AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT
TO RIGHTS AGREEMENT
THIS
AMENDMENT TO RIGHTS AGREEMENT
(“Amendment”)
is
made as of February 17, 2006, by and among Cleveland BioLabs, Inc., a Delaware
corporation (the “Company”),
the
Common Stockholders and the Purchasers of the Series A Preferred Shares.
Capitalized terms not otherwise defined herein shall have the meaning ascribed
to such terms in the Rights Agreement.
R
E C I T A L S
WHEREAS,
the
Company and the Purchasers have entered into that certain Stock Purchase
Agreement dated as of March 15, 2005 (the “Purchase
Agreement”),
pursuant to which the Purchasers acquired shares of the Company’s Series A
Participating Convertible Preferred Stock, $0.005 par value per share
(collectively, the “Series
A Preferred Shares”);
WHEREAS,
in
connection with the Purchase Agreement, the Company, the Common Stockholders
and
the Purchasers have agreed to the terms and conditions set forth in that certain
Series A Rights Agreement dated as of March 15, 2005, by and among the Company,
the Common Stockholders and the Purchasers (the “Rights
Agreement”).
WHEREAS,
the
parties to the Rights Agreement wish to amend and restate Section 5(a) of the
Rights Agreement in its entirety;
NOW,
THEREFORE,
for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Section
5(a).
Section
5(a) of the Rights Agreement is hereby amended and restated in its entirety
to
read as follows:
“In
the
event that that Corporation has not consummated one of the Required Transactions
on or before the Public Trigger Date, the Corporation shall issue to each holder
of Registrable Securities, such number of additional Series A Preferred Shares
as shall equal 2% of the Series A Preferred Shares held by such holder (not
including any previously issued Penalty Shares), plus such number of additional
shares of Common Stock as shall equal 2% of the shares of Common Stock held
by
such holder (not including any previously issued Penalty Shares or shares of
Common Stock issuable upon conversion of Series A Preferred Stock, but including
Fee Securities and shares of Common Stock previously issued upon conversion
of
Series A Shares) for each thirty (30) day period beyond the Public Trigger
Date
that a Required Transaction has not been consummated; provided, however, Penalty
Shares shall not accrue for a period commencing on the initial filing date
of
any registration statement with the Commission (the “Initial
Filing Date”)
to and
including seventy (70) days thereafter, provided further, that, in the event
that effectiveness of such registration statement is delayed due to Commission
comments on such registration statement, and the Corporation is in good faith
responding to such comments in a timely manner and such comments do not preclude
the Corporation from going effective on such registration statement entirely,
such seventy (70) day period shall be extended (only once) for an additional
forty-five (45) day period (collectively, the “Grace
Period”).
For
the avoidance of doubt, the parties hereto agree that (i) the Initial Filing
Date is February 17, 2006, and (ii) the Grace Period shall not therefore, in
any
event, exceed one hundred fifteen (115) days from February 17,
2006.”
2. No
Amendment or Waiver.
The
execution, delivery and effectiveness of this Amendment shall not constitute
an
amendment or waiver of any other provision of the Rights Agreement. The terms
of
the Rights Agreement not affected, modified or changed by this Amendment shall
remain in full force and effect.
3. Counterparts.
This
Amendment may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. Facsimile signatures shall be accepted as originals.
*
* *
*
Signature
Page Follows
IN
WITNESS WHEREOF,
the
undersigned or each of their respective duly authorized officers or
representatives have set their hands hereunder effective upon the date
referenced-above.
THE
COMPANY:
Cleveland
BioLabs, Inc., a
Delaware corporation
By: _/s/
Xxxxxxx Fonstein______________
Name:
Xxxxxxx Xxxxxxxx
Title: President
and Chief Executive Officer
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COMMON
STOCKHOLDERS
________________________________
Xxxxxxx
Xxxxxxxx
________________________________
Xxxxx
Xxxxx
________________________________
Xxxxx
Xxxxxxxxx
________________________________
Xxxxxx
X.
Xxxxx
________________________________
Xxxxxxx
X. Xxxxxxx
________________________________
Xxxxxxxx
Xxxxxx
________________________________
Xxxxx
Xxxxxxxxxxxxx
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ChemBridge
Corporation
By: _________________________
Name: _________________________
Title: _________________________
The
Cleveland Clinic Foundation
By: _________________________
Name: _________________________
Title: _________________________
________________________________
Xxxxxx
Xxxxxx
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PURCHASERS | ||
INDIVIDUAL:
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Print
Name
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Signature
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ENTITY:
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Print
Entity Name
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Signature
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Name
and Title of Signatory
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