Exhibit 4.4
NEITHER THESE SECURITIES NOR THE SECURITIES FOR WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS. NOTWITHSTANDING THE FOREGOING, THESE SECURITIES AND
THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH
SECURITIES.
ANY TRANSFEREE OF THIS ADDITIONAL INVESTMENT RIGHT SHOULD CAREFULLY REVIEW THE
TERMS OF THE ADDITIONAL INVESTMENT RIGHT, INCLUDING SECTION 4(b) HEREOF. THE
NUMBER OF SECURITIES UNDERLYING THIS ADDITIONAL INVESTMENT RIGHT MAY BE LESS
THAN THE NUMBER OF COMMON SHARES STATED ON THE FACE HEREOF PURSUANT TO SECTION
4(b) HEREOF.
MILLENNIUM BIOTECHNOLOGIES GROUP, INC.
ADDITIONAL INVESTMENT RIGHT
Additional Investment Right No. [ ] Dated: _________, 2006
Millennium Biotechnologies Group, Inc., a Delaware corporation (the
"Company"), hereby certifies that, for value received, [Name of Holder] or its
registered assigns (the "Holder"), is entitled to purchase from the Company (a)
up to an aggregate of [ ](1) shares of Series E Senior Convertible Preferred
Stock, par value $1.00 per share (the "Series E Senior Preferred Stock") and (b)
only as part of and in connection with the purchase of the Series E Senior
Preferred Stock, warrants in the form attached hereto as Exhibit A to acquire up
to an aggregate of [_________](2) shares of Common Stock (the "Additional
Investment Right Warrants"), at any time or from time to time from and after
Closing Date and through and including the date occurring on the 3 year
anniversary of the Effective Date (the "Expiration Date"), and subject to the
following terms and conditions. This Additional Investment Right (this
"Additional Investment Right") is one of a series of similar Additional
Investment Rights issued pursuant to that certain Securities Purchase Agreement,
dated as of August 16, 2006, by and among the Company and the Purchasers
identified therein (the "Purchase Agreement"). All such Additional Investment
Rights are referred to herein, collectively, as the "Additional Investment
Rights."
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(1) 100% of the initial number of Series E Preferred Stock being purchased.
(2) 100% of the underlying shares into which the Series E Senior Preferred
Stock is convertible into.
1. Definitions. Capitalized terms that are not otherwise defined herein
have the meanings given to such terms in the Purchase Agreement.
2. Registration of Additional Investment Right. The Company shall register
this Additional Investment Right, upon records to be maintained by the Company
for that purpose (the "Additional Investment Right Register"), in the name of
the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Additional Investment Right as the absolute owner
hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
3. Registration of Transfers. The Company shall register the assignment
and transfer of any portion of this Additional Investment Right in the
Additional Investment Right Register, upon surrender of this Additional
Investment Right, with the Form of Assignment attached hereto on Annex B duly
completed and signed, to the Company at its address specified herein. Upon any
such registration or transfer, a new additional investment right to purchase
Additional Shares, in substantially the form of this Additional Investment Right
(any such new additional investment right, a "New Additional Investment Right"),
evidencing the portion of this Additional Investment Right so transferred shall
be issued to the transferee and a New Additional Investment Right evidencing the
remaining portion of this Additional Investment Right not so transferred, if
any, shall be issued to the transferring Holder. The acceptance of the New
Additional Investment Right by the transferee thereof shall be deemed the
acceptance by such transferee of all of the rights and obligations of a holder
of an Additional Investment Right.
4. Exercise and Duration of Additional Investment Right.
a) This Additional Investment Right shall be exercisable by the
registered Holder at any time or from time to time on or after the Closing Date
to and including the Expiration Date. At 6:30 P.M., New York City time on the
Expiration Date, the portion of this Additional Investment Right not exercised
prior thereto shall be void and of no further force and effect.
b) The Holder may exercise this Additional Investment Right by
delivering to the Company (i) an exercise notice, in the form attached hereto on
Annex A (the "Exercise Notice"), appropriately completed and duly signed and
(ii) an amount in cash equal to the product of (x) the number of Series E Senior
Preferred Stock being purchased and (y) the stated value of the Series E Senior
Preferred Stock (the "Exercise Price"). The date all of such items are delivered
to the Company (as determined in accordance with the notice provisions hereof)
is an "Exercise Date." The Holder shall not be required to deliver the original
Additional Investment Right in order to effect an exercise hereunder. Execution
and delivery of the Exercise Notice shall have the same effect as cancellation
of the original Additional Investment Right and issuance of a New Additional
Investment Right evidencing the right to purchase the remaining number of
Additional Shares and Additional Investment Right Warrants.
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5. Delivery of Additional Shares and Additional Investment Right Warrants.
a) Upon exercise of this Additional Investment Right, the Company
shall promptly (but in no event later than three Trading Days after the Exercise
Date) issue or cause to be issued and cause to be delivered to or upon the
written order of the Holder and in such name or names as the Holder may
designate, (i) a certificate for the Additional Shares and Additional Investment
Right Warrants issuable upon such exercise, (ii) the legal opinion of Company
Counsel, substantially in the form of Exhibit F to the Purchase Agreement,
executed by such counsel and delivered to the Holders relating to the Additional
Shares and Additional Investment Right Warrants, and (iii) a certificate from an
officer of the Company that each of the representations and warranties of the
Company set forth in Section 3.1 of the Purchase Agreement is true and correct
as of the date when made, except for such representations and warranties that
speak as of a certain date, and in such case shall have been true and correct as
of such date, and as of the Exercise Date as though made on and as of such date,
and each of the other conditions set forth in Section 5.1 of the Purchase
Agreement have been satisfied as of the Exercise Date. The Holder, or any Person
so designated by the Holder to receive Additional Shares or Additional
Investment Right Warrants, shall be deemed to have become holder of record of
such Additional Shares or Additional Investment Right Warrants as of the
Exercise Date.
b) This Additional Investment Right is exercisable, either in its
entirety or, from time to time, for a portion of the number of Additional Shares
and Additional Investment Right Warrants. Upon surrender of this Additional
Investment Right following one or more partial exercises, the Company shall
issue or cause to be issued, at its expense, a New Additional Investment Right
evidencing the right to purchase the remaining number of Additional Shares and
Additional Investment Right Warrants.
c) In addition to any other rights available to a Holder, if the
Company fails to deliver to the Holder a certificate representing Additional
Shares and Additional Investment Right Warrants or the shares of Common Stock
issuable upon conversion of the Additional Shares or the exercise of the
Additional Investment Right Warrants on the date on which delivery of such
certificate is required by this Additional Investment Right, the Additional
Shares or any Additional Investment Right Warrant, and if after such date the
Holder purchases (in an open market transaction or otherwise) shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the Common Stock
that the Holder anticipated receiving from the Company (a "Buy-In"), then the
Company shall, within three Trading Days after the Holder's request and in the
Holder's discretion, either (i) pay cash to the Holder in an amount equal to the
Holder's total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased (the "Buy-In Price"), at which point the
Company's obligation to deliver such certificate (and to issue such Common
Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the
Holder a certificate or certificates representing such Common Stock and pay cash
to the Holder in an amount equal to the excess (if any) of the Buy-In Price over
the product of (A) such number of shares of Common Stock, times (B) the Closing
Price on the date of the event giving rise to the Company's obligation to
deliver such certificate.
d) The Company's obligations to issue and deliver Additional Shares
and Additional Investment Right Warrants in accordance with the terms hereof are
absolute and unconditional, irrespective of any action or inaction by the Holder
to enforce the same, any waiver or consent with respect to any provision hereof,
the recovery of any judgment against any Person or any action to enforce the
same, or any set-off, counterclaim, recoupment, limitation or termination, or
any breach or alleged breach by the Holder or any other Person of any obligation
to the Company or any violation or alleged violation of law by the Holder or any
other Person, and irrespective of any other circumstance which might otherwise
limit such obligation of the Company to the Holder in connection with the
issuance of Additional Shares and Additional Investment Right Warrants. Nothing
herein shall limit a Holder's right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company's
failure to timely deliver certificates representing Additional Shares upon
exercise of the Additional Investment Right as required pursuant to the terms
hereof.
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6. Charges, Taxes and Expenses. Issuance and delivery of certificates for
Additional Shares and Additional Investment Right Warrants upon exercise of this
Additional Investment Right shall be made without charge to the Holder for any
issue or transfer tax, withholding tax, transfer agent fee or other incidental
tax or expense in respect of the issuance of such certificates, all of which
taxes and expenses shall be paid by the Company. The Holder shall be responsible
for all other tax liability that may arise as a result of holding or
transferring this Additional Investment Right or receiving Additional Shares and
Additional Investment Right Warrants upon exercise hereof.
7. Replacement of Additional Investment Right. If this Additional
Investment Right is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon
cancellation hereof, or in lieu of and substitution for this Additional
Investment Right, a New Additional Investment Right, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction and customary and reasonable indemnity, if requested.
8. Reservation of Common Stock. The Company covenants that at all times
after the Charter Amendment it will at all times reserve and keep available out
of its authorized but unissued and otherwise unreserved Common Stock, solely for
the purpose of enabling it to issue Common Stock issuable upon conversion of
Additional Shares and exercise of Additional Investment Right Warrants as
therein provided. The Company covenants that all Additional Shares and
Additional Investment Right Warrants so issuable and deliverable shall, upon
issuance and the payment of the applicable Exercise Price in accordance with the
terms hereof, be duly and validly authorized, issued and fully paid and
nonassessable. The Company will take all such action as may be necessary to
assure that any shares of Common Stock issuable upon conversion of the
Additional Shares and exercise of the Additional Investment Right Warrants may
be issued as provided therein without violation of any applicable law or
regulation, or of any requirements of any securities exchange or automated
quotation system upon which the Common Stock may be listed.
9. Certain Adjustments. The Conversion Price and other terms of the
Additional Shares issuable upon exercise of this Additional Investment Right
shall be subject to adjustment from time to time as set forth in Certificate of
Designations. The exercise price and other terms of the Additional Investment
Right Warrants issuable upon exercise of this Additional Investment Right shall
be subject to adjustment from time to time as set forth in the Additional
Investment Right Warrants. At least 30 days prior to any such event or
transaction involving a Fundamental Change (as defined in the Certificate of
Designations) or otherwise potentially giving rise to an adjustment or
modification of the terms and provisions of the Additional Shares, the Company
will give the Holder notice thereof of the date of the transaction and the
effect thereof on the terms of the Additional Shares. The Company will take all
steps reasonably necessary in order to insure that the Holder is given the
practical opportunity to exercise this Additional Investment Right prior to the
time of such event or transaction so as to participate in or vote with respect
to such event or transaction.
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10. Payment of Exercise Price. The Holder shall pay the Exercise Price in
immediately available funds to the Company.
11. Notices. Any and all notices or other communications or deliveries
hereunder (including without limitation any Exercise Notice) shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section prior to 6:30 p.m. (New York City
time) on a Trading Day, (ii) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section on a day that is not a Trading Day or
later than 6:30 p.m. (New York City time) on any Trading Day, (iii) the Trading
Day following the date of deposit with a nationally recognized overnight courier
service, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address and facsimile numbers for such notices or
communications shall be as set forth in the Purchase Agreement.
12. Miscellaneous.
a) Subject to the restrictions on transfer set forth on the first
page hereof and provided that any transferee is an "accredited investor" as that
term is defined in Rule 501(a)(3) of Regulation D under the Securities Act of
1933, as amended, and (i) agrees to all of the terms herein and in the
Additional Shares and Additional Investment Right Warrants and (ii) provides
investment purposes representations with respect to this Additional Investment
Right, the Additional Shares and the Additional Investment Right Warrants
comparable to those set forth in Section 3.2 of the Purchase Agreement, this
Additional Investment Right may be assigned by the Holder. This Additional
Investment Right may not be assigned by the Company except to a successor in the
event of a Fundamental Change (as defined in the Additional Shares). This
Additional Investment Right shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns. Subject to the
preceding sentence, nothing in this Additional Investment Right shall be
construed to give to any Person other than the Company and the Holder any legal
or equitable right, remedy or cause of action under this Additional Investment
Right. This Additional Investment Right may be amended only in writing signed by
the Company and the Holder, their respective successors or permitted assigns.
b) The Company will not, by amendment of its governing documents or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this
Additional Investment Right, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder against
impairment.
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C) GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. ALL QUESTIONS
CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS
ADDITIONAL INVESTMENT RIGHT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH PARTY HEREBY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN
THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY
OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE
TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT
IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT
TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND
CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY
MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY
(WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES
TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD
AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN
SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW. THE COMPANY HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.
d) The headings herein are for convenience only, do not constitute a
part of this Additional Investment Right and shall not be deemed to limit or
affect any of the provisions hereof.
e) In case any one or more of the provisions of this Additional
Investment Right shall be invalid or unenforceable in any respect, the validity
and enforceability of the remaining terms and provisions of this Additional
Investment Right shall not in any way be affected or impaired thereby and the
parties will attempt in good faith to agree upon a valid and enforceable
provision which shall be a commercially reasonable substitute therefor, and upon
so agreeing, shall incorporate such substitute provision in this Additional
Investment Right.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Additional Investment
Right to be duly executed by its authorized officer as of the date first
indicated above.
MILLENNIUM BIOTECHNOLOGIES GROUP, INC.
By:
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Name:
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Title:
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Annex A
FORM OF EXERCISE NOTICE
(To be executed by the Holder to exercise the right to purchase $______________
principal amount of Additional Shares under the foregoing Additional Investment
Right)
To: Millennium Biotechnologies Group, Inc.
The undersigned is the Holder of Additional Investment Right No. _______ (the
"Additional Investment Right") issued by Millennium Biotechnologies Group, Inc.,
a Delaware corporation (the "Company"). Capitalized terms used herein and not
otherwise defined have the respective meanings set forth in the Additional
Investment Right.
(a) The Additional Investment Right is currently exercisable to purchase
a total of [ ] Additional Shares.
(b) The undersigned Holder hereby exercises its right to purchase [ ]
Additional Shares pursuant to the Additional Investment Right.
(c) The Holder shall pay the sum of $____________ to the Company in
accordance with the terms of the Additional Investment Right.
(d) Pursuant to this exercise, the Company shall deliver to the Holder
[ ] Additional Shares and Additional Investment Right Warrants
exercisable for __________ shares of Common Stock in accordance with
the terms of the Additional Investment Right.
(e) Following this exercise, the Additional Investment Right shall be
exercisable to purchase a total of [ ] Additional Shares and
Additional Investment Right Warrants exercisable for ____________
shares of Common Stock.
(f) The undersigned affirms as of the date hereof the undersigned's
representations in section 3.2 of the Purchase Agreement.
Dated: ___________________, _______ Name of Holder:
(Print)
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By:
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Name:
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Title:
---------------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the Additional Investment Right)
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Annex B
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Additional Investment
Right]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Additional Investment Right to purchase $______________ principal amount of
Additional Shares and Additional Investment Right Warrants exercisable for
__________ shares of Common Stock of Millennium Biotechnologies Group, Inc. to
which the within Additional Investment Right relates and appoints
________________ attorney to transfer said right on the books of Millennium
Biotechnologies Group, Inc. with full power of substitution in the premises.
Dated: ____________________, ______
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(Signature must conform in all respects
to name of holder as specified on the
face of the Additional Investment Right)
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Address of Transferee
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In the presence of:
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