EXHIBIT 4.11
WAIVER AND AMENDMENT AGREEMENT
WAIVER AND AMENDMENT AGREEMENT ("Agreement"), dated as of January 13, 2005
between the persons whose names appear on the signature pages hereof
(individually a "Warrantholder" and collectively the "Warrantholders") and Omrix
Biopharmaceuticals, Inc. (the "Company")
WITNESSETH:
WHEREAS, Warrantholders are the record and beneficial owners of certain
warrants to purchase Common Stock of the Company comprising "Advisory Warrants"
and "Strategic Warrants" identified on Schedule A to this Agreement
(collectively, the "Warrants") granting Warrantholders the right to purchase
shares of the Company's Common Stock from the Company; and
WHEREAS, the Warrants provide for adjustment of the respective Exercise
Prices upon certain issuances or sales of Common Stock for a consideration per
share less than the Per Share Price set forth in the Warrants;
WHEREAS, the Company proposes to enter into a transaction (the
"Recapitalization") pursuant to which substantially all the holders of (i) the
Company's senior subordinated convertible promissory notes (the "1998/1999
Notes") and warrants issued in connection with the issuance of the 1998/1999
Notes, (ii) the Company's senior secured convertible promissory notes issued in
September 2002 to refinance certain notes issued by the Company in 2001, (iii)
additional senior secured convertible promissory notes of the Company issued in
September 2002, and (iv) the Company's Series A Convertible Preferred Stock and
Series B Convertible Preferred Stock will convert such securities into and/or
exchange such securities for Common Stock of the Company; and
WHEREAS, the Warrants grant to the Warrantholders certain rights to
include their Registrable Securities in registration statements filed by the
Company under the Securities Act; and
WHEREAS, in the event of a Company Registration Cutback, the
Warrantholders' right to include Registrable Securities in a registration
statement is subject to certain priorities set forth in the Stockholders'
Agreement referred to in the Warrants; and
WHEREAS, in connection with the Recapitalization, the Stockholders'
Agreement will be terminated, and the Company will enter into an Investor Rights
Agreement between the Company and certain holders of the Common Stock (the
"Investor Rights Agreement") pursuant to which such holders will receive certain
rights to require the Company to register their Common Stock under the
Securities Act; and
WHEREAS, in connection with the Plan of Recapitalization, the Company has
requested that Warrantholders (i) waive certain adjustments contemplated by the
Warrants and (ii) agree to amend the Warrants to conform the provisions for a
Company Registration Cutback to the
requirements of the Investor Rights Agreement, and Warrantholders are willing to
do so in accordance with the terms and conditions of this Agreement;
NOW, THEREFORE, for good and valuable consideration, receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
are used herein as defined in the Warrants.
2. Waiver of the Anti-Dilution Adjustments: Warrantholders hereby waive
any antidilution protection or other adjustment provided under the Warrants
(including, but not limited to, Section 2 thereof and the related definitions)
with regard to Common Stock and/or options, warrants, or other Common Stock
purchase rights issued or to be issued in the Recapitalization and the
transactions contemplated thereby and acknowledge that the waiver being granted
pursuant to this Agreement is in lieu of any such antidilution protection or
other adjustments. The foregoing notwithstanding, the waiver granted by this
Agreement is granted solely in connection with the transactions contemplated by
the Recapitalization and shall not constitute a waiver or diminution of any
right of any Warrantholder hereafter to require or demand strict compliance and
performance of the Warrant or Warrants held by such person.
3. Amendment to Warrants. The Second sentence of Section 9.l(ii) of each
Warrant is hereby amended to read as follows:
Notwithstanding any other provision of this Section 9.1, if the managing
underwriter determines the number of shares requested to be included in the
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the Company or marketing factors
require a limitation of the number of shares to be underwritten (the "Company
Registration Cutback"), then the Company will include in such registration, to
the extent of the number and type which the Company is so advised can be sold in
(or during the time of) such offering without such affect on the price, first,
all securities of the Company proposed to be sold by the Company for its own
account and by holders of Common Stock party to the Investor Rights Agreement of
the Company, in accordance with the priorities set forth in such agreement;
second the Registrable Securities requested by the Registered Holders to be
included in such registration consistent with and subject to the requirements of
the Investor Rights Agreement, and finally, any other securities of the Company
requested by other holders of Common Stock to be included in such registration.
4. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard
to its principles of conflicts of laws.
5. Counterparts; Effectiveness. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and each of which shall be deemed an original. Each of the undersigned
Warrantholders hereby agrees that this Agreement shall be effective for all
purposes with respect to itself upon the receipt of a telecopy by the Company or
its counsel of a signed signature page to this instrument and that the Company
is authorized to attach such signed signature page to the pages comprising the
balance
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of this Agreement. Pursuant to Section 11 of each Warrant, this Agreement shall
become effective with respect to all Warrants upon the Company's receipt of
counterparts of this Agreement bearing the original or telecopied signatures of
holders of Warrants comprising not less than a majority of the Registrable
Securities issuable upon exercise of the Warrants.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the date set forth opposite the signature of the undersigned.
OMRIX BIOPHARMACEUTICALS, INC.
December 31, 2004
By: /s/ Xxxxxx Xxxx
---------------------------------
Name: Xxxxxx Xxxx
Title: CEO and President
CAPRICORN VENTURE PARTNERS N.V.
December 30, 2004
By: /s/ Xxx X. Xxxxxxx
---------------------------------
Name: Xx. Xxx X. Xxxxxxx
Title: Managing Director
MPM CAPITAL ADVISORS LLC
December , 2004
By:
---------------------------------
Name:
Title:
1998 XXXXXXX-XXXXXXX
CHILDREN'S TRUST
December , 2004
By:
---------------------------------
Name:
Title:
December , 2004
------------------------------------
Xxxxxxxx Xxxxxxx
SIGNATURE PAGE TO WAIVER AND AMENDMENT AGREEMENT OF THE
CORPORATION AND ADVISORY AND STRATEGIC WARRANTHOLDERS
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XXX XXXX
December , 2004 By:
---------------------------------
Name:
Title:
XXXX XXXXXXXXXX
December , 2004
By:
---------------------------------
Name:
Title:
SBS VENTURES CORP. DEFINED
BENEFIT PENSION PLAN
December 24, 2004
By: /s/ Authorized Officer
---------------------------------
Name: Authorized Officer
Title: Authorized Officer
T.XXXXX XXXXXXX
December , 2004
By:
---------------------------------
Name:
Title:
XXXXX X'XXXX
December , 2004
By:
---------------------------------
Name:
Title:
SIGNATURE PAGE TO CONSENT AND WAIVER OF THE CORPORATION AND
ADVISORY AND STRATEGIC WARRANTHOLDERS
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BB BIOVENTURES L.P.
December , 2004 By: BAB BIOVENTURES L.P., its
General Partner
By: BAB BIOVENTURES N.V., its
General Partner
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
MPM ASSET MANAGEMENT
December , 2004 INVESTORS 1998 LLC
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title Manager
MPM BIOVENTURES PARALLEL FUND, L.P.
December , 2004 By: MPM BIOVENTURES I L.P., its
General Partner
By: MPM BIOVENTURES I LLC, its
General Partner
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title Manager
SIGNATURE PAGE TO CONSENT AND WAIVER OF THE CORPORATION AND
ADVISORY AND STRATEGIC WARRANTHOLDERS
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SCHEDULE A
Advisory Warrants
Advisory Registered No. of Exercise Price
Warrant No. Warrantholder Shares Per Share
----------- ------------- ------ ---------
W-ADV-#1 MPM Capital Advisors 104,401 $5.55
LLC (transferred to
BB BioVentures L.P.,
MPM Asset Management
1998 LLC and MPM
BioVentures Parallel
Fund, L.P.)
W-ADV-#2 1998 25,076 $5.55
Xxxxxxx-Xxxxxxx
Children's Trust
W-ADV-#3 Xxxxxxxx Xxxxxxx 25,076 $5.55
W-ADV-#4 Xxx Xxxx 25,076 $5.55
W-ADV-#5 Xxxxx Xxxxxxxxxx 25,076 $5.55
W-ADV-#9 SBS Ventures Corp. 126,710 $5.55
Defined Benefit
Pension Plan
W-ADV-#10 SBS Ventures Corp. 77,995 $5.55
Defined Benefit
Pension Plan
W-ADV-# Capricorn Venture 40,000 $5.55
Partners
N.V.
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Strategic Warrants
Advisory No. of Exercise Price
Warrant No. Registered Warrantholder Shares Per Share
----------- ------------------------ ------ ---------
W-STR-#6 T. Xxxxx Xxxxxxx 6,994 $6.17
W-STR-#7 Xxxxxxxx Xxxxxxx 6,994 $6.17
W-STR-#8 Xxx Xxxx 6,994 $6.17
W-STR-#9 Xxxxx X'Xxxx 1,000 $6.17
W-STR-#lO Xxxx Xxxxxxxxxx 6,994 $6.17
W-STR-#ll MPM Capital Advisors 30,339 $6.17
LLC (transferred to
BB BioVentures L.P.,
MPM Asset Management
1998 LLC and MPM
BioVentures Parallel
Fund, L.P.)
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