1
Exhibit 4.8
WAIVER AND AGREEMENT
WAIVER AND AGREEMENT, dated as of the 21st day of January, 1999, by and
among Intracel Corporation, (the "Company"), and Bank Austria AG, Grand Cayman
Branch (assignee of Creditanstalt American Corporation) (the "Stockholder").
WHEREAS, the Stockholder and the Company are parties to a certain
Registration Rights Agreement, dated November 16, 1995 which agreement was
amended and restated on June 25, 1997, pursuant to which the Stockholder was
granted certain registration rights relating to all of the securities of the
Company held by it (the "Registration Rights Agreement"); and
WHEREAS, the Company intends to register under the Securities Act of
1933, as amended, shares of its Common Stock for sale to the public pursuant to
an initial public offering (the "Offering"); and
WHEREAS, the representatives for the underwriters in the Offering, led by
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, have determined that
inclusion of the Stockholder's securities in the Offering would adversely
affect the marketing of the securities to be sold by the Company in the
Offering; and
WHEREAS, the Stockholder acknowledges and agrees that it would be in the
best interest of the Company to consummate the Offering as contemplated by
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, as a representative for the
underwriters and that, solely with respect to the Offering, the Stockholder
waive any registration rights with respect to the securities of the Company held
by it;
WHEREAS, under that certain Registration Rights Agreement dated as of
August 25, 1998 among the Company and Northstar High Yield Fund, Northstar High
Total Return Fund, Northstar High Total Return Fund II and Northstar Strategic
Income Fund, the Company is obligated to file a registration statement (the
"New Registration Statement") to register the Registrable Securities and use
its best efforts to cause such New Registration Statement to become effective
on the 181st day after the Company consummates the Offering (the "Target Date")
or as soon as practicable thereafter;
WHEREAS, the Stockholder desires to have its shares of Common Stock of
the Company issuable upon conversion of its Series A-3 Preferred Stock of the
Company and exercise of its Series A-1 Warrants (collectively, the "Conversion
Shares") registered on the Target Date.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereby agree with each other as follows:
1. Waiver. The Company and the Stockholder hereby agree that the
operation of Section 4 of the Registration Rights Agreement (Incidental
Registration) is hereby waived as it may apply to the registration by the
Company of shares of its Common Stock pursuant to the
2
Offering, pursuant to which Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
is acting as a representative of the underwriters.
2. Agreement to Register the Conversion Shares. (a) The Company hereby
agrees (i) to prepare and file on or before the Target Date a registration
statement (which registration statement may be the New Registration Statement)
in appropriate form in compliance with the Securities Act of 1933, as amended
and applicable state securities laws of such states as the Stockholder shall
request, and (ii) to use its best efforts to cause such registration statement
to be declared effective by the Securities and Exchange Commission as soon as
practicable after the Target Date.
(b) The Company shall, promptly following the date on which the
registration statement has been declared effective, furnish to the Stockholder
such number of copies of the prospectus and preliminary prospectus and such
other documents related to the offering as the Stockholder may reasonably
request.
(c) The Company shall pay all costs and expenses incident to the
performance and compliance by the Company with this Agreement, including
without limitation all fees and disbursements of counsel for the Company and
the Stockholder.
3. Representation. The Company hereby represents and warrants that all
other shareholders of the Company (other than shareholders participating in the
Offering) have waived all piggyback and incidental registration rights in
connection with the Offering, and the Company is not required to file any
registration statement for any shareholder on or prior to the Target Date
(other than the New Registration Statement).
4. No Modifications. Except as waived hereby, the terms and conditions
of the Registration Rights Agreement shall continue in full force and effect
and are hereby in all respects ratified and confirmed.
5. GOVERNING LAW. THIS WAIVER AND AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES.
2
3
IN WITNESS WHEREOF, this Waiver and Agreement has been executed as of the date
and year first written above.
INTRACEL CORPORATION
By: /s/ XXXXX X. XxXXXXXX
--------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive Officer
BANK AUSTRIA AG, GRAND CAYMAN BRANCH
By:
----------------------------------------------
Name:
Title:
By:
----------------------------------------------
Name:
Title:
3
4
IN WITNESS WHEREOF, this Waiver and Agreement has been executed as of the date
and year first written above.
INTRACEL CORPORATION
By:
--------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: President and Chief Executive Officer
BANK AUSTRIA AG, GRAND CAYMAN BRANCH
By: /s/ XXXXXXXX X. XXXXX
----------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
By: /s/ XXXXXXXXX X. XxxXXXXXX
----------------------------------------------
Name: Xxxxxxxxx X. XxxXxxxxx
Title: Vice President
3
