Exhhibit 4.B
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FORM OF WARRANT AGREEMENT
between
AVATEX CORPORATION
and
AMERICAN STOCK TRANSFER AND TRUST COMPANY
as Warrant Agent
Warrants
----------------
Dated as of , 1999
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TABLE OF CONTENTS
Page
Article 1 DEFINITIONS.......................................................2
Article 2 ISSUANCE OF WARRANTS..............................................5
2.1 Issuance of Warrants............................................5
2.2 Form of Warrant Certificates....................................5
2.3 Execution of Warrant Certificates...............................5
2.4 Countersignature of Warrant Certificates........................5
Article 3 EXERCISE PERIOD...................................................6
Article 4 EXERCISE OF WARRANTS..............................................6
4.1 Exercise Price..................................................6
4.2 Manner of Exercise..............................................6
4.3 When Exercise Effective.........................................7
4.4 Delivery of Certificates, Etc...................................7
4.5 Fractional Shares...............................................8
Article 5 ADJUSTMENT OF THE AMOUNT OF COMMON STOCK ISSUABLE AND THE
EXERCISE PRICE UPON EXERCISE......................................8
5.1 Adjustment for Change in Capital Stock..........................8
5.2 Distributions...................................................9
5.3 Exercise Price Adjustment.......................................9
5.4 Adjustments for Mergers and Consolidations......................9
5.5 No De Minimis Adjustments; Calculation to Nearest Cent and
One-hundredth of Share.........................................10
5.6 Notice of Adjustment in Exercise Price; Warrant Agent's
Disclaimer.....................................................10
5.7 No Change in Warrant Terms on Adjustment.......................11
5.8 Treasury Shares................................................11
Article 6 RESERVATION OF STOCK.............................................11
6.1 Reservation; Due Authorization, Etc............................11
6.2 Delivery of Prospectus.........................................11
6.3 Compliance with Law............................................11
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Article 7 LOSS OR MUTILATION...............................................12
Article 8 WARRANT REGISTRATION.............................................12
8.1 Registration...................................................12
8.2 Transfer or Exchange...........................................12
8.3 Valid and Enforceable..........................................13
8.4 Endorsement....................................................13
8.5 No Service Charge..............................................13
8.6 Treatment of Holders of Warrant Certificates...................13
8.7 Cancellation...................................................13
Article 9 WARRANT AGENT....................................................13
9.1 Obligations Binding............................................13
9.2 No Liability...................................................13
9.3 Instructions...................................................14
9.4 Agents.........................................................14
9.5 Cooperation....................................................14
9.6 Agent Only.....................................................14
9.7 Right to Counsel...............................................15
9.8 Compensation...................................................15
9.9 Accounting.....................................................15
9.10 No Conflict....................................................15
9.11 Resignation; Termination.......................................15
9.12 Change of Warrant Agent........................................16
9.13 Successor Warrant Agent........................................16
Article 10 REMEDIES, ETC....................................................17
10.1 Remedies.......................................................17
10.2 Warrant Holder Not Deemed a Stockholder........................17
10.3 Right of Action................................................17
Article 11 MISCELLANEOUS....................................................17
11.1 Notices........................................................17
11.2 Governing Law and Consent to Forum.............................18
11.3 Benefits of This Agreement.....................................18
11.4 Agreement of Holders of Warrant Certificates...................19
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11.5 Counterparts...................................................19
11.6 Amendments.....................................................19
11.7 Headings.......................................................19
EXHIBIT
Exhibit A: Form of Warrant Certificate
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WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of _______ __, 1999 (this
"Agreement"), by and between AVATEX CORPORATION, a Delaware corporation (the
"Company"), and AMERICAN STOCK TRANSFER AND TRUST COMPANY, as Warrant Agent
(the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, the Company and Xetava Corporation, a Delaware
corporation and a wholly-owned subsidiary of the Company ("Xetava"), have
entered into an Amended and Restated Agreement and Plan of Merger, dated as of
June __, 1999 (the "Merger Agreement"), pursuant to which Xetava will be merged
with and into the Company (the "Merger"), with the Company being the surviving
corporation in the Merger;
WHEREAS, the Merger has occurred on the date hereof;
WHEREAS, pursuant to the Merger Agreement, each holder of
shares of $5 Cumulative Convertible Preferred Stock of the Company (the
"Convertible Preferred Stock") who has made properly a Convertible Stock
Alternate Consideration Election (as defined in the Merger Agreement) is
entitled to receive, as part of the Convertible Preferred Stock Alternate
Consideration (as defined in the Merger Agreement) to be received in connection
with the Merger for each Convertible Preferred Stock Electing Share (as defined
in the Merger Agreement), warrants to purchase 0.67456 shares of Class A Common
Stock, par value $0.01 per share (the "New Avatex Common Stock"), of the
Company, as the surviving corporation in the Merger;
WHEREAS, pursuant to the Merger Agreement, each holder of
$4.20 Cumulative Exchangeable Series A Preferred Stock of the Company (the
"Series A Preferred Stock", and together with the Convertible Preferred Stock,
the "Old Preferred Stock") who properly has made properly a Series A Preferred
Stock Alternate Consideration Election (as defined in the Merger Agreement) is
entitled to receive, as part of the Series A Preferred Stock Alternate
Consideration (as defined in the Merger Agreement) to be received in connection
with the Merger for each Series A Preferred Stock Electing Share (as defined in
the Merger Agreement), warrants to purchase 0.53567 shares of New Avatex Common
Stock;
WHEREAS, the Company desires to enter into this Agreement to
set forth the terms and conditions of the warrants to be issued in the Merger
as part of the Convertible Preferred Stock Alternate Consideration and the
Series A Preferred Stock Alternate Consideration and the rights of the holders
thereof;
WHEREAS, the Company will issue the warrants to be issued in
the Merger as part of the Convertible Preferred Stock Alternate Consideration
and the Series A Preferred Stock Alternate Consideration by delivery of warrant
certificates evidencing
one or more of such warrants, such warrant certificates and other warrant
certificates issued pursuant to this Agreement being herein referred to as the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing to act, in connection
with the issuance, transfer, exchange, replacement and exercise of the Warrant
Certificates and other matters as provided herein.
NOW, THEREFORE, in consideration of the foregoing premises
and of the mutual agreements set forth herein, the Company and the Warrant
Agent hereby agree as follows:
Article 1
DEFINITIONS
As used herein, the following terms have the following
respective meanings:
"Affiliate" means with respect to any Person, any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person. For purposes of this definition, (a) "control"
when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities (or equivalent equity interests), by contract or
otherwise, and the terms "controlling" or "controlled" have meanings
correlative to the foregoing, and (b) a subsidiary of a Person is an Affiliate
of such Person and of each other subsidiary of that Person.
"Agreement" means this Warrant Agreement, as the same may be
amended or modified from time to time hereafter.
"Alternate Consideration" means the Convertible Preferred
Stock Alternate Consideration and/or the Series A Preferred Stock Alternate
Consideration (each as defined in the Merger Agreement) to be issued, in
certain circumstances, pursuant to the Merger Agreement.
"Business Day" means any day, other than a Saturday or a
Sunday, on which (i) commercial banking institutions in New York City, New
York, and (ii) the principal national securities exchange, market or trading
facility on which the New Avatex Common Stock or Warrants are listed or
admitted for trading, are open for business.
"Commission" means the Securities and Exchange Commission or
any other Federal agency at the time administering the Securities Act or the
Exchange Act, whichever is the relevant statute for the particular purpose.
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"Company" has the meaning specified in the introductory
paragraph hereof.
"Convertible Preferred Stock" has the meaning specified in
the recitals hereof.
"Effective Time" has the meaning specified in the Merger
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, or
any successor Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be amended and in effect at the time. Any
reference herein to a particular section of the Securities Exchange Act of 1934
shall include a reference to the comparable section, if any, of any such
successor Federal statute.
"Exercise Period" has the meaning specified in Article 3
hereof.
"Exercise Price" has the meaning specified in Section 4.1
hereof.
"Fair Value" means with respect to New Avatex Common Stock,
if such security is listed or admitted for trading on a national securities
exchange or other trading facility or market (in any such case, the "Trading
Market"), the average of the closing or last reported sales prices of a share
of New Avatex Common Stock on the primary Trading Market on which the New
Avatex Common Stock is listed or quoted for the 30 Business Days (or such
lesser number of Business Days as such New Avatex Common Stock shall have been
so listed, quoted or traded) next preceding the date of measurement; provided,
however, that if no such sales prices have been quoted during the preceding
30-day period or there is otherwise no established trading market for such
security, then "Fair Value" means the value of such New Avatex Common Stock as
determined reasonably and in good faith by the Board of Directors of the
Company and supported by an opinion from an investment banking firm of
recognized national standing, whose determination shall be conclusive; and
provided further, however, that in the event the current market price of a
share of such New Avatex Common Stock is determined during a period following
the announcement by the Company of (i) a dividend or distribution on the New
Avatex Common Stock payable in shares of New Avatex Common Stock, or (ii) any
subdivision, combination or reclassification of the New Avatex Common Stock,
and prior to the expiration of 30 Business Days after the ex-dividend date for
such dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the "Fair Value"
shall be appropriately adjusted to take into account ex-dividend trading.
Anything herein to the contrary notwithstanding, in case the Company shall
issue any shares of New Avatex Common Stock, rights or options in connection
with the acquisition by the Company of the stock or assets of any other Person
or the merger of any other Person into the Company, the Fair Value of the New
Avatex Common Stock so issued shall be determined as of the date the number of
shares of Common Stock, rights or options was determined (as set forth in a
written agreement between the Company and the other party
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to the transaction) rather than on the date of issuance of such shares of New
Avatex Common Stock, rights or options.
"Merger" has the meaning specified in the recitals hereof.
"Merger Agreement" has the meaning specified in the recitals
hereof.
"New Avatex Common Stock" has the meaning specified in the
recitals hereof.
"Old Preferred Stock" has the meaning specified in the
recitals hereof.
"Original Issue Date" has the meaning specified in Section
2.2 hereof.
"Other Shares" has the meaning specified in Section 5.2
hereof.
"Person" means any individual, partnership, association,
joint venture, corporation, limited liability company, business trust,
unincorporated organization, government or department, agency or subdivision
thereof, or other person or entity.
"Securities Act" means the Securities Act of 1933, or any
successor Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be amended and in effect at the time. Any
reference herein to a particular section of the Securities Act of 1933 shall
include a reference to the comparable section, if any, of any such successor
Federal statute.
"Series A Preferred Stock" has the meaning specified in the
recitals hereof.
"Warrant Agent" has the meaning specified in the introductory
paragraph hereof.
"Warrant Certificates" has the meaning specified in the
recitals hereof.
"Warrants" means, collectively, the warrants issued by the
Company pursuant to this Agreement to purchase up to an aggregate of _________
shares of New Avatex Common Stock at the Exercise Price, subject to adjustment
as provided herein, which warrants are to be issued initially as part of the
Alternate Consideration to be received in connection with the Merger pursuant
to the Merger Agreement in exchange for each Convertible Preferred Stock
Electing Share and Series A Preferred Stock Electing Share.
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ARTICLE 2
ISSUANCE OF WARRANTS
2.1 Issuance of Warrants. Each Warrant Certificate shall evidence one
or more Warrants as specified therein. Each Warrant evidenced thereby shall
represent the right, subject to the provisions contained herein and therein, to
purchase from the Company one share of New Avatex Common Stock.
2.2 Form of Warrant Certificates. Each Warrant Certificate shall be in
registered form substantially in the form attached hereto as Exhibit A and
shall be dated as of the date on which it is countersigned by the Warrant
Agent, which shall be as of the Effective Time (as defined in the Merger
Agreement) of the Merger (the "Original Issue Date") or, in the event of a
division, exchange, substitution or transfer of any of the Warrants, on the
date of such event. The Warrant Certificate may have such further legends and
endorsements stamped, printed, lithographed or engraved thereon as may be
required to comply with any law or with any rule or regulation pursuant thereto
or with any rule or regulation of any securities exchange, market or trading
facility on which the Warrants may be listed or admitted for trading.
2.3 Execution of Warrant Certificates. Warrant Certificates shall be
executed on behalf of the Company by its Chairman of the Board, Chief Executive
Officer, President, any Senior Vice President, any Vice President, Treasurer or
Secretary, either manually or by facsimile signature printed thereon. In case
any such officer of the Company whose signature shall have been placed upon any
Warrant Certificate shall cease to be such officer of the Company before
countersignature by the Warrant Agent or issuance and delivery thereof, such
Warrant Certificate nevertheless may be countersigned by the Warrant Agent and
issued and delivered with the same force and effect as though such person had
not ceased to be such officer of the Company.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean any Person in whose name at the time any Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent for that
purpose.
2.4 Countersignature of Warrant Certificates. Warrant Certificates
shall be manually countersigned by an authorized signatory of the Warrant Agent
and shall not be valid for any purpose unless so countersigned. Such manual
countersignature shall constitute conclusive evidence of such authorization. No
Warrant Certificate shall be valid for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. The Warrant Agent
is hereby authorized to countersign, in accordance with the provisions of this
Section 2.4, and deliver any new Warrant Certificates, as directed by the
Company as and when required pursuant to the provisions of Articles 7 and 8.
Each Warrant Certificate shall, when manually countersigned by an authorized
signatory of the Warrant Agent, entitle the registered holder thereof to
exercise the rights as the holder of the number of Warrants set forth thereon,
subject to the provisions of this Agreement.
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ARTICLE 3
EXERCISE PERIOD
Each Warrant shall entitle the holder thereof to purchase
from the Company one (1) share of Common Stock (subject to the adjustments
provided herein), at any time during the period that commences at 9:00 a.m.,
New York City time, on ____________, 1999 [i.e., 3 months after the Closing
Date under the Merger Agreement] and terminates at 5:00 p.m., New York City
time, on _________ [i.e., the day that is the 5 year - 3 month anniversary of
the Closing Date under the Merger Agreement)] (the "Exercise Period"). The
period of time between the date hereof and __________, 1999 [i.e., 3 months
after the Closing Date] shall hereinafter be referred to as the "Non-Exercise
Period"). Any Warrant not exercised prior to the expiration of the Exercise
Period shall become void, and all rights of the holder of the Warrant
Certificate evidencing such Warrant under the Warrant Certificate or this
Agreement shall cease.
ARTICLE 4
EXERCISE OF WARRANTS
4.1 Exercise Price. The exercise price of each Warrant is $2.25 per
share of New Avatex Common Stock (the "Exercise Price"). The Exercise Price is
subject to adjustment pursuant to Article 5 hereof.
4.2 Manner of Exercise. (a) During the Exercise Period (except as
otherwise set forth in Section 5.4 hereof), all or any whole number of Warrants
represented by a Warrant Certificate may be exercised by the registered holder
thereof during normal business hours on any Business Day, by surrendering such
Warrant Certificate, with the subscription form set forth therein duly
completed and executed by such holder, by hand, by overnight courier or by mail
to the Warrant Agent at its office addressed to American Stock Transfer and
Trust Company, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Trust Department. Such Warrant Certificate shall be accompanied by payment in
full in respect of each Warrant that is exercised, which shall be made by
certified or official bank or bank cashier's check payable to the order of the
Company or by wire transfer of immediately available funds to an account
designated by the Warrant Agent for the benefit of the Company, except as
otherwise provided herein. Such payment shall be in an amount equal to the
product of the number of shares of New Avatex Common Stock designated in such
subscription form multiplied by the Exercise Price for the Warrants being
exercised (plus such additional consideration as may be provided herein). Upon
such surrender and payment prior to the expiration of the Exercise Period, such
holder shall thereupon be entitled to receive the number of duly authorized,
validly issued, registered, fully paid and nonassessable shares of New Avatex
Common Stock determined as provided in Articles 2 and 3, and as and if adjusted
pursuant to Article 5.
(b) No registered holder may use its ability to acquire
shares of New Avatex Common Stock upon exercise of the Warrants if such
exercise would result in the total number of shares of New Avatex Common Stock
deemed beneficially owned by
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such holder (other than by virtue of the ownership of the Warrants or ownership
of other securities that have limitations on a holder's right to convert or
exercise similar to those limitations set forth herein), together with all
shares of New Avatex Common Stock deemed beneficially owned by such holder's
Affiliates that would be aggregated for purposes of determining a group under
Section 13(d) of the Exchange Act, exceeding 9.9% of the total issued and
outstanding shares of New Avatex Common Stock (the "Restricted Ownership
Percentage"); provided that (w) each holder shall have the right, at any time
and from time to time, to reduce its Restricted Ownership Percentage
immediately upon written notice to the Company and the Warrant Agent, (x) each
holder shall have the right, at any time and from time to time, to increase its
Restricted Ownership Percentage and otherwise waive in whole or in part the
restrictions of this Section 4.2(b) upon 61 days' prior written notice to the
Company and the Warrant Agent, (y) each holder can make subsequent adjustments
pursuant to (w) or (x) any number of times from time to time (any such
adjustment being effective immediately if it results in a decrease in the
percentage, or upon 61 days' prior written notice if it results in an increase
in the percentage) and (z) each holder may eliminate or reinstate this
limitation at any time and from time to time (any such elimination being
effective upon 61 days' prior notice and any such reinstatement being effective
immediately).
4.3 When Exercise Effective. Each exercise of any Warrant pursuant to
Section 4.2 shall be deemed to have been effected immediately prior to the
close of business (i.e., 5:00 p.m., New York City time) on the Business Day on
which the Warrant Certificate representing such Warrant, duly executed, with
accompanying payment shall have been delivered as provided in Section 4.2, and
at such time the Person or Persons in whose name or names the certificate or
certificates for New Avatex Common Stock shall be issuable upon such exercise
as provided in Section 4.4 shall be deemed to have become the holder or holders
of record thereof.
4.4 Delivery of Certificates, Etc. (a) As promptly as practicable
after the exercise of any Warrant, and in any event within three (3) Business
Days thereafter, the Company at its expense (other than as to payment of
transfer taxes which will be paid by the holder) will cause to be issued and
delivered to such holder, or as such holder may otherwise direct in writing
(subject to Article 7),
(i) a certificate or certificates for the number of shares of
New Avatex Common Stock to which such holder is entitled, and
(ii) if less than all the Warrants represented by a Warrant
Certificate are exercised, a new Warrant Certificate or Certificates
of the same tenor and for the aggregate number of Warrants that were
not exercised, executed and countersigned in accordance with Sections
2.3 and 2.4.
(b) The Warrant Agent shall countersign any new Warrant
Certificate, register it in such name or names as may be directed in writing by
such holder, and shall deliver it to the Person entitled to receive the same in
accordance with this Section 4.4.
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The Company, whenever required by the Warrant Agent, will supply the Warrant
Agent with Warrant Certificates executed on behalf of the Company for such
purpose.
(c) The Warrant Agent shall, from time to time, as promptly
as practicable, advise the Treasurer of the Company or his or her designee of
(i) the number of Warrants exercised, (ii) the instructions of each holder of
the Warrant Certificates evidencing such Warrants with respect to delivery of
the New Avatex Common Stock to which such holder is entitled upon such
exercise, (iii) delivery of Warrant Certificates evidencing the balance, if
any, of the Warrants remaining after such exercise, and (iv) such other
information as the Company shall reasonably require.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the New Avatex Common Stock to a Person
other than a registered holder; and in the event that any such transfer is
involved, the Company shall not be required to issue or deliver any Warrant
Certificate or share of New Avatex Common Stock until such tax or other charge
shall have been paid or it has been established to the Company's reasonable
satisfaction that no such tax or other charge is due.
4.5 Fractional Shares. No fractional shares of New Avatex Common Stock
shall be issued upon the exercise of any Warrant. If more than one Warrant
Certificate shall be delivered for exercise at one time by the same holder, the
number of full shares or securities that shall be issuable upon exercise shall
be computed on the basis of the aggregate number of Warrants exercised. As to
any fraction of a share of New Avatex Common Stock, the Company shall pay by
company check an amount equal to such fraction multiplied by the closing sales
price of New Avatex Common Stock on the principal securities exchange, market
or trading facility on which the New Avatex Common Stock is listed or admitted
for trading (or if not so listed or admitted, by another equivalent means
reasonably determined in good faith by the Company) on the Business Day next
preceding the date such exercise becomes effective under Section 4.4 hereof.
ARTICLE 5
ADJUSTMENT OF THE AMOUNT OF COMMON STOCK ISSUABLE AND
THE EXERCISE PRICE UPON EXERCISE
5.1 Adjustment for Change in Capital Stock. If the Company shall (i)
declare or pay a dividend on its outstanding New Avatex Common Stock in shares
of New Avatex Common Stock or make a distribution to holders of its New Avatex
Common Stock in shares of New Avatex Common Stock, (ii) subdivide its
outstanding shares of New Avatex Common Stock into a greater number of shares
of New Avatex Common Stock, (iii) combine its outstanding shares of New Avatex
Common Stock into a smaller number of shares of New Avatex Common Stock, or
(iv) issue by reclassification of its shares of New Avatex Common Stock other
securities of the Company, then the Exercise Price in effect immediately prior
thereto shall be adjusted so that the holder of any Warrants thereafter
exercised shall be entitled to receive the number and kind of shares of
8
New Avatex Common Stock or other securities that the holder would have owned or
been entitled to receive after the happening of any of the events described
above had such Warrants been exercised immediately prior to the happening of
such event or any record date with respect thereto. An adjustment made pursuant
to this Section 5.1 shall become effective on the date of the dividend payment,
subdivision, combination or issuance retroactive to the record date with
respect thereto, if any, for such event. Such adjustment shall be made
successively.
5.2 Distributions. If, after the date hereof, the Company shall
distribute to all holders of its shares of New Avatex Common Stock, evidences
of its indebtedness, shares of another class of capital stock ("Other Shares")
or assets (excluding cash distributions made as a dividend payable out of
earnings or out of surplus legally available for dividends under the laws of
the jurisdiction of incorporation of the Company) or rights to subscribe to
shares of New Avatex Common Stock, then in each such case, unless the Company
elects to reserve such indebtedness, assets, rights or shares for distribution
to each holder of a Warrant upon the exercise of the Warrants so that such
holder will receive upon such exercise, in addition to the shares of New Avatex
Common Stock to which such holder is entitled, the amount and kind of such
indebtedness, assets, rights or shares which such holder would have received if
such holder had, immediately prior to the record date for the distribution of
such indebtedness, assets, rights or shares, exercised the Warrants and
received New Avatex Common Stock, the Exercise Price in effect immediately
prior to such distribution shall be decreased to an amount determined by
multiplying such Exercise Price by a fraction, the numerator of which is the
Fair Value of a share of the New Avatex Common Stock at the date of such
distribution less the fair value of the assets, Other Shares or evidences of
indebtedness, as the case may be, so distributed or of such subscription rights
(as determined in good faith by the Board of Directors of the Company and
supported by an opinion from an investment banking firm of recognized national
standing, whose determination shall be conclusive, and described in a statement
filed with the Warrant Agent) and the denominator of which is the Fair Value of
a share of New Avatex Common Stock at such date. Such adjustment shall be made
whenever any such distribution is made, and shall become effective
retroactively on the date immediately after the record date for the
determination of stockholders entitled to receive such distribution.
5.3 Exercise Price Adjustment. Except in the case of increases of
shares covered by Section 5.1 (as to which the adjustment provisions of such
Section shall apply), whenever the number of shares of New Avatex Common Stock
into which a Warrant is exercisable is adjusted as provided in this Article 5,
then the Exercise Price payable upon exercise of the Warrant shall
simultaneously be adjusted by multiplying such Exercise Price immediately prior
to such adjustment by a fraction, the numerator of which shall be the number of
shares of New Avatex Common Stock into which such Warrant was exercisable
immediately prior to such adjustment, and the denominator of which shall be the
number of shares of New Avatex Common Stock into which such Warrant was
exercisable immediately thereafter.
9
5.4 Adjustments for Mergers and Consolidations. In case the Company, after
the date hereof, shall merge or consolidate with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets to, another Person, then, in the case of any such
transaction, proper provision shall be made so that, upon the basis and terms
and in the manner provided in this Warrant Agreement, the holders of the
Warrants, upon the exercise thereof at any time after the consummation of such
transaction (subject to the Exercise Period, except as provided in the proviso
to this Section 5.4 below), shall be entitled to receive (at the aggregate
Exercise Price in effect at the time of the transaction for all New Avatex
Common Stock issuable upon such exercise immediately prior to such
consummation), in lieu of the New Avatex Common Stock issuable upon such
exercise prior to such consummation, the greatest amount of securities, cash or
other property to which such holder would have been entitled as a holder of New
Avatex Common Stock upon such consummation if such holder had exercised the
rights represented by the Warrants held by such holder immediately prior
thereto, subject to adjustments (subsequent to such consummation) as nearly
equivalent as possible to the adjustments provided for in Sections 5.1 and 5.2
hereof; provided, however, that, if any such transaction described in this
Section 5.4 occurs, or the Company sells, transfers or disposes of at least 80%
of its capital stock to another Person, during the Non-Exercise Period,
notwithstanding anything to the contrary contained herein, the Warrants shall
be deemed exercisable during the Non-Exercise Period for the purposes of this
Section 5.4 and the holders shall be entitled to receive the securities, cash
or property referred to in this Section 5.4, or in such sale of capital stock
of the Corporation, to the extent they comply with the other provisions of this
Section 5.4.
5.5 No De Minimis Adjustments; Calculation to Nearest Cent and
One-hundredth of Share. No adjustment in the Exercise Price shall be required
under this Article 5 unless such adjustment would require an increase or
decrease of at least 1% of such price. All calculations under this Article 5
shall be made to the nearest cent or to the nearest one-hundredth of a share,
as the case may be.
5.6 Notice of Adjustment in Exercise Price; Warrant Agent's
Disclaimer. (a) Whenever the Exercise Price and securities issuable shall be
adjusted as provided in this Article 5, the Company shall forthwith file with
the Warrant Agent a statement, signed by the Chairman of the Board, Chief
Executive Officer, President, any Senior Vice President, any Vice President or
the Treasurer of the Company, stating in detail the facts requiring such
adjustment, the Exercise Price that will be effective after such adjustment and
the impact of such adjustment on the number and kind of securities issuable
upon exercise of the Warrants. The Company shall also cause the Warrant Agent
to mail (first class, postage prepaid) a notice setting forth any such
adjustments to each registered holder of Warrants at its last address appearing
on the Warrant register.
(b) The Warrant Agent shall have no duty with respect to any statement
filed with it except to keep the same on file and available for inspection by
registered holders of Warrants during reasonable business hours. The Warrant
Agent shall not at any time be under any duty or responsibility to any holder
of a Warrant to determine
10
whether any facts exist which may require any adjustment to the Exercise Price
or securities issuable, or with respect to the nature or extent of any
adjustment of the Exercise Price or securities issuable when made or with
respect to the method employed in making such adjustment. The Warrant Agent
shall not be responsible for the Company's failure to comply with any provision
of this Article 5.
5.7 No Change in Warrant Terms on Adjustment. Irrespective of any
adjustments in the Exercise Price or the number of shares of New Avatex Common
Stock issuable upon exercise, Warrants theretofore or thereafter issued may
continue to express the same prices and number of shares as are stated in the
similar Warrants issuable initially, or at some subsequent time, pursuant to
this Agreement, and the Exercise Price and such number of shares issuable upon
exercise specified thereon shall be deemed to have been so adjusted.
5.8 Treasury Shares. Shares of New Avatex Common Stock at any time
owned by the Company shall not be deemed to be outstanding for the purposes of
any computation under this Article 5.
ARTICLE 6
RESERVATION OF STOCK
6.1 Reservation; Due Authorization, Etc. The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued New Avatex Common Stock, solely for issuance and
delivery upon exercise of Warrants, the full number of shares of New Avatex
Common Stock from time to time issuable upon the exercise of all Warrants and
any other outstanding warrants, options or similar rights, from time to time
outstanding. All shares of New Avatex Common Stock shall be duly authorized
and, when issued upon such exercise, shall be duly and validly issued, and (in
the case of shares) fully paid and nonassessable, and free from all taxes,
liens, charges, security interests, encumbrances and other restrictions created
by or through the Company.
6.2 Delivery of Prospectus. The Company will furnish to the Warrant
Agent sufficient copies of a Prospectus relating to the New Avatex Common Stock
deliverable upon exercise of Warrants (the "Prospectus"), and the Warrant Agent
agrees that upon the exercise of any Warrant, the Warrant Agent will deliver a
Prospectus to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with, the delivery of the New Avatex Common Stock
issued upon such exercise.
6.3 Compliance with Law. The Company will from time to time take, at
its cost, all action which may be necessary to obtain and keep effective any
and all permits, consents and approvals of governmental agencies and
authorities and securities acts and "blue sky" filings under United States
Federal and State laws (including, without limitation, a registration statement
in respect of the Warrants and New Avatex Common Stock under the Securities
Act), which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Certificates, the exercise of the
11
Warrants, the issuance, sale, transfer, and delivery of the New Avatex Common
Stock issued upon exercise of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
ARTICLE 7
LOSS OR MUTILATION
Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of an indemnity bond
reasonably satisfactory to them in form or amount, and (in the case of
mutilation) upon surrender and cancellation thereof, then, in the absence of
notice to the Company or the Warrant Agent that the Warrants represented
thereby have been acquired by a bona fide purchaser, the Company shall execute
and deliver to the Warrant Agent and, upon the Company's request, an authorized
signatory of the Warrant Agent shall manually countersign and deliver, to the
registered holder of the lost, stolen, destroyed or mutilated Warrant
Certificate, in exchange for or in lieu thereof, a new Warrant Certificate of
the same tenor and for a like aggregate number of Warrants. Upon the issuance
of any new Warrant Certificate under this Article 7, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
reasonable fees and expenses of the Warrant Agent) in connection therewith.
Every new Warrant Certificate executed and delivered pursuant to this Article 7
in lieu of any lost, stolen or destroyed Warrant Certificate shall be entitled
to the same benefits of this Agreement equally and proportionately with any and
all other Warrant Certificates, whether or not the allegedly lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone. The
provisions of this Article 7 are exclusive and shall preclude (to the extent
lawful) all other rights or remedies with respect to the replacement of
mutilated, lost, stolen or destroyed Warrant Certificates.
ARTICLE 8
WARRANT REGISTRATION
8.1 Registration. The Warrant Certificates shall be issued in
registered form only and shall be registered in the names of the record holders
of the Warrant Certificates to whom they are to be delivered. The Warrant Agent
shall maintain or cause to be maintained a register in which, subject to such
reasonable regulations as it may prescribe, the Warrant Agent shall provide for
the registration of Warrants and of transfers or exchanges of Warrant
Certificates as provided in this Agreement. Such register shall be maintained
at the office of the Warrant Agent located at the respective address therefor
as provided in Section 11.1. Such register shall be open for inspection upon
notice at all reasonable times by the Warrant Agent and each holder of a
Warrant.
8.2 Transfer or Exchange. At the option of the holder, Warrant
Certificates may be exchanged or transferred for other Warrant Certificates for
a like aggregate number of Warrants, upon surrender of the Warrant Certificates
to be exchanged at the office of the Warrant Agent maintained for such purpose
at the respective address
12
therefor as provided in Section 11.1, and upon payment of the charges herein
provided. Whenever any Warrant Certificates are so surrendered for exchange or
transfer, the Company shall execute, and an authorized signatory of the Warrant
Agent shall manually countersign and deliver, the Warrant Certificates that the
holder making the exchange is entitled to receive.
8.3 Valid and Enforceable. All Warrant Certificates issued upon any
registration of transfer or exchange of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to
the same benefits under this Agreement, as the Warrant Certificates surrendered
for such registration of transfer or exchange.
8.4 Endorsement. Every Warrant Certificate surrendered for
registration of transfer or exchange shall (if so required by the Company or
the Warrant Agent) be duly endorsed, or be accompanied by an instrument of
transfer in form reasonably satisfactory to the Company and the Warrant Agent
and duly executed by the registered holder thereof or such holder's officer or
representative duly authorized in writing.
8.5 No Service Charge. No service charge shall be made for any
registration of transfer or exchange of Warrant Certificates.
8.6 Treatment of Holders of Warrant Certificates. The Company and the
Warrant Agent may treat the registered holder of a Warrant Certificate as the
absolute owner thereof for any purpose and as the person entitled to exercise
the rights represented by the Warrants evidenced thereby, any notice to the
contrary notwithstanding.
8.7 Cancellation. Any Warrant Certificate surrendered for registration
of transfer, exchange or the exercise of the Warrants represented thereby
shall, if surrendered to the Company, be delivered to the Warrant Agent, and
all Warrant Certificates surrendered or so delivered to the Warrant Agent shall
be promptly cancelled by the Warrant Agent. Any such Warrant Certificate shall
not be reissued and, except as provided in this Article 8 in case of an
exchange or transfer, in Article 7 in case of a mutilated Warrant Certificate
and in Article 3 in case of the exercise of less than all the Warrants
represented thereby, no Warrant Certificate shall be issued hereunder in lieu
thereof. The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of such cancelled Warrant Certificates in a manner reasonably
satisfactory to the Company.
ARTICLE 9
WARRANT AGENT
9.1 Obligations Binding. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the terms and conditions set forth
in this Article 9. The Company, and the holders of Warrants by their acceptance
thereof, shall be bound by all of such terms and conditions.
13
9.2 No Liability. The Warrant Agent shall not by counter-signing
Warrant Certificates or by any other act hereunder be accountable with respect
to or be deemed to make any representations as to the validity or authorization
of the Warrants or the Warrant Certificates (except as to its countersignature
thereon), as to the validity, authorization or value (or kind or amount) of any
New Avatex Common Stock or other property delivered or deliverable upon
exercise of any Warrant, or as to the purchase price of such New Avatex Common
Stock, or other property. The Warrant Agent shall not (i) be liable for any
recital or statement of fact contained herein or in the Warrant Certificates or
for any action taken, suffered or omitted by the Warrant Agent in good faith in
the belief that any Warrant Certificate or any other document or any signature
is genuine or properly authorized, (ii) be responsible for determining whether
any facts exist that may require any adjustment of the purchase price and the
number of shares of New Avatex Common Stock purchasable upon exercise of
Warrants, or with respect to the nature or extent of any such adjustments when
made, or with respect to the method of adjustment employed, (iii) be
responsible for any failure on the part of the Company to issue, transfer or
deliver any New Avatex Common Stock or property upon the surrender of any
Warrant for the purpose of exercise or to comply with any other of the
Company's covenants and obligations contained in this Agreement or in the
Warrant Certificates or (iv) be liable for any act or omission in connection
with this Agreement except for its own bad faith, negligence or willful
misconduct.
9.3 Instructions. The Warrant Agent is hereby authorized to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, Chief Executive Officer, President, any Senior Vice
President, any Vice President, Treasurer or any Assistant Treasurer of the
Company and to apply to any such officer for advice or instructions. The
Warrant Agent shall not be liable for any action taken, suffered or omitted by
it in good faith in accordance with the instructions of any such officer.
9.4 Agents. The Warrant Agent may execute and exercise any of the
rights and powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys, agents or employees, provided reasonable
care has been exercised in the selection and in the continued employment of any
such attorney, agent or employee. The Warrant Agent shall not be under any
obligation or duty to institute, appear in, or defend any action, suit or legal
proceeding in respect hereof, but this provision shall not affect the power of
the Warrant Agent to take such action as the Warrant Agent may consider proper.
The Warrant Agent shall promptly notify the Company in writing of any claim
made or action, suit or proceeding instituted against the Warrant Agent arising
out of or in connection with this Agreement.
9.5 Cooperation. The Company will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further acts, instruments and assurances as may reasonably be required by the
Warrant Agent in order to enable the Warrant Agent to carry out or perform its
duties under this Agreement.
14
9.6 Agent Only. The Warrant Agent shall act solely as agent. The
Warrant Agent shall not be liable except for the performance of such duties as
are specifically set forth herein, and no implied covenants or obligations
shall be read into this Agreement against the Warrant Agent, whose duties and
obligations shall be determined solely by the express provisions hereof.
9.7 Right to Counsel. The Warrant Agent may at any time consult with
legal counsel satisfactory to it (who may be legal counsel for the Company,
but, in any case, shall be reasonably selected) and the Warrant Agent shall
incur no liability or responsibility to the Company or to any Warrant holder
for any action taken, suffered or omitted by the Warrant Agent in good faith in
accordance with the opinion or advice of such counsel.
9.8 Compensation. The Company agrees to pay the Warrant Agent
reasonable compensation for its services hereunder to be agreed upon and to
reimburse the Warrant Agent for its reasonable expenses hereunder; and further
agrees to indemnify the Warrant Agent and hold it harmless against any and all
liabilities, including, but not limited to, judgments, costs and reasonable
counsel fees, for anything done, suffered or omitted by the Warrant Agent in
the execution of its duties and powers hereunder, except for any such
liabilities that arise as a result of the Warrant Agent's bad faith, negligence
or willful misconduct.
9.9 Accounting. The Warrant Agent shall account promptly to the
Company with respect to Warrants exercised and concurrently pay to the Company
all moneys received by the Warrant Agent on behalf of the Company on the
purchase of shares of New Avatex Common Stock through the exercise of Warrants.
The Warrant Agent shall advise the Company by telephone at the end of each day
on which a payment for the exercise of Warrants is received of the amount so
deposited to such account. The Warrant Agent shall promptly confirm such
telephone advice to the Company in writing.
9.10 No Conflict. The Warrant Agent and any stockholder, director,
officer 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 the Company or otherwise act as fully and freely as though it
were not 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.
9.11 Resignation; Termination. The Warrant Agent may resign its duties
and be discharged from all further duties and liabilities hereunder (except
liabilities arising as a result of the Warrant Agent's bad faith, negligence or
willful misconduct), after giving thirty (30) days' prior written notice to the
Company. The Company may remove the Warrant Agent upon thirty (30) days'
written notice, and the Warrant Agent shall thereupon in like manner be
discharged from all further duties and liabilities hereunder, except as to
liabilities arising as a result of the Warrant Agent's bad faith, negligence or
willful misconduct. The Company shall cause to be mailed promptly (by first
class mail,
15
postage prepaid) to each registered holder of a Warrant at such holder's last
address as shown on the register of the Company, at the Company's expense, a
copy of such notice of resignation or notice of removal, as the case may be.
Upon such resignation or removal the Company shall promptly appoint in writing
a new warrant agent. Pending appointment of a successor to the Warrant Agent,
the duties of the Warrant Agent shall be carried out by the Company. Any
successor warrant agent shall be a corporation, incorporated under the laws of
the United States or of any state thereof and authorized under such laws to
exercise corporate trust powers, be subject to supervision and examination by
Federal or state authority, and have a combined capital and surplus of not less
than $100,000,000 as set forth in its most recent published annual report of
condition. After acceptance in writing of such appointment by the new warrant
agent it shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as the Warrant
Agent, without any further assurance, conveyance, act or deed; but if for any
reason it shall be necessary or expedient to execute and deliver any further
assurance, conveyance, act or deed, the same shall be done at the expense of
the Company and shall be legally and validly executed and delivered by the
resigning or removed Warrant Agent. Not later than the effective date of any
such appointment the Company shall file notice thereof with the resigning or
removed Warrant Agent and shall forthwith cause a copy of such notice to be
mailed (by first class, postage prepaid) to each registered holder of a Warrant
at such holder's last address as shown on the register of the Company. Failure
to give any notice provided for in this Section 9.11, or any defect in any such
notice, shall not affect the legality or validity of the resignation of the
Warrant Agent or the appointment of a new warrant agent, as the case may be.
9.12 Change of Warrant Agent. If at any time the name of the Warrant
Agent shall be changed and at such time any of the Warrant Certificates shall
have been countersigned but not delivered, the Warrant Agent may adopt the
countersignature under its prior name and deliver Warrant Certificates so
countersigned; and if at that time any of the Warrant Certificates shall not
have been countersigned, the Warrant Agent may countersign such Warrant
Certificates either in its prior name or in its changed name; and in all such
cases such Warrant Certificates shall have the full force and effect provided
in the Warrant Certificates and this Agreement.
9.13 Successor Warrant Agent. Any corporation or entity into which the
Warrant Agent or any new warrant agent may be merged or any corporation or
entity resulting from any consolidation to which the Warrant Agent or any new
warrant agent shall be a party or any corporation or entity succeeding to all
or substantially all the agency business of the Warrant Agent or any new
warrant agent shall be a successor Warrant Agent under this Agreement without
any further act, provided that such corporation would be eligible for
appointment as a new warrant agent under the provisions of Section 9.11 of this
Article 9. The Company shall promptly cause notice of the succession as Warrant
Agent of any such successor Warrant Agent to be mailed (by first class mail,
postage prepaid) to each registered holder of a Warrant at its last address as
shown on the register of the Company.
16
ARTICLE 10
REMEDIES, ETC.
10.1 Remedies. The Company stipulates that the remedies at law of each
holder of a Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant Agreement are not and will not be adequate and that, to the fullest
extent permitted by law, such terms may be specifically enforced by a decree
for the specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or otherwise.
10.2 Warrant Holder Not Deemed a Stockholder. Prior to the exercise of
the Warrants represented thereby, no holder of a Warrant Certificate, as such,
shall be entitled to any rights of a stockholder of the Company, including, but
not limited to, the right to vote, to receive dividends or other distributions,
to exercise any preemptive right or to receive any notice of meetings of
stockholders, and no such holder shall be entitled to receive notice of any
proceedings of the Company except as provided in this Agreement. Nothing
contained in this Agreement shall be construed as imposing any liabilities on
such holder to purchase any securities or as a stockholder of the Company,
whether such liabilities are asserted by the Company or by creditors or
stockholders of the Company or otherwise.
10.3 Right of Action. All rights of action in respect of this
Agreement are vested in the registered holders of the Warrants. Any registered
holder of any Warrant, without the consent of the Warrant Agent or the
registered holder of any other Warrant, may in such holder's own behalf and for
such holder's own benefit enforce, and may institute and maintain any suit,
action or proceeding against the Company suitable to enforce, or otherwise in
respect of, such holder's right to exercise such holder's Warrants in the
manner provided in the Warrant Certificate representing such Warrants and the
Company's obligations under this Agreement and the Warrants.
ARTICLE 11
MISCELLANEOUS
11.1 Notices. Any notice, demand or delivery authorized by this
Agreement shall be sufficiently given or made if sent by first class mail,
postage prepaid, delivered by hand or delivered by overnight courier, in each
case addressed to any registered holder of a Warrant at such holder's last
known address appearing on the register of the Company or the Warrant Agent,
and to the Company or the Warrant Agent as follows, or delivered by facsimile
(in the case of notices to any registered holder, to the last known facsimile
number of such holder appearing on the register of the Company or the Warrant
Agent):
17
If to the Company:
Avatex Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Warrant Agent:
American Stock Transfer and Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as shall have been furnished in writing, in accordance
with this Section 11.1, to the party giving or making such notice, demand or
delivery.
11.2 Governing Law and Consent to Forum. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. THE COMPANY AND THE WARRANT
AGENT EACH HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE CITY
OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AND EACH IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PERSON TO SERVE
PROCESS IN ANY MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
11.3 Benefits of This Agreement. This Agreement shall be binding upon
and inure to the benefit of the Company and the Warrant Agent and their
respective successors and assigns, and the registered and beneficial holders
from time to time of the Warrants and of holders of the Common Stock, where
applicable. Nothing in this Agreement is intended or shall be construed to
confer upon any other Person, any right, remedy or claim under or by reason of
this Agreement or any part hereof.
18
11.4 Agreement of Holders of Warrant Certificates. Every holder of a
Warrant Certificate, by accepting the same, covenants and agrees with the
Company, the Warrant Agent and with every other holder of a Warrant Certificate
that the Warrant Certificates are transferable on the registry books of the
Warrant Agent only upon the terms and conditions set forth in this Agreement,
and the Company and the Warrant Agent may deem and treat the person in whose
name the Warrant Certificate is registered as the absolute owner for all
purposes whatsoever and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
11.5 Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute but one and
the same instrument.
11.6 Amendments. This Agreement may be amended by the parties hereto,
without the consent of the holder of any Warrant Certificate, for the purpose
of curing any manifest error, or of curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company and
the Warrant Agent may deem necessary or desirable; provided, that such action
shall not adversely affect the interests of the holders of the Warrant
Certificates. Any other amendment shall require the consent of the holders of
Warrants representing a majority in number of the then outstanding Warrants.
Any such modification or amendment will be conclusive and
binding on all present and future holders of Warrant Certificates whether or
not they have consented to such modification or amendment or waiver and whether
or not notation of such modification or amendment is made upon such Warrant
Certificates. Any instrument given by or on behalf of any holder of a Warrant
Certificate in connection with any consent to any modification or amendment
will be conclusive and binding on all subsequent holders of such Warrant
Certificate.
11.7 Headings. The contents hereto and the descriptive headings of the
several sections hereof are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
[Signatures on following page]
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
AVATEX CORPORATION
By:
--------------------------
Name:
Title:
AMERICAN STOCK TRANSFER AND
TRUST COMPANY,
as Warrant Agent
By:
--------------------------
Name:
Title:
20
EXHIBIT A
FORM OF WARRANT CERTIFICATE
(see attached)
[FORM OF FACE OF WARRANT CERTIFICATE]
CUSIP No.
-------------
Warrant No. Number of Warrant(s):
----------- -------
Exercisable During the Period that Commences at 9:00 a.m., New York City time,
on ______ __, 1999 and Terminates at 5:00 p.m., New York City time, on
_____________, 2004 except as provided below
Void after 5:00 p.m., New York City time, on _____________, 2004.
WARRANT TO PURCHASE
COMMON STOCK, PAR VALUE $.01 PER SHARE,
OF
AVATEX CORPORATION
This Warrant Certificate certifies that __________ or
registered assigns, is the registered owner of the number of warrants set forth
above (the "Warrants"), each of which represents the right, at any time after
9:00 a.m., New York City time, on ______ __, 1999, and before 5:00 p.m., New
York City time, on _________, 2004, to purchase from Avatex Corporation, a
Delaware corporation (the "Company"), at the price per share of $2.25 (the
"Exercise Price"), one share of Common Stock, $0.01 par value, of the Company
as such stock was constituted as of ____________ __, 1999, subject to
adjustment as provided in the Warrant Agreement hereinafter referred to, upon
surrender hereof, with the subscription form on the reverse hereof duly
executed, by hand or by mail to American Stock Transfer and Trust Company, ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department,
or to any successor thereto, as the warrant agent under the Warrant Agreement,
at the office of such successor maintained for such purpose (any such warrant
agent being herein called the "Warrant Agent"), and simultaneous payment in
full (by certified or official bank or bank cashier's check payable to the
order of the Company, or by wire transfer of immediately available funds to an
account designated by the Warrant Agent for the benefit of the Company) of the
Exercise Price in respect of each Warrant represented by this Warrant
Certificate that is so exercised, all subject to the terms and conditions
hereof and of the Warrant Agreement.
Upon any partial exercise of the Warrants represented by this
Warrant Certificate, there shall be issued to the holder hereof a new Warrant
Certificate representing the Warrants that were not exercised.
No fractional shares may be issued upon the exercise of
rights to purchase hereunder, and as to any fraction of a share otherwise
issuable, the Company will make a cash payment in lieu of such issuance, as
provided in the Warrant Agreement.
A-1
This Warrant Certificate is issued under and in accordance
with a Warrant Agreement, dated as of _______ __, 1999 (the "Warrant
Agreement"), between the Company and American Stock Transfer and Trust Company,
as Warrant Agent, and is subject to the terms and provisions contained therein.
The Warrant Agreement is hereby incorporated by reference in and made a part of
this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Warrant Agent, the Company and the registered holders of the Warrants. The
holder of this Warrant Certificate consents to all terms and provisions of the
Warrant Agreement by acceptance hereof. Copies of the Warrant Agreement are on
file at the above-mentioned office of the Warrant Agent and may be obtained by
writing to the Warrant Agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
WARRANT SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent.
Dated: , 1999
-------------- --
AVATEX CORPORATION
By:
-------------------------
Name:
Title:
Countersigned:
AMERICAN STOCK TRANSFER AND TRUST COMPANY,
as Warrant Agent
By:
-------------------------
Name:
Title:
A-2
[FORM OF REVERSE OF WARRANT CERTIFICATE]
AVATEX CORPORATION
The transfer of this Warrant Certificate and all rights
hereunder is registrable by the registered holder hereof, in whole or in part,
on the register of the Company upon surrender of this Warrant Certificate at
the office or agency of the Company or the office of the Warrant Agent
maintained for such purpose at American Stock Transfer and Trust Company, ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ attention: Corporate Trust Department,
duly endorsed or accompanied by a written instrument of transfer duly executed
and in form satisfactory to the Company and the Warrant Agent, by the
registered holder hereof or his attorney duly authorized in writing and upon
payment of any necessary transfer tax or other governmental charge imposed upon
such transfer or registration thereof. Upon any partial transfer the Company
will cause to be delivered to such holder a new Warrant Certificate or
Certificates with respect to any portion not so transferred.
This Warrant Certificate may be exchanged at the office of
the Warrant Agent maintained for such purpose at American Stock Transfer and
Trust Company, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ attention: Corporate
Trust Department, for Warrant Certificates representing the same aggregate
number of Warrants, each new Warrant Certificate to represent such number of
Warrants as the holder hereof shall designate at the time of such exchange.
Prior to the exercise of the Warrants represented hereby, the
holder of this Warrant Certificate, as such, shall not be entitled to any
rights of a stockholder of the Company, including, but not limited to, the
right to vote, to receive dividends or other distributions, to exercise any
preemptive right or to receive any notice of meetings of stockholders, and
shall not be entitled to receive notice of any proceedings of the Company
except as provided in the Warrant Agreement. Nothing contained herein shall be
construed as imposing any liabilities upon the holder of this Warrant
Certificate to purchase any securities or as a stockholder of the Company,
whether such liabilities are asserted by the Company or by creditors or
stockholders of the Company or otherwise.
This Warrant Certificate shall be void and all rights
represented hereby shall cease unless exercised before the close of business
(i.e., 5:00 p.m., New York City time) on __________ ___, 2004.
Witness the facsimile seal of the Company and the signature
of its duly authorized officer.
A-3
SUBSCRIPTION FORM
(To be executed only upon exercise of warrant)
TO AVATEX CORPORATION
American Stock Transfer and Trust Company, as Warrant Agent
Attention:
-----------------------
The undersigned (i) irrevocably exercises ___ Warrants
represented by the within Warrant Certificate, (ii) purchases [________ shares]
of common stock, par value $.01 per share, of Avatex Corporation (before giving
effect to the adjustments provided in the Warrant Agreement referred to in the
within Warrant Certificate) for each Warrant so exercised and herewith makes
payment in full of the purchase price of $2.25 in respect of each Warrant so
exercised as provided in the Warrant Agreement (such payment being by certified
or official bank or bank cashier's check payable to the order of Avatex
Corporation, or by wire transfer of immediately available funds to an account
designated by the Warrant Agent for the benefit of Avatex Corporation), all on
the terms and conditions specified in the within Warrant Certificate and the
Warrant Agreement, (iii) surrenders this Warrant Certificate and all right,
title and interest to the exercised Warrants to Avatex Corporation and (iv)
directs that the securities or other property deliverable upon the exercise of
such Warrants be registered or placed in the name and at the address specified
below and delivered thereto.
Dated: ------------, ----
---------------------------------------
(Owner)*
---------------------------------------
(Signature of Authorized
Representative)
---------------------------------------
(Street Address)
---------------------------------------
(City) (State) (Zip Code)
A-4
Securities or property to be
issued and delivered to:
----------------------
Signature Guaranteed**
Please insert social
security or other
identifying number
------------------
Name *
-------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------------------
▇▇▇▇, ▇▇▇▇▇ and Zip Code
-----------------------------------------------------
-------------------
* The signature must correspond with the name as written upon the face
of the within Warrant Certificate in every particular, without alteration or
enlargement or any change whatsoever.
** The signature must be guaranteed by a securities transfer agents
medallion program ("stamp") participant or an institution receiving prior
approval from the Warrant Agent.
A-5
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered holder of the
within Warrant Certificate hereby sells, assigns and transfers unto the
Assignee named below all of the rights of the undersigned under the within
Warrant Certificate, with respect to the number of warrants set forth below:
Name of No. of
Assignee Address Warrants
-------- ------- --------
Please insert social
security or other
identifying number
of Assignee
------------------
and does hereby irrevocably constitute and appoint __________ attorney to make
such transfer on the books of Avatex Corporation maintained for the purpose,
with full power of substitution in the premises.
Dated:
--------------, ----
Name *
--------------------------------
Signature of Authorized
Representative
----------------------
Signature Guaranteed **
----------------
-------------------
* The signature must correspond with the name as written upon the face
of the within Warrant Certificate in every particular, without alteration or
enlargement or any change whatsoever.
** The signature must be guaranteed by a securities transfer agents
medallion program ("stamp") participant or an institution receiving prior
approval from the Warrant Agent.
A-6