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EXHIBIT 10.3
This Amended and Restated Warrant and the Common Stock
issuable upon exercise hereof have not been registered or
qualified for sale under the Securities Act of 1933, as
amended, or any state securities law and may not be sold or
transferred in the absence of such registration or an
exemption therefrom under said Act or any such state laws
which may be applicable.
No. of Shares: 3,865,769 (which number is subject to adjustment as provided
herein)
AMENDED AND RESTATED WARRANT
To Purchase Common Stock of
ANTEX BIOLOGICS INC.
WHEREAS, in connection with the execution and delivery of that
certain Research and Development, Research Support and License Agreement (the
"Original License Agreement") dated May 6, 1996, by and among MicroCarb Human
Vaccines, Inc., MicroCarb, Inc. (the former name of Antex Biologics Inc.) and
SmithKline Xxxxxxx Corporation, MicroCarb, Inc. granted SmithKline Xxxxxxx
Biologicals Manufacturing s.a. a warrant (the "Original Warrant") dated May 6,
1996 to purchase certain shares of its common stock, $.01 par value per share;
and
WHEREAS, MicroCarb Human Vaccines, Inc., Antex Biologics Inc.
and SmithKline Xxxxxxx Corporation have terminated the Original License
Agreement on the date hereof and, in connection with the termination of the
Original License Agreement, Antex Biologics Inc. has entered into a new research
and development, research support and license agreement (the "New License
Agreement") with SmithKline Xxxxxxx plc, and has also agreed in a separate
omnibus agreement (the "Omnibus Agreement") dated the date hereof between Antex
Biologics Inc., MicroCarb Human Vaccines, Inc. and SmithKline Xxxxxxx
Biologicals Manufacturing s.a. to among other things amend and restate the
Original Warrant as set forth herein.
THIS AMENDED AND RESTATED WARRANT CERTIFIES THAT, for value
received, the registered holder hereof, SmithKline Xxxxxxx Biologicals
Manufacturing s.a., a Belgian company, whose address is Xxx xx X'Xxxxxxxx 00,
X-0000 Xxxxxxxxx Xxxxxxx, or its successors and assigns, is entitled to purchase
from ANTEX BIOLOGICS INC., a corporation organized and existing under the laws
of Delaware, 3,865,769 shares of the Common Stock (as hereinafter defined) at
the Basic Purchase Price (as hereinafter defined) at any time on or before 5:00
p.m., Eastern Standard time on September 1, 2003. Notwithstanding the
immediately preceding sentence, the number of shares of the Common Stock
purchasable hereunder shall be cumulatively increased by the following number of
shares of the Common Stock in the following circumstance: the number of shares
of the Common Stock purchasable hereunder shall be
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immediately increased by an additional 866,189 shares of the Common Stock if
SmithKline Xxxxxxx Corporation provides Antex Biologics Inc. an additional U.S.
$666,667 in research and development funding under the Amended License Agreement
on or before October 1, 1999. The number of shares of the Common Stock
purchasable hereunder and the Basic Purchase Price therefor are subject to
further adjustment as hereinafter provided in Section 5.
Section 1. Definitions. For all purposes of this Amended and
Restated Warrant, the following terms shall have the meanings indicated:
"Basic Purchase Price" shall mean the price of U.S. $0.37 per
share of the Common Stock, at which price the registered holder hereof may
exercise this Amended and Restated Warrant prior to any adjustments being made
as provided in Section 5. Notwithstanding the immediately preceding sentence,
the Basic Purchase Price for the 866,189 additional shares of the Common Stock
purchasable hereunder if SmithKline Xxxxxxx Corporation provides Antex Biologics
Inc. an additional U.S. $666,667 in research and development funding under the
New License Agreement on or before October 1, 1999 shall be the Market Price of
the Common Stock as of October 1, 1999 prior to any adjustments being made as
provided in Section 5.
"Business Day" shall mean any day except a Saturday, a Sunday,
or a legal holiday in the City of New York other than a legal holiday on which
the New York Stock Exchange is open for trading on a regular basis.
"Commission" shall mean the Securities and Exchange Commission
and any other similar or successor agency of the federal government then
administering the Securities Act or the Exchange Act.
"Common Stock" shall mean and include the Company's authorized
common stock, $.01 par value per share, as constituted on the date of this
Amended and Restated Warrant, and shall also include any class of the capital
stock of the Company hereafter authorized which shall neither (i) be limited to
a fixed sum or a percentage of par value in respect of the rights of the holders
thereof to receive dividends and to participate in the distribution of assets
upon the voluntary or involuntary liquidation, dissolution or winding-up of the
Company, nor (ii) be subject at any time to redemption by the Company.
"Company" shall mean Antex Biologics Inc. and its successors.
"Convertible Securities" shall mean any stock or securities
convertible into or exchangeable for shares of the Common Stock.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
and any similar or successor federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Market Price" shall mean, as of any date, 5% of the sum for
each of the 20 consecutive Trading Days immediately prior to such date, of the
average of either:
(i) the high and low sales prices of the Common Stock on such
Trading Day on the New York Stock Exchange or;
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(ii) if the Common Stock shall not on such Trading Day then
be listed on such Exchange, such high and low sales prices on the principal
(determined by the highest volume of the Common Stock during the month
immediately preceding the month in which occurs the date as of which Market
Price is being determined) national securities exchange (as defined in the
Exchange Act) on which the Common Stock may then be listed, or;
(iii) if there shall have been no sales on any such Exchange
or exchange on any such Trading Day, the bid and asked prices on such Exchange
or exchange at the end of such Trading Day, or;
(iv) if the Common Stock shall not be so listed on any such
Trading Day, the representative bid and asked prices at the end of such Trading
Day in the over-the-counter market as reported by the National Association of
Securities Dealers Automated Quotations System ("Nasdaq"), or;
(v) if there be no such representative prices reported by
Nasdaq, the bid and asked prices at the end of such Trading Day in the
over-the-counter market.
For purposes of determining Market Price, the term "Trading Day" shall mean a
Business Day on which the amount greater than zero can be calculated with
respect to the Common Stock under any one or more of the foregoing categories
(i) , (ii), (iii), (iv) or (v), and the end of the Trading Day, for the purposes
of categories (iv) and (v), shall mean the exact time at which trading shall end
on the New York Stock Exchange.
"Person" shall mean any individual, partnership, joint
venture, limited liability company, unincorporated organization, government or
department or agency of a government.
"Purchase Price" shall mean as of any date, the Basic Purchase
Price, as the same has been adjusted from time to time pursuant to the
provisions of Section 5.
"Registrable Securities" shall mean the Warrants and the
Warrant Shares.
"Securities Act" shall mean the Securities Act of 1933, and
any similar or successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Warrantholders" shall mean, as of any date, the then
registered holders of the Warrants and the then registered holders of the
Warrant Shares.
"Warrants" shall mean this Amended and Restated Warrant and
any other warrant of the Company hereafter issued to SmithKline Xxxxxxx
Biologicals Manufacturing s.a., including all amendments thereto, and together
with all Warrants issued in exchange, transfer or replacement of any thereof.
"Warrant Shares" shall mean all shares of the Common Stock
purchased or purchasable by the registered holders of the Warrants upon the
exercise thereof pursuant to Section 4 thereof.
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All terms used in this Amended and Restated Warrant which are
not defined in this Section 1 have the meanings respectively set forth therefor
elsewhere in this Amended and Restated Warrant.
Section 2. Ownership of this Amended and Restated Warrant. The
Company may deem and treat the Person in whose name this Amended and Restated
Warrant is registered as the holder and owner hereof, notwithstanding any
notations of ownership or writing hereon made by anyone other than the Company,
for all purposes and shall not be affected by any notice to the contrary, until
presentation of this Amended and Restated Warrant for registration or transfer
as provided in Section 3. The Company shall maintain, at its office or agency at
000 Xxxxxxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 (or at such other office or
agency of the Company as the Company shall designate from time to time by notice
to the registered holder of this Amended and Restated Warrant), a register for
the Warrants, in which the Company shall record the name and address of the
Person in whose name each Warrant has been issued, as well as the name and
address of each transferee and each prior owner of such Warrant.
Section 3. Exchange, Transfer and Replacement. This Amended and
Restated Warrant is exchangeable, upon the surrender hereof by the registered
holder to the Company at its office or agency provided for in Section 2, for new
Warrants of like tenor, representing in the aggregate the right to purchase the
number of shares of the Common Stock purchasable hereunder, each of such new
Warrants to represent the right to purchase such number of shares of the Common
Stock as shall be designated by said registered holder at the time of such
surrender. This Amended and Restated Warrant and all rights hereunder are
transferable without the necessity of obtaining any consent to such transfer, in
whole or in part, only upon the register provided for in Section 2, by the
registered holder hereof in Person or by duly authorized attorney, and a new
Warrant shall be made and delivered by the Company, of the same tenor as this
Amended and Restated Warrant but registered in the name of the transferee, upon
surrender of this Amended and Restated Warrant with the Assignment Form attached
hereto duly completed, at said office or agency of the Company. Upon receipt by
the Company at its office or agency provided for in Section 2 of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Amended and Restated Warrant, the Company will make and deliver a new
Warrant of like tenor in replacement of this Amended and Restated Warrant. This
Amended and Restated Warrant shall be promptly cancelled by the Company upon the
surrender hereof in connection with any exchange, transfer or replacement. The
Company shall pay all taxes and all other expenses and charges payable in
connection with the preparation, execution and delivery of Warrants pursuant to
this Section 3.
Section 4. Exercise of this Amended and Restated Warrant.
A. Procedure for Exercise. In order to exercise this Amended and
Restated Warrant in whole or in part, the registered holder hereof shall
complete the Subscription Form attached hereto, and deliver this Amended and
Restated Warrant to the Company, at its office or agency provided for in Section
2, together with one or more of the following types of consideration in an
aggregate amount equal to the aggregate Purchase Price of the shares of the
Common Stock then being purchased: (i) cash or check; and (ii) shares of the
Common Stock (which shall be valued at their Market Price on the date of
exercise). In addition to delivering the consideration specified in the
preceding sentence, the registered holder of the Amended and Restated Warrant
may make a "cashless" exercise of this Amended and Restated Warrant by
instructing the Company to withhold Warrant Shares that would otherwise be
issued upon the exercise of this
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Amended and Restated Warrant (which shall be valued at their Market Price on the
date of exercise). The exercise of this Amended and Restated Warrant shall be
deemed to have been effected and the Purchase Price and the number of shares of
the Common Stock issuable in connection with such exercise shall be determined
as of the close of business on the Business Day prior to the date on which such
completed Subscription Form shall have been delivered at such office or agency.
Upon receipt of such Form and the consideration referenced in the first sentence
of this Section 4, the Company shall, as promptly as practicable, and in any
event within 10 Business Days thereafter, execute or cause to be executed and
delivered to said holder by an air courier which guarantees next day delivery a
certificate or certificates representing the aggregate number of shares of the
Common Stock specified in such Form. Each stock certificate so delivered shall
be in such authorized denomination as may be requested by the registered holder
hereof and shall be registered in the name of said holder or such other name as
shall be designated by said holder, and the Person in whose name any such stock
certificate shall be issued upon such exercise shall be deemed to have become
the holder of record of the shares represented thereby as of the time when the
exercise of this Amended and Restated Warrant with respect to such shares shall
be deemed to have been effected. If this Amended and Restated Warrant shall have
been exercised only in part, the Company shall, at its expense at the time of
delivery of said stock certificate or certificates, deliver to such holder a new
Warrant of like tenor evidencing the rights of such holder to purchase the
remaining shares of the Common Stock covered by this Amended and Restated
Warrant. The Company shall pay all taxes, other expenses and charges payable in
connection with the preparation, execution and delivery of stock certificates
pursuant to this Section 4.
B. Acknowledgment of Continuing Obligation. The Company will, at the
time of the exercise of this Amended and Restated Warrant, in whole or in part,
upon request of the registered holder hereof but at the expense of the Company,
acknowledge in writing its continuing obligation to said holder in respect of
any rights to which said holder shall continue to be entitled after such
exercise in accordance with this Amended and Restated Warrant.
C. Character of Warrant Shares. All shares of the Common Stock
issuable upon the exercise of this Amended and Restated Warrant shall, when
issued, be duly authorized, validly issued, previously unissued, fully paid and
non-assessable.
Section 5. Anti-Dilution Provisions.
A. Adjustment of Purchase Price and Number of Warrant Shares. The
Purchase Price shall be subject to adjustment from time to time as hereinafter
in this Section 5 provided. Except as otherwise expressly provided in Section
5E, upon each adjustment of the Purchase Price pursuant to this Section 5, the
registered holder of this Amended and Restated Warrant shall thereafter be
entitled to purchase, at the Purchase Price resulting from such adjustment, the
number of shares of the Common Stock (calculated to the nearest whole share)
obtained by multiplying the Purchase Price in effect immediately prior to such
adjustment by the number of shares of the Common Stock purchasable pursuant
hereto immediately prior to such adjustment and dividing the product thereof by
the Purchase Price resulting from such adjustment.
B. Purchase Price Adjustment Formulas. If and whenever after the
date of this Amended and Restated Warrant, the Company shall (i) declare a
dividend or other distribution upon any capital stock of the Company which is
payable in shares of the Common Stock or Convertible Securities, (ii) declare a
dividend or any other distribution upon the Common Stock payable
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otherwise than out of the current earnings, retained earnings or earned surplus
or (iii) subdivide or combine the shares of the Common Stock, then in each such
case the Purchase Price shall be forthwith changed as provided in Sections 5C,
5D and 5E, respectively.
C. Stock Dividends. In case at any time the Company shall declare a
dividend or any other distribution upon the Common Stock of the Company which is
payable in shares of the Common Stock or Convertible Securities, then the
Purchase Price in effect immediately prior to the declaration of such dividend
or distribution shall be reduced to the quotient obtained by dividing (1) the
product of (x) the number of shares of the Common Stock outstanding and deemed
(in accordance with the last sentence of this Section 5C) to be outstanding
immediately prior to such declaration, multiplied by (y) the then effective
Purchase Price, by (2) the total number of shares of the Common Stock
outstanding and deemed (in accordance with the last sentence of this Section 5C)
to be outstanding immediately after such declaration (but in no event shall the
Purchase Price be reduced to less than the par value per share of the Common
Stock). All shares of the Common Stock and all Convertible Securities issuable
in payment of any dividend or other distribution upon the Common Stock of the
Company shall be deemed after such declaration to have been issued or sold
without consideration. The number of shares of the Common Stock deemed to be
outstanding shall be the total maximum number of shares of the Common Stock
issuable upon (i) the exercise of all outstanding rights or options to subscribe
for or to purchase shares of the Common Stock and (ii) the conversion or
exchange of (A) all outstanding Convertible Securities and (B) all Convertible
Securities issuable upon the exercise of rights or options to subscribe for or
purchase Convertible Securities.
D. Extraordinary Dividends and Distributions. In case at any time
the Company shall declare a dividend or any other distribution upon the Common
Stock payable otherwise than out of current earnings, retained earnings or
earned surplus and otherwise than in shares of the Common Stock or Convertible
Securities, the Purchase Price in effect immediately prior to such declaration
shall be reduced by an amount equal, in the case of a dividend or distribution
in cash, to the amount thereof payable per share of the Common Stock or, in the
case of any other dividend or distribution, to the fair value thereof per share
of the Common Stock at the time such dividend or distribution was declared, as
determined by the Board of Directors of the Company (but in no event shall the
Purchase Price be reduced to less than the par value per share of the Common
Stock). For the purposes of the foregoing a dividend or distribution other than
in cash shall be considered payable out of earnings, retained earnings or earned
surplus only to the extent that such current earnings, retained earnings or
earned surplus are charged an amount equal to the fair value of such dividend or
distribution at the time of the declaration thereof, as determined by the Board
of Directors of the Company. Such reductions shall take effect as of the date on
which a record is taken for the purposes of such dividend or distribution, or,
if a record is not taken, the date as of which the holders of record of the
Common Stock entitled to such dividend or distribution are to be determined.
E. Stock Splits and Reverse Splits. In case at any time the Company
shall subdivide its outstanding shares of the Common Stock into a greater number
of shares, the Purchase Price in effect immediately prior to such subdivision
shall be proportionately reduced and the number of Warrant Shares purchasable
upon the exercise of this Amended and Restated Warrant immediately prior to such
subdivision shall be proportionately increased, and conversely, in case at any
time the Company shall combine the outstanding shares of the Common Stock into a
smaller number of shares, the Purchase Price in effect immediately prior to such
combination shall be proportionately increased and the number of Warrant Shares
purchasable upon the
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exercise of this Amended and Restated Warrant immediately prior to such
combination shall be proportionately reduced.
F. Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, Etc. If at any time the Company shall be a party to any
transaction (including without limitation a merger, consolidation, sale of all
or substantially all of the Company's assets or a recapitalization of the Common
Stock) in which the previously outstanding shares of the Common Stock shall be
changed into or exchanged for different securities of the Company or changed
into or exchanged for common stock or other securities of another corporation or
other property (including cash) or any combination of any of the foregoing (each
such transaction being hereinafter referred to as the "Transaction"; the Company
(in the case of a recapitalization of the Common Stock) or such other
corporation being hereinafter referred to as the "Acquiring Company"; and the
common stock of the Acquiring Company being hereinafter referred to as the
"Acquiror's Stock"), then, as a condition to the consummation of the
Transaction, lawful and adequate provisions shall be made so that, upon the
basis and the terms and in the manner provided in this Section 5F, each holder
of any Warrants, upon the exercise of such Warrants at any time after the
consummation of the Transaction, shall be entitled to receive, in lieu of the
shares of the Common Stock issuable upon such exercise prior to such
consummation, at the election of such holder given by notice to the Company on
or before the later of (x) the day on which the holders of the Common Stock
approve the Transaction, or (y) the thirtieth day following the date of delivery
or mailing to such holder of the last proxy statement relating to the vote on
the Transaction by the holders of the Common Stock:
(i) the stock and other securities, cash and property to
which such holder would have been entitled upon the
consummation of the Transaction if such holder had exercised
this Amended and Restated Warrant immediately prior thereto
(subject to adjustments from and after) the date of the
consummation of the Transaction (the "Consummation Date") as
nearly equivalent as possible to the adjustments provided for
in Sections 5A and 5F); or
(ii) if the Acquiring Company meets the requirements set
forth in this Section 5F, the number of shares of the
Acquiror's Stock or, if the Acquiring Company fails to meet,
but a Parent (as defined in this Section 5F) does meet such
requirements, the number of shares of such Parent's common
stock (subject to adjustments from and after the Consummation
Date as nearly equivalent as possible to the adjustments
provided for in Sections 5A and 5F), determined by dividing
(i) the product obtained by multiplying (a) the number of
shares of the Common Stock to which the holder of this Amended
and Restated Warrant would have been entitled had such holder
exercised this Amended and Restated Warrant immediately prior
to the consummation of the Transaction, times (b) the greater
of the Purchase Price or the Acquisition Price (as defined in
this Section 5F) in effect on the date immediately preceding
the Consummation Date, by (ii) the Market Value of the
Acquiror's Stock on the date immediately preceding the
Consummation Date.
For the purposes of this Section 5F: the term "Market Value"
shall mean, for any share of common stock on any date specified herein, the last
sale price, regular way, on such date
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or, if no sale takes place on such date, the average of the closing bid and
asked prices on such date, in each case as reported on the New York Stock
Exchange or, if such common stock is not listed on the New York Stock Exchange
but is authorized for quotation on the Nasdaq National Market, the last
transaction price per share of common stock as reported by the Nasdaq National
Market on such date; and the term "Acquisition Price" shall mean the
consideration per share to be paid for or received by the holders of the
previously outstanding shares of the Common Stock in accordance with the terms
of the Transaction, determined (x) in the case where the holders of the
previously outstanding shares of Common Stock received solely shares of the
Acquiror's Stock in the Transaction, by multiplying the Market Value of the
Acquiror's Stock as of the date immediately preceding the Consummation Date by a
fraction the numerator of which shall be the aggregate number of shares of the
Acquiror's Stock to be received in the Transaction in exchange for all of the
previously outstanding shares of the Common Stock and the denominator of which
shall be the aggregate number of such previously outstanding shares of the
Common Stock, and (y) in any other case, by dividing the aggregate fair market
value (using Market Value for any shares of the Acquiror's Stock), as of the
date immediately preceding the Consummation Date of the aggregate consideration
to be received by the holders of such previously outstanding shares of Common
Stock by the number of shares of such previously outstanding Common Stock. The
requirements referred to in clause (ii) of this Section 5F with reference to the
Acquiring Company or to a corporation (herein referred to as a "Parent") which
directly or indirectly controls the Acquiring Company are as follows: (AA) its
common stock is listed on the New York Stock Exchange or quoted on the Nasdaq
National Market and such common stock continues to meet such requirements for
listing or quotation thereon, (BB) it is required to file, and in each of its
three fiscal years immediately preceding the Consummation Date has filed,
reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act,
and (CC) in the case of a Parent, such Parent is required to include the
Acquiring Company in the consolidated financial statements contained in the
Parent's Annual Report on Form 10-K and is not itself included in the
consolidated financial statements of any other Person (other than its
consolidated subsidiaries). Notwithstanding anything contained in this Amended
and Restated Warrant to the contrary, the Company shall not effect any
Transaction unless prior to or simultaneously with the consummation of such
Transaction the survivor or successor corporation (if other than the Company)
resulting from such Transaction shall assume by written instrument executed and
delivered to each Warrantholder, the obligation to deliver to such Warrantholder
such shares of stock, securities or assets as, in accordance with the foregoing
provisions, such Warrantholder may be entitled to receive, and containing the
express assumption by such successor corporation of the due and punctual
performance and observance of every provision of this Amended and Restated
Warrant to be performed and observed by the Company and of all liabilities and
obligations of the Company hereunder.
G. Statement Regarding Adjustments. Upon each adjustment of the
Purchase Price and upon each change in the number of shares of the Common Stock
issuable upon exercise of this Amended and Restated Warrant, and in the event of
any change in the rights of the holder of this Amended and Restated Warrant by
reason of other events herein set forth, then and in each such case, the Company
will promptly obtain an opinion of a firm of independent certified public
accountants of recognized national standing (who may be the regular auditors of
the Company) selected by the Company's chief financial officer, stating the
adjusted Purchase Price and the new number of shares so issuable, or specifying
the other shares of stock, securities or assets and the amount thereof
receivable as a result of such change in rights, and setting forth in reasonable
detail the method of calculation and the facts upon which such calculation is
based. The
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Company will promptly mail a copy of such accountants' opinion to the registered
holder of this Amended and Restated Warrant.
H. Outside Opinion. In case at any time or from time to time
conditions arise by reason of action taken by the Company, which in the opinion
of its Board of Directors, are not adequately covered by the provisions of this
Section 5, and which might materially and adversely affect the exercise rights
of the registered holders of the Warrants, the Board of Directors of the Company
may appoint a firm of independent certified public accountants of recognized
national standing, which may be the firm regularly retained by the Company,
which shall give their opinion upon the adjustment, if any, on a basis
consistent with the standards established in the other provisions of this
Section 5, necessary with respect to the Purchase Price, so as to preserve,
without dilution, the exercise rights of the registered Warrantholders. If the
Board of Directors of the Company does not appoint a firm of independent
certified public accountants to give the opinion described in the preceding
sentence, the Company's chief financial officer shall render such opinion. Upon
receipt of such opinion from either the independent certified public accountants
or the Company's chief financial officer, the Board of Directors of the Company
shall forthwith make the adjustments described herein.
Section 6. Certain Agreements of the Company. The Company covenants
and agrees that:
A. Will Reserve Shares. The Company will authorize, reserve and set
apart and have available for issuance at all times, free from preemptive rights,
that number of the shares of the Common Stock which are deliverable upon the
exercise of this Amended and Restated Warrant, and the Company will have at all
times such other rights or privileges which are necessary to enable it at any
time to fulfill all of its obligations hereunder.
B. Will Avoid Certain Actions. The Company will not, by amendment of
its certificate of incorporation or through any reorganization, transfer of
assets, consolidation, merger, issue or sale of securities or otherwise, avoid
or take any action which would have the effect of avoiding the observance or
performance of any of the terms to be observed or performed hereunder by the
Company, but will at all times in good faith assist in carrying out all of the
provisions of this Amended and Restated Warrant. Without limiting the generality
of the foregoing, the Company will not take any action to revoke, call, redeem,
cancel or otherwise terminate this Amended and Restated Warrant or the rights
granted under this Amended and Restated Warrant.
C. Will Secure Governmental Approvals. If any shares of the Common
Stock required to be reserved for the purposes of exercise of this Amended and
Restated Warrant require registration with or approval of any governmental
authority under any federal law (other than the Securities Act) or under any
state law before such shares of the Common Stock may be issued upon exercise of
this Amended and Restated Warrant, the Company will, at its expense, as
expeditiously as possible use its best efforts to cause such shares to be duly
registered or approved, as the case may be.
D. Will Pay Certain Taxes and Fees. The Company will pay all issue
or transfer taxes with respect to the issuance or transfer of shares of the
Common Stock to each holder of the Warrants in connection with each exercise of
the Warrants, as well as all fees and expenses incurred by the Company in
connection with each such issuance or transfer.
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E. Will Bind Successors. This Amended and Restated Warrant will be
binding upon any corporation succeeding to the Company by merger, consolidation
or acquisition of all or substantially all of the Company's assets.
Section 7. Notifications by the Company. In case at any time:
(1) the Company shall declare upon the Common Stock any dividend or
other distribution (except out of current earnings, retained earnings or
earned surplus) to the holders of the Common Stock;
(2) the Company shall make an offer for subscription pro rata to the
holders of the Common Stock of any additional shares of stock of any class
or other rights;
(3) the Board of Directors of the Company shall authorize (whether
definitively or subject to any conditions) any capital reorganization, or
reclassification of the capital stock of the Company, or consolidation or
merger of the Company with, or sale of all or substantially all of its
assets to, another Person;
(4) the Board of Directors of the Company shall authorize (whether
definitively or subject to any conditions) a voluntary dissolution,
liquidation or winding-up of the Company; or
(5) the Company shall become subject to involuntary dissolution,
liquidation or winding-up;
then, in each of such cases, the Company shall give notice to the registered
holder of this Amended and Restated Warrant of the date on which (a) the books
of the Company shall close or a record shall be taken for such dividend,
distribution or subscription rights, or (b) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up shall take place or be voted upon by stockholders of the Company, as
the case may be. Such notice shall also specify the date as of which the holders
of record of shares of the Common Stock shall participate in such dividend,
distribution or subscription rights, or shall be entitled to exchange their
shares of the Common Stock or securities for other property deliverable upon
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up, as the case may be. Such notice shall be given not
less than 30 and not more than 90 days prior to the action in question and not
less than 30 days and not more than 90 days prior to the record date or the date
on which the Company's transfer books are closed in respect thereto and such
notice shall state that the action in question or the record date is subject to
the effectiveness of a registration statement under the Securities Act, or to a
favorable vote of stockholders, if either is required.
Section 8. Rights of a Stockholder. This Amended and Restated
Warrant shall not entitle any Warrantholder to any voting rights or any other
rights, or subject any Warrantholder to any liabilities, as a stockholder of the
Company.
Section 9. Modification; Waivers. This Amended and Restated Warrant
may be modified or amended only with the written consent of each Warrantholder.
The Company shall not be released from its obligations hereunder without the
written consent of each Warrantholder. The observance of any term of this
Amended and Restated Warrant may be waived (either
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generally or in a particular instance and either retroactively or prospectively)
by the Person entitled to enforce such term, but any such waiver shall be
effective only if in a writing signed by the Person against which such waiver is
to be asserted. Except as otherwise specifically provided herein, no delay on
the part of any Person in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any party
hereto of any right, power or privilege hereunder operate as a waiver of any
other right, power or privilege hereunder nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
Section 10. Entire Agreement. This Amended and Restated Warrant, the
Omnibus Agreement, the New License Agreement, and that certain Amended and
Restated Registration Rights Agreement dated the date hereof between the Company
and SmithKline Xxxxxxx Biologicals Manufacturing s.a.and SmithKline Xxxxxxx plc
represent the entire understanding and agreement between the parties thereto
with respect to the subject matter hereof and supersede all other prior
agreements and understandings, both written and oral, between the parties
thereto with respect to the subject matter hereof and thereof.
Section 11. Severability. If any provision of this Amended and
Restated Warrant, or the application of such provision to any Person or
circumstance, shall be held invalid, the remainder of this Amended and Restated
Warrant or the application of such provision to other Persons or circumstances
shall not be affected thereby; provided, that the parties shall negotiate in
good faith with respect to an equitable modification of the provision or
application thereof held to be invalid.
Section 12. Notices.
A. Any notice or communication to any Person shall be duly given if
in writing and delivered in Person, receipt requested, or overnight air courier
guaranteeing next day delivery or by facsimile (with written confirmation of
receipt), to such other party's address (or to such other address as such other
party shall have specified in a notice given in accordance with this Section
12.)
If to the Company:
000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: President and Chief Executive Officer
Facsimile: (000) 000-0000
If to SmithKline Xxxxxxx Biologicals Manufacturing s.a.:
Xxx xx X'Xxxxxxxx 00
X-0000 Xxxxxxxxx
Xxxxxxx
Attention: President, General Manager
Facsimile: 011-32-2-656-8026
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with a copy to:
SmithKline Xxxxxxx Corporation
Xxx Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxx III, Esq.
Facsimile: (000) 000-0000
B. All notices and communications will be deemed to have been duly
given: at the time delivered by hand, if personally delivered; and the next
business day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Section 13. Headings. The Section headings in this Amended and
Restated Warrant are for convenience of reference only, and shall not be deemed
to alter or affect the meaning or interpretation of any provision hereof.
Section 14. Construction. This Amended and Restated Warrant shall be
governed, construed and enforced in accordance with the laws of the State of
Delaware, without regard to its principles of conflict of laws.
Section 15. No Adverse Agreements. The Company has not previously,
and will not hereafter, enter into any agreement with respect to its securities
which is adverse to the rights granted to SmithKline Xxxxxxx Biologicals
Manufacturing s.a. and its successors and assigns under this Amended and
Restated Warrant.
Section 16. Specific Performance. The Company agrees that this
Amended and Restated Warrant cannot be purchased or sold in the open market and
that, for these reasons, among others, each Warrantholder will be irreparably
damaged in the event that this Amended and Restated Warrant is not specifically
enforceable. Accordingly, in the event of any controversy concerning this
Amended and Restated Warrant, or any right or obligation hereunder, such right
or obligation shall be enforceable in a court of equity by specific performance.
The rights granted in this Section 16 shall be cumulative and not exclusive, and
shall be in addition to any and all other rights which the Warrantholder may
have hereunder, at law or in equity.
Section 17. Transfer and Assignment. The registered holder of this
Warrant may transfer and assign this Warrant and its rights hereunder without
the necessity of obtaining any consent to such transfer or assignment, provided
that the registered holder is permitted to transfer or assign its shares of the
Common Stock under the terms of Section 2.1 of the Omnibus Agreement.
[The Balance of This Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Antex Biologics Inc. has caused this
Amended and Restated Warrant to be executed and delivered by its duly authorized
officer under its corporate seal, attested by its duly authorized officer and to
be dated September 1, 1999.
ANTEX BIOLOGICS INC.
By: /s/X. X. Xxxxxxxx
-------------------------------
Name: X. X. Xxxxxxxx
Title: Chairman & CEO
[Corporate Seal]
Attest:
/s/Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Secretary
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SUBSCRIPTION FORM
To be Executed by the Registered Holder
Desiring to Exercise the Within Warrant of
ANTEX BIOLOGICS INC.
The undersigned registered holder hereby exercises the right
to purchase _______ shares of the Common Stock covered by the within Warrant,
according to the conditions thereof, and herewith makes payment in full of the
Purchase Price of such shares, $__________________ by delivery of
__________________________________.
[Alternatively. The undersigned registered holder hereby exercises the right to
purchase ___ shares of the Common Stock covered by the within Warrant, according
to the terms thereof and herewith makes a "cashless" exercise of the within
Warrant and instructs Antex Biologics Inc. to withhold ___ shares of the Common
Stock that would otherwise be issued upon the exercise of the within Warrant.]
-------------------------------
Name of Registered Holder
-------------------------------
Signature
-------------------------------
Title
Address
------------------------
------------------------
Dated: ___________________
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ASSIGNMENT FORM
To Be Executed by the Registered Holder
Desiring to Transfer the Within Warrant of
ANTEX BIOLOGICS INC.
FOR VALUE RECEIVED, the undersigned registered holder hereby
sells, assigns and transfer unto _________________ the right to purchase
____________________ shares of the Common Stock covered by the within Warrant,
and does hereby irrevocably constitute and appoint ______________________
Attorney to transfer the said Warrant on the books of the Company (as defined in
said Warrant), with full power of substitution.
-------------------------------
Name of Registered Holder
-------------------------------
Signature
-------------------------------
Title
Address
------------------------
------------------------
Dated: _________________
In the presence of
-------------------------
NOTICE:
The signature to the foregoing Assignment Form must correspond
to the name as written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
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