EXHIBIT 4.3
WAIVER OF RIGHTS UNDER NOTE
The undersigned holders of Notes of Ceptor Corporation are party to a
certain Note Agreement (the "Note") and Note Purchase Agreement ("Purchase
Agreement") by and among Ceptor Corporation, Xechem International, Inc. and
certain other parties signatory to the Purchase Agreement dated as of the date
hereof. Terms not otherwise defined herein shall have the meanings ascribed to
such terms in the Purchase Agreement.
1. Each undersigned Holder agrees that in the event of any of Holder's
Note is converted into the Conversion Securities and not registered
within the time periods set forth under Section 6 of the Purchase
Agreement, Holder waives any and all right to require repayment by
Parent in cash of all or any portion of the Note by Parent. Holder
further agrees that this waiver shall be binding upon any successor
in interest to Holder's Note or any portion thereof or Parent's
guarantee of Ceptor's obligation under said Note, and Holder shall
notify each successor in interest of the same and obtain a signed
acknowledgement thereof; if for whatever reason a successor in
interest to Holder's Note or of Parent's guarantee thereof
nonetheless seeks or obtains payment in cash by Parent with respect
to said Note (other than by Parent's election), then Holder shall
indemnify and hold harmless Parent from and against any and all
liability Parent may incur as a result of such action.
2. Each undersigned Holder agrees that in the event of any of Holder's
Note is converted into the Conversion Securities as a result of
Parent's election to convert the Note into Conversion Securities,
and undersigned Holder thereupon pursuant to Section 3(d) of the
Note obtains the right to receive Conversion Securities, Holder
waives any and all right to require repayment by Parent in cash of
all or any portion of the Note by Parent. Holder further agrees that
this waiver shall be binding upon any successor in interest to
Holder's Note or any portion thereof or Parent's guarantee of
Ceptor's obligation under said Note, and Holder shall notify each
successor in interest of the same and obtain a signed
acknowledgement thereof; if for whatever reason a successor in
interest to Holder's Note or of Parent's guarantee thereof
nonetheless seeks or obtains payment in cash by Parent with respect
to said Note (other than by Parent's election), then Holder shall
indemnify and hold harmless Parent from and against any and all
liability Parent may incur as a result of such action.
3. Parent shall be permitted to make any election permitted in the
Purchase Agreement to be made by Parent individually with respect to
Holders separately, and shall not be required to elect with respect
to all Holders, generally.
4. Each undersigned Holder agrees that in the event such Holder
delivers a Conversion Notice in the manner and as described in the
Note following the default, such Holder shall look solely to the
Conversion Securities into which the Note is Convertible in the
event of any Default under the Note.
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5. Holder further acknowledges, and Parent and Xxxxxxx Xxxxxxx ("WP")
each agree, that Parent has entered into an agreement with WP
granting certain options to acquire shares of common stock of Parent
and agreed to make available to Parent pursuant thereto 43,000,000
shares of common stock of Parent. WP has agreed with respect to the
undersigned Holders and their successors or assigns, that in the
event that any Conversion Securities are required to be issued under
the Purchase Agreement or the Note, to make available to Parent by
way of setoff, such number of shares of the 43,000,000 shares of
common stock option of Parent subject to the foregoing agreement as
are necessary to satisfy the obligation of Parent to issue to the
undersigned Holders Conversion Securities (i.e., shares of common
stock of Parent) upon conversion of any Note held by any undersigned
Holder; each Holder acknowledges that Parent shall be under no
obligation to issue new shares to any undersigned Holder party to
this Waiver to satisfy any obligation with respect to the Note or
Parent's guarantee thereof other than those shares that are subject
to the setoff against WP options, and WP agrees to exercise such
Options in the event that Conversion Securities are required to be
delivered hereunder. Parent acknowledges that the option is fully
vested for these purposes.
6. Each undersigned Holder is also party to a Merger Agreement dated as
of December 23, 2003 by and between Parent, Ceptor Acquisition,
Inc., and Ceptor Corporation pursuant to which, in Section 1.7
thereof, the undersigned are entitled to payment of certain
Contingent Consideration upon the occurrence of certain Award
Events, as such terms are defined in the Merger Agreement. Each of
the undersigned represent and warrant that they have not pledged or
assigned their right to the Contingent Consideration to which they
may become entitled and hereby waive and release Parent from any and
all obligation with respect to payment of the Contingent
Consideration on the basis of the representation of Ceptor to
provide the undersigned with reasonably equivalent benefits,
provided, however, that such benefits shall be payable in shares of
the common stock of Ceptor, and that such release of Parent is not
conditioned upon Ceptor's provision of such replacement benefits or
that the undersigned shall be satisfied with the terms and
conditions or value thereof.
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HOLDERS:
Date:______ By:_____________________________________
Name:
Title:
Date:______ By:_____________________________________
Name:
Title:
AGREED WITH RESPECT TO PARAGRAPH 5 AND 6 ONLY:
_________________________________
Xxxxxxx Xxxxxxx
XECHEM INTERNATIONAL, INC.
By:_______________________________
Name:
Title:
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