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EXHIBIT 4.10
SECOND AMENDMENT TO WARRANT AGREEMENT
This SECOND AMENDMENT TO WARRANT AGREEMENT (the "Amendment"), dated
as of September 10, 1999, is entered into by and between Texas Biotechnology
Corporation, a Delaware corporation (the "Company") and The Bank of New York, a
corporation organized under the banking laws of the State of New York (the
"Warrant Agent").
W I T N E S S E T H
WHEREAS, the Company and the Warrant agent are parties to the
Warrant Agreement dated as of December 15, 1993, (the "Warrant Agreement"),
pursuant to which the Warrant Agent acts on behalf of the Company in connection
with the issuance, transfer, exchange, replacement, redemption and surrender of
the certificates for the Company's Redeemable Common Stock Purchase Warrants
(the "Warrants");
WHEREAS, the Company has requested and the Warrant Agent agrees to
certain amendments to the Warrant Agreement; and
WHEREAS, the Warrant Agent is willing to amend the Warrant
Agreement, subject to the terms and conditions of this Amendment.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Defined Terms. Unless otherwise defined herein capitalized terms
used herein shall have the meanings, if any, assigned to them in the Warrant
Agreement.
2. Amendment to Warrant Agreement.
Section 2.2 of the Warrant Agreement is hereby amended
and restated in its entirety to read as follows:
"2.2 Registration of Common Stock and Exercisability of
Warrants. Each Warrant may be exercised at any time on or after
December 15, 1993, the effective date of the Offering, as long as
the effectiveness of the registration of the Warrant Shares is
maintained under the Securities Act of 1933, as amended (the
"Securities Act"), but not after 5:00 P.M., New York City time, on
the earlier of December 31, 2000, unless extended by the Company and
the Warrant Agent, or the business day immediately preceding the
Call Date (as defined in Section 4.11). The term "Exercise Deadline"
as used in this Agreement shall mean the latest time and date at
which the Warrants may be exercised. The Company shall use its best
efforts to maintain the
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registration or qualification in effect of the Warrant Shares and to
keep available for delivery upon the exercise of the Warrants a
prospectus that meet the requirements of Section 10 of the
Securities Act, until the earlier of the date by which all Warrants
are exercised or the Exercise Deadline; provided, however, that the
Company shall have no obligation hereunder to maintain the
effectiveness of such registration or qualification ro keep
available a prospectus, as aforesaid, in the event that, by
amendment to the Securities Act or otherwise, such registration or
qualification or the delivery of such prospectus is not required at
the said Common Stock is to be issued; and provided further, that in
the event, by amendment to the Securities Act or otherwise, some
other or different requirement shall be imposed by act of the
Congress of the United States which shall related to the issuance of
Common Stock upon exercise of the Warrants, the Company shall use
its best efforts to comply with such requirements."
3. Representations and Warranties. The Company hereby represents and
warrants to the Warrant Agent as follows:
The execution, delivery and performance by the Company of
this Amendment has been duly authorized by all necessary corporate
and other action and does not, and will not, require any
registration, with consent or approval of, notice to or action by,
any person or entity (including any governmental authority or
entity) in order to be effective and enforceable. The Warrant
Agreement, including such provisions that have been amended by this
Amendment, constitute the legal, valid and binding obligations of
the Company.
4. Effective Date. This amendment will become effective as of
September 10, 1999 (the "Effective Date"); provided that each of the following
conditions precedent is satisfied:
(a) The Company has executed and delivered this Amendment; and
(b) All representations and warranties contained herein are true and
correct as of the Effective Date.
5. Miscellaneous.
(a) Except as expressly amended or waived herein, all terms,
covenants and provisions of the Warrant Agreement and the other
documents executed in connection thereto are and shall remain in
full force and effect.
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
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(c) This Amendment 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.
(d) This Amendment, together with the Warrant Agreement and the
other documents executed in connection thereto, embodies the final,
entire agreement among the parties hereto and supersedes any and all
prior commitments or agreements in connection with the subject
matter thereof, representations and understandings, whether written
or oral, relating to the subject matter hereof and may not be
contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto.
There are no unwritten oral agreements among the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
TEXAS BIOTECHNOLOGY CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President & Administration
THE BANK OF NEW YORK
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: Vice President
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