EXHIBIT 10.3
CONFIDENTIAL TREATMENT
RIGHTS AGREEMENT
THE RIGHTS REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
THE SECURITIES LAWS OF ANY STATE. NEITHER THE RIGHTS NOR SUCH SECURITIES MAY BE
SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT SUCH REGISTRATION,
EXCEPT UPON DELIVERY TO AVAX TECHNOLOGIES, INC. OF SUCH EVIDENCE AS MAY BE
SATISFACTORY TO COUNSEL FOR AVAX TECHNOLOGIES, INC. TO THE EFFECT THAT ANY SUCH
TRANSFER IS NOT IN VIOLATION OF THE SECURITIES ACT OF 1933 OR APPLICABLE STATE
SECURITIES LAWS OR ANY RULE OR REGULATION PROMULGATED THEREUNDER.
AVAX TECHNOLOGIES, INC.
RIGHTS AGREEMENT FOR THE PURCHASE
OF UP TO 1,100,000 RESTRICTED SHARES OF COMMON STOCK
August ___, 2000 Delaware, U.S.A.
FOR VALUE RECEIVED, AVAX TECHNOLOGIES, INC., a Delaware corporation
(the "COMPANY"), hereby grants to XXXXXXXXX XXXXX X. XXXXXXXXX (the "HOLDER")
the right to purchase from the Company, from time to time, in accordance with
the terms and subject to the conditions herein contained up to a maximum of One
Million One Hundred Thousand (1,100,000) fully paid and non-assessable shares of
restricted common stock, $0.004 par value per share, of the Company (the
"SHARES") for $0.004 per Share (the "PURCHASE PRICE") (as further described
below, each a "RIGHT" or, collectively, the "RIGHTS"). The number of Shares and
the Purchase Price are subject to adjustment, as provided herein.
This Rights Agreement and the Rights granted hereunder are originally
issued pursuant to a Stock Contribution Agreement dated as of July 17, 2000, as
amended by that certain letter agreement dated contemporaneously herewith (the
"CONTRIBUTION AGREEMENT") between, among others, the Company and the Holder.
Capitalized terms not defined herein have the meanings attributed to them in the
Contribution Agreement.
EXERCISE OF RIGHTS.
(a) In accordance with the terms and subject to the conditions
hereof, each Right represents the right to purchase one (1) Share at the
Purchase Price upon the valid exercise of such Right. Each Right, however, may
not be validly exercised until such time as that Right has become an Exercisable
Right (as defined below). The Rights can only become Exercisable Rights upon
achievement by Genopoietic, S.A., a French SOCIETE ANONYME ("GENOPOIETIC"), with
the assistance of the Holder, of the Milestones set forth on
RIGHTS AGREEMENT
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EXHIBIT A hereto (each a "MILESTONE" or, collectively, the "MILESTONES"). The
maximum number of Rights that may become Exercisable Rights upon the achievement
of each Milestone is set forth on EXHIBIT A hereto and depends on the date on
which such Milestone is achieved. When the Holder believes that a Milestone has
been achieved, he shall give written notice (the "MILESTONE NOTICE") to the
Company of the achievement of the relevant Milestone and the number of Rights
that the Holder believes have become exercisable as a result of the achievement
of the such Milestone, and the Company shall have thirty (30) days from its
receipt of such Milestone Notice to object. In the event the Company does not
object within such thirty (30) day period, then the Holder shall be entitled to
purchase at the Purchase Price the number of Shares that correspond to the
number of Rights specified in the Milestone Notice (the "EXERCISABLE RIGHTS").
If, however, the Company does object within such thirty (30) day period, then
the Company and the Holder shall use reasonable good faith efforts to resolve
such dispute. If the parties are unable to resolve such dispute within thirty
(30) days, however, then either party may submit the dispute to judicial
determination to take place in Kansas City, Missouri in accordance with Section
12 hereof, and the number of Exercisable Rights shall be reasonably determined
by the court. All Rights that have not become Exercisable Rights within one
hundred eighty (180) days after achievement of the relevant Milestone shall
expire and be null and void and of no further force or effect, unless the matter
has been referred to judicial determination in accordance with Section 12 hereof
within the said one hundred eighty (180) day period. The Exercisable Rights must
be exercised no later than one (1) year after the achievement of the
corresponding Milestone (the "EXERCISE PERIOD") or such Exercisable Rights shall
expire and be null and void and of no further force or effect. The Exercisable
Rights may be purchased in whole at any time, or in part from time to time,
during the applicable Exercise Period by the Holder by delivery of a Rights
Exercise Form (in the form attached hereto as EXHIBIT B) at the address set
forth in Section 10(a) hereof, together with proper payment of the Purchase
Price multiplied by the number of Exercisable Rights being exercised made by
certified or official bank check payable to the order of the Company.
(b) Notwithstanding anything contained herein to the contrary, in the
event the Holder breaches any material representation, warranty, covenant or
agreement contained herein or in the Contribution Agreement, the Consulting
Agreement (as defined in Section 1(f) below) or any agreement contemplated
hereby or thereby and does not cure such breach within thirty (30) days after
receipt of notice from the Company of such breach, all Rights, Exercisable
Rights and this Rights Agreement shall immediately terminate without further
action by the Company and be of no further force or effect.
(c) The number of Exercisable Rights that the Holder may exercise
shall be subject to the following limitations, among others:
(i) Subject to subsection (ii) below, for each Milestone,
if the Milestone is achieved by Genopoietic on or before its
corresponding Milestone Target Date (as set forth on EXHIBIT A
hereto, "MILESTONE TARGET DATE"), then the number of Rights that
may become Exercisable Rights shall be the maximum number of
Rights available for that Milestone, as shown on EXHIBIT A. For
each Milestone that is achieved after its corresponding Milestone
Target Date but before its corresponding Milestone Expiration
Date (as set forth on EXHIBIT A hereto, "MILESTONE EXPIRATION
DATE"), then the number of Rights that may become Exercisable
Rights shall be reduced by one-half (1/2), as more fully set
forth on EXHIBIT A, and the excess Rights that would have become
Exercisable Rights had the Milestone been met on or prior to the
Milestone Target Date shall expire and be null and void and of no
further force or effect. In no event shall the Exercisable Rights
exceed one hundred thousand (100,000) Shares in consideration for
the achievement of any
RIGHTS AGREEMENT
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one (1) Milestone; provided, however, that nothing in this
sentence shall be deemed to limit the number of Milestones that
may be achieved at any one time.
(ii) In addition, and notwithstanding anything contained
herein or on EXHIBIT A to the contrary, the number of Rights that
may become Exercisable Rights upon achievement of any particular
Milestone shall be limited such that if the market value of the
common stock of the Company (as further defined below, the "MV")
exceeds Forty United States Dollars ($40.00) (or Fifty United
States Dollars ($50.00) for the Milestones marked with an
asterisk (*) on EXHIBIT A hereto or Sixty United States Dollars
($60.00) for the Milestones marked with a pound sign (#) on
EXHIBIT A hereto) (each a "MARKET VALUE CAP"), then the number of
Rights that shall become Exercisable Rights for that Milestone
shall equal the Rights that could have become Exercisable Rights
if the Market Value Cap did not exist TIMES the applicable Market
Value Cap DIVIDED BY the MV. The MV for any particular Milestone
shall equal the price per share of the common stock of the
Company as traded on the NASDAQ Small Cap Market (or such other
public market the Shares may be traded on) calculated as of the
last trade that occurs (i) on the date of the achievement of the
relevant Milestone (or if the date of such achievement is not a
trading day, then on the trading day immediately preceding such
date), or (ii) immediately before any public announcement by
Genopoietic or the Company that such Milestone has been achieved,
whichever is earlier.
(iii) The Board of Directors of the Company (the
"BOARD") may, in its sole discretion, consider waiving the Market
Value Cap limitations contained in 1(c)(ii) above, in whole or in
part, if the MV has increased significantly and if the
achievement of the applicable Milestone has contributed
significantly to that increase in MV. Also, the Board may, in its
sole discretion, extend any Milestone Target Date or Milestone
Expiration Date if extenuating circumstances beyond the
reasonable control of the Holder have delayed the ability of
Genopoietic to achieve any Milestone.
(d) Upon exercise of Exercisable Rights to purchase Shares, the
Company will (i) issue a certificate or certificates in the name of the Holder
for the number of whole Shares to which the Holder is entitled and, in lieu of
any fractional Share to which the Holder may be entitled, pay to the Holder cash
in an amount equal to the fair value of the fractional Share (as reasonably
determined by the Board), and (ii) to the extent applicable, deliver the other
securities and properties receivable upon the exercise of the Exercisable Rights
or the proportionate part thereof if the Exercisable Rights are exercised in
part pursuant to the provisions of this Rights Agreement.
(e) Rights corresponding to any particular Milestone that has not
been achieved on or before such Milestone's corresponding Milestone Expiration
Date shall, without further action, immediately terminate and be of no force or
effect whatsoever, unless such Milestone Expiration Date is extended pursuant to
1(c)(iii) above.
(f) Notwithstanding anything contained herein to the contrary, no
Milestone shall be deemed to be achieved and the Holder shall not be entitled to
receive any Exercisable Rights with regard to any such Milestone if neither
Genopoietic nor AVAX has all of the legal rights necessary in the countries and
territories to which such Milestone pertains to make, market, sell, offer for
sale, use, and import the products of such Milestone.
RIGHTS AGREEMENT
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(g) In the event that the Consulting and Assignment Agreement dated
as of the date hereof by and between the Holder and AVAX International Services,
Inc. (the "CONSULTING AGREEMENT") expires or terminates, the following
provisions shall apply:
(i) If the Consulting Period (as defined in the Consulting
Agreement) expires and is not extended pursuant to the terms
thereof, then, effective as of the date that is six (6) months
after such expiration date (the "INTERIM PERIOD") and without
further action by the Company, all Rights shall immediately
expire and become null and void and this Rights Agreement shall
immediately terminate and be of no further force or effect. If
any Milestone is achieved during the Interim Period prior to its
corresponding Milestone Target Date, the number of Rights that
would otherwise become Exercisable Rights upon such achievement
shall be reduced, and the Holder may receive Exercisable Rights
for each such Milestone that is so achieved only in proportion to
the Holder's direct contribution to the achievement of such
Milestone, as reasonably determined by the Company. The Holder
shall receive no Exercisable Rights for any Milestone that is
achieved during the Interim Period after its corresponding
Milestone Target Date.
(ii) In the event the Consulting Period is terminated
pursuant to Sections 7.01(a) or 7.01(b) thereof, then, effective
as of the date that is nine (9) months after the termination date
(the "CONTINUATION PERIOD") and without further action by the
Company, all Rights shall immediately expire and become null and
void and this Rights Agreement shall immediately terminate and be
of no further force or effect. If any Milestone is achieved
during the Continuation Period prior to its corresponding
Milestone Target Date, the number of Rights that would otherwise
become Exercisable Rights upon such achievement shall be reduced,
and the Holder may receive Exercisable Rights for each such
Milestone that is achieved only in proportion to the Holder's
direct contribution to the achievement of such Milestone, as
reasonably determined by the Company. The Holder shall receive no
Exercisable Rights for any Milestone that is achieved during the
Continuation Period after its corresponding Milestone Target
Date.
(iii) If the Consulting Agreement is terminated pursuant to
Section 7.01(c) thereof, then all Rights, without further action
by the Company, shall immediately expire and become null and void
and this Rights Agreement shall immediately terminate and be of
no further force or effect.
(iv) If the Consulting Agreement is terminated pursuant to
Section 7.01(d) thereof, then the following provisions shall
apply:
(A) if the Consulting Agreement is terminated
pursuant to Section 7.01(d) thereof prior to the second
(2nd) anniversary of the date hereof, Rights issued to the
Holder pursuant to this Rights Agreement shall become
Exercisable Rights upon achievement by Genopoietic of each
Milestone, provided that such Milestone is achieved on or
before its corresponding Milestone Target Date; or
(B) if the Consulting Agreement is terminated
pursuant to Section 7.01(d) thereof after the second (2nd)
anniversary of the date hereof, Rights corresponding to each
Milestone that is achieved by Genopoietic on or before its
RIGHTS AGREEMENT
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corresponding Milestone Target Date shall become Exercisable
Rights according to the following formula:
1. calculate the sum, as of the effective
date of the termination of the Consulting
Agreement, of the Milestones that have been
achieved by Genopoietic on or before each such
Milestone's corresponding Milestone Target Date
("SUCCESSFUL MILESTONES");
2. calculate the sum, as of the effective
date of termination of the Consulting Agreement,
of the Milestones for which the corresponding
Milestone Target Dates have passed ("POSSIBLE
SUCCESSFUL MILESTONES");
3. divide the Successful Milestones by the
Possible Successful Milestones ("SUCCESS RATIO");
4. for each Milestone that is achieved on or
before its corresponding Milestone Target Date
after the termination of the Consulting Agreement
pursuant to 7.01(d), take the number of Rights
that would have become Exercisable Rights if the
Consulting Agreement were still in force and
effect as of that date and reduce that number by
multiplying that number by the Success Ratio. The
resulting number represents the number of
Exercisable Rights that the Holder may exercise
upon the achievement by Genopoietic of such
Milestone.
5. The Rights corresponding to each Milestone
that is not achieved on or before its
corresponding Milestone Target Date shall, without
further action by the Company, be void and of no
further force or effect.
(v) If the Consulting Agreement is terminated pursuant to
Section 7.01(e) thereof, then, without further action by the
Company, this Rights Agreement shall immediately terminate and
all Rights shall immediately terminate and be of no further force
or effect.
(vi) If the Consulting Agreement is terminated pursuant to
Section 7.01(f) thereof, then, without further action by the
Company, this Rights Agreement shall immediately terminate and
all Rights shall immediately terminate and be of no further force
or effect, unless specifically agreed otherwise in writing by the
parties on the date of such termination. Nothing in the preceding
sentence shall be deemed to limit in any manner the ability of
the parties to agree in writing with regard to the continuation
or termination of this Rights Agreement upon the termination of
the Consulting Agreement pursuant to Section 7.01(f) thereof.
RESERVATION OF SHARES, PAYMENT OF TAXES. The Company agrees that, at the time
the Exercisable Rights are exercised, the Shares shall be duly authorized,
validly issued and outstanding, fully paid and nonassessable, free and clear of
all restrictions on sale or transfer other than under Federal or state
securities laws and free and clear of all pre-emptive rights and rights of first
refusal. The Company shall take all such actions as may be necessary to assure
that the par value, if any, per share for the Shares related to the Exercisable
Rights is at all times equal to or less than the Purchase Price. The Company
shall pay all U.S. documentary, stamp or similar taxes and other similar U.S.
governmental charges that
RIGHTS AGREEMENT
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may be imposed with respect to the issuance or delivery of any Shares upon
exercise of the Exercisable Rights (other than income taxes). The Holder shall
be responsible for any non-U.S. taxes and similar charges or payments.
PROTECTION AGAINST DILUTION.
(a) If the Company hereafter (i) pays a stock dividend, (ii)
subdivides its outstanding shares of common stock into a greater number of
shares, or (iii) combines its outstanding shares of common stock into a smaller
number of shares, then the number of Rights that may become Exercisable Rights
upon the achievement of any Milestone (collectively the "Exercise Terms") shall
be adjusted so that the Holder upon achievement of any such Milestone will be
entitled to receive the number of Exercisable Rights that the Holder would have
received immediately following such action had the Milestone been achieved and
the Exercisable Rights exercised immediately prior thereto. An adjustment made
pursuant to this Section 3(a) will become effective immediately after the record
date in the case of a stock dividend or distribution and will become effective
immediately after the effective date in the case of a subdivision, combination
or reclassification. If the Board declares any stock dividend or distribution or
resolves to take any action referred to in this Section 3(a), it shall provide
written notice thereof to the Holder not less than ten (10) days prior to the
record date fixed for determining the stockholders entitled to participate
therein.
(b) In the case of any capital reorganization, reclassification or
any consolidation or merger to which the Company is a party, other than a merger
or consolidation in which the Company is the continuing corporation, or in the
case of any sale or conveyance to another entity of the property of the Company
as an entirety or substantially as an entirety, or in the case of any statutory
exchange of securities with another corporation (including any exchange effected
in connection with a merger of a third corporation into the Company), the Holder
will have the right thereafter, upon the achievement of any Milestone, to
receive the kind and amount of securities, cash or other property that the
Holder would have owned or have been entitled to receive immediately after such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance had the Milestone been achieved and the Exercisable Rights
exercised immediately prior to the effective date of the reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance.
Notice of any such reorganization, reclassification, consolidation, merger,
exchange, sale or conveyance shall be mailed to the Holders not less than thirty
(30) days prior to such event. The above provisions of this Section 3(b) shall
similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, statutory exchanges, sales or conveyances. The Company
shall require the issuer of any shares of stock or other securities or property
thereafter deliverable on the exercise of the Exercisable Rights to be
responsible for all of the agreements and obligations of the Company hereunder.
(c) If the Company distributes (other than a distribution in
liquidation of the Company) to all holders of its common stock,
without any charge to or consideration from such holders,
evidences of its indebtedness or assets (excluding cash dividends
or distributions out of earnings), then in each case the Company
shall simultaneously distribute such evidences of its
indebtedness or assets pro rata to the extent that the Rights of
the Holder have become Exercisable Rights as of the record date
or date of effectiveness, as the case may be, fixed for
determining the holders of common stock entitled to participate
in such distribution in an amount equal to the amount that the
Holder would have been entitled to receive had the Exercisable
Rights been exercised for Shares immediately prior to the time
for determination of the holders of common stock entitled to
participate in that distribution.
RIGHTS AGREEMENT
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(d) No adjustments in the Exercise Terms shall be required if the Company
issues shares of common stock pursuant to (a) the exercise of any warrants
(or warrants or options to acquire any shares of convertible preferred
stock) of the Company outstanding on the date hereof, (b) conversion of
shares of any series of convertible preferred stock of the Company
outstanding on the date hereof, (c) the exercise of any stock options or
warrants currently outstanding or issued after the date hereof pursuant to
any Company benefit plan or compensation arrangement, or (d) any placement
of any securities of the Company or any acquisition (by merger or
otherwise) of another entity or entities by the Company.
ACHIEVEMENT OF MILESTONES. The parties agree that the Company will use
commercially reasonable efforts to aid Genopoietic and the Holder in the
achievement of the Milestones. If, however, the Company, in its sole discretion,
determines that it would be commercially unreasonable to attempt to achieve any
particular Milestone(s), the Holder acknowledges and agrees that the Company
shall not be required to attempt to achieve such Milestone(s). The parties agree
in such event that they will negotiate in good faith to reallocate the Rights
corresponding to such Milestone to new project(s) for which new Milestones shall
be agreed upon by the parties (a "Reallocation"); provided, however, that
notwithstanding anything contained herein to the contrary, there shall be no
Reallocation of those Milestones marked with a square ("|") on Exhibit A hereto
if the Board of Directors of the Company ("Board") deems in good faith, and only
after having given the Holder a reasonable opportunity to be heard on the
matter, that it would be commercially unreasonable for the Company to pursue
those Milestones because it deems that it lacks some or all of the intellectual
property rights, including those rights referred to in Sections 4.19(q),
4.19(r), 4.19(s) and 12.13 of the Contribution Agreement, that it believes are
necessary to make the achievement of such Milestones commercially reasonable. In
determining whether the pursuit of the Milestones referred to in the immediately
preceding sentence is commercially reasonable, the Board shall not take into
consideration the value to the Company of any Exercisable Rights to be received
by the Holder hereunder as a result of the achievement of any such Milestone.
COMPLIANCE WITH RULE 144 UNDER SECURITIES ACT OF 1933. Until the earlier of (i)
a registration statement is declared effective by the Securities and Exchange
Commission covering all of the Shares to which the Holder may be entitled or
(ii) the sale pursuant to Rule 144 of all of the Shares to which the Holder may
be entitled or (iii) the Rights have terminated or expired or (iv) the Rights
Agreement has terminated or expired, the Company shall use its reasonable best
efforts to file with the Securities and Exchange Commission all current reports
and the information as may be necessary to enable the Holder to effect sales of
its Shares received hereunder in reliance upon Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Act").
INVESTMENT INTENT; LIMITED TRANSFERABILITY.
(a) The Holder represents, by accepting this Rights Agreement, that
it understands that this Rights Agreement and any securities obtainable
hereunder have not been registered for sale under Federal or state securities
laws and are being offered and sold to the Holder pursuant to one or more
exemptions from the registration requirements of such securities laws. In the
absence of an effective registration of such securities or an exemption
therefrom, any certificates for such securities shall bear the legend set forth
on the first page hereof. The Holder understands that it must bear the economic
risk of its investment in this Rights Agreement and any securities obtainable
hereunder for an indefinite period of
RIGHTS AGREEMENT
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time, as this Rights Agreement, the Rights and such securities have not been
registered under Federal or state securities laws, and, therefore, cannot be
sold unless subsequently registered under such laws, unless an exemption from
such registration is available.
(b) The Holder, by its acceptance of this Rights Agreement,
represents to the Company that it is an "accredited investor" and is acquiring
this Rights Agreement and will acquire any securities obtainable hereunder for
its own account, for investment and not with a view to, or for sale in
connection with, any distribution thereof in violation of the Act. The Holder
agrees that this Rights Agreement, the Rights and any such securities will not
be sold or otherwise transferred unless (i) a registration statement with
respect to such transfer is effective under the Act and any applicable state
securities laws or (ii) such sale or transfer is made pursuant to one or more
exemptions from the Act.
(c) Neither this Rights Agreement nor any Rights or any Exercisable
Rights may be sold, transferred, assigned or hypothecated by the Holder.
(d) The Holder acknowledges that all Shares purchased under this
Rights Agreement are subject to the terms and conditions of the Contribution
Agreement, including, but not limited to, the restrictions contained in Section
7.2 thereof.
EXPIRATION OF RIGHTS. Unless terminated earlier, this Rights Agreement shall
expire on January 1, 2012.
LOSS, ETC., OF RIGHTS AGREEMENT. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Rights Agreement
and upon receipt of indemnity reasonably satisfactory to the Company, if lost,
stolen or destroyed, and upon surrender and cancellation of this Rights
Agreement, if mutilated, the Company shall execute and deliver to the Holder a
new Rights Agreement of like date, tenor and denomination.
RIGHTS HOLDER NOT STOCKHOLDER. Prior to the exercise of any Exercisable Rights
hereunder, this Rights Agreement grants to the Holder no right to vote on or
consent to or receive notice as a stockholder of the Company, as such, in
respect of any matters whatsoever, nor any other rights or liabilities as a
stockholder, with regard to any Rights or Exercisable Rights issued hereunder.
This Rights Agreement does, however, require certain notices to the Holder as
set forth herein.
NOTICE. Any notice or other communication shall be effective and shall be deemed
to have been given if the same is in writing and is mailed by first-class mail,
postage prepaid, addressed to:
(a) the Company at AVAX Technologies, Inc., 0000 Xxxx Xxxxxx, Xxxxx
000, Xxxxxx Xxxx, XX 00000, Attn: Xxxx Xxxxxxx, Chief Financial Officer, or such
other address as the Company has designated in writing to the Holder, or
(b) the Holder at 00, xxx xx Xxxx, 00000 Xxxxx, Xxxxxx or such other
address as the Holder has designated in writing to the Company.
HEADINGS. The headings of this Rights Agreement have been inserted as a matter
of convenience and shall not affect the construction hereof.
APPLICABLE LAW; JURISDICTION. This Rights Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to the principles of conflicts of law thereof.
RIGHTS AGREEMENT
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The parties acknowledge that this Rights Agreement was drafted, negotiated and
executed in large part in Kansas City, Missouri, United State of America. Except
as otherwise expressly provided in this Rights Agreement, any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Rights Agreement or the transactions
contemplated hereby may be brought in the United States District Court for the
Western District of Missouri or in any Missouri State Court sitting in Kansas
City, Missouri, and each of the parties hereby consents to the jurisdiction of
such courts (and of the appropriate appellate courts therefrom) in any such
suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such court or that
any such suit, action or proceeding which is brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 10 shall be
deemed effective service of process on such party.
INTERPRETATION. In the event any portion of this Rights Agreement shall, for any
reason, be held to be invalid, illegal or unenforceable in whole or in part, the
remaining provisions shall not be affected thereby and shall continue to be
valid and enforceable. If, for any reason, a court finds that any provision of
this Rights Agreement is invalid, illegal or unenforceable as written, but by
limiting such provision it would become valid, legal and enforceable, then such
provision shall be deemed to be written, construed and enforced as so limited.
Words and phrases herein shall be construed as in the singular or plural number,
and as masculine, feminine or neuter gender, according to the context. Nothing
contained in this Rights Agreement and no action taken by the parties pursuant
hereto shall be deemed to constitute a partnership, an association, a joint
venture or other entity between the parties.
ENTIRE AGREEMENT. This Rights Agreement, the Contribution Agreement, the
Research Funding Agreement and the Consulting Agreement, including the recitals,
Exhibits and Schedules attached hereto and thereto, all of which agreements,
recitals, Exhibits and Schedules are hereby expressly incorporated herein by
reference, constitute the entire agreement between the parties with respect to
the subject matter of this Rights Agreement and supersede all prior agreements
and understandings, both oral and written, between the parties with respect to
the subject matter of this Rights Agreement. No representation, inducement,
promise, understanding, condition or warranty not set forth herein or in such
other agreement, recitals, Exhibits or Schedules has been made or relied upon by
either party hereto.
SUCCESSORS AND ASSIGNS. Holder may not assign, delegate or otherwise transfer
any of its rights or obligations under this Agreement. The Company may assign
all or any part of its rights, interests or obligations hereunder to any
Affiliate of Genopoietic or the Company or to a successor-in-interest without
the prior written consent of the Holder. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors, executors, heirs, administrators, and trustees (and
similar French Persons) and permitted assigns.
AMENDMENT, WAIVER, ETC. Except as expressly provided herein, neither this Rights
Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is sought; provided,
however, that any provisions hereof may be amended, waived, discharged or
terminated upon the written consent of the Company and the Holder.
RIGHTS AGREEMENT
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WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED
TO THIS RIGHTS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
HOLDER ACKNOWLEDGES THAT HE HAS READ AND UNDERSTANDS THE FOREGOING PROVISIONS OF
THIS RIGHTS AGREEMENT.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY.]
RIGHTS AGREEMENT
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IN WITNESS WHEREOF, the Company has caused this Rights Agreement to be
signed by its President and attested by its Secretary this ___ day of August,
2000.
AVAX TECHNOLOGIES, INC.
By:
----------------------------------
Name: Xxxxxxx X. Xxxxx, M.D.
Title: President and Chief Executive Officer
ATTEST:
--------------------
Secretary
------------------------------------
XXXXXXXXX XXXXX X. XXXXXXXXX,
an individual and resident of Paris, France
RIGHTS AGREEMENT
PAGE 11 __________ __________
EXHIBIT A
MILESTONES
("Milestones")
The Holder will be issued Rights to purchase up to an aggregate of
Seven Hundred and Fifty Thousand (750,000) restricted shares of AVAX common
stock based on the achievement of the following short-term Milestones:
----------------------------------------- ------------------ ------------------ ------------------- ------------------
MILESTONE MAXIMUM NUMBER MILESTONE TARGET MAXIMUM NUMBER OF MILESTONE
OF RIGHTS(1) THAT DATE RIGHTS THAT MAY EXPIRATION DATE
MAY BECOME BECOME
EXERCISABLE EXERCISABLE
RIGHTS IF RIGHTS IF
MILESTONE IS MILESTONE IS
ACHIEVED ON OR ACHIEVED AFTER
BEFORE MILESTONE MILESTONE TARGET
TARGET DATE DATE BUT BEFORE
MILESTONE
EXPIRATION DATE
----------------------------------------- ------------------ ------------------ ------------------- ------------------
[Redacted information has been
separately filed with the commission
for Confidential Treatment.]
----------------------------------------- ------------------ ------------------ ------------------- ------------------
----------------------------------------- ------------------ ------------------ ------------------- ------------------
-------------------------
(1) Each Right represents the right to purchase one (1) restricted share of AVAX
common stock.
(2) [Redacted information has been separately filed with the Commission for
Confidential Treatment.]
RIGHTS AGREEMENT
PAGE 12 __________ __________
----------------------------------------- ------------------ ------------------ ------------------- ------------------
MILESTONE MAXIMUM NUMBER MILESTONE TARGET MAXIMUM NUMBER OF MILESTONE
OF RIGHTS(3) THAT DATE RIGHTS THAT MAY EXPIRATION DATE
MAY BECOME BECOME
EXERCISABLE EXERCISABLE
RIGHTS IF RIGHTS IF
MILESTONE IS MILESTONE IS
ACHIEVED ON OR ACHIEVED AFTER
BEFORE MILESTONE MILESTONE TARGET
TARGET DATE DATE BUT BEFORE
MILESTONE
EXPIRATION DATE
----------------------------------------- ------------------ ------------------ ------------------- ------------------
[Redacted information has been
separately filed with the Commission
for Confidential Treatment.]
----------------------------------------- ------------------ ------------------ ------------------- ------------------
----------------------------------------- ------------------ ------------------ ------------------- ------------------
-------------------------
(3) Each Right represents the right to purchase one (1) restricted share of AVAX
common stock.
(4) [Redacted information has been separately filed with the Commission for
Confidential Treatment.]
(5) [Redacted information has been separately filed with the Commission for
Confidential Treatment.]
(6) [Redacted information has been separately filed with the Commission for
Confidential Treatment.]
RIGHTS AGREEMENT
PAGE 13 __________ __________
----------------------------------------- -------------------- ---------------- ---------------------- ---------------
MILESTONE MAXIMUM NUMBER OF MILESTONE MAXIMUM NUMBER OF MILESTONE
RIGHTS(7) THAT MAY TARGET DATE RIGHTS THAT MAY EXPIRATION
BECOME EXERCISABLE BECOME EXERCISABLE DATE
RIGHTS IF RIGHTS IF MILESTONE
MILESTONE IS IS ACHIEVED AFTER
ACHIEVED ON OR MILESTONE TARGET
BEFORE MILESTONE DATE BUT BEFORE
TARGET DATE MILESTONE EXPIRATION
DATE
----------------------------------------- -------------------- ---------------- ---------------------- ---------------
[Redacted information has been
separately filed with the Commission
for Confidential Treatment.]
----------------------------------------- -------------------- ---------------- ---------------------- ---------------
----------------------------------------- -------------------- ---------------- ---------------------- ---------------
-------------------------
(7) Each Right represents the right to purchase one (1) restricted share of
AVAX common stock.
(8) [Redacted information has been separately filed with the Commission for
Confidential Treatment.]
(9) [Redacted information has been separately filed with the Commission for
Confidential Treatment.]
(10) [Redacted information has been separately filed with the Commission for
Confidential Treatment.]
(11) [Redacted information has been separately filed with the Commission for
Confidential Treatment.]
RIGHTS AGREEMENT
PAGE 14 __________ __________
The Holder will be issued Rights to purchase up to an aggregate of
Three Hundred Fifty Thousand (350,000) restricted shares of AVAX common stock
based on the achievement of the following long-term Milestones:
----------------------------------------- ------------------ ------------------ ------------------- ------------------
MILESTONE MAXIMUM NUMBER MILESTONE TARGET MAXIMUM NUMBER OF MILESTONE
OF RIGHTS(12) THAT DATE RIGHTS THAT MAY EXPIRATION DATE
MAY BECOME BECOME
EXERCISABLE EXERCISABLE
RIGHTS IF RIGHTS IF
MILESTONE IS MILESTONE IS
ACHIEVED ON OR ACHIEVED AFTER
BEFORE MILESTONE MILESTONE TARGET
TARGET DATE DATE BUT BEFORE
MILESTONE
EXPIRATION DATE
----------------------------------------- ------------------ ------------------ ------------------- ------------------
[Redacted information has been
separately filed with the Commission
for Confidential Treatment.]
----------------------------------------- ------------------ ------------------ ------------------- ------------------
----------------------------------------- ------------------ ------------------ ------------------- ------------------
----------------------------------------- ------------------ ------------------ ------------------- ------------------
----------------------------------------- ------------------ ------------------ ------------------- ------------------
----------------------------------------- ------------------ ------------------ ------------------- ------------------
-------------------------
(12) Each Right represents the right to purchase one (1) restricted share of
AVAX common stock.
(13) [Redacted information has been separately filed with the Commission for
Confidential Treatment.]
(14) [Redacted information has been separately filed with the Commission for
Confidential Treatment.]
RIGHTS AGREEMENT
PAGE 15 __________ __________
EXHIBIT B
EXERCISE OF RIGHTS
The undersigned, _______________, pursuant to the provisions of the
foregoing Rights Agreement, hereby elects to purchase _________________ shares
of the common stock, par value $.004 per share, of AVAX Technologies, Inc.
covered by said Rights Agreement and makes payment therefor in full at the
Purchase Price provided in the Rights Agreement.
Dated: _______________ Signature: ___________________
Address: ____________________
RIGHTS AGREEMENT
PAGE 16 __________ __________
