1
Exhibit c(2)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of March 3, 2000, by and among: ANTEX BIOLOGICS INC. (the "Company");
the purchasers signatory hereto (the "A Purchasers"), each of whom has executed
a Subscription Agreement (the "A Purchase Agreements") electing to purchase
units (the "A Units"), each consisting of one share (the "Shares") of the
Company's common stock, par value $.01 per share (the "Common Stock"), and one
Callable Class A Warrant (the "Class A Warrants"), each exerciseable to purchase
one share of Common Stock at an initial exercise price of $1.50 (the "Class A
Warrant Shares"); the purchasers signatory hereto (the "B Purchasers"), each of
whom has executed a Subscription Agreement (the "B Purchase Agreements")
electing to purchase units (the "B Units"), each consisting of one-one hundredth
of one share of the Company's Series A Convertible Preferred Stock, par value
$.01 per share (the "Series A Preferred"), convertible into one share of Common
Stock (the "Conversion Shares"), and one Callable Class B Warrant (the "Class B
Warrants") each exerciseable to purchase one share of Common Stock at an initial
exercise price of $1.50 (the "Class B Warrant Shares" ); XXXXXXX/XXXXXX
ASSOCIATES, L.P. ("Xxxxxxx/Xxxxxx") to which the Company is issuing 250,000
Non-Callable Class C Warrants (the "Class C Warrants") each exerciseable to
purchase one share of Common Stock at an initial exercise price of $.66 (the
"Class C Warrant Shares") and 250,000 Non-Callable Class D Warrants (the "Class
D Warrants"), each exerciseable to purchase one share of Common Stock at an
initial exercise price of $1.50 (the "Class D Warrant Shares"); THE BIOTECH
CONSULTING GROUP INCORPORATED ("TBCGI"), to which the Company is issuing 200,000
Class C Warrants and 200,000 Class D Warrants; CHL MEDICAL PARTNERS LP ("CH&L"),
to which the Company is issuing 300,000 Class C Warrants and 300,000 Class D
Warrants; PRISM VENTURES LLC to which the Company is issuing 60,000 Class C
Warrants and 60,000 Class D Warrants; and HARBOR TRUST ("HT") to which the
Company is issuing 1,666,666 B Units, 2,599,091 Class C Warrants and 2,599,091
Class D Warrants.
In order to induce the A Purchasers to enter into the A Purchase
Agreements, to induce the B Purchasers to enter into the B Purchase Agreements,
and to induce Xxxxxxx/Xxxxxx, TBCGI, CH&L and HT to render services in
connection with the offering of the A Units and the B Units (the "Offering"),
the Company has agreed to provide the registration rights set forth in this
Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings set forth below:
"Business Day" means any day other than a Saturday, Sunday or
legal holiday on which banks in Washington, D.C. are open for the conduct
of their commercial banking business.
"Commission" means the United States Securities and Exchange
Commission.
"Entity" means any general partnership, limited partnership,
corporation, joint venture, trust, business trust, real estate investment
trust, limited liability company, cooperative or association.
2
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the
time.
"Governmental Body" means any foreign, federal, state, municipal
or other government, or any department, commission, investigative body,
board, bureau, agency, public authority or instrumentality thereof or any
court, mediator, arbitrator or other tribunal.
"Holder" means any person that owns, or, if the context requires,
has the right to acquire, Registrable Securities.
"Person" means any individual or Entity.
"Prospectus" means the Prospectus included in the Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference in such
Prospectus.
"Registrable Securities" means (i) the Shares included in the A
Units to be sold to the Purchasers pursuant to the A Purchase Agreements,
(ii) the Warrant Shares issuable upon exercise of the Warrants, (iii) the
Conversion Shares issuable upon the conversion of the Series A Preferred
included in the B Units, and (iv) any other Common Stock issued or
issuable with respect to the Shares, the Series A Preferred, the
Warrants, the Warrant Shares or the Conversion Shares by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or
otherwise.
"Restricted Registrable Securities" means the Registrable
Securities until (i) a registration statement under the Securities Act
covering such Registrable Securities has been declared effective and they
have been disposed of pursuant to such effective registration statement,
(ii) they are eligible for distribution to the public pursuant to Rule
144(k) (or any similar provision then in force) under the Securities Act
or (iii) they have been otherwise transferred and the Company has
delivered new certificates or other evidences of ownership for them not
subject to any stop transfer order or other restriction on transfer
(including, without limitation, sale) by reason of any requirements of
the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Underwritten registration" or "underwritten offering" means a
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
-2-
3
"Warrants" means, collectively, the Class A Warrants, the Class B
Warrants, the Class C Warrants and the Class D Warrants
"Warrant Shares" means, collectively, the Class A Warrant Shares,
the Class B Warrant Shares, the Class C Warrant Shares and the Class D
Warrant Shares
The following terms are defined elsewhere in this Agreement.
Term Section
"A Purchase Agreements" preamble
"A Purchasers" preamble
"A Units" preamble
"B Purchase Agreements" preamble
"B Purchasers" preamble
"B Units" preamble
"Blackout Period" Section 2.1(c)(i)
"CH&L" preamble
"Class A Warrants" preamble
"Class A Warrant Shares" preamble
"Class B Warrants" preamble
"Class B Warrant Shares" preamble
"Class C Warrants" preamble
"Class C Warrant Shares" preamble
"Class D Warrants" preamble
"Class D Warrant Shares" preamble
"Common Stock" preamble
"Company" preamble
"Conversion Shares" preamble
"Effectiveness Period" Section 2.1(c)
"HT" preamble
"Xxxxxxx/Xxxxxx" preamble
"Offering" preamble
"Registration Statement" Section 2.1(a)
"Series A Preferred" preamble
"Shares" preamble
"TBCGI" preamble
2. SHELF REGISTRATION.
2.1 (a) Shelf Registration Statement. The Company shall file with the
Commission a registration statement for an offering to be made on a continuous
basis pursuant to Rule 415 under the Securities Act covering the resale of all
of the Restricted Registrable Securities (the "Registration Statement") and the
Company shall use its reasonable best efforts to cause the
-3-
4
Registration Statement to be declared effective under the Securities Act on or
prior to the 180th day after the date of closing of the Offering. The Company
shall use its reasonable best efforts to keep the Registration Statement
continuously effective under the Securities Act until all the Warrants have
expired or are exercised, or until such earlier time as all the Registrable
Securities have ceased to be Restricted Registrable Securities (the
"Effectiveness Period"). The Registration Statement shall be on Form S-3 or
other appropriate form permitting registration of such Restricted Registrable
Securities for resale by the Holders thereof in the manner or manners designated
by them (including, without limitation, one or more underwritten offerings).
(b) Underwritten Offerings. If one or more Holders elect to effect an
underwritten offering of any Restricted Registrable Securities under the
Registration Statement for which such Holders pay the Registration Expenses, the
managing underwriter and any additional investment bankers and managers for use
in connection with any underwritten offering shall be selected by the Holders of
a majority of the Registrable Securities to be included in the underwritten
offering, subject to the consent of the Company which may be withheld in its
sole and absolute discretion. No Holder shall be permitted to participate in any
underwritten offering pursuant to the Registration Statement unless such Holder
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of customary underwriting arrangements.
(c) Limitations Regarding Offerings.
(i) Each Holder shall discontinue the disposition of
Registrable Securities pursuant to the Shelf Registration if (i) the Board of
Directors of the Company determines in good faith that continuing such
disposition at such time would have a material adverse effect upon a proposed
sale of all (or substantially all) of the assets of the Company or a merger,
reorganization, recapitalization or similar current transaction materially
affecting the capital structure or equity ownership of the Company or (ii) the
Company is in possession of material information which the Board of Directors of
the Company determines in good faith is not in the best interests of the Company
to disclose in a registration statement at such time (each period as described
above, a "Blackout Period"). Such Blackout Periods shall not, in the aggregate,
exceed sixty (60) trading days in any twelve-month period.
(ii) The Company shall promptly notify the Holders in writing of
any decision of the Company to suspend sales of Registrable Securities pursuant
to this Section 2.1(c), which notice shall set forth the reason for such
decision (but not disclosing any nonpublic material information) and shall
include an undertaking by the Company promptly to notify the Holders as soon as
sales may resume.
3. HOLD-BACK AGREEMENTS. Each Holder of Registrable Securities agrees, if
requested by the managing underwriter or underwriters in an underwritten
offering of securities of the Company, not to effect any public sale or
distribution of its remaining equity securities of the Company, including a sale
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act, during the 14-day period prior to, and during the 90-day period
(or such shorter period as may be agreed to by the parties hereto) beginning on,
the effective date of the
-4-
5
registration statement for such offering (or such lesser restrictions as to
which the Company agrees to be bound in such offering) (each period as described
above, a "Holdback Period").
4. REGISTRATION PROCEDURES
In connection with the registration provided for in Section 2, the
Company will, at its expense:
(a) before filing the Registration Statement, furnish to
counsel for the Holders a copy of such document sufficiently in advance of
filing to provide counsel with a reasonable opportunity to review such documents
and comment thereon;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep such Registration Statement continuously effective during the Effectiveness
Period; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act; and comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all securities covered by
such Registration Statement during the Effectiveness Period;
(c) notify each Holder of Restricted Registrable Securities
included in the Registration Statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, promptly, and (if
requested by any such Person) confirm such notice in writing, (1) when a
prospectus or any prospectus supplement has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective, (2) of any request by the Commission for amendments or supplements to
the Registration Statement or related prospectus or for additional information,
(3) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose, (4) if at any time the representations and warranties of the
Company contained in agreements contemplated by Section 4(m) cease to be true
and correct, (5) of the receipt by the Company of any notification with respect
to the suspension of the qualification of any of the Restricted Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (6) of the happening of any event as a result of
which the prospectus included in the Registration Statement (as then in effect)
contains any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
(in the case of the prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading and (7) of the
Company's reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate;
(d) at any time when a prospectus relating thereto is required
to be delivered under the Securities Act and other than during a Blackout
Period, upon the occurrence of any event contemplated by Section 4(c)(6) or (7),
prepare a supplement or post-effective amendment to the Registration Statement
or related prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers
of
-5-
6
the Restricted Registrable Securities being sold thereunder, such prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(e) use reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement, or the
lifting of any suspension of the qualification of any of the Restricted
Registrable Securities for sale in any jurisdiction required pursuant to Section
4(i), as soon as reasonably possible;
(f) if requested by a managing underwriter or any Holder of
Restricted Registrable Securities, promptly include in a prospectus supplement
or post-effective amendment such information concerning such Holder of
Restricted Registrable Securities, the managing underwriter or underwriters or
the intended method of distribution as the managing underwriter or underwriters
or the Holder of Restricted Registrable Securities reasonably requests to be
included therein and as is appropriate in the reasonable judgment of the
Company, including, without limitation, information with respect to the number
of shares of the Restricted Registrable Securities being sold to such
underwriter or underwriters, the purchase price being paid therefor by such
underwriter or underwriters and with respect to any other terms of the
underwritten (or best efforts underwritten) offering of the Restricted
Registrable Securities to be sold in such offering; and make all required
filings of such prospectus supplement or post-effective amendment as soon as
practicable after the Company has received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(g) furnish to each Holder of Restricted Registrable
Securities included in the Registration Statement and each managing underwriter,
if any, without charge, one manually-signed copy of the Registration Statement
and any post-effective amendments thereto, including financial statements and
schedules, and, upon request, all documents incorporated therein by reference
and all exhibits (including those incorporated by reference);
(h) deliver to each Holder of Restricted Registrable
Securities included in the Registration Statement, without charge, as many
copies of the prospectus or prospectuses (including each preliminary Prospectus)
and any amendment or supplement thereto as such Persons may reasonably request;
(i) prior to any public offering of Restricted Registrable
Securities use its reasonable best efforts to register or qualify, or cooperate
with the Holders of Restricted Registrable Securities included in the
Registration Statement, in the qualification of, such Restricted Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any Holder or underwriter reasonably requests in writing; use
its reasonable best efforts to keep each such registration or qualification
effective, including through new filings or amendments or renewals, during the
Effectiveness Period and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Restricted
Registrable Securities covered by the Registration Statement; provided, however,
that the Company will not be required to qualify to do business or take any
action that would subject it to taxation or general service of process in any
jurisdiction where it is not then so qualified or subject;
-6-
7
(j) cooperate with the Holders of Restricted Registrable
Securities included in the Registration Statement and the managing underwriter
or underwriters, if any, to facilitate (1) the timely preparation and delivery
of certificates (not bearing any restrictive legends) representing Restricted
Registrable Securities that have been sold under the Registration Statement or
(2) the timely transfer of beneficial ownership of such Restricted Registrable
Securities in book-entry fashion under the auspices of The Depository Trust
Company or other similar organization; and cause such Restricted Registrable
Securities to be in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or such Holders may request;
(k) use its reasonable best efforts to cause the Restricted
Registrable Securities covered by the Registration Statement to be registered
with or approved by such Governmental Bodies consistent with the provisions of
Section 4(i) as may be necessary to enable the Holders thereof or the managing
underwriter or underwriters, if any, to consummate the disposition of such
Restricted Registrable Securities;
(l) cause all Restricted Registrable Securities included in
the Registration Statement to be (1) listed, by the date of first sale of
Restricted Registrable Securities pursuant to the Registration Statement, on
each securities exchange, if any, on which the Common Stock is listed, or (2)
quoted on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") or the National Market System of NASDAQ if the Common Stock is
then quoted thereon;
(m) enter into such agreements and take all such other
reasonable actions in connection therewith in order to expedite or facilitate
the disposition of the Restricted Registrable Securities and in such connection,
in the case of an underwritten offering, enter into an underwriting agreement in
form, scope and substance as is customary in underwritten offerings and use its
best efforts to comply with and satisfy the covenants and conditions of such
underwriting agreement, including, without limitation, providing opinions of
counsel to the Company, indemnifications, and "comfort" letters from the
Company's independent public accountants;
(n) make available for inspection by a representative of the
Holders of the Restricted Registrable Securities included in the Registration
Statement, any underwriter participating in any disposition pursuant to such
Registration Statement and any lawyer, accountant or other advisors retained by
such selling Holders or underwriter, all pertinent financial and other records,
pertinent trust documents and properties of the Company as they may reasonably
request, and cause the Company's officers, trustees and employees to supply all
information reasonably requested by any such representative, underwriter,
lawyer, accountant or other advisors in connection with such Registration
Statement; provided, however, that any records, information or documents that
are furnished by the Company and that are nonpublic shall be used only in
connection with such registration and shall be made available upon the entry by
the recipient into a confidentiality agreement satisfactory to the Company; and
-7-
8
(o) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission and make generally
available to its security holders earnings statements satisfying the provisions
of Section 11(a) of the Securities Act, and the rules and regulations thereunder
(including Rule 158), no later than 90 days after the end of any 12-month period
commencing at the end of any fiscal quarter in which Registrable Securities are
sold to underwriters in a firmly underwritten offering.
Each Holder of Restricted Registrable Securities shall furnish
promptly to the Company such information regarding the distribution of such
securities as the Company may from time to time reasonably request in writing.
Each Holder of Restricted Registrable Securities (i) shall sell
its securities covered by the Registration Statement in accordance with the plan
of distribution provided for therein and (ii) upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
4(c)(2), (3), (5), (6) or (7), shall forthwith discontinue disposition of
Registrable Securities covered by such Registration Statement or prospectus
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 4(d), or until it is advised in writing by
the Company that the use of the applicable prospectus may be resumed. The
Company shall be obligated to use its reasonable best efforts to cause such
Registration Statement and prospectus to conform to all legal requirements and
to notify the Holders that the use of the applicable prospectus may be resumed.
Nothing in this paragraph shall create an exception to the permitted duration of
any Blackout Period imposed pursuant to and subject to Section 2 of this
Agreement.
5. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with state securities or blue
sky laws, including reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities under the laws of such jurisdictions as the managing underwriter or
underwriters may reasonably designate, and fees and disbursements of counsel for
the Company and of the Company's independent public accountants (including the
expenses of any special audit and "cold comfort" letters required by or incident
to such performance) (all such expenses being herein called "Registration
Expenses") will be borne by the Company whether or not the Registration
Statement becomes effective. None of the following expenses shall be paid by the
Company: transfer taxes, discounts, commissions or fees of underwriters, selling
brokers, dealer managers or similar securities industry professionals relating
to the distribution of the Restricted Registrable Securities and the legal fees
and disbursements of counsel to the Holders.
6. INDEMNIFICATION
6.1 Indemnification by the Company. The Company agrees to indemnify,
defend and hold harmless, to the full extent permitted by law, each Holder of
Restricted Registrable Securities and each of its affiliates, each of their
respective officers, directors, employees, agents,
-8-
9
representatives, successors and assigns and each Person who controls such Holder
or affiliate (within the meaning of the Securities Act) against any and all
actions, causes of action, suits, losses, liabilities, obligations, damages,
deficiencies, demands, claims, judgments, assessments, settlement costs, court
costs and other costs and expenses, including, without limitation, interest,
penalties, fines, costs of investigation, discovery, case preparation, defense
or appeal, expert witness fees and expenses and reasonable attorneys' and
paralegal fees and disbursements (collectively, "Losses") incurred by any such
Person in any capacity and caused by any untrue statement of a material fact
contained in the Registration Statement, Prospectus or preliminary Prospectus or
any omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a Prospectus or any
preliminary Prospectus, in light of the circumstances under which they were
made) not misleading, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such Holder or its
representative expressly for use therein; provided, however, that such
indemnification with respect to any preliminary Prospectus shall not be
applicable if a copy of the Prospectus (including as amended or supplemented)
was not sent or given by or on behalf of such Holder on the sale, if the
Prospectus (including as amended or supplemented) would have cured the defect
giving rise to such Losses.
6.2 Indemnification by Holders. In connection with this Agreement,
each Holder will promptly furnish to the Company in writing such information and
affidavits with respect to such Holder as the Company reasonably requests for
use in connection with the Registration Statement or Prospectus and agrees to
indemnify, defend and hold harmless, to the full extent permitted by law, the
Company, its directors, officers, employees, agents, representatives, successors
and assigns and each Person who controls the Company (within the meaning of the
Securities Act) against any Losses incurred by any such Person in any capacity
and caused by any untrue statement of a material fact contained in the
Registration Statement, Prospectus or preliminary Prospectus or any omission of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of a Prospectus, in the light of the
circumstances under which they were made) not misleading, to the extent, but
only to the extent, that such untrue statement or omission is contained in any
information with respect to such Holder furnished in writing by such Holder or
its representatives to the Company specifically for inclusion in such
Registration Statement or Prospectus. In no event shall the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the
proceeds received by such Holder upon the sale of the Restricted Registrable
Securities giving rise to such indemnification obligation. The Company shall be
entitled to receive indemnities from underwriters to the same extent as provided
above with respect to information so furnished in writing by such persons or
their representatives to the Company specifically for inclusion in the
Registration Statement or any prospectuses.
6.3 Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. Notwithstanding the
foregoing, any Person entitled to indemnification hereunder shall have the right
to employ
-9-
10
separate counsel and to participate in the defense of such claim, but the
reasonable fees and expenses of such counsel shall be at the expense of such
Person unless (a) the indemnifying party has agreed in writing to pay such fees
or expenses, (b) the indemnifying party declines to assume the defense of such
claim or (c) a conflict of interest exists between such Person and the
indemnifying party (it being understood that (x) in the case of each of (a), (b)
and (c) above, the reasonable fees and expenses of such separate counsel to such
Person shall be paid by the indemnifying party and (y) in the case of (c) above,
if the Person notifies the indemnifying party in writing that such Person elects
to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such claim
on behalf of such Person). If such defense is not assumed by the indemnifying
party, the indemnifying party will not be subject to any liability for any
settlement made without its consent (but such consent will not be unreasonably
withheld or delayed). No indemnifying party shall consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to the indemnified party of
a release from all liability in respect to such claim or litigation. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the reasonable fees and expenses of more
than one counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless a conflict of interest exists between such
indemnified party and any other indemnified party with respect to such claim.
6.4 Contribution. If the indemnification provided for in this
Section 6 from the indemnifying party is unavailable to an indemnified party in
respect of any Losses, then the indemnifying party in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and
indemnified parties in connection with the actions which resulted in such
Losses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action; provided, however, that in no event shall the obligation of
any selling Holder hereunder be greater in amount than the difference between
the dollar amount of the proceeds received by such Holder upon the sale of the
Restricted Registrable Securities giving rise to such contribution obligation
and all amounts previously contributed by such Holder with respect to such
Losses. The amount paid or payable by a party as a result of the Losses referred
to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 6.4 were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately paragraph. No person
guilty of fraudulent misrepresentation (within the meaning of
-10-
11
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
7. RULE 144
The Company agrees that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder, to the extent required from
time to time to enable such Holder to sell Restricted Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (b) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any Holder of Registrable
Securities, the Company will deliver to such Holder a written statement as to
whether it has complied with such information and requirements.
8. MISCELLANEOUS
8.1 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Holders of a majority of the Registrable Securities (assuming the exercise of
all Warrants and the Conversion of the Series A Preferred). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter which relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Registration Statement
and which does not directly or indirectly affect the rights of other Holders may
be given by Holders owning a majority of the shares of the Registrable
Securities being sold by such Holders, provided that the provisions of this
sentence may not be amended, modified, or supplemented except in accordance with
the provisions of the immediately preceding sentence.
8.2 Notices. Any notice or other communication required or permitted
hereunder shall be deemed to be delivered if in writing (or in the form of a
telecopy) addressed as provided below and if either (a) actually delivered or
telecopied to said address or (b) in the case of overnight delivery of a notice,
the next business day after properly posted with postage prepaid:
If to the Company, then to Antex Biologics Inc., 000 Xxxxxxxxxxxx
Xxxxx, Xxxxxxxxxxxx, XX 00000, Attention: President, or such other
address or addresses of which the Holders shall have been given notice.
If to any Holder, to it at its address set forth on the books and
records of the Company.
8.3 Counterparts. This Agreement and any amendments, waivers, consents
or supplements thereto may be executed in two or more counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all
-11-
12
of which taken together shall constitute one and the same instrument. This
Agreement shall become effective with respect to a Holder upon the execution of
a counterpart by such Holder.
8.4 Headings. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
8.5 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Maryland applicable to agreements
made and to be performed entirely within such State by residents of such state,
without regard to the choice of law provisions thereof.
8.6 Consent to Jurisdiction; Waiver of Jury Trial. (a) Any action,
suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby shall be instituted in any federal court of the
District of Maryland or any state court located in Xxxxxxxxxx County, State of
Maryland, and each party agrees not to assert, by way of motion, as a defense or
otherwise, in any such action, suit or proceeding, (1) any claim that it is not
subject personally to the jurisdiction of such court, (2) that the action, suit
or proceeding is brought in an inconvenient forum, (3) that the venue of the
action, suit or proceeding is improper or (4) that this Agreement or the subject
matter hereof may not be enforced in or by such court. The parties irrevocably
submit to the exclusive jurisdiction of such court in any such action, suit or
proceeding. Any and all service of process and any other notice in any such
action, suit or proceeding shall be effective against any party if given
personally or by registered or certified mail, return receipt requested, or by
any other means of mail that requires a signed receipt, postage prepaid, mailed
to such party as herein provided.
(b) EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES TRIAL BY
JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM, WHETHER AT LAW OR EQUITY,
BROUGHT BY EITHER OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
8.7 Severability. The invalidity, illegality or unenforceability in
any jurisdiction of any provision in or obligation under this Agreement shall
not affect or impair the validity, legality and enforceability of the remaining
provisions or obligations under this Agreement or of such provision or
obligation in any other jurisdiction.
8.8 Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein, other than the provisions of any other
documents specifically referred to herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Restricted Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter. Without limitation of the foregoing, the parties agree that the
registration rights contained herein apply only to the Restricted Registrable
Securities
-12-
13
and the Company shall never be obligated to register any of the Warrants or the
Series A Preferred.
8.9 Construction. The signatories hereto acknowledge that each of them
has had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement with its legal counsel and that this
Agreement shall be construed as if jointly drafted by the Company and the
signatories hereto.
8.10 Successors and Assigns. The Company may not sell, assign, transfer
or otherwise convey any of its rights or delegate any of its duties under this
Agreement, except to a corporation that succeeds to substantially all of the
business and assets of the Company and has assumed in writing its obligations
under this Agreement. This Agreement shall be binding upon the Company and each
such successor. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by each Holder and its permitted successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
ANTEX BIOLOGICS INC.
By: /s/ X.X. Xxxxxxxx
----------------------------------------
Name: X.X. Xxxxxxxx
Title: President
[signature pages continue]
-13-
14
THE BIOTECH CONSULTING
GROUP INCORPORATED
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name Xxxxx Xxxxx
Title
XXXXXXX/XXXXXX ASSOCIATES, L.P.
By: Xxxxx Xxxxxx , its general partner
-----------------
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name Xxxxx Xxxxxx
Title General Partner
CHL MEDICAL PARTNERS, LP
By: Xxxxxxxxx Xxxx & Xxxxxx, its general partner
------------------------
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name Xxxxxxx X. Xxxxxxxxx
Title President
PRISM VENTURES LLC
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name Xxxxxx Xxxxxx
Title
HARBOR TRUST
By: /s/ Rabbi Xxxxxxxxx Xxxxx
-----------------------------------
Name Rabbi Xxxxxxxxx Xxxxx
Title Trustee
[signature pages continue]
15
/s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxxx
ANFEL TRADING LIMITED
By: /s/ X. Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
ATU HOLDINGS LLC
By: /s/ Xxxx Xxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx Xxxxx
AUSTOST ANSTALT XXXXXX
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxx
----------------------------------------
Xxxxxx Xxxxx
-2-
16
/s/ Xxxxxxx Xxxxx
----------------------------------------
Xxxxxxx Xxxxx
BALMORE S.A.
By: /s/ Francois Morax
-------------------------------------
Name: Francois Morax
/s/ Xxxxxxx & Xxxxx Xxxxxx
----------------------------------------
Xxxxxxx & Xxxxx Xxxxxx
/s/ Xxx Xxxxx & Xxxxxxx Xxxxxxxxx
----------------------------------------
Xxx Xxxxx & Xxxxxxx Xxxxxxxxx
BLECH FAMILY TRUST
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
BRITANNICA ASSOCIATES LIMITED
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
-3-
17
/s/ Xxxxx Xxxxxxx III
----------------------------------------
Xxxxx Xxxxxxx III
CENTRAL YESHIVA XXXX XXXXXX
By: /s/ Rabbi Xxxxxxxxx Xxxxx
-------------------------------------
Name: Rabbi Xxxxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxxxx Xxxxxxxx
XXXXXXXX GRAPHICS
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
/s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
-4-
18
XXX VENTURES, LLC
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
DARE INVESTMENTS, INC.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
/s/ Xxxxxxxx De
----------------------------------------
Xxxxxxxx De
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
XXXXX ENTERPRISES
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
/s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
-5-
19
/s/ Xxxxxx Xxxxx
----------------------------------------
Xxxxxx Xxxxx
/s/ Xxxxx & Xxxxx Xxxxxxxxx
----------------------------------------
Xxxxx & Xxxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxx & Xxxxx Xxxxxxx
----------------------------------------
Xxxx & Xxxxx Xxxxxxx
FIRST LINCOLN HOLDINGS, INC.
By: /s/ X. Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------------
Xxxx Xxxxx
-6-
20
/s/ Xxxxxxx X. Xxxxxxxxx III
----------------------------------------
Xxxxxxx X. Xxxxxxxxx III
G.I.G. CAPITAL PARTNERS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxx
----------------------------------------
Xxxxxx X. Xxxxx
H.A.A. INC.
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
HAMAAYAN INSTITUTE
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
/s/ Xxxxxxxx Xxxxxx
----------------------------------------
Xxxxxxxx Xxxxxx
-7-
21
/s/ Xxxxx Xxxxx
----------------------------------------
Xxxxx Xxxxx
/s/ Xxx Xxxxx
----------------------------------------
Xxx Xxxxx
XXXXXXX PARTNERS, INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
XXXXXXXX X. XXXXXXXXX 8/21/74 TRUST
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
XXXXXXX X. XXXXXXXXX 4/8/71 TRUST
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-8-
22
OCTOBER 1983 TRUST FBO JESSELSON
GRANDCHILDREN
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
/s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx
LEVAL TRADING, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
/s/ Xxx Xxxxxxx
----------------------------------------
Xxx Xxxxxxx
/s/ Xxxxxx Xxxxxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxxxxx
M & G EQUITIES
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-9-
23
/s/ Xxxxxxxx X. XxxXxxxxx
----------------------------------------
Xxxxxxxx X. XxxXxxxxx
MAGIC CONSULTING CORP.
By: /s/ Xxxxxxxx XxXxxxxxx
-------------------------------------
Name: Xxxxxxxx XxXxxxxxx
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxx X. Xxxxx
----------------------------------------
Xxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
MOMAR CORP.
By:/s/ Xxxxxxxx X Xxxx
-------------------------------------
Name: Xxxxxxxx X Xxxx
-00-
00
XXX PARTNERS
By:/s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
MWDD PARTNERSHIP
By:/s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
/s/ Xxxxxxxxx Xxxxxxx
----------------------------------------
Xxxxxxxxx Xxxxxxx
XXXXXXXX CAPITAL GROUP INC.
By:/s/ H. Xxxxxx Xxxxxxxx Xx.
-------------------------------------
Name: H. Xxxxxx Xxxxxxxx Xx.
/s/ Xxxxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxxxx X. Xxxxxxxx
XXXXXX XXXXXXXX PENSION PLAN
By:/s/ H. Xxxxxx Xxxxxxxx Xx.
-------------------------------------
Name: H. Xxxxxx Xxxxxxxx Xx.
XXXXXXXX X. XXXXXXXX FAMILY
TRUST
By:/s/ H.Xxxxxx Xxxxxxxx Xx.
-------------------------------------
Name: H.Xxxxxx Xxxxxxxx Xx.
-00-
00
/x/ Xxxxxxx X. X'Xxxxxx
----------------------------------------
Xxxxxxx X. X'Xxxxxx
/s/ Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxx
----------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxxxx Xxxxxxx
----------------------------------------
Xxxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxx Prodani
----------------------------------------
Prudential Securities C/F
Xxxxxxx Xxxxx Prodani
/s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx
-12-
26
/s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx
XXX VITAMIN DBA GNC 6510
By:/s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
-13-
27
/s/ Xxxxxxxxxx Xxxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxxxxx Xxxxxxxx Xxxxxxxx
/s/ Xxxx X. Xxxxx
----------------------------------------
Xxxx X. Xxxxx
/s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
STRATA EQUITIES LTD.
By:/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
-14-
28
TALBIYA B. INVESTMENTS LTD
By:/s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
/s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxx Xxxxxxx
/s/ Inesa Veraro
----------------------------------------
Inesa Veraro
/s/ Xxx Xxxxxxx
----------------------------------------
Xxx Xxxxxxx
/s/ Xxxxxx Xxxxx
----------------------------------------
Xxxxxx Xxxxx
/s/ F. Xxxxxxxx Xxxxxx, Xx.
----------------------------------------
F. Xxxxxxxx Xxxxxx, Xx.
-15-
29
/s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxx & Xxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxx & Xxxxx Xxxxxx
/s/ Xxxxxxxx Xxxx
----------------------------------------
Xxxxxxxx Xxxx
/s/ Xxx Xxxxx
----------------------------------------
Xxx Xxxxx
-16-
