OMNIBUS AGREEMENT
This OMNIBUS AGREEMENT dated September 13, 1999 is by and among
SmithKline Xxxxxxx Biologicals Manufacturing s.a., a Belgian corporation ("SB
Bio"),SmithKline Xxxxxxx plc, an English corporation ("SB plc"), Antex Biologics
Inc., a Delaware corporation formerly known as Microcarb Inc. ("Antex") and
Microcarb Human Vaccines Inc., a Delaware corporation ("MCHV"). This OMNIBUS
AGREEMENT shall be effective as of September 1, 1999 (the "Effective Date").
WITNESSETH:
WHEREAS, SmithKline Xxxxxxx Corporation, MCHV and Antex were
parties to a Research and Development, Research Support and License Agreement
dated May 6, 1996 (the "Original License Agreement") that was terminated
effective as of September 1, 1999;
WHEREAS, SB Bio, Antex and MCHV are parties to a Stock Purchase
Agreement dated May 6, 1996 (the "Stock Purchase Agreement") pursuant to which,
among other things, SB Bio acquired 262.5 shares of the common stock, par value
$.01 per share, of MCHV (the "MCHV Common Stock") and Antex acquired 737.5
shares of the MCHV Common Stock;
WHEREAS, SB Bio, Antex and MCHV are parties to an Exchange Option
Agreement dated May 6, 1996 (the "Exchange Option Agreement") pursuant to which,
among other things, Antex granted SB Bio an option to exchange its shares of the
MCHV
Common Stock for shares of the common stock, par value $.01 per share of Antex
(the "Common Stock");
WHEREAS, SB Bio, Antex and MCHV are parties to a Stockholders
Agreement dated May 6, 1996 (the "Stockholders Agreement") which provides, among
other things, for the corporate governance of MCHV;
WHEREAS, Antex and SB Bio are parties to a Warrant dated May 6,
1996 (the "Warrant") pursuant to which Antex granted SB Bio the right to
purchase certain shares of the Common Stock;
WHEREAS, Antex and SB Bio are parties to a Registration Rights
Agreement dated May 6, 1996 (the "Registration Rights Agreement") pursuant to
which Antex granted SB Bio certain rights to register certain shares of the
Common Stock owned by SB Bio following its exercise of the Warrant; and
WHEREAS, the parties hereto desire to (i) enter into a new
research and development, research support and license agreement (ii) terminate
the Stock Purchase Agreement (other than Sections 11.8, 11.9 and 11.10 thereof);
(iii) exchange 262.5 shares of MCHV Common Stock owned by SB Bio for 3,595,264
shares of the Common Stock pursuant to the Exchange Option Agreement and
terminate the Exchange Option Agreement; (iv) merge MCHV with and into Antex;
(v) terminate the Stockholders Agreement; (vi) amend and restate the Warrant;
(vii) amend and restate the Registration Rights Agreement; and (viii) provide SB
Bio with visitation rights for meetings of the Board of Directors of Antex.
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NOW, THEREFORE, in consideration of the premises and of the
representations, warranties and covenants which are to be made and performed by
the respective parties hereto, the parties hereto, intending to be legally
bound, agree as follows.
Article I
Entrance into New License Agreement
Section 1.1. Entrance into New License Agreement. Contemporaneous
with the execution and delivery of this Agreement by all of the parties hereto,
SB plc and Antex shall execute and deliver a new Research and Development,
Research Support and License Agreement (the "New License Agreement") in form of
Exhibit A attached hereto.
Article II
Termination of Stock Purchase Agreement
Section 2.1. Termination of Stock Purchase Agreement.
Contemporaneous with the execution and delivery of this Agreement by all of the
parties hereto, the Stock Purchase Agreement shall be terminated; provided,
however, that the provisions of Sections 11.8, 11.9 and 11.10 thereof are
restated herein and shall continue in full force and effect. Sections 11.8, 11.9
and 11.10 provide as follows:
Section 11.8 Standstill Obligations. For a period of ten (10) years
from May 6, 1996, except with the prior consent of Antex, which consent may not
be unreasonably withheld, SB Bio and its Affiliates, as defined below, shall
not, directly or indirectly, acquire
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any Equity Securities, as defined below (except by way of (i) stock splits,
stock dividends or other distributions or offerings made available to other
holders of Common Stock generally, or (ii) stock options, warrants or other
rights to purchase Common Stock approved by the Board of Directors of Antex) if
the effect of such acquisition would be to increase the total percentage
interest of SB Bio and its Affiliates, as defined below, in any class of the
Equity Securities to more than twenty-eight percent (28%) (the "Threshold
Percentage") of the then outstanding shares of any class of the Equity
Securities; provided that:
(a) SB Bio may acquire Equity Securities without regard to the
limitations set forth above if any of the following events shall occur:
(i) If a bona fide tender or exchange offer is made by
any Person, as defined below, or 13D Group, as defined
below (other than an Affiliate of SB Bio) to acquire shares of Common Stock
which, if added to the shares of Common Stock, if any, already owned by such
Person or 13D Group, would represent ownership of the then outstanding shares of
Common Stock greater than the Threshold Percentage; or
(ii)If it is publicly disclosed or SB Bio otherwise
learns that shares of Common Stock representing more than
twenty percent (20%) of the then outstanding shares of Common Stock have been
acquired in a nonpublic transaction or that a bona fide offer has been made to
acquire more than twenty percent (20%) of the then outstanding shares of Common
Stock in a nonpublic transaction by any Person or 13D Group (other than an
Affiliate of SB Bio).
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(b) SB Bio shall not be obligated to dispose of any shares of
Common Stock if the aggregate percentage ownership of SB Bio is increased as a
result of (i) a recapitalization of Antex, (ii) a repurchase of shares of Common
Stock by Antex or (iii) any other reason not in violation of this Agreement.
(c) If any event identified in Section 11.8(a)(i) or (ii)
occurs, SB Bio shall be permitted to take such action and make such offers as
may be considered to be of the same nature and type of action or offer and
directed to the same Person or Persons and for the same resulting number of
shares as that which is being taken by such Person or 13D Group. In proceeding
with any action or offer permitted under this Section 11.8, SB Bio shall be
permitted to offer more favorable terms such as price, cash versus securities or
other such terms as may be consistent with an offer of the same nature and type
of consideration as that which is being proposed by such Person or 13D Group.
(d) In the event that SB Bio or an Affiliate sells, assigns or
otherwise transfers five percent (5%) or more of the then outstanding shares of
Common Stock, or sells, assigns or otherwise transfers any shares of Common
Stock to a Person to whom SB Bio or an Affiliate has previously sold, assigned
or transferred any shares of Common Stock, or to any Person, so that upon such
sale, assignment or transfer, such Person owns in the aggregate five percent
(5%) or more of the then outstanding shares of Common Stock at a price per share
of Common Stock which is greater than the sum of (a) $.37 and (b) the product of
(i) the number of months from May 6, 1996 to the date of such sale, assignment
or other transfer pursuant to Section 11.9(c) and (ii) $.37 and (iii) .0167,
than
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the standstill obligations of this Section 11.8 shall be binding upon the
Person who purchases such shares. Except as set forth in the immediately
preceding sentence, the standstill obligations of this Section 11.8(d) shall not
be binding upon any Person who purchases shares of Common Stock from SB Bio or
an Affiliate.
Section 11.9. Transfer by SB Bio of Shares of Common Stock.
(a) SB Bio may sell, assign or otherwise transfer shares of
Common Stock from time to time owned by it to Affiliates without restriction.
Notwithstanding the preceding sentence, neither SB Bio nor its Affiliates may
sell, assign or otherwise transfer shares of Common Stock except in accordance
with the terms of this Agreement.
(b) Except as otherwise provided in Section 11.9(c), SB Bio may
sell, assign or otherwise transfer shares of Common Stock from time to time
owned by it which have been registered with the Securities and Exchange
Commission without restriction. Except as otherwise provided in Section 11.9(c),
SB Bio may sell, assign or otherwise transfer shares of Common Stock from time
to time owned by it which have not been registered with the Securities and
Exchange Commission without restriction other than the requirements of Rule 144
promulgated under the Securities Act of 1933, as from time to time in effect,
including the volume limitations under Rule 144 irrespective of whether Rule
144(k) applies.
(c) If at any time prior to May 6, 2006 SB Bio proposes to sell
five percent (5%) or more of the then outstanding shares of Common Stock, SB Bio
shall give written notice (the "Transfer Notice") to Antex specifying the number
of shares of Common Stock
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that SB Bio desires to transfer (the "Transfer Stock") and the price at which SB
Bio is offering to sell the Transfer Stock (the "Offering Price"). The Transfer
Notice shall constitute an offer to sell all, but not less than all, of the
Transfer Stock to Antex (or its designee) at the Offering Price with payment in
immediately available funds. Antex or its designee shall have a period of thirty
(30) calendar days to accept SB Bio's offer to sell all, but not less than all,
of the Transfer Stock and an additional period of sixty (60) calendar days after
the date that it accepts SB Bio's offer contained in the Transfer Notice to
complete the purchase of all, but not less than all, of the Transfer Stock at
the Offering Price. If Antex or its designee does not accept the offer contained
in the Transfer Notice without modification within the time period prescribed in
the preceding sentence, declines the offer contained in the Transfer Notice or
accepts the offer contained in the Transfer Notice without modification, but
fails to complete the purchase of all of the Transfer Stock within the time
period specified in the preceding sentence, SB Bio may sell any or all of the
Transfer Stock at an offering price which is not less than the Offering Price
for a period of one (1) year from the date of the Transfer Notice. If SB Bio has
not sold the Transfer Stock within such one (1) year period from the date of the
Transfer Notice, SB Bio must comply with the provisions of this Section 11.9(c)
prior to consummating any sale of such Transfer Stock. If SB Bio proposes to
sell any of the Transfer Stock which constitutes five percent (5%) or more of
the then outstanding shares of Common Stock within such one (1) year period for
a price which is less than the Offering Price specified in the Transfer Notice,
SB Bio must comply with the provisions of this Section 11.9(c) prior to
consummating any sale of such Transfer Stock.
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Section 11.10 Non-Solicitation of Employees. For a period
commencing on the date of this Agreement and ending two (2) years after the
expiration of the New License Agreement (the "Non-Solicitation Period"), SB Bio
and Antex each agree that neither they nor their Affiliates shall solicit,
without the prior consent of the other party, for employment any individual who
is employed by such other party during the Non-Solicitation Period so long as
such individual is employed by the other party.
Section 2.2 Definitions. For purposes of thisArticle II, the
following terms shall have the following meanings:
(i) "13D Group" means any group of Persons formed for the purpose
of acquiring, holding, voting or disposing of Common Stock (or any other class
of the Equity Securities) which would be required under the Exchange Act to file
a statement on Schedule 13D with the Securities and Exchange Commission as a
"person" within the meaning of Section 13(d)(3) of the Exchange Act if such
group beneficially owned sufficient securities to require such a filing under
the Exchange Act.
(ii)"Affiliate" of another Person means a Person which directly or
indirectly owns, is owned by or is under common ownership with another Person to
the extent of at least fifty percent (50%) of the equity (or such lesser
percentage which is the maximum allowed to be owned by a foreign corporation in
a particular jurisdiction) having the power to vote on or direct the affairs of
the entity and any Person actually controlled by, controlling or under common
control with another Person.
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(iii) "Equity Securities" shall mean the Common Stock and the
Preferred Stock, par value $.01 per share, of Antex.
(iv) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by the Securities
and Exchange Commission.
(v) "Person" means and includes an individual, a partnership, a
joint venture, a corporation or trust, an unincorporated organization, a group
or a government or other department or agency thereof.
Article III
Exchange of MCHV Common Stock for Common Stock;
Termination of Exchange Option and Stockholders Agreement;
Merger of MCHV with and into Antex
Section 3.1. Exchange of MCHV Common Stock for Common Stock.
Contemporaneous with the execution and delivery of this Agreement by all of the
parties hereto, (i) SB Bio shall deliver to Antex the original stock certificate
representing 262.5 shares of MCHV Common Stock registered in SB Bio's name and
(ii) Antex shall deliver to SB Bio a duly executed stock certificate
representing 3,595,264 shares of the Common Stock registered in SB Bio's name,
which exchange shall be completed pursuant to the Exchange Option Agreement.
Following the completion of such exchange, the Exchange Option Agreement shall
be terminated, cancelled and of no further force or effect.
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Section 3.2. Termination of the Stockholders Agreement.
Contemporaneous with the execution and delivery of this Agreement by all of the
parties hereto, the Stockholders Agreement shall be terminated, cancelled and of
no further force or effect.
Section 3.3. Merger of MCHV with and into Antex. Contemporaneous
with the execution and delivery of this Agreement by all of the parties hereto,
Antex and MCHV shall execute and file with the Secretary of State of Delaware a
Certificate of Merger in the form of Exhibit B attached hereto.
Article IV
Amendment of the Warrant
Section 4.1. Amendment of the Warrant. Contemporaneous with the
execution and delivery of this Agreement by all of the parties hereto, (i) SB
Bio shall deliver to Antex the original Warrant and (ii) Antex shall deliver to
SB Bio a duly executed Amended and Restated Warrant in the form of Exhibit C
attached hereto.
Article V
Amendment of the Registration Rights Agreement
Section 5.1. Amendment of the Registration Rights Agreement.
Contemporaneous with the execution and delivery of this Agreement by all of the
parties hereto, SB Bio and Antex shall execute and deliver to one another an
amended and restated Registration Rights Agreement in the form of Exhibit D
attached hereto.
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Article VI
Board Visitation Rights
Section 6.1. Board Visitation Rights. For so long as SB Bio or any
or its Affiliates own in the aggregate at least ten percent (10%) of the
outstanding shares of Common Stock (such outstanding shares calculated without
taking into account any shares of Common Stock issuable upon exercise or
conversion of any exercisable or convertible securities), Antex shall (i)
provide SB Bio notice of each meeting of Antex's Board of Directors (the
"Board") at the same time and in the same manner as it provides notice of such
meeting to any other member of the Board; (ii) provide SB Bio all written
materials provided to members of the Board in anticipation of, and at, each
meeting of the Board at the same time and in the same manner as it provides such
written materials to any other member of the Board; and (iii) allow one
representative of SB Bio (or any of its Affiliates)(the "SB Bio Representative")
to attend in a non-voting, observer capacity each meeting of the Board in person
or, to the extent the meeting of the Board is to be held by teleconference, to
attend such meeting by telephone conference call. Each SB Bio Representative
must be approved by the Board of Directors of Antex in advance of any meeting of
the Board, such approval not to be unreasonably withheld or delayed; provided,
however, that at each annual meeting of shareholders of Antex, the Board of
Directors shall pre-approve three (3) acceptable SB Bio Representatives who
shall be deemed approved by the Board of Directors until the next annual meeting
of shareholders of Antex. Until the next annual meeting of shareholders of Antex
(expected to be in June 2000), the approved SB Bio Representatives shall be
Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx and Xxxx Xxxxxxxxx, with
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Xxxxxx Xxxxxxx designated as the primary SB Bio Representative. All information
which is received by SB Bio in connection with the exercise of its rights under
this Section 6.1 shall be held by it in accordance with the confidentiality
provisions of the New License Agreement. Notwithstanding the foregoing, it is
understood and agreed that Antex reserves the right to withhold any information
and to exclude the SB Bio Representative from any meeting or portion thereof to
the extent access to such information or attendance at such meeting (i) would
adversely affect the attorney-client privilege between Antex and its counsel or
(ii) would violate an obligation of confidentiality to a third party.
Article VII
Representations and Warranties of Antex
Antex represents and warrants to SB Bio and SB plc, and SB Bio and
SB plc in agreeing to consummate the transactions contemplated by this Agreement
and each of the agreements attached as exhibits to this Agreement (collectively
the "Related Agreements") have relied upon such representations and warranties,
that, as of the signature date of this Agreement:
Section 7.1. Valid and Binding Agreements; Status of Common Stock.
Antex has all requisite corporate power and authority and has taken all
necessary corporate action to enter into this Agreement and the Related
Agreements to which it is a party and to consummate the transactions
contemplated hereby and thereby including without limitation the merger of MCHV
with and into Antex. The shares of the Common Stock delivered to SB Bio pursuant
to Section 3.1 are duly authorized, validly issued, fully paid
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and nonassessable shares of the Common Stock, free and clear of all liens,
security interests, pre-emptive rights, claims and other encumbrances. This
Agreement and the Related Agreements to which Antex is a party have been duly
and validly executed and delivered by Antex, and constitute valid and binding
agreements of Antex, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization or similar laws relating to creditors'
rights generally.
Section 7.2. Corporate Organization.
(a) Antex is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has the requisite
power and authority to carry on its business as currently conducted and to own
the properties and assets it now owns.
(b) Antex is duly licensed or qualified to do business as a
foreign corporation, and is in good standing, in Maryland. The nature of Antex's
business does not require it to be qualified to conduct business in any other
jurisdictions.
(c) The copies of the certificate of incorporation, and all
amendments thereto, of Antex as certified by the appropriate authorities of
Delaware, and the by-laws, as amended to date, of Antex, as certified by its
Secretary, which have heretofore been delivered to SB Bio, are true, complete
and correct copies of the articles of incorporation and by-laws of Antex, as
amended and in effect on the date hereof.
Section 7.3. Capitalization.
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(a) The authorized capital stock of Antex consists solely of
95,000,000 shares of the Common Stock, of which 25,863,726 shares are issued and
outstanding, and 5,000,000 shares of preferred stock, par value $.01 per share,
of which none are issued or outstanding. The issued and outstanding shares of
the Common Stock are duly authorized, validly issued, fully paid and
nonassessable, and none of the issued and outstanding shares of the Common Stock
were issued in violation of the preemptive rights of any person.
(b) Except as set forth in Section 7.3(a) and on Schedule 7.3, (i)
there are no shares of capital stock or other equity securities of Antex
outstanding, (ii) there are no outstanding subscriptions, options, warrants or
rights to purchase or acquire any equity securities of, (iii) no equity
securities of Antex are reserved for issuance for any purpose, and (iv) there
are no contracts, commitments, agreements, understandings, arrangements or
restrictions, whether written or oral, to which Antex is a party or by which
Antex is bound relating to any shares of the capital stock or other equity
securities of Antex, whether or not outstanding.
Section 7.4. Subsidiaries and Affiliates. Antex owns no capital
stock of any other person or has any other type of interest (whether ownership
or other) in any other person other than MCHV and Antex Pharma Inc. Antex is not
subject to any obligation or requirement to provide funds for, or to make any
investment (in the form of a loan, capital contribution or otherwise) to or in,
any person.
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Section 7.5. No Violation, Etc. Neither the execution and delivery
of this Agreement or the Related Agreements to which Antex is a party nor the
consummation of the transactions contemplated hereby or thereby nor compliance
by Antex with any of the provisions hereof or thereof will (i) violate or
conflict with any provisions of Antex's certificate of incorporation or by-laws,
(ii) violate or conflict with any statute, code, ordinance, rule, regulation,
judgment, order, writ, decree or injunction applicable to it, or (iii) violate,
or conflict with, or result in a breach in any provision of, or constitute a
default (or any event that, with or without due notice or lapse of time, or
both, would constitute such a default) under, or result in the termination of,
accelerate the performance required by, or result in the creation of any lien,
security interest, charge or other encumbrance upon the 3,595,264 shares of
Common Stock received pursuant to Section 3.1 or any of the properties or assets
of Antex under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation of which Antex is a party or by which it or any of its
assets is bound.
Section 7.6. Consents and Approvals. No permit, consent, approval
or authorization of, or declaration, filing or registration with, any
governmental authority is necessary in connection with the execution and
delivery by Antex of this Agreement or the Related Agreements to which it is a
party or the consummation by Antex of the transactions contemplated hereby or
thereby and no consent of any third party is required to consummate any of the
transactions contemplated hereby or thereby.
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Section 7.7. Disclosure. No representation or warranty made by or
on behalf of Antex contained in this Agreement or the Related Agreements to
which it is a party, and no statement contained in the Schedules hereto or
thereto or any certificate or other document furnished to SB Bio pursuant to the
provisions hereof or thereof, contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary in order
to make the statements herein or therein, in light of the circumstances under
which such statements are made, not misleading.
Section 7.8. Securities and Exchange Commission Documents. Antex
has timely filed with the Securities and Exchange Commission all material
filings (the "Commission Documents") required to be filed by it pursuant to the
Exchange Act and the Securities Act of 1933, and the Commission Documents
complied in all material respects with the Exchange Act and the Securities Act
of 1933, and none of the Commission Documents contain any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements contained therein not misleading. XxxxxXxxx 00, 0000, Xxxxx has
conducted its business only in the ordinary course and in substantially the same
manner as previously conducted and there has not been any material adverse
change in the business, financial condition or prospects of Antex.
Section 7.9. Authorization of Reserved Shares. On the date hereof,
the issuance, sale and delivery by Antex of the Common Stock issuable upon the
exercise of the Amended and Restated Warrant (the "Reserved Shares") have been
duly authorized by all requisite corporate action of Antex and have been duly
reserved for issuance, and when so
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issued, sold, paid for and delivered in accordance with the terms of the Amended
and Restated Warrant, the Reserved Shares will be validly issued, fully paid and
nonassessable, and not subject to any preemptive rights of any stockholder of
Antex.
Section 7.10. Litigation. There are no (a) legal, administrative
or arbitrable claims, actions, suits, proceedings, investigations or inquiries
pending or threatened by or pending or, to the knowledge of Antex, threatened
against Antex, and (b) judgments, decrees, arbitration awards, agreements or
orders binding upon Antex. No material claims have been asserted against Antex
since its incorporation on September 15, 1992. Antex is not aware and has no
reason to be aware of any basis for any claim, action, suit, proceeding,
investigation or inquiry.
Section 7.11 Intellectual Property. (a) With the exception of U.S.
Patent No. 5,552,144 and all corresponding foreign patents and patent
applications corresponding hereto and all continuations and divisions thereof
(the "144Patent") which is co-owned by Antex and the United States of America
and certain march-in rights of the United States of America, Department of the
Navy with respect to Campylobacter, and with the exception of rights granted to
Pasteur Merieux Serums et Vaccines S.A. ("Pasteur") pursuant to that certain
license agreement dated December 1, 1994, Antex owns and possesses all right,
title and interest in and to or will have license rights in the Intellectual
Property (as such term in defined in the New License Agreement). With the
exception of the rights granted to Pasteur, the march-in rights of the United
States of America, Department of the Navy, and the rights owned by the United
States of America with respect to the 144 Patent, Antex has
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the sole and exclusive right to use and license other persons to use the
Intellectual Property and none of the past or present employees, officers,
directors or shareholders of Antex, or any other Person, has any rights with
respect thereto. The consummation of the transactions contemplated hereby will
not alter or impair any rights to use and license others to use the Intellectual
Property. Antex has not received any notice or claim of infringement or any
claim challenging or questioning the validity or effectiveness of Antex's rights
in or to any of the items of Intellectual Property, and Antex is aware of no
valid basis for any such claim. Except as noted above, Antex is not liable, nor
has it made any contract or arrangement whereby it may become liable, to any
Person for any royalty or other compensation for use of any of the items of
Intellectual Property. Following consummation of the Merger of MCHV with and
into Antex, Antex will possess all right, title and interest in all Intellectual
Property that was at any time owned by MCHV. When executed and delivered, the
New License Agreement will effectively grant the license and other rights which
are expressly granted to SB plc therein.
Article VIII
Representations and Warranties of SB Bio and SB plc
SB Bio and SB plc represent and warrant to Antex, and Antex in
agreeing to consummate the transactions contemplated by this Agreement and the
Related Agreements has relied upon such representations and warranties, that, as
of the signature date of this Agreement:
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Section 8.1. Organization, Standing and Power. SB Bio is a
corporation duly organized under the laws of Belgium and has the requisite
corporate power and authority to carry on its business as now being conducted
and to own the properties and assets it presently owns. SB plc is a corporation
duly organization under the laws of the United Kingdom and has the requisite
corporate power and authority to carry on its business as now being conducted
and to own the properties and assets it presently owns.
Section 8.2. Valid and Binding Agreements. All necessary corporate
action on the part of SB Bio and SB plc has been taken to authorize the
execution and delivery of this Agreement and the Related Agreements to which
they are a party, the performance of their obligations hereunder and thereunder
and the consummation of the transactions contemplated hereby and thereby. This
Agreement and the Related Agreements to which they are a party have been duly
and validly executed and delivered by SB Bio and SB plc and constitute valid and
binding agreements of SB Bio and SB plc, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization or similar laws or
equitable principles relating to creditors' rights generally.
Section 8.3. No Violation. Neither the execution and delivery of
this Agreement or the Related Agreements to which SB Bio and SB plc are a party
nor the consummation of the transactions contemplated hereby or thereby nor
compliance by SB Bio and SB plc with any of the provisions hereof or thereof
will (a) violate or conflict with the organizational documents of SB Bio and SB
plc, or (b) violate or conflict with any statute, code, ordinance, rule,
regulation, judgment, order, writ, decree or injunction
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applicable to SB Bio and SB plc, or (c) violate or conflict with, or result in a
breach of any of the provisions of, or constitute a default (or any event which,
with or without due notice or lapse of time, or both, would constitute such a
default) under, or result in the termination of, or accelerate the performance
required by, or result in the creation of any lien, security interest, charge or
other encumbrance upon the stock or any of the properties or assets of SB Bio or
SB plc under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or other
instrument of which SB Bio or SB plc is a party or by which they or any of their
assets are bound.
Section 8.4. Consents and Approvals. No permit, consent, approval
or authorization of, or declaration, filing or registration with, any
governmental authority is necessary in connection with the execution and
delivery of this Agreement or the Related Agreements to which they are a party
by SB Bio or SB plc or the consummation by SB Bio or SB plc of the transactions
contemplated hereby or thereby and no consent of any third party is required to
consummate any of the transactions contemplated hereby or thereby.
Section 8.5. Investor Status. SB Bio is an "accredited investor"
as such term is defined in any of paragraphs (1) through (3), (7), (8) or Rule
501(a) under the Securities Act of 1933, as amended.
Article IX
Miscellaneous
Section 9.1. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and may be delivered personally
(including by courier or
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nationally recognized courier), by first class registered or certified mail
(return receipt requested), postage prepaid, or by facsimile (with written
confirmation of receipt) addressed to the following addresses or facsimile
numbers or to other such addresses or facsimile numbers as may be furnished in
writing by one party to the others:
(a) if to Antex:
Antex Biologics Inc.
000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000, XXX
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000, XXX
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to SB Bio:
SmithKline Xxxxxxx Biologicals Manufacturing x.x.
Xxx xx X'Xxxxxxxx 00
X-0000 Xxxxxxxxx
Xxxxxxx
Attention: President, General Manager
Facsimile: 011-32-2-656-8026
if to SB plc:
SmithKline Xxxxxxx plc
c/o SmithKline Xxxxxxx Corporation
Xxx Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000, XXX
Attention: Xxxxx X. Xxxx III, Esq.
Facsimile: (000) 000-0000
21
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000, XXX
Attention: Xxxx Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Any such notice or communication shall be presumed to have been received (i) in
the case of personal delivery or facsimile transmission, on the date of such
delivery and (ii) in the case of nationally-recognized courier, on the business
day after the date sent.
Section 9.2. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Maryland, without
regard to such jurisdiction's conflicts of laws principles.
Section 9.3. Modification; Waiver. This Agreement shall not be
altered or otherwise amended except pursuant to an instrument in writing signed
by SB Bio, SB plc and Antex. Any party may waive any misrepresentation by any
other party, or any breach of warranty by, or failure to perform any covenant,
obligation or agreement of, any other party, provided that mere inaction or
failure to exercise any right, remedy or option under this Agreement, or
delaying in exercising the same, will not operate as nor shall be construed as a
waiver, and no waiver will be effective unless set forth in writing and only to
the extent specifically stated therein.
Section 9.4. Entire Agreement. This Agreement, the Related
Agreements, the Schedules and Exhibits hereto and any other agreements or
certificates delivered pursuant
22
hereto constitute the entire agreement of the parties hereto with respect to the
matters contemplated hereby and supersede all previous written or oral
negotiations, commitments, representations and agreements.
Section 9.5. Assignment; Successors and Assigns. This Agreement
may not be assigned by any party, without the prior written consent of the other
parties; provided, however, that SB Bio and SB plc may each assign this
Agreement and any of their rights hereunder to any of their affiliates or to any
corporation with which it may merge or consolidate or sell all or substantially
all of their respective assets without any prior consent; and Antex may assign
this Agreement to any corporation with which Antex may merge, consolidate or
sell all or substantially all of its assets without any prior consent. All
covenants, representations, warranties and agreements of the parties contained
herein shall be binding upon and inure to the benefit of their respective
successors and permitted assigns.
Section 9.6. Public Announcements. No public announcement of the
transactions contemplated hereby or of the terms hereof at any time shall be
made by any party without the prior written consent of the other parties, not to
be unreasonably withheld or delayed, except to the extent as may be required by
law in the opinion of counsel to SB plc or counsel to Antex and in the latter
case, only upon at least five (5) days prior notification of the proposed
announcement to the other party.
Section 9.7. Expenses. The parties shall each pay all costs and
expenses incurred by them or on their behalf in connection with the preparation
of this Agreement and the
23
transactions contemplated hereby, including without limitation, fees and
expenses of their own attorneys, accountants and advisors.
Section 9.8. Severability. The provisions of this Agreement are
severable, and in the event that any one or more provisions are deemed illegal
or unenforceable, the remaining provisions shall remain in full force and
effect.
Section 9.9. No Third Party Beneficiary. This Agreement is
intended and agreed to be solely for the benefit of the parties hereto, and no
third party shall accrue any benefit, claim or right of any kind whatsoever
pursuant to, under, by or through this Agreement.
Section 9.10. Opinion of Counsel to Antex. Within five (5)
business days of the execution and delivery of this Agreement by all of the
parties hereto, Xxxxxxxxx & Xxxxxxx, counsel to Antex, shall deliver its opinion
addressed to SB Bio concerning (i) the transactions contemplated by this
Agreement and (ii) the issuance of shares of the Common Stock and the Amended
and Restated Warrant to SB Bio, in the form set forth on Exhibit E attached
hereto.
Section 9.11. Execution in Counterpart. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which shall constitute one and the same instrument.
[The balance of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement on
the date first above written.
MicroCarb Human Vaccines Inc.
By: /s/ X.X. Xxxxxxxx
------------------------------------
Name: X.X. Xxxxxxxx
Title: President
Antex Biologics Inc.
By: /s/ X.X. Xxxxxxxx
------------------------------------
Name: X.X. Xxxxxxxx
Title: Chairman & CEO
SmithKline Xxxxxxx Biologicals
Manufacturing s.a.
By: /s/ Jean Stephenne
------------------------------------
Name: Jean Stephenne
Title: President, General Manager
SmithKline Xxxxxxx plc
By: /s/ Jean Stephenne
------------------------------------
Name: Jean Stephenne
Title: Attorney-In-Fact
