EXHIBIT 10(h)
WARRANT AGREEMENT
THIS WARRANT AGREEMENT ("Agreement") is made and entered into as of
this ____ day of ________, 200__, by and between MARC PHARMACEUTICALS, INC., a
Delaware corporation ("Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY,
as warrant agent ("Warrant Agent").
WHEREAS, the Company has filed a registration statement on Form SB-2
(the "Registration Statement") under the Securities Act of 1933, as amended,
with the Securities and Exchange Commission (the "Commission"), File No.
333-113734, relating to the subscription for and sale of 20,000,000 units (the
"Units"), each Unit consisting of one (1) share of common stock of the Company,
$.0001 par value (the "Common Stock"), one (1) warrant to purchase one (1) share
of Common Stock at $.50 (the "Class A Warrant") and two (2) warrants to purchase
one (1) share of Common Stock at $1.00 (the "Class B Warrant") (collectively the
Class A Warrant and the Class B Warrant, the "Warrants"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, registration of transfer, exchange and exercise of the
Warrants.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions set forth in this Agreement, and the Warrant Agent hereby accepts
such appointment.
2. Form of Warrants. (a) The text and the terms of the Warrants shall
be substantially as set forth in Exhibit A attached hereto and made a part
hereof. The Warrants shall be executed on behalf of the Company by the manual or
facsimile signature of the president or a vice president of the Company and by
the manual or facsimile signature of the secretary or assistant secretary of the
Company under its corporate seal, affixed or in facsimile.
(b) The Warrants shall be dated by the Warrant Agent as of the
initial date of issuance thereof, and upon transfer or exchange, the replacement
Warrant shall be dated as of such subsequent issuance date.
3. Registration and Countersignature. The Warrant Agent shall maintain
books for the transfer and registration of the Warrants. Upon the initial
issuance of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective registered holders, and upon subsequent
issuance, such Warrants shall be registered in the names of the respective
succeeding registered holders. The Warrants shall be countersigned by the
Warrant Agent (or by
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any successor to the Warrant Agent then acting as warrant agent under this
Agreement) and shall not be valid for any purpose unless so countersigned.
Warrants may be so countersigned, however, by the Warrant Agent (or by its
successor as warrant agent) and be delivered by the Warrant Agent,
notwithstanding that the persons whose manual or facsimile signatures appear
thereon as proper officers of the Company shall have ceased to be such officers
at the time of such countersignature or delivery. Until a Warrant is transferred
on the books of the Warrant Agent, the Company and the Warrant Agent may treat
any registered holder of Warrants as the absolute owner thereof for all
purposes, notwithstanding any notice to the contrary.
4. Registration of Transfers and Exchanges. The Warrant Agent shall
transfer any outstanding Warrants on the books to be maintained by the Warrant
Agent for that purpose, upon surrender thereof for transfer, properly endorsed
or accompanied by appropriate instructions for transfer with proper documentary
stamps affixed thereto, if requested. Upon any such transfer, a new Warrant
shall be issued to the transferee, and the surrendered Warrant shall be canceled
by the Warrant Agent. Warrants may be exchanged at the option of the holder
thereof when surrendered at the office of the Warrant Agent, for another
Warrant, or other Warrants of different denominations, of like tenor and
representing in the aggregate the right to purchase a like number of shares of
Common Stock. The Warrant Agent is hereby irrevocably authorized to countersign
and deliver the Warrants in accordance with the provisions of this Section 4,
and the Company, whenever required by the Warrant Agent, will supply the Warrant
Agent with Warrants duly executed on behalf of the Company for such purpose.
5. Exercise of Warrants. (a) Subject to the provisions of this
Agreement, each registered holder of Warrants shall have the right, which right
may be exercised as expressed in such Warrants, commencing on the date the
registered holder purchases the Warrant and ending on December 31, 2009 for the
Class A Warrants and December 31, 2011 for the Class B Warrants, to purchase
from the Company, and the Company shall issue and sell to such registered holder
of Warrants, the number of fully paid and non-assessable shares of Common Stock
specified in such Warrants, upon surrender to the Company at the office of the
Warrant Agent, with the form of election to purchase duly completed and signed,
and upon payment to the Warrant Agent for the account of the Company of the
Exercise Price, as hereinafter defined, for the number of shares of Common Stock
in respect of which such Warrants are then exercised. Payment of such Exercise
Price may be made in cash or by certified check, bank draft, or postal or
express money order, payable in United States dollars, to the order of the
Company. Subject to the provisions of Section 9 hereof, upon such surrender of
Warrants and payment of the Exercise Price as foresaid, the Company, acting
through the Warrant Agent, shall issue and cause to be delivered with all
reasonable dispatch to or upon the written order of the registered holder of
such Warrants and in such name or names as such registered holder may designate,
a certificate or certificates for the full number of shares of Common Stock so
purchased upon the exercise of such Warrants. Such certificates shall be deemed
to have been issued, and any person so designated to be named therein shall be
deemed to have become a holder of record of such Common Stock, as of the date of
surrender of such Warrants and payment of the Exercise Price, as aforesaid;
provided, however, that if, at the date of surrender of such Warrants and the
payment of such Exercise Price, the transfer books for the Common Stock
purchasable upon the exercise of such Warrants shall be closed, the certificates
for the shares in respect of which such
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Warrants are then exercised shall be issuable as of the date on which such books
shall next be opened, and until such date the Company shall be under no duty to
deliver any certificate for such shares; provided further, however, that the
transfer books, unless otherwise required by law, shall not be closed at any one
time for a period longer than twenty (20) days. The right of purchase
represented by the Warrants shall be exercisable, at the election of the
registered holders thereof, either as an entirety or, from time to time, for
part of the shares specified therein, and in the event that any Warrant is
exercised in respect of less than all of the shares specified therein at any
time prior to the date of expiration of the Warrants, a new Warrant or Warrants
will be issued for the remaining number of Common Stock specified in the Warrant
so surrendered, and the Warrant Agent is hereby irrevocably authorized to
countersign and to deliver the required new Warrants pursuant to the provisions
of this Section 5 and of Section 3 of this Agreement, and the Company, whenever
required by the Warrant Agent, will supply the Warrant Agent with Warrants duly
executed on behalf of the Company for such purposes.
(b) Notwithstanding any other provision of this Agreement, no
Warrant may be exercised if the issuance of Common Stock in connection therewith
would constitute a violation of the registration provisions of federal or state
securities laws.
(c) The Company will use its best efforts to file and keep
effective a current prospectus which will permit the purchase and sale of the
Warrants and the Common Stock underlying the Warrants. In addition, the Company
will use its best efforts to qualify for sale the Warrants and the Common Stock
underlying the Warrants in those states in which the Warrants and the Common
Stock are to be offered.
(d) The "Exercise Price" of the Warrants shall mean the
exercise price specified in the Warrants until the occurrence of a
recapitalization or reclassification that, pursuant to the provisions of the
Warrant, shall require an increase or decrease in the exercise price of the
Warrants, and thereafter shall mean said price as adjusted from time to time in
accordance with the provisions thereof. No such adjustment shall be made unless
such adjustment would change the then purchase price per share by Five Cents
($.05) or more; provided, however, that all adjustments not so made shall be
deferred and made when the aggregate thereof would change the then purchase
price per share by Five Cents ($.05) or more. No adjustment made pursuant to any
provision hereof shall have the effect of increasing the total consideration
payable upon exercise of any of the Warrants.
6. Reservation of Common Stock. The Company shall at all times reserve
and keep available, solely for the purpose of providing for the exercise of the
rights to purchase all shares of common stock granted pursuant to the Warrants,
such number of shares of Common Stock and other stock, securities and property
as from time to time are receivable upon exercise of the Warrants. The Company
covenants that all shares of Common Stock issuable upon exercise of the
Warrants, upon receipt by the Company of the full Exercise Price therefor, shall
be validly issued, fully paid, nonassessable, and free of preemptive rights.
7. Adjustments in Certain Cases. (a) In case the Company shall at any
time prior to the exercise or termination of any of the Warrants effect a
recapitalization or reclassification of such
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character that its Common Stock shall be changed into or become exchangeable for
a larger or smaller number of shares, then, upon the effective date thereof, the
number of shares of Common Stock that the holders of the Warrants shall be
entitled to purchase upon exercise thereof shall be increased or decreased, as
the case may be, in direct proportion to the increase or decrease in such number
of shares of Common Stock by reason of such recapitalization or reclassification
on, and the purchase price per share of such recapitalized or reclassified
Common Stock shall, in the case of an increase in the number of shares, be
proportionately decreased and, in the case of a decrease in the number of
shares, be proportionately increased.
(b) In case the Company shall at any time prior to the
exercise or termination of any of the Warrants distribute to holders of its
Common Stock cash, evidences of indebtedness, or other securities or assets,
other than as dividends or distributions payable out of current or accumulated
earnings, then, in any such case, the holders of the Warrants shall be entitled
to receive, upon exercise thereof, with respect to each share of Common Stock
issuable upon such exercise, the amount of cash or evidences of indebtedness or
other securities or assets that such holder would have been entitled to receive
with respect to the Common Stock as a result of the happening of such event, had
the Warrants been exercised immediately prior to the record date or other date
fixing stockholders to be affected by such event (without giving effect to any
restriction upon such exercise).
(c) In case the Company shall at any time prior to the
exercise or termination of any of the Warrants consolidate or merge with any
other corporation or transfer all or substantially all of its assets to any
other corporation preparatory to a dissolution, then the Company shall, as a
condition precedent to such transaction, cause effective provision to be made so
that the holders of the Warrants, upon the exercise thereof after the effective
date of such transaction, shall be entitled to receive the kind and amount of
shares, evidences of indebtedness, and/or other property receivable on such
transaction by a holder of the number of shares of Common Stock as to which the
Warrants were exercisable immediately prior to such transaction (without giving
effect to any restriction upon such exercise); and, in any such case,
appropriate provision shall be made with respect to the rights and interests of
the holders thereof to the effect that the provisions of the Warrants shall
thereafter be applicable (as nearly as may be practicable) with respect to any
shares, evidences of indebtedness, or other securities or assets thereafter
deliverable upon exercise of the Warrants.
(d) Whenever the number of shares of Common Stock or other
types of securities or assets purchasable upon exercise of any of the Warrants
shall be adjusted as provided herein, the Company shall forthwith obtain and
file with its corporate records a certificate or letter from a firm of
independent public accountants of recognized standing, which may include the
Company's then independent auditing firm, setting forth the computation and the
adjusted number of shares of Common Stock or other securities or assets
purchasable hereunder resulting from such adjustments, and a copy of such
certificate or letter shall be mailed to the Warrant Agent and each of the
registered holders of the Warrants. Any such certificate or letter shall be
conclusive evidence as to the correctness of the adjustment or adjustments
referred to therein and shall be available for inspection by the holders of the
Warrants on any day during normal business hours.
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(e) In the event that at any time as a result of an adjustment
made pursuant hereto the holders of the Warrants shall become entitled to
purchase upon exercise thereof shares, evidences of indebtedness, or other
securities or assets (other than Common Stock), then, wherever appropriate, all
references herein to Common Stock shall be deemed to refer to and include such
shares, evidences of indebtedness, or other securities or assets, and thereafter
the number of such shares, evidences of indebtedness, or other securities or
assets shall be subject to adjustment from time to time in a manner and upon
terms as nearly equivalent as practicable to the provisions hereof.
8. Redemption. (a) The Warrants may be redeemed at the option of
Company, subject to the conditions set forth below in this Section 8, at any
time, by Redemption Notice given within thirty (30) days, after the occurrence
of a "Redemption Event". A Redemption Event shall be the fifth consecutive
trading day upon which the Common Stock has been trading at $.75 per share for
the Class A Warrants and $1.25 per share for the Class B Warrants, determined by
taking the average between the "bid" and the "ask" of the Common Stock on each
such day. The redemption price shall be $.001 for each share which may be
purchased by the Warrants, plus any dividends declared but unpaid thereon,
subject to appropriate adjustment in the event of any stock dividend, stock
split, combination or other similar recapitalization affecting such shares (the
"Redemption Price").
(b) The Company shall provide notice to the holder of the
Warrants ("Holder") of the time, manner and place of redemption (the "Redemption
Date") of the Warrants and the Redemption Price (a "Redemption Notice"), by
first class or registered mail, postage prepaid, to the Holder at the address
for such Holder last shown on the records of the transfer agent therefor, not
less than thirty (30) days prior to the Redemption Date. The Holder of the
Warrants may elect to exercise all or any part of the Warrants on or before such
Redemption Date pursuant to Section 5(a) hereof prior to the applicable
Redemption Date. Except as provided in Section 7(c) hereof, the Holder shall
surrender to the Company on the applicable Redemption Date in the manner and at
the place designated in the Redemption Notice. Thereupon, the Redemption Price
shall be paid to the order of the holder of the Warrant and this Warrant shall
be cancelled.
(c) Unless there shall have been a failure to pay the
Redemption Price, on the Redemption Date all rights of the holder of the
Warrants will cease, except the right to receive the Redemption Price, without
interest, upon presentation and surrender of the Warrants, and the Warrants will
not from and after such Redemption Date be deemed to be outstanding.
9. Payment of Taxes. The Company will pay all documentary stamp taxes,
if any, attributable to the initial issuance of securities upon the exercise of
the Warrants; provided, however, that the Company shall not be required to pay
any tax or taxes that may be payable in respect of any transfer involved in the
issue or delivery of any securities in a name other than that of the registered
holder of Warrants in respect of which such securities are issued and, in such
case, neither the Company nor the Warrant Agent shall be required to issue or
deliver any certificate representing such securities or any Warrant until the
person requesting the same has
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paid to the Company or the Warrant Agent the amount of such tax or has
established to the Company's satisfaction that such tax has been paid.
10. Mutilated or Missing Warrants. In case any of the Warrants shall be
mutilated, lost, stolen or destroyed, the Warrant Agent may countersign and
deliver in exchange and substitution for and upon cancellation of the mutilated
Warrant or in lieu of and substitution for the Warrant lost, stolen or
destroyed, a new Warrant of like tenor and representing an equivalent right or
interest, but only upon receipt of evidence satisfactory to the Warrant Agent of
such loss, theft or destruction of such Warrants and indemnity, if requested,
also satisfactory to them. Applicants for such substitute Warrants shall also
comply with such other reasonable regulations and pay such other reasonable
charges as the Company or the Warrant Agent may prescribe.
11. Reservation of Common Stock. Prior to the issuance of any Warrants,
there shall have been reserved, and the Company shall at all times keep reserved
out of the authorized and unissued Common Stock, a number of shares of Common
Stock sufficient to provide for the exercise of the rights of purchase
represented by the Warrants, and the transfer agent for the Common Stock and
every subsequent transfer for any of the Company's Common Stock issuable upon
the exercise of any of the rights of purchase aforesaid are hereby irrevocably
authorized and directed at all times to reserve such number of authorized and
unissued Common Stock as shall be requisite for such purpose. The Company agrees
that all Common Stock issued upon exercise of the Warrants shall be, at the time
of delivery of the certificates representing such Common Stock, validly issued
and outstanding, fully paid and non-assessable. The Company will keep a copy of
this Agreement on file with the transfer agent for the Common Stock and with
every subsequent transfer agent for the Company's Common Stock issuable upon the
exercise of the right of purchase represented by the Warrants. The Warrant Agent
is hereby irrevocably authorized to requisition from time to time from such
transfer agent stock certificates required to honor outstanding Warrants that
have been exercised. The Company will supply such transfer agent with duly
executed stock certificates for such purpose. All Warrants surrendered in the
exercise of the rights thereby evidenced shall be canceled by the Warrant Agent,
and such canceled Warrants shall constitute sufficient evidence of the number of
shares of Common Stock that have been issued upon the exercise of such Warrants.
All Warrants surrendered for transfer, exchange or partial exercise shall be
canceled by the Warrant Agent. Promptly after the date of expiration of the
Warrants, the Warrant Agent shall certify to the Company the total aggregate
amount of Warrants then outstanding and, thereafter, no Common Stock shall be
subject to reservation in respect of such Warrants.
12. Disposition of Proceeds on Exercise of Warrants. Upon the exercise
of the Warrants, the Warrant Agent shall promptly deposit the payment into an
escrow account established by mutual agreement of the Company and the Warrant
Agent at a federally insured commercial bank. All funds deposited in the escrow
account will be disbursed on a weekly basis to the Company once they have been
determined by the Warrant Agent to be collected funds. Once the funds are
determined to be collected, the Warrant Agent shall cause the share
certificate(s) representing the exercised Warrants to be issued.
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13. Merger or Consolidation or Change of Name of Warrant Agent. Any
corporation or company that may succeed to the business of the Warrant Agent by
merger or consolidation or otherwise to which the Warrant Agent shall be a
party, or any corporation or company or otherwise succeeding to the business of
the Warrant Agent shall be the successor to the Warrant Agent hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto; provided, however, that such corporation would be eligible
for appointment as a successor Warrant Agent under the provisions of this
Agreement. In case at the time such successor to the Warrant Agent shall succeed
to the agency created by this Agreement or in case at any time the name of the
Warrant Agent shall be changed, and any of the Warrants shall have been
countersigned but not delivered, any such successor to the Warrant Agent may
adopt the countersignature of the original Warrant Agent and deliver such
Warrants so countersigned; and in case at the time any of the Warrants shall not
have been countersigned, the successor to the Warrant Agent may countersign such
Warrants, either in the name of the predecessor Warrant Agent or in the name of
the successor Warrant Agent; and in all such cases, such Warrants shall have the
full force provided in the Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior name
and deliver Warrants so countersigned; and if at that time any of the Warrants
shall not have been countersigned, the Warrant Agent may countersign such
Warrants either in its prior name or in its changed name; and in all such cases,
such Warrants shall have the full force provided in the Warrants and this
Agreement.
14. Duties of the Warrant Agent. (a) The Warrant Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company shall be bound:
(i) The statements contained herein and in the Warrants shall
be taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same, except such as
described by the Warrant Agent or action or actions taken or to be
taken by it. The Warrant Agent assumes no responsibility with respect
to the distribution of the Warrants, except as herein otherwise
provided.
(ii) The Warrant Agent shall not be responsible for any
failure of the Company to comply with any of the covenants contained in
this Agreement or in the Warrants to be complied with by the Company.
(iii) The Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder,
either itself, or by or through its attorneys, agents or employees.
(iv) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company), and the
Warrant Agent shall incur no liability or responsibility to the Company
or to any holder of any Warrant in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with the
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opinion or advice of such counsel, provided the Warrant Agent shall
have exercised reasonable care in the selection and continued
employment of such counsel.
(v) The Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant for any
action taken in reliance upon any notice, resolution, waiver, consent,
order, certificate or other paper, document or instrument reasonably
believed by it to have been signed, sent or presented by the proper
party or parties.
(vi) The Company agrees to pay the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the
execution of this Agreement; to reimburse the Warrant Agent for all
expenses, taxes, governmental charges and other charges of any kind and
nature incurred by the Warrant Agent in the execution of this
Agreement; and to indemnify the Warrant Agent and save it harmless from
and against any and all liabilities, including judgments, costs and
reasonable attorneys' fees for anything done or omitted by the Warrant
Agent in the execution of this Agreement, except as a result of the
Warrant Agent's negligence or bad faith.
(vii) The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding, or to take any other
action likely to involve expense, unless the Company or one or more
registered holders of Warrants shall furnish the Warrant Agent with
reasonable security and indemnity. All rights of action under this
Agreement or under any of the Warrants or in the production thereof at
any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in
its name as Warrant Agent, and any recovery of judgment shall be for
the benefit of the registered holders of the Warrants, as their
respective rights or interests may appear.
(viii) The Warrant Agent and any stockholder, director,
officer, partner or employee of the Warrant Agent may buy, sell or deal
in any of the Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to or otherwise act as fully
and freely as though it were not the Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting
in any other capacity for the Company or for any other legal entity.
(ix) The Warrant Agent shall act hereunder solely as agent,
and its duties shall be determined solely by the provisions hereof. The
Warrant Agent shall not be liable for anything that it may do or
refrain from doing in connection with this Agreement, except for its
own negligence or bad faith.
(x) The Warrant Agent shall keep copies of this Agreement
available for inspection by holders of the Warrants during normal
business hours at its principal office in New York.
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15. Change of Warrant Agent. The Warrant Agent may resign and be
discharged from its duties under this Agreement by giving notice in writing to
the Company and by giving notice by mail to holders of the Warrants at their
addresses as such addresses appear on the Warrant register of such resignation,
specifying a date when such resignation shall take effect, which date shall not
be less than thirty (30) days after the mailing of said notice. The Warrant
Agent may be removed at the discretion of the Company by like notice to the
Warrant Agent from the Company and by like mailing of notice to the holders of
the Warrants. If the Warrant Agent shall resign or be removed or otherwise
become incapable of acting, the Company shall appoint a successor to the Warrant
Agent. If the Company shall fail to make such appointment within a period of
thirty (30) days after such removal, or after it has been notified in writing of
such resignation or incapacity by the resigning or incapacitated Warrant Agent
or by the registered holder of a Warrant (who shall, with such notice, submit
his Warrant for inspection by the Company), then the registered holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a successor to the Warrant Agent. After appointment, any successor Warrant Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Warrant Agent without further act or deed, but
the former Warrant Agent shall deliver and transfer to the successor Warrant
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company shall give notice
thereof to the predecessor Warrant Agent and each transfer agent for the Common
Stock, and shall forthwith give notice to the holders of the Warrants in the
manner prescribed in this Section 15. Failure to file or mail any notice
provided for in this Section 15, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Warrant
Agent or the appointment of any successor Warrant Agent, as the case may be.
16. Identity of Transfer Agent. Forthwith upon the appointment of any
transfer agent other than the Warrant Agent for the Common Stock of the Company
issuable upon the exercise of the rights of purchase represented by the
Warrants, the Company will file with the Warrant Agent a statement setting forth
the name and address of such transfer agent.
17. Notices. Any notice pursuant to this Agreement to be given or made
by the Warrant Agent or by the registered holder of any Warrant to the Company
shall be deemed to have been sufficiently given or made if sent by certified
mail, return receipt requested, or by Federal Express, Express Mail or similar
overnight delivery or courier service, postage prepaid, or delivered (in person
or by telecopy, telex or similar telecommunications equipment) against receipt
to the party to whom it is to be given, addressed (until another address is
filed in writing by the Company with the Warrant Agent) as follows:
To the Company:
Marc Pharmaceuticals, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, President
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To the Warrant Agent:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Any notice pursuant to this Agreement to be given or made by the Company or by
the registered holder of any Warrant to the Warrant Agent shall be deemed to
have been sufficiently given or made if sent by certified mail, return receipt
requested, postage prepaid, addressed (until another address is filed in writing
by the Warrant Agent with the Company) to the Warrant Agent as set forth above.
18. Standard of Conduct. Notwithstanding any implication to the
contrary elsewhere herein, whenever the Company or the Warrant Agent are
required or permitted to make any judgment or to take any action, no such
judgment or action shall be made or taken in bad faith or in any arbitrary or
capricious fashion.
19. Supplements and Amendments. The Company and the Warrant Agent may,
from time to time, supplement or amend this Agreement without the approval of
any of the holders of the Warrants in order to cure any ambiguity or to correct
or supplement any provision contained herein that may be defective or
inconsistent with any other provision herein, or to make any other provisions in
regard to matters or questions arising hereunder that the Company and the
Warrant Agent may deem necessary or desirable, that shall not be inconsistent
with the provisions of the Warrants, and that shall not materially adversely
affect the rights of the holders of the Warrants.
20. Successors. All of the covenants and provisions hereof by or for
the benefit of the Company or the Warrant Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
21. Merger or Consolidation of the Company. The Company will not merge
or consolidate with or into any other corporation, unless the corporation
resulting from such merger or consolidation (if not the Company) shall expressly
assume, by supplemental agreement satisfactory in form to the Warrant Agent and
executed and delivered to the Warrant Agent, the due and punctual performance
and observance of each and every covenant and condition of this Agreement to be
performed and observed by the Company.
22. Governing Law. This Agreement and each Warrant issued hereunder
shall be construed in accordance with the laws of the State of New York
applicable to contracts made and performed with such State, without giving
effect to conflicts of law principles.
23. Consent to Jurisdiction. The Company irrevocably consents to the
jurisdiction of the courts of the State of New York and of any federal court
located in such State in connection with any action or proceeding arising out of
or relating to this Warrant, any document or instrument delivered pursuant to,
in connection with or simultaneously with this Warrant, or a breach of this
Warrant or any such document or instrument. In any such action or proceeding,
the Company
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waives personal service of any summons, complaint or other process and agrees
that service thereof may be made in accordance with Section 16 hereof. Within
thirty (30) days after such service, or such other time as may be mutually
agreed upon in writing by the attorneys for the parties to such action or
proceeding, the Company shall appear to answer such summons, complaint or other
process.
24. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give any person or corporation, other than the Company, the Warrant
Agent and the registered holders of the Warrants, any legal or equitable right,
remedy or claim under this Agreement, but this Agreement shall be for the sole
and exclusive benefit of the Company and the Warrant Agent and their respective
successors and of the holders of the Warrant certificates.
25. Waiver. No course of dealing and no delay or omission on the part
of the Holder in exercising any right or remedy shall operate as a waiver
thereof or otherwise prejudice the Holder's rights, powers or remedies. No
right, power or remedy conferred by this Warrant upon the Holder shall be
exclusive of any other right, power or remedy referred to herein or now or
hereafter available at law, in equity, by statute or otherwise, and all such
remedies may be exercised singly or concurrently.
26. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
MARC PHARMACUTICALS, INC.
By:______________________________
Name: Xxxxxx X. Xxxxx
Title: President
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:______________________________
Name: ___________________________
Title: ____________________________
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EXHIBIT A
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