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EXHIBIT 10.6
AGREEMENT AND PLAN OF REORGANIZATION
among
PERIMMUNE HOLDINGS, INC.
INTRACEL CORPORATION
and
INTRACEL ACQUISITION SUB, INC.
DATED AS OF NOVEMBER 26, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions and Usage ......................................................8
ARTICLE II
THE MERGER
Section 2.01 The Merger ................................................................12
Section 2.02 Effects of the Merger .....................................................12
Section 2.03 Certificate of Incorporation and Bylaws ...................................12
Section 2.04 Directors and Officers ....................................................12
Section 2.05 Conversion ................................................................12
Section 2.06 Tax Consequences ..........................................................14
ARTICLE III
EXCHANGE OF SHARES
Section 3.01 Exchange of Certificates ..................................................14
Section 3.02 Stock Options .............................................................16
Section 3.03 Dissenting Shares .........................................................16
Section 3.04 Adjustments ...............................................................17
Section 3.05 Lost Certificates .........................................................17
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 4.01 Organization ..............................................................17
Section 4.02 Capitalization ............................................................17
Section 4.03 Authority Relative to This Agreement ......................................18
Section 4.04 Consents and Approvals; No Violations .....................................19
Section 4.05 Absence of Certain Changes ................................................19
Section 4.06 Financial Statements ......................................................20
Section 4.07 No Undisclosed Liabilities ................................................20
Section 4.08 No Default ................................................................20
Section 4.09 Litigation ................................................................20
Section 4.10 Compliance with Applicable Law ............................................20
Section 4.11 Taxes .....................................................................21
Section 4.12 ERISA .....................................................................21
Section 4.13 Title to Property .........................................................22
Section 4.14 Intellectual Property .....................................................23
Section 4.15 Interested Party Transactions .............................................24
Section 4.16 Insurance .................................................................24
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Section 4.17 Products ..................................................................25
Section 4.18 Change in Control .........................................................25
Section 4.19 Environmental, Health, and Safety .........................................25
Section 4.20 Employment and Labor Matters ..............................................26
Section 4.21 Contracts .................................................................27
Section 4.22 Predominant Customers .....................................................27
Section 4.23 Change in Customers or Vendors ............................................27
Section 4.24 Notes and Accounts Receivable .............................................27
Section 4.25 Questionable Payments .....................................................27
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF INTRACEL
PARENT AND INTRACEL ACQUISITION SUB
Section 5.01 Organization ..............................................................28
Section 5.02 Capitalization ............................................................28
Section 5.03 Authority Relative to this Agreement ......................................29
Section 5.04 Consents and Approvals; No Violations .....................................30
Section 5.05 Financial Statements ......................................................30
Section 5.06 Absence of Certain Changes ................................................30
Section 5.07 No Undisclosed Liabilities ................................................31
Section 5.08 No Default ................................................................31
Section 5.09 Litigation ................................................................31
Section 5.10 Compliance with Applicable Law ............................................31
Section 5.11 Taxes .....................................................................32
Section 5.12 ERISA .....................................................................32
Section 5.13 Title to Property .........................................................33
Section 5.14 Intellectual Property .....................................................33
Section 5.15 Interested Party Transactions .............................................35
Section 5.16 Insurance .................................................................35
Section 5.17 Products ..................................................................35
Section 5.18 Interim Operations of Intracel Acquisition Sub ............................36
Section 5.19 Change in Control .........................................................36
Section 5.20 Environmental, Health, and Safety .........................................36
Section 5.21 Employment and Labor Matters ..............................................37
Section 5.22 Contracts .................................................................38
Section 5.23 Predominant Customers .....................................................38
Section 5.24 Change in Customers or Vendors ............................................38
Section 5.25 Notes and Accounts Receivable .............................................38
Section 5.26 Questionable Payments .....................................................38
ARTICLE VI
COVENANTS
Section 6.01 Covenants of the Company and Intracel Parent ..............................39
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Section 6.02 Additional Covenants of the Company and Intracel Parent ...................41
Section 6.03 No Solicitation ...........................................................42
Section 6.04 Access to Information .....................................................43
Section 6.05 Stockholders Meetings .....................................................43
Section 6.06 Brokers or Finders ........................................................43
Section 6.07 Consents, Approvals and Filings ...........................................43
ARTICLE VII
CONDITIONS
Section 7.01 Conditions to Each Party's Obligation to Effect the Merger ................44
Section 7.02 Conditions of Obligations of Intracel Parent and Intracel Acquisition Sub..45
Section 7.03 Conditions of Obligations of the Company ..................................47
ARTICLE VIII
TERMINATION AND AMENDMENT
Section 8.01 Termination ...............................................................50
Section 8.02 Effect of Termination .....................................................50
Section 8.03 Amendment .................................................................50
Section 8.04 Extension; Waiver .........................................................51
ARTICLE IX
POST CLOSING COVENANTS
ARTICLE X
MISCELLANEOUS
Section 10.01 Nonsurvival of Representations and Warranties .............................51
Section 10.02 Notices ...................................................................51
Section 10.03 Descriptive Headings ......................................................52
Section 10.04 Counterparts ..............................................................52
Section 10.05 Entire Agreement; Assignment ..............................................52
Section 10.06 Governing Law .............................................................52
Section 10.07 Specific Performance ......................................................52
Section 10.08 Expenses ..................................................................53
Section 10.09 Publicity .................................................................53
Section 10.10 Parties in Interest .......................................................53
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EXHIBITS
Exhibit 2.03(a) Amended and Restated Certificate of Incorporation of Surviving Corporation
Exhibit 2.03(b) Amended and Restated Certificate of Incorporation of Intracel Parent
Exhibit 2.03(c) Amended and Restated Bylaws of Surviving Corporation
Exhibit 2.03(d) Amended and Restated Bylaws of Intracel Parent
Exhibit B Xxxxx Letter
Exhibit C Shareholders Agreement
Exhibit D Registration Rights Agreements
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COMPANY DISCLOSURE SCHEDULES
Section 4.02 Capitalization of Company and Subsidiaries
Section 4.04 Consents and Approvals; No Violations
Section 4.05 Absence of Certain Changes
Section 4.07 No Undisclosed Liabilities
Section 4.08 No Default
Section 4.09 Litigation
Section 4.11 Taxes
Section 4.12 ERISA
Section 4.13 Title to Property
Section 4.14 Intellectual Property
Section 4.15 Interested Party Transactions
Section 4.17 Products
Section 4.18 Change in Control
Section 4.20 Employment and Labor Matters
Section 4.21 Contracts
Section 4.22 Predominant Customers
Section 4.23 Change in Customers or Vendors
Section 6.01 Covenants of the Company and Intracel Parent
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INTRACEL PARENT DISCLOSURE SCHEDULE
Section 2.04 List of Directors and Officers of Intracel Acquisition Sub, the Surviving
Corporation and Intracel
Section 5.02(a) Capitalization
Section 5.02(b) Subsidiaries of Intracel Parent
Section 5.04 Consents and Approvals; No Violations
Section 5.05 Financial Statements
Section 5.06 Absence of Certain Changes
Section 5.07 No Undisclosed Liabilities
Section 5.08 No Default
Section 5.09 Litigation
Section 5.11 Taxes
Section 5.12(a) ERISA
Section 5.12(c) Unfunded ERISA Benefit Obligations
Section 5.12(d) Obligations for Retiree and Life Benefits
Section 5.13 Title to Property
Section 5.14(b) Intracel Parent Intellectual Property and Jurisdictions
Section 5.14(c) Non-Ordinary Intellectual Property Information
Section 5.14(d) Breach of Intellectual Property Agreements
Section 5.14(e) Intellectual Property Litigation
Section 5.14(f) Intracel Parent Persons Who Have Executed Intellectual Property Protection
and Assignment Agreements
Section 5.14(g) Undisclosed Uses of Confidential Information
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Section 5.15 Interested Party Transactions
Section 5.17 Products
Section 5.19 Change in Control
Section 5.21 Employment and Labor Matters
Section 5.22 Contracts
Section 5.23 Predominant Customers
Section 5.24 Change in Customers or Vendors
Section 6.01 Covenants of the Company and Intracel Parent
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AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, dated as of November 26, 1997, by and
among PerImmune Holdings, Inc., a Delaware corporation (the "COMPANY"), Intracel
Corporation, a Delaware corporation ("INTRACEL PARENT"), and Intracel
Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Intracel Parent ("INTRACEL ACQUISITION SUB").
RECITALS
A. The Boards of Directors of Intracel Parent, the Company and Intracel
Acquisition Sub believe it is in the best interests of their respective
companies and the shareholders of their respective companies that the Company
and Intracel Acquisition Sub combine into a single company through the statutory
merger of Intracel Acquisition Sub with and into the Company (the "MERGER") and,
in furtherance thereof, have approved the Merger.
B. Pursuant to the Merger, among other things, the outstanding shares of
the Company capital stock, shall be converted into shares of Intracel Parent
capital stock, at the rate set forth herein.
C. Intracel Parent and Intracel Acquisition Sub desire to make certain
representations and warranties and other agreements in connection with the
Merger.
D. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "CODE"), and to cause the Merger to qualify as a
reorganization under the provisions of Section 368(a) of the Code.
NOW, THEREFORE, in consideration of the covenants and representations set
forth herein, and for other good and valuable consideration, the parties agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions and Usage. (a) For purposes of this Agreement:
"AFFILIATE" means, with respect to any person, any other person directly or
indirectly controlling, controlled by, or under common control with such person.
"ENVIRONMENTAL, HEALTH, AND SAFETY LAWS" means the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Resource
Conservation and Recovery Act of 1976, and the Occupational Safety and Health
Act of 1970, each as amended, together with all other laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and all
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agencies thereof) concerning pollution or protection of the environment, public
health and safety, or employee health and safety, including laws relating to
emissions, discharges, releases, or threatened releases of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes
into ambient air, surface water, ground water, or lands or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or waste.
"FDA" means the United States Food and Drug Administration and any
successor agency thereto.
"KNOWLEDGE" of any person which is not an individual means the knowledge of
such person's officers after reasonable inquiry.
"MATERIAL ADVERSE EFFECT" means, when used in connection with Intracel
Parent or the Company, any change, effect, event, occurrence or state of facts
that has had, or would reasonably be expected to have, a material adverse effect
on the business, operations, assets, liabilities, condition (financial or
otherwise) or results of operations of Intracel Parent and its subsidiaries,
taken as a whole, or the Company and its subsidiaries, taken as a whole as the
case may be.
"OFFICER" means, in the case of Intracel Parent or the Company, any
executive officer of Intracel Parent or the Company, as applicable, within the
meaning of Rule 3b-9 of the 1934 Act.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor statute thereto.
"SUBSIDIARY" means, with respect to any person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at any time directly or indirectly owned by such persons.
A reference in this Agreement to any statute shall be to such statute as
amended from time to time, and to the rules and regulations promulgated
thereunder.
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(b) Each of the following terms is defined in the Sections set forth opposite
such term:
B-1 Conversion Ratio............................. 2.05(a)
B-2 Conversion Ratio............................. 2.05(a)
Certificates..................................... 3.01(b)
Certificate of Merger............................ 2.01
Closing Date..................................... 2.01
Common Conversion Ratio.......................... 2.05(a)
Company Balance Sheet............................ 4.06
Company Balance Sheet Date....................... 4.06
Company Benefit Plans............................ 4.12(a)
Company Common Stock............................. 2.05(a)
Company Disclosure Schedule...................... 4.02(a)
Company Dollar Threshold......................... 4.22
Company Financial Reports........................ 4.06
Company Intellectual Property.................... 4.14(a)
Company Permits.................................. 4.10
Company Primary Opinion.......................... 7.02(e)
Company Product.................................. 4.17(a)
Company Series A Preferred....................... 2.05(a)
Company Series B Preferred....................... 2.05(a)
Company Shares................................... 2.05(a)
Company Stock Option............................. 6.02(b)
Company Stock Option Plan........................ 3.02
Effective Time .................................. 2.01
ERISA ........................................... 4.12(a)
ERISA Affiliate.................................. 4.12(a)
Exchange Agent................................... 3.01(a)
GCL.............................................. 2.01
Governmental Entity.............................. 4.04
Incentive Stock Options.......................... 6.02(a)
Intracel Parent B-1 Preferred.................... 2.05(a)
Intracel Parent B-2 Preferred.................... 2.05(a)
Intracel Parent Balance Sheet.................... 5.05
Intracel Parent Balance Sheet Date 5.05
Intracel Parent Benefit Plans.................... 5.12
Intracel Parent Common Stock..................... 2.05(a)
Intracel Parent Disclosure Schedule 5.02(a)
Intracel Parent Financial Reports................ 5.05
Intracel Parent Permits.......................... 5.10
Intracel Parent Product.......................... 5.17(a)
Intracel Parent Shares........................... 2.05(a)
Intracel Parent Stock Plans...................... 5.02(a)
Intracel Primary Opinion......................... 7.03(e)
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IRS.............................................. 4.12(a)
Merger Consideration ............................ 2.05(d)
Surviving Corporation ........................... 2.01
Taxes............................................ 4.11
Third Party Intellectual Property................ 4.14(b)
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ARTICLE II
THE MERGER
Section 2.01 The Merger. Upon the terms and subject to the conditions hereof, as
promptly as practicable following the satisfaction or waiver of the conditions
set forth in Article VII hereof, but in no event later than two business days
thereafter, unless the parties shall otherwise agree, a certificate of merger
(the "CERTIFICATE OF MERGER") providing for the Merger shall be duly prepared,
executed and filed by the Company, as the surviving corporation (sometimes the
"SURVIVING CORPORATION"), in accordance with the relevant provisions of the
Delaware General Corporation Law (the "GCL") and the parties hereto shall take
any other actions required by law to make the Merger effective.
Following the Merger, the Company, with all its purposes, objects,
rights, privileges, powers and franchises, shall continue, and Intracel
Acquisition Sub shall cease to exist. The time the Merger becomes effective is
referred to herein as the "EFFECTIVE TIME" and the date on which the Effective
Time occurs is referred to as the "CLOSING DATE." Prior to the filing of the
Certificate of Merger, a closing shall take place at the offices of Xxxxxxxx &
Xxxxxxxx LLP, 1290 Avenue of the Americas, Xxx Xxxx Xxxx, Xxx Xxxx 00000.
Section 2.02 Effects of the Merger. The Merger shall have the effects set forth
in the GCL, this Agreement and the Certificate of Merger. As of the Effective
Time, the Surviving Corporation shall be a wholly owned subsidiary of Intracel
Parent.
Section 2.03 Certificate of Incorporation and Bylaws. The Certificate of
Incorporation of the Surviving Corporation and Intracel Parent shall be amended
and restated as set forth in Exhibit 2.03(a) and Exhibit 2.03(b), respectively.
The Bylaws of the Surviving Corporation and Intracel Parent shall be amended and
restated as set forth in Exhibit 2.03(c) and Exhibit 2.03(d), respectively.
Section 2.04 Directors and Officers. The directors and officers of Intracel
Acquisition Sub immediately prior to the Effective Time shall be the initial
directors and officers of the Surviving Corporation until their successors shall
have been duly elected or appointed and shall have been qualified or until their
earlier death, resignation or removal in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation. Such directors and
officers, together with the officers of Intracel Parent immediately subsequent
to the Effective Time, are set forth in Section 2.04 hereto.
Section 2.05 Conversion. At the Effective Time, by virtue of the Merger and
without any action on the part of Intracel Parent, Intracel Acquisition Sub, the
Company or the holder of any of the following securities:
(a) Subject to Section 3.01(e), each issued and outstanding share of (i)
common stock, par value $.01 per share, of the Company ("COMPANY COMMON
STOCK") (other than shares to be cancelled in accordance with Section
2.05(b) hereof) shall be converted into the
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right to receive a number of fully paid and nonassessable shares of
Intracel Parent common stock, par value $.0001 per share ("INTRACEL
PARENT COMMON STOCK") equal to the Common Conversion Ratio (as
hereinafter defined), (ii) Series preferred stock, par value $.01 per
share, of the Company ("COMPANY SERIES A PREFERRED") (other than shares
to be cancelled in accordance with Section 2.05(b) hereof) shall be
converted into the right to receive a number of fully paid and
nonassessable shares of Intracel Parent preferred stock, Class B-1, par
value $.0001 per share ("INTRACEL PARENT B-1 PREFERRED") equal to the
B-1 Conversion Ratio (as hereinafter defined); and (iii) Series B
preferred stock, par value $.01 per share, of the Company ("COMPANY
SERIES B PREFERRED" and, together with the Company Common Stock and
Company Series A Preferred, the "COMPANY SHARES") (other than shares to
be cancelled in accordance with Section 2.05(b) hereof) shall be
converted into the right to receive a number of fully paid and
nonassessable shares of Intracel Parent preferred stock, Class B-2, par
value $.0001 per share ("INTRACEL PARENT B-2 PREFERRED" and, together
with the Intracel Parent Common Stock and Intracel Parent B-1 Preferred,
"INTRACEL PARENT SHARES") equal to the B-2 Conversion Ratio (as
hereinafter defined). For purposes of the foregoing, the (i) "COMMON
CONVERSION RATIO" shall mean an amount equal to the quotient of: (A) the
total number of outstanding shares of Intracel Parent Common Stock on a
fully diluted basis immediately prior to the Effective Time, divided by
(B) the total number of outstanding shares of Company Common Stock on a
fully diluted basis immediately prior to the Effective Time, (ii) "B-1
CONVERSION RATIO" shall mean 1 and (iii) "B-2 CONVERSION RATIO" shall
mean 1. For the purposes of determining "fully diluted basis" pursuant
to the immediately preceding sentence and Section 3.01(e), all shares of
Intracel Parent Common Stock or Company Common Stock, as the case may
be, issuable upon exercise of options or warrants, or upon conversion,
exchange or exercise of other securities or other rights outstanding,
and all payment in kind dividends for any series of capital stock which
have not been paid but have accrued through the date, immediately prior
to the Effective Time (regardless of whether then exercisable,
convertible or exchangeable and including shares issuable upon exercise
of outstanding options, notwithstanding that such options are being
assumed or converted pursuant to Section 6.02(b) hereof) shall be deemed
outstanding.
(b) All Company Shares held in the treasury of the Company and all Company
Shares held by Intracel Parent or any subsidiary of Intracel Parent
shall be cancelled and retired and cease to exist.
(c) Each issued and outstanding share of the capital stock of Intracel
Acquisition Sub shall be converted into and become one fully paid and
nonassessable share of common stock of the Surviving Corporation.
(d) The consideration to be delivered in exchange for each security, as set
forth in this Section 2.05, is hereafter referred to as the "MERGER
CONSIDERATION."
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Section 2.06 Tax Consequences. It is intended that the Merger shall constitute a
reorganization within the meaning of Section 368(a) of the Code, and that this
Agreement shall constitute a "plan of reorganization" for the purposes of
Section 368 of the Code.
ARTICLE III
EXCHANGE OF SHARES
Section 3.01 Exchange of Certificates.
(a) At the Effective Time, Intracel Parent shall make available to Perkins,
Coie, as the exchange agent (the "EXCHANGE AGENT"), certificates
representing the aggregate number of Intracel Parent Shares issuable
pursuant to Section 2.05 in exchange for Company Shares, and the
Exchange Agent shall hold such certificates in trust for the benefit of
the holders of Company Shares for exchange in accordance with this
Article III.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each
holder of record of a certificate or certificates which immediately
prior to the Effective Time represented Company Shares (the
"CERTIFICATES") a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the
Exchange Agent and shall be in such form and have such other provisions
as Intracel Parent and the Company may reasonably specify) and
instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing Intracel Parent Shares and any
dividends payable on such Intracel Parent Shares as provided in Section
3.01(c) and cash in lieu of fractional shares as provided in clause (e)
of this Section 3.01, if applicable. Upon surrender of a Certificate to
the Exchange Agent, together with such letter of transmittal, duly
executed, the holder of such Certificate shall be entitled to receive in
exchange therefor the certificates representing whole Intracel Parent
Shares and cash in lieu of fractional shares as provided in clause (e)
of this Section 3.01, if applicable, which such holder has the right to
receive pursuant to the provisions of this Agreement, and the
Certificate so surrendered shall forthwith be cancelled. If a
certificate representing Intracel Parent Shares is to be issued in a
name other than that in which the Certificate surrendered in exchange
therefor is registered, it shall be a condition to the issuance that
such Certificate be properly endorsed (or accompanied by an appropriate
instrument of transfer) and accompanied by evidence that any applicable
stock transfer taxes have been paid or provided for. Until surrendered
as contemplated by this Section 3.01, each Certificate shall be deemed
at any time after the Effective Time to represent only the right to
receive the consideration specified herein; provided that in the event
any holder exercises his appraisal rights, if any, under Section 262 of
the GCL and becomes entitled to receive the appraised value of his
Company Shares instead of the Intracel Parent Shares into which such
Company Shares shall have been converted, Intracel Parent shall pay such
holder the appraised value of such Company Shares, together with any
other sums which it may owe him as a result of the appraisal proceeding,
upon his surrender to the Exchange Agent of the certificate or
certificates which immediately prior to the Effective Time represented
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the shares so appraised, and the Exchange Agent shall not thereafter be
required to deliver to such holder any Intracel Parent Shares.
Any certificates representing Intracel Parent Shares which remain unclaimed
by the holders of Certificates for twelve months after the Effective Time shall
remain outstanding and shall be held by Intracel Parent, and any holders of
Certificates who have not surrendered their Certificates in compliance with
Section 3.01 shall thereafter receive delivery (subject to abandoned property,
escheat or other similar laws) of the Intracel Parent Shares issuable upon the
conversion of their Certificates and any dividends payable on such Intracel
Parent Shares, without any interest thereon only after delivering their
Certificates and letters of transmittal to Intracel Parent, and otherwise
complying with Section 3.01(b).
(c) No dividends or other distributions declared or made after the Effective
Time with respect to Intracel Parent Shares with a record date after the
Effective Time shall be paid to the holder of any unsurrendered
Certificate with respect to the Intracel Parent Shares represented
thereby and no cash payment in lieu of fractional shares shall be paid
to any such holder pursuant to Section 3.01(e) until the holder of
record of such Certificate shall surrender such Certificate. Following
surrender of any such Certificate, there shall be paid to the record
holder of the certificates representing whole Intracel Parent Shares
issued in exchange therefor, without interest, (i) at the time of such
surrender, the amount of any cash payable in lieu of a fractional
Intracel Parent Share to which such holder is entitled pursuant to
Section 3.01(e) and the amount of dividends or other distributions with
a record date after the Effective Time theretofore paid with respect to
such whole Intracel Parent Shares and (ii) at the appropriate payment
date, the amount of dividends or other distributions with a record date
after the Effective Time but prior to surrender and a payment date
subsequent to surrender payable with respect to such whole Intracel
Parent Shares.
(d) Following the Effective Time, there shall be no further registration of
transfers on the stock transfer books of the Surviving Corporation of
the Company Shares which were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are presented
to the Surviving Corporation for any reason, they shall be cancelled and
exchanged as provided in this Article III.
(e) No certificate or scrip representing fractional Intracel Parent Shares
shall be issued upon the surrender for exchange of Certificates, and
such fractional share interests will not entitle the owner thereof to
vote or to any rights of a stockholder of Intracel Parent. In lieu of
any such fractional share, Intracel Parent shall pay to each former
stockholder of the Company who otherwise would be entitled to receive a
fractional Intracel Parent Share an amount in cash determined by
multiplying (i) the quotient of $75,000,000 divided by the number of
outstanding shares of Intracel Parent Common Stock on a fully diluted
basis immediately prior to the Effective Time by (ii) the fraction of an
Intracel Parent Share to which such holder would otherwise be entitled.
As promptly as practicable after any determination of the amount of cash
to be paid to holders of Company Shares in lieu of any fractional share
interests, Exchange Agent shall pay such
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amounts to such holders of Company Shares in accordance with the terms
of this Article III.
(f) The Intracel Parent Shares to be issued pursuant to this Section 3.01
shall not have been registered and shall be characterized as "restricted
securities" under the federal securities laws, and under such laws such
shares may be resold without registration under the Securities Act, only
in certain limited circumstances. Each certificate evidencing Intracel
Parent Shares to be issued pursuant to this Section 3.01 shall bear the
following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND WERE ISSUED IN RELIANCE UPON AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SAID ACT. SUCH SHARES MAY NOT
BE RESOLD, REOFFERED, TRANSFERRED, PLEDGED HYPOTHECATED,
CONVEYED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SAID
ACT.
(g) Notwithstanding anything to the contrary in this Section 3.01, none of
the Exchange Agent, the Company or any party hereto shall be liable to
any person for any amount properly paid to a public official pursuant to
any applicable abandoned property, escheat or similar law.
(h) If, at any time after the Effective Time, any further action is
necessary or desirable to carry out the purposes of this Agreement and
to vest the Surviving Corporation with full right, title and possession
to all assets, property, rights, privileges, powers and franchises of
the Company and Intracel Acquisition Sub, the officers and directors of
the Company and Intracel Acquisition Sub are fully authorized in the
name of their respective corporations or otherwise to take, and will
take, all such lawful and necessary action, so long as such action is
not inconsistent with this Agreement.
Section 3.02 Stock Options. At the Effective Time, the PerImmune Amended and
Restated 1996 Stock Option Plan (the "COMPANY STOCK OPTION PLAN") and each
option to purchase shares of Company Common Stock outstanding under the Company
Stock Option Plan, whether or not exercisable, and whether or not vested, shall
be assumed by Intracel Parent in accordance with Section 6.02 (b), and, prior to
the Effective Time, Intracel Parent shall take all corporate action necessary to
reserve for issuance a sufficient number of shares of Intracel Parent Common
Stock for delivery upon exercise of such options so assumed by it.
Section 3.03 Dissenting Shares. If any holder of Company Shares shall be
entitled to be paid the "fair value" of his Company Shares, as provided in
Section 262 of the GCL, the Company shall give Intracel Parent notice thereof
and Intracel Parent shall have the right to participate in all negotiations and
proceedings with respect to any such demands. The Company shall not,
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except with the prior written consent of Intracel Parent, voluntarily make any
payment with respect to, or settle or offer to settle, any such demand for
payment.
Section 3.04 Adjustments. If, between the date of this Agreement and the
Effective Time, the Intracel Parent Shares or Company Shares shall have been
exchanged into a different number of shares or a different class by reason of
any reclassification, recapitalization, split-up, combination, exchange of
shares or readjustment, or a stock dividend thereon shall be declared with a
record date within such period, the amount of Intracel Parent Shares into which
the Company Shares will be converted in the Merger shall be correspondingly
adjusted.
Section 3.05 Lost Certificates. If any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
the Surviving Corporation, the posting of such person of a bond, in such
reasonable amount as the Surviving Corporation may direct, as indemnity against
any claim that may be made against it with respect to such Certificate, the
Exchange Agent will issue in exchange for such lost, stolen or destroyed
Certificate the Merger Consideration to be paid in respect of the shares of
Company Shares represented by such Certificates as contemplated by this Article.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Intracel Parent and Intracel
Acquisition Sub as follows:
Section 4.01 Organization. Each of the Company and PerImmune, Inc. (the
"Subsidiary") is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as now being conducted. The Subsidiary is the only
subsidiary of the Company. The Company and the Subsidiary are duly qualified or
licensed and in good standing to do business in each jurisdiction in which the
property owned, leased or operated by it or the nature of the business conducted
by it makes such qualification or licensing necessary, except in such
jurisdictions where the failure to be so duly qualified or licensed and in good
standing would not have a Material Adverse Effect on the Company and the
Subsidiary, taken as a whole. The Company has heretofore delivered to Intracel
Parent accurate and complete copies of the Certificate of Incorporation and
Bylaws, as currently in effect, of the Company and the Subsidiary.
Section 4.02 Capitalization. (a) The authorized capital stock of the Company
consists of 3,000 shares of Company Common Stock, 100 shares of Company Series A
Preferred, 20 shares of Company Series B Preferred and 880 Company Shares which
are preferred stock without designation, of which, as of the date hereof, 594.5
shares of Company Common Stock, 100 shares of Company Series A Preferred and 20
shares of Company Series B Preferred were issued and outstanding. All the issued
and outstanding Company Shares are validly issued, fully paid
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and nonassessable and free of preemptive rights. As of the date hereof, 257
shares of Company Common Stock were issuable upon exercise of options pursuant
to the Company Stock Option Plan. Section 4.02 of the disclosure schedule
attached hereto relating to the Company (the "COMPANY DISCLOSURE SCHEDULE") sets
forth each other subscription, option, warrant, call, right, convertible
security or other agreement or commitment of any character obligating the
Company to issue, transfer or sell any security and, as to each such security,
agreement or commitment, the average conversion or exercise price thereof, a
range of the conversion or exercise prices and the effects of the Merger and the
other transactions contemplated hereby on such security, agreement or
commitment, including pursuant to the antidilution provisions thereof. The
Company owns 100% of the issued and outstanding capital stock of PerImmune, Inc.
Except as set forth above or in Section 4.02 of the Company Disclosure
Schedule, or as contemplated hereby, there are not now, and at the Effective
Time there will not be, any shares of capital stock (or securities substantially
equivalent to capital stock) of the Company issued or outstanding or any
subscriptions, options, warrants, calls, rights, convertible securities or other
agreements or commitments of any character obligating the Company to issue,
transfer or sell any of its securities.
(b) Section 4.02 of the Company Disclosure Schedule sets forth
the name, jurisdiction of incorporation and capitalization of each subsidiary of
the Company. Except as disclosed in Section 4.02 of the Company Disclosure
Schedule, the Company does not own, directly or indirectly, any capital stock or
other equity securities of any corporation or have any direct or indirect equity
or ownership interest in any business. All of the outstanding shares of capital
stock of the Subsidiary have been validly issued and are fully paid and
nonassessable and, except as set forth in Section 4.02 of the Company Disclosure
Schedule, are owned by either the Company or the Subsidiary free and clear of
all liens, charges, claims or encumbrances. Except as set forth in Section 4.02
of the Company Disclosure Schedule, there are not now, and at the Effective Time
there will not be, any outstanding subscriptions, options, warrants, calls,
rights, convertible securities or other agreements or commitments of any
character relating to the issued or unissued capital stock or other securities
of the Subsidiary, or otherwise obligating the Company or any such subsidiary to
issue, transfer or sell any such securities. Except as set forth in Section 4.02
of the Company Disclosure Schedule, there are not now, and at the Effective Time
there will not be, any voting trusts or other agreements or understandings to
which the Company or the Subsidiary is a party or is bound with respect to the
voting of the capital stock of the Company or the Subsidiary. Except as set
forth above or in Section 4.02 of the Company Disclosure Schedule, there are no
persons or entities (other than the Subsidiary) in which the Company or the
Subsidiary has any voting rights or equity interests.
Section 4.03 Authority Relative to This Agreement. The Company has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by the Board of Directors of the Company and no
other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the transactions so contemplated
(other than, with respect to the Merger, the approval of the Merger and adoption
of this Agreement by
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the holders of a majority of the outstanding shares of Company Common Stock, a
majority of the outstanding shares of Series A Preferred and a majority of the
outstanding shares of Series B Preferred). This Agreement has been duly and
validly executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, subject as to enforcement to bankruptcy, reorganization,
moratorium, insolvency or other laws of general applicability relating to or
affecting creditors rights and to general equity principles.
Section 4.04 Consents and Approvals; No Violations. Except for applicable
requirements of the Securities Act, applicable state securities laws and the
filing and recordation of a Certificate of Merger, as required by the GCL and
such other filings, permits, authorizations, consents or approvals which if not
obtained or made would not individually or in the aggregate have a Material
Adverse Effect on the Company, no filing with, and no permit, authorization,
consent or approval of, any public body or authority, including courts of
competent jurisdiction, domestic or foreign ("GOVERNMENTAL ENTITY"), is
necessary for the consummation by the Company of the transactions contemplated
by this Agreement. Except as set forth in Section 4.04 of the Company Disclosure
Schedule, neither the execution and delivery of this Agreement by the Company
nor the consummation by the Company of the transactions contemplated hereby nor
compliance by the Company with any of the provisions hereof will (i) conflict
with or result in any breach of any provision of the Certificate of
Incorporation or Bylaws of the Company or the Subsidiary, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, any of the terms, conditions or provisions of any
material note, bond, mortgage, indenture, license, contract, agreement or other
instrument or obligation to which the Company or the Subsidiary is a party or by
which any of them or any of their properties or assets may be bound or (iii)
violate any material order, writ, injunction, decree, statute, treaty, rule or
regulation applicable to the Company, the Subsidiary or any of their properties
or assets, except in the case of (ii) or (iii) for violations, breaches or
defaults which are not in the aggregate material to the business, operations or
financial condition of the Company and the Subsidiary taken as a whole and which
will not prevent or delay the consummation of the transactions contemplated
hereby.
Section 4.05 Absence of Certain Changes. Except as set forth in Section 4.05 of
the Company Disclosure Schedule, in the Company Financial Reports (as defined
below) or the Company Balance Sheet, and except as contemplated by this
Agreement, since September 30, 1997, neither the Company nor the Subsidiary has
taken any of the actions set forth in Sections 6.01(b) to (h), suffered any
adverse changes in its business, operations or financial condition which are
material to the Company and the Subsidiary taken as a whole (other than changes
generally affecting the industries in which the Company operates, including
changes due to actual or proposed changes in law or regulation, or changes
relating to the transactions contemplated by this Agreement, including the
change in control contemplated hereby) or entered into any transaction, or
conducted its business or operations, other than in the ordinary and usual
course of business and consistent with past practice and other than in
connection with the Company's exploration of alternatives leading to the
execution of this Agreement.
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Section 4.06 Financial Statements. The Company's audited consolidated financial
statements dated December 31, 1996 ("COMPANY FINANCIAL REPORTS") and unaudited
consolidated interim financial statements dated September 30, 1997 fairly
present, in conformity with generally accepted accounting principles applied on
a consistent basis (except as may be indicated in the notes thereto), the
consolidated financial position of the Company and the Subsidiary as of the
dates thereof and their consolidated results of operations and cash flows for
the periods then ended (subject to normal year-end adjustments in the case of
any unaudited interim financial statements). For purposes of this Agreement,
"COMPANY BALANCE SHEET" means the consolidated balance sheet of the Company as
of September 30, 1997 and "COMPANY BALANCE SHEET DATE" means September 30, 1997.
Section 4.07 No Undisclosed Liabilities. Except as and to the extent set forth
in the audited Company Financial Reports, the Company Balance Sheet or Section
4.07 of the Company Disclosure Schedule, neither the Company nor the Subsidiary
had on the date of such Company Financial Report or on the Company Balance Sheet
Date any material liabilities required by generally accepted accounting
principles to be reflected on a consolidated balance sheet of the Company and
the Subsidiary. Except as set forth on Section 4.07 of the Company Disclosure
Schedule, since the Company Balance Sheet Date, neither the Company nor the
Subsidiary has incurred any liabilities material to the business, operations or
financial condition of the Company and the Subsidiary taken as a whole, except
liabilities incurred in the ordinary and usual course of business and consistent
with past practice and liabilities incurred in connection with this Agreement.
Section 4.08 No Default. Except as set forth in Section 4.08 of the Company
Disclosure Schedule, neither the Company nor the Subsidiary is in default or
violation (and no event has occurred which with notice or the lapse of time or
both would constitute a default or violation) of any term, condition or
provision of (i) its Certificate of Incorporation or its Bylaws, (ii) any
material note, bond, mortgage, indenture, license, contract, agreement or other
instrument or obligation to which the Company or the Subsidiary is a party or by
which they or any of their properties or assets may be bound or (iii) to the
knowledge of the Company, any material order, writ, injunction, decree, statute,
rule or regulation applicable to the Company or the Subsidiary, which defaults
or violations would, in the aggregate, have a Material Adverse Effect on the
business, operations or financial condition of the Company and the Subsidiary
taken as a whole or which would prevent or delay the consummation of the
transactions contemplated hereby.
Section 4.09 Litigation. Except as disclosed in Section 4.09 of the Company
Disclosure Schedule, there is no action, suit, proceeding or, to the best
knowledge of the Company, review or investigation pending or, to the best
knowledge of the Company, threatened involving the Company or the Subsidiary, at
law or in equity, or before any Governmental Entity which are reasonably likely
to have a Material Adverse Effect on the Company or the Subsidiary.
Section 4.10 Compliance with Applicable Law. The Company and the Subsidiary
hold all material permits, licenses, variances, exemptions, orders and approvals
of all Governmental Entities necessary for the lawful conduct of their
respective businesses (the "COMPANY PERMITS"), except for failures to hold such
Company Permits which would not have a Material
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Adverse Effect on the Company. The Company and the Subsidiary are in compliance
with the terms of the Company Permits, except where the failure to so comply
would not have a Material Adverse Effect on the Company. The businesses of the
Company and the Subsidiary are not being conducted in violation of any
applicable law, ordinance, rule, regulation, decree or order of any Governmental
Entity, except for violations which do not and would not have a Material Adverse
Effect on the Company.
Section 4.11 Taxes. Except as set forth in Section 4.11 of the Company
Disclosure Schedule, the Company and the Subsidiary have duly filed all federal,
state, local and foreign tax returns required to be filed by it, and the Company
and the Subsidiary have duly paid, caused to be paid or made adequate provision
for the payment of all Taxes (as hereinafter defined) shown to be due in respect
of the periods covered by such tax returns and has made adequate provision for
payment of all Taxes anticipated to be payable in respect of all calendar
periods since the periods covered by such returns. All deficiencies and
assessments asserted as a result of any examinations or other audits known to
the Company by federal, state, local or foreign taxing authorities have been
paid, fully settled or adequately provided for in the Company Financial Reports,
and no issue or claim has been asserted for Taxes by any taxing authority for
any prior period, the adverse determination of which would result in a
deficiency which would have a Material Adverse Effect on the Company, other than
those heretofore paid or provided for. Except as set forth in Section 4.11 of
the Company Disclosure Schedule, there are no outstanding agreements or waivers
extending the statutory period of limitation applicable to any federal or
foreign income tax return of the Company or the Subsidiary. For purposes of this
Section 4.11 and Section 5.11 below, "TAXES" shall mean all taxes, assessments
and governmental charges imposed by any federal, state, county, local or foreign
government, taxing authority, subdivision or agency thereof, including interest,
penalties or additions thereto.
Section 4.12 ERISA. (a) With respect to each employee benefit plan (including,
without limitations, any "employee benefit plan", as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and
any material bonus, pension, profit sharing, deferred compensation, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock,
retirement, vacation, severance, disability, death benefit, hospitalization,
insurance or other plan, arrangement or understanding and any employment or
change in control agreements (all the foregoing being herein called the "COMPANY
BENEFIT PLANS"), maintained or contributed to by the Company or the Subsidiary
as of the date hereof, the Company has made available to Intracel Parent a true
and correct copy of, where applicable, (i) the most recent annual report (Form
5500) filed with the Internal Revenue Service (the "IRS"), (ii) such Company
Benefit Plans, (iii) each trust agreement and group annuity contract, if any,
relating to such Company Benefit Plan and (iv) the most recent actuarial report
or valuation relating to a Company Benefit Plan subject to Title IV of ERISA.
All Company Benefit Plans are set forth on Section 4.12 of the Company
Disclosure Schedule. None of the Company Benefit Plans are multiemployer plans
within the meaning of Section 3(37) of ERISA or have been at any time since
September 26, 1980. Each of the Plans covered by ERISA (a) has been operated in
all material respects in accordance with ERISA, (b) has met the minimum funding
standards of Section 412 of the Code and (c) which is intended to be qualified
under Section 401(a) of the Code, has received or applied for, a favorable
determination letter from the IRS, and the
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Company is not aware of any circumstances likely to result in revocation of such
determination letter. No notice of "reportable event" (within the meaning of
Section 4043 of ERISA) for which the 30-day reporting requirement has not been
waived, has been required to be filed for any Plan or by the "single-employer
plan," within the meaning of Section 4001(a)(15) of ERISA, of any entity which
is considered one employer with the Company under Section 4001 of ERISA or
Section 414 of the Code (an "ERISA AFFILIATE") as of the date hereof within the
12-month period ending on the date hereof or will be required to be filed in
connection with the transaction contemplated by this Agreement. Neither the
Company nor any subsidiary has engaged in a transaction with respect to any
Company Benefit Plan that, assuming the taxable period of such transaction
expired as of the date hereof, would subject the Company or the Subsidiary to a
material tax or penalty imposed by either Section 4975 of the Code or Section
502(i) of ERISA.
(b) With respect to the Company Benefit Plans, no event has
occurred, and to the knowledge of the Company or the Subsidiary there exists no
condition or set of circumstances which in the aggregate are reasonably likely
to occur in connection with which the Company or the Subsidiary would be subject
to any liability that would have a Material Adverse Effect on the Company
(except liability for benefits claims and funding obligations payable in the
ordinary course) under ERISA, the Code or any other applicable law.
(c) Except as set forth in Section 4.12 of the Company Disclosure
Schedule, with respect to the Company Benefit Plans, there are no funded benefit
obligations for which contributions have not been made or properly accrued and
there are no unfunded benefit obligations which have not been accounted for by
reserves, or otherwise properly footnoted in accordance with generally accepted
accounting principles, on the financial statements of the Company or the
Subsidiary, which obligations are reasonably likely to have a Material Adverse
Effect on the Company.
(d) Neither the Company or the Subsidiary has any obligation for
retiree health and life benefits under any Company Benefit Plan, except as set
forth on Section 4.12 of the Company Disclosure Schedule.
Section 4.13 Title to Property. Except as set forth in Section 4.13 of the
Company Disclosure Schedule, the Company and the Subsidiary have good and
marketable title to all of their respective properties, interests in properties
and assets, real and personal, reflected in the Company Balance Sheet or
acquired after the Company Balance Sheet Date (except properties, interests in
properties and assets sold or otherwise disposed of since the Company Balance
Sheet Date in the ordinary course of business), or with respect to leased
properties and assets, valid leasehold interests in, free and clear of all
mortgages, liens, pledges, charges or encumbrances of any kind or character,
except (i) the lien of current taxes not yet due and payable, (ii) such
imperfections of title, liens and easements as do not and will not materially
detract from or interfere with the use of the properties subject thereto or
affect thereby, or otherwise materially impair business operations involving
such properties and (iii) liens securing debt which is reflected on the Company
Balance Sheet. The plants, property and equipment of the Company and the
Subsidiary that are used in the operations of their businesses are in all
material respects in good operating condition and repair, subject to normal wear
and tear. All properties used in
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the operations of the Company and the Subsidiary are reflected in the Company
Balance Sheet to the extent generally accepted accounting principles require the
same to be reflected. Section 4.13 of the Company Disclosure Schedule identifies
each material parcel of real property owned or leased by the Company or the
Subsidiary.
Section 4.14 Intellectual Property.
(a) To the Company's knowledge, the Company and the Subsidiary own, or are
licensed or otherwise possess legally enforceable rights to use all
patents, trademarks, trade names, service marks, copyrights, and any
applications therefor, maskworks, net lists, schematics, technology,
know-how, trade secrets, inventory, ideas, algorithms, processes,
computer software programs or applications (in both source code and
object code form), and tangible or intangible proprietary information or
material ("COMPANY INTELLECTUAL PROPERTY") that are used in the business
of the Company and the Subsidiary as currently conducted, except to the
extent that the failure to have such rights have not had and would not
reasonably be expected to have a Material Adverse Effect on the Company.
(b) Section 4.14 of the Company Disclosure Schedule lists (i) all patents
and patent applications and all registered and unregistered trademarks,
trade names and service marks, registered and unregistered copyrights,
and maskworks, included in the Company Intellectual Property, including
the jurisdictions in which each such Company Intellectual Property right
has been issued or registered or in which any application for such
issuance and registration has been filed, (ii) all licenses, sublicenses
and other agreements as to which the Company is a party and pursuant to
which any person is authorized to use any Company Intellectual Property,
and (iii) all licenses, sublicenses and other agreements as to which the
Company is a party and pursuant to which the Company is authorized to
use any third party patents, trademarks or copyrights, including
software ("THIRD PARTY INTELLECTUAL PROPERTY") which are incorporated
in, are, or form a part of any Company product.
(c) To the Company's knowledge, there is no unauthorized use, disclosure,
infringement or misappropriation of any Company Intellectual Property
rights, any trade secret material to the Company or of the Subsidiary,
by any third party, including any employee or former employee of the
Company or any of its subsidiaries. To the Company's knowledge, there is
no unauthorized use, disclosure, infringement or misappropriation by the
Company or the Subsidiary of any Third Party Intellectual Property right
to the extent licensed by or through the Company or the Subsidiary.
Except as set forth in Section 4.14(c) of the Company Disclosure
Schedule, neither the Company nor the Subsidiary has entered into any
agreement to indemnify any other person against any charge of
infringement of any Third Party Intellectual Property, other than
indemnification provisions contained in sales agreements arising in the
ordinary course of business. Except as set forth in Section 4.14 of the
Company Disclosure Schedule, there are no royalties, fees or other
payments payable by the Company to any Person by reason of the
ownership, use, sale or disposition of Third Party Intellectual
Property.
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(d) Except as set forth in Section 4.14 of the Company Disclosure Schedule,
neither the Company nor the Subsidiary is nor will any of such party be
as a result of the execution and delivery of this Agreement or the
performance of its obligations under this Agreement, in breach of any
license, sublicense or other agreement relating to the Third Party
Intellectual Property or Third Party Intellectual Property rights, the
breach of which would have a Material Adverse Effect on the Company.
(e) To the Company's knowledge, all patents, registered trademarks, service
marks and copyrights held by the Company or the Subsidiary are valid and
subsisting. Except as set forth in Section 4.14 of the Company
Disclosure Schedule, neither the Company nor the Subsidiary (i) has been
sued in any suit, action or proceeding which involves a claim of
infringement of any patents, trademarks, service marks, copyrights or
violation of any trade secret or other propriety right of any third
party; (ii) has knowledge that the manufacturing, marketing, licensing
or sale of its products infringes any patent, trademark, service xxxx,
copyright, trade secret or other proprietary right of any third party;
and (iii) has brought any action, suit or proceeding for infringement of
Company or Third Party Intellectual Property or breach of any license or
agreement involving Company or Third Party Intellectual Property against
any third party.
(f) Section 4.14 of the Company Disclosure Schedule sets forth a list of all
officers, employees and consultants of the Company or the Subsidiary who
have executed and delivered to the Company an agreement regarding the
protection of proprietary information and the assignment to the Company
of all Company Intellectual Property arising from services performed for
the Company by such persons.
(g) Except as set forth in Section 4.14 of the Company Disclosure Schedule,
all use, disclosure or appropriation by the Company or the Subsidiary of
the Company or Third Party Intellectual Property not otherwise protected
by patents, patent applications or copyright (such information as it
relates to either the Company or Intracel Parent, "Confidential
Information"), has been pursuant to the terms of a written agreement
between the Company and such third party or is otherwise lawful. Except
as set forth in Section 4.14 of the Company Disclosure Schedule, all
use, disclosure or appropriation by the Company or the Subsidiary of
Confidential Information not owned by the Company has been pursuant to
the terms of a written agreement between the Company and the owner of
such Confidential Information, or is otherwise lawful.
Section 4.15 Interested Party Transactions. Except as set forth in
Section 4.15 of the Company Disclosure Schedule, neither the Company nor the
Subsidiary is indebted to any director, officer, employee or agent of the
Company or any of its subsidiaries (except for amounts due as normal salaries
and bonuses and in reimbursement of ordinary expenses), and no such person is
indebted to the Company or the Subsidiary.
Section 4.16 Insurance. The Company and the Subsidiary have policies of
insurance and bonds of the type and in amounts customarily carried by persons
conducting businesses or owning assets similar to those of the Company and the
Subsidiary. There is no material claim pending
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under any of such policies or bonds as to which coverage has been questioned,
denied or disputed by the underwriters of such policies or bonds. All premiums
due and payable under all such policies and bonds have been paid and the Company
and the Subsidiary are otherwise in compliance with the terms of such policies
and bonds. The Company has no knowledge of any threatened termination of, or
material premium increase with respect to, any of such policies.
Section 4.17 Products.
(a) Except as set forth in Section 4.17 of the Company Disclosure Schedule,
there are no statements, citations, warning letters, FDA Forms 483, or
decisions by any governmental or regulatory body that any product
produced, manufactured, marketed or distributed at any time by the
Company or the Subsidiary ("COMPANY PRODUCT") is defective or fails to
meet any applicable standards promulgated by any such governmental or
regulatory body. There have been no recalls ordered by any such
governmental or regulatory body with respect to any Company Product. To
the knowledge of the Company, there is (i) no fact relating to any
Company Product that may give rise to a recall of any Company Product or
a duty to warn of a defect in any Company Product and (ii) no latent or
overt design, manufacturing or other defect in any Company Product.
(b) All Company Products used, marketed or distributed by the Company or
the Subsidiary in clinical investigations are subject to all applicable
licenses, registrations, approvals, clearances, and authorizations
required by local, state and federal agencies, foreign or domestic,
regulating the safety, effectiveness, and market clearance of medical
devices, which licenses, registrations, approval, clearances and
authorizations are held by the Company or the Subsidiary and were
obtained by the Company or the Subsidiary on or before the date when
same were required. Those licenses, registrations, approvals,
clearances, and authorizations will not be affected or impaired by the
Merger.
(c) The Company or the Subsidiary is in full possession of all supportive
materials and data substantiating representations made to the FDA in its
material filings therewith, including any and all testing data in the
possession or under the control of the Company or the Subsidiary,
whether or not submitted to the FDA. The Company Products perform in
compliance with the representations and performance specifications as
contained in said filings.
(d) There is no proceedings by the FDA or any other governmental agency,
including but not limited to a grand jury investigation, a 405 hearing,
a civil penalty proceeding brought at any time in the past relating to
the safety or efficacy of Company Products and, to the Company's
knowledge, there is no basis for such a proceeding.
Section 4.18 Change in Control. Except as set forth in Section 4.18 of the
Company Disclosure Schedule, neither the Company nor the Subsidiary is a party
to any contract, agreement or understanding which contains a "change in control"
provision or "potential change in control" provision.
Section 4.19 Environmental, Health, and Safety.
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(a) The Company and the Subsidiary (A) have complied with all applicable
Environmental, Health, and Safety Laws governing the Company or the
Subsidiary in all material respects (and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand, or notice has
been filed or commenced against any of them alleging any such failure to
comply), (B) have obtained and been in substantial compliance with all
of the terms and conditions of all material permits, licenses, and other
authorizations which are required under all applicable Environmental,
Health, and Safety Laws governing the Company or the Subsidiary, and (C)
have complied in all material respects with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in the
Environmental, Health, and Safety Laws governing the Company or the
Subsidiary.
(b) To the knowledge of the Company, the Company and the Subsidiary have no
material liability (whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due), there is no fact or
circumstance that with the passage of time, or occurrence of other
reasonably foreseeable events would give rise to any material liability,
and the Company and the Subsidiary have not handled or disposed of any
substance, arranged for the disposal of any substance, exposed any
employee or other individual to any substance or condition, or owned or
operated any property or facility in any manner that could give rise to
any material liability, for damage to any site, location, or body of
water (surface or subsurface), for any illness of or personal injury to
any employee or other individual, or for any reason under any
Environmental, Health, and Safety Law governing the Company or the
Subsidiary.
Section 4.20 Employment and Labor Matters. Section 4.20 of the Company
Disclosure Schedule contains a true, complete and accurate list of the names,
titles, annual compensation (including all bonuses and similar payments made
with respect to each such individual for the current and preceding fiscal years)
of all directors, officers and employees of the Company and the Subsidiary who
have an annual aggregate remuneration of $80,000 or more. The Company and the
Subsidiary have and currently are conducting their respective business in full
compliance with all laws relating to employment and employment practices, terms
and conditions of employment, wages and hours, affirmative action, and
nondiscrimination in employment. Except as disclosed in Section 4.20 of the
Company Disclosure Schedule, to the Company's knowledge, the relationships of
the Company and the Subsidiary with their respective employees are good; to the
Company's knowledge, there is, and during the past five years there has been, no
labor strike, dispute, slow-down, work stoppage or other labor difficulty
actually pending or threatened against or involving the Company or the
Subsidiary and to the Company's knowledge no attempt is currently being made or
during the past three years has been made to organize any employees of the
Company or the Subsidiary to form or enter a labor union or similar
organization. Section 4.20 of the Company Disclosure Schedule contains a list of
all grievances by employees during the past three years which have resulted in a
significant change in work practices or contract interpretation or terms or
resulted in arbitration.
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Section 4.21 Contracts. Section 4.21 of the Company Disclosure Schedule lists
all the material contracts and arrangements to which the Company or the
Subsidiary is a party or by which it is bound, or to which any of its assets or
properties is subject. The Company has delivered to Intracel Parent true and
complete copies of each document listed in Section 4.21 of the Company
Disclosure Schedule, and a written description of each oral arrangement so
listed. Except as disclosed in Section 4.21 of the Company Disclosure Schedule,
all such contracts and arrangements are in full force and effect, and neither
the Company nor the Subsidiary is in default under any of them, nor, to the
knowledge of the Company, is any other party to any such contract or arrangement
in default thereunder.
Section 4.22 Predominant Customers. Except as set forth on Section 4.22 of the
Company Disclosure Schedule, no single customer of the Company or the Subsidiary
accounts or accounted for over five percent (5%) of the total consolidated
revenues of the Company and the Subsidiary (the "COMPANY DOLLAR THRESHOLD")
during the twelve month period immediately preceding the date of this Agreement.
Section 4.23 Change in Customers or Vendors. Except as set forth on
Section 4.23 of the Company Disclosure Schedule, no customer or vendor whose
annual volume of purchases or sales during the Company fiscal year ended
December 31, 1996 exceeded the Company Dollar Threshold, has indicated to the
Company or the Subsidiary or to any of the Company or the Subsidiary's officers
or directors that it intends to cease doing business with the Company or the
Subsidiary or materially alter the amount or pricing of the business done with
the Company or the Subsidiary. To the knowledge of the Company, the relationship
of such customers and vendors will not be materially adversely affected by the
consummation of the transactions contemplated by this Agreement.
Section 4.24 Notes and Accounts Receivable. All notes and accounts receivable
of the Company and the Subsidiary are reflected properly on the Company
Financial Reports and Company Balance Sheet, are valid receivables which arose
in the ordinary course of business from bona fide transactions, subject to no
set-offs or counterclaims, subject only to the reserve for bad debts set forth
on the face of the Company Financial Reports and Company Balance Sheet.
Section 4.25 Questionable Payments. None of the Company or the Subsidiary nor
any of their respective directors, officers or other employees has: (i) made any
payments or provided services or other favors in the United States of America or
in any foreign country in order to obtain preferential treatment or
consideration by any Governmental Entity with respect to any aspect of the
business of the Company or the Subsidiary; or (ii) made any political
contributions which would not be lawful under the laws of the United States
(including the Foreign Corrupt Practices Act) or the foreign country in which
such payments were made. None of the Company or the Subsidiary or any of their
respective directors, officers or other employees nor, to the Company's
knowledge, any customer or supplier of the Company or the Subsidiary, has been
subject to any inquiry or investigation by any Governmental Entity in connection
with payments or benefits or other favors to or for the benefit of any
governmental or armed services official,
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agent, representative or employee with respect to any aspect of the business of
the Company or the Subsidiary or with respect to any political contribution.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
INTRACEL PARENT AND INTRACEL ACQUISITION SUB
Intracel Parent and Intracel Acquisition Sub represent and warrant to the
Company as follows:
Section 5.01 Organization. Intracel Parent and each of its subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. Intracel Parent and each of its subsidiaries is duly
qualified or licensed and in good standing to do business in each jurisdiction
in which the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification or licensing necessary, except
in such jurisdictions where the failure to be so duly qualified or licensed and
in good standing would not have a Material Adverse Effect on Intracel Parent and
its subsidiaries, taken as a whole. Intracel Parent has heretofore delivered to
the Company accurate and complete copies of the charter and bylaws, as currently
in effect, of Intracel Parent and each of its subsidiaries.
Section 5.02 Capitalization. (a) The authorized capital stock of Intracel Parent
consists of (i) 3,000,000 shares of Preferred Stock, $.01 par value per share,
of which 730,000 shares have been designated Series A Preferred, 850,000 shares
have been designated Series A-1 Preferred, 155,000 shares have been designated
Series A-2 Preferred and 200,000 shares have been designated Series A-3
Preferred and (ii) 5,000,000 shares of Intracel Parent Common Stock. As of the
date hereof, 2,475,668 shares of Intracel Parent Common Stock were issued and
outstanding, 591,786 shares of Series A Preferred were issued and outstanding,
638,392 shares of Series A-1 Preferred were issued and outstanding, 42,624
shares of Series A-2 Preferred were issued and outstanding and 145,023 shares of
Series A-3 Preferred were issued and outstanding. All of the foregoing shares of
capital stock of Intracel Parent are validly issued, fully paid and
nonassessable and free of preemptive rights, with no personal liability
attaching to the ownership thereof. 400,000 shares of Intracel Parent Common
Stock have been reserved for issuance in the event options granted pursuant to
the 1989 and 1990-91 Stock Option Plans of Intracel Parent ("INTRACEL PARENT
STOCK PLANS") are exercised. As of the date hereof, 355,517 shares of Intracel
Parent Common Stock were issuable upon exercise of options pursuant to the
Intracel Parent Stock Plans. Section 5.02(a) of the disclosure schedule attached
hereto relating to Intracel Parent (the "INTRACEL PARENT DISCLOSURE SCHEDULE")
sets forth each other subscription, option, warrant, call, right, convertible
security or other agreement or commitment of any character obligating Intracel
Parent to issue, transfer or sell any security, and, as to each such security,
agreement or commitment, the average conversion or exercise price thereof, a
range of the conversion or exercise prices and the effects of the Merger and the
other transactions contemplated hereby on such security, agreement or
commitment, including pursuant to antidilution provisions thereof.
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All shares of Intracel Parent Shares which are to be issued pursuant to the
Merger or the other transactions contemplated hereby, will be, when issued in
accordance with the respective terms thereof, duly authorized, validly issued,
fully paid and nonassessable and free of any preemptive rights in respect
thereto. Except as set forth above or in Section 5.02(a) of the Intracel Parent
Disclosure Schedule or as contemplated hereby, there are not now, and at the
Effective Time there will not be, any shares of capital stock (or securities
substantially equivalent to capital stock) of Intracel Parent issued or
outstanding or any subscriptions, options, warrants, calls, rights, convertible
securities or other agreements or commitments of any character obligating
Intracel Parent to issue, transfer or sell any of its securities.
(b) Section 5.02(b) of the Intracel Parent Disclosure Schedule
sets forth the name, jurisdiction of incorporation and capitalization of each
subsidiary of Intracel Parent. Except as disclosed in Section 5.02(b) of the
Intracel Parent Disclosure Schedule, Intracel Parent does not own, directly or
indirectly, any capital stock or other equity securities of any corporation or
have any direct or indirect equity or ownership interest in any business. All of
the outstanding shares of capital stock of each of Intracel Parent's
subsidiaries have been validly issued and are fully paid and nonassessable and,
except as set forth in Section 5.02(b) of the Intracel Parent Disclosure
Schedule, are owned either by Intracel Parent or another of its subsidiaries
free and clear of all liens, charges, claims or encumbrances. Except as set
forth in Section 5.02(b) of the Intracel Parent Disclosure Schedule, there are
not now, and at the Effective Time there will not be, any outstanding
subscriptions, options, warrants, calls, rights, convertible securities or other
agreements or commitments of any character relating to the issued or unissued
capital stock or other securities of any of Intracel Parent's subsidiaries, or
otherwise obligating Intracel Parent or any such subsidiary to issue, transfer
or sell any such securities. Except as set forth in Section 5.02(b) of the
Intracel Parent Disclosure Schedule, there are not now, and at the Effective
Time there will not be, any voting trusts or other agreements or understandings
to which Intracel Parent or any of its subsidiaries is a party or is bound with
respect to the voting of the capital stock of Intracel Parent or any of Intracel
Parent's subsidiaries. Except as set forth above or in Section 5.02(b) of the
Intracel Parent Disclosure Schedule, there are no persons or entities (other
than subsidiaries of Intracel Parent) in which Intracel Parent or any of its
subsidiaries has any voting rights or equity interests.
Section 5.03 Authority Relative to this Agreement. Each of Intracel Parent and
Intracel Acquisition Sub has full corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Intracel Parent and Intracel Acquisition Sub and by
Intracel Parent as the sole stockholder of Intracel Acquisition Sub and no other
corporate proceedings on the part of Intracel Parent or Intracel Acquisition Sub
are necessary to authorize this Agreement or to consummate the transactions so
contemplated (other than the affirmative vote of a majority of each of the
Intracel Parent Common Stock, Series A Stock, Series A-1 Stock, Series A-2 Stock
and Series A-3 Stock entitled to vote on the amendment to the Certificate of
Incorporation of Intracel Parent contemplated by this Agreement). This Agreement
has been duly and validly executed and delivered by each of Intracel Parent and
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Intracel Acquisition Sub and constitutes a valid and binding agreement of each
of Intracel Parent and Intracel Acquisition Sub, enforceable against each of
Intracel Parent and Intracel Acquisition Sub in accordance with its terms,
subject as to enforcement to bankruptcy, reorganization, moratorium, insolvency
or other laws of general applicability relating to or affecting creditors rights
and to general equity principles.
Section 5.04 Consents and Approvals; No Violations. Except for applicable
requirements of the Securities Act, state securities laws and the filing and
recordation of a Certificate of Merger, as required by the GCL, and such other
filings, permits, authorizations, consents or approvals which if not obtained or
made would not individually or in the aggregate have a Material Adverse Effect
on Intracel Parent, no filing with, and no permit, authorization, consent or
approval of, any Governmental Entity, is necessary for the consummation by
Intracel Parent or Intracel Acquisition Sub of the transactions contemplated by
this Agreement. Except as set forth in Section 5.04 of the Intracel Parent
Disclosure Schedule, neither the execution and delivery of this Agreement by
Intracel Parent or Intracel Acquisition Sub nor the consummation by Intracel
Parent or Intracel Acquisition Sub of the transactions contemplated hereby nor
compliance by Intracel Parent or Intracel Acquisition Sub with any of the
provisions hereof will (i) conflict with or result in any breach of any
provision of the charter or bylaws of Intracel Parent or any of its
subsidiaries, (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any material note, bond, mortgage, indenture,
license, contract, agreement or other instrument or obligation to which Intracel
Parent or any of its subsidiaries is a party or by which any of them or any of
their properties or assets may be bound or (iii) violate any material order,
writ, injunction, decree, statute, treaty, rule or regulation applicable to
Intracel Parent, any of its subsidiaries or any of their properties or assets,
except in the case of (ii) or (iii) for violations, breaches or defaults which
are not in the aggregate material to the business, operations or financial
condition of Intracel Parent and its subsidiaries taken as a whole and which
will not prevent or delay the consummation of the transactions contemplated
hereby.
Section 5.05 Financial Statements. Intracel Parent's unaudited consolidated
financial statements dated December 31, 1996 ("INTRACEL PARENT FINANCIAL
REPORTS") attached to Section 5.05 of the Intracel Parent Disclosure Schedule
and unaudited consolidated interim financial statements dated June 30, 1997
fairly present, in conformity with generally accepted accounting principles
applied on a consistent basis (except as may be indicated in the notes thereto),
the consolidated financial position of Intracel Parent and its subsidiaries as
of the dates thereof and their consolidated results of operations and cash flows
for the periods then ended (subject to normal year-end adjustments in the case
of any unaudited interim financial statements). For purposes of this Agreement,
"INTRACEL PARENT BALANCE SHEET" means the consolidated balance sheet of the
Company as of June 30, 1997 and "INTRACEL PARENT BALANCE SHEET DATE" means June
30, 1997.
Section 5.06 Absence of Certain Changes. Except as set forth in the Intracel
Parent Financial Reports, including the Intracel Parent Balance Sheet, or
Section 5.06 of the Intracel Parent Disclosure Schedule, and except as
contemplated by this Agreement, since June 30, 1997 neither Intracel Parent nor
any of its subsidiaries has taken any of the actions set forth in Sections
6.01(a)
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to (h), suffered any adverse changes in its business, operations or financial
condition which are material to Intracel Parent and its subsidiaries taken as a
whole (other than changes generally affecting the industries in which Intracel
Parent operates, including changes due to actual or proposed changes in law or
regulation) or entered into any transaction, or conducted its business or
operations, other than in the ordinary and usual course of business and
consistent with past practice.
Section 5.07 No Undisclosed Liabilities. Except as and to the extent set forth
in the Intracel Parent Financial Reports, the Intracel Parent Balance Sheet or
Section 5.07 of the Intracel Parent Disclosure Schedule, neither Intracel Parent
nor any of its subsidiaries had on the date of such Intracel Parent Financial
Report or on the Intracel Parent Balance Sheet Date any material liabilities
required by generally accepted accounting principles to be reflected on a
consolidated balance sheet of Intracel Parent and its subsidiaries. Except as
and to the extent set forth in Section 5.07 of the Intracel Parent Disclosure
Schedule, since June 30, 1997 neither Intracel Parent nor any of its
subsidiaries has incurred any liabilities material to the business, operations
or financial condition of Intracel Parent and its subsidiaries taken as a whole,
except liabilities incurred in the ordinary and usual course of business and
consistent with past practice and liabilities incurred in connection with this
Agreement.
Section 5.08 No Default. Except as set forth in Section 5.08 of the Intracel
Parent Disclosure Schedule, neither Intracel Parent nor any of its subsidiaries
is in default or violation (and no event has occurred which with notice or the
lapse of time or both would constitute a default or violation) of any term,
condition or provision of (i) its charter or its bylaws, (ii) any material note,
bond, mortgage, indenture, license, contract, agreement or other instrument or
obligation to which Intracel Parent or any of its subsidiaries is a party or by
which they or any of their properties or assets may be bound or (iii) to the
knowledge of Intracel Parent, any material order, writ, injunction, decree,
statute, rule or regulation applicable to Intracel Parent or any of its
subsidiaries, which defaults or violations would have a Material Adverse Effect
on Intracel Parent or which would prevent or delay the consummation of the
transactions contemplated hereby.
Section 5.09 Litigation. Except as disclosed in Section 5.09 of the Intracel
Parent Disclosure Schedule, there is no action, suit, proceeding or, to the best
knowledge of Intracel Parent, review or investigation pending or, to the best
knowledge of Intracel Parent, threatened involving Intracel Parent or any of its
subsidiaries, at law or in equity, or before any Governmental Entity which are
reasonably likely to have a Material Adverse Effect on Intracel Parent.
Section 5.10 Compliance with Applicable Law. Intracel Parent and its
subsidiaries hold all material permits, licenses, variances, exemptions, orders
and approvals of all Governmental Entities necessary for the lawful conduct of
their respective business (the "INTRACEL PARENT PERMITS"), except for failures
to hold such Intracel Parent Permits which would not have a Material Adverse
Effect on the Intracel Parent. Intracel Parent and its subsidiaries are in
compliance with the terms of the Intracel Parent Permits, except where the
failure so to comply would not have a Material Adverse Effect on the Intracel
Parent. The businesses of Intracel Parent and its subsidiaries are not being
conducted in violation of any applicable law, ordinance,
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rule, regulation, decree or order of any Governmental Entity, except for
violations which or in the aggregate do not and would not have a Material
Adverse Effect on Intracel Parent.
Section 5.11 Taxes. Except as set forth in Section 5.11 of the Intracel Parent
Disclosure Schedule, Intracel Parent and each of its subsidiaries has duly filed
all federal, state, local and foreign tax returns required to be filed by it,
and Intracel Parent and each of its subsidiaries has duly paid, caused to be
paid or made adequate provision for the payment of all Taxes shown to be due in
respect of the periods covered by such tax returns and has made adequate
provision for payment of all Taxes anticipated to be payable in respect of all
calendar periods since the periods covered by such returns. All deficiencies and
assessments asserted as a result of any examinations or other audits, known to
Intracel Parent, by federal, state, local or foreign taxing authorities have
been paid, fully settled or adequately provided for in the Intracel Parent
Financial Reports, and no issue or claim has been asserted for Taxes by any
taxing authority for any prior period, the adverse determination of which would
result in a deficiency which would have a Material Adverse Effect on Intracel
Parent, other than those heretofore paid or provided for. Except as set forth in
Section 5.11 of the Intracel Parent Disclosure Schedule, there are no
outstanding agreements or waivers extending the statutory period of limitation
applicable to any federal or foreign income tax return of Intracel Parent or its
subsidiaries.
Section 5.12 ERISA. (a) With respect to each employee benefit plan (including,
without limitations, any "employee benefit plan," as defined in Section 3(3) of
ERISA), and any material bonus, pension, profit sharing, deferred compensation,
incentive compensation, stock ownership, stock purchase, stock option, phantom
stock, retirement, vacation, severance, disability, death benefit,
hospitalization, insurance or other plan, arrangement or understanding and any
employment or change in control agreements (all the foregoing being herein
called the "INTRACEL PARENT BENEFIT PLANS"), maintained or contributed to by
Intracel Parent or any of its subsidiaries as of the date hereof, Intracel
Parent has made available to the Company a true and correct copy of, where
applicable, (i) the most recent annual report (Form 5500) filed with the IRS,
(ii) such Intracel Parent Benefit Plan, (iii) each trust agreement and group
annuity contract, if any, relating to such Intracel Parent Benefit Plan and (iv)
the most recent actuarial report or valuation relating to a Intracel Parent
Benefit Plan subject to Title IV of ERISA. All Intracel Parent Benefit Plans are
set forth on Section 5.12(a) of the Intracel Parent Disclosure Schedule. None of
the Intracel Parent Benefit Plans are multiemployer plans within the meaning of
Section 3(37) of ERISA or have been at any time since September 26, 1980. Each
of the Plans covered by ERISA (a) has been operated in all material respects in
accordance with ERISA, (b) has met the minimum funding standards of Section 412
of the Code and (c) which is intended to be qualified under Section 401(a) of
the Code, has received or applied for a favorable determination letter from the
IRS, and Intracel Parent is not aware of any circumstances likely to result in a
revocation of such determination letter. No notice of "reportable event" (within
the meaning of Section 4043 of ERISA) for which the 30-day reporting requirement
has not been waived, has been required to be filed for any Plan or by the
single-employer of an ERISA Affiliate as of the date hereof, within the 12-month
period ending on the date hereof or will be required to be filed in connection
with the transaction contemplated by this Agreement. Neither Intracel Parent nor
any subsidiary has engaged in a transaction with respect to any Intracel Parent
Benefit Plan that, assuming the taxable period of such transaction expired as of
the date hereof, would subject the Intracel Parent
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or any of its subsidiaries to a material tax or penalty imposed by either
Section 4975 of the Code or Section 502(i) of ERISA.
(b) With respect to the Intracel Parent Benefit Plans, no event
has occurred, and to the knowledge of Intracel Parent or any of its
subsidiaries, there exists no condition or set of circumstances which in the
aggregate are reasonably likely to occur in connection with which Intracel
Parent or any of its subsidiaries would be subject to any liability that would
have a Material Adverse Effect on Intracel Parent, (except liability for
benefits claims and funding obligations payable in the ordinary course), under
ERISA, the Code or any other applicable law.
(c) Except as set forth in Section 5.12(c) of the Intracel Parent
Disclosure Schedule, with respect to the Intracel Parent Benefit Plans, there
are no funded benefit obligations for which contributions have not been made or
properly accrued and there are no unfunded benefit obligations which have not
been accounted for by reserves, or otherwise properly footnoted in accordance
with generally accepted accounting principles, on the financial statements of
Intracel Parent or any of its subsidiaries, which obligations are reasonably
likely to have a Material Adverse Effect on Intracel Parent.
(d) Neither Intracel Parent nor any of its subsidiaries has any
obligations for retiree health and life benefits under any Intracel Parent
Benefit Plan, except as set forth in Section 5.12(d) of the Intracel Parent
Disclosure Schedule.
Section 5.13 Title to Property. Except as set forth in Section 5.13 of the
Intracel Parent Disclosure Schedule, Intracel Parent and its subsidiaries have
good and marketable title to all of their respective properties, interests in
properties and assets, real and personal, reflected in the Intracel Parent
Balance Sheet or acquired after the Intracel Parent Balance Sheet Date (except
properties, interests in properties and assets sold or otherwise disposed of
since the Intracel Parent Balance Sheet Date in the ordinary course of
business), or with respect to leased properties and assets, valid leasehold
interests in, free and clear of all mortgages, liens, pledges, charges or
encumbrances of any kind or character, except (i) the lien of current taxes not
yet due and payable, (ii) such imperfections of title, liens and easements as do
not and will not materially detract from or interfere with the use of the
properties subject thereto or affected thereby, or otherwise materially impair
business operations involving such properties and (iii) liens securing debt
which is reflected on the Intracel Parent Balance Sheet. The plants, property
and equipment of Intracel Parent and its subsidiaries that are used in the
operations of their businesses are in all material respects in good operating
condition and repair, subject to normal wear and tear. All properties used in
the operations of Intracel Parent and its subsidiaries are reflected in the
Intracel Parent Balance Sheet to the extent generally accepted accounting
principles require the same to be reflected. Section 5.13 of the Intracel Parent
Disclosure Schedule identifies each material parcel of real property owned or
leased by Intracel Parent or any of its subsidiaries.
Section 5.14 Intellectual Property.
(a) To Intracel Parent's knowledge, Intracel Parent and its subsidiaries
own, or are licensed or otherwise possess legally enforceable rights to
use all patents, trademarks, trade names, service marks, copyrights, and
any applications therefor, maskworks, net lists,
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schematics, technology, know-how, trade secrets, inventory, ideas,
algorithms, processes, computer software programs or applications (in
both source code and object code form), and tangible or intangible
proprietary information or material ("Intracel Parent Intellectual
Property") that are used in the business of Intracel Parent and its
subsidiaries as currently conducted, except to the extent that the
failure to have such rights have not had and would not reasonably be
expected to have a Material Adverse Effect on Intracel Parent.
(b) Section 5.14(b) of the Intracel Parent Disclosure Schedule lists (i) all
patents and patent applications and all registered and unregistered
trademarks, trade names and service marks, registered and unregistered
copyrights, and maskworks, included in the Intracel Parent Intellectual
Property, including the jurisdictions in which each such Intracel Parent
Intellectual Property right has been issued or registered or in which
any application for such issuance and registration has been filed, (ii)
all licenses, sublicenses and other agreements as to which Intracel
Parent is a party and pursuant to which any person is authorized to use
any Intracel Parent Intellectual Property, and (iii) all licenses,
sublicenses and other agreements as to which Intracel Parent is a party
and pursuant to which Intracel Parent is authorized to use any Third
Party Intellectual Property rights which are incorporated in, are, or
form a part of any Intracel Parent product.
(c) To the knowledge of Intracel Parent, there is no unauthorized use,
disclosure, infringement or misappropriation of any Intracel Parent
Intellectual Property rights, any trade secret material to Intracel
Parent or any of its subsidiaries, by any third party, including any
employee or former employee of Intracel Parent or any of its
subsidiaries. To the knowledge of Intracel Parent, there is no
unauthorized use, disclosure, infringement or misappropriation by
Intracel Parent or any of its subsidiaries of any Third Party
Intellectual Property right to the extent licensed by or through
Intracel Parent or any of its subsidiaries. Except as set forth in
Section 5.14(c) of the Intracel Parent Disclosure Schedule, neither
Intracel Parent nor any of its subsidiaries has entered into any
agreement to indemnify any other person against any charge of
infringement of any Third Party Intellectual Property, other than
indemnification provisions contained in sales agreements arising in the
ordinary course of business. Except as set forth in Section 5.14(c) of
the Intracel Parent Disclosure Schedule, there are no royalties, fees or
other payments payable by Intracel Parent or any of its subsidiaries to
any Person by reason of the ownership, use, sale or disposition of Third
Party Intellectual Property.
(d) Except as set forth in Section 5.14(d) of the Intracel Parent Disclosure
Schedule, neither Intracel Parent nor any of its subsidiaries is nor
will any of such parties be as a result of the execution and delivery of
this Agreement or the performance of its obligations under this
Agreement, in breach of any license, sublicense or other agreement
relating to the Intracel Parent Intellectual Property or Third Party
Intellectual Property Rights, the breach of which would have a Material
Adverse Effect on Intracel Parent.
(e) To Intracel Parent's knowledge, all patents, registered trademarks,
service marks and copyrights held by Intracel Parent and any of its
subsidiaries are valid and subsisting.
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Except as set forth in Section 5.14(e) of the Intracel Parent Disclosure
Schedule, neither Intracel Parent nor any of its subsidiaries (i) has
been sued in any suit, action or proceeding which involves a claim of
infringement of any patents, trademarks, service marks, copyrights or
violation of any trade secret or other proprietary right of any third
party; (ii) has knowledge that the manufacturing, marketing, licensing
or sale of its products infringes any patent, trademark, service xxxx,
copyright, trade secret or other proprietary right of any third party;
and (iii) has brought any action, suit or proceeding for infringement of
Intracel Parent or Third Party Intellectual Property or breach of any
license or agreement involving Intracel Parent Intellectual Property
against any third party.
(f) Section 5.14(f) of the Intracel Parent Disclosure Schedule sets forth a
list of all officers, employees and consultants of Intracel Parent or
any of its subsidiaries who have executed and delivered to Intracel
Parent an agreement regarding the protection of proprietary information
and the assignment to Intracel Parent of all Intracel Parent
Intellectual Property arising from services performed for Intracel
Parent by such persons.
(g) Except as set forth in Section 5.14(g) of the Intracel Parent Disclosure
Schedule, all use, disclosure or appropriation by Intracel Parent or any
of its subsidiaries of Confidential Information has been pursuant to the
terms of a written agreement between Intracel Parent or such subsidiary,
and such third party or is otherwise lawful. Except as set forth in
Section 5.14(g) of the Intracel Parent Disclosure Schedule, all use,
disclosure or appropriation by Intracel Parent or any of its
subsidiaries of Confidential Information not owned by Intracel Parent or
any of its subsidiaries has been pursuant to the terms of a written
agreement between Intracel Parent or such subsidiary, and the owner of
such Confidential Information, or is otherwise lawful.
Section 5.15 Interested Party Transactions. Except as set forth in
Section 5.15 of the Intracel Parent Disclosure Schedule, neither Intracel Parent
nor any of its subsidiaries is indebted to any director, officer, employee or
agent of Intracel Parent or any of its subsidiaries (except for amounts due as
normal salaries and bonuses and in reimbursement of ordinary expenses), and no
such person is indebted to Intracel Parent or any of its subsidiaries.
Section 5.16 Insurance. Intracel Parent and each of its subsidiaries have
policies of insurance and bonds of the type and in amounts customarily carried
by persons conducting businesses or owning assets similar to those of Intracel
Parent and its subsidiaries. There is no material claim pending under any of
such policies or bonds as to which coverage has been questioned, denied or
disputed by the underwriters of such policies or bonds. All premiums due and
payable under all such policies and bonds have been paid and Intracel Parent and
its subsidiaries are otherwise in compliance with the terms of such policies and
bonds. Intracel Parent has no knowledge of any threatened termination of, or
material premium increase with respect to, any of such policies.
Section 5.17 Products.
(a) Except as set forth in Section 5.17 of the Intracel Parent Disclosure
Schedule, there are no statements, citations, warning letters, FDA Forms
483, or decisions by any governmental
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or regulatory body that any product produced, manufactured, marketed or
distributed at any time by Intracel Parent or any of its subsidiaries
("INTRACEL PARENT PRODUCT") is defective or fails to meet any applicable
standards promulgated by any such governmental or regulatory body. There
have been no recalls ordered by any such governmental or regulatory body
with respect to any Intracel Parent Product. To the knowledge of
Intracel Parent, there is (i) no fact relating to any Intracel Parent
Product that may give rise to a recall of any Intracel Parent Product or
a duty to warn of a defect in any Intracel Parent Product and (ii) no
latent or overt design, manufacturing or other defect in any Intracel
Parent Product.
(b) All Intracel Parent Products used, marketed or distributed by Intracel
Parent or any of its subsidiaries in clinical investigations are subject
to all applicable licenses, registrations, approvals, clearances, and
authorizations required by local, state and federal agencies, foreign or
domestic, regulating the safety, effectiveness, and market clearance of
medical devices, which licenses, registrations, approval, clearances and
authorizations are held by Intracel Parent or one of its subsidiaries
and were obtained by Intracel Parent or such subsidiary on or before the
date when same were required. Those licenses, registrations, approvals,
clearances, and authorizations will not be affected or impaired by the
Merger.
(c) Intracel Parent and one of its subsidiaries is in full possession of
all supportive materials and data substantiating representations made to
the FDA in its material filings therewith, including any and all testing
data in the possession or under the control of Intracel Parent, whether
or not submitted to the FDA. The Intracel Parent Products perform in
compliance with the representations and performance specifications as
contained in said filings.
(d) There is no proceeding by the FDA or any other governmental agency,
including but not limited to a grand jury investigation, a 405 hearing,
a civil penalty proceeding brought at any time in the past relating to
the safety or efficacy of Intracel Parent Products and, to Intracel
Parent's knowledge, there is no basis for such a proceeding.
Section 5.18 Interim Operations of Intracel Acquisition Sub. Intracel
Acquisition Sub was formed solely for the purpose of engaging in the
transactions contemplated hereby, has engaged in no other business activities
and has conducted its operations only as contemplated hereby.
Section 5.19 Change in Control. Except as set forth in Section 5.19 of the
Intracel Parent Disclosure Schedule, neither Intracel Parent nor any of its
subsidiaries is a party to any contract, agreement or understanding which
contains a "change in control" or "potential change in control" provision.
Except as set forth in the Intracel Parent Financial Reports or Section 5.19 of
the Intracel Parent Disclosure Schedule, there are no agreements or
understandings between Intracel Parent and its subsidiaries, on the one hand,
and any affiliates of Intracel Parent (other than subsidiaries of Intracel
Parent), on the other hand.
Section 5.20 Environmental, Health, and Safety.
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(a) Intracel Parent and its subsidiaries (A) have complied with all
applicable Environmental, Health, and Safety Laws governing Intracel
Parent and its subsidiaries in all material respects (and no action,
suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against any of them
alleging any such failure to comply), (B) have obtained and been in
substantial compliance with all of the terms and conditions of all
material permits, licenses, and other authorizations which are required
under all applicable Environmental, Health, and Safety Laws governing
Intracel Parent and its subsidiaries, and (C) have complied in all
material respects with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules, and
timetables which are contained in the Environmental, Health, and Safety
Laws governing Intracel Parent and its subsidiaries.
(b) To the knowledge of Intracel Parent, Intracel Parent and its
subsidiaries have no material liability (whether asserted or unasserted,
whether absolute or contingent, whether accrued or unaccrued, whether
liquidated or unliquidated, and whether due or to become due), there is
no fact or circumstance that with the passage of time, or occurrence of
other reasonably foreseeable events would give rise to any material
liability, and Intracel Parent and its subsidiaries have not handled or
disposed of any substance, arranged for the disposal of any substance,
exposed any employee or other individual to any substance or condition,
or owned or operated any property or facility in any manner that could
give rise to any material liability, for damage to any site, location,
or body of water (surface or subsurface), for any illness of or personal
injury to any employee or other individual, or for any reason under any
Environmental, Health, and Safety Law governing Intracel Parent and its
subsidiaries.
Section 5.21 Employment and Labor Matters. Section 5.21 of the Intracel Parent
Disclosure Schedule contains a true, complete and accurate list of the names,
titles, annual compensation (including all bonuses and similar payments made
with respect to each such individual for the current and preceding fiscal years)
of all directors, officers and employees of Intracel Parent and its subsidiaries
who have an annual aggregate remuneration of $80,000 or more. Intracel Parent
and its subsidiaries have and currently are conducting their respective
businesses in full compliance with all laws relating to employment and
employment practices, terms and conditions of employment, wages and hours,
affirmative action, and nondiscrimination in employment. Except as disclosed in
Section 5.21 of the Intracel Parent Disclosure Schedule, to Intracel Parent's
knowledge, the relationships of Intracel Parent and its subsidiaries with their
respective employees are good; to Intracel Parent's knowledge, there is, and
during the past five years there has been, no labor strike, dispute, slow-down,
work stoppage or other labor difficulty actually pending or threatened against
or involving Intracel Parent and its subsidiaries and, to Intracel Parent's
knowledge, no attempt is currently being made or during the past three years has
been made to organize any employees of Intracel Parent and its subsidiaries to
form or enter a labor union or similar organization. Section 5.21 of the
Intracel Parent Disclosure Schedule contains a list of all grievances by
employees during the past three years which have resulted in a significant
change in work practices or contract interpretation or terms or resulted in
arbitration.
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Section 5.22 Contracts. Section 5.22 of the Intracel Parent Disclosure Schedule
lists all the material contracts and arrangements to which Intracel Parent or
any of its subsidiaries is a party or by which it is bound, or to which any of
its assets or properties is subject. Intracel Parent has delivered to the
Company true and complete copies of each document listed in Section 5.22 of the
Intracel Parent Disclosure Schedule, and a written description of each oral
arrangement so listed. Except as disclosed in Section 5.22 of the Intracel
Parent Disclosure Schedule, all such contracts and arrangements are in full
force and effect, and neither Intracel Parent nor any of its subsidiaries is in
default under any of them, nor, to the knowledge of Intracel Parent, is any
other party to any such contract or arrangement in default thereunder.
Section 5.23 Predominant Customers. Except as set forth on Section 5.23 of
the Intracel Parent Disclosure Schedule, no single customer of Intracel Parent
or any of its subsidiaries accounts or accounted for over five percent (5%) of
the total consolidated revenues of Intracel Parent and its subsidiaries (the
"Intracel Dollar Threshold") during the twelve (12) month period immediately
preceding the date of this Agreement.
Section 5.24 Change in Customers or Vendors. Except as set forth on Section
5.24 of the Intracel Parent Disclosure Schedule, no customer or vendor whose
annual volume of purchases or sales during Intracel Parent's fiscal year ended
December 31, 1996 exceeded the Intracel Dollar Threshold, has indicated to
Intracel Parent or any of its subsidiaries, or to any of their respective
officers or directors that it intends to cease doing business with Intracel
Parent or such subsidiary, or materially alter the amount or pricing of the
business done with Intracel Parent or such subsidiary, respectively. To the
knowledge of Intracel Parent, the relationship of such customers and vendors
will not be materially adversely affected by the consummation of the
transactions contemplated by this Agreement.
Section 5.25 Notes and Accounts Receivable. All notes and accounts receivable
of Intracel Parent and its subsidiaries are reflected properly on the Intracel
Parent Financial Reports and Intracel Parent Balance Sheet, are valid
receivables which arose in the ordinary course of business from bona fide
transactions, subject to no set-offs or counterclaims, subject only to the
reserve for bad debts set forth on the face of the Intracel Parent Financial
Reports and Intracel Parent Balance Sheet.
Section 5.26 Questionable Payments. None of Intracel Parent, its subsidiaries,
or any of their respective directors, officers or other employees has: (i) made
any payments or provided services or other favors in the United States of
America or in any foreign country in order to obtain preferential treatment or
consideration by any Governmental Entity with respect to any aspect of the
business of Intracel Parent and its subsidiaries, or (ii) made any political
contributions which would not be lawful under the laws of the United States
(including the Foreign Corrupt Practices Act) or the foreign country in which
such payments were made. None of Intracel Parent, its subsidiaries, or any of
their respective directors, officers or other employees nor, to Intracel
Parent's knowledge, any customer or supplier of Intracel Parent or any of its
subsidiaries, has been subject to any inquiry or investigation by any
Governmental Entity in connection with payments or benefits or other favors to
or for the benefit of any governmental or
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armed services official, agent, representative or employee with respect to any
aspect of the business of Intracel Parent or its subsidiaries or with respect to
any political contribution.
ARTICLE VI
COVENANTS
Section 6.01 Covenants of the Company and Intracel Parent. During the period
from the date of this Agreement and continuing until the earlier of the
termination of this Agreement or the Effective Time, the Company and Intracel
Parent each agree as to itself and its subsidiaries that (except as expressly
contemplated or permitted by this Agreement, Section 6.01 of the Company
Disclosure Schedule or the Intracel Parent Disclosure Schedule, as the case may
be, or to the extent that the other party shall otherwise consent in writing):
(a) Each party and its subsidiaries shall carry on their respective
businesses in the usual, regular and ordinary course, consistent with
past practice and (i) use its best efforts to preserve its business
intact, keep available the services of all of its present officers,
employees, agents and representatives, and preserve the goodwill of all
suppliers, customers, clients and others having business relations with
it or any of its subsidiaries; (ii) maintain its corporate existence and
good standing in its state of incorporation; (iii) keep and maintain in
good condition, repair and working order all buildings, offices, stores
and other structures and all machinery, tools, equipment, fixtures and
other property of it and its subsidiaries and observe and conform to all
material terms and conditions upon or under which any of their
properties is held; and (iv) continue and maintain in full force and
effect all insurance now maintained and promptly proceed with the
repair, restoration or replacement of any asset or property damaged or
destroyed by fire or other casualty after the date hereof, whether
insured or uninsured, subject to the rights, if any, of the lessors or
mortgagees thereof.
(b) Except for such transaction disclosed in the appropriate party's
Disclosure Schedule, no party shall, nor shall any party permit any of
its subsidiaries to, nor shall any party or subsidiary propose to, (i)
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of any of
its capital stock, (ii) split, combine or reclassify any of its capital
stock or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of or in substitution for shares of
its capital stock or (iii) repurchase, redeem or otherwise acquire, or
permit any subsidiary to repurchase, redeem or otherwise acquire, any of
its securities or any securities of its subsidiaries.
(c) No party shall, nor shall any party permit any of its subsidiaries to,
authorize for issuance, issue, sell, deliver or agree or commit to
issue, sell or deliver (whether through the issuance or granting of
options, warrants, commitments, subscriptions, rights to purchase or
otherwise) any stock of any class or any other securities (including
indebtedness having the right to vote) or equity equivalents (including,
without limitation, stock appreciation rights), except as required
pursuant to the agreements and instruments
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outstanding on the date hereof or disclosed in Sections 4.02 and 5.02,
or amend in any material respect any of the terms of any such securities
or agreements outstanding on the date hereof, other than the issuance of
Company Shares or shares of Intracel Parent Shares, as the case may be,
upon the exercise of stock options pursuant to Company Stock Plan or
Intracel Parent Stock Plans and upon the exercise or conversion of other
Intracel Parent and Company options, warrants or rights, in each case
outstanding on the date of this Agreement and in accordance with their
present terms.
(d) No party shall amend or propose to amend its charter or bylaws.
(e) No party shall, nor shall any party permit any of its subsidiaries to,
acquire, sell, lease, encumber, transfer or dispose of any assets
outside the ordinary course of business, consistent with past practice,
or any assets which are material to such party and its subsidiaries
taken as a whole, except pursuant to obligations in effect on the date
hereof, or enter into any commitment or transaction outside the ordinary
course of business, consistent with past practice.
(f) No party shall, nor shall any party permit any of its subsidiaries to,
incur any indebtedness for borrowed money (which shall not be deemed to
include entering into credit agreements, lines of credit or similar
arrangements until borrowings are made under such arrangements) or
guarantee any such indebtedness or issue or sell any debt securities or
warrants or rights to acquire any debt securities of such party or any
of its subsidiaries or guarantee (or become liable for) any debt of
others or make any loans, advances or capital contributions or mortgage,
pledge or otherwise encumber any material assets or create or suffer any
material lien thereupon other than in each case in the ordinary course
of business consistent with prior practice.
(g) No party shall, nor shall any party permit any of its subsidiaries to
pay, discharge or satisfy any claims, liabilities or obligations in
excess of $350,000 (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or
satisfaction in the ordinary course of business consistent with past
practice or in accordance with their terms, of liabilities reflected or
reserved against in, or contemplated by, the consolidated financial
statements (or the notes thereto) of any party and its consolidated
subsidiaries or incurred in the ordinary course of business consistent
with past practice.
(h) No party shall change any of the accounting principles or practices used
by it (except as required by generally accepted accounting principles).
(i) No party shall, nor shall any party permit any of its subsidiaries to,
agree to take any of the foregoing actions or take or agree to take any
action that would or is reasonably likely to result in any of its
representations and warranties set forth in this Agreement being untrue
or in any of the conditions to the Merger set forth in Article VII not
being satisfied.
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(j) Each of the parties shall give prompt notice to the other party of: (i)
any notice of, or other communication relating to, a default or event
which, with notice or the lapse of time or both, would become a default,
received by it or any of its subsidiaries subsequent to the date of this
Agreement and prior to the Effective Time, under any agreement,
indenture or instrument material to the financial condition, properties,
businesses or results of operations of it and its subsidiaries, taken as
a whole, to which it or any of its subsidiaries is a party or is
subject; (ii) any notice or other communication from any third party
alleging that the consent of such third party is or may be required in
connection with the transactions contemplated by this Agreement, which
consent, if required, would breach the representations contained in
Articles IV and V; and (iii) any material adverse change in the
financial condition, properties, businesses, results of operations or
prospects of it and its subsidiaries, taken as a whole.
(k) The parties shall consult with each other before issuing any press
releases or otherwise making public statements with respect to the
transactions contemplated hereby and in making any filings with any
federal or state governmental or regulatory agency or with any national
securities exchange with respect thereto.
Section 6.02 Additional Covenants of the Company and Intracel Parent.
(a) During the period from the date of this Agreement and continuing until
the earlier of the termination of this Agreement or the Effective Time,
each of the Company and Intracel Parent agrees as to itself and its
subsidiaries that it will not, without the prior written consent of the
other party, except as contemplated by this Agreement or required by
law, (i) enter into, adopt, amend or terminate any Company Benefit Plan
or Intracel Parent Benefit Plan, as the case may be, or other employee
benefit plan or any agreement, arrangement, plan or policy between the
Company or Intracel, as the case may be, and one or more of its
directors or executive officers or (ii) except for normal increases in
the ordinary course of business consistent with past practice that, in
the aggregate, do not result in a material increase in benefits or
compensation expense to the Company or Intracel, as the case may be,
increase in any manner the compensation or fringe benefits of any
director, officer or employee or pay any benefit not required by any
plan and arrangement as in effect as of the date hereof or enter into
any contract, agreement, commitment or arrangement to do any of the
foregoing.
(b) (i) At the Effective Time, each outstanding option to purchase Company
Shares (a "COMPANY STOCK OPTION") under the Company Stock Option Plan,
whether vested or unvested, shall be deemed to constitute an option to
acquire, on the same terms and conditions as were applicable under such
Company Stock Option, the same number of shares of Intracel Parent
Common Stock as the holder of such Company Stock Option would have been
entitled to receive pursuant to the Merger had such holder exercised
such option in full immediately prior to the Effective Time (not taking
into account whether or not such option was in fact exercisable), at a
price per share equal to (1) the exercise price for the Company Stock
Option divided by (2) the Common Conversion Ratio. In the case of any
Company Stock Option to which Section 421 of the Code
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applies by reason of its qualification under any of Sections 422 and 424
of the Code ("INCENTIVE STOCK OPTIONS"), the option price, the number of
shares purchasable pursuant to such option and the terms and conditions
of exercise of such option shall comply with Section 424(a) of the Code;
(ii) as soon as practicable after the Effective Time, Intracel Parent
shall deliver to the holders of the Company Stock Options set forth in
Section 6.02(b) (i) appropriate notices setting forth such holders'
rights pursuant thereto and such Company Stock Options, including that
the grants or awards pursuant to the Company Stock Option Plan, shall
continue in effect on the same terms and conditions (including further
antidilution provisions, and subject to the adjustments required by this
Section 6.02(b) after giving effect to the Merger). Intracel Parent
shall comply with the terms of such Company Stock Options and ensure, to
the extent required by, and subject to the provisions of, any such
Company Stock Option Plan, that the Company Stock Options which
qualified as incentive stock options prior to the Effective Time
continue to qualify as incentive stock options after the Effective Time.
(c) During the period from the date of this Agreement and continuing until
the earlier of the termination of this Agreement or the Effective Time,
subject to the terms and conditions of this Agreement, each of the
parties hereto agrees to use its best efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective without limitation, (i) such actions as
may be required to be taken under the Securities Act and applicable
state securities laws in connection with the issuances contemplated
hereby, and (ii) the preparation and filing of all other forms,
registrations and notices required to be filed to consummate the
transactions contemplated hereby and the taking of such actions as are
necessary to obtain any requisite approvals, consents, orders,
exemptions, waivers by any public or private third party. Each party
shall promptly consult with the other with respect to, provide any
necessary information with respect to and provide the other (or its
counsel) copies of, all filings made by such party with any Governmental
Entity in connection with this Agreement and the transactions
contemplated hereby.
Section 6.03 No Solicitation. During the period from the date of this Agreement
and continuing until the earlier of the termination of this Agreement or the
Effective Time, none of the Company, Intracel Parent or any of their respective
subsidiaries, affiliates, officers, directors, representatives or agents shall,
directly or indirectly, solicit, initiate or encourage (including by way of
furnishing information) any person, entity or group concerning any merger, sale
of substantial assets outside the ordinary course of business, sale of shares of
capital stock or similar transaction involving the Company, Intracel Parent or
any of their respective subsidiaries or divisions (other than the transactions
contemplated by this Agreement). During the period from the date of this
Agreement and continuing until the earlier of the termination of this Agreement
or the Effective Time, the Company shall promptly advise Intracel Parent, and
Intracel Parent shall promptly advise the Company, of any such inquiries or
proposals which are proposed by any third parties on an unsolicited basis.
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Section 6.04 Access to Information. Upon reasonable notice and subject to
restrictions contained in confidentiality agreements to which such party is
subject (from which such party shall use reasonable efforts to be released), the
Company and Intracel Parent shall each (and shall cause each of their respective
subsidiaries to) afford to the officers, employees, accountants, counsel and
other representatives of the other, reasonable access, during normal business
hours during the period prior to the earlier of the termination of this
Agreement and the Effective Time, to all its properties, books, contracts,
commitments and records and, during such period, each of the Company and
Intracel Parent shall (and shall cause each of their respective subsidiaries to)
furnish promptly to the other all information concerning its business,
properties and personnel as such other party may reasonably request. Unless
otherwise required by law or court order, the parties will hold any such
information which is nonpublic in confidence until such time as such information
otherwise becomes publicly available through no wrongful act of either party,
and in the event of termination of this Agreement for any reason each party
shall promptly return all nonpublic documents obtained from any other party, and
any copies or summaries made of such documents, to such other party.
Section 6.05 Stockholders Meetings. Each of the Company and Intracel Parent
shall either duly call, give notice of, convene and hold a meeting of its
stockholders or solicit the consents of its stockholders as promptly as
practicable for the purpose of voting, in the case of the Company, upon this
Agreement and related matters and, in the case of Intracel Parent, upon the
amendment to the Certificate of Incorporation of Intracel Parent and the
issuance of Intracel Parent Shares pursuant hereto. Intracel Parent and the
Company will, through their respective Board of Directors, recommend to their
respective stockholders approval of such matters and will coordinate and
cooperate with respect to the timing of such meetings or consent solicitations
and shall use their best efforts, if applicable, to hold such meetings on the
same day and as soon as practicable after the date hereof, and shall use their
best efforts to secure the approval of their stockholders for the transactions
contemplated herein.
Section 6.06 Brokers or Finders. Each of Intracel Parent and the Company
represents, as to itself, its subsidiaries and its affiliates, that no agent,
broker, investment banker, financial advisor or other firm or person is or will
be entitled to any broker's or finder's fee or any other commission or similar
fee in connection with any of the transactions contemplated by this Agreement
except Vector Securities International, Inc., whose fees and expenses will be
paid (a) by the Company in accordance with the Company's agreement with such
firm (of which a copy has been delivered by the Company to Intracel Parent prior
to the date of this Agreement), and (b) by Intracel Parent in accordance with
Intracel Parent's agreement with such firm (of which a copy has been delivered
by Intracel Parent to the Company prior to the date of this Agreement), and each
of Intracel Parent and the Company agree to indemnify and hold the other
harmless from and against any and all claims, liabilities or obligations with
respect to any other fees, commissions or expenses asserted by any person on the
basis of any act or statement alleged to have been made by such party or its
affiliate.
Section 6.07 Consents, Approvals and Filings. The Company and Intracel Parent
will make and cause their respective subsidiaries to make all necessary filings,
as soon as practicable, including, without limitation, those required under the
Securities Act and applicable state
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securities laws, in order to facilitate prompt consummation of the transactions
contemplated by this Agreement. In addition, the Company and Intracel Parent
will each use their best efforts, and will cooperate fully with each other (i)
to comply as promptly as practicable with all governmental requirements
applicable to the transactions contemplated by this Agreement and (ii) to obtain
as promptly as practicable all necessary permits, orders or other consents of
Governmental Entities and consents, waivers and approvals of all third parties
necessary for the consummation of the transactions contemplated by this
Agreement and to enable each of the Company and Intracel Parent to conduct and
operate its business substantially as presently conducted. Each of the Company
and Intracel Parent shall use reasonable efforts to provide such information and
communications to Governmental Entities as such Governmental Entity may
reasonably request.
ARTICLE VII
CONDITIONS
Section 7.01 Conditions to Each Party's Obligation to Effect the Merger.
The respective obligation of each party to effect the Merger shall be subject to
the satisfaction at or prior to the Closing Date of the following conditions:
(a) This Agreement shall have been approved and adopted by the affirmative
vote of the holders of a majority of the outstanding Company Common
Stock, a majority of the outstanding Company Series A Preferred and a
majority of the outstanding Company Series B Preferred, and the issuance
of Intracel Parent Shares pursuant to the Merger, the amendment of the
Certificate of Incorporation of Intracel Parent and the other terms of
this Agreement shall have been approved by the affirmative vote of the
Intracel Parent shareholders in accordance with the provisions of
Delaware Law and the respective certificate of incorporation and bylaws
of each of the Company and Intracel Parent.
(b) Other than the filing provided for by Section 2.01, all authorizations,
consents, orders or approvals of, or declarations or filings with, or
expirations or terminations of waiting periods imposed by, any
Governmental Entity (other than the filing of a Form D under the
applicable regulations promulgated under the Securities Act), and all
required third party consents, the failure to obtain which would have a
Material Adverse Effect on Intracel Parent and its subsidiaries,
including the Surviving Corporation and its subsidiaries, taken as a
whole, shall have been filed, occurred or been obtained. Intracel Parent
shall have received all state securities or Blue Sky permits and other
authorizations necessary to issue the Intracel Parent Shares pursuant to
the Merger and the other terms of this Agreement.
(c) No statute, rule, regulation, executive order, decree or injunction
which prohibits the consummation of the Merger, or limits or restricts
the operation of Intracel Parent following the Merger, shall have been
enacted, entered, promulgated or enforced by any court or governmental
authority and be in effect.
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(d) The Amended and Restated Certificate of Incorporation of Intracel
Parent shall have been filed with the Secretary of State of the State of
Delaware.
(e) Xx. Xxxxx shall have delivered the letter in substantially the form of
Exhibit B hereto.
(f) The Shareholders Agreement in substantially the form of Exhibit C hereto
shall have been duly executed and delivered by each of the parties
thereto.
(g) The Registration Rights Agreement in substantially the form of
Exhibit D hereto shall have been duly executed and delivered by each of
the parties thereto.
(h) The Employment Agreements between Intracel Parent and each of Xxxxx
XxXxxxxx and Xxxxxxx Xxxxx, respectively, in a form mutually agreeable
to each such respective party,in substantially the form of Exhibit E
hereto, shall have been duly executed and delivered by each of the
parties thereto.
(i) Intracel Parent and the Company shall have received opinions from
Xxxxxxxx & Xxxxxxxx and Xxxxxxxx & Xxxxxxxx, LLP, each dated at the
Effective Time and addressed to Intracel Parent and the Company, stating
that the Merger will qualify as a reorganization under section 368(a) of
the Code. In rendering such opinions, each counsel shall be entitled to
require and to rely upon representations and agreements contained in
certificates from Intracel Parent, the Company and such other parties as
they shall deem reasonably necessary.
Section 7.02 Conditions of Obligations of Intracel Parent and Intracel
Acquisition Sub. The obligations of Intracel Parent and Intracel Acquisition Sub
to effect the Merger are further subject to the satisfaction at or prior to the
Closing Date of the following conditions, unless waived by Intracel Parent and
Intracel Acquisition Sub:
(a) The representations and warranties of the Company set forth in this
Agreement shall be true and correct as of the date of this Agreement,
and shall also be true in all material respects (except for such changes
as are contemplated by the terms of this Agreement and such changes as
would be required to be made in the exhibits to this Agreement if such
schedules were to speak as of the Closing Date) on and as of the Closing
Date with the same force and effect as though made on and as of the
Closing Date, except if and to the extent any failures to be true and
correct would not, in the aggregate, have a Material Adverse Effect on
the Company and its subsidiaries taken as a whole.
(b) From the date of this Agreement through the Closing Date, except as set
forth in Section 4.05 of the Company Disclosure Schedule, the Company
shall not have suffered any adverse changes in its business, operations
or financial condition which are material to the Company and its
subsidiaries taken as a whole (other than changes generally affecting
the industries in which the Company operates, including changes due to
actual or proposed changes in law or regulation, or changes relating to
the transactions contemplated by this Agreement, including the change in
control contemplated hereby).
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(c) The Company shall have performed all obligations required to be
performed by it under this Agreement at or prior to the Closing Date, in
all material respects, other than the filing of the Certificate of
Merger.
(d) At the Closing, the Company shall have furnished Intracel Parent with
copies of (i) resolutions duly adopted by the Board of Directors of the
Company approving the execution and delivery of this Agreement and all
other necessary or proper corporate action to enable the Company to
comply with the terms of this Agreement, (ii) the resolutions duly
adopted by the holders of Company Common Stock, Company Series A
Preferred and Company Series B Preferred approving and adopting this
Agreement and the Merger, such resolutions to be certified by the
Secretary or Assistant Secretary of the Company and (iii) a Certificate
of the Secretary of the Company setting forth the capitalization of the
Company on the Closing Date, immediately prior to the Effective Time, as
specified in Section 4.02.
(e) At the Closing, the Company shall have furnished Intracel Parent with
an opinion, dated the Closing Date, of counsel to the Company, in form
and substance satisfactory to Intracel Parent and its counsel, to the
effect that:
(i) the Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware;
(ii) the Subsidiary has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware;
(iii) all of the outstanding Company Shares have been duly authorized
and validly issued and are fully paid and nonassessable and none
of such issued Company Shares were issued in violation of any
preemptive rights of shareholders of the Company;
(iv) this Agreement has been duly authorized, executed and delivered
by the Company and this Agreement constitutes a valid and
legally binding obligation of the Company enforceable in
accordance with its terms, subject to bankruptcy, fraudulent
transfer, reorganization, moratorium, insolvency and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(v) all regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company prior to the
Effective Time under the Federal laws of the United States or
the General Corporation Law of the State of Delaware for the
consummation of the transactions contemplated by this Agreement
by the Company, have been made or obtained.
In rendering the foregoing opinion (the "COMPANY PRIMARY OPINION"), such
counsel may rely on certificates of officers and other agents of the Company and
public officials as to matters of fact and, as to matters relating to the law of
jurisdictions other than New York and the General Corporation Law of the State
of Delaware, upon opinions of counsel of such other jurisdictions reasonably
satisfactory to Intracel Parent and its counsel, provided such reliance is
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expressly noted in the Company Primary Opinion and the opinions of such other
counsel and the certificates of such officers, agents and public officials
relied on are attached to the Company Primary Opinion. Notwithstanding the
foregoing, such counsel shall not be required to express an opinion with respect
to any matters relating to FDA consents, authorizations, approvals or filings;
(f) The Company shall have issued shares of Company Series B
Preferred to Mentor Corporation substantially in accordance with the terms set
forth in the Strategic Alliance Terms Sheet previously delivered to Intracel
Parent.
(g) All actions, proceedings, instruments and documents required
to carry out this Agreement, or incidental hereto, and all other legal matters
shall have been approved by counsel to Intracel Parent, and such counsel shall
have received all documents, certificates and other papers reasonably requested
by it in connection therewith.
Section 7.03 Conditions of Obligations of the Company. The obligation of the
Company to effect the Merger is further subject to the satisfaction at or prior
to the Closing Date of the following conditions, unless waived by the Company:
(a) The representations and warranties of Intracel Parent and Intracel
Acquisition Sub set forth in this Agreement shall be true and correct as
of the date of this Agreement, and shall also be true in all material
respects (except for such changes as are contemplated by the terms of
this Agreement and such changes as would be required to be made in the
exhibits to this Agreement if such schedules were to speak as of the
Closing Date) on and as of the Closing Date with the same force and
effect as though made on and as of the Closing Date, except if and to
the extent any failures to be true and correct would not, in the
aggregate, have a Material Adverse Effect on Intracel Parent.
(b) From the date of this Agreement through the Closing Date, except as set
forth in Section 5.06 of the Intracel Parent Disclosure Schedule,
Intracel Parent shall not have suffered any adverse changes in its
business, operations or financial condition which are material to
Intracel Parent and its subsidiaries taken as a whole (other than
changes generally affecting the industries in which Intracel Parent
operates, including changes due to actual or proposed changes in law or
regulation)
(c) Intracel Parent and Intracel Acquisition Sub shall have performed all
obligations required to be performed by it under this Agreement at or
prior to the Closing Date in all material respects, other than the
filing of the Certificate of Merger.
(d) At the Closing, Intracel Parent and Intracel Acquisition Sub shall have
furnished the Company with copies of (i) resolutions duly adopted by
their respective Boards of Directors approving the execution and
delivery of this Agreement and all other necessary or proper corporate
action to enable them to comply with the terms of this Agreement, (ii)
the resolutions duly adopted by the shareholders of Intracel Parent
approving the issuance of Intracel Parent Shares and the amendment to
the Certificate of Incorporation of Intracel Parent, such resolutions to
be certified by the Secretary or Assistant Secretary of Intracel
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Parent, (iii) the resolutions duly adopted by the sole shareholder of
Intracel Acquisition Sub approving and adopting this Agreement and the
Merger, (iv) a certificate of the Secretary of Intracel Parent setting
forth the capitalization of Intracel Parent on the Closing Date,
immediately prior to the Effective Time, as specified in Section 5.02
and (v) audited Intracel Parent Financial Reports.
(e) At the Closing, Intracel Parent shall have furnished the Company with
an opinion, dated the Closing Date, of counsel to the Intracel Parent
and Intracel Acquisition Sub, in form and substance satisfactory to the
Company and its counsel, to the effect that:
(i) Each of Intracel Parent, Intracel Acquisition Sub and Xxxxxxx
Inc. is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of their
respective incorporation;
(ii) the Intracel Parent Shares to be issued under the Agreement (the
"Subject Shares") have been duly authorized and, upon
consummation of the transactions contemplated by the Agreement,
will be validly issued, fully paid and nonassessable, and such
issuance is not subject to any preemptive rights of shareholders
of Intracel Parent;
(iii) this Agreement has been duly authorized, executed and delivered
by Intracel Parent and Intracel Acquisition Sub and constitutes
the legal, valid and binding obligation of each, enforceable
against Intracel Parent and Intracel Acquisition Sub in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws
relating to or affecting the rights of creditors generally,
including, without limitation, laws relating to fraudulent
transfers or conveyances, preferences, and equitable
subordination;
(iv) no registration with, consent or approval of, notice to, or other
action by, any governmental entity of the United States and the
General Corporation Law of the State of Delaware is required on
the part of Intracel Parent or Intracel Acquisition Sub for the
execution, delivery or performance of this Agreement by Intracel
Parent or Intracel Acquisition Sub, or if required, such
registration has been made, such consent or approval has been
obtained, such notice has been given or such appropriate action
has been taken; and
(v) none of the transactions contemplated by this Agreement will
require registration under Section 5 of the Securities Act of
1933, as amended.
In rendering the foregoing opinion (the "INTRACEL PRIMARY OPINION"), such
counsel may rely on certificates of officers and other agents of the Company,
Intracel Parent or Intracel Acquisition Sub, the stockholders of such entities,
and public officials as to matters of fact and, as to matters relating to the
law of jurisdictions other than New York and the General Corporation Law of the
State of Delaware, upon opinions of counsel of such other jurisdictions
reasonably satisfactory to Intracel Parent and its counsel, provided such
reliance is expressly noted in the Intracel Primary Opinion and the opinions of
such other counsel and the certificates of such officers, agents and public
officials relied on are attached to the Intracel Primary
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Opinion. Notwithstanding the foregoing, such counsel shall (i) be permitted, in
connection with rendering the opinion set forth in clause (v), to assume that
the information statement delivered to the Company's shareholders complies with
Rule 502 promulgated under the Securities Act and (ii) not be required to
express an opinion with respect to any matters relating to FDA consents,
authorizations, approvals or filings.
(f) Intracel Parent shall have furnished to the Company evidence
that Intracel Parent and each of its subsidiaries has filed all federal, state,
local and foreign tax returns required to be filed by it, that the aggregate
amounts of all taxes owed pursuant to such returns shall in no event exceed
$10,000 and that any penalties imposed or to be imposed for filing such returns
late shall not be material to Intracel Parent.
(g) Intracel Parent shall have furnished to the Company a copy of
Intracel Parent's audited consolidated financial statements for the year ended
December 31, 1996 as audited by Ernst & Young LLP (the "Audited Financials").
Such Audited Financials shall not be substantially different than the Intracel
Parent Financial Reports attached to the Intracel Parent Disclosure Schedule,
and shall contain an unqualified opinion by Ernst & Young LLP.
(h) Intracel Parent shall have furnished to the Company an amendment
(the "Amendment") to each of the following agreements, in a form reasonably
satisfactory to the Company: (i) the Loan Documents (as such term is defined in
the Credit Agreement, dated as of November 16, 1995, as amended, among Intracel
Parent, Credit Anstalt Bankverien, as agent, and the lenders party thereto) (the
"CreditAnstalt Agreements"); (ii) the Secured Promissory Note, dated December
27, 1995, as amended, by Intracel Parent in favor of Northstar Advantage High
Total Return Fund (the "Northstar Agreement"); and (iii) the Secured Promissory
Note, dated June 11, 1996, by Intracel Parent in favor of CoreStates Enterprise
Fund (the "CoreStates Agreement" and, together with the CreditAnstalt Agreements
and the Northstar Agreement, the "Credit Agreements"). Such Amendment shall
expressly waive compliance by Intracel Parent with all of the covenants
(including all affirmative and negative covenants) included in each of the
Credit Agreements until December 31, 1998, except that the Amendment may contain
such covenants as are reasonably acceptable to the Company.
(i) Intracel Parent shall have furnished to the Company, in a form
reasonably satisfactory to the Company, the renewal of the License Agreement,
dated as of June 1, 1994, between Xxxxxx Xxxxxxxxx University and Intracel
Parent.
(j) Intracel Parent shall have issued shares of Intracel Parent
Common Stock to CoreStates Enterprise Fund in the manner described in the
Intracel Parent Disclosure Schedule.
(k) All actions, proceedings, instruments and documents required to
carry out this Agreement, or incidental hereto, and all other legal matters
shall have been approved by counsel to the Company, and such counsel shall have
received all documents, certificates and other papers reasonably requested by it
in connection therewith.
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ARTICLE VIII
TERMINATION AND AMENDMENT
Section 8.01 Termination. This Agreement may be terminated at any time prior
to the Effective Time, whether before or after approval of the matters presented
in connection with the Merger by the stockholders of the Company or Intracel
Parent:
(a) by mutual consent of Intracel Parent and the Company;
(b) by either Intracel Parent or the Company if the Merger shall not have
been consummated before January 31, 1998 (unless the failure to
consummate the Merger by such date shall be due to the action or failure
to act of the party seeking to terminate this Agreement);
(c) by either Intracel Parent or the Company if any permanent injunction or
other order of a court or other competent authority preventing the
consummation of the Merger shall have become final and non-appealable;
(d) by either party if any required approval of the stockholders of Intracel
Parent or the Company shall not have been obtained by reason of the
failure to obtain the required vote pursuant to a written consent of
shareholders, or at a duly held meeting of stockholders or at any
adjournment thereof;
(e) by Intracel Parent if there has been a material breach of any
representation, warranty, covenant or agreement contained in this
Agreement on the part of the Company and such breach has not been cured
five business days prior to the Closing Date, after notice to the
Company by Intracel Parent; or
(f) by the Company if there has been a material breach of any
representation, warranty, covenant or agreement contained in this
Agreement on the part of Intracel Parent or Intracel Acquisition Sub and
such breach has not been cured five business days prior to the Closing
Date, after notice to Intracel Parent by the Company.
Section 8.02 Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 8.01 hereof, this Agreement shall forthwith become
void and have no effect, without any liability on the part of any party hereto
or its affiliates, directors, officers or stockholders; provided, however, that
not withstanding the foregoing, nothing contained in this Section 8.02 shall
relieve any party from liability for any breach of this Agreement by such party.
Section 8.03 Amendment. This Agreement may be amended by the parties hereto, by
action taken or authorized by their respective Boards of Directors, at any time
before or after approval of the matters presented in connection with the Merger
by the stockholders of the Company or of Intracel Parent, but, after any such
approval, no amendment shall be made which by law requires further approval by
such stockholders without such further approval. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto.
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Section 8.04 Extension; Waiver. At any time prior to the Effective Time, the
parties hereto may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto and (iii) waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party.
ARTICLE IX
POST CLOSING COVENANTS
In filing federal tax returns at any time, each of Intracel Parent, the
Company and Intracel Acquisition Sub will take consistent filing positions to
the effect that, for federal income tax purposes, the Merger qualifies as a
"reorganization" within the meaning of Section 368(a) of the Code, and no
shareholder is required to recognize income gain or loss with respect thereto.
ARTICLE X
MISCELLANEOUS
Section 10.01 Nonsurvival of Representations and Warranties. The
representations and warranties made herein shall not survive beyond the
Effective Time.
Section 10.02 Notices. All notices and other communications hereunder shall
be in writing (and shall be deemed given upon receipt) if delivered personally,
telecopied (which is confirmed) or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to Intracel Parent or Intracel Acquisition Sub, to
Intracel Corporation
0000 X.X. Xxxxxx Xxxx.
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to
Xxxxxx Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
and
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(b) if to the Company, to
PerImmune Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
with a copy to
Xxxxx Xxxxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxx., XX
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Section 10.03 Descriptive Headings. The descriptive headings herein are
inserted for convenience only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
Section 10.04 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
Section 10.05 Entire Agreement; Assignment. This Agreement and the documents and
instruments and other agreements to be executed on the Closing Date (a)
constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof (other than any confidentiality agreement between the
parties; any provisions of such agreements which are inconsistent with the
transactions contemplated by this Agreement being waived hereby) and (b) shall
not be assigned by operation of law or otherwise, provided that Intracel Parent
may cause Intracel Acquisition Sub to assign its rights and obligations to
Intracel Parent or any other wholly owned subsidiary of Intracel Parent, but no
such assignment shall relieve Intracel Acquisition Sub of its obligations
hereunder if such assignee does not perform such obligations.
Section 10.06 Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware without regard to any
applicable principles of conflicts of law.
Section 10.07 Specific Performance. The parties hereto agree that if any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity.
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Section 10.08 Expenses. Whether or not the Merger is consummated, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses.
Section 10.09 Publicity. Except as otherwise required by law or the rules of
any national securities exchange, for so long as this Agreement is in effect,
neither the Company nor Intracel Parent shall, or shall permit any of its
subsidiaries to, issue or cause the publication of any press release or other
public announcement with respect to the transactions contemplated by this
Agreement without prior consultation with the other party.
Section 10.10 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person or
persons any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
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IN WITNESS WHEREOF, the Company, Intracel Parent and Intracel Acquisition
Sub have caused this Agreement to be signed by their respective officers
thereunto duly authorized as of the date first written above.
PERIMMUNE HOLDINGS, INC.
By
----------------------------------
Name:
Title:
INTRACEL CORPORATION
By
----------------------------------
Name:
Title:
INTRACEL ACQUISITION SUB, INC.
By
----------------------------------
Name:
Title:
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EXHIBIT 2.03(A)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PERIMMUNE HOLDINGS, INC.
Adopted in Accordance with Section 242 and 245
of the Delaware General Corporate Law
* * * * *
FIRST. The name of the corporation is PerImmune Holdings, Inc. The
date of filing of the original Certificate of Incorporation with the Secretary
of State was June 28, 1996, and the name under which it was originally
incorporated was PerImmune Holdings, Inc.
SECOND. This Amended and Restated Certificate of Incorporation
amends, restates and integrates the provisions of the Certificate of
Incorporation of said corporation and has been duly adopted in accordance with
the provisions of Section 242 and 245 of the General Corporation Law of the
State of Delaware (the "DGCL") by the written consent of the holders of the
outstanding stock entitled to vote thereon in accordance with the provisions of
Section 228 of the DGCL.
THIRD. The text of the Certificate of Incorporation is hereby
amended and restated to read in full as follows:
1. The name of the corporation (hereinafter sometimes referred
to as the "Corporation") is PERIMMUNE HOLDINGS, INC.
2. The address of its registered office is in the State or
Delaware is Corporation Trust Center, 0000 Xxxxxx Xxxxxx, in the city of
Wilmington County, County of New Castle. The name of its registered
agent at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Delaware.
4. The total number of shares of stock which the corporation
shall have the authority to issue is One Thousand Five Hundred (1,500)
shares of Common Stock; all of such shares shall be without par value.
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5. The board of directors is authorized to adopt, amend or
repeal the by-laws of the corporation. Election of directors need not be
by written ballot, except and to the extent provided in the By-laws of
the Corporation.
6. The corporation is to have perpetual existence.
7. Any action required or permitted to be taken by the holders
of any class or series of stock of the Corporation, including but not
limited to the election of directors, may be taken by written consent or
consents.
8. A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent that such exemption
from liability or limitation thereof is not permitted under the Delaware
General Corporation Law as currently in effect or as the same may
hereafter be amended. No amendment, modification or repeal of this
Article Eight shall adversely affect any right or protection of a
director that exists at the time of such amendment, modification or
repeal.
IN WITNESS WHEREOF, PerImmune Holdings, Inc. has caused this Certificate
to be signed by Xxxxx X. XxXxxxxx, its Chief Executive Officer, on the 2nd day
of January, 1998.
/s/ XXXXX X. XXXXXXXX
----------------------------------------
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EXHIBIT 2.03(b)
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
INTRACEL CORPORATION
ADOPTED IN ACCORDANCE WITH SECTION 242 AND 245
OF THE DELAWARE GENERAL CORPORATION LAW
FIRST. The name of the corporation is Intracel Corporation. The date
of filing of the original Certificate of Incorporation with the Secretary of
State was April 30, 1997, and the name under which it was originally
incorporated was Intracel Corporation.
SECOND. This Amended and Restated Certificate of Incorporation
amends, restates and integrates the provisions of the Certificate of
Incorporation of said corporation and has been duly adopted in accordance with
the provisions of Section 242 and 245 of the General Corporation Law of the
State of Delaware (the "DGCL") by the written consent of the holders of the
outstanding stock entitled to vote thereon in accordance with the provisions of
Section 228 of the DGCL.
THIRD. The text of the Certificate of Incorporation is hereby
amended and restated to read in full as follows:
ARTICLE 1 NAME
The name of this corporation is Intracel Corporation.
ARTICLE 2 REGISTERED OFFICE AND AGENT
The address of the initial registered office of this corporation is 1013
Centre Road, Wilmington, County of Xxx Xxxxxx, Xxxxx xx Xxxxxxxx 00000, and the
name of its initial registered agent at such address is Corporation Service
Company.
ARTICLE 3 PURPOSES
The purpose of this corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware
ARTICLE 4 SHARES
The total authorized stock of this corporation shall consist of
25,000,000 shares of common stock having a par value of $.0001 per share
("Common Stock") and 5,000,000 shares of preferred stock having a par value of
$.0001 per share ("Preferred Stock"). Authority is hereby expressly granted to
the Board of Directors to fix by resolution or resolutions any of the
designations and the powers, preferences and rights, and the qualifications,
limitations or
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restrictions which are permitted by Delaware General Corporation Law in respect
of any class or classes of stock or any series of any class of stock of this
corporation.
4.1 SERIES A PREFERRED STOCK
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations, or restrictions
thereof in respect of the Series A Preferred Stock of this corporation, $.0001
par value per share ("Series A Preferred Stock"), which shall consist of and be
limited to a number of shares not to exceed 730,000 shares.
4.1.1 VOTING
(a) General. Each holder of outstanding shares of Series A Preferred Stock
shall be entitled to the number of votes equal to the number of whole
shares of Common Stock into which the shares of Series A Preferred Stock
held by such holder are convertible (as adjusted from time to time
pursuant to Section 4.1.4 hereof), multiplied by the number of votes per
share which the holders of shares of Common Stock then have with respect
to such matter, at each meeting of stockholders of this corporation (and
written actions of stockholders in lieu of meetings) with respect to any
and all matters presented to the stockholders of this corporation for
their action or consideration. Except as provided by law or as otherwise
set forth herein, holders of Series A Preferred Stock shall vote
together with the holders of Common Stock (and any other class or series
of stock entitled to vote together as one class with the Common Stock)
as a single class.
(b) Board Seat. The holders of records of the shares of Series A Preferred
Stock, exclusively as a separate class, shall collectively be entitled
to elect one (1) director to this corporation's Board of Directors.
Regarding the election of other directors to this corporation's Board of
Directors, the holders of record of the shares of Common Stock and any
other class or series of stock entitled to vote together as one class
with the Common Stock, as a single class, shall be entitled to elect the
balance of the number of directors of this corporation to be elected in
a given year.
(c) Quorum. At any meeting held for the purpose of electing the director to
be elected exclusively by the holders of Series A Preferred, the
presence in person or by proxy of the holders of a majority of the
shares of Series A Preferred Stock then outstanding shall constitute a
quorum of the Series A Preferred Stock for the purpose of electing such
director by the holders of the Series A Preferred Stock; the holders of
Series A Preferred Stock shall be entitled to cast one vote per share of
Series A Preferred Stock for such purpose; and the director to be
elected exclusively by the holders of Series A Preferred Stock shall be
elected
(d) Removal and Vacancy. The director who shall have been elected
exclusively by the holders of the Series A Preferred Stock may be
removed at any time by, and removed only by, the affirmative vote of the
holders of a majority of the outstanding shares of such class at a
special meeting of such holders called for that purpose. A vacancy in
the directorship filled exclusively by the holders of Series A Preferred
Stock shall be filled
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only by vote or written consent in lieu of a meeting of the holders of
the Series A Preferred Stock.
(e) Covenants. So long as at least 25% of the shares of Series A
Preferred Stock originally authorized remain outstanding, in
addition to any other rights provided by law, without first
obtaining the affirmative vote or written consent of the holders of
not less than 51% of the then outstanding shares of the Series A
Preferred Stock, this corporation shall not:
(i) amend or repeal any provision of, or add any provision to, this
corporation's Certificate of Incorporation or Bylaws if such action
would materially alter or change the preferences, rights, privileges
or powers of, or the restrictions provided for the benefit of, any
Series A Preferred Stock, or increase or decrease the number of
shares of Series A Preferred Stock authorized hereby;
(ii) authorize or issue shares of any class or series of stock not
expressly authorized herein having any preference or priority as to
dividends, assets or other rights superior to any such preference or
priority as to dividends, assets or other rights superior to any
such preference or priority of the Series A Preferred Stock, or
authorize or issue shares of stock of any class or any bonds,
debentures, notes or other obligations convertible into or
exchangeable for, or having option rights to purchase, any shares of
stock of this corporation having any preference or priority as to
dividends, assets or other rights superior to any such preference or
priority of the Series A Preferred Stock;
(iii) pay or declare any dividend on any capital stock of this corporation
which is junior to the Series A Preferred Stock ("Junior Stock")
(other than dividends payable in shares of the class or series upon
which such dividends are declared or paid, or payable in shares of
Common Stock with respect to Junior Stock other than Common Stock,
together with cash in lieu of fractional shares and aggregate
dividends since the last payment of a cash dividend on the Series A
Preferred Stock not in excess of the aggregate cash dividend payment
last made in respect of the Series A Preferred Stock) while the
Series A Preferred Stock remains outstanding, or apply any of its
assets to the redemption, retirement, purchase or acquisition,
directly or indirectly, through subsidiaries or otherwise, of any
Junior Stock, except from employees of this corporation, upon
termination of employment or otherwise, pursuant to the terms of
employee stock purchase or employee stock options plans of general
application which provide for the repurchase of, or right of first
refusal with respect to, such Junior Stock entered into with
participating employees;
(iv) recapitalize or reclassify any shares of capital stock;
(v) merge or consolidate into or with any other corporation (except for
a merger which yields to the holders of the Series A Preferred Stock
an all cash consideration paid at closing equal to the
then-applicable Series A Optional Redemption Price (as defined
below));
(vi) voluntarily liquidate, dissolve or wind up this corporation; or
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(vii) materially change the principal business of this corporation.
4.1.2 DIVIDENDS
(a) The holders of record of outstanding shares of the Series A Preferred
Stock shall be entitled to receive an eight percent (8%) annual dividend
which shall accrue daily, and which shall be calculated on the basis of
the Series A Initial Conversion Price (as defined below) for the Series
A Preferred Stock. All dividend payment, regardless of form, shall be
paid in quarterly installments on each of September 30, December 31,
March 31 and June 30 of each year. At the election of this corporation,
each dividend may be paid either in additional shares of Series A
Preferred Stock or in cash until January 1, 1999 and payable only in
cash from thereafter until July 1, 2001. Dividends paid in additional
shares of Series A Preferred Stock shall be paid in full shares only
with a cash payment (based on an assumed value of $8.00 per share) equal
to the value of any fractional shares. Each dividend paid in cash shall
be mailed to the holders of record of the Series A Preferred Stock as
their names and addresses appear on the share register of this
corporation or at the office of the transfer agent if a dividend is
paid-in-kind, which notification will specify the number of shares of
Series A Preferred Stock paid as a dividend and the recipient's
aggregate holdings of Series A Preferred Stock as of that dividend
payment date and after giving effect to the dividend.
(b) Dividends shall accrue until paid whether or not they have been declared
and whether or not there are profits, surplus, or other funds legally
available for the payment of dividends. At the earlier of: (i) the
redemption of the Series A Preferred Stock; (ii) the filing of a
registration statement in respect of an underwritten public offering of
the type described in Section 4.1.4(b); or (iii) the liquidation, sale
or merger of this corporation, any accrued but undeclared dividends
shall be paid to the holders of record of outstanding shares of Series A
Preferred Stock.
4.1.3 LIQUIDATION
(a) Preferred Stock. Upon any liquidation, dissolution or winding up of this
corporation, whether voluntary or involuntary, the holders of the shares
of the Series A Preferred Stock together with the holders of the shares
of the Series A-1 Preferred Stock, the Series A-3 Preferred Stock, the
Series B-1 Preferred Stock and the Series B-2 Preferred Stock (all as
hereinafter defined), shall first be entitled, before any distribution
or payment is made with respect to the Common Stock or Junior Stock, to
be paid an amount equal to the higher of:
(i) $8.00 per share of the Series A Preferred Stock, Series A-1
Preferred Stock and Series A-3 Preferred Stock, and $45,000 per
share of the Series B-1 Preferred Stock and $50,000 per share of the
Series B-2 Preferred Stock, plus an amount equal to all accrued but
unpaid dividends thereon, computed to the date payment thereof is
made available; or
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(ii) such amount per share of the Series A Preferred Stock, the Series
A-1 Preferred Stock and Series A-3 Preferred Stock, as would have
been payable had each share been converted to Common Stock
immediately prior to such liquidation, dissolution or winding up of
this corporation.
If upon such liquidation, dissolution or winding up of this corporation,
whether voluntary or involuntary, the assets to be distributed among the holders
of the Series A Preferred Stock, the Series A-1 Preferred Stock, Series A-3
Preferred Stock, Series B-1 Preferred Stock and Series B-2 Preferred Stock shall
be insufficient to permit distribution in full to the holders of the Series A
Preferred Stock, the Series A-1 Preferred Stock, Series A-3 Preferred Stock,
Series B-1 Preferred Stock and Series B-2 Preferred Stock of the amounts set
forth in (i) and (ii) of this Section 4.1.3(a), then the entire remaining assets
of this corporation shall be distributed ratably (based on the amount of
distribution to be made pursuant to this Section 4.1.3(a)) among the holders of
the Series A Preferred Stock, the Series A-1 Preferred Stock, Series A-3
Preferred Stock, Series B-1 Preferred Stock and Series B-2 Preferred Stock.
(b) Junior and Common Stock. Upon any such liquidation, dissolution or
winding up of this corporation, only after the holders of the Series A
Preferred Stock, the Series A-1 Preferred Stock, Series A-3 Preferred
Stock, Series B-1 Preferred Stock and Series B-2 Preferred Stock shall
have been paid in full the amounts to which they shall be entitled
pursuant to Section 4.1.2(a), may the remaining net assets of this
corporation be distributed to the holders of Common Stock and Junior
Stock.
(c) Notice. Upon any such liquidation, dissolution or winding up, stating a
payment date and the place where said payments shall be made, shall be
given by mail, postage prepaid, or by telex to non-U.S. residents, not
less than twenty (20) days prior to the payment date stated therein, to
the holders of record of the Series A Preferred Stock, such notice to be
addressed to each such holder at its address as shown on the records of
this corporation.
4.1.4 CONVERSION
The holders of the Series A Preferred Stock shall have conversion rights
as follows (the "Series A Conversion Rights"):
(a) Optional Conversion. Subject to and upon compliance with the provisions
of this Section 4.1.4, the holder of any shares of Series A Preferred
Stock shall have the right at such holder's option, at any time or from
time to time, to convert any of such shares of Series A Preferred Stock
into fully paid and nonassessable shares of Common Stock at the Series A
Conversion Price (as hereinafter defined) in effect on the Series A
Conversion Date (as hereinafter defined) upon the terms hereinafter set
forth. In case any shares of Series A Preferred Stock is called for
redemption, such right of conversion shall terminate at the close of
business on the Series A Mandatory Redemption Date (as hereinafter
defined) or, if this corporation shall default in the payment of the
Series A Mandatory Redemption Price (as hereinafter defined), at the
close of business when such payment is made.
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(b) Automatic Conversion. Each outstanding share of Series A Preferred Stock
shall automatically be converted, without any further act of this
corporation or its stockholders, into fully paid and nonassessable
shares of Common Stock at the Series A Conversion Price then in effect
upon notice by this corporation to the holders of shares of Series A
Preferred Stock of the closing of an underwritten public offering
pursuant to an effective registration statement in Form S-1 or successor
form under the Securities Act of 1933, as amended, covering the offering
and sale of Common Stock for the account of this corporation at a per
share price of at least $8.00 in which the aggregate gross proceeds
received by this corporation has equaled or exceeded $10,000,000,
provided, however, that such closing of an underwritten public offering
occurs no later than September 19, 1998.
(c) Conversion Price. Each share of Series A Preferred Stock shall be
converted into a number of shares of Common Stock determined by dividing
(i) the sum of (A) $8.00 plus (B) the dollar amount of any dividends on
such shares of the Series A Preferred Stock which such holder is
entitled to receive, but has not yet received, by (ii) the Series A
Conversion Price in effect on the Series A Conversion Date. The Series A
Conversion Price at which shares of Common Stock shall initially be
issuable upon conversion of the shares of Series A Preferred Stock shall
be $8.00. The Series A Conversion Price shall be subject to adjustment
as set forth in Section 4.1.4(f). No payment or adjustment shall be made
for any dividends on the Common Stock issuable upon such conversion.
(d) Mechanics of Conversion.
(i) The holder of any shares of Series A Preferred Stock may exercise
the conversion right specified in Section 4.1.4(a) by surrendering
to this corporation or the transfer agent of this corporation the
certificate or certificates for the shares to be converted,
accompanied by written notice specifying the number of shares to be
converted. Upon the occurrence of the event specified in Section
4.1.4(b), the outstanding shares of the Series A Preferred Stock
shall be converted automatically without any further action by the
holders of such shares and whether or not the certificates
representing such shares are surrendered to this corporation or to
its transfer agent, provided that this corporation shall not be
obligated to issue to any such holder certificates evidencing the
shares of Common Stock issuable upon such conversion unless
certificates evidencing the shares of the Series A Preferred Stock
are delivered whether to this corporation or the transfer agent of
their corporation. Conversion shall be deemed to have been effected
on the date when delivery of the notice of an election to convert
and certificates for shares is made or on the date of the occurrence
of the event specified in Section 4.1.4(b), as the case may be, and
such date is referred to herein as the "Series A Conversion Date."
As promptly as practicable thereafter this corporation shall issue
and deliver to or upon the written order of such holder a
certificate or certificates for the number of full shares of Common
Stock to which such holder is entitled and a check or cash with
respect to any fractional interest in a share of Common Stock as
provided in Section 4.1.4(e). The person in whose name the
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certificate or certificates for Common Stock are to be issued shall
be deemed to have become the holder of record of such Common Stock
on the applicable Series A Conversion Date. Upon conversion of only
a portion of the number of shares covered by a certificate
representing shares of the Series A Preferred Stock surrendered for
conversion this corporation shall issue and deliver to or upon the
written order of the holder of the certificate so surrendered for
conversion, at the expense of this corporation, a new certificate
covering the number of shares of the Series A Preferred Stock
representing the unconverted portion of the certificate so
surrendered.
(ii) This corporation shall, at all time when the Series A Preferred
Stock shall be outstanding, reserve and keep available out of its
authorized but unissued capital stock, for the purpose of effecting
the conversion of the Series A Preferred Stock, such number of its
duly authorized shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding Series A
Preferred Stock. Before taking any action which would cause an
adjustment reducing the Series A Conversion Price below the then par
value of the shares of Common Stock issuable upon conversion of the
Series A Preferred Stock, this corporation will take any corporate
action which may be necessary in order that this corporation may
validly and legally issue fully paid and nonassessable shares of
Common Stock at such adjusted Series A Conversion Price.
(iii) All shares of the Series A Preferred Stock which shall have been
surrendered for conversion as herein provided shall no longer be
deemed to be outstanding and all rights with respect to such shares
shall immediately cease and terminate on the Series A Conversion
Date, except only the right of the holders thereof to receive shares
of Common Stock in exchange therefor. Such conversion shall be
deemed to have been made at the close of business on the Series A
Conversion Date, and the person entitled to receive the shares of
Common Stock shall be treated for all purposes as having become the
record holder of such shares of Common Stock at such time. This
corporation shall not re-issue any share of Series A Preferred Stock
surrendered by the holder thereof for conversion.
(e) Fractional Shares. No fractional shares of Common Stock or scrip shall
be issued upon conversion of shares of the Series A Preferred Stock. If
more than one share of the Series A Preferred Stock shall be surrendered
for conversion at any one time by the same holder, the number of full
shares of Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares of the Series A
Preferred Stock so surrendered. Instead of any fractional shares of
Common Stock which would otherwise be issuable upon conversion of any
shares of the Series A Preferred Stock, this corporation shall pay a
cash adjustment in respect of such fractional interest in an amount
equal to that fractional interest of the higher of the current marketing
price or fair market value as determined by the Board of Directors of
this corporation.
(f) Adjustments to Conversion Price for Diluting Issues.
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(i) Special Definitions. For purposes of this Section 4.1.4(f), the
following definitions shall apply:
(A) "Option" shall mean rights, options or warrants to subscribe
for, purchase or otherwise acquire Common Stock or Convertible
Securities, excluding (1) options granted to employees and
Directors of this corporation prior to June 30, 1994 pursuant to
employee benefit plans or employee stock option plans available
for grants to this corporation's executives in general, adopted
by the Board of Directors of this corporation and options
granted to employees, officers, directors and consultants of
PerImmune Holdings, Inc. prior to January 1, 1998 pursuant to
the PerImmune Holdings, Inc. 1996 Stock Option Plan (the
"PerImmune Plan"), (2) 200,000 additional options to purchase
shares of Common Stock granted to employees and directors of
this corporation pursuant to employee benefit plans or employee
stock option plans available for grants to the corporation's
executives in general, subsequent to June 30, 1994 and prior to
July 1, 2001; provided, that each such option shall have an
exercise price equal to or greater than $6.50 per share, (3)
warrants (the "Series A Warrants") issued in connection with the
Convertible Preferred Stock Purchase Agreement dated July 22,
1994 (the "Series A Purchase Agreement") which evidence rights
to purchase an aggregate of 52,000 shares of Common Stock (the
"Series A Warrant Shares") and (4) the Series A-1 Warrants (the
"Series A-1 Warrants") issued in connection with the Warrant
Agreement between this corporation and Dublind Investments,
L.L.C. (the "Series A-1 Warrant Agreement") which evidence
rights to purchase an aggregate of 86,462 shares of Common Stock
(the "Series A-1 Warrant Shares").
(B) "Original Issue Date" shall mean the date on which shares of
Series A Preferred Stock were first issued.
(C) "Convertible Securities" shall mean the evidence of
indebtedness, shares of other securities directly or indirectly
convertible into or exchange for Common Stock.
(D) "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued (or, pursuant to Section 4.1.4(f)(vi),
deemed to be issued) by this corporation after the Original
Issue Date, other than shares of Common Stock issued or
issuable:
(I) upon conversion of shares of Series A Preferred Stock issued
pursuant to the Series A Purchase Agreement or the exercise of
Series A Warrants for Series A Warrant Shares;
(II) upon conversion of shares of Series A-1 Preferred Stock issued
pursuant to the Series A-1 Purchase Agreement, or conversion
of the Series A-3 Preferred Stock, Series B-1 Preferred Stock
or Series B-2 Preferred Stock, or the exercise of the Series
A-1 Warrant for Series A-1 Warrant Shares;
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(III) as a dividend or distribution on the Series A Preferred Stock,
the Series A-1 Preferred Stock, the Series A-2 Preferred
Stock, the Series A-3 Preferred Stock, the Series B-1
Preferred Stock or the Series B-2 Preferred Stock;
(IV) by reason of a dividend, stock split, split-up or other
distribution on shares of Common Stock excluded from the
definition of Additional Shares of Common Stock by the
foregoing clauses (I), (II), and (III) or this clause (IV);
(V) options granted to employees and directors of this corporation
pursuant to employee benefit plans or employee stock option
plans available for grants to this corporation's executives in
general;
(VI) upon conversion of the following promissory notes of PerImmune
Holdings, Inc.: (a) note dated August 2, 1996 in favor of
Organon Teknika Corporation (the "Organon Note") or (b) notes
dated January 14, 1996 in favor of Xx Xxxxx, Xxxxx Xxxxx and
Xxxxxxxx Xxxxx (the "January Notes"); or
(VII) to the holders of shares of common stock, par value $.01 per
share, of PerImmune Holdings, Inc., in connection with the
merger.
(ii) Adjustment for Certain Dividends and Distributions. In the event
this corporation at any time, or from time to time, after the
Original Issue Date shall make or issue, or fix a record date for
the determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in additional shares of
Common Stock, then and in each such event the Series A Conversion
Price then in effect shall be decreased as of the time of such
issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the
Series A Conversion Price then in effect by a fraction:
(A) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record
date, and
(B) the denominator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record
date plus the number of shares of Common Stock issuable in
payment of such dividend or distribution.
(iii) Adjustment for Other Dividends and Distributions. In the event this
corporation at any time or from time to time after the Original
Issue Date shall make or issue, or fix a record date for the
determination of holders of Common Stock entitled to receive a
dividend or other distribution payable in securities of this
corporation other than shares of Common Stock, then and in each such
event provisions shall be made so that the holders of Series A
Preferred Stock shall receive upon conversion thereof, in addition
to the number of shares of Common Stock receivable thereupon, the
amount of securities of this corporation that they would have
received if (A) their Series A
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Preferred Stock had been converted into Common Stock on the date of
such event and (B) they had thereafter retained such securities and
all rights and distributions relating to them.
(iv) Adjustment for Stock Splits, Reclassification, Exchange or
Substitution. If the Common Stock issuable upon the conversion of
the Series A Preferred Stock shall, in accordance herewith, be
changed into the same or a different number of shares of any class
or classes of stock, whether by capital reorganization,
reclassification, or otherwise then and in each such event the
holder of each such shares of Series A Preferred Stock shall have
the right thereafter to convert such share into the kind and amount
of shares of stock and other securities and property receivable upon
such reorganization, reclassification, or other change, by holders
of the number of shares of Common Stock into which such shares of
Series A Preferred Stock were convertible immediately prior to such
reorganization, reclassification or change, all subject to further
adjustment as provided herein. If this corporation shall at any time
or form time to time after the Original Issue Date effect a
subdivision or combination of the outstanding Common Stock, the
Series A Conversion Price then in effect immediately before the
subdivision shall be proportionately decreased or increased
effective at the close of business on the date the subdivision or
combination becomes effective.
(v) Adjustment for Merger or Reorganization, etc. In case of any
consolidation or merger of this corporation with or into another
corporation or the sale of all or substantially all of the assets of
this corporation to another corporation in accordance herewith, each
share of Series A Preferred Stock shall thereafter be convertible
for the kind and amount of shares of stock or other securities or
property which a holder of the number of shares of Common Stock of
this corporation deliverable upon conversion of such Series A
Preferred Stock would have been entitled upon such consolidation,
merger or sale; and, in such case, appropriate adjustment (as
determined in good faith by the Board of Directors) shall be made in
the application of the provisions in this Section 4.1.4 set forth
with respect to the rights and interest thereafter of the holders of
the Series A Preferred Stock, to the end that the provisions set
forth in this Section 4.1.4 (including provisions with respect to
changes in and other adjustments of the Series A Conversion Price)
shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other property thereafter
deliverable upon the conversion of the Series A Preferred Stock.
(vi) Adjustment For Issuance or Deemed Issuance of Additional Shares of
Common Stock. If the corporation at any time or from time to time
after the Original Issue Date shall issue any Options or Convertible
Securities or shall fix a record date for the determination of
holders of any class of securities entitled to receive any such
Options or Convertible Securities, then the maximum number of shares
of Common Stock issued or issuable upon the exercise of such Options
or, in the case of Convertible Securities and Options therefor, the
conversion or exchange of such Convertible Securities, shall be
deemed to be Additional Shares of Common Stock. In any such case in
which Additional Shares of Common Stock are deemed to be issued:
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(A) If such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase
or decrease in the consideration payable to this corporation, or
increase or decrease in the number of shares of Common Stock
issuable, upon the exercise, conversion or exchange thereof, the
Series A Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based thereon, shall,
upon any such increase or decrease becoming effective, be
recomputed to reflect such increase or decrease insofar as it
affects such Options or the rights of conversion or exchange
under such Convertible Securities;
(B) Upon the expiration, termination or other retirement of any
unexercised Option or Convertible Security, the Series A
Conversion Price shall be readjusted to reflect such event; and
(C) No readjustment pursuant to clause (A) or (B) above shall have
the effect of increasing the Series A Conversion Price to an
amount which exceeds the Series A Conversion Price on the date
of original issuance of Options or Convertible Securities;
Upon the issuance or deemed issuance of any Additional Shares of
Common Stock without consideration or for a consideration per share less than
the applicable Series A Conversion Price in effect on the date of and
immediately prior to such issue, then and in such event, such Series A
Conversion Price shall be reduced, concurrently with such issue, to a price
(calculated to the nearest cent) determined by multiplying such Series A
Conversion Price by a fraction, (A) the numerator of which shall be (1) the
number of shares of Common Stock outstanding immediately prior to such issue
plus (2) the number of shares of Common Stock which the aggregate consideration
received by this corporation for the total number of Additional Shares of Common
Stock so issued would purchase at such Series A Conversion Price; and (B) the
denominator of which shall be the number of shares of Common Stock outstanding
immediately prior to such issue plus the number of such Additional Shares of
Common Stock so issued; provided, that, immediately after any Additional Shares
of Common Stock are issued or deemed issued and the Series A Conversion Price
has been appropriately reduced, then such Additional Shares of Common Stock
shall be deemed to be outstanding for all subsequent applications of this
Section 4.1.4(f).
(vii) Determination of Consideration. For purposes of this Section
4.1.4(f), the consideration received by this corporation for the
issue of any Additional Shares of Common Stock issued or deemed to
have been issued shall be computed as follows:
(A) Cash and Property. Such consideration shall:
(I) insofar as it consists of cash, be computed at the aggregate
of cash received by this corporation for the Additional Shares
of Common Stock,
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(II) insofar as it consists of property other than cash, be the
fair market value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and
(III) in the event Additional Shares of Common Stock are issued
together with other shares or securities or other assets of
this corporation for consideration which covers both, be the
portion of such consideration which covers both, be the
portion of such consideration so received which is, in the
judgment of the Board of Directors allocated to the Common
Stock, computed as provided in clauses (I) and (II) above, as
determined in good faith by the Board of Directors.
(B) Options and Convertible Securities. The consideration per share
received by this corporation for Additional Shares of Common
Stock deemed to have been issued pursuant to Section
4.1.4(f)(vi), relating to Options and Convertible Securities,
shall be determined by dividing
(x) the total amount, if any, received or
receivable by this corporation as consideration for the
issue of such Options or Convertible Securities, plus
the minimum aggregate amount of additional consideration
(as set forth in the instruments relating thereto,
without regard to any provision contained therein for a
subsequent adjustment of such consideration) payable to
this corporation upon the exercise of such Options or
the conversion or exchange of such Convertible
Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such
Convertible Securities, by
(y) the maximum number of shares of Common Stock
(as set forth in the instrument relating thereto,
without regard to any provision contained therein for a
subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion or exchange
of such Convertible Securities, or in the case of
Options for Convertible Securities and the conversion or
exchange of such Convertible Securities.
(viii) No De Minimis Adjustments. The applicable Series A Conversion Price
shall not be so reduced at such time if the amount of such reduction
would be an amount less than $.01, but any such amount shall be
carried forward and reduction with respect thereto made at the time
of and together with any subsequent reduction which, together with
such amount and any of the amount or amounts so carried forward,
shall aggregate $.01 or more.
(g) [Intentionally Omitted]
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(h) No Impairment. This corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary actin, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by
this corporation but will at all times in good faith assist in the
carrying out of all the provisions of this Section 4.1.4 and in the
taking of all such action as may be necessary or appropriate in order to
protect the Series A Conversion Rights against impairment.
(i) Certificate as to Adjustment. Upon the occurrence of each adjustment or
readjustment of the Series A Conversion Price pursuant to this Section
4.1.4, this corporation at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms thereof and
furnish to each holder of Series A Preferred Stock a certificate setting
forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. This corporation
shall, upon the written request at any time of any holder of Series A
Preferred Stock, furnish or cause to be furnished to such holder a
similar certificate setting forth (i) such adjustment and readjustments,
(ii) the Series A Conversion Price then in effect, and (iii) the number
of shares of Common Stock and the amount, fi any, of other property
which then would be received upon the conversion of the Series A
Preferred Stock.
(j) Notice of Record Date. In the event:
(i) that this corporation declares a dividend (or any other
distribution) on its Common Stock payable in Common Stock or other
securities of this corporation;
(ii) that this corporation subdivides or combines its outstanding shares
of Common Stock;
(iii) of any reclassification of the Common Stock of this corporation
(other than a subdivision or combination of its outstanding shares
of Common Stock or a stock dividend or stock distribution thereon),
or of any consolidation or merger of this corporation into or with
another corporation, or of the sale of all or substantially all of
the assets of this corporation; or
(iv) of the involuntary or voluntary dissolution, liquidation or winding
up of this corporation;
Then this corporation shall cause to be filed at its principal office or at the
office of the transfer agent of the Series A Preferred Stock, and shall cause to
be mailed to the holders of the Series A Preferred Stock at their last addressed
as shown on the records of this corporation or such transfer agent, at least
fifteen (15) days prior to the record date specified in (A) below and at least
thirty (30) days before the date specified in (B) below, a notice stating
(A) the record date of such dividend, distribution, subdivision or
combination, or, if a record is not to be taken, the date as of
which the holders of Common Stock of
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record to be entitled to such dividend, distribution,
subdivision or combination are to be determined, or
(B) the date of which any reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that
holders of Common Stock or record shall be entitled to exchange
their shares of Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger,
sale, dissolution or winding up.
4.1.5 REDEMPTION BY THIS CORPORATION
(a) Mandatory Redemption.
(i) In the event that on July 1, 2001 (the "Series A Mandatory
Redemption Date") there are any shares of Series A Preferred Stock
still outstanding, this corporation shall redeem any and all such
shares of Series A Preferred Stock for an amount, payable in cash,
equal to $8.00 plus an amount equal to all dividends accrued
thereon, computed to the date payment thereof is made available. The
total sum payable per share of Series A Preferred Stock on the
Series A Mandatory Redemption Date is referred to as the "Series A
Mandatory Redemption Price."
(ii) Payment. Holders of record of shares of Series A Preferred Stock to
be redeemed on the Series A Mandatory Redemption Date shall be
entitled to receive the applicable Series A Mandatory Redemption
Price upon actual delivery to this corporation or the transfer agent
of the certificates representing the shares entitled to be redeemed.
If upon the Series A Mandatory Redemption Date the assets of this
corporation available for redemption are insufficient to pay the
holders of outstanding shares of Series A Preferred Stock and Series
A-1 Preferred Stock the full amounts to which they are entitled,
such holders of shares of Series A Preferred Stock and Series A-1
Preferred Stock shall share ratably according to the respective
amounts which would be payable in respect of such shares to be
redeemed by the holders thereof, if all amounts payable on or with
respect to such shares were paid in full.
(b) Optional Redemption.
(i) Upon the occurrence of any Series A Optional Redemption Event this
corporation will, by notice given to each holder of Series A
Preferred Stock, offer to redeem all (but not fewer than all) shares
of Series A Preferred Stock then owned by such holder at a price
equal to:
105.334% of the Series A Mandatory Redemption Price if such
offer to redeem is made prior to July 1, 1998;
104.001% of the Series A Mandatory Redemption Price if such
offer to redeem is made prior to July 1, 1999;
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102.668% of the Series A Mandatory Redemption Price if such
offer to redeem is made subsequent to June 30, 1999 and prior to July 1, 2000;
101.335% of the Series A Mandatory Redemption Price if such
offer to redeem is made subsequent to June 30, 2000 and prior to July 1, 2001;
(ii) Upon receipt of a notice given pursuant to Section 4.1.5(b), each
holder of Series A Preferred Stock shall have the right to accept
such offer by tender in such holder's shares to this corporation for
redemption, at an address to be set froth in such notice, at any
time prior to 5:00 p.m. Seattle, Washington time on the 15th day
following the making of the offer to redeem by notice given as
prescribed herein.
(A) The occurrence of a Change of Control shall be a Series A
Optional Redemption Event, which shall be deemed to have
occurred if:
1. any person or group of related or affiliated
persons shall have become the beneficial owner or owners
of 40% or more of the outstanding voting stock of this
corporation; provided, however, that beneficial
ownership of Series A Preferred Stock shall not be given
effect toward counting a person's or group of related or
affiliated persons' beneficial ownership;
2. there shall have occurred a merger or
consolidation in which this corporation is not the
survivor or in which holders of Common Stock of this
corporation shall have become entitled to receive cash,
securities of this corporation other than voting Common
Stock or securities of any other person, except that a
merger or consolidation which occurs for the sole
purpose of moving the jurisdiction of incorporation
(i.e., a reincorporation) shall not be deemed a Series A
Optional Redemption Event;
3. at any time a majority of the members of the
Board of Directors of this corporation shall be persons
who were elected at one or more meetings held, or by one
or more consents given, by the stockholders of this
corporation during the preceding twelve (12) months and
who were not members of the Board of Directors twelve
(12) months prior to that time; or
4. if this corporation shall take any action
referred to in Section 4.1.1(e)(i) through Section
4.1.1(e)(vi) without having obtained the required
consent of the holders of Series A Preferred Stock.
(c) Cancellation of Redeemed Stock. Any shares of Series A Preferred Stock
redeemed pursuant to this Section 4.1.5 or otherwise acquired by this
corporation in any manner whatsoever shall be canceled and shall not
under any circumstances be reissued; and
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this corporation may from time to time take such appropriate corporate
action as may be necessary to reduce accordingly the number of
authorized shares of this corporation's capital stock.
4.2 SERIES A-1 PREFERRED STOCK
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations, or restrictions
thereof in respect of the Series A-1 Preferred Stock of this corporation, $.0001
par value per share("Series A-1 Preferred Stock"), which shall consist of and be
limited to a number of shares not to exceed 850,000 shares.
4.2.1 VOTING
(a) General. Each holder of outstanding shares of Series A-1 Preferred Stock
shall be entitled to the number of votes equal to the number of whole
shares of Common Stock into which the shares of Series A-1 Preferred
Stock held by such holder are convertible (as adjusted from time to time
pursuant to Section 4.2.4 hereof), multiplied by the number of votes per
share which the holders of shares of Common Stock then have with respect
to such matter, at each meeting of stockholders of this corporation (and
written actions of stockholders in lieu of meetings) with respect to any
and all matters presented to the stockholders of this corporation for
their action or consideration. Except as provided by law or as otherwise
set forth herein, holders of Series A-1 Preferred Stock shall vote
together with the holders of Common Stock (and any other class or series
of stock entitled to vote together as one class with the Common Stock)
as a single class.
(b) Covenants. So long as at least 25% of the shares of Series A-1 Preferred
Stock originally authorized remain outstanding, in addition to any other
rights provided by law, without first obtaining the affirmative votes or
written consent of the holders of not less than 51% of the then
outstanding shares of the Series A-1 Preferred Stock, this corporation
shall not:
(i) amend or repeal any provision of, or add any provision to, this
corporation's Certificate of Incorporation or Bylaws if such action
would materially alter or change the preferences, rights, privileges
or power of, or the restrictions provided for the benefit of, any
Series A-1 Preferred Stock, or increase or decrease the number of
shares of Series A-1 Preferred Stock authorized hereby;
(ii) authorize or issue shares of any class or series of stock not
expressly authorized herein having any preference or priority as to
dividends, assets or other rights superior to any such preference or
priority of the Series A-1 Preferred Stock, or authorize or issue
shares of stock of any class or any bonds, debentures, notes or
other obligations convertible into or exchange for, or having option
rights to purchase, any shares of stock of this corporation having
any preference or priority as to dividends, assets or other rights
superior to any such preference or priority of the Series A-1
Preferred Stock;
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(iii) pay or declare any dividend on Junior Stock (other than dividends
payable in shares of the class or series upon which such dividends
are declared or paid, or payable in shares of Common Stock with
respect to Junior Stock other than Common Stock, together with cash
in lieu of fractional shares and aggregate dividends since the last
payment of a cash dividend on the Series A-1 Preferred Stock not in
excess of the aggregate cash dividend payment last made in respect
of the Series A-1 Preferred Stock) while the Series A-1 Preferred
Stock remains outstanding, or apply any of its assets to the
redemption, retirement, purchase or acquisition, directly or
indirectly, through subsidiaries or otherwise, of any Junior Stock,
except from employees of this corporation, upon termination of
employment or otherwise, pursuant to the terms of employee stock
purchase or employee stock option plans of general application which
provide for the repurchase of, or right of first refusal with
respect to, such Junior Stock entered into with participating
employees;
(iv) recapitalize or reclassify any shares of capital stock;
(v) merge or consolidate into or with any other corporation (except for
a merger which yields to the holders of the Series A-1 Preferred
Stock an all cash consideration paid at closing equal to the
then-applicable Series A-1 Optional Redemption Price (as defined
below));
(vi) voluntarily liquidate, dissolve or wind up this corporation; or
(vii) materially change the principal business of this corporation.
4.2.2 DIVIDENDS
(a) The holders of record of outstanding shares of the Series A-1 Preferred
Stock shall be entitled to receive an eight percent (8%) annual dividend
which shall accrue daily, and which shall be calculated on the basis of
the initial Series A-1 Conversion Price (as defined below) for the
Series A-1 Preferred Stock. All dividend payments, regardless of form,
shall be paid in quarterly installments on each of September 30,
December 31, March 31 and June 30 of each year. At the election of the
corporation, each dividend may be paid either in additional shares of
Series A-1 Preferred Stock or in cash until January 1, 1999 and payable
only in cash from thereafter until July 1, 2002. Dividends paid in
additional shares of Series A-1 Preferred Stock shall be paid in full
shares only with a cash payment (based on an assumed value of $8.00 per
share) equal to the value of any fractional shares. Each dividend paid
in cash shall be mailed to the holders of record of the Series A-1
Preferred Stock as their names and addresses appear on the share
register of this corporation or at the office of the transfer agent on
the corresponding dividend payment date. Holders of Series A-1 Preferred
Stock will receive written notification from this corporation or the
transfer agent if a dividend is paid-in-kind, which notification will
specify the number of shares of Series A-1 Preferred Stock paid as a
dividend and the recipient's aggregate holdings of Series A-1 Preferred
Stock as of that dividend payment date and after giving effect to the
dividend.
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(b) Dividends shall accrue until paid whether or not they have been declared
and whether or not there are profits, surplus, or other funds legally
available for the payment of dividends. At the earlier of: (i) the
redemption of the Series A-1 Preferred Stock; (ii) the filling of a
registration statement in respect of an underwritten public offering of
the type described in Section 4.2.4(b); or (iii) the liquidation, sale
or merger of this corporation, any accrued but undeclared dividends
shall be paid to the holders of record of outstanding shares of Series
A-1 Preferred Stock.
4.2.3 LIQUIDATION
(a) Preferred Stock. The provisions of Section 4.1.3(a) shall be
incorporated by reference with respect to the Series A-1 Preferred
Stock.
(b) Junior and Common Stock. The provisions of Section 4.1.3(b) shall be
incorporated by reference with respect to the Series A-1 Preferred
Stock.
(c) Notice. Written notice of such liquidation, dissolution or winding up,
stating a payment date and the place where said payments shall be made,
shall be given by mail, postage prepaid, or by telex to non-U.S.
residents, not less than twenty (20) days prior to the payment date
stated therein, to the holders of record of the Series A-1 Preferred
Stock, such notice to be addressed to each such holder at its address as
shown on the records of this corporation.
4.2.4 CONVERSION
The holders of the Series A-1 Preferred Stock shall have conversion
rights as follows (the "Series A-1 Conversion Rights"):
(a) Optional Conversion. Subject to and upon compliance with the provisions
of this Section 4.2.4, the holders of any shares of Series A-1 Preferred
Stock shall have the right at such holder's option, at any time or from
time to time, to convert any of such shares of Series A-1 Preferred
Stock into fully paid and nonassessable shares of Common Stock at the
Series A-1 Conversion Price (as hereinafter defined) in effect on the
Series A-1 Conversion Date (as hereinafter defined) upon the terms
hereinafter set forth. In case any share of Series A-1 Preferred Stock
is called for redemption, such right of conversion shall terminate at
the close of business on the Series A-1 Mandatory Redemption Date (as
hereinafter defined) or, if this corporation shall default in the
payment of the Series A-1 Mandatory Redemption Price (as hereinafter
defined), at the close of business when such payment is made.
(b) Automatic Conversion. Each outstanding share of Series A-1 Preferred
Stock shall automatically be converted, without any further act of this
corporation or its stockholders, into fully paid and nonassessable
shares of Common Stock at the Series A-1 Conversion Price then in effect
upon notice by this corporation to the holders of shares of Series A-1
Preferred Stock of the closing of an underwritten public offering
pursuant to an effective registration statement on Form S-1 or successor
form under the
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Securities Act of 1933, as amended, covering the offering and sale of
Common Stock for the account of this corporation at a per share price of
at least $8.00 in which due aggregate gross proceeds received by this
corporation has equaled or exceeded $10,000,000; provided, however, that
such closing of an underwritten public offering occurs no later than
September 19, 1998.
(c) Conversion Price. Each share of Series A-1 Preferred Stock shall be
converted into a number of shares of Common Stock determined by dividing
(i) the sum of (A) $8.00 plus (B) the dollar amount of any dividends on
such share of the Series A-1 Preferred Stock which such holder is
entitled to received, but has not yet received, by (ii) the Series A-1
Conversion Price in effect on the Series A-1 Conversion Date. The Series
A-1 Conversion Price at which shares of Common Stock shall initially be
issuable upon conversion of the shares of Series A-1 Preferred Stock
shall be $8.00. The Series A-1 Conversion Price shall be subject to
adjustment as set forth in Section 4.2.4(f). No payment or adjustment
shall be made for any dividends on the Common Stock issuable upon such
conversion.
(d) Mechanics of Conversion.
(i) The holder of any shares of Series A-1 Preferred Stock may exercise
the conversion right specified in Section 4.2.4(a) by surrendering
to this corporation or the transfer agent of this corporation the
certificate or certificates for the shares to be converted. Upon the
occurrence of the event specified in Section 4.2.4(b), the
outstanding shares of the Series A-1 Preferred Stock shall be
converted automatically without any further action by the holders of
such shares and whether or not the certificates representing such
shares are surrendered to this corporation or its transfer agent;
provided that this corporation shall not be obligated to issue to
any such holder certificates evidencing the shares of Common Stock
issuable upon such conversion unless certificates evidencing the
shares of the Series A-1 Preferred Stock are delivered either to
this corporation or the transfer agent of this corporation.
Conversion shall be deemed to have been effected on the date when
delivery of the notice of an election to convert and certificates
for shares is made or on the date of the occurrence of the event
specified in Section 4.2.4(b), as the case may be, and such date is
referred to herein as the "Series A-1 Conversion Date." As promptly
as practicable thereafter this corporation shall issue and deliver
to or upon the written order of such holder a certificate or
certificates for the number of full shares of Common Stock to which
such holder is entitled and a check or cash with respect to any
fractional interest in a shares of Common Stock as provided in
Section 4.2.4(e). The person in whose name the certificate or
certificates for Common Stock are to be issued shall be deemed to
have become the holder of record of such Common Stock on the
applicable Series A-1 Conversion Date. Upon conversion of only a
portion of the number of shares covered by a certificate
representing shares of the Series A-1 Preferred Stock surrendered
for conversion this corporation shall issue and deliver to or upon
the written order of the holder of the certificate covering the
number of shares of the Series A-1 Preferred Stock representing the
unconverted portion of the certificate so surrendered.
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(ii) This corporation shall, at all times when the Series A-1 Preferred
Stock shall be outstanding, reserve and keep available out of its
authorized but unissued capital stock, for the purpose of effecting
the conversion of the Series A-1 Preferred Stock, such number of its
duly authorized shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding Series A-1
Preferred Stock. Before taking any action which would cause an
adjustment reducing the Series A-1 Conversion Price below the then
par value of the shares of Common Stock issuable upon conversion of
the Series A-1 Preferred Stock, this corporation will take any
corporation action which may be necessary in order that this
corporation may validly and legally issue fully paid and
nonassessable shares of Common Stock at such adjusted Series A-1
Conversion Price.
(iii) All shares of the Series A-1 Preferred Stock which shall have been
surrendered for conversion as herein provided shall no longer be
deemed to be outstanding and all rights with respect to such shares
shall immediately cease and terminate on the Series A-1 Conversion
Date, except only the right of the holders thereof to receive shares
of Common Stock in exchange therefor. Such conversion shall be
deemed to have been made at the close of business on the Series A-1
Conversion Date, and the person entitled to receive the shares of
Common Stock shall be treated for all purposes as having become the
record holder of such shares of Common Stock at such time. This
corporation shall not re-issue any share of Series A-1 Preferred
Stock surrendered by the holder thereof for conversion.
(e) Fractional Shares. No fractional shares of Common Stock or scrip shall
be issued upon conversion of shares as of the Series A-1 Preferred
Stock. If more than one share of the Series A-1 Preferred Stock shall be
surrendered for conversion at any one time by the same holder, the
number of full shares of Common Stock issuable upon conversion thereof
shall be computed on the basis of the aggregate number of shares of the
Series A-1 Preferred Stock so surrendered. Instead of any fractional
shares of Common Stock which would otherwise be issuable upon conversion
of any shares of the Series A-1 Preferred Stock, this corporation shall
pay a cash adjustment in respect of such fractional interest in an
amount equal to that fractional interest of the higher of the current
market price or fair market value as determined by the Board of
Directors of this corporation.
(f) Adjustments to Conversion Price for Diluting Issues.
(i) Special Definitions. For purposes of this Section 4.24(f), the
following definitions shall apply:
(A) "Option" shall mean rights, options or warrants to subscribe
for, purchase or otherwise acquire Common Stock or Convertible
Securities, excluding (1) options granted to employees and
Directors of this corporation prior to June 30, 1995 pursuant to
employee benefit plans or employee stock option plans available
for grants to this corporation's executives in general, adopted
by the Board of
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Directors of this corporation and options granted prior to
January 1, 1998 under the PerImmune Plan, (2) 200,000 additional
options to purchase shares of Common Stock granted to employees
and directors of this corporation pursuant to employee benefit
plans or employee stock option plans available for grants to
this corporation's executives in general, subsequent to June 30,
1995 and prior to July 1, 2002; provided, that each such option
shall have an exercise price equal to or greater than $6.50 per
shares, (3) the Series A Warrants which evidence rights to
purchase an aggregate of 52,000 Series A Warrant Shares, and (4)
the Series A-1 Warrants which evidence the right to purchase
86,462 Series A-1 Warrant Shares.
(B) "Original Issue Date" shall mean the date on which shares of
Series A-1 Preferred Stock were first issued.
(C) "Convertible Securities" shall mean any evidence of
indebtedness, shares of other securities directly or indirectly
convertible into or exchangeable for Common Stock.
(D) "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued (or, pursuant to Section 4.2.3(f)(vi),
deemed to be issued) by this corporation after the Original
Issue Date, other than shares of Common Stock issued or
issuable:
(I) upon conversion of shares of Series A Preferred Stock issued
pursuant to the Series A Purchase Agreement or the exercise of
Series A Warrant for Series A Warrant Shares;
(II) upon conversion of shares of Series A-1 Preferred Stock issued
pursuant to the Series A-1 Purchase Agreement, or conversion
of the Series A-3 Preferred Stock, Series B-1 Preferred Stock
or Series B-2 Preferred Stock, or the exercise of the Series
A-1 Warrant for Series A-1 Warrant Shares:
(III) as a dividend or distribution on the Series A Preferred Stock,
the Series A-1 Preferred Stock, the Series A-2 Preferred
Stock, the Series A-3 Preferred Stock, the Series B-1
Preferred Stock and the Series B-2 Preferred Stock;
(IV) by reason of a dividend, stock split, split-up or other
distribution on shares of Common Stock excluded from the
definition of Additional Shares of Common stock by the
foregoing clauses (I), (II), and (III) or this clause (IV);
(V) options granted to employees and directors of this corporation
pursuant to employee benefit plans or employee stock option
plans available for grants to this corporation's executives in
general;
(VI) upon conversion of the Organon Note or the January Notes; or
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(VII) to the holders of shares of common stock, par value $.01 per
share, of PerImmune Holdings, Inc., in connection with the
merger.
(ii) Adjustment for Certain Dividends and Distributions. In the event
this corporation at any time, or from time to time, after the
Original Issue Date shall make or issue, or fix a record date for
the determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in additional shares of
Common Stock, then and in each such event the Series A-1 Conversion
Price then in effect shall be decreased as of the time of such
issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the
Series A-1 Conversion Price then in effect by a fraction:
(A) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record
date, and
(B) the denominator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record
date plus the number of shares of Common Stock issuable in
payment of such dividend or distribution.
(iii) Adjustments for Other Dividends and Distributions. In the event this
corporation at any time or from time to time after the Original
Issue Date shall make or issue, or fix a record date for the
determination of holders of Common Stock entitled to receive a
dividend or other distribution payable in securities of this
corporation other than shares of Common Stock, then and in each such
event provision shall be made so that the holders of Series A-1
Preferred Stock shall receive upon conversion thereof in addition
the number of shares of Common Stock receivable thereupon, the
amount of securities of this corporation that they would have
received in (A) their Series A-1 Preferred Stock had been converted
into Common Stock on the date of such event and (B) they had
thereafter retained such securities and all rights and distributions
relating to them.
(iv) Adjustment for Stock Splits, Reclassification, Exchange, or
Substitution. If the Common Stock issuable upon the conversion of
the Series A-1 Preferred Stock shall, in accordance herewith, be
changed into the same or a different number of shares of any class
or classes of stock, whether by capital reorganization,
reclassification, or otherwise then and in each such event the
holder of each such share of Series A-1 Preferred Stock shall have
the right thereafter to convert such share into the kind and amount
of shares of stock and other securities and property receivable upon
such reorganization, reclassification, or other change, by holders
of the number of shares of Common Stock into which such shares of
Series A-1 Preferred Stock were convertible immediately prior to
such reorganization, reclassification or change, all subject to
further adjustment as provided herein. If this corporation shall at
any time or from to time after the Original Issue Date effect a
subdivision or combination of the
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outstanding Common Stock, the Series A-1 Conversion Price then in
effect immediately before the subdivision shall be proportionately
decreased or increased effective at the close of business on the ate
the subdivision or combination becomes effective.
(v) Adjustment for Merger or Reorganization, etc. In case of any
consolidation or merger of this corporation with or into another
corporation or the sale of all or substantially all of the assets of
this corporation to another corporation in accordance herewith, each
share of Series A-1 Preferred Stock shall thereafter be convertible
for the kind and amount of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock
of this corporation deliverable upon conversion of such Series A-1
Preferred Stock would have been entitled upon such consolidation,
merger or sale; and, in such case, appropriate adjustment (as
determined in good faith by the Board of Directors) shall be made in
the application of the provisions in this Section 4.2.3 (including
provisions with respect to changes in and other adjustments of the
Series A-1 Conversion Price) shall thereafter be applicable, as
nearly as reasonably may be, in relation to any shares of stock or
other property thereafter deliverable upon the conversion of the
Series A-1 Preferred Stock.
(vi) Adjustment for Issuance or Deemed Issuance of Additional Shares of
Common Stock. If this corporation at any time or from time to time
after the Original Issue Date shall issue any Options or Convertible
Securities or shall fix a record date for the determination of
holders of any class of securities entitled to receive any such
Options or Convertible Securities, then the maximum number of shares
of Common Stock issued or issuable upon the exercise of such Options
or, in the case of Convertible Securities, shall be deemed to be
Additional Shares of Common Stock. In any such case in which
Additional Shares of Common Stock are deemed to be issued:
(A) If such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase
or decrease in the consideration payable to this corporation, or
increase or decrease in the number of shares of Common Stock
issuable, upon the exercise, conversion or exchange thereof, the
Series A-1 Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based thereon, shall,
upon any such increase or decrease becoming effective, be
recomputed to reflect such increase or decrease insofar as it
affects such Options or the rights of conversion or exchange
under such Convertible Securities;
(B) Upon the expiration, termination or other retirement of any
unexercised Option or Convertible Securities, the Series A-1
Conversion Price shall be readjusted to reflect such event; and
(C) No readjustment pursuant to clause (A) or (B) above shall have
the effect of increasing the Series A-1 Conversion Price to an
amount which exceeds the
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Series A-1 Conversion Price on the date of original issuance of
such Options or Convertible Securities:
Upon the issuance or deemed issuance of any Additional Shares of
Common Stock without consideration or for a consideration per share less than
the applicable Series A-1 Conversion Price in effect on the date of and
immediately prior to such issue, then and in such event, such Series A-1
Conversion Price shall be reduced, concurrently with such issue, to a price
(calculated to the nearest cent) determined by multiplying such Series A-1
Conversion Price by a fraction, (A) the numerator of which shall be (1) the
number of shares of Common Stock outstanding immediately prior to such issue
plus (2) the number of shares of Common Stock which the aggregate consideration
received by this corporation for the total number of Additional Shares of Common
Stock so issued would purchase at such Series A-1 Conversion Price; and (B) the
denominator of which shall be the number of such Additional Shares of Common
Stock so issued; provided, that, immediately after any Additional Shares of
Common Stock are issued or deemed issued and the Series A-1 Conversion Price has
been appropriately reduced, then such Additional Shares of Common Stock shall be
deemed to be outstanding for all subsequent applications of this Section
4.2.4(f).
(vii) Determination of Consideration. For purposes of this Section
4.2.4(f), the consideration received by this corporation for the
issue of any Additional Shares of Common Stock issued or deemed to
have been issued shall be computed as follows:
(A) Cash and Property. Such consideration shall:
(I) insofar as it consists of cash, be computed at the aggregate
of cash received by this corporation for the Additional Shares
of Common Stock,
(II) insofar as it consists of property other than cash, be the
fair market value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and
(III) in the event Additional Shares of Common Stock are issued
together with other shares or securities or other assets of
this corporation for consideration which covers both, be the
portion of such consideration which covers both, be the
portion of such consideration so received which is, in the
judgment of the Board of Directors allocated to the Common
Stock, computed as provided in clauses (I) and (II) above, as
determined in good faith by the Board of Directors.
(B) Options and Convertible Securities. The consideration per share
received by this corporation for Additional Shares of Common
Stock deemed to have been issued pursuant to Section
4.2.4(f)(vi), relating to Options and Convertible Securities,
shall be determined by dividing
(x) the total amount, if any, received or
receivable by this corporation as consideration for the
issue of such Options or Convertible Securities, plus
the
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minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without
regard to any provision contained therein for a
subsequent adjustment of such consideration) payable to
this corporation upon the exercise of such Options or
the conversion or exchange of such Convertible
Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such
Convertible Securities, by
(y) the maximum number of shares of Common Stock
(as set forth in the instrument relating thereto,
without regard to any provision contained therein for a
subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion or exchange
of such Convertible Securities, or in the case of
Options for Convertible Securities and the conversion or
exchange of such Convertible Securities.
(viii) No De Minimis Adjustments. The applicable Series A-1 Conversion
Price shall not be so reduced at such time if the amount of such
reduction would be an amount less than $.01, but any such amount
shall be carried forward and reduction with respect thereto made at
the time of and together with any subsequent reduction which,
together with such amount and any of the amount or amounts so
carried forward, shall aggregate $.01 or more.
(g) [Intentionally Omitted]
(h) No Impairment. This corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary actin, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by
this corporation but will at all times in good faith assist in the
carrying out of all the provisions of this Section 4.2.4 and in the
taking of all such action as may be necessary or appropriate in order to
protect the Series A-1 Conversion Rights against impairment.
(i) Certificate as to Adjustment. Upon the occurrence of each adjustment or
readjustment of the Series A-1 Conversion Price pursuant to this Section
4.2.4, this corporation at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms thereof and
furnish to each holder of Series A-1 Preferred Stock a certificate
setting forth such adjustment or readjustment and showing in detail the
facts upon which such adjustment or readjustment is based. This
corporation shall, upon the written request at any time of any holder of
Series A-1 Preferred Stock, furnish or cause to be furnished to such
holder a similar certificate setting forth (i) such adjustment and
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readjustments, (ii) the Series A-1 Conversion Price then in effect, and
(iii) the number of shares of Common Stock and the amount, fi any, of
other property which then would be received upon the conversion of the
Series A-1 Preferred Stock.
(j) Notice of Record Date. In the event:
(i) that this corporation declares a dividend (or any other
distribution) on its Common Stock payable in Common Stock or other
securities of this corporation;
(ii) that this corporation subdivides or combines its outstanding shares
of Common Stock;
(iii) of any reclassification of the Common Stock of this corporation
(other than a subdivision or combination of its outstanding shares
of Common Stock or a stock dividend or stock distribution thereon),
or of any consolidation or merger of this corporation into or with
another corporation, or of the sale of all or substantially all of
the assets of this corporation; or
(iv) of the involuntary or voluntary dissolution, liquidation or winding
up of this corporation;
then this corporation shall cause to be filed at its principal office or at the
office of the transfer agent of the Series -1 Preferred Stock, and shall cause
to be mailed to the holders of the Series A-1 Preferred Stock at their last
addressed as shown on the records of this corporation or such transfer agent, at
least fifteen (15) days prior to the record date specified in (A) below and at
least thirty (30) days before the date specified in (B) below, a notice stating
(A) the record date of such dividend, distribution, subdivision or
combination, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to
such dividend, distribution, subdivision or combination are to
be determined, or
(B) the date of which any reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that
holders of Common Stock or record shall be entitled to exchange
their shares of Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger,
sale, dissolution or winding up.
4.2.5 REDEMPTION BY THIS CORPORATION
(a) Mandatory Redemption.
(i) In the event that on July 1, 2002 (the "Series A-1 Mandatory
Redemption Date") there are any shares of Series A-1 Preferred Stock
still outstanding, this corporation shall redeem any and all such
shares of Series A-1 Preferred Stock for an amount, payable in cash,
equal to $8.00 plus an amount equal to all dividends accrued
thereon,
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computed to the date payment thereof is made available. The total
sum payable per share of Series -1 Preferred Stock on the Series A-1
Mandatory Redemption Date is referred to as the "Series A-1
Mandatory Redemption Price."
(ii) Payment. Holders of record of shares of Series A-1 Preferred Stock
to be redeemed on the Series A-1 Mandatory Redemption Date shall be
entitled to receive the applicable Series A-1 Mandatory Redemption
Price upon actual delivery to this corporation or the transfer agent
of the certificates representing the shares entitled to be redeemed.
If upon the Series A-1 Mandatory Redemption Date the assets of this
corporation available for redemption are insufficient to pay the
holders of outstanding shares of the Series A Preferred Stock and
the Series A-1 Preferred Stock the full amounts to which they are
entitled, such holders of shares of the Series A Preferred Stock and
the Series A-1 Preferred Stock shall share ratably according to the
respective amounts which would be payable in respect of such shares
to be redeemed by the holders thereof, if all amounts payable on or
with respect to such shares were paid in full.
(b) Optional Redemption.
(i) Upon the occurrence of any Series A-1 Optional Redemption Event this
corporation will, by notice given to each holder of Series A-1
Preferred Stock, offer to redeem all (but not fewer than all) shares
of Series A-1 Preferred Stock then owned by such holder at a price
equal to:
106.667% of the Series A-1 Mandatory Redemption Price if
such offer to redeem is made prior to July 1, 1998;
105.334% of the Series A-1 Mandatory Redemption Price if
such offer to redeem is made subsequent to June 30, 1998 and prior to July 1,
1999;
104.001% of the Series A-1 Mandatory Redemption Price if
such offer to redeem is made subsequent to June 30, 1999 and prior to July 1,
2000;
102.668% of the Series A-1 Mandatory Redemption Price if
such offer to redeem is made subsequent to June 30, 2000 and prior to July 1,
2001;
101.335% of the Series A-1 Mandatory Redemption Price if
such offer to redeem is made subsequent to June 30, 2001 and prior to July 1,
2002;
(ii) Upon receipt of a notice given pursuant to Section 4.2.5(b), each
holder of Series A-1 Preferred Stock shall have the right to accept
such offer by tender in such holder's shares to this corporation for
redemption, at an address to be set forth in such notice, at any
time prior to 5:00 p.m. Seattle, Washington time on the 15th day
following the making of the offer to redeem by notice given as
prescribed herein.
(iii) The occurrence of a Change of Control shall be a Series A-1 Optional
Redemption Event, which shall be deemed to have occurred if:
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1. any person or group of related or affiliated
persons shall have become the beneficial owner or owners
of 40% or more of the outstanding voting stock of this
corporation; provided, however, that beneficial
ownership of Series A-1 Preferred Stock shall not be
given effect toward counting a person's or group of
related or affiliated persons' beneficial ownership;
2. there shall have occurred a merger or
consolidation in which this corporation is not the
survivor or in which holders of Common Stock of this
corporation shall have become entitled to receive cash,
securities of this corporation other than voting Common
Stock or securities of any other person, except that a
merger or consolidation which occurs for the sole
purpose of moving the jurisdiction of incorporation
(i.e., a reincorporation) shall not be deemed a Series
A-1 Optional Redemption Event;
3. at any time a majority of the members of the
Board of Directors of this corporation shall be persons
who were elected at one or more meetings held, or by one
or more consents given, by the stockholders of this
corporation during the preceding twelve (12) months and
who were not members of the Board of Directors twelve
(12) months prior to that time; or
4. if this corporation shall take any action
referred to in Section 4.2.1(e)(i) through Section
4.2.1(e)(vi) without having obtained the required
consent of the holders of Series A-1 Preferred Stock.
(c) Cancellation of Redeemed Stock. Any shares of Series A-1 Preferred Stock
redeemed pursuant to this Section 4.2.5 or otherwise acquired by this
corporation in any manner whatsoever shall be canceled and shall not
under any circumstances be reissued; and this corporation may from time
to time take such appropriate corporate action as may be necessary to
reduce accordingly the number of authorized shares of this corporation's
capital stock.
4.3 SERIES A-2 PREFERRED STOCK
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations, or restrictions
thereof in respect of the Series A-2 Preferred Stock of this corporation, $.0001
par value per share ("Series A-2 Preferred Stock"), which shall consist of and
be limited to a number of shares not to exceed 155,000 shares.
4.3.1 VOTING
(a) General. Except as may otherwise be required hereby or by law, the
shares of Series A-2 Preferred Stock shall not entitle the holder
thereof to have any rights to vote or to
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receive any notice of any meeting of the holders of this corporation's
stock; provided, however, that in the event this corporation proposes to
sell all or substantially all of its assets, the holders of shares of
Series A-2 Preferred Stock shall be entitled to a number of votes for
each share of Series A-2 Preferred Stock voting with the holders of this
corporation's Common Stock, equal to 100 divided by the then-applicable
Series A-1 Conversion Price at each meeting of stockholders of this
corporation (and written actions of stockholders in lieu of meetings) at
which such sale of all or substantially all of the assets of this
corporation is considered.
(b) Covenants. So long as any shares of Series A-2 Preferred Stock
originally authorized remain outstanding, in addition to any other
rights provided by law, without first obtaining the affirmative votes or
written consent of the holders of not less than 51% of the then
outstanding shares of the Series A-2 Preferred Stock, this corporation
shall not:
(i) except for authorization or issuances provided in this corporation's
Certificate of Incorporation, with respect to this corporation's
Series A Preferred Stock and Series A-1 Preferred Stock, amend or
repeal any provision of, or add any provision to, this corporation's
Certificate of Incorporation or Bylaws if such action would
materially alter or change the preferences, rights, privileges or
power of, or the restrictions provided for the benefit of, any
Series A-2 Preferred Stock, or increase or decrease the number of
shares of Series A-2 Preferred Stock authorized hereby;
(ii) authorize or issue shares of any class or series of stock not
expressly authorized herein having any preference or priority as to
dividends, assets or other rights superior to any such preference or
priority of the Series A-2 Preferred Stock, or authorize or issue
shares of stock of any class or any bonds, debentures, notes or
other obligations convertible into or exchange for, or having option
rights to purchase, any shares of stock of this corporation having
any preference or priority as to dividends, assets or other rights
superior to any such preference or priority of the Series A-2
Preferred Stock;
(iii) pay or declare any dividend on any capital stock of this corporation
which is junior to the Series A-2 Preferred Stock ("A-2 Junior
Stock") (other than dividends payable in shares of the class or
series upon which such dividends are declared or paid, or payable in
shares of Common Stock with respect to A-2 Junior Stock other than
Common Stock, together with cash in lieu of fractional shares and
aggregate dividends since the last payment of a cash dividend on the
Series A-2 Preferred Stock not in excess of the aggregate cash
dividend payment last made in respect of the Series A-2 Preferred
Stock) while the Series A-2 Preferred Stock remains outstanding, or
apply any of its assets to the redemption, retirement, purchase or
acquisition, directly or indirectly, through subsidiaries or
otherwise, of any A-2 Junior Stock, except from employees of this
corporation, upon termination of employment or otherwise, pursuant
to the terms of employee stock purchase or employee stock option
plans of general application which provide for the repurchase of, or
right of first refusal with respect to, such A-2 Junior Stock
entered into with participating employees;
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(iv) recapitalize or reclassify any shares of capital stock;
(v) merge into or consolidate with any other corporation
(except for a merger or consolidation which provides the holders
of the Series A-2 Preferred Stock with all cash consideration
paid at closing equal to the consideration which would have been
received by such holders had the Series A-2 Preferred Stock been
redeemed on the date of such closing under Section 4.3.4(a));
(vi) voluntarily liquidate dissolve, or wind up this
corporation;
(vii) materially change the principal business of this
corporation; or
(viii) enter into any agreement that would prohibit,
other than during any period in which this corporation is in
default under the terms of such agreement, the payment of the
Dividends (as hereinafter defined).
(c) Consent. This corporation shall obtain the consent of the
holders of not less than 51% of the then outstanding shares of the Series A-2
Preferred Stock (which consent shall not be unreasonably withheld) prior to
entering into any transaction or series of related transactions pursuant to
which this corporation incurs any "Obligation" (as hereinafter defined) of
$3,500,000 or more. For purposes of the foregoing sentence, "Obligation" shall
mean any monetary obligation of this corporation other than (i) trade payables
and other unsecured obligations incurred by this corporation in its ordinary
course of business, (ii) that which exists as of the Original Issue Date (as
hereinafter defined), (iii) that is acquired or assumed in connection with an
acquisition, provided that such obligation is secured only by the assets so
acquired and (iv) any refinancing or replacement of any obligation of the type
described in (ii) and (iii) above, provided that such refinancings do not result
in an increase in the original principal amount of such obligation (and, in the
event any such refinancing does result in such an increase, only the amount of
such increase shall be deemed to be an "Obligation" for purposes of this Section
4.3.1(c)).
4.3.2 DIVIDENDS.
(a) The holders of record of outstanding shares of the Series A-2
Preferred Stock shall be entitled to receive dividends (the "Dividends") payable
in cash at a rate equal to thirteen and one-half percent (13.5%) (the "Dividend
Rate") of the Series A-2 Liquidation Preference (as defined in Section 4.3.4(a)
hereof), which shall accrue daily; provided, however, that, notwithstanding the
foregoing, the Dividends with respect to any period may be paid by this
corporation through the issuance of additional shares of Series A-2 Preferred
Stock ("in kind") when (i) there has occurred, and is continuing on the date
such Dividends are declared, an event which causes a default (or with the
passage of time or notice would result in a default) under any agreement for
borrowed money to which this corporation is a party or under the terms of any
Preferred Stock; this corporation agrees to use its best efforts to cure the
event causing such default, or (ii) this corporation determines that such
Dividends shall be paid in kind (which determination may be made by this
corporation with respect to Dividends payable at any
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time but may not be utilized by this corporation with respect to more than ten
(10) payments of Dividends (in addition to the in-kind payments permitted by
clause (i) above); provided, further, however, that the ability of this
corporation to pay Dividends in kind pursuant to clause (i) and (ii) shall
terminate upon the date of repayment (the "Payoff Date") by this corporation of
all obligations due by this corporation under that certain Credit Agreement
dated as of November 16, 1995 between this corporation, the lenders party
thereto and Creditanstalt Bankverein ("Creditanstalt"), as agent; provided,
further, however, that, notwithstanding the foregoing, from and after February
28, 2007, the Dividend Rate on all shares of Series A-2 Preferred Stock then
outstanding will increase to nineteen percent (19%) per annum and the Dividend
will be payable only in cash. In the event a holder of Series A-2 Preferred
Stock has not received any Dividend (whether in cash or in kind) within five (5)
days after a Dividend Payment Date (as hereinafter defined) (provided, that such
holder shall provide notice to this corporation that such Dividend has not been
paid), the then-applicable Dividend Rate shall increase by two percent (2%) for
the period commencing on the respective Dividend Payment Date and ending on the
date on which such Dividend is paid by this corporation; provided, however, that
notwithstanding the foregoing, the Dividend Rate shall not increase by two
percent (2%) for such period if this corporation has in its possession evidence
that such Dividend was paid by it and sent for delivery to the location directed
by such holder in a manner which was intended to provide for the delivery of
such Dividend prior to the expiration of such five (5) day period. All dividend
payments, regardless of form, shall be quarterly, without notice from any holder
of Series A-2 Preferred Stock, at the rate of 3.375% of the Series A-2
Liquidation Preference, on each of February 28, May 31, August 31, and November
30 (each, a "Series A-2 Dividend Payment Date") of each year. Each Dividend paid
in cash or in kind shall be mailed to the holders of record of the Series A-2
Preferred Stock as their names and addresses appear on the share register of
this corporation, or to such other name and address as any holder of record
shall have notified this corporation. Holders of Series A-2 Preferred Stock will
receive written notification from this corporation if a Dividend is
paid-in-kind, which notification will specify the number of shares of Series A-2
Preferred Stock paid as a Dividend and the recipient's aggregate holdings of
Series A-2 Preferred Stock as of that Series A-2 Dividend Payment Date and after
giving effect to the Dividend.
(b) Dividends shall accrue until paid whether or not they have been
declared and whether or not there are profits, surplus, or other funds legally
available for payment of dividends. At the earlier of (i) the redemption of the
Series A-2 Preferred Stock (ii) the filing of a registration statement in
respect of an underwritten public offering; or (iii) the liquidation, sale or
merger of this corporation, any accrued but undeclared dividends shall be paid
in cash to the holders of record of outstanding shares of Series A-2 Preferred
Stock.
4.3.3 LIQUIDATION
(i) Upon any liquidation, dissolution or winding up of this
corporation, whether voluntary or involuntary, the holders of the shares
of the Series A-2 Preferred Stock, only after (x) the holders of the
Series A Preferred Stock, Series A-1 Preferred Stock, Series A-3
Preferred Stock, Series B-1 Preferred Stock and Series B-2 Preferred
Stock shall have been paid in full the amounts to which they shall be
entitled
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pursuant to Sections 4.1.3, 4.2.3, 4.4.3, 4.5.3 and 4.6.3, respectively,
shall be entitled, before any distribution or payment is made with
respect to the Common Stock or A-2 Junior Stock, to be paid in cash an
amount equal to $100.00 per share of the Series A-2 Preferred Stock plus
an amount equal to all accrued but unpaid Dividends, computed to the
date payment thereof is made in immediately available funds.
(ii) If upon such liquidation, dissolution or winding up of this
corporation, whether voluntary or involuntary, the assets to be
distributed among the holders of the Series A-2 Preferred Stock shall be
insufficient to permit distribution in full to the holders of the Series
A-2 Preferred Stock of the amounts set forth in this Section 4.3.3(a),
then the entire remaining assets of this corporation shall be
distributed ratably among the holders of the Series A-2 Preferred Stock
(based on their respective holdings of Series A-2 Preferred Stock).
(b) Junior and Common Stock. Upon any such liquidation, dissolution
or winding up of this corporation, only after the holders of the Series A
Preferred Stock, the Series A-1 Preferred Stock, Series A-2 Preferred Stock,
Series A-3 Preferred Stock, Series B-1 Preferred Stock and Series B-2 Preferred
Stock shall have been paid in full the amounts to which they shall be entitled
pursuant to Sections 4.1.3, 4.2.3, 4.3.3, 4.4.3, 4.5.3 and 4.6.3, respectively,
may the remaining net assets of this corporation be distributed to the holders
of Common Stock and A-2 Junior Stock.
(c) Notice. Written notice of such liquidation, dissolution or
winding up, stating a payment date and the place where said payments shall be
made, shall be given by mail, postage prepaid, or by telex to non-U.S.
residents, not less than 20 days prior to the payment date stated therein, to
the holders of record of the Series A-2 Preferred Stock, such notice to be
addressed to each such holder at its address as shown on the records of this
corporation.
4.3.4 REDEMPTION BY THIS CORPORATION.
(a) Optional Redemption.
(i) The Series A-2 Preferred Stock shall be redeemable by this
corporation, in whole or in part (x) at any time prior to February 28,
2000, at a per share redemption price equal to $100.00 per share (the
"Series A-2 Liquidation Preference") (with all Series A-2 Preferred
Stock which has been issued for payment of dividends in kind valued at
such Series A-2 Liquidation Preference) plus an amount equal to the
additional dividends that would have been paid by this corporation with
respect to the originally issued Series A-2 Preferred Stock (but not the
Series A-2 Preferred Stock issued as payment in kind pursuant to Section
4.3.2 hereof ("Original Preferred Stock") had the Series A-2 Preferred
Stock provided for dividends at a rate equal to 17.6% per annum rather
than 13.5% per annum; provided, however, that if not all Series A-2
Preferred Stock is so redeemed, the amount of such additional dividends
to be paid shall be the product of (A) the amount of additional
dividends calculated as stated above as if all shares being redeemed
were shares of Original Preferred Stock and (B) a fraction, the
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numerator of which is the number of shares of Original Preferred Stock
and the denominator of which is the number of shares of Series A-2
Preferred Stock then outstanding, and (y) at any time after February 28,
2000, at a per share redemption price equal to the Series A-2
Liquidation Preference (with all Series A-2 Preferred Stock which has
been issued for payment of dividends in kind value at the Series A-2
Liquidation Preference); provided, however, that notwithstanding the
foregoing, in the event that the Payoff Date has not occurred at the
time of any proposed redemption pursuant to this clause (i), this
corporation shall be required to obtain the prior written consent of
Creditanstalt prior to the consummation of any such redemption.
(ii) Written notice of such redemption by this corporation,
stating a payment date and the place where said payments shall be made,
shall be given by mail, postage prepaid, or by telex to non-U.S.
residents, not less than 20 days prior to the payment date stated
therein, to the holders of record of the Series A-2 Preferred Stock,
such notice to be addressed to each such holder at its address shown on
the records of this corporation.
(iii) Upon receipt of such a notice, each holder of Series A-2
Preferred Stock shall tender such holder's shares to this corporation
for redemption, at an address to be set forth in such notice, at any
time prior to 5:00 p.m. New York City time on the 15th day following the
notice given as prescribed herein. After the notice of redemption is
sent, the Series A-2 Preferred Stock to which it relates shall be deemed
canceled and thereafter the certificates evidencing such shares of
Series A-2 Preferred Stock shall represent only the right to receive
redemption proceeds as set forth in this Section.
(b) Cancellation of Redeemed Stock. Any shares of Series A-2
Preferred Stock redeemed pursuant to this Section 4.3.4 or otherwise acquired by
this corporation in any manner whatsoever shall be cancelled and shall not under
any circumstances be reissued; and this corporation may from time to time take
such appropriate corporate action as may be necessary to reduce accordingly the
number of authorized shares of this corporation's capital stock.
4.3.5 [Intentionally Omitted]
4.3.6 EXCHANGE
(a) From and after the Series A-2 Original Issue Date (as
hereinafter defined), if this corporation shall be in arrears in the payment of
any four consecutive quarterly Dividends, whether in cash or in kind, on the
outstanding shares of Series A-2 Preferred Stock, the holders of Series A-2
Preferred Stock shall have the option at any time thereafter until such time as
all Dividends accumulated in the Series A-2 Preferred Stock shall have been paid
in full to exchange all or any portion of the shares of Series A-2 Preferred
Stock outstanding into notes (the "Notes") having substantially the same terms
and conditions as the notes, as amended, issued under the Note and Series A-IV
Warrant Purchase Agreement dated as of June 21, 1996 between this corporation
and Northstar High Total Return Fund (except that the maturity date for
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any Notes issued in an exchange pursuant hereto on or prior to February 28, 2007
shall be February 28, 2007, and Notes issued on and after February 28, 2007, and
Notes issued on and after February 28, 2007 shall be payable on demand), in the
amount of $100 principal amount of Notes for each share of Series A-2 Preferred
Stock (assuming, for purposes of the foregoing calculations, that all accrued
Dividends have been paid in kind pursuant to the provisions of Section 4.3.2 in
full through the date notice is provided pursuant to Section 4.3.6(b) below).
(b) Any exchange pursuant to this Section 4.3.6 shall be made upon
prior written notice pursuant to the notice provisions set forth in the
Preferred Stock Purchase Agreement dated as of March 12, 1997 (the "Series A-2
Original Issue Date") between this corporation and the Purchasers named therein.
Upon receipt of such notice by this corporation, all rights of the holders with
respect to such shares exchanged shall cease, except the right to receive the
Notes in the amount set forth in Section 4.3.6(a) above. This corporation shall
not be required to declare or pay, and the holders of Series A-2 Preferred Stock
shall not be entitled to receive, any dividends on such Series A-2 Preferred
Stock from and after the date on which notice pursuant to this Section 4.3.6(b)
is provided.
4.4 SERIES A-3 PREFERRED STOCK
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations, or restrictions
thereof in respect of the Series A-3 Preferred Stock of this corporation, $.0001
par value per share ("Series A-3 Preferred Stock"), which shall consist of and
be limited to a number of shares not to exceed 200,000 shares.
4.4.1 VOTING
(a) General. Except as may otherwise be required hereby or by law, the
shares of Series-3 Preferred Stock shall not entitle the holder thereof
to have any rights to vote or to receive any notice of any meeting of
the holders of the Corporation's stock.
(b) Covenants. So long as at least 25% of the shares of Series A-3 Preferred
Stock originally authorized remain outstanding, in addition to any other
rights provided by law, without first obtaining the affirmative votes or
written consent of the holders of not less than 51% of the then
outstanding shares of the Series A-3 Preferred Stock, this corporation
shall not:
(i) amend or repeal any provision of, or add any provision to, this
corporation's Certificate of Incorporation or Bylaws if such action
would materially alter or change the preferences, rights, privileges
or power of, or the restrictions provided for the benefit of, any
Series A-3 Preferred Stock, or increase or decrease the number of
shares of Series A-3 Preferred Stock authorized hereby;
(ii) authorize or issue shares of any class or series of stock not
expressly authorized herein having any preference or priority as to
dividends, assets or other rights superior to any such preference or
priority of the Series A-3 Preferred Stock, or authorize or issue
shares of stock of any class or any bonds, debentures, notes or
other obligations
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convertible into or exchange for, or having option rights to
purchase, any shares of stock of this corporation having any
preference or priority as to dividends, assets or other rights
superior to any such preference or priority of the Series A-3
Preferred Stock;
(iii) pay or declare any dividend on any Junior Stock (other than
dividends payable in shares of the class or series upon which such
dividends are declared or paid, or payable in shares of Common Stock
with respect to Junior Stock other than Common Stock, together with
cash in lieu of fractional shares and aggregate dividends since the
last payment of a cash dividend on the Series A-3 Preferred Stock
not in excess of the aggregate cash dividend payment last made in
respect of the Series A-3 Preferred Stock) while the Series A-3
Preferred Stock remains outstanding, or apply any of its assets to
the redemption, retirement, purchase or acquisition, directly or
indirectly, through subsidiaries or otherwise, of any Junior Stock,
except from employees of this corporation, upon termination of
employment or otherwise, pursuant to the terms of employee stock
purchase or employee stock option plans of general application which
provide for the repurchase of, or right of first refusal with
respect to, such Junior Stock entered into with participating
employees;
(iv) recapitalize or reclassify any shares of capital stock;
(v) merge or consolidate into or with any other corporation (except for
a merger which yields to the holders of the Series A-3 Preferred
Stock an all cash consideration paid at closing equal to the
then-applicable Series A-3 Optional Redemption Price (as defined
below)); or
(vi) voluntarily liquidate, dissolve or wind up this corporation.
4.4.2 DIVIDENDS
(a) The holders of record of outstanding shares of the Series A-3 Preferred
Stock shall be entitled to receive an eight percent (8%) annual dividend
which shall accrue daily, and which shall be calculated on the basis of
the initial Series A-3 Conversion Price (as defined below) for the
Series A-3 Preferred Stock. All dividend payments, regardless of form,
shall be paid in quarterly installments on each of September 30,
December 31, March 31 and June 30 of each year. At the election of the
corporation, each dividend may be paid either in additional shares of
Series A-3 Preferred Stock or in cash until January 1, 1999 and payable
only in cash from thereafter until July 1, 2002. Dividends paid in
additional shares of Series A-3 Preferred Stock shall be paid in full
shares only with a cash payment (based on an assumed value of $8.00 per
share) equal to the value of any fractional shares. Each dividend paid
in cash shall be mailed to the holders of record of the Series A-3
Preferred Stock as their names and addresses appear on the share
register of this corporation or at the office of the transfer agent on
the corresponding dividend payment date. Holders of Series A-3 Preferred
Stock will receive written notification from this corporation or the
transfer agent if a dividend is paid-in-kind, which notification will
specify the number of shares of Series X-0
00
00
Preferred Stock paid as a dividend and the recipient's aggregate
holdings of Series A-3 Preferred Stock as of that dividend payment date
and after giving effect to the dividend.
(b) Dividends shall accrue until paid whether or not they have been declared
and whether or not there are profits, surplus, or other funds legally
available for the payment of dividends. At the earlier of: (i) the
redemption of the Series A-3 Preferred Stock; (ii) the filling of a
registration statement in respect of an underwritten public offering of
the type described in Section 4.4.3(b); or (iii) the liquidation, sale
or merger of this corporation, any accrued but undeclared dividends
shall be paid to the holders of record of outstanding shares of Series
A-3 Preferred Stock.
4.4.3 LIQUIDATION
(a) Preferred Stock. The provisions of Section 4.1.3(a) are incorporated by
reference with respect to the Series A-3 Preferred Stock
(b) Common Stock. The provisions of Section 4.1.3(b) are incorporated by
reference with respect to the Series A-3 Preferred Stock.
(c) Notice. Written notice of such liquidation, dissolution or winding up,
stating a payment date and the place where said payments shall be made,
shall be given by mail, postage prepaid, or by telex to non-U.S.
residents, not less than twenty (20) days prior to the payment date
stated therein, to the holders of record of the Series A-3 Preferred
Stock, such notice to be addressed to each such holder at its address as
shown on the records of this corporation.
4.4.4 CONVERSION
The holders of the Series A-3 Preferred Stock shall have conversion
rights as follows (the "Series A-3 Conversion Rights"):
(a) Optional Conversion. Subject to and upon compliance with the provisions
of this Section 4.4.4, the holders of any shares of Series A-3 Preferred
Stock shall have the right at such holder's option, at any time or from
time to time, to convert any of such shares of Series A-3 Preferred
Stock into fully paid and nonassessable shares of Common Stock at the
Series A-3 Conversion Price (as hereinafter defined) in effect on the
Series A-3 Conversion Date (as hereinafter defined) upon the terms
hereinafter set forth. In case any share of Series A-3 Preferred Stock
is called for redemption, such right of conversion shall terminate at
the close of business on the Series A-3 Mandatory Redemption Date (as
hereinafter defined) or, if this corporation shall default in the
payment of the Series A-3 Mandatory Redemption Price (as hereinafter
defined), at the close of business when such payment is made.
(b) Automatic Conversion. Each outstanding share of Series A-3 Preferred
Stock shall automatically be converted, without any further act of this
corporation or its stockholders, into fully paid and nonassessable
shares of Common Stock at the
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Series A-3 Conversion Price then in effect upon notice by this
corporation to the holders of shares of Series A-3 Preferred Stock of
the closing of an underwritten public offering pursuant to an effective
registration statement on Form S-1 or successor form under the
Securities Act of 1933, as amended, covering the offering and sale of
Common Stock for the account of this corporation at a per share price of
at least $8.00 in which due aggregate gross proceeds received by this
corporation has equaled or exceeded $10,000,000; provided, however, that
such closing of an underwritten public offering occurs no later than
September 19, 1998.
(c) Conversion Price. Each share of Series A-3 Preferred Stock shall be
converted into a number of shares of Common Stock determined by dividing
(i) the sum of (A) $8.00 plus (B) the dollar amount of any dividends on
such share of the Series A-3 Preferred Stock which such holder is
entitled to received, but has not yet received, by (ii) the Series A-3
Conversion Price in effect on the Series A-3 Conversion Date. The Series
A-3 Conversion Price at which shares of Common Stock shall initially be
issuable upon conversion of the shares of Series A-3 Preferred Stock
shall be $8.00. The Series A-3 Conversion Price shall be subject to
adjustment as set forth in Section 4.4.4(f). No payment or adjustment
shall be made for any dividends on the Common Stock issuable upon such
conversion.
(d) Mechanics of Conversion.
(i) The holder of any shares of Series A-3 Preferred Stock may exercise
the conversion right specified in Section 4.4.4(a) by surrendering
to this corporation or the transfer agent of this corporation the
certificate or certificates for the shares to be converted. Upon the
occurrence of the event specified in Section 4.4.4(b), the
outstanding shares of the Series A-3 Preferred Stock shall be
converted automatically without any further action by the holders of
such shares and whether or not the certificates representing such
shares are surrendered to this corporation or its transfer agent;
provided that this corporation shall not be obligated to issue to
any such holder certificates evidencing the shares of Common Stock
issuable upon such conversion unless certificates evidencing the
shares of the Series A-3 Preferred Stock are delivered either to
this corporation or the transfer agent of this corporation.
Conversion shall be deemed to have been effected on the date when
delivery of the notice of an election to convert and certificates
for shares is made or on the date of the occurrence of the event
specified in Section 4.4.4(b), as the case may be, and such date is
referred to herein as the "Series A-3 Conversion Date." As promptly
as practicable thereafter this corporation shall issue and deliver
to or upon the written order of such holder a certificate or
certificates for the number of full shares of Common Stock to which
such holder is entitled and a check or cash with respect to any
fractional interest in a shares of Common Stock as provided in
Section 4.4.4(e). The person in whose name the certificate or
certificates for Common Stock are to be issued shall be deemed to
have become the holder of record of such Common Stock on the
applicable Series A-3 Conversion Date. Upon conversion of only a
portion of the number of shares covered by a certificate
representing shares of the Series A-3 Preferred Stock surrendered
for
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conversion this corporation shall issue and deliver to or upon
the written order of the holder of the certificate covering the
number of shares of the Series A-3 Preferred Stock representing the
unconverted portion of the certificate so surrendered.
(ii) This corporation shall, at all times when the Series A-3 Preferred
Stock shall be outstanding, reserve and keep available out of its
authorized but unissued capital stock, for the purpose of effecting
the conversion of the Series A-3 Preferred Stock, such number of its
duly authorized shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding Series A-3
Preferred Stock. Before taking any action which would cause an
adjustment reducing the Series A-3 Conversion Price below the then
par value of the shares of Common Stock issuable upon conversion of
the Series A-3 Preferred Stock, this corporation will take any
corporation action which may be necessary in order that this
corporation may validly and legally issue fully paid and
nonassessable shares of Common Stock at such adjusted Series A-3
Conversion Price.
(iii) All shares of the Series A-3 Preferred Stock which shall have been
surrendered for conversion as herein provided shall no longer be
deemed to be outstanding and all rights with respect to such shares
shall immediately cease and terminate on the Series A-3 Conversion
Date, except only the right of the holders thereof to receive shares
of Common Stock in exchange therefor. Such conversion shall be
deemed to have been made at the close of business on the Series A-3
Conversion Date, and the person entitled to receive the shares of
Common Stock shall be treated for all purposes as having become the
record holder of such shares of Common Stock at such time. This
corporation shall not re-issue any share of Series A-3 Preferred
Stock surrendered by the holder thereof for conversion.
(e) Fractional Shares. No fractional shares of Common Stock or scrip shall
be issued upon conversion of shares as of the Series A-3 Preferred
Stock. If more than one share of the Series A-3 Preferred Stock shall be
surrendered for conversion at any one time by the same holder, the
number of full shares of Common Stock issuable upon conversion thereof
shall be computed on the basis of the aggregate number of shares of the
Series A-3 Preferred Stock so surrendered. Instead of any fractional
shares of Common Stock which would otherwise be issuable upon conversion
of any shares of the Series A-3 Preferred Stock, this corporation shall
pay a cash adjustment in respect of such fractional interest in an
amount equal to that fractional interest of the higher of the current
market price or fair market value as determined by the Board of
Directors of this corporation.
(f) Adjustments to Series A-3 Conversion Price for Diluting Issues.
(i) Special Definitions. For purposes of this Section 4.4.4(f), the
following definitions shall apply:
(A) "Option" shall mean rights, options or warrants to subscribe
for, purchase or otherwise acquire Common Stock or Convertible
Securities, excluding (1) options
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granted to employees and Directors of this corporation prior to
June 30, 1995 pursuant to employee benefit plans or employee
stock option plans available for grants to this corporation's
executives in general, adopted by the Board of Directors of this
corporation and options granted prior to January 1, 1998 under
the PerImmune Plan, (2) 200,000 additional options to purchase
shares of Common Stock granted to employees and directors of
this corporation pursuant to employee benefit plans or employee
stock option plans available for grants to this corporation's
executives in general, subsequent to June 30, 1995 and prior to
July 1, 2002; provided, that each such option shall have an
exercise price equal to or greater than $6.50 per shares, (3)
the Series A Warrants which evidence rights to purchase an
aggregate of 52,000 Series A Warrant Shares, and (4) the Series
A-1 Warrants which evidence rights to purchase an aggregate of
86,462 Series A-1 Warrant Shares.
(B) "Original Issue Date" shall mean the date on which shares of
Series A-3 Preferred Stock were first issued.
(C) "Convertible Securities" shall mean any evidence of
indebtedness, shares of other securities directly or indirectly
convertible into or exchangeable for Common Stock.
(D) "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued (or, pursuant to Section 4.4.4(f)(vi),
deemed to be issued) by this corporation after the Original
Issue Date, other than shares of Common Stock issued or
issuable:
(I) upon conversion of shares of Series A Preferred Stock issued
or the exercise of the Series A Warrant for Series A Warrant
Shares;
(II) upon conversion of shares of Series A-1 Preferred Stock,
Series A-3 Preferred Stock, Series B-1 Preferred Stock or
Series B-2 Preferred Stock or the exercise of the Series A-1
Warrant for Series A-1 Warrant Shares:
(III) as a dividend or distribution on the Series A Preferred Stock,
the Series A-1 Preferred Stock, the Series A-2 Preferred
Stock, the Series A-3 Preferred Stock, the Series B-1
Preferred Stock or the Series B-2 Preferred Stock;
(IV) by reason of a dividend, stock split, split-up or other
distribution on shares of Common Stock excluded from the
definition of Additional Shares of Common Stock by the
foregoing clauses (I), (II), and (III) or this clause (IV);
(V) options granted to employees and directors of the Corporation
pursuant to employee benefit plans or employee stock option
plans available for grants to this Corporation's executives in
general;
(VI) upon conversion of the Organon Note or the January Notes; or
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(VII) to the holders of shares of common stock, par value $.01 per
share, of PerImmune Holdings, Inc., in connection with the
merger.
(ii) Adjustment for Certain Dividends and Distributions. In the event
this corporation at any time, or from time to time, after the
Original Issue Date shall make or issue, or fix a record date for
the determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in additional shares of
Common Stock, then and in each such event the Series A-3 Conversion
Price then in effect shall be decreased as of the time of such
issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record ate, by multiplying the
Series A-3 Conversion Price then in effect by a fraction:
(A) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record
date, and
(B) the denominator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record
date plus the number of shares of Common Stock issuable in
payment of such dividend or distribution.
(iii) Adjustments for Other Dividends and Distributions. In the event this
corporation at any time or from time to time after the Original
Issue Date shall make or issue, or fix a record date for the
determination of holders of Common Stock entitled to receive a
dividend or other distribution payable in securities of this
corporation other than shares of Common Stock, then and in each such
event provision shall be made so that the holders of Series A-3
Preferred Stock shall receive upon conversion thereof in addition
the number of shares of Common Stock receivable thereupon, the
amount of securities of this corporation that they would have
received in (A) their Series A-3 Preferred Stock had been converted
into Common Stock on the date of such event and (B) they had
thereafter retained such securities and all rights and distributions
relating to them.
(iv) Adjustment for Stock Splits, Reclassification, Exchange, or
Substitution. If the Common Stock issuable upon the conversion of
the Series A-3 Preferred Stock shall, in accordance herewith, be
changed into the same or a different number of shares of any class
or classes of stock, whether by capital reorganization,
reclassification, or otherwise then and in each such event the
holder of each such share of Series A-3 Preferred Stock shall have
the right thereafter to convert such share into the kind and amount
of shares of stock and other securities and property receivable upon
such reorganization, reclassification, or other change, by holders
of the number of shares of Common Stock into which such shares of
Series A-3 Preferred Stock were convertible immediately prior to
such reorganization, reclassification or change, all subject to
further adjustment as provided herein. If this corporation shall at
any time or from to time after the Original Issue Date effect a
subdivision or combination of the
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outstanding Common Stock, the Series A-3 Conversion Price then in
effect immediately before the subdivision shall be proportionately
decreased or increased effective at the close of business on the ate
the subdivision or combination becomes effective.
(v) Adjustment for Merger or Reorganization, etc. In case of any
consolidation or merger of this corporation with or into another
corporation or the sale of all or substantially all of the assets of
this corporation to another corporation in accordance herewith, each
share of Series A-3 Preferred Stock shall thereafter be convertible
for the kind and amount of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock
of this corporation deliverable upon conversion of such Series A-3
Preferred Stock would have been entitled upon such consolidation,
merger or sale; and, in such case, appropriate adjustment (as
determined in good faith by the Board of Directors) shall be made in
the application of the provisions in this Section 4.4.4 (including
provisions with respect to changes in and other adjustments of the
Series A-3 Conversion Price) shall thereafter be applicable, as
nearly as reasonably may be, in relation to any shares of stock or
other property thereafter deliverable upon the conversion of the
Series A-3 Preferred Stock.
(vi) Adjustment for Issuance or Deemed Issuance of Additional Shares of
Common Stock. If this corporation at any time or from time to time
after the Original Issue Date shall issue any Options or Convertible
Securities or shall fix a record date for the determination of
holders of any class of securities entitled to receive any such
Options or Convertible Securities, then the maximum number of shares
of Common Stock issued or issuable upon the exercise of such Options
or, in the case of Convertible Securities, shall be deemed to be
Additional Shares of Common Stock. In any such case in which
Additional Shares of Common Stock are deemed to be issued:
(A) If such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase
or decrease in the consideration payable to this corporation, or
increase or decrease in the number of shares of Common Stock
issuable, upon the exercise, conversion or exchange thereof, the
Series A-3 Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based thereon, shall,
upon any such increase or decrease becoming effective, be
recomputed to reflect such increase or decrease insofar as it
affects such Options or the rights of conversion or exchange
under such Convertible Securities;
(B) Upon the expiration, termination or other retirement of any
unexercised Option or Convertible Securities, the Series A-3
Conversion Price shall be readjusted to reflect such event; and
(C) No readjustment pursuant to clause (A) or (B) above shall have
the effect of increasing the Series A-3 Conversion Price to an
amount which exceeds the
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Series A-3 Conversion Price on the date of original issuance of
such Options or Convertible Securities:
Upon the issuance or deemed issuance of any Additional Shares of
Common Stock without consideration or for a consideration per share less than
the applicable Series A-3 Conversion Price in effect on the date of and
immediately prior to such issue, then and in such event, such Series A-3
Conversion Price shall be reduced, concurrently with such issue, to a price
(calculated to the nearest cent) determined by multiplying such Series A-3
Conversion Price by a fraction, (A) the numerator of which shall be (1) the
number of shares of Common Stock outstanding immediately prior to such issue
plus (2) the number of shares of Common Stock which the aggregate consideration
received by this corporation for the total number of Additional Shares of Common
Stock so issued would purchase at such Series A-3 Conversion Price; and (B) the
denominator of which shall be the number of such Additional Shares of Common
Stock so issued; provided, that, immediately after any Additional Shares of
Common Stock are issued or deemed issued and the Series A-3 Conversion Price has
been appropriately reduced, then such Additional Shares of Common Stock shall be
deemed to be outstanding for all subsequent applications of this Section
4.4.4(f).
(vii) Determination of Consideration. For purposes of this Section
4.4.4(f), the consideration received by this corporation for the
issue of any Additional Shares of Common Stock issued or deemed to
have been issued shall be computed as follows:
(A) Cash and Property. Such consideration shall:
(I) insofar as it consists of cash, be computed at the aggregate
of cash received by this corporation for the Additional Shares
of Common Stock,
(II) insofar as it consists of property other than cash, be the
fair market value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and
(III) in the event Additional Shares of Common Stock are issued
together with other shares or securities or other assets of
this corporation for consideration which covers both, be the
portion of such consideration which covers both, be the
portion of such consideration so received which is, in the
judgment of the Board of Directors allocated to the Common
Stock, computed as provided in clauses (I) and (II) above, as
determined in good faith by the Board of Directors.
(B) Options and Convertible Securities. The consideration per share
received by this corporation for Additional Shares of Common
Stock deemed to have been issued pursuant to Section
4.4.4(f)(vi), relating to Options and Convertible Securities,
shall be determined by dividing
(x) the total amount, if any, received or
receivable by this corporation as consideration for the
issue of such Options or Convertible Securities, plus
the
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minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without
regard to any provision contained therein for a
subsequent adjustment of such consideration) payable to
this corporation upon the exercise of such Options or
the conversion or exchange of such Convertible
Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such
Convertible Securities, by
(y) the maximum number of shares of Common Stock
(as set forth in the instrument relating thereto,
without regard to any provision contained therein for a
subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion or exchange
of such Convertible Securities, or in the case of
Options for Convertible Securities and the conversion or
exchange of such Convertible Securities.
(viii) No De Minimis Adjustments. The applicable Series A-3 Conversion
Price shall not be so reduced at such time if the amount of such
reduction would be an amount less than $.01, but any such amount
shall be carried forward and reduction with respect thereto made at
the time of and together with any subsequent reduction which,
together with such amount and any of the amount or amounts so
carried forward, shall aggregate $.01 or more.
(g) No Impairment. This corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary actin, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by
this corporation but will at all times in good faith assist in the
carrying out of all the provisions of this Section 4.4.4 and in the
taking of all such action as may be necessary or appropriate in order to
protect the Series A-3 Conversion Rights against impairment.
(h) Certificate as to Adjustment. Upon the occurrence of each adjustment or
readjustment of the Series A-3 Conversion Price pursuant to this Section
4.4.4, this corporation at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms thereof and
furnish to each holder of Series A-3 Preferred Stock a certificate
setting forth such adjustment or readjustment and showing in detail the
facts upon which such adjustment or readjustment is based. This
corporation shall, upon the written request at any time of any holder of
Series A-3 Preferred Stock, furnish or cause to be furnished to such
holder a similar certificate setting forth (i) such adjustment and
readjustments, (ii) the Series A-3 Conversion Price then in effect, and
(iii) the number
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of shares of Common Stock and the amount, fi any, of other property
which then would be received upon the conversion of the Series A-3
Preferred Stock.
(i) Notice of Record Date. In the event:
(i) that this corporation declares a dividend (or any other
distribution) on its Common Stock payable in Common Stock or other
securities of this corporation;
(ii) that this corporation subdivides or combines its outstanding shares
of Common Stock;
(iii) of any reclassification of the Common Stock of this corporation
(other than a subdivision or combination of its outstanding shares
of Common Stock or a stock dividend or stock distribution thereon),
or of any consolidation or merger of this corporation into or with
another corporation, or of the sale of all or substantially all of
the assets of this corporation; or
(iv) of the involuntary or voluntary dissolution, liquidation or winding
up of this corporation;
then this corporation shall cause to be filed at its principal office or at the
office of the transfer agent of the Series A-3 Preferred Stock, and shall cause
to be mailed to the holders of the Series A-3 Preferred Stock at their last
addressed as shown on the records of this corporation or such transfer agent, at
least fifteen (15) days prior to the record date specified in (A) below and at
least thirty (30) days before the date specified in (B) below, a notice stating:
(A) the record date of such dividend, distribution, subdivision or
combination, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to
such dividend, distribution, subdivision or combination are to
be determined, or
(B) the date of which any reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that
holders of Common Stock or record shall be entitled to exchange
their shares of Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger,
sale, dissolution or winding up.
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4.4.5 REDEMPTION BY THIS CORPORATION
(a) Mandatory Redemption. In the event that on July 1, 2002 (the "Series A-3
Mandatory Redemption Date") there are any shares of Series A-3 Preferred
Stock still outstanding, this corporation shall redeem any and all such
shares of Series A-3 Preferred Stock for an amount, payable in cash,
equal to $8.00 plus an amount equal to all dividends accrued thereon,
computed to the date payment thereof is made available. The total sum
payable per share of Series A-3 Preferred Stock on the Series A-3
Mandatory Redemption Date is referred to as the "Series A-3 Mandatory
Redemption Price." Holders of record of shares of Series A-3 Preferred
Stock to be redeemed on the Series A-3 Mandatory Redemption Date shall
be entitled to receive the applicable Series A-3 Mandatory Redemption
Price upon actual delivery to the Corporation or the transfer agent of
the certificates representing the shares entitled to be redeemed. If
upon the Series A-3 Mandatory Redemption Date the assets of the
Corporation available for redemption are insufficient to pay the holders
of outstanding shares of Series A-3 Preferred Stock, the holders of
Series A-3 Preferred Stock shall share ratably according to the
respective amounts which would be payable in respect of such shares to
be redeemed by the holders thereof, if all amounts payable on or with
respect to such shares were paid in full.
(b) Optional Redemption.
(i) Upon the occurrence of any Series A-3 Optional Redemption Event (as
hereinafter defined) this corporation will, by notice given to each
holder of Series A-3 Preferred Stock, offer to redeem all (but not
fewer than all) shares of Series A-3 Preferred Stock then owned by
such holder at a price equal to:
106.667% of the Series A-3 Mandatory Redemption Price if
such offer to redeem is prior to July 1, 1998;
105.334% of the Series A-3 Mandatory Redemption Price if
such offer to redeem is made subsequent to June 30, 1998 and prior to July 1,
1999;
104.001% of the Series A-3 Mandatory Redemption Price if
such offer to redeem is made subsequent to June 30, 1999 and prior to July 1,
2000;
102.668% of the Series A-3 Mandatory Redemption Price if
such offer to redeem is made subsequent to June 30, 2000 and prior to July 1,
2001;
101.335% of the Series A-3 Mandatory Redemption Price if
such offer to redeem is made subsequent to June 30, 2001 and prior to July 1,
2002;
(ii) Upon receipt of a notice given pursuant to Section 4.4.5(b), each
holder of Series A-3 Preferred Stock shall have the right to accept
such offer by tender in such holder's shares to this corporation for
redemption, at an address to be set froth in such notice, at
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any time prior to 5:00 p.m. New York City time on the 15th day
following the making of the offer to redeem by notice given as
prescribed herein.
(iii) The following shall be Series A-3 Optional Redemption Events:
1. any person or group of related or affiliated
persons shall have become the beneficial owner or owners
of 40% or more of the outstanding voting stock of this
corporation; provided, however, that beneficial
ownership of Series A-3 Preferred Stock shall not be
given effect toward counting a person's or group of
related or affiliated persons' beneficial ownership;
2. there shall have occurred a merger or
consolidation in which this corporation is not the
survivor or in which holders of Common Stock of this
corporation shall have become entitled to receive cash,
securities of this corporation other than voting Common
Stock or securities of any other person, except that a
merger or consolidation which occurs for the sole
purpose of moving the jurisdiction of incorporation
(i.e., a reincorporation) shall not be deemed a Series
A-3 Optional Redemption Event under this Section;
3. at any time a majority of the members of the
Board of Directors of this corporation shall be persons
who were elected at one or more meetings held, or by one
or more consents given, by the stockholders of this
corporation during the preceding twelve (12) months and
who were not members of the Board of Directors twelve
(12) months prior to that time; or
4. if this corporation shall take any action
referred to in Section 4.4.1(e)(i) through (vi) without
having obtained the required consent of the holders of
Series A-3 Preferred Stock.
(c) Cancellation of Redeemed Stock. Any shares of Series A-3 Preferred Stock
redeemed pursuant to this Section 4.4.5 or otherwise acquired by this
corporation in any manner whatsoever shall be canceled and shall not
under any circumstances be reissued; and this corporation may from time
to time take such appropriate corporate action as may be necessary to
reduce accordingly the number of authorized shares of this corporation's
capital stock.
4.4.6 SERIES A-2 PREFERRED STOCK
Each holder of the Series A-3 Preferred Stock hereby consents, and each
holder subsequent to the initial holder of the Series A-3 Preferred Stock shall
by its acceptance of the certificate representing such shares be deemed to
consent, to the terms and provisions of the Series A-2 Preferred Stock of the
Corporation.
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4.5 SERIES B-1 PREFERRED STOCK. The following is a statement of the
designations and the powers, privileges and rights, and the qualifications,
limitations, or restrictions thereof in respect of the Series B-1 Preferred
Stock of this corporation, $.0001 par value per share ("Series B-1 Preferred
Stock"), which shall consist of and be limited to a number of shares not to
exceed 100 shares.
4.5.1 CERTAIN DEFINITIONS.
Unless the context otherwise requires, the terms defined in this
Section 4.5.1 shall have, for all purposes of this resolution, the meanings
herein specified (with terms defined in the singular having comparable meanings
when used in the plural).
Business Day. The term "Business Day" shall mean a day other
than a Saturday or Sunday or any federal holiday.
Common Equity. The term "Common Equity" shall mean all shares
now or hereafter authorized of any class of common stock of this corporation,
including the Common Stock, and any other stock of the corporation, howsoever
designated, authorized after the Series B-1 Initial Issue Date, which has the
right (subject always to prior rights of any class or series of preferred stock)
to participate in the distribution of the assets and earnings of this
corporation without limit as to per share amount.
Parity Stock. The term "Parity Stock" shall mean the Series A
Preferred Stock, the Series A-1 Preferred Stock, the Series A-3 Preferred Stock,
Series B-1 Preferred Stock, Series B-2 Preferred Stock, any class or series of
stock of this corporation authorized after the Series B-1 Initial Issue Date
which, by its terms, is entitled to receive payment of dividends on a parity
with the Series B-1 Preferred Stock, and shall mean any class or series of stock
of this corporation authorized after the Series B-1 Initial Issue Date which, by
its terms, is entitled to receive assets upon liquidation, dissolution or
winding up of the affairs of the corporation on a parity with the Series B-1
Preferred Stock.
Qualifying Convertible Securities Offering. The term "Qualifying
Convertible Securities Offering" shall mean a private offering of securities
that are convertible into shares of Common Stock effected by the corporation
within twelve-months of the Series B-1 Initial Issue Date which yields gross
offering proceeds to this corporation in excess of $5 million; provided,
however, that, if more than one such offering is effected within the
twelve-month period following the Series B-1 Initial Issue Date, only the first
such offering shall constitute a "Qualifying Convertible Securities Offering."
Qualifying IPO. The term "Qualifying IPO" means the first
registered, underwritten public offering of shares of Common Stock by this
corporation.
Record Date. The term "Record Date" shall mean the date
designated by the Board of Directors of this corporation at the time a dividend
is declared; provided, however, that such Record Date shall not be more than
thirty (30) days nor less than ten (10) days prior to the
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respective Series B-1 Dividend Payment Date or such other date designated by the
Board of Directors for the payment of dividends.
Senior Stock. The term "Senior Stock" shall mean any class or
series of stock of the corporation authorized after the Series B-1 Initial Issue
Date which, by its terms, ranks senior to the Series B-1 Preferred Stock in
respect of the right to receive dividends, and for purposes of Section 4.5.3,
shall mean any class or series of stock of this corporation authorized after the
Series B-1 Initial Issue Date which, by its terms, ranks senior to the Series
B-1 Preferred Stock in respect of the right to participate in any distribution
upon liquidation, dissolution or winding up of the affairs of this corporation.
Series B-1 Conversion Date. The term "Series B-1 Conversion Date"
shall have the meaning set forth in Section 4.5.4(b) below.
Series B-1 Conversion Price. The term "Series B-1 Conversion
Price" shall initially mean $4.94 and thereafter shall be subject to adjustment
from time to time pursuant to the terms of Section 4.5.4 below.
Series B-1 Dividend Payment Date. The term "Series B-1 Dividend
Payment Date" shall have the meaning set forth in Section 4.5.2(b) below.
Series B-1 Dividend Period. The term "Series B-1 Dividend Period"
shall mean the period from, and including, the Series B-1 Initial Issue Date to,
but not including, the first Series B-1 Dividend Payment Date and thereafter,
each annual period from, and including, the Series B-1 Dividend Payment Date to,
but not including, the next Series B-1 Dividend Payment Date.
Series B-1 Initial Issue Date. The term "Series B-1 Initial Issue
Date" shall mean April 24, 1997.
Series B-1 Liquidation Preference. The term "Series B-1
Liquidation Preference" shall mean $45,000 per share.
Series B-1 Redemption Date. The term "Series B-1 Redemption Date"
shall have the meaning set forth in Section 4.5.5(a) below.
Series B-1 Redemption Price. The term "Series B-1 Redemption
Price" shall mean a price per share equal to the Series B-1 Liquidation
Preference together with accrued and unpaid dividends thereon to the Series B-1
Redemption Date.
4.5.2 DIVIDENDS.
(a) Subject to the prior preferences and other rights of
any Senior Stock as to dividends, the recordholders of Series B-1 Preferred
Stock shall be entitled to receive dividends if, when and as declared by the
Board of Directors of this corporation, out of funds
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legally available for payment of dividends. Such dividends shall by the
corporation be payable in cash at the rate of seven percent (7%) per annum of
the Series B-1 Liquidation Preference.
(b) Dividends on shares of Series B-1 Preferred Stock
shall be payable annually in arrears when and as declared by the Board of
Directors of this corporation on each anniversary of the Series B-1 Initial
Issue Date (a "Series B-1 Dividend Payment Date"), commencing on April 24, 1998.
If any Series B-1 Dividend Payment Date occurs on a day that is not a Business
Day, any accrued dividends otherwise payable on such Series B-1 Dividend Payment
Date shall be paid on the next succeeding Business Day. Dividends shall be paid
to the holders of record of the Series B-1 Preferred Stock as their names shall
appear on the share register of the corporation on the Record Date for such
dividend. Dividends payable in any Series B-1 Dividend Period which is less than
a full Series B-1 Dividend Period in length will be computed on the basis of a
365 day Series B-1 Dividend Period and actual days elapsed in such Series B-1
Dividend Period. Dividends on account of arrears for any past Series B-1
Dividend Periods may be declared and paid at any time to holders of record on
the Record Date therefor.
(c) So long as any shares of Series B-1 Preferred Stock
shall be outstanding, the corporation shall not (except as provided in Section
4.3) declare, pay or set apart for payment on any Junior Stock any dividends
whatsoever, whether in cash, property or otherwise (other than dividends payable
in shares of the class or series upon which such dividends are declared or paid,
or payable in shares of Common Stock with respect to Junior Stock other than
Common Stock, together with cash in lieu of fractional shares), nor shall this
corporation make any distribution on any Junior Stock, nor shall any Junior
Stock be purchased, redeemed or otherwise acquired by this corporation or any of
its subsidiaries of which it owns not less than a majority of the outstanding
voting power, nor shall any monies be paid or made available for a sinking fund
for the purchase or redemption of any Junior Stock, unless all dividends to
which the holders of Series B-1 Preferred Stock shall have been entitled for all
previous Series B-1 Dividend Periods shall have been paid or declared and a sum
of money sufficient for the payment thereof has been set apart.
(d) In the event that full dividends are not paid or made
available to the holders of all outstanding shares of Series B-1 Preferred Stock
and of any Parity Stock and funds available for payment of dividends shall be
insufficient to permit payment in full to holders of all such stock of the full
preferential amounts to which they are then entitled, then the entire amount
available for payment of dividends shall be distributed ratably among all such
holders of Series B-1 Preferred Stock and of any Parity Stock in proportion to
the full amount to which they would otherwise be respectively entitled.
(e) Notwithstanding anything contained herein to the
contrary, no dividends on shares of Series B-1 Preferred Stock shall be declared
by the Board of Directors of this corporation or paid or set apart for payment
by this corporation at such time as the terms and provisions of any agreement of
this corporation, including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for payment or provides
that such declaration, payment or setting apart for payment would constitute a
breach thereof or a default thereunder, or if such declaration or payment shall
be restricted or prohibited by law.
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4.5.3 DISTRIBUTIONS UPON LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) In the event of any voluntary or involuntary
liquidation, dissolution or other winding up of the affairs of this corporation,
subject to the prior preferences and other rights of any Senior Stock as to
liquidation preferences, but before any payment or distribution shall be made to
the holders of Junior Stock, the holders of Series B-1 Preferred Stock shall be
entitled to be paid out of the assets of this corporation in cash or property at
its fair market value as determined by the Board of Directors of this
corporation the Series B-1 Liquidation Preference per share plus an amount equal
to all dividends accrued and unpaid thereon to the date of such liquidation or
dissolution or such other winding up. Except as provided in this paragraph,
holders of Series B-1 Preferred Stock shall not be entitled to any distribution
in the event of liquidation, dissolution or winding up of the affairs of this
corporation.
(b) If, upon any such liquidation, dissolution or other
winding up of the affairs of this corporation the assets of this corporation
shall be insufficient to permit the payment in full of the Series B-1
Liquidation Preference per share plus an amount equal to all dividends accrued
and unpaid on the Series B-1 Preferred Stock and the full liquidating payments
on all Parity Stock, then the assets of this corporation remaining after the
distributions to holders of any Senior Stock of the full amounts to which they
may be entitled shall be ratably distributed among the holders of Series B-1
Preferred Stock and of any Parity Stock in proportion to the full amounts to
which they would otherwise be respectively entitled if all amounts thereon were
paid in full. Neither the consolidation or merger of this corporation into or
with another corporation or corporations, nor the sale, lease, transfer or
conveyance of all or substantially all of the assets of this corporation to
another corporation or any other entity shall be deemed a liquidation,
dissolution or winding up of the affairs of this corporation within the meaning
of this Section 4.5.3.
4.5.4 CONVERSION RIGHTS.
(a) Each share of Series B-1 Preferred Stock (i) may be
converted into Common Stock at any time before the close of business on the
Series B-1 Redemption Date (unless this corporation shall default in payment of
the Series B-1 Redemption Price) at the option of the holder thereof and (ii) if
not previously converted or redeemed in accordance with the terms hereof, shall
be automatically converted into Common Stock upon consummation of a Qualifying
IPO (i.e., upon the closing of the offering comprising the Qualifying IPO),
effective immediately prior to the consummation of such Qualifying IPO. For the
purposes of conversion, each share of Series B-1 Preferred Stock shall be deemed
to have a value equal to the sum of (i) the Series B-1 Liquidation Preference
and (ii) all accrued and unpaid dividends on such share of Series B-1 Preferred
Stock (such sum being referred to as the "Series B-1 Per Share Value"), and the
number of shares of Common Stock issuable upon conversion of one share of Series
B-1 Preferred Stock (which number may be a fraction of one share) shall equal
(x) the Series B-1 Per Share Value, divided by (y) the Series B-1 Conversion
Price in effect on the Series B-1 Conversion Date (rounded to the nearest
share). Immediately following such conversion, the rights of the holders of
converted Series B-1 Preferred Stock shall cease and the persons entitled
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to receive the Common Stock upon the conversion of Series B-1 Preferred Stock
shall be treated for all purposes as having become the owners of such Common
Stock.
(b) To convert Series B-1 Preferred Stock, a holder must
(i) surrender the certificate or certificates evidencing the shares of Series
B-1 Preferred Stock to be converted, duly endorsed in a form satisfactory to
this corporation, at the office of this corporation or transfer agent for the
Series B-1 Preferred Stock, (ii) notify this corporation at such office that he
elects to convert Series B-1 Preferred Stock, and the number of shares he wishes
to convert, (iii) state in writing the name or names in which he wishes the
certificate or certificates for shares of Common Stock to be issued, and (iv)
pay any transfer or similar tax if required. In the event that a holder fails to
notify this corporation of the number of shares of Series B-1 Preferred Stock
which he wishes to convert, he shall be deemed to have elected to convert all
shares represented by the certificate or certificates surrendered for
conversion. The date on which the holder satisfies all those requirements is the
"Series B-1 Conversion Date." As soon as practical, this corporation shall
deliver a certificate for the number of full shares of Common Stock issuable
upon the conversion and a new certificate representing the unconverted portion,
if any, of the shares of Series B-1 Preferred Stock represented by the
certificate or certificates surrendered for conversion. The person in whose name
the Common Stock certificate is registered shall be treated as the stockholder
of record on and after the Series B-1 Conversion Date. If a holder of Series B-1
Preferred Stock converts more than one share at a time, the number of full
shares of Common Stock issuable upon conversion shall be based on the total
value of all shares of Series B-1 Preferred Stock converted. If the last day on
which Series B-1 Preferred Stock may be converted is not a Business Day, the
shares of Series B-1 Preferred Stock may be surrendered for conversion on the
next succeeding Business Day.
(c) If a holder converts shares of Series B-1 Preferred
Stock, this corporation shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of shares of Common Stock upon the conversion.
However, the holder shall pay any such tax which is due because the shares are
issued in a name other than the holder's name.
(d) This corporation has reserved and shall continue to
reserve out of its authorized but unissued Common Stock or its Common Stock held
in treasury enough shares of Common Stock to permit the conversion of the Series
B-1 Preferred Stock in full. All shares of Common Stock which may be issued upon
conversion of Series B-1 Preferred Stock shall be fully paid and nonassessable.
This corporation will comply in all material respects with all securities laws
regulating the offer and delivery of shares of Common Stock upon conversion of
Series B-1 Preferred Stock.
(e) If the corporation:
(i) pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock;
(ii) subdivides its outstanding shares of Common
Stock into a greater number of shares;
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(iii) combines its outstanding shares of Common
Stock into a small number of shares; or
(iv) issued by reclassification of its Common Stock
any shares of its capital stock;
then the Conversion Price in effect immediately prior to such action shall be
adjusted so that the holder of Series B-1 Preferred Stock thereafter converted
may receive the number of shares of capital stock of this corporation which he
would have owned immediately following such action if he had converted Series
B-1 Preferred Stock immediately prior to such action. The adjustment shall
become effective immediately after the record date in the case of dividend or
distribution and immediately after the effective date of a subdivision,
combination or reclassification. Such adjustment shall be made successively
whenever any event listed above shall occur. If, after an adjustment referred to
in clauses (i) through (iv) above, a holder of Series B-1 Preferred Stock upon
conversion of it may receive shares of two or more classes of capital stock of
this corporation, this corporation shall determine the allocation of the
adjusted Series B-1 Conversion Price between the classes of capital stock. After
such allocation, the Series B-1 Conversion Price of each class of capital stock
shall thereafter be subject to adjustment on terms comparable to those
applicable to Common Stock in this subparagraph (e).
(f) If this corporation consummates a Qualifying
Convertible Securities Offering and the Series B-1 Conversion Price then in
effect exceeds (x) the gross proceeds received by the Company from such
Qualifying Security Offering, divided by (y) the number of shares of Common
Stock issuable upon conversion of the convertible securities issued in
connection with such Qualifying Convertible Securities Offering (the "Qualifying
Securities Conversion Price"), the Series B-1 Conversion Price shall be adjusted
so that the Series B-1 Conversion Price, as so adjusted, shall be equal to the
Qualifying Securities Conversion Price. In the event that, subsequent to the
consummation of such Qualifying Convertible Securities Offering, the Qualifying
Securities Conversion Price shall be adjusted pursuant to the terms of the
instrument(s) governing such convertible securities, the Series B-1 Conversion
Price shall similarly be adjusted such that, absent any adjustment pursuant to
Section 4.5.4(g), the Series B-1 Conversion Price shall equal the Qualifying
Securities Conversion Price.
(g) If this corporation consummates a Qualifying IPO in
which the price to the public (as set forth in the final prospectus utilized in
connection with such Qualifying IPO) of one share of Common Stock (the "Offering
Price") is less than 200% of the Series B-1 Conversion Price then in effect, the
Series B-1 Conversion Price shall be adjusted (effective immediately prior to
the consummation of such Qualifying IPO and the related automatic conversion of
the Series B-1 Preferred Stock into Common Stock pursuant to Section 4.5.4(a))
such that the Series B-1 Conversion Price shall, after giving effect to such
adjustment, equal to 50% of the Offering Price.
(h) No adjustment in the Series B-1 Conversion Price need
be made unless the adjustment would require an increase or decrease of at least
1% in the Series B-1 Conversion Price. Any adjustments that are not made shall
be carried forward and taken into
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account in any subsequent adjustment. All calculations under this paragraph 4
shall be made to the nearest cent or to the nearest share, as the case may be.
(i) Whenever the Series B-1 Conversion Price is adjusted,
this corporation shall promptly mail to holders of Series B-1 Preferred Stock,
first class, postage prepaid, a notice of the adjustment. This corporation shall
file with the transfer agent, if any, for Series B-1 Preferred Stock a
certificate from this corporation's independent public accountants briefly
stating the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence that the adjustment is correct.
(j) This corporation from time to time may reduce the
Series B-1 Conversion Price by any amount for any period of time if the period
is at least twenty (20) Business Days and if the reduction is irrevocable during
the period, but in no event may the Series B-1 Conversion Price be less than the
par value of a share of Common Stock. Whenever the Series B-1 Conversion Price
is reduced, this corporation shall mail to holders of Series B-1 Preferred Stock
a notice of the reduction. This corporation shall mail, first class, postage
prepaid, the notice at least 15 days before the date the reduced conversion
price takes effect. The notice shall state the reduced conversion price and the
period it will be in effect.
(k) If this corporation is party to a merger which
reclassifies or changes its Common Stock, upon consummation of such transaction
Series B-1 Preferred Stock shall automatically become convertible into the kind
and amount of securities, cash or other assets which the holder of Series B-1
Preferred Stock would have owned immediately after the consolidation, merger,
transfer or lease if such holder had converted Series B-1 Preferred Stock
immediately before the effective date of the transaction, appropriate adjustment
(as determined by the Board of Directors of this corporation) shall be made in
the application of the provisions herein set forth with respect to the rights
and interests thereafter of the holders of Series B-1 Preferred Stock, to the
end that the provisions set forth herein (including provisions with respect to
changes in, and other adjustment of the Series B-1 Conversion Price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other securities or property thereafter deliverable upon the
conversion of Series B-1 Preferred Stock. If this Section 4.5.4(k) applies,
Section 4.5.4(e) does not apply.
(l) In any case in which this Section 4.5.4 shall require
that an adjustment as a result of any event become effective from and after a
record date, this corporation may elect to defer until after the occurrence of
such event the issuance to the holder of any shares of Series B-1 Preferred
Stock converted after such record date and before the occurrence of such event
of the additional shares of Common Stock issuable upon such conversion over and
above the shares issuable on the basis of the Series B-1 Conversion Price in
effect immediately prior to adjustment.
(m) All shares of Series B-1 Preferred Stock converted
pursuant to this Section 4.5.4 shall be retired and shall be restored to the
status of authorized and unissued shares of preferred stock, without designation
as to Series B-1 and may thereafter be reissued as shares of any series of
preferred stock other than Series B-1 Preferred Stock.
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4.5.5 REDEMPTION BY THE CORPORATION.
(a) This corporation shall redeem on the fifth anniversary
of the Series B-1 Initial Issue Date (the "Series B-1 Redemption Date") at the
Series B-1 Redemption Price all of the then issued and outstanding shares of
Series B-1 Preferred Stock. If the Series B-1 Redemption Date is on or after a
dividend record date and on or before the related Series B-1 Dividend Payment
Date, the dividend payable shall be paid to the holder in whose name the Series
B-1 Preferred Stock is registered at the close of business on such record date.
(b) No Series B-1 Preferred Stock may be redeemed except
with funds legally available for the payment of the Series B-1 Redemption Price.
(c) In case that, on the Series B-1 Redemption Date, this
corporation does not have sufficient funds available to redeem all of the then
issued and outstanding shares of Series B-1 Preferred Stock and, accordingly,
less than all shares of Series B-1 Preferred Stock at the time outstanding, the
shares to be redeemed shall be selected pro rata or by lot as determined by this
corporation in its sole discretion. Any shares not so redeemed shall remain
outstanding.
(d) Notwithstanding the foregoing provisions of this
Section 4.5.5, unless the full cumulative dividends on all outstanding shares of
Series B-1 Preferred Stock shall have been paid or contemporaneously are
declared and paid for all past dividend periods, none of the shares of Series
B-1 Preferred Stock shall be redeemed unless all outstanding shares of Series
B-1 Preferred Stock are simultaneously redeemed.
(e) All shares of Series B-1 Preferred Stock redeemed
pursuant to this Section 4.5.5 shall be retired and shall be restored to the
status of authorized and unissued shares of preferred stock, without designation
as to Series B-1 and may thereafter be reissued as shares of any series of
preferred stock other than shares of Series B-1 Preferred Stock.
4.5.6 VOTING RIGHTS.
(a) General. Each holder of outstanding shares of Series
B-1 Preferred Stock shall be entitled to the number of votes equal to the number
of whole shares of Common Stock into which the shares of Series B-1 Preferred
Stock held by such holder are convertible (as adjusted from time to time),
multiplied by the number of votes per share which the holders of shares of
Common Stock then have with respect to such matter, at each meeting of
stockholders of this corporation (and written actions of stockholders in lieu of
meetings) with respect to any and all matters presented to the stockholders of
this corporation for their action or consideration. Except as provided by law or
as otherwise set forth herein, holders of Series B-1 Preferred Stock shall vote
together with the holders of Common Stock (and any other class or series of
stock entitled to vote together as one class with the Common Stock) as a single
class.
(b) Prior to the consummation of a Qualifying IPO, so long
as all of the shares of Series B-1 Preferred Stock are beneficially owned by
Syncor International Corporation ("Syncor"), Syncor, as the holder of all of the
shares of Series B-1 Preferred Stock, voting separately as a class, shall have
the exclusive right to elect one (1) member of the board of
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directors of this corporation (the "Preferred Stock Director") at any special
meeting of stockholders called for such purpose, at each annual meeting of
stockholders and in any written consent of stockholders pursuant to Section 228
of the DGCL. From and after the date on which Syncor ceases to beneficially own
all of the shares of Series B-1 Preferred Stock or on which the Series B-1
Preferred Stock is converted to Common Stock upon a Qualifying IPO, the right of
Syncor to elect the Preferred Stock Director shall terminate.
(c) The Preferred Stock Director elected as provided
herein shall serve until the next annual meeting or until his successor shall be
elected and shall qualify. The Preferred Stock Director may be removed with or
without cause by, and shall not be removed other than by the vote of Syncor, as
the holder of all of the shares of Series B-1 Preferred Stock, voting separately
as a class, at a meeting called for such purpose or by written consent in
accordance with Section 228 of the Delaware General Corporate Law. If the office
of the Preferred Stock Director becomes vacant by reason of death, resignation,
retirement, disqualification or removal from office or otherwise, Syncor, as the
holder of all of the shares of Series B-1 Preferred Stock, voting separately as
a class, at a meeting called for such purpose or by written consent in
accordance with Section 228 of the DGCL, may elect a successor. Any such
successor shall hold office for the unexpired term in respect of which such
vacancy occurred. Upon any termination of the right of the holder of Series B-1
Preferred Stock to vote for and elect a Preferred Stock Director as herein
provided, the Preferred Stock Director then serving on the Board of Directors
may continue to hold his office for the remainder of his term.
(d) During such time as any shares of Series B-1 Preferred
Stock are outstanding, this corporation will not, without the vote of the
Holders of a majority of the Series B-1 Preferred Stock voting separately as a
class: (i) file or cause to be filed with the Secretary of State of the State of
Delaware a certificate of dissolution with respect to this corporation as
provided for in Section 275 and Section 103 of the DGCL; (ii) amend, alter or
repeal any of the provisions of the Certificate of Incorporation so as to affect
adversely the powers, preferences or rights of the holders of the Series B-1
Preferred Stock then outstanding or reduce the minimum time for any required
notice to which the holders of the Series B-1 Preferred Stock then outstanding
may be entitled (an amendment of the Certificate of Incorporation to authorize
or create, or to increase the authorized amount of any common stock or any other
series of preferred stock being deemed not to affect adversely the powers,
preferences, or rights of the holders of the Series B-1 Preferred Stock); or
(iii) merge or consolidate with or into any other corporation, unless each
holder of Series B-1 Preferred Stock immediately preceding such merger or
consolidation shall receive or continue to hold in the resulting corporation the
same number of shares, with substantially the same rights and preferences,
including, without limitation, as set forth in Section 4.5.4(k) hereof, as
correspond to the shares of Series B-1 Preferred Stock so held.
4.5.7 EXCLUSION OF OTHER RIGHTS.
Except as may otherwise be required by law, the shares of Series
B-1 Preferred Stock shall not have any preferences and relative, participating,
optional or other special rights, other than those specifically set forth in
this resolution (as such resolution may be amended from
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time to time) and in the Certificate of Incorporation. The shares of Series B-1
Preferred Stock shall have no preemptive or subscription rights.
4.6 SERIES B-2 PREFERRED STOCK. The following is a statement of the
designations and the powers, privileges and rights, and the qualifications,
limitations, or restrictions thereof in respect of the Series B-2 Preferred
Stock of this corporation, $.0001 par value per share ("Series B-2 Preferred
Stock"), which shall consist of and be limited to a number of shares not to
exceed 120 shares.
4.6.1 CERTAIN DEFINITIONS.
Unless the context otherwise requires, the terms defined in this
Section 4.6.1 shall have, for all purposes of this resolution, the meanings
herein specified (with terms defined in the singular having comparable meanings
when used in the plural).
Parity Stock. The term "Parity Stock" shall mean the Series A
Preferred Stock, the Series A-1 Preferred Stock, the Series A-3 Preferred Stock,
Series B-1 Preferred Stock, Series B-2 Preferred Stock, any class or series of
stock of this corporation authorized after the Series B-2 Initial Issue Date
which, by its terms, is entitled to receive payment of dividends on a parity
with the Series B-2 Preferred Stock, and shall mean any class or series of stock
of this corporation authorized after the Series B-2 Initial Issue Date which, by
its terms, is entitled to receive assets upon liquidation, dissolution or
winding up of the affairs of the corporation on a parity with the Series B-2
Preferred Stock.
Qualifying Convertible Securities Offering. The term "Qualifying
Convertible Securities Offering" shall mean a private offering of securities
that are convertible into shares of Common Stock effected by the corporation
within twelve-months of the Series B-2 Initial Issue Date which yields gross
offering proceeds to this corporation in excess of $5 million; provided,
however, that, if more than one such offering is effected within the
twelve-month period following the Series B-2 Initial Issue Date, only the first
such offering shall constitute a "Qualifying Convertible Securities Offering."
Record Date. The term "Record Date" shall mean the date
designated by the Board of Directors of this corporation at the time a dividend
is declared; provided, however,- that such Record Date shall not be more than
thirty (30) days nor less than ten (10) days prior to the respective Series B-2
Dividend Payment Date or such other date designated by the Board of Directors
for the payment of dividends.
Senior Stock. The term "Senior Stock" shall mean any class or
series of stock of the corporation authorized after the Series B-2 Initial Issue
Date which, by its terms, ranks senior to the Series B-2 Preferred Stock in
respect of the right to receive dividends, and for purposes of Section 4.6.3,
shall mean any class or series of stock of this corporation authorized after the
Series B-2 Initial Issue Date which, by its terms, ranks senior to the Series
B-2 Preferred Stock in respect of the right to participate in any distribution
upon liquidation, dissolution or winding up of the affairs of this corporation.
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Series B-2 Conversion Date. The term "Series B-2 Conversion Date"
shall have the meaning set forth in Section 4.6.4(b) below.
Series B-2 Conversion Price. The term "Series B-2 Conversion
Price" shall initially mean $5.49 divided by the Common Stock Exchange Ratio]
and thereafter shall be subject to adjustment from time to time pursuant to the
terms of Section 4.6.4.
Series B-2 Dividend Payment Date. The term "Series B-2 Dividend
Payment Date" shall have the meaning set forth in Section 4.6.2(b).
Series B-2 Dividend Period. The term "Series B-2 Dividend Period"
shall mean the period from, and including, the Series B-2 Initial Issue Date to,
but not including, the first Series B-2 Dividend Payment Date and thereafter,
each annual period from, and. including, the Series B-2 Dividend Payment Date
to, but not including, the next Series B-2 Dividend Payment Date.
Series B-2 Initial Issue Date. The term "Series B-2 Initial Issue
Date" shall mean June 16, 1997.
Series B-2 Liquidation Preference. The term "Series B-2
Liquidation Preference" shall mean $50,000 per share.
Series B-2 Redemption Date. The term "Series B-2 Redemption Date"
shall have the meaning set forth in Section 4.6.5(a) below.
Series B-2 Redemption Price. The term "Series B-2 Redemption
Price" shall mean a price per share equal to the Series B-2 Liquidation
Preference together with accrued and unpaid dividends thereon to the Series B-2
Redemption Date.
4.6.2 DIVIDENDS.
(a) Subject to the prior preferences and other rights of
any Senior Stock as to dividends, the recordholders of Series B-2 Preferred
Stock shall be entitled to receive dividends if, when and as declared by the
Board of Directors of this corporation, out of funds legally available for
payment of dividends. Such dividends shall by the corporation be payable in cash
at the rate of seven percent (7%) per annum of the Series B-2 Liquidation
Preference.
(b) Dividends on shares of Series B-2 Preferred Stock
shall be payable annually in arrears when and as declared by the Board of
Directors of this corporation on each anniversary of the Series B-2 Initial
Issue Date (a "Series B-2 Dividend Payment Date"), commencing on June 16, 1998.
If any Series B-2 Dividend Payment Date occurs on a day that is not a Business
Day, any accrued dividends otherwise payable on such Series B-2 Dividend Payment
Date shall be paid on the next succeeding Business Day. Dividends shall be paid
to the holders of record of the Series B-2 Preferred Stock as their names shall
appear on the share register of the corporation on the Record Date for such
dividend. Dividends payable in any Series B-2 Dividend Period which is less than
a full Series B-2 Dividend Period in length will be
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computed on the basis of a 365 day Series B-2 Dividend Period and actual days
elapsed in such Series B-2 Dividend Period. Dividends on account of arrears for
any past Series B-2 Dividend Periods may be declared and paid at any time to
holders of record on the Record Date therefor.
(c) So long as any shares of Series B-2 Preferred Stock
shall be outstanding, the corporation shall not (except as provided in Section
4.3) declare, pay or set apart for payment on any Junior Stock any dividends
whatsoever, whether in cash, property or otherwise (other than dividends payable
in shares of the class or series upon which such dividends are declared or paid,
or payable in shares of Common Stock with respect to Junior Stock other than
Common Stock, together with cash in lieu of fractional shares), nor shall this
corporation make any distribution on any Junior Stock, nor shall any Junior
Stock be purchased, redeemed or otherwise acquired by this corporation or any of
its subsidiaries of which it owns not less than a majority of the outstanding
voting power, nor shall any monies be paid or made available for a sinking fund
for the purchase or redemption of any Junior Stock, unless all dividends to
which the holders of Series B-2 Preferred Stock shall have been entitled for all
previous Series B-2 Dividend Periods shall have been paid or declared and a sum
of money sufficient for the payment thereof has been set apart.
(d) In the event that full dividends are not paid or made
available to the holders of all outstanding shares of Series B-2 Preferred Stock
and of any Parity Stock and funds available for payment of dividends shall be
insufficient to permit payment in full to holders of all such stock of the full
preferential amounts to which they are then entitled, then the entire amount
available for payment of dividends shall be distributed ratably among all such
holders of Series B-2 Preferred Stock and of any Parity Stock in proportion to
the full amount to which they would otherwise be respectively entitled.
(e) Notwithstanding anything contained herein to the
contrary, no dividends on shares of Series B-2 Preferred Stock shall be declared
by the Board of Directors of this corporation or paid or set apart for payment
by this corporation at such time as the terms and provisions of any agreement of
this corporation, including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for payment or provides
that such declaration, payment or setting apart for payment would constitute a
breach thereof or a default thereunder, or if such declaration or payment shall
be restricted or prohibited by law.
4.6.3 DISTRIBUTIONS UPON LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) In the event of any voluntary or involuntary
liquidation, dissolution or other winding up of the affairs of this corporation,
subject to the prior preferences and other rights of any Senior Stock as to
liquidation preferences, but before any payment or distribution shall be made to
the holders of Junior Stock, the holders of Series B-2 Preferred Stock shall be
entitled to be paid out of the assets of this corporation in cash or property at
its fair market value as determined by the Board of Directors of this
corporation the Series B-2 Liquidation Preference per share plus an amount equal
to all dividends accrued and unpaid thereon to the date of such liquidation or
dissolution or such other winding up. Except as provided in this paragraph,
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holders of Series B-2 Preferred Stock shall not be entitled to any distribution
in the event of liquidation, dissolution or winding up of the affairs of this
corporation.
(b) If, upon any such liquidation, dissolution or other
winding up of the affairs of this corporation the assets of this corporation
shall be insufficient to permit the payment in full of the Series B-2
Liquidation Preference per share plus an amount equal to all dividends accrued
and unpaid on the Series B-2 Preferred Stock and the full liquidating payments
on all Parity Stock, then the assets of this corporation remaining after the
distributions to holders of any Senior Stock of the full amounts to which they
may be entitled shall be ratably distributed among the holders of Series B-2
Preferred Stock and of any Parity Stock in proportion to the full amounts to
which they would otherwise be respectively entitled if all amounts thereon were
paid in full. Neither the consolidation or merger of this corporation into or
with another corporation or corporations, nor the sale, lease, transfer or
conveyance of all or substantially all of the assets of this corporation to
another corporation or any other entity shall be deemed a liquidation,
dissolution or winding up of the affairs of this corporation within the meaning
of this Section 4.6.3.
4.6.4 CONVERSION RIGHTS.
(a) Each share of Series B-2 Preferred Stock (i) may be
converted into Common Stock at any time before the close of business on the
Series B-2 Redemption Date (unless this corporation shall default in payment of
the Series B-2 Redemption Price) at the option of the holder thereof and (ii) if
not previously converted or redeemed in accordance with the terms hereof, shall
be automatically converted into Common Stock upon consummation of a Qualifying
IPO (i.e., upon the closing of the offering comprising the Qualifying IPO),
effective immediately prior to the consummation of such Qualifying IPO. For the
purposes of conversion, each share of Series B-2 Preferred Stock shall be deemed
to have a value equal to the sum of (i) the Series B-2 Liquidation Preference
and (ii) all accrued and unpaid dividends on such share of Series B-2 Preferred
Stock (such sum being referred to as the "Series B-2 Per Share Value"), and the
number of shares of Common Stock issuable upon conversion of one share of Series
B-2 Preferred Stock (which number may be a fraction of one share) shall equal
(x) the Series B-2 Per Share Value, divided by (y) the Series B-2 Conversion
Price in effect on the Series B-2 Conversion Date (rounded to the nearest
share). Immediately following such conversion, the rights of the holders of
converted Series B-2 Preferred Stock shall cease and the persons entitled to
receive the Common Stock upon the conversion of Series B-2 Preferred Stock shall
be treated for all purposes as having become the owners of such Common Stock.
(b) To convert Series B-2 Preferred Stock, a holder must
(i) surrender the certificate or certificates evidencing the shares of Series
B-2 Preferred Stock to be converted, duly endorsed in a form satisfactory to
this corporation, at the office of this corporation or transfer agent for the
Series B-2 Preferred Stock, (ii) notify this corporation at such office that he
elects to convert Series B-2 Preferred Stock, and the number of shares he wishes
to convert, (iii) state in writing the name or names in which he wishes the
certificate or certificates for shares of Common Stock to be issued, and (iv)
pay any transfer or similar tax if required. In the event that a holder fails to
notify this corporation of the number of shares of Series B-2 Preferred Stock
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which he wishes to convert, he shall be deemed to have elected to convert all
shares represented by the certificate or certificates surrendered for
conversion. The date on which the holder satisfies all those requirements is the
"Series B-2 Conversion Date." As soon as practical, this corporation shall
deliver a certificate for the number of full shares of Common Stock issuable
upon the conversion and a new certificate representing the unconverted portion,
if any, of the shares of Series B-2 Preferred Stock represented by the
certificate or certificates surrendered for conversion. The person in whose name
the Common Stock certificate is registered shall be treated as the stockholder
of record on and after the Series B-2 Conversion Date. If a holder of Series B-2
Preferred Stock converts more than one share at a time, the number of full
shares of Common Stock issuable upon conversion shall be based on the total
value of all shares of Series B-2 Preferred Stock converted. If the last day on
which Series B-2 Preferred Stock may be converted is not a Business Day, the
shares of Series B-2 Preferred Stock may be surrendered for conversion on the
next succeeding Business Day.
(c) If a holder converts shares of Series B-2 Preferred
Stock, this corporation shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of shares of Common Stock upon the conversion.
However, the holder shall pay any such tax which is due because the shares are
issued in a name other than the holder's name.
(d) This corporation has reserved and shall continue to
reserve out of its authorized but unissued Common Stock or its Common Stock held
in treasury enough shares of Common Stock to permit the conversion of the Series
B-2 Preferred Stock in full. All shares of Common Stock which may be issued upon
conversion of Series B-2 Preferred Stock shall be fully paid and nonassessable.
This corporation will comply in all material respects with all securities laws
regulating the offer and delivery of shares of Common Stock upon conversion of
Series B-2 Preferred Stock.
(e) If this corporation:
(i) pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock;
(ii) subdivides its outstanding shares of Common
Stock into a greater number of shares;
(iii) combines its outstanding shares of Common
Stock into a smaller number of shares; or
(iv) issued by reclassification of its Common Stock
any shares of its capital stock;
then the Series B-2 Conversion Price in effect immediately prior to such action
shall be adjusted so that the holder of Series B-2 Preferred Stock thereafter
converted may receive the number of shares of capital stock of this corporation
which he would have owned immediately following such action if he had converted
Series B-2 Preferred Stock immediately prior to such action. The adjustment
shall become effective immediately after the record date in the case of dividend
or
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distribution and immediately after the effective date of a subdivision,
combination or reclassification. Such adjustment shall be made successively
whenever any event listed above shall occur. If, after an adjustment referred to
in clauses (i) through (iv) above, a holder of Series B-2 Preferred Stock upon
conversion of it may receive shares of two or more classes of capital stock of
this corporation, this corporation shall determine the allocation of the
adjusted Series B-2 Conversion Price between the classes of capital stock. After
such allocation, the Series B-2 Conversion Price of each class of capital stock
shall thereafter be subject to adjustment on terms comparable to those
applicable to Common Stock in this subparagraph (e).
(f) No adjustment in the Series B-2 Conversion Price need
be made unless the adjustment would require an increase or decrease of at least
1% in the Series B-2 Conversion Price. Any adjustments that are not made shall
be carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 4.6.4 shall be made to the nearest cent or to
the nearest share, as the case may be.
(g) Whenever the Series B-2 Conversion Price is adjusted,
this corporation shall promptly mail to holders of Series B-2 Preferred Stock,
first class, postage prepaid, a notice of the adjustment. This corporation shall
file with the transfer agent, if any, for Series B-2 Preferred Stock a
certificate from this corporation's independent public accountants briefly
stating the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence that the adjustment is correct.
(h) This corporation from time to time may reduce the
Series B-2 Conversion Price by any amount for any period of time if the period
is at least twenty (20) Business Days and if the reduction is irrevocable during
the period, but in no event may the Series B-2 Conversion Price be less than the
par value of a share of Common Stock. In the event this corporation shall reduce
the Series B-2 Conversion Price of any Parity Stock, then this corporation shall
reduce the Series B-2 Conversion Price by the same proportionate amount and for
the same period of time as for the conversion price of such Parity Stock,
provided that, in no event shall the Series B-2 Conversion Price be less than
the par value of a share of Common Stock. Whenever the Series B-2 Conversion
Price is reduced, this corporation shall mail to holders of Series B-2 Preferred
Stock a notice of the reduction. This corporation shall mail, first class,
postage prepaid, the notice at least 15 days before the date the reduced
conversion price takes effect. The notice shall state the reduced conversion
price and the period it will be in effect.
(i) If this corporation is party to a merger which
reclassifies or changes its Common Stock, upon consummation of such transaction
Series B-2 Preferred Stock shall automatically become convertible into the kind
and amount of securities, cash or other assets which the holder of Series B-2
Preferred Stock would have owned immediately after the consolidation, merger,
transfer or lease if such holder had converted Series B-2 Preferred Stock
immediately before the effective date of the transaction, appropriate adjustment
(as determined by the Board of Directors of this corporation) shall be made in
the application of the provisions herein, set forth with respect to the rights
and interests thereafter of the holders of Series B-2 Preferred Stock, to the
end that the provisions set forth herein (including provisions with respect
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to changes in, and other adjustment of the Series B-2 Conversion Price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other securities or property thereafter deliverable upon the
conversion of Series B-2 Preferred Stock. If this Section 4.6.4(i) applies,
Section 4.6.4(e) does not apply.
(j) In any case in which this Section 4.6.4 shall require
that an adjustment as a result of any event become effective from and after a
record date, this corporation may elect to defer until after the occurrence of
such event the issuance to the holder of any shares of Series B-2 Preferred
Stock converted after such record date and before the occurrence of such event
of the additional shares of Common Stock issuable upon such conversion over and
above the shares issuable on the basis of the Series B-2 Conversion Price in
effect immediately prior to adjustment.
(k) All shares of Series B-2 Preferred Stock converted
pursuant to this Section 4.6.4 shall be retired and shall be restored to the
status of authorized and unissued shares of preferred stock, without designation
as to Series B-2 Preferred Stock and may thereafter be reissued as shares of any
series of preferred stock other than Series B-2 Preferred Stock.
4.6.5 REDEMPTION BY THE CORPORATION.
(a) This corporation shall redeem on the fifth anniversary
of the Series B-2 Initial Issue Date (the "Series B-2 Redemption Date") at the
Series B-2 Redemption Price all of the then issued and outstanding shares of
Series B-2 Preferred Stock. If the Series B-2 Redemption Date is on or after a
dividend record date and on or before the related Series B-2 Dividend Payment
Date, the dividend payable shall be paid to the holder in whose name the Series
B-2 Preferred Stock is registered at the close of business on such record date.
(b) No Series B-2 Preferred Stock may be redeemed except
with funds legally available for the payment of the Series B-2 Redemption Price.
(c) In case that, on the Series B-2 Redemption Date, this
corporation does not have sufficient funds available to redeem all of the then
issued and outstanding shares of Series B-2 Preferred Stock and, accordingly,
less than all shares of Series B-2 Preferred Stock at the time outstanding, the
shares to be redeemed shall be selected pro rata or by lot as determined by this
corporation in its sole discretion. Any shares not so redeemed shall remain
outstanding.
(d) Notwithstanding the foregoing provisions of this
Section 4.6.5, unless the full cumulative dividends on all outstanding shares of
Series B-2 Preferred Stock shall have been paid or contemporaneously are
declared and paid for all past dividend periods, none of the shares of Series
B-2 Preferred Stock shall be redeemed unless all outstanding shares of Series
B-2 Preferred Stock are simultaneously redeemed.
(e) All shares of Series B-2 Preferred Stock redeemed
pursuant to this Section 4.6.5 shall be retired and shall be restored to the
status of authorized and unissued shares of preferred stock, without designation
as to Series B-2 and may thereafter be reissued as shares of any series of
preferred stock other than shares of Series B-2 Preferred Stock.
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4.6.6 VOTING RIGHTS.
(a) General. Each holder of outstanding shares of Series
B-2 Preferred Stock shall be entitled to the number of votes equal to the number
of whole shares of Common Stock into which the shares of Series B-2 Preferred
Stock held by such holder are convertible (as adjusted from time to time),
multiplied by the number of votes per share which the holders of shares of
Common Stock then have with respect to such matter, at each meeting of
stockholders of this corporation (and written actions of stockholders in lieu of
meetings) with respect to any and all matters presented to the stockholders of
this corporation for their action or consideration. Except as provided by law or
as otherwise set forth herein, holders of Series B-2 Preferred Stock shall vote
together with the holders of Common Stock (and any other class or series of
stock entitled to vote together as one class with the Common Stock) as a single
class.
(b) During such time as any shares of Series B-2 Preferred
Stock are outstanding, this corporation will not, without the vote of the
holders of a majority of the Series B-2 Preferred Stock voting separately as a
class: (i) file or cause to be filed with the Secretary of State of the State of
Delaware a certificate of dissolution with respect to this corporation as
provided for in Section 275 and Section 103 of the DGCL; (ii) amend, alter or
repeal any of the provisions of the Certificate of Incorporation so as to affect
adversely the powers, preferences or rights of the holders of the Series B-2
Preferred Stock then outstanding or reduce the minimum time for any required
notice to which the holders of the Series B-2 Preferred Stock then outstanding
may be entitled (an amendment of the Certificate of Incorporation to authorize
or create, or to increase the authorized amount of any common stock or any other
series of preferred stock being deemed not to affect adversely the powers,
preferences, or rights of the holders of the Series B-2 Preferred Stock); or
(iii) merge or consolidate with or into any other corporation, unless each
holder of Series B-2 Preferred Stock immediately preceding such merger or
consolidation shall receive or continue to hold in the resulting corporation the
same number of shares, with substantially the same rights and preferences,
including, without limitation, as set forth in Section 4.6.4(i) hereof, as
correspond to the shares of Series B-2 Preferred Stock so held.
4.6.7 EXCLUSION OF OTHER RIGHTS.
Except as may otherwise be required by law, the shares of Series
B-2 Preferred Stock shall not have any voting powers, preferences and relative,
participating, optional or other special rights, other than those specifically
set forth in this resolution (as such resolution may be amended from time to
time) and in the Certificate of Incorporation. The shares of Series B-2
Preferred Stock shall have no preemptive or subscription rights.
ARTICLE 5 BYLAWS
The Board of Directors shall have the power to adopt, amend or repeal
the Bylaws for this corporation, subject to the power of the stockholders to
amend or repeal such Bylaws. The stockholders shall also have the power to
adopt, amend or repeal the Bylaws for this corporation.
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ARTICLE 6 ELECTION OF DIRECTORS
Written ballots are not required in the election of Directors.
ARTICLE 7 CUMULATIVE VOTING
The right to cumulate votes in the election of Directors shall not exist
with respect to shares of stock of this corporation.
ARTICLE 8 AMENDMENTS TO CERTIFICATE OF INCORPORATION
This corporation reserves the right to amend or repeal any of the
provisions contained in this Certificate of Incorporation in any manner now or
hereafter permitted by law, and the rights of the stockholders of this
corporation are granted subject to this reservation.
ARTICLE 9 LIMITATION OF DIRECTOR LIABILITY
To the full extent that the DGCL, as it exists on the date hereof or may
hereafter be amended, permits the limitation or elimination of the liability of
Directors, a director of this corporation shall not be liable to this
corporation or it stockholders for monetary damages for breach of fiduciary duty
as a Director. Any amendment to or repeal of this Article 9 shall not adversely
affect any right or protection of a Director of this corporation for or with
respect to any acts or omissions of such Director occurring prior to such
amendment or repeal.
ARTICLE 10 ACTION BY STOCKHOLDERS WITHOUT A MEETING
Any action which could be taken at any annual or special meeting of the
stockholders may be taken without a meeting, without prior notice and without a
vote, if a written consent setting forth the action taken is signed by a
majority of the stockholders entitled to vote with respect to the subject matter
thereof.
IN WITNESS WHEREOF, Intracel Corporation has caused this certificate to
be signed by its Chief Executive Officer on this 2nd day of January,
1998.
INTRACEL CORPORATION
By: /s/ XXXXX X. XXXXXXXX
--------------------------------
Xxxxx X. XxXxxxxx
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EXHIBIT 2.03(c)
AMENDED AND RESTATED
BY-LAWS
OF
PERIMMUNE HOLDINGS, INC
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TABLE OF CONTENTS
Page
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Article I. OFFICES.......................................................................... 1
Section 1. Registered Office............................................................... 1
Section 2. Other Offices................................................................... 1
Article II. MEETINGS OF STOCKHOLDERS........................................................ 1
Section 1. Place of Meetings............................................................... 1
Section 2. Annual Meeting of Stockholders.................................................. 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof................................... 1
Section 4. Voting.......................................................................... 2
Section 5. Proxies......................................................................... 2
Section 6. Special Meetings................................................................ 3
Section 7. Notice of Stockholder's Meetings................................................ 3
Section 8. Maintenance and Inspection of Stockholder List.................................. 3
Section 9. Stockholder Action by Written Consent Without a Meeting......................... 4
Article III. DIRECTORS...................................................................... 4
Section 1. The Number of Directors......................................................... 4
Section 2. Vacancies....................................................................... 5
Section 3. Powers.......................................................................... 5
Section 4. Place of Directors' Meetings.................................................... 5
Section 5. Regular Meetings................................................................ 5
Section 6. Special Meetings................................................................ 6
Section 7. Quorum.......................................................................... 6
Section 8. Action Without Meeting.......................................................... 6
Section 9. Telephonic Meetings............................................................. 6
Section 10. Committees of Directors......................................................... 7
Section 11. Minutes of Committee Meetings................................................... 7
Section 12. Compensation of Directors....................................................... 8
Section 13. Indemnification................................................................. 8
Article IV. OFFICERS........................................................................ 8
Section 1. Officers........................................................................ 8
Section 2. Election of Officers............................................................ 9
Section 3. Subordinate Officers............................................................ 9
Section 4. Compensation of Officers........................................................ 9
Section 5. Term of Office; Removal and Vacancies........................................... 9
Section 6. Chairman of the Board........................................................... 9
Section 7. Vice Chairman of the Board...................................................... 10
Section 8. President....................................................................... 10
Section 9. Vice Presidents................................................................. 10
Section 10. Secretary....................................................................... 11
Section 11. Assistant Secretary............................................................. 11
Section 12. Treasurer....................................................................... 12
Section 13. Assistant Treasurer............................................................. 12
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TABLE OF CONTENTS
Page
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Article V. CERTIFICATES OF STOCK............................................................ 12
Section 1. Certificates.................................................................... 12
Section 2. Signatures on Certificates...................................................... 13
Section 3. Statement of Stock Rights, Preferences, Privileges.............................. 13
Section 4. Lost Certificates............................................................... 13
Section 5. Corporate Seal.................................................................. 14
Section 6. Fixing Record Date.............................................................. 14
Section 7. Registered Stockholder.......................................................... 15
Article VI. GENERAL PROVISIONS.............................................................. 15
Section 1. Dividends....................................................................... 15
Section 2. Payment of Dividends' Directors' Duties......................................... 15
Section 3. Checks.......................................................................... 15
Section 4. Fiscal Year..................................................................... 15
Section 5. Corporate Seal.................................................................. 16
Section 6. Manner of Giving Notice......................................................... 16
Section 7. Waiver of Notice................................................................ 16
Section 8. Annual Statement................................................................ 16
Article VII. AMENDMENTS..................................................................... 16
Section 1. Amendment by Directors or Stockholder........................................... 16
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Article I.
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors may from
time to time determine or the business of the Corporation may require.
Article II.
MEETINGS OF STOCKHOLDERS
Section 1. Meetings of stockholders shall be held at any place within or
outside the State of Delaware designated by the Board of Directors. In the
absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the Corporation.
Section 2. The annual meeting of stockholders shall be held each year on
a date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
Section 3. A majority of the stock issued and outstanding and entitled
to vote at any meeting of stockholders, the holders of which are present in
person or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting stock represented in person
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or by proxy may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote thereat.
Section 4. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 5. At each meeting of the stockholders, each stockholder having
the right to vote may vote in person or may authorize another person or persons
to act for him by proxy appointed by an instrument in writing subscribed by such
stockholder and bearing a date not more than three years prior to said meeting,
unless said instrument provides for a longer period. AH proxies must be filed
with the Secretary of the Corporation at the beginning of each meeting in order
to be counted in any vote at the meeting. Each stockholder shall have one vote
for each share of stock having voting power, registered in his name on the books
of the Corporation on the record date set by the Board of Directors as provided
in Article V, Section 6 hereof. All elections shall be had and all questions
decided by a plurality vote.
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Section 6. Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the President and shall be called by the
President or the Secretary at the request in writing of a majority of the Board
of Directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the Corporation, issued and outstanding,
and entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which notice
shall state the place, date and hour of the meeting, and, in the case of a
special meeting, the purpose or purposes for which the meeting is called. The
written notice of any meeting shag be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 8. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list
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shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
Section 9. Unless otherwise provided in the Certificate of
Incorporation, any action required to be taken at any annual or special meeting
of stockholders of the Corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Article III.
DIRECTORS
Section 1. The number of directors which shall constitute the whole
Board shall be six (6), but the number of directors may be increased or
decreased (provided such decrease does not shorten the term of any incumbent
director), from time to time by resolution adopted by the majority of the whole
Board of Directors, but shall, in no event, exceed nine (9) directors. The
directors need not be stockholders. The directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 2 of this Article,
and each director elected shall hold office until his successor is elected and
qualified; provided, however, that unless otherwise restricted by the
Certificate of Incorporation or by law, any director or the entire Board of
Directors may be removed, either with or without cause, from' the Board of
Directors at any meeting of stockholders by a majority of the stock represented
and entitled to vote thereat.
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Section 2. Vacancies on the Board of Directors by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
and newly created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. The directors so
chosen shall hold office until the next annual election of directors and until
their successors are duly elected and shall qualify, unless sooner replaced by a
vote of the shareholders. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The property and business of the Corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers
and authorities by these By-Laws expressly conferred upon them, the Board may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 4. The directors may hold their meetings and have one or more
offices, and keep the books of the Corporation outside of the State of Delaware.
Section 5. Regular meetings of the Board of Directors may be held
without notice at such time and place as shall from time to time be determined
by the Board.
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Section 6. Special meetings of the Board of Directors may be -called by
the President on forty-eight hours' notice to each director, either personally
or by mall or by telegram; special meetings shall be called by the President or
the Secretary in like manner and on like notice on the written request of two
directors.
Section 7. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which there is a quorum, shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present. If only one
director is authorized, such sole director shall constitute a quorum. At any
meeting, a director shall have the right to be accompanied by counsel provided
that such counsel shall agree to any confidentiality restrictions reasonably
imposed by the Corporation.
Section 8. Unless otherwise restricted by the Certificate of
Incorporation or these, By-Laws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee
Section 9. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors, or any committee, by means of
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conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such meeting.
Section 10. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committee, each such
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
Section 11. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors when required.
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Section 12. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may be paid
a fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
Section 13. The Corporation shall indemnity every person who is or was a
party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Corporation or, while
a director or officer or employee of the Corporation, is or was serving at the
request of the Corporation as a director, officer, employee, agent or trustee of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including counsel fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding, to the' frill extent permitted
by applicable law.
Article IV.
OFFICERS
Section 1. The officers of this corporation shall be chosen by the Board
of Directors and shall include a President and a Secretary. The Corporation may
also have, at the discretion of the Board of Directors, such other officers as
are desired, including a Chairman of the Board, a Vice Chairman of the Board,
one or more Vice Presidents, a Treasurer, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in
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accordance with the provisions of Section 3 hereof. In the event there are two
or more Vice Presidents, then one or more may be designated as Executive Vice
President, Senior Vice President, or other similar or dissimilar title. At the
time of the election of officers, the directors may by resolution determine the
order of their rank. Any number of offices may be held by the same person unless
the Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. The Board of Directors, at its first meeting after each
annual meeting of stockholders, shall choose the officers of the Corporation.
Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board.
Section 4. The salaries of all officers and agents of the Corporation
shall be fixed by the Board of Directors.
Section 5. The officers of the Corporation shall hold office until their
successors are chosen and qualify in their stead. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, shall, if present, preside at all meetings of the Board of
Directors and exercise and perform such other powers and duties as may be from
time to time assigned to him by the Board of Directors or prescribed by these
By-Laws. If there is no President, the Chairman of the Board shall
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in addition be the Chief Executive Officer of the Corporation and shall have the
powers and duties prescribed in Section 7 of this Article IV.
Section 7. Vice Chairman of the Board. In the absence or disability of
the Chairman, the vice Chairman shall perform all the duties of the Chairman,
and when so acting shall have all the powers of and be subject to all the
restrictions upon the Chairman. The Vice Chairman shall have such other duties
as from time to time may be prescribed for him by the Board of Directors.
Section 8. President. Subject to such supervisory powers, if any, as may
be given by the Board of Directors to the Chairman of the Board, if there be
such an officer, the President shall be the Chief Executive Officer of the
Corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and officers of the
Corporation. He shall preside at all meetings of the stockholders and, in the
absence of the Chairman of the Board, or if there be none, at all meetings of
the Board of Directors. He shall be an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these By-Laws.
Section 9. Vice Presidents. In the absence or disability of the
President, the Vice Presidents in order of their rank as fixed by the Board of
Directors, or if not ranked, the Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of and be subject to all the restrictions upon the
President.
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The Vice Presidents shall have such other duties as from time to time may be
prescribed for them, respectively, by the Board of Directors.
Section 10. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the stockholders and record all votes and
the minutes of all proceedings in a book to be kept for that purpose; and shall
perform like duties for the standing committees when required by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws. In the absence
or disability of the President and the Vice Presidents, the Secretary shall
perform all the duties of the President, and when so acting shall have all the
powers of and be subject to all the restrictions upon the President.
He shall keep in safe custody the seal of the Corporation, and when
authorized by the Board, affix the same to any instrument requiring it, and when
so affixed it shall be attested by his signature or by the signature of an
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seat of the Corporation and to attest the affixing by
his signature.
Section 11. Assistant Secretary. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the Board of
Directors, or if there be no such determination, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, perform the duties and exercise the powers of the Secretary and shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
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Section 12. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys, and other valuable effects in the name and to the credit of
the Corporation, in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of all his transactions as Treasurer and of
the financial condition of the Corporation. If required by the Board of
Directors, he shall give the Corporation a bond, in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors, for the
faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 13. Assistant Treasurer. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by the
Board of Directors, or if there be no such determination, the Assistant
Treasurer designated by the Board of Directors, shall, in the absence or
disability of the Treasurer, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Article V.
CERTIFICATES OF STOCK
Section 1. Every holder of stock of the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by, the Chairman
or Vice Chairman of the
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Board of Directors, or the President or a Vice President, and by the Secretary
or an Assistant Secretary, or the Treasurer or an Assistant Treasurer of the
Corporation, certifying the number of shares represented by the certificate
owned by such stockholder in the Corporation.
Section 2. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent, or registrar at the date of issue.
Section 3. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class,, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the Corporation shall issue to represent such' class or
series of stock, a statement that the Corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 4. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to
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have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost,
Section 5. Upon surrender to the Corporation, or the transfer agent of
the Corporation, of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, the
Corporation shall issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its book.
Section 6. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders, or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
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Section 7. The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or other claim or
interest in such share on the part of any other person, whether or not it shall
have express or other notice thereof, save as expressly provided by the laws of
the State of Delaware.
Article VI.
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the Corporation, subject
to the provisions of the Certificate of Incorporation, if any, may be declared
by the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation.
Section 2. Before payment of any dividend there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interests of the
Corporation, and the directors may abolish any such reserve.
Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
Section 4. The fiscal year of the Corporation shall be the calendar
year.
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Section 5. The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the words "Corporate Seal,
Delaware". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 7. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
Section 8. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
Article VII.
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new
By-Laws may be adopted by the stockholders or by the Board of Directors at any
regular meeting of the stockholders or of the Board of Directors or at any
special meeting of the stockholders or of the
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Board of Directors if notice of such alteration, amendment, repeat or adoption
of new By-Laws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by
the Certificate of Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
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SECRETARY'S CERTIFICATION
I hereby certify that the foregoing By-laws were adopted by the Board of
Directors of the Corporation on _________, 1997.
------------------------------------
Name:
Title: Secretary
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EXHIBIT 2.03(d)
AMENDED AND RESTATED
BYLAWS
OF
INTRACEL CORPORATION
(A Delaware corporation)
Originally adopted on April 30, 1997
Amendments are listed on page i
144
INTRACEL CORPORATION
AMENDMENTS
Date of
Section Effect of Amendment Amendment
------- ------------------- ---------
3.2 Increase maximum number of January 2, 1998
Directors to nine.
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CONTENTS
PAGE
----
SECTION 1 OFFICES.............................................................. 1
SECTION 2 STOCKHOLDERS......................................................... 1
2.1 Annual Meeting......................................................... 1
2.2 Special Meetings....................................................... 1
2.3 Place of Meeting....................................................... 1
2.4 Notice of Meeting...................................................... 1
2.5 Waiver of Notice....................................................... 2
2.5.1 Waiver in Writing............................................. 2
2.5.2 Waiver by Attendance.......................................... 2
2.6 Fixing of Record Date for Determining Stockholders..................... 2
2.6.1 Meetings...................................................... 2
2.6.2 Consent to Corporate Action Without a Meeting................. 3
2.6.3 Dividends, Distributions and Other Rights..................... 3
2.7 Voting List............................................................ 3
2.8 Quorum................................................................. 4
2.9 Manner of Acting....................................................... 4
2.10 Proxies................................................................ 4
2.10.1 Appointment................................................... 4
2.10.2 Delivery to Corporation; Duration............................. 5
2.11 Voting of Shares....................................................... 5
2.12 Voting for Directors................................................... 5
2.13 Action by Stockholders Without a Meeting............................... 5
SECTION 3 BOARD OF DIRECTORS................................................... 6
3.1 General Powers......................................................... 6
3.2 Number and Tenure...................................................... 6
3.3 Annual and Regular Meetings............................................ 6
3.4 Special Meetings....................................................... 6
3.5 Meetings by Telephone.................................................. 7
3.6 Notice of Special Meetings............................................. 7
3.6.1 Personal Delivery............................................. 7
3.6.2 Delivery by Mail.............................................. 7
3.6.3 Delivery by Private Carrier................................... 7
3.6.4 Facsimile Notice.............................................. 7
3.6.5 Delivery by Telegraph......................................... 7
3.6.6 Oral Notice................................................... 8
3.7 Waiver of Notice....................................................... 8
3.7.1 In Writing.................................................... 8
3.7.2 By Attendance................................................. 8
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3.8 Quorum................................................................ 8
3.9 Manner of Acting...................................................... 8
3.10 Presumption of Assent................................................. 8
3.11 Action by Board or Committees Without a Meeting....................... 9
3.12 Resignation........................................................... 9
3.13 Removal............................................................... 9
3.14 Vacancies............................................................. 9
3.15 Committees............................................................ 9
3.15.1 Creation and Authority of Committees......................... 9
3.15.2 Minutes of Meetings.......................................... 10
3.15.3 Quorum and Manner of Acting.................................. 10
3.15.4 Resignation.................................................. 10
3.15.5 Removal...................................................... 10
3.16 Compensation.......................................................... 11
SECTION 4 OFFICERS............................................................ 11
4.1 Number................................................................ 11
4.2 Election and Term of Office........................................... 11
4.3 Resignation........................................................... 11
4.4 Removal............................................................... 11
4.5 Vacancies............................................................. 12
4.6 Chairman of the Board................................................. 12
4.7 President............................................................. 12
4.8 Vice President........................................................ 12
4.9 Secretary............................................................. 12
4.10 Treasurer............................................................. 13
4.11 Salaries.............................................................. 13
SECTION 5 CONTRACTS, LOANS, CHECKS AND DEPOSITS............................... 13
5.1 Contracts............................................................. 13
5.2 Loans to the Corporation.............................................. 13
5.3 Checks, Drafts, Etc................................................... 13
5.4 Deposits.............................................................. 14
SECTION 6 CERTIFICATES FOR SHARES AND THEIR TRANSFER.......................... 14
6.1 Issuance of Shares.................................................... 14
6.2 Certificates for Shares............................................... 14
6.3 Stock Records......................................................... 14
6.4 Restriction on Transfer............................................... 14
6.5 Transfer of Shares.................................................... 15
6.6 Lost or Destroyed Certificates........................................ 15
6.7 Shares of Another Corporation......................................... 15
SECTION 7 BOOKS AND RECORDS................................................... 16
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SECTION 8 ACCOUNTING YEAR..................................................... 16
SECTION 9 SEAL................................................................ 16
SECTION 10 INDEMNIFICATION..................................................... 16
10.1 Right to Indemnification.............................................. 16
10.2 Right of Indemnitee to Bring Suit..................................... 17
10.3 Nonexclusivity of Rights.............................................. 17
10.4 Insurance, Contracts and Funding...................................... 17
10.5 Indemnification of Employees and Agents of the Corporation............ 18
10.6 Persons Serving Other Entities........................................ 18
SECTION 11 AMENDMENTS OR REPEAL................................................ 18
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AMENDED AND RESTATED
BYLAWS
OF
INTRACEL CORPORATION
SECTION 1 OFFICES
The principal office of the corporation shall be located at its
principal place of business or such other place as the Board of Directors (the
"Board") may designate. The corporation may have such other offices, either
within or without the State of Delaware, as the Board may designate or as the
business of the corporation may require from time to time.
SECTION 2 STOCKHOLDERS
2.1 ANNUAL MEETING
The annual meeting of the stockholders shall be held each year within 90
to 180 days after the fiscal year end of the corporation at a date, time and
location determined by resolution of the Board for the purpose of electing
Directors and transacting such other business as may properly come before the
meeting. If the day fixed for the annual meeting is a legal holiday at the place
of the meeting, the meeting shall be held on the next succeeding business day.
If the annual meeting is not held on the date designated therefor, the Board
shall cause the meeting to be held on such other date as may be convenient.
2.2 SPECIAL MEETINGS
The Chairman of the Board, the President or the Board may call special
meetings of the stockholders for any purpose. Holders of not less than 30% of
all the outstanding shares of the corporation entitled to vote at the meeting
may call special meetings of the stockholders for any purpose by giving notice
to the corporation as specified in subsection 2.4 hereof.
2.3 PLACE OF MEETING
All meetings shall be held at the principal office of the corporation or
at such other place as designated by the Board, by any person entitled to call a
meeting hereunder.
2.4 NOTICE OF MEETING
The Chairman of the Board, the President, the Secretary, the Board, or
stockholders calling an annual or special meeting of stockholders as provided
for herein, shall cause to be delivered to each stockholder entitled to notice
of or to vote at the
149
meeting either personally or by mail, not less than 10 nor more than 60 days
before the meeting, written notice stating the place, day and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for which
the meeting is called. Upon written request delivered to the corporation in
accordance with subsection 2.5 hereof by the holders of not less than 40% of the
outstanding shares of the corporation, the stockholders may request that the
corporation call a special meeting of stockholders. Within 60 days of such a
request, it shall be the duty of the Secretary to give notice of a special
meeting of stockholders to be held on such date and at such place and hour as
the Secretary may fix, and if the Secretary shall neglect or refuse to issue
such notice, the person making the request may do so and may fix the date for
such meeting. If such notice is mailed, it shall be deemed delivered when
deposited in the official government mail properly addressed to the stockholder
at such stockholder's address as it appears on the stock transfer books of the
corporation with postage prepaid. If the notice is telegraphed, it shall be
deemed delivered when the content of the telegram is delivered to the telegraph
company. Notice given in any other manner shall be deemed delivered when
dispatched to the stockholder's address, telephone number or other number
appearing on the stock transfer records of the corporation.
2.5 WAIVER OF NOTICE
2.5.1 WAIVER IN WRITING
Whenever any notice is required to be given to any stockholder under the
provisions of these Bylaws, the Certificate of Incorporation or the General
Corporation Law of the State of Delaware, as now or hereafter amended (the
"DGCL"), a waiver thereof in writing, signed by the person or persons entitled
to such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
2.5.2 WAIVER BY ATTENDANCE
The attendance of a stockholder at a meeting shall constitute a waiver
of notice of such meeting, except when a stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
2.6 FIXING OF RECORD DATE FOR DETERMINING STOCKHOLDERS
2.6.1 MEETINGS
For the purpose of determining stockholders entitled to notice of and to
vote at any meeting of stockholders or any adjournment thereof, the Board may
fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board, and which record date
shall be nor more than 60 (or the maximum number permitted by applicable law) or
less than 10 days before the date of such meeting. If no record date is fixed by
the Board, the record date for determining stockholders entitled to notice of
and to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given or, if notice
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is waived, at the close of business on the day next preceding the day on which
the meeting is held. A determination of stockholders of record entitled to
notice of and to vote at the meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board may fix a new
record date for the adjourned meeting.
2.6.2 CONSENT TO CORPORATE ACTION WITHOUT A MEETING
For the purpose of determining stockholders entitled to consent to
corporate action in writing without a meeting, the Board may fix a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board, and which date shall not be more than
10 (or the maximum number permitted by applicable law) days after the date upon
which the resolution fixing the record date is adopted by the Board. If no
record date has been fixed by the Board, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board is required by Chapter 1 of the DGCL,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the corporation by delivery
to its registered office in the State of Delaware, its principal place of
business, or an officer or agent of the corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
the corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board and prior action by the Board is required by Chapter 1 of the DGCL,
the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the day
on which the Board adopts the resolution taking such prior action.
2.6.3 DIVIDENDS, DISTRIBUTIONS AND OTHER RIGHTS
For the purpose of determining stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record
date shall be not more than 60 (or the maximum number permitted by applicable
law) days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board adopts the resolution relating thereto.
2.7 VOTING LIST
At least 10 days before each meeting of stockholders, a complete list of
the stockholders entitled to vote at such meeting, or any adjournment thereof,
shall be made, arranged in alphabetical order, with the address of and number of
shares held by each stockholder. This list shall be open to examination by any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of 10 days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where
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the meeting is to be held. This list shall also be produced and kept at such
meeting for inspection by any stockholder who is present.
2.8 QUORUM
A majority of the outstanding shares of the corporation entitled to
vote, present in person or represented by proxy at the meeting, shall constitute
a quorum at a meeting of the stockholders; provided, that where a separate vote
by a class or classes is required, a majority of the outstanding shares of such
class or classes, present in person or represented by proxy at the meeting,
shall constitute a quorum entitled to take action with respect to that vote on
that matter. If less than a majority of the outstanding shares entitled to vote
are represented at a meeting, a majority of the shares so represented may
adjourn the meeting from time to time without further notice. If a quorum is
present or represented at a reconvened meeting following such an adjournment,
any business may be transacted that might have been transacted at the meeting as
originally called. The stockholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
2.9 MANNER OF ACTING
In all matters other than the election of Directors, if a quorum is
present, the affirmative vote of the majority of the outstanding shares present
in person or represented by proxy at the meeting and entitled to vote on the
subject matter shall be the act of the stockholders, unless the vote of a
greater number is required by these Bylaws, the Certificate of Incorporation or
the DGCL. Where a separate vote by a class or classes is required, if a quorum
of such class or classes is present, the affirmative vote of the majority of
outstanding shares of such class or classes present in person or represented by
proxy at the meeting shall be the act of such class or classes. Directors shall
be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
Directors.
2.10 PROXIES
2.10.1 APPOINTMENT
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for such stockholder by proxy. Such
authorization may be accomplished by the stockholder or such stockholder's
authorized office, director, employee or agent executing a writing or causing
his or her signature to be affixed to such writing by any reasonable means,
including facsimile signature, or (b) transmitting or authorizing the
transmission of a telegram, cablegram or other means of electronic transmission
to the intended holder of the proxy or to a proxy solicitation firm, proxy
support service or similar agent duly authorized by the intended proxy holder to
receive such transmission; provided, that any such telegram, cablegram or other
electronic transmission must either set forth or be accompanied by information
from which it can be
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determined that the telegram, cablegram or other electronic transmission was
authorized by the stockholder. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission by which a stockholder has
authorized another person to act as proxy for such stockholder may be
substituted or used in lieu of the original writing or transmission for any and
all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile telecommunication or other reproduction shall
be a complete reproduction of the entire original writing or transmission.
2.10.2 DELIVERY TO CORPORATION; DURATION
A proxy shall be filed with the Secretary before or at the time of the
meeting or the delivery to the corporation of the consent to corporate action in
writing. A proxy shall become invalid three years after the date of its
execution unless otherwise provided in the proxy. A proxy with respect to a
specified meeting shall entitle the holder thereof to vote at any reconvened
meeting following adjournment of such meeting but shall not be valid after the
final adjournment thereof.
2.11 VOTING OF SHARES
Each outstanding share entitled to vote with respect to the subject
matter of an issue submitted to a meeting of stockholders shall be entitled to
one vote upon each such issue.
2.12 VOTING FOR DIRECTORS
Each stockholder entitled to vote at an election of Directors may vote,
in person or by proxy, the number of shares owned by such stockholder for as
many persons as there are directors to be elected and for whose election such
stockholder has a right to vote.
2.13 ACTION BY STOCKHOLDERS WITHOUT A MEETING
Any action which could be taken at any annual or special meeting of
stockholders may be taken without prior notice and without a vote, if a consent
or consents in writing, setting forth the action so taken, shall (a) be signed
by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted (as determined
in accordance with subsection 2.6.2 hereto) and (b) be delivered to the
corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the corporation having
custody of the records of proceedings of meetings of stockholders. Delivery made
to the corporation's registered office shall be by hand or by certified mail or
registered mail, return receipt requested. Every written consent shall bear the
date of signature of each stockholder who signs the consent and no written
consent shall be effective to take the corporate action referred to therein
unless written consents signed by the requisite number of stockholders entitled
to vote with respect to the subject matter thereof are delivered to the
corporation, in the manner required by this Section 2, within 60 (or the maximum
number permitted
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by applicable law) days of the earliest dated consent delivered to the
corporation in the manner required by this Section 2. The validity of any
consent executed by a proxy for a stockholder pursuant to a telegram, cablegram
or other means of electronic transmission transmitted to such proxy holder by or
upon the authorization of the stockholder shall be determined by or at the
direction of the Secretary. A written record of the information upon which the
person making such determination relied shall be made and kept in the records of
the proceedings of the stockholders. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing. Any such
consent shall be inserted in the minute book as if it were the minutes of a
meeting of the stockholders.
SECTION 3 BOARD OF DIRECTORS
3.1 GENERAL POWERS
The business and affairs of the corporation shall be managed by the
Board.
3.2 NUMBER AND TENURE
The Board shall be composed of not less than six nor more than nine
Directors, the specific number to be set by resolution of the board or the
stockholders, provided that the Board may consist of fewer than three Directors
until vacancies are filled. The number of Directors may be changed from time to
time by amendment to these Bylaws, but no decrease in the number of Directors
shall have the effect of shortening the term of any incumbent Director. Unless a
Director resigns or is removed, he or she shall hold office until the next
annual meeting of stockholders or until his or her successor is elected,
whichever is later. Directors need not be stockholders of the corporation or
residents of the State of Delaware.
3.3 ANNUAL AND REGULAR MEETINGS
An annual Board meeting shall be held without notice immediately after
and at the same place as the annual meeting of stockholders. By resolution, the
Board or any committee designated by the Board may specify the time and place
either within or without the State of Delaware for holding regular meetings
thereof without other notice than such resolution.
3.4 SPECIAL MEETINGS
Special meetings of the Board or any committee appointed by the Board
may be called by or at the request of the Chairman of the of the Board, the
President, Secretary or, in the case of special Board meetings, any two
Directors and, in the case of any special meeting of any committee appointed by
the Board, by the Chairman thereof. The person or persons authorized to call
special meetings may fix any place either within or without the State of
Delaware as the place for holding any special meeting called by them.
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3.5 MEETINGS BY TELEPHONE
Members of the Board or any committee designated by the Board may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation by such means
shall constitute presence in person at a meeting.
3.6 NOTICE OF SPECIAL MEETINGS
Notice of a special Board or committee meeting stating the place, day
and hour of the meeting shall be given to a Director in writing or orally by
telephone or in person. Neither the business to be transacted at, nor the
purpose of, any special meeting need be specified in the notice of such meeting.
3.6.1 PERSONAL DELIVERY
If notice is given by personal delivery, the notice shall be effective
if delivered to a Director at least two days before the meeting.
3.6.2 DELIVERY BY MAIL
If notice is delivered by mail, the notice shall be deemed effective if
deposited in the official government mail properly addressed to a Director at
his or her address shown on the records of the corporation with postage prepaid
at least five days before the meeting.
3.6.3 DELIVERY BY PRIVATE CARRIER
If notice is given by private carrier, the notice shall be deemed
effective when dispatched to a Director at his or her address shown on the
records of the corporation at least three days before the meeting.
3.6.4 FACSIMILE NOTICE
If notice is delivered by wire or wireless equipment that transmits a
facsimile of the notice, the notice shall be deemed effective when dispatched at
least two days before the meeting to a Director at his or her telephone number
or other number appearing on the records of the corporation.
3.6.5 DELIVERY BY TELEGRAPH
If notice is delivered by telegraph, the notice shall be deemed
effective if the content thereof is delivered to the telegraph company at least
two days before the meeting for delivery to a Director at his or her address
shown on the records of the corporation.
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3.6.6 ORAL NOTICE
If notice is delivered orally, by telephone or in person, the notice
shall be deemed effective if personally given to the director at least two days
before the meeting.
3.7 WAIVER OF NOTICE
3.7.1 IN WRITING
Whenever any notice is required to be given to any Director under the
provisions of these Bylaws, the Certificate of Incorporation or the DGCL, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the board or any
committee appointed by the Board need to be specified in the waiver of notice of
such meeting.
3.7.2 BY ATTENDANCE
The attendance of a Director at a Board or committee meeting shall
constitute a waiver of notice of such meeting, except when a Director attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
3.8 QUORUM
A majority of the total number of Directors fixed in the manner provided
in these Bylaws or, if vacancies exist on the Board, a majority of the total
number of Directors then serving on the Board, provided, however, that such
number may be not less than one-third of the total number of Directors fixed in
the manner provided in these Bylaws, shall constitute a quorum for the
transaction of business at any Board meeting. If less than a majority are
present at a meeting, a majority of the Directors present may adjourn the
meeting from time to time without further notice.
3.9 MANNER OF ACTING
The act of the majority of the Directors present at a Board or committee
meeting at which there is a quorum shall be the act of the Board or committee,
unless the vote of a greater number is required by these Bylaws, the Certificate
of Incorporation or the DGCL.
3.10 PRESUMPTION OF ASSENT
A Director of the corporation present at a Board or committee meeting at
which action on any corporate matter is taken shall be presumed to have assented
to the action taken unless his or her dissent is entered in the minutes of the
meeting, or unless such Director files a written dissent to such action with the
person acting as the secretary of the meeting before the adjournment thereof, or
forwards such dissent by registered mail to
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the Secretary of the corporation immediately after the adjournment of the
meeting. A Director who voted in favor of such action may not dissent.
3.11 ACTION BY BOARD OR COMMITTEES WITHOUT A MEETING
Any action that could be taken at a meeting of the Board or of any
committee appointed by the Board may be taken without a meeting if a written
consent setting forth the action so taken is signed by each of the Directors or
by each committee member. Any such written consent shall be inserted in the
minute book as if it were the minutes of a Board or a committee meeting.
3.12 RESIGNATION
Any Director may resign at any time by delivering written notice to the
Chairman of the Board, the President, the Secretary or the Board, or to the
registered office of the corporation. Any such resignation shall take effect at
the time specified therein or, if the time is not specified, upon delivery
thereof and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
3.13 REMOVAL
At a meeting of stockholders called expressly for that purpose, one or
more members of the Board (including the entire Board) may be removed, with or
without cause, by a vote of the holders of a majority of the shares then
entitled to vote on the election of Directors.
3.14 VACANCIES
Any vacancy occurring on the Board may be filled by the affirmative vote
of a majority of the remaining Directors though less than a quorum of the Board.
A Director elected to fill a vacancy shall be elected for the unexpired term of
his or her predecessor in office. Any directorship to be filled by reason of an
increase in the number of Directors may be filled by the Board.
3.15 COMMITTEES
3.15.1 CREATION AND AUTHORITY OF COMMITTEES
The Board may, by resolution passed by a majority of the number of
Directors fixed by or in the manner provided in these Bylaws, appoint standing
or temporary committees, each committee to consist of one or more Directors of
the corporation. The Board may designate one or more Directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member of
a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board establishing
such
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committee or as otherwise provided in these Bylaws, shall have and may exercise
all the powers and authority of the Board in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers that require it; but no such committee shall have the
power or authority in reference to (a) amending the Certificate of Incorporation
(except that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the Board
as provided in Section 151(a) of the DGCL, fix the designations, preferences or
rights of such shares to the extent permitted under Section 141 of the DGCL),
(b) adopting an agreement of merger or consolidation under Section 251 or 252 of
the DGCL, (c) recommending to the stockholders the sale, lease or exchange or
other disposition of all or substantially all the property and assets of the
corporation, (d) recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution, or (e) amending these Bylaws; and,
unless expressly provided by resolution of the Board, no such committee shall
have the power or authority to declare a dividend, to authorize the issuance of
stock or to adopt a certificate of ownership and merger pursuant to Section 253
of the DGCL.
3.15.2 MINUTES OF MEETINGS
All committees so appointed shall keep regular minutes of their meetings
and shall cause them to be recorded in books kept for that purpose.
3.15.3 QUORUM AND MANNER OF ACTING
A majority of the number of Directors composing any committee of the
Board, as established and fixed by resolution of the Board, shall constitute a
quorum for the transaction of business at any meeting of such committee but, if
less than a majority are present at a meeting, a majority of such Directors
present may adjourn the meeting from time to time without further notice. The
act of a majority of the members of a committee present at a meeting at which a
quorum is present shall be the act of such committee.
3.15.4 RESIGNATION
Any member of any committee may resign at any time by delivering written
notice to the Chairman of the Board, the President, the Secretary, the Board or
the Chairman of such committee. Any such resignation shall take effect at the
time specified therein or, if the time is not specified, upon delivery thereof
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
3.15.5 REMOVAL
The Board may remove from office any member of any committee elected or
appointed by it, but only by the affirmative vote of not less than a majority of
the number of Directors fixed by or in the manner provided in these Bylaws.
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3.16 COMPENSATION
By Board resolution, Directors and committee members may be paid their
expenses, if any, of attendance at each Board or committee meeting, a fixed sum
for attendance at each Board or committee meeting or a stated salary as Director
or a committee member, or a combination of the foregoing. No such payment shall
preclude any Director or committee member from serving the corporation in any
other capacity and receiving compensation therefor.
SECTION 4 OFFICERS
4.1 NUMBER
The officers of the corporation shall be a President, a Secretary and a
Treasurer, each of whom shall be elected by the Board. One or more Vice
Presidents and such other officers and assistant officers, including Chairman of
the Board, may be elected or appointed by the Board, such officers and assistant
officers to hold office for such period, have such authority and perform such
duties as are provided in these Bylaws or as may be provided by resolution of
the Board. Any officer may be assigned by the Board any additional title that
the Board deems appropriate. The Board may delegate to any officer or agent the
power to appoint any such subordinate officers or agents and to prescribe their
respective terms of office, authority and duties. Any two or more offices may be
held by the same person.
4.2 ELECTION AND TERM OF OFFICE
The officers of the corporation shall be elected annually by the Board
at the Board meeting held after the annual meeting of the stockholders. If the
election of officers is not held at such meeting, such election shall be held as
soon thereafter as a Board meeting conveniently may be held. Unless an officer
dies, resigns or is removed from office, he or she shall hold office until the
next annual meeting of the Board or until his or her successor is elected.
4.3 RESIGNATION
Any officer may resign at any time by delivering written notice to the
Chairman of the Board, the President, a Vice President, the Secretary or the
Board. Any such resignation shall take effect at the time specified therein or,
if the time is not specified, upon delivery thereof and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
4.4 REMOVAL
Any officer or agent elected or appointed by the Board may be removed by
the Board whenever in its judgment the best interests of the corporation would
be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
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4.5 VACANCIES
A vacancy in any office because of death, resignation, removal,
disqualification, creation of a new office or any other cause may be filled by
the Board for the unexpired portion of the term, or for a new term established
by the Board.
4.6 CHAIRMAN OF THE BOARD
If elected, the Chairman of the Board shall perform such duties as shall
be assigned to him or her by the Board from time to time and shall preside over
meetings of the Board and stockholders unless another officer is appointed or
designated by the Board as Chairman of such meeting.
4.7 PRESIDENT
The President shall be the chief executive officer of the corporation
unless some other officer is so designated by the Board, shall preside over
meetings of the Board and stockholders in the absence of a Chairman of the Board
and, subject to the Board's control, shall supervise and control all the assets,
business and affairs of the corporation. The President may sign certificates for
shares of the corporation, deeds, mortgages, bonds, contracts or other
instruments, except when the signing and execution thereof have been expressly
delegated by the Board or by these Bylaws to some other officer or agent of the
corporation or are required by law to be otherwise signed or executed by some
other officer or in some other manner. In general, the President shall perform
all duties incident to the office of President and such other duties as are
prescribed by the Board from time to time.
4.8 VICE PRESIDENT
In the event of the death of the President or his or her inability to
act, the Vice President (or if there is more than one Vice President, the Vice
President who was designated by the Board as the successor to the President, or
if no Vice President is so designated, the Vice President first elected to such
office) shall perform the duties of the President, except as may be limited by
resolution of the Board, with all the powers of and subject to all the
restrictions upon the President. Any Vice President may sign with the Secretary
or any Assistant Secretary certificates for shares of the corporation. Vice
Presidents shall have, to the extent authorized by the President or the Board,
the same powers as the President to sign deeds, mortgages, bonds, contracts or
other instruments. Vice Presidents shall perform such other duties as from time
to time may be assigned to them by the President or the Board.
4.9 SECRETARY
The Secretary shall be responsible for preparation of minutes of
meetings of the Board and stockholders, maintenance of the corporation's records
and stock registers, and authentication of the corporation's records and shall
in general perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to
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him or her by the President or the Board. In the absence of the Secretary, an
Assistant Secretary may perform the duties of the Secretary.
4.10 TREASURER
If required by the Board, the Treasurer shall give a bond for the
faithful discharge of his or her duties in such amount and with such surety or
sureties as the Board shall determine. The Treasurer shall have charge and
custody of and be responsible for all funds and securities of the corporation;
receive and give receipts for moneys due and payable to the corporation from any
source whatsoever, and deposit all such moneys in the name of the corporation in
banks, trust companies or other depositories selected in accordance with the
provisions of these Bylaws; sign certificates for shares of the corporation; and
in general perform all duties incident to the office of Treasurer and such other
duties as from time to time may be assigned to him or her by the President or
the Board. In the absence of the Treasurer, an Assistant Treasurer may perform
the duties of the Treasurer.
4.11 SALARIES
The salaries of the officers shall be fixed from time to time by the
Board or by any person or persons to whom the Board has delegated such
authority. No officer shall be prevented from receiving such salary by reason of
the fact that he or she is also a Director of the corporation.
SECTION 5 CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.1 CONTRACTS
The Board may authorize any officer or officers, or agent or agents, to
enter into any contract or execute and deliver any instrument in the name of and
on behalf of the corporation. Such authority may be general or confined to
specific instances.
5.2 LOANS TO THE CORPORATION
No loans shall be contracted on behalf of the corporation and no
evidence of indebtedness shall be issued in its name unless authorized by a
resolution of the Board. Such authority may be general or confined to specific
instances.
5.3 CHECKS, DRAFTS, ETC.
All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the corporation shall be
signed by such officer or officers, or agent or agents, of the corporation and
in such manner as is from time to time determined by resolution of the Board.
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5.4 DEPOSITS
All funds of the corporation not otherwise employed shall be deposited
from time to time to the credit of the corporation in such banks, trust
companies or other depositories as the Board may select.
SECTION 6 CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 ISSUANCE OF SHARES
No shares of the corporation shall be issued unless authorized by the
Board, which authorization shall include the maximum number of shares to be
issued and the consideration to be received for each share.
6.2 CERTIFICATES FOR SHARES
Certificates representing shares of the corporation shall be signed by
the Chairman of the Board or a Vice Chairman of the Board, if any, or the
President or a Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary, any of whose signatures may be a
facsimile. The Board may in its discretion appoint responsible banks or trust
companies from time to time to act as transfer agents and registrars of the
stock of the corporation; and, when such appointments shall have been made, no
stock certificate shall be valid until countersigned by one of such transfer
agents and registered by one of such registrars. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the corporation
with the same effect as if such person was such officer, transfer agent or
registrar at the date of issue. All certificates shall include on their face
written notice of any restrictions that may be imposed on the transferability of
such shares and shall be consecutively numbered or otherwise identified.
6.3 STOCK RECORDS
The stock transfer books shall be kept at the registered office or
principal place of business of the corporation or at the office of the
corporation's transfer agent or registrar. The name and address of each person
to whom certificates for shares are issued, together with the class and number
of shares represented by each such certificate and the date of issue thereof,
shall be entered on the stock transfer books of the corporation. The person in
whose name shares stand on the books of the corporation shall be deemed by the
corporation to be the owner thereof for all purposes.
6.4 RESTRICTION ON TRANSFER
Except to the extent that the corporation has obtained an opinion of
counsel acceptable to the corporation that transfer restrictions are not
required under applicable securities laws, or has otherwise satisfied itself
that such transfer restrictions are not required, all certificates representing
shares of the corporation shall bear a legend on the
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face of the certificate, or on the reverse of the certificate if a reference to
the legend is contained on the face, that reads substantially as follows:
"The securities evidenced by this certificate have not be
registered under the Securities Act of 1933, as amended, or any
applicable state law, and no interest therein may be sold,
distributed, assigned, offered, pledged or otherwise transferred
unless (a) there is an effective registration statement under
such Act and applicable state securities laws covering any such
transaction involving said securities or (b) this corporation
receives an opinion of legal counsel for the holder of these
securities (concurred in by legal counsel for this corporation)
stating that such transaction is exempt from registration or this
corporation otherwise satisfies itself that such transaction is
exempt from registration. Neither the offering of the securities
nor any offering materials have been reviewed by an administrator
under the Securities Act of 1933, as amended, or any applicable
state law."
6.5 TRANSFER OF SHARES
The transfer of shares of the corporation shall be made only on the
stock transfer books of the corporation pursuant to authorization or document of
transfer made by the holder of record thereof or by his or her legal
representative, who shall furnish proper evidence of authority to transfer, or
by his or her attorney-in-fact authorized by power of attorney duly executed and
filed with the Secretary of the corporation. All certificates surrendered to the
corporation for transfer shall be cancelled and no new certificate shall be
issued until the former certificates for a like number of shares shall have been
surrendered and cancelled.
6.6 LOST OR DESTROYED CERTIFICATES
In the case of a lost, destroyed or mutilated certificate, a new
certificate may be issued therefor upon such terms and indemnity to the
corporation as the Board may prescribe.
6.7 SHARES OF ANOTHER CORPORATION
Shares owned by the corporation in another corporation, domestic or
foreign, may be voted by such officer, agent or proxy as the Board may determine
or, in the absence of such determination, by the Chairman of the Board, the Vice
Chairman of the Board, the President or any Vice President of the corporation.
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SECTION 7 BOOKS AND RECORDS
The corporation shall keep correct and complete books and records of
account, stock transfer books, minutes of the proceedings of its stockholders
and Board and such other records as may be necessary or advisable.
SECTION 8 ACCOUNTING YEAR
The accounting year of the corporation shall be the calendar year,
provided that if a different accounting year is at any time selected for
purposes of federal income taxes, the accounting year shall be the year so
selected.
SECTION 9 SEAL
The seal of the corporation, if any, shall consist of the name of the
corporation, the state of its incorporation and the year of its incorporation.
SECTION 10 INDEMNIFICATION
10.1 RIGHT TO INDEMNIFICATION
Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved (including, without limitation, as a witness)
in any actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she is or was a Director or officer of the corporation or that,
being or having been such a Director or officer or an employee of the
corporation, he or she is or was serving at the request of the corporation as a
Director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as such a Director,
officer, employee or agent or in any other capacity while serving as such a
Director, officer, employee or agent, shall be indemnified and held harmless by
the corporation to the full extent permitted by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the corporation to provide broader
indemnification rights than permitted prior thereto), or by other applicable law
as then in effect, against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) actually and reasonably incurred or suffered by such indemnitee who
has ceased to be a Director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators; provided,
however, that except as provided in subsection 10.2 hereof with respect to
proceedings seeking to enforce rights to indemnification, the corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized or ratified by the Board. The right to indemnification conferred in
this subsection 10.1 shall be a contract right and shall include the right to be
paid by the corporation the expenses incurred in defending any such proceeding
in advance of its final disposition (hereinafter an "advancement of expenses');
provided,
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however, that if the DGCL requires, an advancement of expenses incurred by an
indemnitee in his or her capacity as a Director or officer (and not in any other
capacity in which service was or is rendered by such indemnitee, including,
without limitation, service to an employee benefit plan) shall be made only upon
delivery to the corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such indemnitee is not entitled to be indemnified
for such expenses under this subsection 10.1 or otherwise.
10.2 RIGHT OF INDEMNITEE TO BRING SUIT
If a claim under subsection 10.1 hereof is not paid in full by the
corporation within 60 days after a written claim has been received by the
corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. The indemnitee shall be presumed
to be entitled to indemnification under this Section 10 upon submission of a
written claim (and, in an action brought to enforce a claim for an advancement
of expenses, where the required undertaking, if any is required, has been
tendered to the corporation), and thereafter the corporation shall have the
burden of proof to overcome the presumption that the indemnitee is not so
entitled. Neither the failure of the corporation (including its Board,
independent legal counsel or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances nor an actual determination by the corporation
(including its Board, independent legal counsel or its stockholders) that the
indemnitee is not entitled to indemnification shall be a defense to the suit or
create a presumption that the indemnitee is not so entitled.
10.3 NONEXCLUSIVITY OF RIGHTS
The rights to indemnification and to the advancement of expenses
conferred in this Section 10 shall not be exclusive of any other right that any
person may have or hereafter acquire under any statute, agreement, vote of
stockholders or disinterested Directors, provisions of the Certificate of
Incorporation or these Bylaws or otherwise. Notwithstanding any amendment to or
repeal of this Section 10, any indemnitee shall be entitled to indemnification
in accordance with the provisions hereof with respect to any acts or omissions
of such indemnitee occurring prior to such amendment or repeal.
10.4 INSURANCE, CONTRACTS AND FUNDING
The corporation may maintain insurance, at its expense, to protect
itself and any Director, officer, employee or agent of the corporation or
another corporation, partnership, joint venture, trust or other enterprise
against
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any expense, liability or loss, whether or not the corporation would have the
power to indemnify such person against such expense, liability or loss under the
DGCL. The corporation, without further stockholder approval, may enter into
contracts with any Director, officer, employee or agent in furtherance of the
provisions of this Section 10 and may create a trust fund, grant a security
interest or use other means (including, without limitation, a letter of credit)
to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Section 10.
10.5 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION
The corporation may, by action of the Board, grant rights to
indemnification and advancement of expenses to employees or agents or groups of
employees or agents of the corporation with the same scope and effect as the
provisions of this Section 10 with respect to the indemnification and
advancement of expenses of Directors and officers of the corporation; provided,
however, that an undertaking shall be made by an employee or agent only if
required by the Board.
10.6 PERSONS SERVING OTHER ENTITIES
Any person who is or was a Director, officer or employee of the
corporation who is or was serving (a) as a Director or officer of another
corporation of which a majority of the shares entitled to vote in the election
of its Directors is held by the corporation or (b) in an executive or management
capacity in a partnership, joint venture, trust or other enterprise of which the
corporation or a wholly owned subsidiary of the corporation is a general partner
or has a majority ownership shall be deemed to be so serving at the request of
the corporation and entitled to indemnification and advancement of expenses
under subsection 10.1 hereof.
SECTION 11 AMENDMENTS OR REPEAL
These Bylaws may be amended or repealed and new Bylaws may be adopted by
the Board. The stockholders may also amend and repeal these Bylaws or adopt new
Bylaws. All Bylaws made by the Board may be amended or repealed by the
stockholders. Notwithstanding any amendment to Section 10 hereof or repeal of
these Bylaws, or of any amendment or repeal of any of the procedures that may be
established by the Board pursuant to Section 10 hereof, any indemnitee shall be
entitled to indemnification in accordance with the provisions hereof and thereof
with respect to any acts or omissions of such indemnitee occurring prior to such
amendment or repeal.
The foregoing Amended and Restated Bylaws were adopted by the Board of
Directors on November 20, 1997.
------------------------------------
Xxxxxxx Carrisino
Secretary
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EXHIBIT B
January 2, 1998
Intracel Corporation
0000 XX Xxxxxx Xxxx.
Issaquah, Washington
Attn: Xxxxx XxXxxxxx
Re: Agreement to Sell
Gentlemen:
The purpose of this letter is to confirm my agreement with you as follows.
In connection with any Qualified IPO (as such term is defined in that certain
Shareholders Agreement ("Shareholders Agreement") of even date herewith between
Intracel Corporation (the "Company") and certain of its shareholders), I hereby
agree to, upon the (i) request of the Intracel Shareholders (as such term is
defined in the Shareholders Agreement) holding at least a majority of all shares
of Company Common Stock (as such term is defined in the Shareholders Agreement)
held by all Intracel Shareholders (the "Shareholder Request") and (ii) approval
of the managing underwriter for the Qualified IPO, to sell and include in the
Qualified IPO up to a number (which number shall be stated in the Shareholder
Request) of shares of Company Common Stock equal to 20% of the shares of Company
Common Stock which were issued to me in connection with the Merger (as such term
is defined in the Shareholders Agreement) (as such number may be adjusted from
time to time to reflect any splits, recapitalizations or any other transactions
which affect the number of shares of Company Common Stock which are issued and
outstanding).
I also agree that any person to whom I transfer more than 910,832 shares of
Company Common Stock in a single transaction or a series of related transactions
shall take subject to my obligations set forth in this letter.
167
I agree that each of the Intracel Shareholders is intended to be a
third party beneficiary of my agreement set forth in this letter.
Very truly yours,
/s/ XXXXXXX XXXXX
------------------------------------
Xxxxxxx Xxxxx
Accepted as of the date
first set forth above:
INTRACEL CORPORATION
By:
-------------------------------
168
I agree that each of the Intracel Shareholders is intended to be a
third party beneficiary of my agreement set forth in this letter.
Very truly yours,
/s/ XXXXXXX XXXXX
------------------------------------
Xxxxxxx Xxxxx
Accepted as of the date
first set forth above:
INTRACEL CORPORATION
By: /s/ XXXXX X. XxXXXXXX
-------------------------------
Xxxxx X. XxXxxxxx
169
EXHIBIT C
SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT, dated as of January 2, 1998, by and among Intracel
Corporation, a Delaware corporation ("Intracel" or the "Company"), Xxxxxxx X.
Xxxxx, Xx. ("Xxxxx"), and the holders of shares ("Shares") of the Company's
common stock, $.0001 par value per share ("Company Common Stock") or the
Company's preferred stock, $.0001 par value per share ("Company Preferred Stock"
and, together with Company Common Stock, "Company Stock")) whose names appear on
Schedule A hereto either in the column entitled "Intracel Shareholder" (meaning
certain holders of shares of Company Stock prior to the Merger (as hereinafter
defined), directly or derivatively) or "PerImmune Shareholder" (meaning certain
previous holders of shares of PerImmune Holdings, Inc. ("PerImmune") common
stock, par value $.01 per share ("PerImmune Common Stock") or PerImmune
preferred stock, par value $.01 per share ("PerImmune Preferred Stock" and,
together with PerImmune Common Stock, "PerImmune Stock"), directly or
derivatively); all such holders are referred to herein as the "Intracel
Shareholders" or the "PerImmune Shareholders," respectively, and collectively,
as the "Shareholders".
PREAMBLE
Intracel is the successor by merger (the "Merger") to 100% of the capital
stock of PerImmune Holdings, Inc., a Delaware corporation ("PerImmune") pursuant
to that certain Agreement and Plan of Reorganization dated November 26, 1997
among the Company, PerImmune and Intracel Acquisition Sub, Inc. (the "Merger
Agreement"; and all defined terms used herein which are not otherwise defined
are used as defined in the Merger Agreement).
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Xxxxx was, prior to the Merger, the holder of 500 shares of PerImmune Common
Stock and, by virtue of the Merger, a holder of 4,554,160 Shares. Xxxxx and the
Shareholders wish to regulate the governance of Intracel in an orderly and
equitable manner.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Election of Directors. Immediately after the Effective Time,
each of the undersigned agrees to execute a written consent of shareholders,
pursuant to which the Board of Directors of the Company shall be reconstituted
and composed of the six (6) directors identified in clause (b) below. At each
annual meeting of the stockholders of the Company, or at each special meeting
of the stockholders of the Company involving the election of directors of the
Company, and at any other time at which stockholders of the Company will have
the right to or will vote for or render consents in writing regarding the
election of directors of the Company, then and in each event, the Shareholders
(including Xxxxx) hereby covenant and agree to vote all Shares presently owned
or hereafter acquired by them (whether owned of record or over which any person
exercises voting control) in favor of the following actions:
(a) to fix and maintain the number of directors at six (6);
and
(b) to cause and maintain the election to the Board of
Directors of the Company of: (i) three (3)
representatives designated by Xx. Xxxxx XxXxxxxx, on
behalf of the Intracel Shareholders (and the Intracel
Shareholders hereby grant Xx. XxXxxxxx the right to so
designate, on
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their behalf, such representatives pursuant to the terms
of this Agreement), who shall initially be Xxxxx
XxXxxxxx, Xxxxxxx Xxxxxxxx and Xxxxxxxxx Xxxxxxxx
(individually, an "Intracel Director" and, collectively,
the "Intracel Directors"), and (ii) three (3)
representatives designated by Mr. Xxxxxxx Xxxxx on
behalf of the PerImmune Shareholders (and the PerImmune
Shareholders hereby grant Xx. Xxxxx the right to so
designate, on their behalf, such representatives
pursuant to the terms of this Agreement), who shall
initially be Xxxxxxx X. Xxxxx, Xx., Xxxxxx Xxxxxxxxx and
Xxxxxx Xxxxxx (individually a "PerImmune Director" and,
collectively, the "PerImmune Directors").
None of the Intracel Shareholders or PerImmune Shareholders shall vote
to remove either or any director designated by the PerImmune Shareholders or
Intracel Shareholders, respectively, except for bad faith or willful
misconduct. Each of the parties hereto shall vote or cause to be voted all
Shares owned by them or over which they have voting control (i) to remove from
the Board of Directors any director designated by any party pursuant hereto at
the request of such party and (ii) to fill any vacancy in the membership of the
Board of Directors with a designee of the party whose designee's resignation or
removal from the Board caused such vacancy. Each of the holders of the
Company's Series A Preferred Stock and Series B-1 Preferred Stock who are
signatories to this Agreement hereby acknowledge and agree that the foregoing
provisions satisfy the Company's obligations with respect to each of such
holders' rights as holders of such Series A Preferred Stock and Series B-1
Preferred Stock.
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The Company shall provide to each party entitled to designate directors
hereunder prior written notice of any intended mailing of notice to
stockholders for a meeting at which directors are to be elected, and any party
entitled to designate directors pursuant hereto shall notify the Company in
writing, prior to such mailing of notice to stockholders, of the person(s)
designated by it or them as its or their nominee(s) for election as director(s).
If any party entitled to designate directors hereunder fails to give
notice to the Company as provided above, it shall be deemed that the designees
of such party then serving as director shall be its designees for reelection.
Each party entitled to designate directors hereunder hereby agrees that:
(i) the Company shall not have any executive or similar committee of the Board
of Directors unless the Board of Directors unanimously consents to the
formation of such committee and (ii) upon the mutual agreement of Xx. XxXxxxxx
and Xx. Xxxxx, the number of members of the Board of Directors may be expanded
up to (but no more than) nine (9), with such additional seats created thereby
to be filled by such vote as Xx. XxXxxxxx and Xx. Xxxxx may mutually determine.
2. [Intentionally Omitted]
3. Transfer of Stock. Except as otherwise expressly provided by this
Agreement, each Shareholder agrees not to transfer any Shares held by such
Shareholders unless (a) the transferee agrees in writing to be bound by the
terms and conditions of this Agreement and executes a counterpart of this
Agreement and (b) such Shareholder has complied with applicable law in
connection with such transfer.
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173
4. Duration of Agreement. The rights and obligations of the Company
and each Shareholder under this Agreement shall terminate on the earliest to
occur of the following: (a) immediately prior to the consummation of the first
underwritten public offering by the Company pursuant to an effective
registration statement under the Securities Act of 1933, as amended, of any of
its equity securities for its own account in which the aggregate gross proceeds
to the Company equal or exceed $10,000,000 (a "Qualified IPO"), (b) immediately
prior to the consummation of the sale of all, or substantially all, of the
Company's assets or Company Common Stock, or a merger, consolidation,
reorganization or other business combination of the Company which results in
the transfer of more than 50% of the voting securities of the Company, or (c)
the tenth anniversary hereof.
5. Legend. Each certificate representing Shares shall bear the
following legend, until such time as the Shares represented thereby are no
longer subject to the provisions hereof:
"The sale, transfer or assignment of the securities represented by this
certificate are subject to the terms and conditions of a certain
Shareholders Agreement dated January 1, 1998, among the Company and
certain holders of its outstanding capital stock. Copies of such
Agreement may be obtained at no cost by written request made by the
holder of record of this certificate to the Secretary of the Company."
6. Severability; Governing Law. If any provisions of this Agreement
shall be determined to be illegal or unenforceable by any court of law, the
remaining provisions shall be severable and enforceable in accordance with
their terms. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware other than such laws as would result in
the application of the law of a state other than the State of Delaware.
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174
7. Equitable Relief. It is acknowledged that it will be impossible to
measure the damages that would be suffered by the nonbreaching party if any
party fails to comply with the provisions of this Agreement and that, in the
event of any such failure, the nonbreaching parties will not have an adequate
remedy at law. The non-breaching parties shall, therefore, be entitled to
obtain specific performance of the breaching party's obligations hereunder and
to obtain immediate injunctive relief. The breaching party shall not urge, as a
defense to any proceeding for such specific performance or injunctive relief,
that the nonbreaching parties have an adequate remedy at law.
8. Attorneys' Fees, Etc. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
9. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assignees, legal representatives and heirs. Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and assigns any rights, remedies, obligations,
or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement. The administrator, executor or legal representative
of any deceased, juvenile or incapacitated Shareholder shall have the right to
execute and deliver all documents and perform all acts necessary to exercise
and perform the rights and obligations of such Shareholder under the terms of
this Agreement.
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10. Modification or Amendment. Neither this Agreement nor any provisions
hereof can be modified, amended, changed, discharged or terminated except by
an instrument in writing, signed by the Shareholders of at least a majority of
the Intracel Shareholders and a majority of the PerImmune Shareholders then
subject to this Agreement, based upon voting power and calculated on the basis
of all such securities of the Company then held by such Shareholders on an "as
if converted" and "as if exercised" basis.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument.
12. Notices. All notices to be given or otherwise made to any party to
this Agreement shall be deemed to be sufficient if contained in a written
instrument, delivered by hand in person, or by express overnight courier
service, or by electronic facsimile transmission (with a copy sent by
first-class mail, postage prepaid), or by registered or certified mail, return
receipt requested, postage prepaid, addressed to such party at the address set
forth in Schedule A hereto or at such other address as may hereafter be
designated in writing by the addressee to the addressor listing all parties. All
such notices shall, when mailed or telegraphed, be effective when received or
when attempted delivery is refused.
13. No Other Agreements. Other than that certain Voting Trust Agreement
dated August 1, 1996 between PerImmune and certain holders of PerImmune Common
Stock party thereto, each Shareholder represents that he has not granted and is
not a party to any proxy, voting trust or other agreement which is inconsistent
with or conflicts with the provisions of this
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176
Agreement, and no holder of Shares shall grant any proxy or become party to any
voting trust or other agreement which is inconsistent with or conflicts with
the provisions of this Agreement.
14. Certificate of Incorporation and Bylaws. The certificate of
incorporation and bylaws of the Company may be amended in any manner permitted
thereunder, except that neither the certificate nor the bylaws shall be amended
in any manner that would conflict with, or be inconsistent with, the provisions
of this Agreement.
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177
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have
executed this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By: [SIG]
--------------------------------------
SHAREHOLDER
[SIG]
-----------------------------------------
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178
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have
executed this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By: [SIG]
--------------------------------------
SHAREHOLDER
[SIG]
-----------------------------------------
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179
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have
executed this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By: [SIG]
--------------------------------------
SHAREHOLDER
[SIG]
-----------------------------------------
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180
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have
executed this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By: [SIG]
--------------------------------------
SHAREHOLDER
[SIG]
-----------------------------------------
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181
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have
executed this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By: [SIG]
--------------------------------------
SHAREHOLDER
SECURITY INSURANCE COMPANY OF HARTFORD
-----------------------------------------
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxxx
Its: Sr. Vice-President
Chief Investment Officer
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182
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By: [SIG]
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
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183
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By: [SIG]
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
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184
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By: [SIG]
------------------------------
SHAREHOLDER
/s/ XXXXXXX X. XXXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxxx
185
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By: [SIG]
------------------------------
SHAREHOLDER
/s/ XXXXXXX X. XXXXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxxxx
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186
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By: [SIG]
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
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187
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
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188
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
189
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
190
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
191
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
192
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
193
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
194
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
195
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
/s/ XXXXX X. XXXXXX
-----------------------------------
196
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
197
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
198
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
199
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
200
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx
201
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
202
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
203
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
/s/ XXXX X. XXXXXX
-----------------------------------
Xxxx X. Xxxxxx
on behalf of Craigie Incorporated
204
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER -- SYNCOR INTERNATIONAL
CORPORTION
/s/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
205
IN WITNESS WHEREOF, the Company, Xxxxx and the Shareholders have executed
this agreement in counterparts as of the date first above specified.
INTRACEL CORPORATION
By:
------------------------------
SHAREHOLDER
[SIG]
-----------------------------------
President, Mentor Corp.
206
SCHEDULE A TO
SHAREHOLDERS AGREEMENT
INTRACEL SHAREHOLDERS - COMMON STOCK
-------------------------------------------
1. Northstar Advantage, High Total Return
2. Xxxxxxx Xxxxx Xxxxxxxx
3. Xxxxxx Xxxxx
4. Xxxxx X. XxXxxxxx
5. Security Ins. Co. of Hartford
6. Xxxxxxx Xxxxxx
7. Xxxxxxx & Xxxxxx Xxxxxx
8. Dublind Partners, Inc.
9. Xxxxxxx X. Xxxxxxx, XXX
10. Xxxxxxx X. Xxxxxxxx
11. Xxxx Xxxx
12. Xxxxxxx Xxxx
13. Xxxxxxx X. Xxxxxxx
14. TD Partners
15. Xxxxxx X. Xxxxxx
16. Xxxxxx X. Xxxxxx
17. Xxxxx Xxxxxx-Xxxxxx
18. Xxxx X. Xxxxxx-Xxxxxxx
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207
INTRACEL SHAREHOLDERS - SERIES A PREFERRED STOCK
------------------------------------------------
1. Xxxxxxx Xxxxxxxx
2. Northstar Advantage, High Total Return
3. Xxxx Xxxx
4. Xxxxxxx Xxxxxxx
5. TD Partners
INTRACEL SHAREHOLDERS - SERIES A-1 PREFERRED STOCK
--------------------------------------------------
1. Northstar Advantage, High total Return
2. Xxxxxxx Xxxxxxxx
3. Xxxxxxx X. Xxxxxxx
4. Xxxx Xxxx
PERIMMUNE SHAREHOLDERS
--------------------------
1. Xxxxxxx X. Xxxxx, Xx.
2. Xxxxx Xxxxxx
3. X.X. Xxxx
4. Xxxxx Xxxxxxxx
5. Xxxxxx Xxxxxxxxx
6. Xxxxxx Xxxxxx
7. Xxxxx Xxxxxxxxxxx
8. Xxxxx Xxxxxx
9. Xxxxxxxx Xxxxxx
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10. Xxxxx Xxxxxx
11. Xxxxx Xxxxx
12. Xxxxxx Xxxx
13. Xxxxxx Xxxxxx
14. Xxxxx Xxxxxx
15. Xxxxx Xxxxxx
16. Xxxxxxx Incorporated
17. Syncor International Incorporated
18. Mentor Corporation
12
209
EXHIBIT D
INTRACEL CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Agreement is made as of January 2, 1998, by and among Intracel
Corporation, a Delaware corporation (the "Company"), and the Holders (as
hereinafter defined).
PREAMBLE
In light of the fact the Company desires to extend registration rights
to the Holders in connection with the Agreement and Plan of Reorganization
dated November 26, 1997 by and between the Company, PerImmune Holdings, Inc.
and Intracel Acquisition Sub, Inc. (the "Transaction").
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein, the Company and the Stockholders agree as follows:
Section 1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
(a) "Commission" shall mean the Securities and Exchange Commission,
or any other federal agency at the time administering the Securities Act.
(b) "Common Stock" means the common stock, par value $ .0001 per
share, of the Company.
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210
(c) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar Federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(d) "Holder" shall mean any holder of outstanding Registrable
Securities or anyone who holds outstanding Registrable Securities to whom the
registration rights conferred by this Agreement have been transferred in
compliance with this Agreement.
(e) "Initiating Holders" shall mean any Holder or Holders of at
least twenty percent (20%) of the Registrable Securities then outstanding.
(f) "Preferred Stock" means the preferred stock, par value $ .0001
per share, of the Company.
(g) "Register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement, and compliance with applicable
state securities laws of such states in which Holders notify the Company of
their intention to offer Registrable Securities.
(h) "Registrable Securities" shall mean all of the following to the
extent the same have not been sold to the public: (i) any and all shares of
Common Stock of the Company issued in connection with the Transaction; (ii) any
and all shares of Common Stock of the Company issued upon conversion of shares
of Preferred Stock issued in connection with the Transaction; (iii) stock issued
in respect of stock referred to in (i) or (ii) above in any reorganization; or
(iv) stock issued in respect of the stock referred to in (i) or (ii) or (iii) as
a result of a stock split, stock dividend, recapitalization or combination.
Notwithstanding the foregoing, Registrable Securities shall not include
otherwise Registrable Securities (i) sold by a person
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211
in a transaction in which his rights under this Agreement are not properly
assigned; or (ii) (A) sold to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction, or (B) sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act under Section 4(1) thereof so that all transfer restrictions,
and restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale or (C) the registration rights associated with such
securities have been terminated pursuant to Section 16 of this Agreement.
(i) "Rule 144" shall mean Rule 144 under the Securities Act or any
successor or similar rule as may be enacted by the Commission from time to time,
but shall not include Rule 144A.
(j) "Rule 144A" shall mean Rule 144A under the Securities Act or any
successor or similar rule as may be enacted by the Commission from time to time,
but shall not include Rule 144.
(k) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar Federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
Section 2. Restrictions on Transferability. The Registrable Securities
shall not be sold, assigned, transferred or pledged except upon the conditions
specified in this Agreement, which conditions are intended to ensure compliance
with the provisions of the Securities Act. Each Holder will cause any proposed
purchaser, assignee, transferee, or pledgee of the Registrable Securities held
by a Holder to agree to take and hold such securities subject to the provisions
and upon the conditions specified in this Agreement.
Section 3. Restrictive Legend. Each certificate representing Registrable
Securities shall (unless other permitted by the provisions of Section 4 below)
be stamped or otherwise imprinted with a legend substantially in the following
form (in
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addition to any legend required under applicable state securities laws or
otherwise):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AND WERE ISSUED IN RELIANCE UPON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SAID ACT. THESE SHARES MAY NOT BE
RESOLD, REOFFERED, TRANSFERRED, PLEDGED, HYPOTHECATED, CONVEYED, OR
OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SAID ACT.
Each Holder consents to the Company making a notation on its records and
giving instructions to any transfer agent of the Registrable Securities in order
to implement the restrictions on transfer established in this Agreement.
Section 4. Notice of Proposed Transfer. The Holder of each certificate
representing Registrable Securities, by acceptance thereof, agrees to comply in
all respects with the provisions of this Section 4. Each such Holder agrees not
to make any disposition of all or any portion of any Registrable Securities
unless and until:
(a) There is in effect a registration statement under the Securities
Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
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(b) (i) Such Holder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, and
(ii) If reasonably by the Company, such Holder shall furnish
the Company with an opinion of counsel, reasonably satisfactory to the Company
that such disposition shall not require registration of such shares under the
Securities Act. It is agreed, however, that no such opinion will be required for
Rule 144 or Rule 144A transactions.
(c) Notwithstanding the provisions of paragraphs (a) and (b) above,
no such registration statement or opinion of counsel shall be necessary for a
transfer by a Holder which is a partnership to a partner of such partnership or
a retired partner of such partnership who retires after the date hereof, or to
the estate of any such partner or retired partner or the transfer by gift, will
or intestate succession of any partner to his spouse or siblings, lineal
descendants or ancestors of such partner or spouse, provided, that such
transferee agrees in writing to be subject to all of the terms hereof to the
same extent as if he were an original Holder hereunder.
Section 5. Requested Registration.
(a) If the Company shall receive from Initiating Holders a written
request that the Company effect any registration with respect to all or any
portion of the issued and outstanding Registrable Securities held by Initiating
Holders, the Company shall:
(i) promptly give written notice of the proposed registration
to all other Holders, which notice shall include the approximate date that the
registration statement is expected to be filed with the Commission; and
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(ii) as soon as practicable use its best efforts to register
(including, without limitation, the execution of an undertaking to file
post-effective amendments and any other governmental requirements) all
Registrable Securities which the Initiating Holders request to be registered and
all Registrable Securities which the other Holders request to be registered
within twenty (20) days after receipt of such written notice from the Company;
provided, that the Company shall not be obligated to file a registration
statement pursuant to this Section 5:
(A) in any particular state in which the Company would be required
to execute a general consent to service of process in effecting such
registration;
(B) within 120 days following the effective date of any registered
offering of the Company's securities to the general public in which the Holders
of Registrable Securities shall have been able effectively to register all
Registrable Securities as to which registration shall have been requested; or
(C) after the Company has effected two such registrations pursuant
to this Section 5 and such registrations have been declared or ordered
effective, except as provided in Section 7.
Subject to the foregoing clauses (A) through (C), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practical, but in any event within forty-five (45) days
after receipt of the request or requests of the Initiating Holders and shall use
reasonable best efforts to have such registration statement promptly declared
effective by the Commission whether or not all Registrable Securities requested
to be registered can be included; provided, however, that if the Company shall
furnish to such Holders a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors it would be
seriously detrimental to the Company and its shareholders for such registration
statement to be filed within such forty-five (45) day period and it is therefore
essential to defer the
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filing of such registration statement, the Company shall have an additional
period of not more than forty-five (45) days after the expiration of the initial
forty-five (45-day) period within which to file such registration statement;
provided, that during such first forty-five (45) day period the Company may not
file a registration statement for securities to be issued and sold for its own
account.
(b) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request. In such event or if an
underwriting is required by subsection 5(c), the Company shall include such
information in the written notice referred to in subsection 5(a)(i). In either
such event, if so requested in writing by the Company, the Initiating Holders
shall negotiate with an underwriter selected by the Company with regard to the
underwriting of such requested registration; provided, however, that if a
majority in interest of the Initiating Holders have not agreed with such
underwriter as to the terms and conditions of such underwriting within twenty
(20) days following commencement of such negotiations, a majority in interest of
the Initiating Holders may select an underwriter of their choice for the
underwriting of all of such Registrable Securities being registered. The right
of any Holder to registration pursuant to Section 5 shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and such Holder) to
the extent provided herein. The Company shall (together with all Holders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 5, if the managing underwriter advises the Initiating Holders in writing
that marketing factors require a limitation of the number of shares to be
underwritten, the Company shall so advise all Holders, and the number of shares
of Registrable
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Securities that may be included in the registration and underwriting shall be
allocated among all Holders thereof who are affiliates (as such term is defined
in SEC Rule 145 (as hereinafter defined)) of the Company in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities held
by such Holders and, to the extent that thereafter, any security to be
registerred among Holders who are not affiliates of the Company; provided,
however, that securities to be included in such registration statement as a
result of piggyback registration rights as well as any securities to be offered
by the Company, its officers and employees shall be excluded from the
registration statement prior to the exclusion of any Registrable Securities held
by the Holders. If any Holder disapproves of the terms of the underwriting, he
may elect to withdraw therefrom by written notice to the Company, the managing
underwriter and the Initiating Holders. If, by the withdrawal of such
Registrable Securities, a greater number of Registrable Securities held by other
Holders may be included in such registration (up to the limit imposed by the
underwriters) the Company shall offer to all Holders who have included
Registrable Securities in the registration the right to include additional
Registrable Securities in the same proportion used in determining the limitation
as set forth above. Any Registrable Securities which are excluded from the
underwriting by reason of the underwriter's marketing limitation or withdrawn
from such underwriting shall be withdrawn from such registration.
(c) Any registration pursuant to this Section 5 must be firmly
underwritten if the registration exceeds two percent (2%) of the Company's
outstanding Common Stock on an as-converted basis.
Section 6. Piggyback Registration.
(a) If at any time or from time to time, the Company shall determine
to register any of its securities, for its own account or the account of any of
its shareholders, other than a registration relating solely to employee benefit
plans, or a
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registration relating solely to a transaction of the type subject to Rule 145
("SEC Rule 145") promulgated under the Securities Act, or a registration on any
form (other than Form X-0, X-0 or S-3, or their successor forms) which does not
include substantially the same information as would be required to be included
in a registration statement covering the sale of Registrable Securities, the
Company will:
(i) give to each Holder written notice thereof as soon as
practicable prior to filing the registration statement which notice shall
include the approximate date that the registration statement is expected to be
filed with the Commission; and
(ii) include in such registration and in any underwriting
involved therein on the same terms and conditions as the securities otherwise
being sold through the underwriters, all the Registrable Securities specified in
a written request or requests, made within thirty (30) days after receipt of
such written notice from the Company, by any Holder or Holders, except as set
forth in subsection (b) below.
(b) If the registration is for a registered public offering
involving an underwriting, the Company shall so advise the Holders as a part of
the written notice given pursuant to subsection 6(a)(i). In such event, the
right of any Holder to registration pursuant to Section 6 shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders distributing
their securities through such underwriting) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this Section
6, if the managing underwriter in good faith determines that marketing factors
require a limitation of the number of shares to be
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underwritten, the managing underwriter may limit the number of Registrable
Securities to be included in the registration and underwriting. The Company
shall so advise all Holders and the other holders distributing their securities
through such underwriting pursuant to piggy-back registration rights similar to
this Section 6, and the number of shares of Registrable Securities and other
securities that may be included in the registration and underwriting shall be
allocated among all Holders and other holders who are affiliates (as such term
is defined in SEC Rule 145) of the Company in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders and other securities with such piggy-back registration rights held by
other holders at the time of filing the registration statement and, to the
extent that, thereafter, any additional security to be registered, among Holders
and other holders who are not affiliates of the Company and have such piggy-back
registration rights. If any Holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. If, by the withdrawal of such Registrable
Securities, a greater number of Registrable Securities held by other Holders may
be included in such registration (up to the limit imposed by the underwriters),
the Company shall offer to all Holders who have requested to have Registrable
Securities included in the registration the right to include additional
Registrable Securities in the same proportion used in determining the limitation
as set forth above. Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
Section 7. Form S-3. The Company shall use its best efforts to qualify for
registration on Form S-3 or its successor form. After the Company has qualified
for the use of Form S-3, Initiating Holders shall have the right at any time to
request registrations on Form S-3 (such requests shall be in writing and shall
state the number of shares of Registrable Securities to be disposed of and the
intended method of disposition of shares by such Holders), subject only to the
following:
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(a) The Company shall not be required to file a registration
statement pursuant to this Section 7 within ninety (90) days of the effective
date of any registration referred to in Sections 5 and 6 above in which the
Holders shall have been entitled to join pursuant to Section 5 or 6, provided
that there shall have been effectively registered all shares of Registrable
Securities as to which registration shall have been requested.
(b) The Company shall not be required to file more than two
registration statements pursuant to this Section 7 within any twelve-month
period.
The Company shall give written notice to all Holders of Registrable
Securities of the receipt of a request for registration pursuant to this Section
7 and shall provide a reasonable opportunity for other Holders to participate in
the registration which notice shall include the approximate date that the
registration statement is expected to be filed with the Commission; provided,
that if the registration is for an underwritten offering, the following terms
shall apply to all participants in such offering: The right of any Holder to
registration pursuant to Section 7 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the other Holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this Section 7, if the managing
underwriter in good faith determines that marketing factors require a limitation
of the number of shares to be underwritten, the managing underwriter may limit
the number of Registrable Securities to be included in the registration and
underwriting. The Company shall so advise all Holders of Registrable Securities
which would otherwise be registered and underwritten pursuant hereto, and the
number of shares of Registrable Securities and other securities that may be
included in
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the registration and underwriting shall be allocated among the Holders and other
holders who are affiliates (as such term is defined in SEC Rule 145) of the
Company in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by such Holders and other securities with such
registration rights requested by such Holders to be included in such
registration and, to the extent that thereafter, any security to be registered
among Holders who are not affiliates of the Company. If any Holder disapproves
of the terms of any such underwriting, he may elect to withdraw therefrom by
written notice to the Company and the underwriter. If, by the withdrawal of such
Registrable Securities, a greater number of Registrable Securities held by other
Holders may be included in such registration (up to the limit imposed by the
underwriters), the Company shall offer to all Holders who have requested to have
Registrable Securities included in the registration the right to include
additional Registrable Securities in the same proportion used in determining the
limitation as set forth above. Any Registrable Securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration. Subject to the
foregoing, the Company will use its best efforts to effect promptly the
registration of all shares of Registrable Securities on Form S-3 to the extent
requested by the Holder or Holders thereof for purposes of disposition.
(c) The Company shall file a registration statement on Form S-3
covering the Registrable Securities so requested to be registered as soon as
practical, but in any event within forty-five (45) days after receipt of the
requests of the Initiating Holders and shall use reasonable best efforts to have
such registration statement promptly declared effective by the Commission.
Section 8. Expenses of Registration. In addition to the fees and expenses
contemplated by Section 9 hereof, all expenses incurred in connection with one
registration pursuant to Section 5 hereof and all registrations pursuant to
Sections 6 and 7 hereof, including without limitation all registration, filing
and qualification
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fees, printing, messenger, telephone and delivery expenses, fees and
disbursements of counsel and independent public accountants for the Company,
expenses of any special audits of the Company's financial statements incidental
to or required by such registration, reasonable fees and expenses (including
counsel fees) incurred in connection with complying with state securities or
"blue sky" laws, fees of the National Association of Securities Dealers, Inc.,
transfer taxes, fees of transfer agents and registrars, costs of insurance,
reasonable fees and disbursements for one counsel for the Holders of Registrable
Securities, shall be borne by the Company, except that the Company shall not be
required to pay underwriters' fees, discounts or commissions relating to the
sale of the Registrable Securities.
Section 9. Registration Procedures. In the case of each registration
effected by the Company pursuant to this Agreement, the Company will keep each
Holder participating therein advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense the Company will:
(a) keep such registration pursuant to Sections 5, 6 and 7
continuously effective for periods of one hundred eighty (180) days for each or,
in each case, such reasonable period necessary to permit the Holder or Holders
to complete the distribution described in the registration statement relating
thereto, whichever first occurs;
(b) promptly prepare and file with the Commission such amendments
(both pre- and post-effective) and supplements to such registration statement
and the prospectus used in connection therewith as may be requested by any
Holder of Registrable Securities (including in the event any Holder notifies the
Company that such Holder wishes to amend or supplement such information
previously provided by such Holder) or as may be necessary to comply with the
provisions of the Securities Act, and to keep such registration statement
effective for that period of time specified in Section 9(a) above;
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(c) furnish such number of registration statements, prospectuses and
other documents incident thereto (including exhibits to such registration
statements) as a Holder from time to time may reasonably request for such
Holder's review;
(d) use reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a registration statement, or the lifting
of any suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction, at the earliest possible moment;
(e) subject to Section 5(a)(ii)(B), prior to any public offering of
Registrable Securities, if required by the applicable blue sky laws, register or
qualify such Registrable Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as any Holder or underwriter reasonably
requires, and keep such registration or qualification effective during the
period set forth in Section 9(a) above;
(f) cause all Registrable Securities covered by such registrations
to be listed on each securities exchange, including NASDAQ, on which similar
securities issued by the Company are then listed or, if no such listing exists,
use reasonable best efforts to list all Registrable Securities on one of the New
York Stock Exchanges the American Stock Exchange or NASDAQ; and
(g) cause its accountants to issue to the underwriter, if any, and
the Holders, comfort letters and updates thereof, in customary form and covering
matters of the type customarily covered in such letters with respect to
underwritten offerings;
(h) enter into such customary agreements (including underwriting
agreements in customary form, including customary representations and warranties
and indemnification provisions similar to those set forth in Section 10 of this
Agreement) and take all such other actions as the holders of a majority of the
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Registrable Securities being sold or the underwriters, if any, reasonably,
request in order to expedite or facilitate the disposition of such Registrable
Securities (including, without limitation, effecting a stock split or a
combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement; and
(j) if the offering is underwritten, at the request of any Holder of
Registrable Securities, furnish on the date that Registrable Securities are
delivered to the underwriters for sale pursuant to such registration: (i) an
opinion dated such date of counsel representing the Company for the purposes of
such registration, addressed to the underwriters and to such Holder, stating
that such registration statement has become effective under the Securities Act
and that (A) to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus and each amendment or supplement
thereof comply as to form in all material respects with the requirements of the
Securities Act (except that such counsel need not express any opinion as to
financial statements or other financial data contained therein) and (C) to such
other effects as reasonably may be requested by counsel for the underwriters or
by such Holder or its counsel and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such Holder, stating that they are independent public
accountants within the meaning of the Securities Act and that,
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in the opinion of such accountants, the financial statements of the Company
included in the registration statement or the prospectus, or any amendment or
supplement thereof, comply as to form in all material respects with the
applicable accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to such registration as such underwriters reasonably may request;
and
(k) immediately notify each Holder, at any time a prospectus covered
by such registration statement is required to be delivered under the Securities
Act, of the happening of any event of which it has knowledge as a result of
which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing, and promptly
prepare a post-effective amendment with prospectus supplement, as counsel to
Company shall then advise the Company, revising such untrue statement or curing
such omission;
(l) notify each Holder at such time as such registration statement
becomes effective;
(m) notify each Holder upon the receipt of a request from the
Commission for amendments or supplements to such registration statement;
(n) notify each Holder in the event the Commission or any agency in
any state in which Registrable Securities are to be or have been sold either
issues a stop order with respect to such registration statement or notifies the
Company that it is initiating proceedings therefor; or
(o) take such other actions as shall be reasonably requested by any
Holder.
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Section 10. Indemnification.
(a) In the event of a registration of any of the Registrable
Securities under the Securities Act pursuant to Sections 5, 6 or 7, the Company
will indemnify and hold harmless each Holder of such Registrable Securities
thereunder, each underwriter of such Registrable Securities thereunder and each
officer, director, employee or agent of any such Holder or underwriter and each
other person, if any, who controls such Holder or underwriter within the meaning
of the Securities Act, against any losses, expenses, claims, damages or
liabilities, joint or several, to which such Holder, underwriter or other person
may become subject under the Securities Act or otherwise, insofar as such
losses, expenses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which such
Registrable Securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation by the Company of any
rule or regulation promulgated under the Securities Act or any state securities
law applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, and will reimburse each such
Holder, each of its officers, directors, employees, agents and partners, and
each person controlling such Holder, each such underwriter and each person who
controls any such underwriter, for any reasonable legal and any other expenses
incurred in connection with investigating, defending or settling any such claim,
expense, loss, damage, liability or action, provided that the Company will not
be liable in any such case to the extent that any such claim, expense, loss,
damage, liability or action arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by an
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instrument duly executed by such Holder or underwriter specifically for use
therein.
(b) Each Holder will, if Registrable Securities held by or issuable
to such Holder are included in the registration statement as to which such
registration is being effected, indemnify and hold harmless the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company and each underwriter within the meaning of the Securities Act, and
each other such Holder, each of its officers, directors and partners and each
person controlling such Holder, against all claims, losses, expenses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, any prospectus contained therein, or any
amendment or supplement thereof, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company, such Holders,
such directors, officers, partners, persons or underwriters for any reasonable
legal or any other expenses incurred in connection with investigating, defending
or settling any such claim, loss, damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by such Holder specifically for use therein; provided, however,
the total amount for which any Holder, its officers, directors and partners, and
any person controlling such Holder, shall be liable under this Section 10(b)
shall be limited to the proportion of any such loss, claim, damage, liability or
expense which is equal to the proportion that the public offering price of the
Registrable Securities sold by the Holder under such registration statement
bears to the total public offering price of all securities sold thereunder, and
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shall not in any event exceed the aggregate proceeds received by such Holder
from the sale of Registrable Securities sold by such Holder in such
registration.
(c) Each party entitled to indemnification under this Section 10
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claims as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any such claim or
any litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations hereunder, unless such failure resulted in actual detriment to
the Indemnifying Party, provided, that in the event counsel to the Indemnified
Party determines that the Indemnified Party and Indemnifying Party have
conflicting interests, the Indemnified Party may employ one (1) separate counsel
at the expense of the Indemnifying Party to conduct a separate defense for the
Indemnified Party. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement (i) which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation or (ii) which involves any relief against the Indemnified Party other
than the payment of money which is to be paid in full by the Indemnifying Party.
(d) Notwithstanding the foregoing, to the extent that the provisions
on indemnification contained in the underwriting agreements entered into among
the selling Holders, the Company and the underwriters in connection with the
underwritten public
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offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall be controlling as to the Registrable Securities
included in the public offering; provided, however, that if, as a result of this
Section 10(d), any Holder, its officers, directors, and partners and any person
controlling such Holder is held liable for an amount which exceeds the aggregate
proceeds received by such Holder from the sale of Registrable Securities
included in a registration, as provided in Section 10(b) above, pursuant to such
underwriting agreement (the "Excess Liability"), the Company shall reimburse any
such Holder for such Excess Liability.
(e) If the indemnification provided for in this Section 10 is held
by a court of competent jurisdiction to be unavailable to an Indemnified Party
with respect to any loss, liability, claim, damage or expense referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party thereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other
hand in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relevant fault of the Indemnifying Party and the Indemnified
Party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Indemnifying Party or by
the Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. No
person guilty of fraudulent misrepresentation within the meaning of Section
11(f) of the Securities Act shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Notwithstanding the
foregoing, the amount any Holder, its officers, directors and partners and any
person controlling
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such Holder shall be obligated to contribute pursuant to this Section 10(e)
shall be limited to an amount equal to the proceeds received by such Holder from
the sale of the Restricted Securities sold pursuant to the registration
statement which gives rise to such obligation to contribute (less the aggregate
amount of any damages which the Holder has otherwise been required to pay in
respect of such loss, claim, damage, liability or action or any substantially
similar loss, claim, damage, liability or action arising from the sale of such
Restricted Securities).
Each party agrees that it would not be just and equitable if
contribution pursuant to this Section 10 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above.
(f) Survival of Indemnity. The indemnification provided by this
Section 10 shall be a continuing right to indemnification and shall survive the
registration and sale of any securities by any Person entitled to
indemnification hereunder and the expiration or termination of this Agreement.
Section 11. Lockup Agreement. In consideration for the Company agreeing to
its obligations under this Agreement, each Holder agrees in connection with any
registration of the Company's securities (whether or not such Holder is
participating in such registration) upon the request of the Company and the
underwriters managing any underwritten offering of the Company's securities, not
to sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Registrable Securities (other than those included in
the registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed 180
days in the case of the Company's initial public offering) from the effective
date of such registration as the Company and the underwriters may specify, so
long as all Holders or stockholders holding more than one percent of the
outstanding
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common stock and all officers and directors of the Company are bound by a
comparable obligation provided, however, that nothing herein shall prevent any
Holder that is a partnership or corporation from making a distribution of
Registrable Securities to the partners or shareholders thereof that is otherwise
in compliance with applicable securities laws, so long as such distributees
agree to be so bound.
Section 12. Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall promptly furnish to the Company
such information regarding such Holder or Holders and the distribution proposed
by such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration referred to herein.
Section 13. Rule 144 and 144A Reporting. With a view to making available
to Holders of Registrable Securities the benefits of certain rules and
regulations of the Commission which may permit the sale of the Registrable
Securities to the public without registration, the Company agrees at all times
after ninety (90) days after the effective date of the first registration filed
by the Company for an offering of its securities to the general public (or the
Company shall otherwise have become subject to the periodic reporting
requirements of the Securities Exchange Act) to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 and Rule 144A (including earning statements
of the Company complying with Section 11(a) of the Securities Act no later than
45 days after the end of each of the Company's fiscal quarters (or 90 days after
the end of its fiscal year)), and make such information available to each Holder
upon written request;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act;
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(c) furnish to each Holder upon request a written statement by the
Company as to its compliance with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so filed
by the Company as such Holder may reasonably request in availing itself of an
exemption for the sale of Registrable Securities without registration under the
Securities Act.
For purposes of facilitating sales pursuant to Rule 144A, so long as the
Company is not subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, each Holder and any prospective purchaser of such Holder's
securities shall have the right to obtain from the Company, upon request of the
Holder prior to the time of sale, a brief statement of the nature of the
business of the Company and the products and services it offers; and the
Company's most recent balance sheet and profit and loss and retained earnings
statements, and similar financial statements for the two preceding fiscal years
(the financial statements should be audited to the extent reasonably available).
Section 14. Transfer of Registration Rights. The rights granted hereunder
may be assigned by a Holder to any partner or shareholder of such Holder, to any
other Holder, or to a transferee or assignee who receives at least 500 shares of
Registrable Securities (as adjusted for stock splits and the like); provided,
that the Company is given written notice by the Holder at the time of or within
a reasonable time after said transfer, stating the name and address of said
transferee or assignee and identifying the securities with respect to which such
registration rights are being assigned.
Section 15. Limitations on Subsequent Registration Rights. From and after
the date these registration rights are granted, the Company shall not, without
the prior written consent of the Holders of not less than fifty percent (50%) of
the Registrable Securities then held by Holders, enter into any agreement with
any holder or prospective holder of any securities of the Company which
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would allow such holder or prospective holder to include such securities in any
registration filed under Sections 5, 6 or 7 hereof other than rights identical
or subordinate to the rights of any Holder hereunder.
Section 16. Termination of Rights.
(a) The rights of any particular Holder to cause the Company to
register Registrable Securities under Sections 5, 6 and 7 shall terminate with
respect to such Registrable Securities at such time, following a bona fide,
firmly underwritten public offering of shares of the Company's Common Stock
registered under the Securities Act (provided that the aggregate gross offering
price equals or exceeds $10,000,000), when such security is transferable
pursuant to paragraph (k) of Rule 144 (or any successor provision thereto) or
when all of such Holder's Registrable Securities are transferable in one sale
under the other provisions of Rule 144.
(b) Notwithstanding the provisions of paragraph (a) of this Section
16, all rights of any particular Holder under this Agreement shall terminate at
5:00 p.m. Eastern time on the date seven (7) years after the closing date of the
Company's first firmly underwritten public offering.
Section 17. Representations and Warranties of the Company. The Company
represents and warrants to the Holders as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the Articles of Organization or Bylaws of the Company or any
provision of any indenture, agreement or other instrument to which it or any or
its properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under
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any such indenture, agreement or other instrument or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance and moratorium laws and other
laws of general application affecting enforcement of creditors' rights generally
and (ii) the availability of equitable remedies as such remedies may be limited
by equitable principles of general applicability (regardless of whether
enforcement is sought in a proceeding in equity or at law).
Section 18. Miscellaneous.
(a) Amendments. This Agreement may be amended only by a writing
signed by the Holders of more than fifty percent (50%) of the Registrable
Securities, as constituted from time to time. The Holders hereby consent to
future amendments to this Agreement that permit future investors, other than
employees, officers or directors of the Company, to be made parties hereto and
to become Holders of Registrable Securities; provided, however, that no such
future amendment may materially impair the rights of the Holders hereunder
without obtaining the requisite consent of the Holders, as set forth above. For
purposes of this Section, Registrable Securities held by the Company or
beneficially owned by any officer or employee of the Company shall be
disregarded and deemed not to be outstanding.
(b) Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall constitute a single instrument.
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(c) Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and may be sent initially by facsimile
transmission and shall be mailed by registered or certified mail, postage
prepaid, or otherwise delivered by hand or by messenger, addressed (a) if to a
Holder, at such Holder's address set forth on the books of the Company, or at
such other address as such Holder shall have furnished to the Company in
writing, or (b) if to any other holder of any Registrable Securities, at such
address as such holder shall have furnished the Company in writing, or, until
any such holder so furnishes an address to the Company, then to and at the
address of the last holder of such securities who has so furnished an address to
the Company, or (c) if to the Company, one copy should be sent to the Company's
current address at 0000 X.X. Xxxxxx Xxxx., Xxxxxxxx, Xxxxxxxxxx 00000, or at
such other address as the Company shall have furnished to the Holders. Each such
notice or other communication shall for all purposes of this Agreement be
treated as effective or having been given when delivered if delivered
personally, or, if sent by first class, postage pre-paid mail, at the earlier of
its receipt or seventy-two (72) hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid.
(d) Non public Information. Any other provisions of this agreement
to the contrary notwithstanding, the Company's obligation to file a registration
statement, or cause such registration statement to become and remain effective,
shall be suspended for a period not to exceed thirty (30) days (and for periods
not exceeding, in the aggregate, sixty (60) days in any twenty-four (24) month
period) if there exists at the time material non-public information relating to
the Company which, in the reasonable opinion of the Company, should not be
disclosed.
(e) Severability. If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid
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or unenforceable any other provision of this Agreement, and this Agreement shall
be carried out as if any such illegal, invalid or unenforceable provision were
not contained herein.
(f) Dilution. If, and as often as, there is any change in the Common
Stock by way of a stock split, stock dividend, combination or reclassification,
or through a merger, consolidation, reorganization or recapitalization, or by
any other means, appropriate adjustment shall be made in the provisions hereof
so that the rights and privileges granted hereby shall continue with respect to
the Registrable Securities as so changed.
(g) Governing Law. This Agreement shall be governed by and construed
under the laws of the State of New York other than such laws as would result in
the application of the laws of a state other than the State of New York.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By [SIG]
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President
Holder:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
[SIG]
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238
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
[SIG]
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239
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
[SIG]
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240
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
[SIG]
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241
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
[SIG]
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242
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
[SIG] 12/23/97
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243
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
[SIG]
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244
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
/s/ XXXXX X. XXXXXX
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245
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
[SIG]
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246
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
[SIG]
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247
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
[SIG]
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248
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
/s/ XXXXXX XXX
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249
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
/s/ XXXXXX X. XXXXXX
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XXXXXX X. XXXXXX
250
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
[SIG]
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251
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
/s/ XXXXX X. XXXXXX
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252
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
/s/ XXXX. X. XXXXXX
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Xxxx X. Xxxxxx
on behalf of Craigie Incorporated
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder: SYNCOR INTERNATIONAL CORPORATION
/s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: President and CEO
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
INTRACEL CORPORATION
By
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President
Holder:
[SIG] - President, Mentor Corp.
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