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IXION BIOTECHNOLOGY, INC.
AND
SUNTRUST BANK, ATLANTA
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CHARITABLE BENEFIT WARRANT AGREEMENT
DATED AS OF ___________ __, 1997
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AGREEMENT, dated this ____ day of __________, 1997, by and between Ixion
Biotechnology, Inc., a Delaware corporation (the "Company"), and SunTrust
Bank, Atlanta, as Warrant Agent (the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, in connection with the offering to the public of up to 400,000
Units (the "Units"), each Unit consisting of one share of Common Stock (as
defined in Section 1) and 0.25 charitable benefit common stock purchase
warrants (the "Charitable Benefit Warrants"), each whole warrant entitling the
holder thereof to purchase one additional share of Common Stock; and
WHEREAS, the Company desires to provide for the issuance of certificates
representing the Charitable Benefit Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer and exchange of the Charitable Benefit
Warrants, the issuance of certificates representing the Charitable Benefit
Warrants, the exercise of the Charitable Benefit Warrants and the rights of
the holders thereof.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth and for the purpose of defining the terms and
provisions of the Charitable Benefit Warrants and the certificates
representing the Charitable Benefit Warrants and the respective rights and
obligations thereunder of the Company, the holders of certificates
representing the Charitable Benefit Warrants, and the Warrant Agent, the
parties hereto agree as follows:
SECTION 1. Definitions. As used herein, the following terms shall have
the following meanings, unless the context shall otherwise require:
(a) "Act" means the Securities Act of 1933, as amended.
(b) "Approved Qualified Charitable Organization" means a charitable
organization described in Section 501(c)(3) of the Internal Revenue Code (the
"Code"), which is excluded from the definition of a private foundation as
referred to in Section 509(a) of the Code, which is eligible to receive tax-
deductible contributions under Section 170 of the Code, and which has been
approved by the Company pursuant to Section 9 hereof. Approved Qualified
Charitable Organizations at the date of this Agreement include the following:
the Juvenile Diabetes Foundation, the Xxxxxx Diabetes Center, Inc., the
American Kidney Foundation, the National Vulvodynia Association, the Crohn's &
Colitis Foundation of America, the Cystic Fibrosis Foundation, the Oxalosis
and Hyperoxaluria Foundation, the Mycological Society of America, the
Intestinal Disease Foundation, the National Kidney Fund, the National
Institute of Diabetes and Digestive and Kidney Diseases, the North American
Mycological Society, the University of Florida Research Foundation, Inc., and
Florida Cystic Fibrosis, Inc.
(c) "Common Stock" means the authorized stock of the Company of any
class, whether now or hereafter authorized, which has the right to participate
in the voting and in the distribution of earnings and assets of the Company
without limit as to amount or percentage.
(d) "Commission" means the Securities and Exchange Commission.
(e) "Corporate Office" means the office of the Warrant Agent (or its
successor) at which at any particular time its business shall be administered,
which office is located on the date hereof at 00 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000.
(f) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(g) "Exercise Date" means, subject to the provisions of Section 5(b)
hereof, the date on which the Warrant Agent shall have received both (i) the
Warrant Certificate representing such Charitable Benefit Warrant, with the
exercise form thereon duly executed by the Registered Holder thereof or its
attorney duly authorized in writing, and (ii) payment in cash or by official
bank or certified check made payable to the Warrant Agent for the account of
the Company, of the amount in lawful money of the United States of America
equal to the applicable Exercise Price (as hereinafter defined) in good funds.
(h) "Exercise Price" means, subject to modification and adjustment as
provided in Section 8, $20.00, and further subject to the Company's right, in
its sole discretion, to decrease the Exercise Price for a period of not less
than 30 days on not less than 30 days' prior written notice to the Registered
Holders.
(i) "Initial Public Offering Price" means $10.00.
(j) "Nasdaq" means the Nasdaq Stock Market.
(k) "Registered Holder" means the person in whose name any certificate
representing the Charitable Benefit Warrants shall be registered on the books
maintained by the Warrant Agent pursuant to Section 6.
(l) "Transfer Agent" means SunTrust Bank, Atlanta, or its authorized
successor.
(m) "Warrant Certificate" means a certificate representing each of the
Charitable Benefit Warrants substantially in the form annexed hereto as
Exhibit A.
(n) "Warrant Expiration Date" means 5:30 p.m.(Atlanta time), on
______________ __, 2007; provided that if such date shall in the State of
Georgia be a holiday or a day on which banks are authorized to close, then
5:30 p.m. (Atlanta time) on the next following day which, in the State of
Georgia, is not a holiday or a day on which banks are authorized to close.
Upon five business days' prior written notice to the Registered Holders, the
Company shall have the right to extend the Warrant Expiration Date.
SECTION 2. Charitable Benefit Warrants and Issuance of Warrant
Certificates.
(a) Each whole Charitable Benefit Warrant shall initially entitle (i)
any Approved Qualified Charitable Organization which is a Registered Holder to
purchase at the Exercise Price therefor at any time or in part from time to
time until the Warrant Expiration Date, or (ii) any other Registered Holder
which is not an Approved Qualified Charitable Organization to purchase at the
Exercise Price therefor at any time after _______, 2006 or in part from time to
time after such date until the Warrant Expiration Date, one share of Common
Stock upon the exercise thereof in accordance with the terms hereof, subject to
modification and adjustment as provided in Section 8.
(b) After execution of this Agreement, Warrant Certificates representing
the number of Charitable Benefit Warrants sold or to be sold (subject to
modification and adjustment as provided in Section 8) pursuant to the
offering, shall be executed by the Company and delivered from time to time to
the Warrant Agent in sufficient quantity for the Warrant Agent to promptly
issue Charitable Benefit Warrants to the purchasers thereof.
(c) From time to time, up to the Warrant Expiration Date, the Warrant
Agent shall countersign and deliver Warrant Certificates in required
denominations of one or whole number multiples thereof to the person entitled
thereto in connection with any transfer or exchange permitted under this
Agreement. Except as provided herein, no Warrant Certificates shall be issued
except (i) Warrant Certificates initially issued hereunder and those issued
upon the exercise of fewer than all Charitable Benefit Warrants held by the
exercising Registered Holder, (ii) Warrant Certificates issued upon any
transfer or exchange permitted under Section 6 hereof of Charitable Benefit
Warrants, (iii) Warrant Certificates issued in replacement of lost, stolen,
destroyed, or mutilated Warrant Certificates pursuant to Section 7, and (iv)
at the option of the Company, Warrant Certificates in such form as may be
approved by its Board of Directors, to reflect any adjustment or change in the
Exercise Price or the number of shares of Common Stock purchasable upon
exercise of the Charitable Benefit Warrants made pursuant to Section 8 hereof.
SECTION 3. Form and Execution of Warrant Certificates.
(a) The Warrant Certificates shall be substantially in the form annexed
hereto as Exhibit A (the provisions of which are hereby incorporated herein)
and 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 to
conform to usage. The Warrant Certificates shall be dated the date of
issuance thereof (whether upon initial issuance, transfer, exchange, or in
lieu of mutilated, lost, stolen, or destroyed Warrant Certificates) and issued
in registered form. Charitable Benefit Warrants shall be numbered serially
with the letter W on the Charitable Benefit Warrants.
(b) Warrant Certificates shall be executed on behalf of the Company by
its Chairman of the Board, President, or any Vice President, and by its
Treasurer or an Assistant Treasurer or its Secretary or an Assistant
Secretary, by manual signatures or by facsimile signatures printed thereon.
Warrant Certificates shall be manually countersigned by the Warrant Agent and
shall not be valid for any purpose unless so countersigned. In case any
officer of the Company who shall have signed any of the Warrant Certificates
shall cease to be such officer of the Company before the date of issuance of
the Warrant Certificates or before countersignature by the Warrant Agent and
issue and delivery thereof, such Warrant Certificates, nevertheless, may be
countersigned by the Warrant Agent, issued and delivered with the same force
and effect as though the person who signed such Warrant Certificates had not
ceased to be such officer of the Company. After countersignature by the
Warrant Agent, Warrant Certificates shall be delivered by the Warrant Agent to
the Registered Holder promptly and without further action by the Company,
except as otherwise provided by Section 4(a) hereof.
SECTION 4. Exercise.
(a) Charitable Benefit Warrants in denominations of one or whole number
multiples thereof may be exercised (i) by an Approved Qualified Charitable
Organization (as set forth on the listing of such organizations described in
Section 9 hereof) which is the Registered Holder thereof commencing at any
time or in part from time to time, but not after the Warrant Expiration Date,
or (ii) any other Registered Holder which is not an Approved Qualified
Charitable Organization commencing on or after ________, 2006 [108 months
after the date of the Prospectus] or in part from time to time but not after
the Warrant Expiration Date, upon the terms and subject to the conditions set
forth herein and in the applicable Warrant Certificate. A Charitable Benefit
Warrant shall be deemed to have been exercised immediately prior to the close
of business on the Exercise Date and the person entitled to receive the
securities deliverable upon such exercise shall be treated for all purposes as
the holder, upon exercise thereof, as of the close of business on the Exercise
Date. If Charitable Benefit Warrants in denominations other than whole number
multiples thereof shall be exercised at one time by the same Registered
Holder, the number of full shares of Common Stock which shall be issuable upon
exercise thereof shall be computed on the basis of the aggregate number of
full shares of Common Stock issuable upon such exercise. As soon as
practicable on or after the Exercise Date and in any event within five
business days after such date, if one or more Charitable Benefit Warrants have
been exercised, the Warrant Agent on behalf of the Company shall cause to be
issued to the person or persons entitled to receive the same, a Common Stock
certificate or certificates for the shares of Common Stock deliverable upon
such exercise, and the Warrant Agent shall deliver the same to the person or
persons entitled thereto. Upon the exercise of any one or more Charitable
Benefit Warrants, the Warrant Agent shall promptly notify the Company in
writing of such fact and of the number of securities delivered upon such
exercise and, subject to subsection (b) below, shall cause all payments or
other amounts in cash or by check made payable to the order of the Company,
equal to the Exercise Price, to be deposited promptly in the Company's bank
account.
(b) The Company shall not be required to issue fractional shares on the
exercise of Charitable Benefit Warrants. Charitable Benefit Warrants may only
be exercised in such multiples as are required to permit the issuance by the
Company of one or more whole shares. If one or more Charitable Benefit
Warrants shall be presented for exercise in full at the same time by the same
Registered Holder, the number of whole shares which shall be issuable upon
such exercise thereof shall be computed on the basis of the aggregate number
of shares purchasable on exercise of the Charitable Benefit Warrants so
presented. If any fraction of a share would, except for the provisions
provided herein, be issuable on the exercise of any Charitable Benefit Warrant
(or specified portion thereof), the Company shall pay an amount in cash equal
to such fraction multiplied by the then current market value of a share of
Common Stock, determined as follows:
(1) If the Common Stock is listed, or admitted to unlisted trading
privileges on a national securities exchange, or is traded on Nasdaq, the
current market value of a share of Common Stock shall be the closing sale
price of the Common Stock at the end of the regular trading session on the
last business day prior to the date of exercise of the Charitable Benefit
Warrants on whichever of such exchanges or Nasdaq had the highest average
daily trading volume for the Common Stock on such day; or
(2) If the Common Stock is not listed or admitted to unlisted trading
privileges on any national securities exchange, or listed, quoted or reported
for trading on Nasdaq, but is traded in the over-the-counter market, the
current market value of a share of Common Stock shall be the average of the
last reported bid and asked prices of the Common Stock reported by the
National Quotation Bureau, Inc. on the last business day prior to the date of
exercise of the Charitable Benefit Warrants; or
(3) If the Common Stock is not listed, admitted to unlisted trading
privileges on any national securities exchange, or listed, quoted or reported
for trading on Nasdaq, and bid and asked prices of the Common Stock are not
reported by the National Quotation Bureau, Inc., the current market value of a
share of Common Stock shall be an amount, not less than the book value thereof
as of the end of the most recently completed fiscal quarter of the Company
ending prior to the date of exercise, determined by the members of the Board
of Directors of the Company exercising good faith and using reasonable and
customary valuation methods.
SECTION 5. Reservation of Shares; Listing; Payment of Taxes; etc.
(a) The Company covenants that it will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose of issue
upon exercise of Charitable Benefit Warrants, such number of shares of Common
Stock as shall then be issuable upon the exercise of all outstanding
Charitable Benefit Warrants. The Company covenants that all shares of Common
Stock which shall be issuable upon exercise of the Charitable Benefit Warrants
shall, at the time of delivery thereof, be duly and validly issued and fully
paid and nonassessable and free from all preemptive or similar rights, taxes,
liens, and charges with respect to the issue thereof, and that upon issuance
such shares shall be listed on each securities exchange, if any, on which the
other shares of outstanding Common Stock of the Company are then listed.
(b) The Company covenants that if any securities to be reserved for the
purpose of exercise of Charitable Benefit Warrants hereunder require
registration with, or approval of, any governmental authority under any
federal securities law before such securities may be validly issued or
delivered upon such exercise, then the Company will file a registration
statement under the federal securities laws or a post-effective amendment, use
its best efforts to cause the same to become effective and to keep such
registration statement current while any of the Charitable Benefit Warrants
are outstanding and deliver a prospectus which complies with Section 10(a)(3)
of the Act, to the Registered Holder exercising the Charitable Benefit Warrant
(except, if in the opinion of counsel to the Company, such registration is not
required under the Federal securities law or if the Company receives a letter
from the staff of the Commission stating that it would not take any
enforcement action if such registration is not effected). The Company will
use its best efforts to obtain appropriate approvals or registrations under
state "blue sky" securities laws with respect to any such securities.
However, Charitable Benefit Warrants may not be exercised by, or shares of
Common Stock issued to, any Registered Holder in any state in which such
exercise would be unlawful.
(c) The Company shall pay all documentary, stamp or similar taxes and
other governmental charges that may be imposed with respect to the issuance of
Charitable Benefit Warrants, or the issuance or delivery of any shares of
Common Stock upon exercise of the Charitable Benefit Warrants; provided,
however, that if shares of common Stock are to be delivered in a name other
than the name of the Registered Holder of the Warrant Certificate representing
any Charitable Benefit Warrant being exercised, then no such delivery shall be
made unless the person requesting the same has paid to the Warrant Agent the
amount of transfer taxes or charges incident thereto, if any.
(d) The Warrant Agent is hereby irrevocably authorized as the Transfer
Agent to requisition from time to time certificates representing shares of
Common Stock or other securities required upon exercise of the Charitable
Benefit Warrants, and the Company will comply with all such requisitions.
SECTION 6. Exchange and Registration of Transfer.
(a) Warrant Certificates may be exchanged for other Warrant Certificates
representing an equal aggregate number of Charitable Benefit Warrants of the
same class. Charitable Benefit Warrants may not be transferred in whole or in
part except to an Approved Qualified Charitable Organization as set forth in
the list included in Section 9 hereof, or to a testamentary trust, legatee, or
heir by will or descent upon the death of a Registered Holder. Warrant
Certificates to be exchanged shall be surrendered to the Warrant Agent at its
Corporate Office, and, upon satisfaction of the terms and provisions hereof,
the Company shall execute and the Warrant Agent shall countersign, issue and
deliver in exchange therefor the Warrant Certificate or Certificates which the
Registered Holder making the exchange shall be entitled to receive.
(b) The Warrant Agent shall keep, at its office, books in which, subject
to such reasonable regulations as it may prescribe, it shall register Warrant
Certificates and the transfer thereof in accordance with customary
practice and this Agreement. Upon due presentment for registration of
transfer of any Warrant Certificate at such office, the Company shall execute
and the Warrant Agent shall issue and deliver to the transferee or transferees
a new Warrant Certificate or Certificates representing an equal aggregate
number of Charitable Benefit Warrants of the same class.
(c) With respect to all Warrant Certificates presented for registration
of transfer, or for exchange or exercise, the subscription or exercise form,
as the case may be, on the reverse thereof shall be duly endorsed or be
accompanied by a written instrument or instruments of transfer and
subscription, in form satisfactory to the Company and the Warrant Agent, duly
executed by the Registered Holder thereof or his attorney-in-fact duly
authorized in writing.
(d) A service charge may be imposed by the Warrant Agent for any exchange
or registration of transfer of Warrant Certificates. In addition, the Company
may require payment by such Holder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith.
(e) All Warrant Certificates surrendered for exercise or for exchange in
case of mutilated Warrant Certificates shall be promptly canceled by the
Warrant Agent and thereafter retained by the Warrant Agent until termination
of this Agreement.
(f) Prior to due presentment for registration of transfer thereof, the
Company and the Warrant Agent may deem and treat the Registered Holder of any
Warrant Certificate as the absolute owner thereof and of each Charitable
Benefit Warrant represented thereby (notwithstanding any notations of
ownership or writing thereon made by anyone other than a duly authorized
officer of the Company or the Warrant Agent) for all purposes and shall not be
affected by any notice to the contrary.
SECTION 7. Loss or Mutilation.
Upon receipt by the Company and the Warrant Agent of evidence satisfactory to
them of the ownership of and the loss, theft, destruction, or mutilation of
any Warrant Certificate and (in the case of loss, theft, or destruction) of
indemnity satisfactory to them, and (in case of mutilation) upon surrender and
cancellation thereof, the Company shall execute and the Warrant Agent shall
(in the absence of notice to the Company and/or the Warrant Agent that a new
Warrant Certificate has been acquired by a bona fide Approved Qualified
Charitable Organization) countersign and deliver to the Registered Holder in
lieu thereof a new Warrant Certificate of like tenor representing an equal
aggregate number of Charitable Benefit Warrants. Applicants for a substitute
Warrant Certificate shall also comply with such other reasonable regulations
and pay such other reasonable charges as the Warrant Agent may prescribe.
SECTION 8. Adjustment of Exercise Price and Number of Shares of Common
Stock Deliverable.
(a) Except as hereinafter provided, in the event the Company shall, at
any time or from time to time after the date hereof issue any shares of Common
Stock as a stock dividend to the holders of Common Stock, or subdivide or
combine the outstanding shares of Common Stock into a greater or lesser number
of shares (any such issuance, subdivision, or combination being herein called
a "Change of Shares"), then, and thereafter upon each further Change of
Shares, the Exercise Price for the Charitable Benefit Warrants (whether or not
the same shall be issued and outstanding) in effect immediately prior to such
Change of Shares shall be changed to a price (including any applicable
fraction of a cent to the nearest cent) determined by dividing (i) the sum of
(a) the total number of shares of Common Stock outstanding immediately prior
to such Change of Shares, multiplied by the Exercise Price in effect
immediately prior to such Change of Shares and (b) the consideration, if any,
received by the Company upon such sale, issuance, subdivision, or combination,
by (ii) the total number of shares of Common Stock outstanding immediately
after such Change of Shares; provided, however, that in no event shall the
Exercise Price be adjusted pursuant to this computation to an amount in
excess of the Exercise Price in effect immediately prior to such computation,
except in the case of a combination of outstanding shares of Common Stock.
For the purposes of any adjustment to be made in accordance with this Section
8(a), the following provisions shall be applicable:
(A) Shares of Common Stock issuable by way of dividend or other
distribution on any stock of the Company shall be deemed to have been issued
immediately after the opening of business on the day following the record date
for the determination of shareholders entitled to receive such dividend or
other distribution and shall be deemed to have been issued without
consideration.
(B) The number of shares of Common Stock at any one time outstanding
shall be deemed to include the aggregate maximum number of shares issuable
(subject to readjustment upon the actual issuance thereof) upon the exercise
of options, rights or warrants and upon the conversion or exchange of
convertible or exchangeable securities.
(b) Upon each adjustment of the Exercise Price pursuant to this Section
8, the number of shares of Common Stock purchasable upon the exercise of each
Charitable Benefit Warrant shall be the number derived by multiplying the
number of shares of common Stock purchasable immediately prior to such
adjustment by the Exercise Price in effect prior to such adjustment and
dividing the product so obtained by the applicable adjusted Exercise Price.
(c) In case of any reclassification or change of outstanding shares of
Common Stock issuable upon exercise of the Charitable Benefit Warrants (other
than a change in par value, or from par value to no par value, or from no par
value to par value or as a result of a subdivision or combination), or in case
of any consolidation or merger of the Company with or into another corporation
(other than (1) a merger with a subsidiary of the Company in which merger the
Company is the continuing corporation or (2) any consolidation or merger of
the Company with or into another corporation which, in either instance, does
not result in any reclassification or change of the then outstanding shares of
Common Stock or other capital stock issuable upon exercise of the Charitable
Benefit Warrants (other than a change in par value, or from par value to no
par value, or from no par value to par value or as a result of subdivision or
combination)) or in case of any sale or conveyance to another corporation of
the property of the Company as an entirety or substantially as an entirety,
then, as a condition of such reclassification, change, consolidation, merger,
sale, or conveyance, the Company, or such successor or purchasing corporation,
as the case may be, shall make lawful and adequate provision whereby the
Registered Holder of each Charitable Benefit Warrant then outstanding shall
have the right thereafter to receive on exercise of such Charitable Benefit
Warrant the kind and amount of securities and property receivable upon such
reclassification, change, consolidation, merger, sale, or conveyance by a
holder of the number of securities issuable upon exercise of such Charitable
Benefit Warrant immediately prior to such reclassification, change,
consolidation, merger, sale, or conveyance and shall forthwith file at the
Corporate Office of the Warrant Agent a statement signed by its Chairman,
President, or a Vice President and by its Treasurer or an Assistant Treasurer
or its Secretary or an Assistant Secretary evidencing such provision. Such
provisions shall include provision for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in Sections
8(a) and (b). The above provisions of this Section 8(c) shall similarly apply
to successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales or conveyances.
(d) Irrespective of any adjustments or changes in the Exercise Price or
the number of shares of Common Stock purchasable upon exercise of the
Charitable Benefit Warrants, the Warrant Certificates theretofore and
thereafter issued shall, unless the Company shall exercise its option to issue
new Warrant Certificates pursuant to Section 2(e) hereof, continue to express
the Exercise Price per share and the number of shares purchasable thereunder
as the Exercise Price per share and the number of shares purchasable
thereunder were expressed in the warrant Certificates when the same were
originally issued.
(e) After each adjustment of the Exercise Price pursuant to this Section
8, the Company will promptly prepare a certificate signed by the Chairman,
Chief Executive Officer or President, and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, of the Company setting
forth: (i) the Exercise Price as so adjusted, (ii) the number of shares of
Common Stock purchasable upon exercise of each Charitable Benefit Warrant,
after such adjustment, and (iii) a brief statement of the facts accounting for
such adjustment. The Company will promptly file such certificate with the
Warrant Agent and cause a brief summary thereof to be sent by ordinary first
class mail to each Registered Holder at his last address as it shall appear on
the registry books of the Warrant Agent. No failure to mail such notice nor
any defect therein or in the mailing thereof shall affect the validity thereof
except as to the holder to whom the Company failed to mail such notice, or
except as to the holder whose notice was defective. The affidavit of an
officer of the Warrant Agent or the Secretary or an Assistant Secretary of the
Company that such notice has been mailed shall, in the absence of fraud, be
prima facie evidence of the facts stated therein.
(f) No adjustment of the Exercise Price shall be made as a result of or
in connection with (A) the issuance or sale of shares of Common Stock pursuant
to options, warrants, stock purchase agreements, and convertible or
exchangeable securities outstanding or in effect on the date hereof; (B) stock
options to be granted under the Company's 1994 Stock Option Plan to employees
or consultants; (C) shares of Common Stock, options, or warrants issued to
outside parties in connection with strategic alliances, joint ventures, or
other corporate partnerships with the Company, or (D) the issuance of shares
of Common Stock if the amount of said adjustment shall be less than $.10,
provided, however, that in such case, any adjustment that would otherwise be
required then to be made shall be carried forward and shall be made at the
time of and together with the next subsequent adjustment that shall amount,
together with any adjustment so carried forward, to at least $.10. In
addition, prior to the exercise of any Charitable Benefit Warrant represented
hereby, the Registered Holder shall not be entitled to any rights of a
stockholder of the Company, including, without limitation, the right to vote
or to receive dividends or other distributions, and shall not be entitled to
receive any notice of any proceedings of the Company, except as provided in
this Charitable Benefit Warrant Agreement.
SECTION 9. Concerning Approved Qualified Charitable Organizations
(a) Charitable Benefit Warrants may only be transferred to an Approved
Qualified Charitable Organization; provided, however, that transfer to a
testamentary trust, legatee, or heir by will or descent upon the death of a
Registered Holder, will be permitted upon proper proof as decided by the
Company in its absolute discretion.
(b) Qualified Charitable Organizations may be added to the approved list
by the Company, in its absolute discretion, from time to time until the
Warrant Expiration Date. In order to be added to the approved list, a
charitable organization must be tax exempt, and it must be eligible to receive
tax deductible contributions in accordance with Section 170 of the Code.
Charitable organizations may be added at the election of the Company, or they
may be nominated by a Registered Holder. Registered Holders wishing to
nominate a charitable organization must send their nomination in writing to
the Company, together with proof of such charitable organization's status as
an organization described in Section 501(c)(3) of the Code which is excluded
from the definition of a private foundation as referred to in Section 509(a)
of the Code and which is eligible to receive tax deductible contributions in
accordance with Section 170 of the Code.
(c) The Company shall provide to the Warrant Agent, from time to time, a
statement, signed by its Chairman of the Board, President, or a Vice President
and by its Treasurer or an Assistant Treasurer or its Secretary or an
Assistant Secretary, setting forth the complete list of Approved Qualified
Charitable Organizations. The Warrant Agent shall not accept for transfer
Charitable Benefit Warrants which attempt to transfer or assign such
Charitable Benefit Warrants to any person other than an organization which is
on the most recent list of Approved Qualified Charitable Organizations;
provided, however, that transfer to a testamentary trust, legatee, or heir by
will or descent upon the death of a Registered Holder, will be permitted upon
proper proof as decided by the Company in its absolute discretion.
(d) Approved Qualified Charitable Organizations at the date of this
agreement include the following:
Juvenile Diabetes Foundation
Xxxxxx Diabetes Center, Inc.
American Kidney Foundation
National Vulvodynia Association
Crohn's & Colitis Foundation of America
Cystic Fibrosis Foundation
Oxalosis and Hyperoxaluria Foundation
Mycological Society of America
Intestinal Disease Foundation
National Kidney Fund
National Institute of Diabetes and Digestive and
Kidney Diseases
North American Mycological Society
University of Florida Research Foundation, Inc.
Florida Cystic Fibrosis, Inc.
SECTION 10. Concerning the Warrant Agent.
(a) The Warrant Agent acts hereunder as agent and in a ministerial
capacity for the Company, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not, by issuing and delivering
Warrant Certificates or by any other act hereunder, be deemed to make any
representations as to the validity or value or authorization of the Warrant
Certificates or the Charitable Benefit Warrants represented thereby or of any
securities or other property delivered upon exercise of any Charitable Benefit
Warrant or whether any stock issued upon exercise of any Charitable Benefit
Warrant is fully paid and nonassessable.
(b) The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of Warrant Certificates to make or cause to be
made any adjustment of the Exercise Price, or to determine whether any fact
exists which may require any such adjustments, or with respect to the nature
or extent of any such adjustments, when made, or with respect to the method
employed in making the same. It shall not (i) be liable for any recital or
statement of fact contained herein or for any action taken, suffered or
omitted by it in reliance on any Warrant Certificate or other document or
instrument believed by it in good faith to be genuine and to have been signed
or presented by the proper party or parties, (ii) be responsible for any
failure on the part of the Company to comply with any of its covenants and
obligations contained in this Agreement or in any Warrant Certificate, or
(iii) be liable for any act or omission in connection with this Agreement
except for its own gross negligence, bad faith or willful misconduct.
(c) The Warrant Agent may at any time consult with counsel satisfactory
to it (who may be counsel for the Company) and shall incur no liability or
responsibility for any action taken, suffered or omitted by it in good faith
in accordance with the opinion or advice of such counsel.
(d) Any notice, statement, instruction, request, direction, order or
demand of the Company shall be sufficiently evidenced by an instrument signed
by the Chairman of the Board of Directors, President, or any Vice President
(unless other evidence in respect thereof is herein specifically prescribed).
The Warrant Agent shall not be liable for any action taken, suffered or
omitted by it in accordance with such notice, statement, instruction, request,
direction, order or demand reasonably believed by it to be genuine.
(e) The Company agrees to pay the Warrant Agent reasonable compensation
for its services hereunder and to reimburse it for its reasonable expenses
hereunder; the Company further agrees to indemnify the Warrant Agent and save
it harmless from and against any and all losses, expenses and liabilities,
including judgments, costs and counsel fees, for anything done or omitted by
the Warrant Agent in the execution of its duties and powers hereunder except
losses, expenses and liabilities arising as a result of the Warrant Agent's
gross negligence, bad faith or willful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all
further duties and liabilities hereunder (except liabilities arising as a
result of the Warrant Agent's own gross negligence or willful misconduct),
after giving 30 days' prior written notice to the Company. At least 15 days
prior to the date such resignation is to become effective, the Warrant Agent
shall cause a copy of such notice of resignation to be mailed to the
Registered Holder of each Warrant Certificate at the Company's expense. Upon
such resignation, or any inability of the Warrant Agent to act as such
hereunder, the Company shall appoint in writing a new warrant agent. If the
Company shall fail to make such appointment within a period of 15 days after
giving notice of such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Warrant Agent,
then the Company agrees to perform the duties of the Warrant Agent hereunder
until a successor Warrant Agent is appointed. After acceptance in writing of
such appointment by the new warrant agent is received by the Company, such new
warrant agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as the Warrant
Agent, without any further assurance, conveyance, act or deed; but if for any
reason it shall be necessary or expedient to execute and deliver any further
assurance, conveyance, act or deed, the same shall be done at the expense of
the Company and shall be legally and validly executed and delivered by the
resigning Warrant Agent. Not later than the effective date of any such
appointment the Company shall file notice thereof with the resigning Warrant
Agent and shall forthwith cause a copy of such notice to be mailed to the
Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or any new warrant
agent may be converted or merged, any corporation resulting from any
consolidation to which the Warrant Agent or any new warrant agent shall be a
party, or any corporation succeeding to the corporate trust business of the
Warrant Agent or any new warrant agent shall be a successor warrant agent
under this Agreement without any further act, provided that such corporation
is eligible for appointment as successor to the Warrant Agent under the
provisions of the preceding paragraph. Any such successor warrant agent shall
promptly cause notice of its succession as warrant agent to be mailed to the
Company and to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its subsidiaries and affiliates, and any of its
or their officers or directors, may buy and hold or sell securities of the
Company and otherwise deal with the Company in the same manner and to the same
extent and with like effect as though it were not Warrant Agent. 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 shall retain for a period of two years from the
date of exercise any Warrant Certificate received by it upon such exercise.
SECTION 11. Modification of Agreement.
The Warrant Agent and the Company may by supplemental agreement make any
changes or corrections in this Agreement (i) that they shall deem appropriate
to cure any ambiguity or to correct any defective or inconsistent provision or
manifest mistake or error herein contained; or (ii) that they may deem
necessary or desirable and which shall not adversely affect the interests of
the holders of Warrant Certificates; provided, however, that no change in the
number or nature of the securities purchasable upon the exercise of any
Charitable Benefit Warrant, or to increase the Exercise Price therefor or to
accelerate the Warrant Expiration Date, shall be made without the consent in
writing of the Registered Holders representing not less than 66.667% of the
Charitable Benefit Warrants then outstanding, other than such changes as are
presently specifically prescribed by this Agreement as originally executed.
SECTION 12. Notices.
All notices, requests, consents and other communications hereunder shall be in
writing and shall be deemed to have been made when delivered or mailed first-
class registered or certified mail, postage prepaid, or by fax as follows: if
to the Registered Holder of a Warrant Certificate, at the address of such
holder as shown on the registry books maintained by the Warrant Agent; if to
the Company at 00000 Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000, Fax 000-000-0000,
Attention: Xxxxxx X. Xxxxxx, Chairman and Chief Executive Officer, or at such
other address as may have been furnished to the Warrant Agent in writing by
the Company; and if to the Warrant Agent, at its Corporate Office.
SECTION 13. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws
of the State of Florida without giving effect to conflicts of laws.
SECTION 14. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Company,
the Warrant Agent and their respective successors and assigns and the holders
from time to time of Warrant Certificates or any of them. Nothing in this
Agreement is intended or shall be construed to confer upon any other person
any right, remedy, or claim, in equity or at law, or to impose upon any other
person any duty, liability or obligation.
SECTION 15. Termination.
This Agreement shall terminate at the close of business on the Expiration Date
of all of the Charitable Benefit Warrants or such earlier date upon which all
Charitable Benefit Warrants have been exercised or redeemed, except that the
Warrant Agent shall account to the Company for cash held by it and the
provisions of Section 10 hereof shall survive such termination.
SECTION 16. Counterparts.
This Agreement may be executed in counterparts, which taken together shall
constitute a single document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
Dated:____________________
IXION BIOTECHNOLOGY, INC.
By:__________________________________
Printed Name:________________________
(SEAL) Title:_______________________________
Attest:
By:_________________________________
Printed Name:_______________________
Title:______________________________
SUNTRUST BANK, ATLANTA
As Warrant Agent
By:____________________________________
Printed Name:__________________________
Title:_________________________________
