Exhibit 4.13
WAIVER AGREEMENT
WAIVER AGREEMENT ("Agreement"), dated as of February 22, 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")
W I T N E S S E T H :
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
"Transaction") pursuant to which some holders of senior secured convertible
promissory notes of the Company issued in September 2002 will convert such
securities into Common Stock of the Company; and that the conversion will occur
at the same conditions as the ones of the Recapitalization of the Company of
January 2005;
WHEREAS, in connection with the Plan of Recapitalization, the Company has
requested that Warrantholders waive certain adjustments contemplated by the
Warrants 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 ands
sufficiency of which are hereby acknowledged, the parties hereto herby 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 to be issued in the Transaction 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 contemplated Transaction 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. 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.
4. 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 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.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date set forth above.
OMRIX BIOPHARMACEUTICALS, INC.
By:
------------------------------
Name:
Title:
CAPRICORN VENTURE PARTNERS N.V.
By
-------------------------------
Name:
Title:
MPM CAPITAL LP
By: Medical Portfolio Management, LLC,
its General Partner
/s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Manager
2
1998 XXXXXXX-XXXXXXX CHILDREN'S TRUST
By
-------------------------------
Name:
Title:
XXXXXXXX XXXXXXX
By
-------------------------------
Name:
Title:
XXX XXXX
By
-------------------------------
Name:
Title:
XXXX XXXXXXXXXX
By
-------------------------------
Name:
Title:
SBS VENTURES CORP. DEFINED BENEFIT
PENSION PLAN
By
-------------------------------
Name:
Title:
3
SIGNATURE PAGE TO CONSENT AND WAIVER OF THE CORPORATION AND AND
ADVISORY AND STRATEGIC WARRANTHOLDERS
MPM CAPITAL LP
By: Medical Portfolio Management, LLC,
its General Partner
/s/ Xxxxxxx Xxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxx
Title:Manager
T. XXXXX XXXXXXX
By
-------------------------------
Name:
Title:
XXXXX X'XXXX
By
-------------------------------
Name:
Title:
SIGNATURE PAGE TO CONSENT AND WAIVER OF THE CORPORATION AND
ADVISORY AND STRATEGIC WARRANTHOLDERS
4
SCHEDULE A
Advisory Warrants
Advisory No. of Exercise Price
Warrant No. Registered Warrantholder Shares Per Share
----------- ------------------------- ------ --------------
W-ADV-#1 MPM Capital LP 104,401 $5.55
W-ADV-#2 1998 Xxxxxxx-Xxxxxxx 25,076 $5.55
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-CAP-#1 Capricorn Venture Partners 40,000 $5.55
N.V.
W-ADV-#9 SBS Ventures Corp. Defined 126,710 $5.55
Benefit Pension Plan
W-ADV-#10 SBS Ventures Corp. Defined 77,995 $5.55
Benefit Pension Plan
Strategic Warrants
Advisory No. of Exercise Price
Warrant No. Registered Warrantholder Shares Per Share
----------- ------------------------ ------ --------------
W-STR-#11 MPM Capital LP 30,339 $6.17
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-#10 Xxxx Xxxxxxxxxx 6,994 $6.17
W-STR-#9 Xxxxx X'Xxxx 1,000 $6.17
