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EXHIBIT 10.67
FIRST AMENDMENT TO WARRANT AGREEMENT
This FIRST AMENDMENT TO WARRANT AGREEMENT (the "Amendment"), dated as
of November 12, 1998, is entered into by and between Texas Biotechnology
Corporation, a Delaware corporation (the "Company") and The Bank of New York, a
corporation organized under the banking laws of the State of New York (the
"Warrant Agent").
WITNESSETH
WHEREAS, the Company and the Warrant agent are parties to the Warrant
Agreement dated as of December 15, 1993, (the "Warrant Agreement"), pursuant to
which the Warrant Agent acts on behalf of the Company in connection with the
issuance, transfer, exchange, replacement, redemption and surrender of the
certificates for the Company's Redeemable Common Stock Purchase Warrants (the
"Warrants");
WHEREAS, the Company has requested and the Warrant Agent agrees to
certain amendments to the Warrant Agreement; and
WHEREAS, the Warrant Agent is willing to amend the Warrant Agreement,
subject to the terms and conditions of this Amendment.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Defined Terms. Unless otherwise defined herein capitalized terms
used herein shall have the meanings, if any, assigned to them in the Warrant
Agreement.
2. Amendment to Warrant Agreement.
Section 2.2 of the Warrant Agreement is hereby amended and restated in
its entirety to read as follows:
"2.2 Registration of Common Stock and Exercisability of
Warrants. Each Warrant may be exercised at any time on or after
December 15, 1993, the effective date of the Offering, as long as the
effectiveness of the registration of the Warrant Shares is maintained
under the Securities Act of 1933, as amended (the "Securities Act"),
but not after 5:00 P.M., New York City time, on the earlier of
September 30, 1999, or the business day immediately preceding the Call
Date (as defined in Section 4.11). The term "Exercise Deadline" as used
in this Agreement shall mean the latest
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time and date at which the Warrants may be exercised. The Company shall
use its best efforts to maintain the registration or qualification in
effect of the Warrant Shares and to keep available for delivery upon
the exercise of the Warrants a prospectus that meet the requirements of
Section 10 of the Securities Act, until the earlier of the date by
which all Warrants are exercised or the Exercise Deadline; provided,
however, that the Company shall have no obligation hereunder to
maintain the effectiveness of such registration or qualification ro
keep available a prospectus, as aforesaid, in the event that, by
amendment to the Securities Act or otherwise, such registration or
qualification or the delivery of such prospectus is not required at the
said Common Stock is to be issued; and provided further, that in the
event, by amendment to the Securities Act or otherwise, some other or
different requirement shall be imposed by act of the Congress of the
United States which shall related to the issuance of Common Stock upon
exercise of the Warrants, the Company shall use its best efforts to
comply with such requirements."
3. Representations and Warranties. The Company hereby represents and
warrants to the Warrant Agent as follows:
The execution, delivery and performance by the Company of this
Amendment has been duly authorized by all necessary corporate and other
action and does not, and will not, require any registration, with
consent or approval of, notice to or action by, any person or entity
(including any governmental authority or entity) in order to be
effective and enforceable. The Warrant Agreement, including such
provisions that have been amended by this Amendment, constitute the
legal, valid and binding obligations of the Company.
4. Effective Date. This amendment will become effective as of November
12, 1998 (the "Effective Date"); provided that each of the following conditions
precedent is satisfied:
(a) The Company has executed and delivered this Amendment; and
(b) All representations and warranties contained herein are true and
correct as of the Effective Date.
5. Miscellaneous.
(a) Except as expressly amended or waived herein, all terms, covenants
and provisions of the Warrant Agreement and the other documents
executed in connection thereto are and shall remain in full force and
effect.
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
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(c) This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(d) This Amendment, together with the Warrant Agreement and the other
documents executed in connection thereto, embodies the final, entire
agreement among the parties hereto and supersedes any and all prior
commitments or agreements in connection with the subject matter
thereof, representations and understandings, whether written or oral,
relating to the subject matter hereof and may not be contradicted or
varied by evidence of prior, contemporaneous, or subsequent oral
agreements or discussions of the parties hereto. There are no unwritten
oral agreements among the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
TEXAS BIOTECHNOLOGY CORPORATION
By: /s/ STEPHEN L. MUELLER
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Name: Stephen L. Mueller
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Title: Vice President, Finance
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and Administration
Secretary and Treasurer
THE BANK OF NEW YORK
By: /s/ JAMES DIMINO
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Name: James Dimino
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Title: Assistant Vice President
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