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Exhibit 10(lxxii)
AGREEMENT OF CONSENT, WAIVER and AMENDMENT
This Agreement of Consent, Waiver and Amendment (this
"AGREEMENT") is entered into as of June 16, 1999, by and among Viragen, Inc.
(the "COMPANY"), The Isosceles Fund ("ISOSCELES") and Cefeo Investments Limited
("CEFEO").
WHEREAS, Isosceles, Cefeo (together, the "SUBSCRIBERS") and
the Company entered into a Purchase Agreement dated as of March 17, 1999 (the
"PURCHASE AGREEMENT") and all definitions set forth herein but not otherwise
defined shall have the meanings set forth in the Purchase Agreement;
WHEREAS, pursuant to the Purchase Agreement, the Subscribers
purchased Notes and Warrants (each as defined in the Purchase Agreement);
WHEREAS, the Company has arranged two phases of financing
pursuant to private placements; phase one of the financing being a sale of
Common Stock (as defined in the Purchase Agreement) at $.50 per share to three
private investors for a total sale price of $1 million funded on or about May
11, 1999; and phase two being a sale of Common Stock to such investors at $.50
per share for a total sale price of $500,000 to such investors on or about July
15, 1999. (Phase one and phase two together being the "FINANCING"); and
WHEREAS, the execution of this Agreement is subject to the
review and approval by Isosceles and Cefeo of the terms of the Financing;
NOW THEREFORE, all on the terms and subject to the conditions
set forth herein, the Company, Isosceles and Cefeo hereby acknowledge and agree
as follows:
1. Pursuant to Section 4.1 of the Purchase Agreement, the
Subscribers hereby consent to the Financing as of the date of phase one of the
Financing.
2. As of the date of phase one of the Financing, Isosceles
hereby a) waives notice pursuant to Section 13.7 of the Purchase Agreement as it
relates to the Financing, and b) declines to exercise its right of first refusal
regarding the Common Stock issued pursuant to the Financing.
3. The Company and the Subscribers hereby agree to amend the
definition of "Conversion Price", as defined in Section 3.1 of the Notes issued
pursuant to the Purchase Agreement to read as follows:
The conversion price (the "Conversion Price") shall be the
least of: a) the average of the closing bid prices of the
Company's Common Stock during the five consecutive Trading Day
period preceding the Initial Purchase Date (the "Closing
Market Price"); b) the lowest closing bid price of the
Company's Common Stock during the ten consecutive Trading Day
period immediately preceding the applicable Conversion Date;
c) $.50; or d) any price at which Common Stock is issued
pursuant to the Financing as defined in this Agreement of
Consent, Waiver and Amendment.
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4. The Company and the Subscribers hereby agree to amend the
definition of "Exercise Price," as defined in the Warrants issued to the
Subscribers pursuant to the Purchase Agreement to read as follows:
"Exercise Price" as of the date hereof shall mean an exercise
price equal to the least of: a) the Exercise Price as
currently defined in the Warrant; b) $.50; or c) any price at
which Common Stock is issued pursuant to the Financing as
defined in this Agreement of Consent, Waiver and Amendment.
5. The Company and the Subscribers hereby agree that the
periods referred to in Section 1.20 of the Purchase Agreement, in Section 1.1 of
the Registration Rights Agreement, and references to such periods in any other
agreements or instruments made pursuant thereto, MUTATIS MUTANDI, shall be
changed to ". . . 112 days after the Initial Purchase Date if there are comments
from the SEC."
6. The Company and the Subscribers hereby agree that all other
provisions in the Notes and the Warrants, including without limitation the
anti-dilutive provisions continue to apply.
7. The Company hereby covenants: a) that the resale of any
Common Stock sold pursuant to the Financing will not be registered on
registration statement No. 333-75749 which will, upon the Effective Date (as
defined in the Purchase Agreement), register the resale of Common Stock issued
pursuant to the Notes and the Warrants (the "Isosceles Registration Statement");
b) that any registration statement used to register the resale of any Common
Stock pursuant to the Financing will not be filed until 90 days after the
Effective Date of the Isosceles Registration Statement; and c) that the Company
will pay Xxxxxx & Xxxxx LLP the legal fees for advice relating to this Agreement
described in an invoice which will be delivered to the Company within five days
of the date of this Agreement.
8. The Company and the Subscribers hereby acknowledge and
agree that for any obligations or liabilities arising under or in connection
with this Agreement, each of the Company's, Isosceles', and Cefeo's notice
addresses will be as set forth in the Purchase Agreement.
9. This Agreement may be executed in any number of
counterparts and all such counterparts taken together shall be deemed to
constitute one and the same instrument. Transmission by fax of an executed
counterpart of this Agreement shall be deemed to constitute due and sufficient
delivery of such counterpart.
10. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written by their respective
duly authorized officers.
Viragen, Inc.:
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
The Isosceles Fund:
By: /s/ Xxxx Xxxxxx /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx Xxxx Xxxxxx
Cefeo Investments Limited:
By: /s/ Xxxxxx Xxxx Gentilomo
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Name: Xxxxxx Xxxx Gentilomo
Title: Director
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