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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 Xxxxx Xxxxx ("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 Xxxxxx Xxxxx
Trust), The Biotech Consulting Group, Incorporated, Xxxxxxxx Graphics, Inc., and
the Blech Family Trust (whether or not any of such entities are an Affiliate or
Associate of Blech).
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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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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.
000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: President and Chief Executive Officer
If to Blech:
Xxxxx Xxxxx
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
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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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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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/ X.X. Xxxxxxxx
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X. X. Xxxxxxxx
President and Chief Executive Officer
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
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