==============================================================================
IXION BIOTECHNOLOGY, INC.
AND
SUNTRUST BANK, ATLANTA
-------------------
CHARITABLE BENEFIT WARRANT AGREEMENT
DATED AS OF DECEMBER 10, 1997
==============================================================================
AGREEMENT, dated this 10th day of December, 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 Fund, 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 Foundation, 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
December 9, 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
December 9, 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 December 9, 2006 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 Fund
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 Foundation
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: December 10, 1997
IXION BIOTECHNOLOGY, INC.
By:___________________________________
Printed Name: Xxxxxx X. Xxxxxx
(SEAL) Title: Chairman and Chief Executive Officer
Attest:
By:_________________________________
Printed Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Secretary
SUNTRUST BANK, ATLANTA
As Warrant Agent
By:_____________________________________
Printed Name:____________________________
Title:____________________________________
EXHIBIT A
No. W VOID AFTER DECEMBER 9, 2007
CHARITABLE BENEFIT WARRANT CERTIFICATE TO
PURCHASE ONE SHARE OF COMMON STOCK
IXION BIOTECHNOLOGY, INC.
THIS WARRANT SUBJECT TO RESTRICTIONS ON TRANSFER
THIS CERTIFIES THAT, FOR VALUE RECEIVED
or registered assigns (the "Registered Holder") is the owner of the
number of Charitable Benefit Warrants (the "Charitable Benefit Warrants")
specified above. Charitable Benefit Warrants may not be resold and may
only be transferred by gift to 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 ("Approved Qualified Charitable Organization"). At the
date of this Certificate, the following Qualified Charitable
Organizations have been approved by the Company: the Juvenile Diabetes
Foundation, the Xxxxxx Diabetes Center, Inc., the American Kidney Fund,
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 Foundation, 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. A current list of Approved Qualified
Charitable Organizations may be obtained at any time from the Company
upon request.
Each whole Charitable Benefit Warrant initially entitles the
Registered Holder to purchase, subject to the terms and conditions set
forth in this Certificate and the Charitable Benefit Warrant Agreement
(as hereinafter defined), one fully paid and nonassessable share of
Common Stock, par value $.01, of Ixion Biotechnology, Inc., a Delaware
corporation (the "Company"), during the exercise period set forth below
upon the presentation and surrender of this Warrant Certificate with the
Subscription Form on the reverse hereof duly executed, at the corporate
office of SunTrust Bank, Atlanta, as Warrant Agent, or its successor (the
"Warrant Agent"), accompanied by payment of $20.00per share, subject to
adjustment (the "Exercise Price"), in lawful money of the United States
of America in cash or by check made payable to the Warrant Agent for the
account of the Company.
This Warrant Certificate and each Charitable Benefit Warrant
represented hereby are issued pursuant to and are subject in all respects
to the terms and conditions set forth in the Charitable Benefit Warrant
Agreement (the "Charitable Benefit Warrant Agreement"), dated December
10, 1997, between the Company and the Warrant Agent.
In the event of certain contingencies provided for in the
Charitable Benefit Warrant Agreement, the Exercise Price and the number
of shares of Common Stock subject to purchase upon the exercise of each
Charitable Benefit Warrant represented hereby are subject to modification
or adjustment.
Each Charitable Benefit Warrant represented hereby is exercisable
at the option of a Registered Holder, but no fractional interests will be
issued. An Approved Qualified Charitable Organization may exercise this
Charitable Benefit Warrant at any time between the date hereof and the
Expiration Date (as hereinafter defined). Any other Registered Holder
which is not an Approved Qualified Charitable Organization may exercise
this Charitable Benefit Warrant only between December 9, 2006 and the
Expiration Date. In the case of the exercise of less than all the
Charitable Benefit Warrants represented hereby, the Company shall cancel
this Warrant Certificate upon the surrender hereof and shall execute and
deliver a new Warrant Certificate or Warrant Certificates of like tenor,
which the Warrant Agent shall countersign, for the balance of such
Charitable Benefit Warrants.
The term "Expiration Date" means 5:30 p.m. (Atlanta time) on
December 9, 2007. If such date shall in the State of Georgia be a
holiday or a day on which the banks are authorized to close, then the
Expiration Date shall mean 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.
The Company shall not be obligated to deliver any securities
pursuant to the exercise of this Charitable Benefit Warrant unless a
registration statement under the Securities Act of 1933, as amended (the
"Act"), with respect to such securities is effective or an exemption
thereunder is available and the delivery of such securities is permitted
under applicable state securities laws. The Company has covenanted and
agreed that it will file a registration statement under the Act, use its
best efforts to cause the same to become effective, use its best efforts
to keep such registration statement current, if required under the Act,
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 this Charitable Benefit Warrant. This
Charitable Benefit Warrant shall not be exercisable by a Registered
Holder in any state where such exercise would be unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof
by the Registered Holder at the corporate office of the Warrant Agent,
for a new Warrant Certificate or Warrant Certificates of like tenor
representing an equal aggregate number of Charitable Benefit Warrants,
each of such new Warrant Certificates to represent such number of
Charitable Benefit Warrants as shall be designated by such Registered
Holder at the time of such surrender. Upon due presentment and payment
of any tax or other charge imposed in connection therewith or incident
thereto, for registration of transfer of this Warrant Certificate at such
office, a new Warrant Certificate or Warrant Certificates representing an
equal aggregate number of Charitable Benefit Warrants will be issued to
the transferee in exchange therefor, subject to the limitations provided
in the Charitable Benefit Warrant Agreement.
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 the Charitable Benefit Warrant Agreement.
Prior to due presentment for registration of transfer hereof, the
Company and the Warrant Agent may deem and treat the Registered Holder as
the absolute owner hereof and of each Charitable Benefit Warrant
represented hereby (notwithstanding any notations of ownership or writing
hereon 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, except as provided in the Charitable Benefit
Warrant Agreement.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of Florida without giving effect to
conflicts of laws.
This Warrant Certificate is not valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed, manually or in facsimile by two of its officers
thereunto duly authorized and a facsimile of its corporate seal to be
imprinted hereon.
Dated:
IXION BIOTECHNOLOGY, INC.
By:___________________________________
Xxxxxx X. Xxxxxx
(SEAL) Chairman and Chief Executive Officer
Attest:
By:_________________________________
Xxxxxxx X. Xxxxxxxx
Assistant Secretary
COUNTERSIGNED:
SUNTRUST BANK, ATLANTA
As Warrant Agent
By:_____________________________________
Authorized Officer
SUBSCRIPTION FORM
THIS WARRANT MAY BE EXERCISED BY AN APPROVED
QUALIFIED CHARITABLE ORGANIZATION AT ANY TIME AFTER THE DATE
HEREOF UNTIL THE EXPIRATION DATE.
THIS WARRANT MAY BE EXERCISED BY ANY OTHER REGISTERED HOLDER
WHICH IS NOT AN APPROVED QUALIFIED CHARITABLE ORGANIZATION
ONLY BETWEEN DECEMBER 9, 2006, AND THE EXPIRATION DATE.
To Be Executed by the Registered Holder
in Order to Exercise Charitable Benefit Warrants
The undersigned Registered Holder hereby irrevocably elects to
exercise ________________________ Charitable Benefit Warrants represented
by this Warrant Certificate, and to purchase the securities issuable upon
the exercise of such Charitable Benefit Warrants, and requests that
certificates for such securities shall be issued in the name of
PLEASE INSERT TAX ID NUMBER
OR OTHER IDENTIFYING NUMBER
(please print or type name and address)
and be delivered to
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
(please print or type name and address)
and if such number of Charitable Benefit Warrants shall not be all the
Charitable Benefit Warrants evidenced by this Warrant Certificate, that a
new Warrant Certificate for the balance of such Charitable Benefit
Warrants be registered in the name of, and delivered to, the Registered
Holder at the address stated above.
ASSIGNMENT
THIS WARRANT MAY ONLY BE TRANSFERRED TO
AN APPROVED QUALIFIED CHARITABLE BENEFIT ORGANIZATION
To Be Executed by the Registered Holder
in Order to Assign Charitable Benefit Warrants
FOR VALUE RECEIVED,
, hereby sells,
assigns and transfers unto
the following Approved Qualified Charitable Benefit Organization
PLEASE INSERT TAX ID OR
OTHER IDENTIFYING NUMBER
(please print or type name and address)
of
the Charitable Benefit Warrants represented by this Warrant Certificate,
and hereby irrevocably
constitutes and appoints
Attorney to transfer this Warrant
Certificate on the books of the
Company, with full power of substitution in the premises.
Dated:______________________ X
Signature
Signature Guaranteed
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND
TO THE NAME AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER
AND MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
