and consents will be
effective only upon receipt.
If to Company:
Antex Biologics Inc.
300 Professional Drive
Gaithersburg, Maryland 20879
Attention: President and Chief Executive Officer
If to Blech:
David Blech
445 West 23rd Street
Apartment 16E
New York, New York 10011
SECTION 4.3 Specific Performance Blech agrees that a failure on the part
of Blech or any Covered Person to comply with any of the covenants set forth in
Article III would cause irreparable damage or harm to the Company if not
performed in accordance with its specific terms or is otherwise breached, and
shall entitle the Company to specific performance or other injunctive relief in
any court of the United States or any state having jurisdiction, such relief
being in addition to any other remedy to which it may be entitled at law or in
equity.
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<PAGE> 5
SECTION 4.4 Cooperation.
(a) Blech agrees to notify the Company promptly in writing (i) when any
person or entity becomes or ceases to be a Covered Person and (ii) when Blech
and all Covered Persons, in the aggregate, cease to Beneficially Own more than
5% of the Company's outstanding capital stock.
(b) While this Agreement is in effect, Blech will cooperate fully with
the Company to the extent reasonable required to enable the Company to verify
compliance with the terms of this agreement by Blech, including providing to the
Company such information and documentation as it may reasonably request
concerning the Beneficial Ownership of the Company's capital stock by Blech and
each Covered Person.
SECTION 4.5 Governing Law. This Agreement shall be construed, interpreted
and enforced according to the laws of the State of Delaware (without giving
effect to the conflicts of law provisions thereof).
SECTION 4.6 Effect of Invalid Provision. If any term, provision,
paragraph or clause of this Agreement or any application thereof shall be
invalid or unenforceable for any reason in any particular jurisdiction, the
remainder of this Agreement and any other application of such term, provision,
paragraph or clause shall not be affected thereby in such jurisdiction (where
such remainder or application shall be construed as if such invalid or
unenforceable term, provision, paragraph or clause had not been inserted), and
this Agreement and such application of such term, provision, paragraph or clause
shall not, in any manner, be affected thereby in any other jurisdiction.
SECTION 4.7 No Assignment. This Agreement is not assignable except by the
Company to an entity, which succeeds to all or substantially all of the assets
or business of the Company or to any entity affiliated with the Company.
SECTION 4.8 Binding. This Agreement shall be binding on the parties'
respective heirs, executors, administrators, legal representatives, successors
and assigns
SECTION 4.9 Entire Agreement; Amendment. This Agreement constitutes the
entire agreement between the parties hereto with respect to the matters
described herein and supersedes all prior oral or written agreements,
commitments or understandings with respect to the matters provided for herein.
This Agreement may be amended only by a writing signed by the Company and Blech.
SECTION 4.10 Effect of Waiver. The parties agree that no waiver of any of
the covenants, terms and conditions contained in this Agreement shall be
effective unless such waiver is in writing and is signed by the waiving party,
and that no such waiver of any covenant, term or condition of this Agreement
shall be construed to be a waiver of any succeeding breach of such covenant,
term or condition, or of any other covenant, term or condition.
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<PAGE> 6
SECTION 4.11 Construction; Headings. Except where the context otherwise
requires, wherever used the singular shall include the plural, the plural the
singular, the use of any gender shall be applicable to all genders and the word
"or" is used in the inclusive sense. Headings contained in this Agreement are
inserted for convenience of reference and in no way define, limit, extend or
describe the scope of the Agreement or the meaning or construction of any of the
provisions hereof.
SECTION 4.12 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first written above.
ANTEX BIOLOGICS INC.
By: /s/ V.M. Esposito
------------------------------------
V. M. Esposito
President and Chief Executive Officer
/s/ David Blech
---------------------------------------
David Blech
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<PAGE> 1
Exhibit c(4)
CERTIFICATE OF THE DESIGNATIONS,
VOTING POWERS, PREFERENCES AND RELATIVE
PARTICIPATING, OPTIONAL AND OTHER SPECIAL
RIGHTS AND QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS OF
CONVERTIBLE SERIES A PREFERRED STOCK OF
ANTEX BIOLOGICS INC
Pursuant to Section 151 of the General Corporation Law of the State of
Delaware, Antex Biologics Inc. (the "Company"), a corporation organized and
existing under the General Corporation Law of the State of Delaware, in
accordance with the provisions of Section 103 thereof, DOES HEREBY CERTIFY:
That, pursuant to the authority conferred upon the Board of Directors of
the Company by Article Fourth of the Certificate of Incorporation of the Company
(the "Certificate of Incorporation"), the Board of Directors of the Company on
March 15, 2000, adopted the following resolution creating a series of Preferred
Stock, par value $.01 per share, designated as Series A Convertible Preferred
Stock:
RESOLVED, that, pursuant to the authority vested in the Board of
Directors of Antex Biologics Inc. (the "Company") in accordance with the
provisions of the Certificate of Incorporation of the Company, a series of
Preferred Stock, par value $.01 per share, of the Company is hereby created and
that the designation and number of shares thereof and the voting powers,
preferences and relative, participating, optional and other special rights of
the shares of such series, and the qualifications, limitations or restrictions
thereof, are as follows:
Section 1. Designation, Par Value and Amount.
The shares of such series shall be designated as "Series A Convertible
Preferred Stock" (hereinafter referred to as "Series A Preferred Stock"). The
number of shares initially constituting such series shall be 100,000.
Section 2. Voting Rights
The holders of Series A Preferred Stock shall not be entitled to vote on
any matter, except to the extent provided herein or as required by the Delaware
General Corporation Law.
Section 3 Dividends
The holders of Series A Preferred Stock shall not be entitled to any
dividends.
Section 4 Conversion
(a) Each one-hundredth of a share of Series A Preferred Stock
shall be convertible at the option of the holder thereof, at any time
after March 15, 2001 and from time to time thereafter, into one share of
fully paid and non-assessable share of the
<PAGE> 2
Company's common stock, par value $0.01 per share ("Common Stock"),
without the payment of any additional consideration.
(b) If any fraction (calculated to the nearest one-hundredth)
of a share of Common Stock or other security would, except for the
provisions of this Section 4(b), be issuable upon the conversion of one
one-hundredth of a share of Series A Preferred Stock, the Company shall
deliver, in lieu of such fractional security, an amount in cash equal to
the current value of such fraction computed on the basis of the closing
market price on the trading day immediately preceding the date of
conversion. Each holder of Series A Preferred Stock expressly waives any
right to receive any fractional security upon conversion. The "closing
market price" of such fractional interest shall be determined as follows:
(i) If the Common Stock or other security is listed
on a national securities exchange or admitted to unlisted trading
privileges on such exchange, the closing market price shall be the
last reported sale price of the Common Stock or other security on
such exchange on the trading day immediately preceding the date of
conversion or if no such sale has occurred on such day, the
average closing bid and asked prices for the immediately preceding
day on such exchange; or
(ii) If paragraph (i) above shall not be applicable, the
closing market price shall be the last reported sale price on the
trading day immediately preceding the date of conversion as
reported by The National Market System of the National Association
of Securities Dealers, Inc. or if no such sale has occurred on
such day, the average closing high bid and low asked prices for
such day as so reported, if the Common Stock qualifies as a
NASDAQ/NMS security; or
(iii) If neither paragraph (i) nor (ii) above shall be
applicable, the closing market price shall be the last reported
sale price as furnished by the National Association of Securities
Dealers, Inc. electronic inter-dealer quotation system ("NASDAQ")
or, if last reported sale prices are not so furnished, then the
average of the high and the low asked prices furnished by NASDAQ,
in either case on the trading day immediately preceding the date
of conversion, or if not so quoted on NASDAQ, the closing market
price shall be the closing bid as reported by the OTC Bulletin
Board for the last trading day prior to the date of exercise;
provided that the term "trading day" as used in this sentence
shall mean a day on which trading in securities took place in the
domestic over-the-counter market; or
(iv) If none of paragraphs (i), (ii) or (iii) above shall
be applicable, the closing market price shall be an amount
determined in such reasonable manner as may be prescribed by the
Board of Directors of the Company.
(c) In order for a holder of shares of Series A Preferred Stock
to convert such shares, the holder shall surrender the certificate or
certificates evidencing ownership of such shares of Series A Preferred
Stock at the office of the transfer agent for the shares of
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<PAGE> 3
Series A Preferred Stock (or at the principal office of the Company if it
serves as its own transfer agent), together with written notice that such
holder elects to convert all or any number of the shares of the Series A
Preferred Stock represented by such certificates. Such notice shall state
such holder's name or the names of the nominees in which such holder
wishes the certificate or certificates for shares of Common Stock to be
issued. If required by the Company, certificates surrendered for
conversion shall be endorsed or accompanied by a written instrument or
instruments of transfer, in form satisfactory to it, duly executed by the
registered holder or his or its attorney-in-fact duly authorized in
writing.
(d) The date of receipt of such certificates and notice by the
transfer agent (or by the Company, if it serves as its own transfer
agent) shall be the conversion date.
(e) The number and kind of securities or other property into
which the Series A Preferred Stock may be converted shall be subject to
adjustment from time to time upon the occurrence, after the date hereof,
of the following events:
(i) If the Company shall issue shares of Common Stock as
a stock dividend or subdivide the number of outstanding
shares of Common Stock into a greater number of shares,
then the number of shares of Common Stock issuable upon
conversion of each share of Series A Preferred Stock shall
be proportionately increased; and if the Company shall
combine the outstanding shares of Common Stock into a
lesser number of shares, then the number of shares of
Common Stock issuable upon conversion of each share of
Series A Preferred Stock shall be proportionately reduced.
(ii) In case of any change in the Common Stock through
merger, consolidation, reclassification, reorganization,
partial or complete liquidation, or other change in the
capital structure of the Company, then, as a condition of
the change in the capital structure of the Company, lawful
and adequate provision will be made so that the holders of
shares of Series A Preferred Stock shall have the right
thereafter to receive, upon conversion of such shares, the
kind and amount of shares of stock or other securities or
property to which such holder would have been entitled if,
immediately prior to such merger, consolidation,
reclassification, reorganization, recapitalization, or
other change in the capital structure, such holder had held
the number of shares of Common Stock obtainable upon the
conversion of the Series A Preferred Stock. In any such
case, appropriate adjustments will be made in the
application of the provisions set forth herein with respect
to the rights and interest thereafter of the holders of
shares of Series A Preferred Stock to the end that the
provisions set forth herein will thereafter be applicable,
as nearly as reasonably may be, in relation to any shares
of stock or other property thereafter deliverable upon the
conversion of shares of Series A Preferred Stock.
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<PAGE> 4
(iii) In case the Company shall take a record of the
holders of its Common Stock for the purpose:
(A) of entitling them to receive a dividend or any
other distribution in respect of the Common Stock
payable in cash or other property (other than
ordinary dividends payable out of retained
earnings); or
(B) of entitling them to subscribe for or purchase
any shares of stock of any class or to receive any
other rights; or
(C) of any classification, reclassification or
other reorganization of its capital stock,
consolidation or merger with or into another
corporation, or conveyance of all or substantially
all of its assets; or
(D) of the voluntary or involuntary dissolution,
liquidation or winding up;
then, and in any such case, the Company shall mail to each
holder of shares of Series A Preferred Stock, at least 15
days prior thereto, a notice stating the date or expected
date on which a record is to be taken for the purpose of
such dividend, distribution or rights, or the date on which
such classification, reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation
or winding up, as the case may be, is to take place. Such
notice shall also specify the date or expected date, if any
is to be fixed, on which said dividend, distribution or
rights, or an exchange of shares of Common Stock for
securities or other property deliverable upon such
classification, reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation
or winding up, as the case may be, is expected to occur.
(iv) Whenever an adjustment required by the provisions of
this paragraph (e) shall occur, the Company shall forthwith file
in the custody of its Secretary at its principal office and with
the transfer agent, if any, for the Series A Preferred Stock an
officer's certificate showing the adjustment or adjustments
determined as therein provided, setting forth in reasonable detail
the facts requiring such adjustment, and such other facts as shall
be necessary to show the reason for and the manner of computing
such adjustment. Each such officer's certificate shall be made
available at all reasonable times for inspection by a registered
holder of Series A Preferred Stock and the Company forthwith after
each such adjustment, shall mail a copy of such certificate to
each registered holder, and thereafter said certificate shall be
conclusive and shall be binding upon each registered holder unless
contested by such holder by written notice to the Company within
ten days after receipt of the certificate by the holder. The
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<PAGE> 5
Company's transfer agent, if any, shall be deemed to have
knowledge of any adjustment unless and until it shall have
received such certificate.
Section 5 Liquidation, Dissolution or Winding Up.
Subject to the prior and superior rights of holders of any shares of any
other series of Preferred Stock and any other class of equity securities of the
Company ranking prior and superior to the shares of Series A Preferred Stock, in
the event of a liquidation, dissolution or winding up (voluntary or otherwise)
of the Company, each share of Series A Preferred Stock shall be entitled to
participate in any distribution of assets pursuant thereto with the holders of
the shares of Common Stock on an as-if-converted basis.
Section 6. No Retirement or Sinking Fund.
The shares of Series A Preferred Stock shall not be subject to or
entitled to the operation of a retirement or sinking fund.
Section 7. Ranking.
The Series A Preferred Stock shall rank junior to all other series of the
Preferred Stock of the Company as to the payment of dividends and as to the
distribution of assets upon the liquidation, dissolution or winding up of the
Company, unless the terms of any such other series of Preferred Stock shall
provide otherwise.
Section 8. Reacquired Shares.
Any shares of Series A Preferred Stock purchased or otherwise acquired by
the Company in any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock, and may be reissued as
part of a new series of Preferred Stock in accordance with the Certificate of
Incorporation and applicable law.
Section 9. Amendment.
None of the powers, preferences and relative, participating, optional and
other special rights of the Series A Preferred Stock as provided herein or in
the Certificate of Incorporation shall be amended in any manner which would
alter or change the powers, preferences, rights or privileges of the holders of
Series A Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of at least 66-2/3% of the outstanding shares of Series A
Preferred Stock, voting as a separate class.
5
<PAGE> 6
IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf
of the Company by its President and attested by its Secretary this 15th day of
March, 2000.
ATTEST: ANTEX BIOLOGICS INC.
/s/ Gregory C. Zakarian /s/ V.M. Esposito
- ---------------------------- ---------------------------------
Gregory C. Zakarian V.M. Esposito
Secretary President & Chief Executive Officer
6
