EXHIBIT
10.1


EXECUTION
VERSION


 


 


U.S. $65,000,000


LOAN AGREEMENT


 


Dated as of August 5,
2008


 


Amended and
Restated as of March 18, 2009


 


between


 


COWEN HEALTHCARE ROYALTY PARTNERS, L.P.,


 


as Lender,


 


and


 


DYAX CORP.,


 


as Borrower


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 

















 


TABLE OF CONTENTS


 


 


	
  ARTICLE I

  
	
  CERTAIN DEFINITIONS

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
  SECTION 1.02.

  	
  Interpretation; Headings

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
  COMMITMENT; DISBURSEMENT; FEES

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Commitment to Lend

  	
  18

  
	
  SECTION 2.02.

  	
  Notice of Borrowing

  	
  18

  
	
  SECTION 2.03.

  	
  Disbursement

  	
  18

  
	
  SECTION 2.04.

  	
  Commitment Not Revolving

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
  REPAYMENT

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Amortization

  	
  18

  
	
  SECTION 3.02.

  	
  Optional Prepayment; Mandatory Prepayment

  	
  19

  
	
  SECTION 3.03.

  	
  Illegality

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
  INTEREST; EXPENSES

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Interest Rate

  	
  20

  
	
  SECTION 4.02.

  	
  Lockbox Account

  	
  21

  
	
  SECTION 4.03.

  	
  Interest on Late Payments

  	
  24

  
	
  SECTION 4.04.

  	
  Initial Expenses

  	
  24

  
	
  SECTION 4.05.

  	
  Administration and Enforcement Expenses

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
  TAXES

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Taxes

  	
  24

  
	
  SECTION 5.02.

  	
  Receipt of Payment

  	
  26

  
	
  SECTION 5.03.

  	
  Other Taxes

  	
  26

  
	
  SECTION 5.04.

  	
  Indemnification

  	
  26

  
	
  SECTION 5.05.

  	
  Loans Treated As Indebtedness

  	
  26

  
	
  SECTION 5.06.

  	
  Allocation of Issue Price

  	
  26

  
	
  SECTION 5.07.

  	
  Registered Obligation

  	
  27

  



 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 

















 


	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE VI

  
	
  PAYMENTS; COMPUTATIONS

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Making of Payments

  	
  27

  
	
  SECTION 6.02.

  	
  Setoff or Counterclaim

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
  CLOSING DOCUMENTATION

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Tranche A Loan Closing Documentation

  	
  28

  
	
  SECTION 7.02.

  	
  Tranche B Loan Closing Documentation

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Representations and Warranties of Borrower

  	
  32

  
	
  SECTION 8.02.

  	
  Survival of Representations and Warranties

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
  AFFIRMATIVE COVENANTS

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Maintenance of Existence

  	
  40

  
	
  SECTION 9.02.

  	
  Use of Proceeds

  	
  40

  
	
  SECTION 9.03.

  	
  Financial Statements and Information

  	
  40

  
	
  SECTION 9.04.

  	
  Books and Records

  	
  41

  
	
  SECTION 9.05.

  	
  Inspection Rights; Access

  	
  41

  
	
  SECTION 9.06.

  	
  Maintenance of Insurance and Properties

  	
  42

  
	
  SECTION 9.07.

  	
  Governmental Authorizations

  	
  42

  
	
  SECTION 9.08.

  	
  Compliance with Laws and Contracts

  	
  42

  
	
  SECTION 9.09.

  	
  Plan Assets

  	
  42

  
	
  SECTION 9.10.

  	
  Notices

  	
  42

  
	
  SECTION 9.11.

  	
  Payment of Taxes

  	
  43

  
	
  SECTION 9.12.

  	
  Waiver of Stay, Extension or Usury Laws

  	
  43

  
	
  SECTION 9.13.

  	
  Additional Covenants of Borrower

  	
  43

  
	
  SECTION 9.14.

  	
  [*****]

  	
  43

  
	
  SECTION 9.15.

  	
  Further Assurances

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
  NEGATIVE COVENANTS

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Activities of Borrower

  	
  44

  
	
  SECTION 10.02.

  	
  Merger; Sale of Assets

  	
  44

  



 


 


Confidential materials omitted and filed separately
with the Securities and Exchange Commission. 
Asterisks denote such omission.


 


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  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 10.03.

  	
  Liens

  	
  45

  
	
  SECTION 10.04.

  	
  Investment Company Act

  	
  46

  
	
  SECTION 10.05.

  	
  Limitation on Additional Indebtedness

  	
  46

  
	
  SECTION 10.06.

  	
  Limitation on Transactions with Controlled Affiliates

  	
  47

  
	
  SECTION 10.07.

  	
  ERISA

  	
  47

  
	
  SECTION 10.08.

  	
  Restricted Payments

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
  EVENTS OF DEFAULT

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  Events of Default

  	
  48

  
	
  SECTION 11.02.

  	
  Default Remedies

  	
  50

  
	
  SECTION 11.03.

  	
  Right of Set-off; Sharing of Set-off

  	
  50

  
	
  SECTION 11.04.

  	
  Rights Not Exclusive

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  
	
  INDEMNIFICATION

  
	
   

  	
   

  	
   

  
	
  SECTION 12.01.

  	
  Funding Losses

  	
  51

  
	
  SECTION 12.02.

  	
  Increased Costs

  	
  52

  
	
  SECTION 12.03.

  	
  Other Losses

  	
  52

  
	
  SECTION 12.04.

  	
  Assumption of Defense; Settlements

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  SECTION 13.01.

  	
  Assignments

  	
  53

  
	
  SECTION 13.02.

  	
  Participations

  	
  54

  
	
  SECTION 13.03.

  	
  Successors and Assigns

  	
  55

  
	
  SECTION 13.04.

  	
  Notices

  	
  55

  
	
  SECTION 13.05.

  	
  Entire Agreement

  	
  56

  
	
  SECTION 13.06.

  	
  Modification

  	
  57

  
	
  SECTION 13.07.

  	
  No Delay; Waivers; etc.

  	
  57

  
	
  SECTION 13.08.

  	
  Severability

  	
  57

  
	
  SECTION 13.09.

  	
  Determinations

  	
  57

  
	
  SECTION 13.10.

  	
  Replacement of Note

  	
  57

  
	
  SECTION 13.11.

  	
  Governing Law

  	
  57

  
	
  SECTION 13.12.

  	
  Jurisdiction

  	
  57

  
	
  SECTION 13.13.

  	
  Waiver of Jury Trial

  	
  58

  
	
  SECTION 13.14.

  	
  Waiver of Immunity

  	
  58

  
	
  SECTION 13.15.

  	
  Counterparts

  	
  58

  
	
  SECTION 13.16.

  	
  Limitation on Rights of Others

  	
  58

  



 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


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  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 13.17.

  	
  No Partnership

  	
  58

  
	
  SECTION 13.18.

  	
  Survival

  	
  58

  
	
  SECTION 13.19.

  	
  Patriot Act Notification

  	
  58

  



 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


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Exhibits


 


	
  Exhibit A

  	
   

  	
  Business Report Format

  
	
  Exhibit B

  	
   

  	
  Form of Tranche B
  Promissory Note

  
	
  Exhibit C

  	
   

  	
  Quarterly Report Format

  
	
  Exhibit D

  	
   

  	
  Form of Security
  Agreement

  
	
  Exhibit E

  	
   

  	
  Form of Notice of
  Borrowing

  
	
  Exhibit F

  	
   

  	
  Lockbox Instructions

  
	
  Exhibit G

  	
   

  	
  Form of
  Certificate of Borrower

  
	
  Exhibit H

  	
   

  	
  Form of Edwards,
  Angell Palmer & Dodge LLP Opinion

  
	
  Exhibit I

  	
   

  	
  Form of Wolf
  Greenfield Opinion

  
	
  Exhibit J

  	
   

  	
  Form of Lowrie,
  Lando & Anastasi, LLP Opinion

  
	
  Exhibit K

  	
   

  	
  Tranche B Warrant
  Agreement

  
	
  Exhibit L

  	
   

  	
  Form of Assignment
  and Acceptance

  



 


Schedules


 


	
  Schedule A

  	
   

  	
  [*****]

  
	
  Schedule B

  	
   

  	
  [*****]

  
	
  Schedule C

  	
   

  	
  [*****]

  
	
  Schedule D

  	
   

  	
  [*****]

  
	
  Schedule 8.01(l)

  	
   

  	
  Indebtedness

  
	
  Schedule 8.01(n)

  	
   

  	
  Subsidiaries

  
	
  Schedule 8.01(s)(i)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(s)(ii)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(u)

  	
   

  	
  Borrower’s Principal
  Place of Business and Chief Executive Office

  
	
  Schedule 8.01(v)(ii)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(v)(iii)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(v)(iv)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(v)(vii)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(v)(viii)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(v)(ix)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(v)(x)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(v)(xi)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(w)(i)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(w)(iii)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(w)(v)

  	
   

  	
  [*****]

  
	
   

  	
   

  	
  [*****]

  
	
  Schedule 8.01(w)(vi)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(w)(vii)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(w)(viii)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(w)(x)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(w)(xi)

  	
   

  	
  [*****]

  
	
  Schedule 8.01(x)

  	
   

  	
  [*****]

  
	
  Schedule 10.03(a)

  	
   

  	
  [*****]

  



 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 

















 


This
LOAN AGREEMENT (the “Amended Agreement”), dated as of August 5, 2008 and
amended and restated as of March 18, 2009, is entered into by and between
COWEN HEALTHCARE ROYALTY PARTNERS, L.P., a Delaware limited partnership (the “Lender”),
as Lender, and DYAX CORP., a Delaware corporation, as Borrower.  The Lender and Borrower are hereinafter
referred to collectively as the “Parties” or individually as a “Party.”


 


W I T N E S S E T H:


 


WHEREAS,
Borrower is the owner of the LFRP Intellectual Property (as hereinafter
defined) with respect to the LFRP (as hereinafter defined);


 


WHEREAS,
Borrower has the right to payments under the License Agreements (as hereinafter
defined);


 


WHEREAS,
on August 5, 2008, the Parties executed a Loan Agreement (the “Original
Loan Agreement”) pursuant to which Borrower borrowed from Lender an
aggregate principal amount of $50,000,000;


 


WHEREAS,
in order to induce the Lender to enter into the Original Loan Agreement and to
extend credit thereunder, Borrower agreed to grant Lender a security interest
in the LFRP Intellectual Property (as defined in the Original Loan Agreement);


 


WHEREAS,
Borrower desires to create a new tranche of Loans in an aggregate principal
amount of $15,000,000;


 


WHEREAS,
in connection with such new tranche of Loans the Parties desire to amend and
restate the Original Loan Agreement as set forth in this Amended Agreement;


 


NOW,
THEREFORE, in consideration of the mutual promises of the Parties, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is mutually agreed by the Parties as follows:


 


ARTICLE I

CERTAIN DEFINITIONS


 


SECTION 1.01.         Definitions.  As used herein:


 


“Affiliate”
means any Person that
controls, is controlled by, or is under common control with another
Person.  For purposes of this definition,
“control” shall mean (i) in the case of corporate entities, direct
or indirect ownership of at least fifty percent (50%) of the stock or shares
having the right to vote for the election of directors, and (ii) in the
case of non-corporate entities, direct or indirect ownership of at least fifty
percent (50%) of the equity interest with the power to direct the management
and policies of such non-corporate entities.


 


“Agent”
means, (i) if only one Lender is party to this Amended Agreement, such
Lender or (ii) otherwise, Cowen Healthcare Royalty Partners, L.P. or
another Lender reasonably acceptable to Borrower.


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 

















 


“Amended
Agreement” means this Loan Agreement (as amended, restated, supplemented or
otherwise modified from time to time).


 


“Applicable
Included Receipts” means (i) prior to June 30, 2013, the sum of (a) 75.0%
of the first $10.0 million in annual Included Receipts, (b) 50.0% of
annual Included Receipts greater than $10.0 million and up to and including $15.0
million, and (c) 25.0% of annual Included Receipts greater than $15.0
million and (ii) after June 30, 2013, 90.0% of all Included Receipts
until the earlier of the Maturity Date or the complete amortization of the
Loans under Section 3.01.  “Applicable
Included Receipts” shall exclude FTE Payments so long as the principal amount
of the Loans prepaid pursuant to Section 3.01(a) exceeds any
principal amount added to the Loans pursuant to Section 4.01(a) (as
calculated on an annual basis for each calendar year) which shall be determined
at the end of any applicable calendar year and shall be applied to amortization
in accordance with Section 3.01(a); provided that Borrower may, at
its option, include such costs in Applicable Included Receipts on a quarterly
basis to pay scheduled amortization in accordance with Section 3.01(a).


 


“Assignee”
has the meaning specified in Section 13.01(b).


 


“Assignment
and Acceptance” has the meaning specified in Section 13.01(c).


 


“Borrower” means Dyax Corp.


 


“Borrower
Documents” means the certificate of incorporation of Borrower certified by
the Delaware Secretary of State and the by-laws of Borrower (and any similar
documentation of any Subsidiary of Borrower which becomes party to the Loan
Documents).


 


“Business
Day” means any day, except a Saturday, Sunday or other day on which
commercial banks in New York are required or authorized by law to close.


 


“Business Report” means a report in a form
agreed upon between the parties and based on Exhibit A, providing
information on current activities relating to the licensing of the LFRP
Intellectual Property as part of the LFRP.


 


“Capital
Stock” of any Person means any and all shares, interests, ownership interest
units, rights to purchase, warrants, options, participations or other equivalents
of or interests in (however designated) equity of such Person, including any preferred
stock, but excluding any debt securities convertible into such equity.


 


[*****]


 


 “[*****]
Agreement” means the [*****] Agreement dated [*****] between [*****] and Borrower.


 


“[*****] Payments” means the
specified payments that become due and payable to [*****] pursuant to the [*****] Agreement, as further described in Schedule
8.01(s)(ii).


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


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“Change of Control” means:


 


(i)    the acquisition by any Person or group
(within the meaning of Sections 13(d)(3) or 14(d)(2) of the Exchange
Act) (other than any trustee or other fiduciary holding securities under an
employee benefit plan of Borrower or any entity controlled, directly or
indirectly, by Borrower) of beneficial ownership of any capital stock of Borrower,
if after such acquisition, such Person or group would be the “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of Borrower representing more than fifty percent (50%) of the
combined voting power of Borrower then outstanding securities entitled to vote
generally in the election of directors; or


 


(ii)    any transaction permitted under Section 10.02(a);
or


 


(iii)   during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of Borrower (together with any new directors (other than
a director designated by a Person who has entered into an agreement with
Borrower to effect a transaction described in clause (i) or (ii) of
this definition of “Change of Control”), whose election by such Board of
Directors or nomination for election by Borrower’s shareholders, as applicable,
was approved by a vote of a majority of the directors then still in office who
either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute at least a majority of the Board of Directors of Borrower then in office.


 


“Closing
Date” means August 5, 2008.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Co-Development
Agreement” means any agreement between Borrower and/or any of its
Subsidiaries and one or more third parties relating to the discovery, research,
development, manufacturing or commercialization of a product or compound (whether
or not derived from phage display) (i) which would be commonly viewed in
the industry as being a co-development agreement, (ii) under which
Borrower and/or any of its Subsidiaries takes a substantially different
commercial role than under an agreement forming part of the LFRP and (iii) which
has two or more of the following aspects: 
(A) shared ownership of product-related intellectual property or
sole ownership of product-related intellectual property by one party with an
exclusive license to the product-related intellectual property to the other
party, (B) shared management control over product development, (C) shared
financial obligations, and/or (D) shared commercialization rights to the
product.  Schedule A sets forth a
complete list of Co-Development Agreements in existence as of the Tranche B
Closing Date.


 


“Co-Developed
Product” means any product or compound (whether or not derived from phage
display) which is the subject of a Co-Development Agreement and in relation to
which Borrower has committed on a contingent or non-contingent basis its own
financial re-


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


3

















 


sources and/or has committed non-reimbursed human resources to
discover, research, develop, manufacture or commercialize such product or
compound.


 


“Collateral”
has the meaning specified in the Security Agreement.


 


“Company
Concentration Account” means a segregated account established and
maintained at the Lockbox Bank pursuant to the terms of the Lockbox Agreement
and this Amended Agreement.  The Company
Concentration Account shall be the account into which funds in the Lockbox
Account which are payable to Borrower pursuant to this Amended Agreement are
swept in accordance with the terms of this Amended Agreement.


 


“Company
LFRP Methods and Libraries” shall have the meaning set forth in Section 8.01(v)(iii).


 


“Confidentiality
Agreement” means that certain confidentiality agreement, dated 

March 3, 2009, between Borrower and Lender.


 


“Contract”
has the meaning specified in Section 8.01(e).


 


“Contract Party” means any party to a License
Agreement or In License.


 


“Controlled
Affiliate” with respect to any Person means any Person directly or indirectly
controlling, controlled by or under common control with, such Person.  For the purposes of this Amended Agreement, “control”
(including, with correlative meaning, the terms “controlling” and “controlled”)
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise.


 


 “Default” means any condition or event
which constitutes an Event of Default or which, with the giving of notice or
the lapse of time or both would, unless cured or waived, become an Event of
Default.


 


“Default
Rate” means, for any period for which an amount is overdue, a rate per
annum equal for each day in such period to the lesser of (i) 2% plus the
rate otherwise applicable to the Loans as provided the Section 4.01 and (ii) the
maximum rate of interest permitted under applicable Law.


 


“Deficiency
Amount” has the meaning specified in Section 4.01(a).


 


“Discrepancy
Notice” has the meaning specified in Section 4.02(m).


 


“Dispute”
has the meaning specified in Section 8.01(v)(ix).


 


“Disqualified
Capital Stock” of any Person means any class of Capital Stock of such
Person that, by its terms, or by the terms of any related agreement or of any
security into which it is convertible, puttable or exchangeable, is, or upon
the happening of any event or the 


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


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passage of time would be, required to be redeemed by such Person,
whether or not at the option of the holder thereof, or matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, in
whole or in part, on or prior to the date which is 91 days after the final maturity
date of the Loans; provided, however, that any class of Capital
Stock of such Person that, by its terms, authorizes such Person to satisfy in
full its obligations with respect to the payment of dividends or upon maturity,
redemption (pursuant to a sinking fund or otherwise) or repurchase thereof or
otherwise by the delivery of Capital Stock that are not Disqualified Capital
Stock, and that is not convertible, puttable or exchangeable for Disqualified
Capital Stock or Indebtedness, will not be deemed to be Disqualified Capital
Stock so long as such Person satisfies its obligations with respect thereto
solely by the delivery of Capital Stock that are not Disqualified Capital
Stock.


 


“Dollars”
or “$” means lawful money of the United States of America.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and the
regulations promulgated thereunder.


 


“ERISA
Affiliate” at any time means each trade or business (whether or not incorporated)
that would, at any time, be treated, together with Borrower or any of their
respective Subsidiaries, as a single employer under Title IV or Section 302
of ERISA or Section 412 of the Code.


 


“Event
of Default” has the meaning specified in Section 11.01.


 


“Exchange
Act” means the Securities Exchange Act of 1934 and the regulations
promulgated thereunder.


 


“Excluded
Agreements” means Co-Development Agreements, Internally Developed Product
Agreements and Licensed
Product Agreements.  Schedule B
sets forth a complete list of all Excluded Agreements in existence as of the
Tranche B Closing Date.


 


“Excluded Payments” means (i) payments
under any Excluded Agreement or (ii) payments relating to or arising out
of any activities relating to the research, development, manufacturing or
commercialization of any Excluded Product.


 


“Excluded
Product” means any product or compound (whether or not derived from phage
display) which, at any point, was, is or becomes included in Borrower’s “pipeline”
as an internal product candidate.  An
Excluded Product is either an Internally Developed Product, an In-Licensed
Product or a Co-Developed Product.  Schedule
B  sets forth a complete list of all
Excluded Products in existence as of the Tranche B Closing Date.  Notwithstanding the foregoing, Borrower
acknowledges and agrees that under the terms of certain License Agreements,
Contract Parties and their sublicensees may develop products that are the same
as or similar to Excluded Products and that such same or similar products shall
be not be considered Excluded Products under this Amended Agreement.


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


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“Excluded
Taxes” means (i) any Taxes imposed on (or measured by) net income
(including branch profits Taxes) of the Lender, or any franchise or similar
Taxes imposed in lieu thereof, by any Governmental Authority or taxing
authority by the jurisdiction under the laws of which the Lender is organized
or any jurisdiction in which the Lender is a resident, has an office, conducts
business or has another connection and (ii) in the case of a Foreign
Lender, any withholding tax that is imposed on amounts payable to such Foreign
Lender (a) under law in effect at the time such Foreign Lender becomes a
party to this Amended Agreement (or designates a new Lending Office), except to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new Lending Office (or assignment), to receive
additional amounts from Borrower with respect to such withholding tax pursuant
to Section 5.01(a) or (b) that is attributable to such Foreign
Lender’s failure to comply with Section 5.01(b).


 


“FDA” means the United States Food and Drug
Administration.


 


“Financial
Statements” means the consolidated balance sheets of Borrower and its
Subsidiaries, audited at December 31, 2006, December 31, 2007 and December 31,
2008 and the related consolidated statements of operations and comprehensive
loss, cash flows and changes in stockholders’ equity of Borrower and its
Subsidiaries audited for the years ended December 31, 2006, December 31,
2007 and December 31, 2008, and the accompanying footnotes thereto, as
filed with the SEC, including the Management’s Discussion and Analysis of
Financial Condition and Results of Operations contained therein.


 


“Foreign
Lender” has the meaning specified in Section 5.01(c).


 


“FTE”
means a full-time equivalent included in FTE Payment costs.


 


“FTE
Payments” means all amounts received from a Contract Party under any License
Agreement in payment for services relating specifically to Borrower’s and/or
any of its Subsidiaries’ costs (or estimated costs) for the discovery, research
and/or development of peptides, proteins and antibodies as reasonably
calculated based on the subsidization of the full cost of personnel measured in
full time equivalents, other comparable cost-based measures or any combination
of the foregoing.  For the avoidance of
doubt, FTE Payments shall not include any technical milestones that relate
specifically to the completion of services, or other related events.


 


“Funded Research Agreements” has the
meaning specified in the
definition of License Agreement.


 


“Future
Licenses” means any License Agreement entered into by Borrower and/or any
of its Subsidiaries after the date hereof with any other Person, as the same
may be amended, supplemented or otherwise modified from time to time.


 


“GAAP”
means the generally accepted accounting principles in the United States of
America in effect from time to time.


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


6

















 


“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or pertaining to, government.


 


“Gross Payments” means all Royalties arising
under or payable with respect to any License Agreement or In License and any
collections, recoveries, payments or other compensation made in lieu thereof
and any amounts paid or payable to Borrower and/or any of its
Subsidiaries in respect of any
License Agreement or In License pursuant to Section 365(n) of the
United States Bankruptcy Code.  For the
avoidance of doubt, the parties acknowledge and agree that Gross Payments shall
specifically exclude all Excluded Payments.


 


“Guarantee” means, as to any Person:  (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the “primary obligor”) in any manner, whether directly
or indirectly, and including any obligation of such Person, direct or indirect (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into
for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part); or (b) any
Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is
assumed by such Person.


 


“In-Licensed
Product” means any product or compound (whether or not derived from phage
display) in relation to which Borrower expends a substantial amount of the financial
resources to used to discover, research, and develop or commercialize such
product or compound, and to which Borrower acquired rights to discover,
research, develop, manufacture or commercialize such product or compound (i) under
a Licensed Product Agreement or (ii) under an option or similar provision
expressly included within any License Agreement where the economic terms
applicable to such provision are consistent with Borrower’s past practices and
would be recognized in the industry as being a bona fide payment for rights.


 


“In
Licenses” means any existing or future agreement pursuant to which Borrower
and/or any of its Subsidiaries obtains rights to LFRP Intellectual Property or
other rights used in the LFRP.


 


“Included Receipts” means (a) the Gross
Payments less (b) [*****] Payments and Reimbursement Payments, from the first day of the fiscal
quarter of Borrower in which the Closing Date occurs; provided that for
the first fiscal quarter after the Closing Date the “Included Receipts” were
prorated by dividing such Included Receipts by 90 and multiplying by the number
of days from and including the Closing Date through the end of such quarter.


 


 


Confidential materials omitted and filed separately
with the Securities and Exchange Commission. 
Asterisks denote such omission.


 


7

















 


“Indebtedness”
with respect to any Person means any amount (absolute or contingent) payable by
such Person as debtor, borrower, issuer, guarantor or otherwise (i) pursuant
to an agreement or instrument involving or evidencing money borrowed, the
advance of credit, a conditional sale or a transfer with recourse or with an obligation
to repurchase, (ii) pursuant to a lease with substantially the same
economic effect as any such agreement or instrument, (iii) pursuant to any
equity interest with a mandatory obligation to repurchase, (iv) pursuant
to indebtedness of a third party secured by (or for which the holder of such
indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on assets owned or acquired by such Person, whether or not the
indebtedness secured thereby has been assumed, (v) pursuant to an interest
rate protection agreement, foreign currency exchange agreement or other hedging
arrangement, (vi) pursuant to a letter of credit issued for the account of
such Person, or (vii) all Guarantees with respect to Indebtedness of the
types specified in clauses (i) through (vi) above of another Person.  For the avoidance of doubt, the Indebtedness
of any Person shall include the Indebtedness of any other entity to the extent
such Person is directly liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.


 


 “Indemnified Liabilities” means,
collectively, any and all liabilities, obligations, losses, damages, penalties,
claims, costs, expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
actually incurred by Indemnitees in enforcing the indemnity provided herein),
whether direct, indirect or consequential and whether based on any federal,
state or foreign laws, statutes, rules or regulations (including
securities and commercial laws, statutes, rules or regulations), on common
law or equitable cause or on contract or otherwise, imposed on, incurred by, or
asserted against any such Indemnitee, in any manner relating to or arising out
of this Amended Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby (including any enforcement of any of the Loan Documents
(including any sale of, collection from, or other realization upon any of the
Collateral).


 


“Indemnified
Taxes” has the meaning specified in Section 5.01(a).


 


“Indemnitee”
has the meaning specified in Section 12.03(a).


 


“Independent
Accountants” has the meaning specified in 4.02(m).


 


“Insurance
Providers” has the meaning specified in Section 9.06.


 


“Interest Payment Date” means quarterly on October 15,
January 15, April 15 and July 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day, beginning on October 15,
2008.


 


“Interest
Rate” means (i) with respect to Tranche A Loans, 16.00% per annum
and (ii) with respect to Tranche B Loans, 21.50% per annum.


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


8

















 


“Internally
Developed Product” means any product or compound or molecule which was
independently identified by Borrower using its own financial and/or human
resources, the intellectual property to which product or compound is owned by
Borrower and/or any of its Subsidiaries.


 


“Internally
Developed Product Agreement” means any agreement between Borrower and/or
any of its Subsidiaries and one or more third parties pursuant to which Borrower
and/or any of its Subsidiaries grants a third party(ies) a license, or an
option to obtain a license, to research, develop and/or commercialize one or
more Internally Developed Products, with or without its phage display
technology and/or library.


 


“Knowledge” means, with respect to Borrower,
as applicable, the knowledge of an officer or senior manager or other person
with similar responsibility, regardless of title, of Borrower and/or any
of its Subsidiaries relating to
a particular matter; provided, however, that a person charged
with responsibility for the aspect of the business relevant or related to the
matter at issue shall be deemed to have knowledge of a particular matter if, in
the prudent exercise of his or her duties and responsibilities in the ordinary
course of business, such person should have known of such matter.


 


“Law”
means any federal, state, local or foreign law, including common law, and any
regulation, rule, requirement, policy, judgment, order, writ, decree, ruling,
award, approval, authorization, consent, license, waiver, variance, guideline
or permit of, or any agreement with, any Governmental Authority.


 


“Lender”
means the Lender (as defined in the first paragraph hereof) and any assignee
under Section 13.01(b).


 


“Lender
Bank Account” means Cowen Healthcare Royalty Partners, L.P.’s account at JP
Morgan Chase Bank, N.A.


 


“Lender
Concentration Account” means a segregated account established for the
benefit of the Lender and maintained at the Lockbox Bank pursuant to the terms
of the Lockbox Agreement and this Amended Agreement.  The Lender Concentration Account shall be the
account into which the funds held in the Lockbox Account which are payable to
the Lender pursuant to this Amended Agreement are swept in accordance with the
terms of this Amended Agreement and the Lockbox Agreement.


 


“Lending
Office” means, with respect to the Lender, its Stamford, Connecticut office,
and with respect to any other Lender, the office of such Lender designated as
its “Lending Office” in an Assignment and Acceptance, or such other office as
may be otherwise designated in writing from time to time by such Lender to
Borrower.


 


“LFRP”
means the program under which Borrower and any of its Subsidiaries enters into
License Agreements pursuant to which third parties are granted rights to the
LFRP Patents, alone or in combination with LFRP Technology where the purpose is
to generate revenue for Borrower and/or any of its Subsidiaries by (i) licensing
to a third party rights to use the LFRP 


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


9

















 


Patents and/or the LFRP Technology to identify, isolate, research
and/or develop antibodies, peptides and/or proteins, or (ii) performing
research on behalf of third parties to identify, isolate, research and/or
develop antibodies, peptides and/or proteins.


 


“LFRP Intellectual
Property” means:


 


(i)            the
LFRP Patents and LFRP Technology; and


 


(ii)           all
know-how, materials, trademarks, service marks, trade names and goodwill
associated therewith, trade secrets, data, formulations, processes, franchises,
inventions, software, copyrights, and all other technology and intellectual
property (including biological materials), and all registrations of any of the
foregoing, or applications therefor, that are (a) owned by, controlled by,
issued to, licensed to, licensed by Borrower and any of its Subsidiaries and (b) necessary
to the performance of the LFRP as presently conducted by Borrower and any of
its Subsidiaries or as conducted by Borrower and any of its Subsidiaries as of
the Closing Date or during the term of the Loans.


 


“LFRP
Know-How” means any biological material, know-how, data, technical or other
information related to the LFRP Patents and/or LFRP Libraries that is owned or
controlled by Borrower and any of its Subsidiaries as described in Schedule
C hereto, together with all updates and improvements provided under any
Library License Agreements as of the Closing Date or during the term of the
Loans.


 


“LFRP
Libraries” means Borrower’s and/or any of its Subsidiaries’ [*****], Borrower’s
and/or any of its Subsidiaries’ [*****], and Borrower’s and any of its
Subsidiaries’ [*****], all of which are described in Schedule D hereto,
together with all updates and improvements thereto and any other [*****] that
are developed or obtained by Borrower and any of its Subsidiaries and are
transferred under any Library License Agreement as of the Closing Date or during
the term of the Loans.


 


 “LFRP Patents” means the patents and
patent applications identified on Schedule 8.01(v)(ii) and any
other patent application and patent that is: 
(i) owned by, controlled by, issued to, licensed to or licensed by
Borrower and any of its Subsidiaries, or for which Borrower and any of its
Subsidiaries has obtained the benefit of a covenant not to sue, as of the
Closing Date or during the term of the Loans necessary to the practice of
[*****]; or (ii) licensed under the LFRP; and any patents issuing from
such applications, together with any reissues, reexaminations, renewals, and
extensions thereof, and all continuations, continuations-in-part and
divisionals of the applications, in each case throughout the world.


 


“LFRP
Product” means any product owned by one or more third parties that incorporates
an antibody, protein or peptide that was identified through the use of LFRP
Technology and with respect to which Borrower or any of its Subsidiaries is
entitled, under the terms of a License Agreement or In License, to receive
Royalties.


 


“LFRP
Technology” means the LFRP Know-How and LFRP Libraries.


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


10

















 


“Liabilities”
means the liabilities of Borrower excluding deferred revenue.


 


“Library License Agreements” has the meaning
specified in the definition of License Agreement.


 


“License
Agreement” means any existing or future agreement under which:  (i) Borrower and/or any of its
Subsidiaries licenses to a third party rights to use the technology claimed in
the LFRP Patents to identify, isolate, research and develop antibodies,
peptides and/or proteins (“Patent License Agreements”); (ii) Borrower
and/or any of its Subsidiaries licenses to a third party rights to use the LFRP
Patents and the LFRP Technology to identify, isolate, research and develop
antibodies, peptides and/or proteins (“Library License Agreements”);
and/or (iii) Borrower and/or any of its Subsidiaries performs funded
research services for third parties using the LFRP Patents and the LFRP Technology
to identify, isolate, research and develop antibodies, peptides and/or proteins
on behalf of such third parties (“Funded Research Agreements”); in each
case as they may be amended, supplemented or otherwise modified from time to
time.  License Agreements shall
specifically exclude Excluded Agreements and In Licenses.


 


“Licensed
Product Agreements” means any product agreement (but excluding phage or
phagemid or protein display technology and/or library licenses) between
Borrower and/or any of its Subsidiaries and one or more third parties in which
Borrower and/or any of its Subsidiaries acquires the right to develop and
commercialize a product or compound (whether or not derived from phage
display).


 


“Lien”
means any mortgage or deed of trust, pledge, hypothecation, lien, charge,
attachment, set-off, encumbrance or other security interest in the nature
thereof (including any conditional sale agreement, equipment trust agreement or
other title retention agreement, a lease with substantially the same economic
effect as any such agreement or a transfer or other restriction) or other
encumbrance of any nature whatsoever.


 


“Loans”
means the Tranche A Loan and the Tranche B Loan.  References in the Tranche A Note and the
Tranche A Warrant Agreement to “Loan” shall be deemed to refer to the Tranche A
Loan.


 


“Loan
Documents” means this Amended Agreement, the Notes, the Security Agreement
and the Lockbox Agreement.


 


 “Lockbox Account” means, collectively,
any lockbox and segregated lockbox account established and maintained at the
Lockbox Bank pursuant to a Lockbox Agreement and this Amended Agreement.  The Lockbox Account shall be the account into
which all payments made in respect of the sale of the LFRP Products are to be
remitted and shall be an escrow account.


 


“Lockbox
Agreement” means the agreement entered into by JPMorgan Chase Bank, N.A.,
Borrower and Lender, dated as of August 5, 2008 (as the same may be
amended, restated or otherwise modified from time to time), pursuant to which,
among other things, the Lockbox Account, the Lender Concentration Account and
the Company Concentration Account 


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


11

















 


shall be established and maintained and any agreement with a successor
Lockbox Bank entered into in accordance with Section 4.02(f)(ii).


 


“Lockbox Bank” means JPMorgan Chase Bank,
N.A. or such other bank or financial institution approved by each of Lender and
Borrower.


 


“Material Adverse Effect” means (i) a
material adverse effect on the business, results of operations, assets or
financial condition of Borrower and its Subsidiaries, taken as a whole, (ii) a
material reduction or other material impairment of the value of the [*****] or (iv) an impairment of the ability of
Borrower and/or any of its Subsidiaries to perform its obligations under, or affecting the validity or
enforceability of, any Loan Document, Borrower Document or the Warrant
Agreements.   The Parties acknowledge and
agree that any delay in, or denial of, regulatory approval for Dyax’s
proprietary kallikrein inhibitor, known as DX-88, shall not be deemed to
constitute a Material Adverse Effect on the Tranche B Funding Date.


 


“Material Licenses” means those License
Agreements set forth on Schedule 8.01(w)(x).


 


“Maturity
Date” means the earlier of (i) the eighth anniversary of the Closing
Date and (ii) the date of any prepayment in full of the Loan.


 


“No-Call
Date” means August 21, 2012.


 


“Notes”
means the Tranche B Note(s) and the Tranche A Note(s).


 


“Notice
of Borrowing” has the meaning specified in Section 2.02.


 


“Notices”
has the meaning specified in Section 13.04.


 


“Obligations”
means, without duplication, the Loans and all present and future Indebtedness,
taxes, liabilities, obligations, covenants, duties, and debts, owing by
Borrower to the Lender, arising under or pursuant to the Loan Documents, including
all principal, interest, charges, expenses, fees and any other sums chargeable
to Borrower hereunder and under the other Loan Documents (and including any
interest, fees and other charges that would accrue but for the filing of a
bankruptcy action with respect to Borrower, whether or not such claim is allowed
in such bankruptcy action).


 


“Original
Loan Agreement” has the meaning specified in the recitals hereto.


 


 “Original Loan Documents” means the Loan
Documents as such term was defined under the Original Loan Agreement.


 


“Original
Security Agreement” means the Security Agreement as such term was defined
under the Original Loan Agreement.


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


12

















 


“Original
Transaction Documents” means the Loan Documents, the Warrant Agreements,
the License Agreements and the Borrower Documents, as such terms were defined
under the Original Loan Agreement.


 


“Participant”
has the meaning specified in Section 13.02.


 


“Party”
and “Parties” have the meanings specified in the first paragraph hereof.


 


“Patent License Agreements” has the meaning
specified in the definition of License Agreement.


 


“Patent Office” means the respective patent
office (foreign or domestic) for any patent.


 


“Patriot Act” has the meaning specified in Section 13.19.


 


“Permitted Collateralization” means any asset
securitization, sale, transfer or other disposition by Borrower or any
of its Subsidiaries,
individually or when taken together with other Permitted Collateralizations,
generating cash proceeds of $25.0 million or less since the Closing Date which
involves in whole or in part Collateral to the extent simultaneously with the
release of the Collateral in accordance with the Security Agreement Borrower or
any of its Subsidiaries receives cash
proceeds no less than the fair market value thereof, which determination shall
be made in good faith by Borrower’s Board of Directors.  Proceeds of “Permitted Collateralizations”
(whether received on the release thereof or subsequent thereto) shall be
applied in accordance with Section 3.02(c).


 


“Permitted
Liens” has the meaning specified in Section 10.03.


 


“Person”
means an individual, corporation, association, limited liability company,
limited liability partnership, partnership, estate, trust, unincorporated
organization or a government or any agency or political subdivision thereof.


 


“Plan”
has the meaning specified in Section 10.07(a).


 


“Plan
Assets” means assets of any (i) employee benefit plan (as defined in Section 3(3) of
ERISA) subject to Title I of ERISA, (ii) plan (as defined in Section 4975(e)(1) of
the Code) subject to Section 4975 of the Code or (iii) entity whose
underlying assets include assets of any such employee benefit plan or plan by
reason of the investment by an employee benefit plan or other plan in such
entity.


 


“Prepayment
Premium” means with respect to any Loan on any date the Loan (or any
portion thereof) is required to be prepaid pursuant to the proviso at the end
of Section 3.02(b) or any payment made to amortization prior to the
No-Call Date pursuant to Section 3.02(c), the aggregate amount of all
required interest payments due on the Loan (or the applicable portion) through
the No-Call Date less all interest payments paid in cash through the date of
prepayment.


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


13

















 


“Proceeding”
has the meaning specified in Section 13.12.


 


“Product”
means the products that are the subject of the License Agreements.


 


“Qualified
Capital Stock” of any Person means Capital Stock of such Person other than
Disqualified Capital Stock; provided that such Capital Stock shall not
be deemed Qualified Capital Stock to the extent sold or owed to a Subsidiary of
such Person or financed, directly or indirectly, using funds (i) borrowed
from such Person or any Subsidiary of such Person until and to the extent such
borrowing is repaid or (ii) contributed, extended, guaranteed or advanced
by such Person or any Subsidiary of such Person (including, without limitation,
in respect of any employee stock ownership or benefit plan).  Unless otherwise specified, Qualified Capital
Stock refer to Qualified Capital Stock of Borrower.


 


“Quarterly Report” means, with respect to the
relevant calendar quarter of Borrower:  (i) a
report in a form agreed by the parties and based on Exhibit C
showing all payments made by Borrower and/or any of its Subsidiaries and any Contract Party to the Lender under
this Amended Agreement during such quarter, such report showing in detail the
basis for the calculation of such payments and exclusions; (ii) a
reconciliation of such report referred to in clause (i) above to all
information and data deliverable to Borrower and/or any of its
Subsidiaries by the Contract Parties to
any License Agreements, together with relevant supporting documentation, as
well as a reconciliation with the consolidated total revenues of Borrower
prepared in accordance with GAAP; and (iii) such additional information as
the Lender may reasonably request.


 


“Register” has the meaning set up in Section 5.07.


 


“Regulatory
Agency” means a Governmental Authority with responsibility for the
regulation of the research, development, marketing or sale of drugs or
pharmaceuticals in any jurisdiction, including the FDA, the U.S. National Institutes
of Health and the EMEA.


 


“Reimbursement
Payments” means all amounts received from a Contract Party under any Funded
Research Agreements in reimbursement on a pure pass-through basis for
out-of-pocket costs incurred and invoiced by Borrower and/or any of its
Subsidiaries (other than FTE Payments) in connection with the provision of
services relating to the identifying, isolating, and researching antibodies,
peptides and or proteins.


 


“Restricted Payment”
means any of the following:


 


(i) the
declaration or payment of any dividend or any other distribution on Capital
Stock of Borrower or any Subsidiary or any payment made to the direct or indirect
holders (in their capacities as such) of Capital Stock of Borrower or any
Subsidiary, including, without limitation, any payment in connection with any
merger or consolidation involving Borrower but excluding (a) dividends or
distributions payable solely in Qualified Capital Stock or through accretion or
accumulation of such dividends on such Capital Stock and (b) in the case
of Subsidiaries, dividends or distributions payable to Borrower or to a
Subsidiary and pro rata dividends or distributions payable to minority
stockholders of any Subsidiary; or


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


14

















 


(ii)           the
redemption of any Capital Stock of Borrower or any Subsidiary, including,
without limitation, any payment in connection with any merger or consolidation
involving Borrower but excluding any such Capital Stock held by Borrower or any
Subsidiary.


 


“Royalties”
means the gross amount of all royalties, minimum royalty payments, profit
payments, license fees, settlement payments, judgments, payments, securities,
consideration or any other remuneration of any kind payable or received under
any License Agreement or any In License (but in the case of an In License only
to the extent such royalties, payments and fees relate to the LFRP) and all
accounts (as such term is defined in the New York Uniform Commercial Code)
evidencing or giving rise to any of the foregoing.


 


“SEC” has the meaning set forth in Section 8.01(d).


 


“Security
Agreement” means the Amended and Restated Security Agreement, dated the
Tranche B Closing Date, substantially in the form of Exhibit D
hereto, between the Lender and Borrower securing the Obligations of Borrower
hereunder as supplemented by any amendments or joinders thereto.


 


“Significant
Subsidiary” means any
Subsidiary of Borrower which would constitute a “significant subsidiary” as
defined in Rule 1.02 of Regulation S-X under the Securities Act of
1933, as amended and the Securities Exchange Act of 1934, as amended.


 


“Subsidiary”
means, with respect to any Person, at any time, any entity of which more than
fifty percent (50%) of the outstanding Voting Stock or other equity interest
entitled ordinarily to vote in the election of the directors or other governing
body (however designated) is at the time beneficially owned or controlled
directly or indirectly by such Person, by one or more such entities or by such
Person and one or more such entities.


 


“Surviving
Person” means, with respect to any Person involved in or that makes any
disposition, the Person formed by or surviving such disposition or the Person
to which such disposition is made.


 


“Taxes”
has the meaning specified in Section 5.01(a).


 


“Tranche”
means, with respect to any Loan, whether such Loan is a Tranche A Loan or a
Tranche B Loan.


 


“Tranche
A Aggregate Accrual” has the meaning specified in Section 4.01(d).


 


“Tranche
A Deficiency Amount” has the meaning specified in Section 4.01(a).


 


“Tranche
A Loan” means the Tranche A Loan made by the Lender on the Closing Date
pursuant to Section 2.01 of the Original Loan Agreement.


 


“Tranche
A Loan Percentage” means [*****]


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


15

















 


“Tranche
A Maximum Accrual” has the meaning specified in Section 4.01(d).


 


“Tranche
A Note” means the note issued by Borrower to Lender evidencing the Tranche
A Loans made on the Closing Date to Borrower and any replacement(s) thereof
issued in accordance with Section 13.10.


 


“Tranche
A Warrant” has the meaning ascribed to “Warrant” in the Tranche A Warrant
Agreement.


 


“Tranche
A Warrant Agreement” means the Warrant Agreement between Borrower and
Lender dated the Closing Date.


 


“Tranche
B Aggregate Accrual” has the meaning specified in Section 4.01(e).


 


“Tranche
B Commitment” means $15,000,000.


 


“Tranche
B Closing Date” means March 18, 2009.


 


“Tranche
B Deficiency Amount” has the meaning specified in Section 4.01(a).


 


“Tranche
B Funding Date” means
the date on which the Lender makes the Tranche B Loan, which Tranche B Loan
shall be made on or before March 31, 2009.


 


“Tranche
B Loan” means the Tranche B Loan to be made by the Lender pursuant to Section 2.02
of this Amended Agreement.


 


“Tranche
B Loan Percentage” means [*****]


 


“Tranche
B Maximum Accrual” has the meaning specified in Section 4.01(e).


 


“Tranche
B Note” means a promissory note, substantially in the form set forth in Exhibit B,
in the amount of the Tranche B Loan, evidencing such Tranche B Loan.


 


“Tranche B Warrant” has the meaning ascribed
to “Warrant” in the Tranche B Warrant Agreement.


 


“Tranche
B Warrant Agreement” means the Warrant Agreement between Borrower and
Lender substantially in the form attached hereto as Exhibit K.


 


“Transaction
Documents” means the Loan Documents, the Warrant Agreements, the License
Agreements and the Borrower Documents.


 


“U.S.”
means the United States of America.


 


“Voting
Stock” means Capital Stock issued by a company, or equivalent interests in
any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled


 


 


Confidential materials omitted and filed
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16
















 


to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by
the happening of such contingency.


 


“Warrant
Agreements” means the Tranche A Warrant Agreement and the Tranche B Warrant
Agreement.


 


“Webphage® Software” means Borrower’s analysis and data storage
software for [*****] screening
as embodied in the United States copyright registration No. TX 5989121 issued
May 14, 2004, and any updates, improvements or modifications thereto (in
human readable, source code and object code forms).


 


“Wholly Owned Subsidiary” means, as
to any person, (a) any corporation 100% of whose capital stock (other than
directors’ qualifying shares) is at the time owned by such person and/or one or
more Wholly Owned Subsidiaries of such person and (b) any partnership, association,
joint venture, limited liability company or other entity in which such person
and/or one or more Wholly Owned Subsidiaries of such person have a 100% equity
interest at such time.


 


SECTION 1.02.               Interpretation; Headings.  Each term used in any Exhibit to this
Amended Agreement and defined in this Amended Agreement but not defined therein
shall have the meaning set forth in this Amended Agreement.  Unless the context otherwise requires, (a) “including”
means “including, without limitation” and (b) words in the singular
include the plural and words in the plural include the singular.  A reference to any party to this Amended
Agreement, any other Transaction Document or any other agreement or document
shall include such party’s successors and permitted assigns.  A reference to any agreement or order shall include
any amendment of such agreement or order from time to time in accordance with the terms herewith and
therewith.  A reference to any legislation,
to any provision of any legislation or to any regulation issued thereunder
shall include any amendment thereto, any modification or re-enactment thereof,
any legislative provision or regulation substituted therefore and all regulations
and statutory instruments issued thereunder or pursuant thereto.  Unless otherwise indicated, all references to
the Original Credit Agreement in any Loan Document or other document or instrument
delivered in connection therewith shall be deemed to refer to this Amended
Agreement and the provisions hereof.  The
headings contained in this Amended Agreement are for convenience and reference
only and do not form a part of this Amended Agreement.  Section, Article and Exhibit references
in this Amended Agreement refer to sections or articles of, or exhibits to,
this Amended Agreement unless otherwise specified.  Borrower acknowledges and agrees that it was
represented by counsel in connection with the execution and delivery of the
Loan Documents to which it is a party, that it and its counsel reviewed and
participated in the preparation and negotiation hereof and thereof and that any
rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation hereof
or thereof.


 


 


Confidential materials omitted and filed
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ARTICLE II

COMMITMENT; DISBURSEMENT; FEES


 


SECTION 2.01.               Commitment to Lend.  On the terms set forth herein, the Lender
shall, on the Tranche B Funding Date, make a loan hereunder to Borrower in a
principal amount equal to the Tranche B Commitment.


 


SECTION 2.02.               Notice of Borrowing.  Subject to Section 2.01, Borrower shall,
simultaneous with the execution of this Amended Agreement, give the Lender
notice, substantially in the form set forth in Exhibit E (the “Notice
of Borrowing”) that Borrower wishes to borrow a principal amount equal to
the Tranche B Commitment on the Tranche B Funding Date.  The Tranche B Commitment shall
automatically terminate upon funding of the Tranche B Loan on the Tranche
B Funding Date.


 


SECTION 2.03.               Disbursement.  On the terms set forth herein, the Lender shall,
on the Tranche B Funding Date, credit, in same day funds, an amount equal to
the Tranche B Commitment to the account of Borrower which Borrower shall have
designated for such purpose in the Notice of Borrowing less the initial
expenses referred to in Section 4.04 for which invoices have been received
by Borrower.


 


SECTION 2.04.               Commitment Not Revolving.  The Lender’s commitment to lend hereunder is
not revolving in nature, and any amount of the Loans repaid or prepaid may not
be reborrowed.


 


ARTICLE III

REPAYMENT


 


SECTION 3.01.               Amortization.


 


(a)           On
each Interest Payment Date (except as otherwise expressly provided herein),
Borrower shall (A) repay the portion of the outstanding principal amount
of the Tranche A Loans at par which is equal to the product of (i) the
difference between (x) Applicable Included Receipts for the prior fiscal
quarter less (y) any portion of such Applicable Included Receipts used to
pay cash interest on the Loans pursuant to Section 4.01(a), (ii) multiplied
by the Tranche A Loan Percentage and (B) repay the portion of the
outstanding principal amount of the Tranche B Loans at par which is equal to
the product of (i) the difference between (w) Applicable Included
Receipts for the prior fiscal quarter less (z) any portion of such
Applicable Included Receipts used to pay cash interest on the Loans pursuant to
Section 4.01(a), (ii) multiplied by the Tranche B Loan Percentage.


 


(b)           The
balance of the outstanding principal amount of the Loans, together with any
accrued and unpaid interest, shall be due and payable in cash on the Maturity
Date.


 


 


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SECTION 3.02.               Optional Prepayment; Mandatory
Prepayment.


 


(a)           Borrower
may, subject to Section 12.01, prepay the Loans in whole or in part,
together with accrued and unpaid interest on the amount prepaid at any time
after the No-Call Date; provided that (i) the outstanding principal
balance of the Loans after giving effect to a voluntary partial prepayment
shall be not less than [*****], (ii)  each prepayment shall be in an
amount that is an integral multiple of [*****] and not less than [*****] or, if
less, the outstanding principal amount of the applicable Tranche of the Loans
and (iii) Borrower shall not be permitted to prepay the Tranche B Loans
until all payments of principal and any other amounts owing to the Lender in
respect of the Tranche A Loans have been paid in full in cash.  If Borrower wishes to make such a prepayment,
it shall give the Lender Notice to that effect not later than the 30th day
before the date of the prepayment, specifying the date on which the prepayment
is to be made and the amount to be prepaid. 
Such Notice shall constitute Borrower’s irrevocable commitment to prepay
that amount on that date, together with interest accrued on the amount prepaid
to but excluding the prepayment date.


 


(b)           If
a Change of Control or any transaction permitted by Section 10.02(a) hereof
occurs then, at the option of the Lender, any or all of the Loans as requested
by the Lender to be prepaid (including all accrued and unpaid interest) shall
be due and payable hereunder, to the extent permitted by law, and shall be
deemed part of the amounts due and payable hereunder subject to acceleration
(either declared or immediate as provided in Section 11.02); provided
that if the Change of Control or any transaction permitted by Section 10.02(a) hereof
occurs prior to the No-Call Date, then such prepayment shall be accompanied by
the Prepayment Premium with respect to that portion of the Loans requested by
the Lender to be so prepaid.  The
Prepayment Premium in respect of the Tranche A Loans shall be paid prior to any
Prepayment Premium with respect to the Tranche B Loans.


 


(c)           With respect to Permitted Collateralizations,
Borrower shall apply (or cause to be applied): (A) [*****] of all proceeds of Permitted
Collateralizations (the “Sweep Proceeds”) to amortize (i) principal
(including all accrued and unpaid interest in respect thereof) on the Tranche A
Loans equal to the Sweep Proceeds multiplied by the Tranche A Loan Percentage
and (ii) principal (including all accrued and unpaid interest in respect
thereof) on the Tranche B Loans equal to the Sweep Proceeds multiplied by the
Tranche B Loan Percentage, in each case, by making a cash payment to the Lender
which cash payment shall also include the Prepayment Premium in respect of such
amortized amount if such Permitted Collateralization is consummated prior to
the No-Call Date (which Prepayment Premium shall not affect the principal or
interest on the Loan) and (B) [*****] of the cash proceeds shall be paid to the Lenders (without affecting
the principal or interest payable on any Loan). 
The Prepayment Premium in respect of the Tranche A Loans shall be
paid prior to any Prepayment Premium with respect to the Tranche B Loans.


 


SECTION 3.03.               Illegality.  If the Lender determines at any time that any
Law or treaty or any change therein or in the interpretation or application
thereof makes or will make it unlawful for the Lender to fulfill its commitment
in accordance with Section 2.01, to maintain the Loans (including
additional amounts pursuant to Section 4.01(a)) or to claim or receive any



 


 


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amount payable to it hereunder, the Lender shall give Notice of that
determination to Borrower, whereupon the obligations of the Lender hereunder
shall terminate.  If any such Notice is
given after the disbursement of the Loans, Borrower shall prepay the Loans in
full on the Interest Payment Date following the date the Notice is given; provided,
however, that if the Lender certifies to Borrower that earlier
prepayment is necessary in order to enable the Lender to comply with the
relevant Law, treaty or change and specifies an earlier date for the
prepayment, Borrower shall make the prepayment on the date so specified.  Prepayment pursuant to this Section 3.03
shall be made together with interest accrued and unpaid on the Loans to the
date of prepayment and all other amounts then payable to the Lender
hereunder.  Each Notice delivered
pursuant to this Section 3.03 shall be effective when sent.


 


ARTICLE IV

INTEREST; EXPENSES


 


SECTION 4.01.               Interest Rate.


 


(a)           Except
as otherwise expressly provided in Section 4.03, (i) the Tranche A
Loans shall bear interest at a rate per annum equal to 16.00% and the Tranche B
Loans shall bear interest at a rate per annum equal to 21.50% and, in each
case, shall be paid in cash as provided in Section 4.01(c); provided
that Borrower shall be required to pay interest in cash only to the extent of
the Applicable Included Receipts for the immediately preceding fiscal quarter
and shall apply such cash to the interest on the Tranche A Loans prior to
making interest payments on the Tranche B Loans.  If Borrower is unable to pay the cash interest
payments required under the first sentence of this Section 4.01(a) out
of Applicable Included Receipts or otherwise pursuant to the last sentence of
this Section 4.01(a) because (i) the then Applicable Included
Receipts are less than 16.00% per annum, paid quarterly, of the principal
amount of the Tranche A Loans (such deficiency, the “Tranche A Deficiency
Amount”) or (ii) the difference between (A) the then Applicable
Included Receipts and (B) the cash payments made in respect of accrued interest
on the Tranche A Loans on such Interest Payment Date, is less than 21.50% per
annum, paid quarterly, of the principal amount of the Tranche B Loans (such
deficiency, the “Tranche B Deficiency Amount” and, each of (x) the
Tranche B Deficiency Amount and (y) the Tranche A Deficiency Amount, a “Deficiency
Amount”), then, in each case, any Deficiency Amount shall be paid in kind,
on a quarterly basis, and on each such date, the Lender shall be deemed to have
made an additional term loan of the applicable Tranche in a principal amount
equal to the aggregate amount of interest so paid on its outstanding
Loans.  Each such Loan shall (A) be
deemed to be a Loan for all purposes under this Amended Agreement and (B) accrue
interest in accordance with this Section 4.01.  Borrower shall deliver to each Lender all
original issue discount information relating to the Loans as may be required by
applicable law.  Notwithstanding any
other provision herein, Borrower may, at its option, pay all or any portion of
any Deficiency Amount when due out of other funds held by Borrower.


 


(b)           All
interest hereunder shall be computed on the basis of a 360-day year of twelve
30-day months.


 


 


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(c)           Accrued
interest on each Loan shall be payable to the Lender at the Lockbox Account or
as otherwise notified to Borrower in arrears on each Interest Payment Date for
such Loan; provided that (i) interest accrued pursuant to Section 4.04
shall be payable on demand, in the same form as interest payable on the next
Interest Payment Date, and (ii) in the event of any repayment or
prepayment of any Loan, accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment.


 


(d)           On
each Interest Payment Date commencing with the first Interest Payment Date
following the fifth (5th) anniversary of the Closing Date, if the aggregate amount
that would be includible in income with respect to the Tranche A Note for
periods ending on or before such Interest Payment Date (within the meaning of Section 163(i) of
the Code) (the “Tranche A Aggregate Accrual”) would exceed an amount
equal to the sum of (i) the aggregate amount of interest to be paid
(within the meaning of Section 163(i) of the Code) under the Tranche
A Note on or before such Interest Payment Date (determined without regard to
the amounts payable on such Interest Payment Date under this Section 4.01(d)),
and (ii) the product of (A) the issue price (as defined in Sections
1273(b) and 1274(a) of the Code) of the Tranche A Note and (B) the
yield to maturity (interpreted in accordance with Section 163(i) of
the Code) of the Tranche A Note (such sum, the “Tranche A Maximum Accrual”),
then Borrower shall pay to the Lender in cash an amount equal to the excess, if
any, of the Tranche A Aggregate Accrual over the Tranche A Maximum Accrual, and
the amount of such payment shall be treated for any period ending after such
Interest Payment Date as an amount of interest to be paid (within the meaning
of Section 163(i) of the Code) under the Tranche A Note.


 


(e)   On each Interest
Payment Date commencing with the first Interest Payment Date following the
fifth (5th) anniversary of the Tranche B Funding Date, if the aggregate amount
that would be includible in income with respect to the Tranche B Note for
periods ending on or before such Interest Payment Date (within the meaning of Section 163(i) of
the Code) (the “Tranche B Aggregate Accrual”) would exceed an amount
equal to the sum of (i) the aggregate amount of interest to be paid
(within the meaning of Section 163(i) of the Code) under the Tranche
B Note on or before such Interest Payment Date (determined without regard to
the amounts payable on such Interest Payment Date under this Section 4.01(e)),
and (ii) the product of (A) the issue price (as defined in Sections
1273(b) and 1274(a) of the Code) of the Tranche B Note and (B) the
yield to maturity (interpreted in accordance with Section 163(i) of
the Code) of the Tranche B Note (such sum, the “Tranche B Maximum Accrual”),
then Borrower shall pay to the Lender in cash an amount equal to the excess, if
any, of the Tranche B Aggregate Accrual over the Tranche B Maximum Accrual, and
the amount of such payment shall be treated for any period ending after such
Interest Payment Date as an amount of interest to be paid (within the meaning
of Section 163(i) of the Code) under the Tranche B Note.


 


SECTION 4.02.               Lockbox Account.


 


(a)           On
the Closing Date, the Parties entered into the Lockbox Agreement with the
Lockbox Bank.


 


 


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(b)           The Lender Concentration Account shall be held
solely for the benefit of the Lender, subject to the terms and conditions of
this Amended Agreement.  The Lender shall
have immediate and full access to any funds held in the Lender Concentration
Account and such funds shall not be subject to any conditions or restrictions
whatsoever.  The Company Concentration
Account shall be held solely for the benefit of Borrower, subject to the terms
and conditions of this Amended Agreement, the Security Agreement and the other Transaction Documents.  Subject to the terms and conditions of this
Amended Agreement, the Security Agreement and the other Transaction Documents,
Borrower shall have immediate and full access to any funds held in the Company
Concentration Account and such funds shall not be subject to any conditions or
restrictions whatsoever other than those of the Lockbox Bank; provided, however,
that nothing herein shall (i) affect or reduce Borrower’s obligations to
pay in full all amounts due to the Lender under this Amended Agreement, or (ii) in
any manner limit the recourse of the Lender to the assets of Borrower to
satisfy Borrower’s obligations.


 


(c)           Sweeps from the Lockbox Account shall be made pursuant to Exhibit F.


 


(d)           Borrower shall pay for all fees, expenses and charges of
the Lockbox Bank by debiting the Company Concentration Account.


 


(e)           With respect to any License Agreement, In License or
invoice entered into or issued by Borrower in relation thereto, Borrower shall
immediately (A) notify the applicable Contract Party to remit to the
Lockbox Account when due all Royalties that are due and payable to Borrower in
respect of or derived from such License Agreement, In License or invoice and (B) in
each case, provide to the Lender a copy of each such notification.


 


(f)            Borrower shall have no right to terminate the Lockbox
Account without Lender’s prior written consent. 
Any such consent, which the Lender may grant or withhold in its
discretion, shall be subject to the satisfaction of each of the following
conditions to the satisfaction of the Lender:


 


(i)            the successor Lockbox Bank shall be
acceptable to the Lender;


 


(ii)           Lender, Borrower and the successor
Lockbox Bank shall have entered into a lockbox agreement substantially in the
form of the Lockbox Agreement initially entered into and such agreement shall
be considered the “Lockbox Agreement” under this Amended Agreement and the
other Loan Documents;


 


(iii)          all funds and items in the accounts
subject to the Lockbox Agreement to be terminated shall be transferred to the
new accounts held at the successor Lockbox Bank prior to the termination of the
then existing Lockbox Bank; and


 


(iv)          Borrower shall have received evidence
that all of the applicable parties paying Royalties have been instructed to
remit all future payments to the new accounts held at the successor Lockbox
Bank.


 


(g)           [Intentionally Omitted]


 


 


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(h)           All Gross Payments shall be paid into the Lockbox Account
or to any other account(s) designated in writing by the Lender(s) to
Borrower, and amounts deposited therein shall be treated as described in Exhibit F.


 


(i)            Borrower shall pay voluntary prepayments made at the
election of Borrower in accordance with Section 3.02(a) or any
payment made in accordance with the last sentence of Section 4.01(a) to
the Lockbox Account.


 


(j)            In the event any party to a License Agreement including
any party to a Future License remits any Royalties directly to Borrower or
otherwise except to the Lockbox Account, Borrower shall immediately (i) remit
any such Royalties to the Lockbox Account (or, if for some reason such account
is no longer in effect or payment cannot be made into such account, Borrower
shall remit such Royalties by wire transfer of immediately available funds directly
to Lender Bank Account), (ii) notify such party to remit any future
Royalties to the Lockbox Account and (iii) provide to Lender a copy of
such notice.


 


(k)           Amounts payable pursuant to this Section 4.02 shall
be in addition to any amounts payable under Section 4.02(d) of this
Amended Agreement.


 


(l)            Any payments, other than from funds paid to Lender from
the Lender Concentration Account, to be made by Borrower to Lender hereunder or
under any other Transaction Document shall be made by wire transfer of
immediately available funds to Lender Bank Account.


 


(m)          Within [*****] following delivery to Lender by Borrower of the Quarterly Report for
the fourth fiscal quarter of each calendar year during the term of the Loans,
to the extent that either Lender or Borrower has determined that there is a
discrepancy as to the amounts paid to Lender hereunder for such calendar year,
then the Person who has made such determination may notify the other in writing
of such discrepancy indicating in reasonable detail its reasons for such
determination (the “Discrepancy Notice”).  In the event that either Agent or Borrower
delivers to the other party a Discrepancy Notice, Lenders and Borrower shall
meet in person or by telephone conference as specified by Lender within [*****] (or such other time as mutually agreed by
the parties) after the receiving party has received a Discrepancy Notice to resolve
in good faith such discrepancy.


 


If the discrepancy has been resolved and, as
a result thereof, it is determined that a payment is owing by Lender to
Borrower or by Borrower to Lender, then the Party owing such payment shall
promptly pay such payment to the other Party. 
If, within [*****] after
receipt of the Discrepancy Notice, Borrower and Lender cannot resolve any such
discrepancies, then Lender and Borrower shall promptly instruct their respective
firms of independent certified public accountants to select, within [*****]
thereafter, a third internationally
recognized accounting firm (the “Independent Accountants”).  After offering Borrower and its representatives
and Lender and their representatives the opportunity to present their positions
as to the disputed items, which opportunity shall not extend for more than [*****]
after the Independent Accountants have
been selected, the Independent Accountants shall review the disputed matters and
the 


 


 


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materials submitted by Borrower and Lender and, as promptly as practicable,
deliver to Borrower and Lender a statement in writing setting forth its
determination of the proper treatment of the discrepancies as to which there
was disagreement, and that determination will be final and binding upon the
Parties without any further right of appeal. 
If Borrower has delivered the Discrepancy Notice that has resulted in
the selection of the Independent Accountants, Borrower will bear all the
charges of the Independent Accountants. 
If Agent has delivered the Discrepancy Notice that has resulted in the
selection of the Independent Accountants, Lenders will bear all the charges of
the Independent Accountants unless the Independent Accountants determine that
the amounts paid to Lender for the applicable calendar year underpaid Lender by
an amount equal or in excess of [*****] of the amounts determined to be due to
Lender for such calendar year, in which event Borrower shall bear all of the
charges of the Independent Accountants.


 


SECTION 4.03.               Interest on Late Payments.  If any amount payable by Borrower to the
Lender hereunder is not paid when due (whether at stated maturity, by
acceleration or otherwise), interest shall accrue on any such unpaid amounts,
both before and after judgment during the period from and including the applicable
due date, to but excluding the day the overdue amount is paid in full, at a
rate per annum equal to the Default Rate. 
Interest accruing under this Section 4.03 shall be payable from
time to time on demand of the Lender.


 


SECTION 4.04.               Initial Expenses.  Borrower shall reimburse the Lender, on the
Tranche B Closing Date as provided in Section 2.03, for all (a) actual,
documented out-of-pocket fees and expenses incurred by the Lender (including
all fees and expenses of outside counsel to the Lender), supported by
reasonable documentation, in connection with the negotiation, preparation,
execution and delivery of this Amended Agreement and the other Transaction
Documents including any amendment or waiver with respect thereto and (b) reasonable
fees and expenses, supported by reasonable documentation, of due diligence
conducted by the Lender or other parties (including outside counsel to the
Lender) at the request of the Lender; provided  that Borrower
shall not be required to reimburse any amounts pursuant to this Section 4.04
in excess of [*****] in the
aggregate.


 


SECTION 4.05.               Administration and Enforcement
Expenses.  Borrower shall promptly
reimburse the Lender on demand for all reasonable costs and expenses incurred
by the Lender (including the reasonable fees and expenses of one outside
counsel to the Lenders) as a consequence of or in connection with any Default
or Event of Default.


 


ARTICLE V

TAXES


 


SECTION 5.01.               Taxes.


 


(a)           Except
as otherwise required by Law, any and all payments by Borrower under this
Amended Agreement or the Notes (including payments with respect to the Loans)
shall be made free and clear of and without deduction for any and all present
and future taxes, levies, duties, imposts, deductions, charges, fees or
withholdings, and all interest, penalties and other liabilities with respect
thereto (collectively, “Taxes”) imposed by any Governmental Authority


 


 


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or taxing authority in any jurisdiction.  If any Taxes other than Excluded Taxes (“Indemnified
Taxes”) shall be required by Law to be deducted from or in respect of any
sum payable under this Amended Agreement or the Notes to a Lender, (i) the
sum payable by Borrower shall be increased as may be necessary so that after
making all required deductions of Indemnified Taxes the Lender shall receive an
amount equal to the sum it would have received had no such deductions been made
and (ii) Borrower shall make such deductions and pay the full amount deducted
to the relevant Governmental Authority or taxing authority in accordance with
applicable Law.


 


(b)           Any
Lender claiming additional amounts payable pursuant to Section 5.01(a) shall
use its reasonable efforts (consistent with its internal policies and
applicable Law) to change the jurisdiction of its lending office if such a
change would reduce any such additional amounts (or any similar amount that may
thereafter accrue) and would not, in the sole discretion of such Lender, be
otherwise disadvantageous to such Lender.


 


(c)           If
a Lender is not a “United States person” within the meaning of Section 7701(a)(30)
of the Code (a “Foreign Lender”), then such Foreign Lender shall provide
to Borrower (i) in the case of a Foreign Lender claiming exemption from
U.S. federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of “portfolio interest,” (x) two
accurate and complete original signed copies of IRS Form W-8BEN (or a
successor form) properly completed and duly executed by such Foreign Lender and
(y) a certificate to the effect that such Foreign Lender is not (A) a
“bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a
“10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of
the Code or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code, (ii) if the payments receivable by the Foreign Lender are
effectively connected with the conduct of a trade or business in the United
States, two accurate and complete original signed copies of IRS Form W-8ECI
(or a successor form), (iii) in the case of a Foreign Lender that is
entitled to benefits under an income tax treaty to which the United States is a
party that reduces the rate of withholding tax on payments of interest, two
accurate and complete original signed copies of IRS Form W-8BEN (or a
successor form) indicating that such Foreign Lender is entitled to receive
payments under this Amended Agreement and the Notes with reduced or no deduction
of any United States federal income withholding tax or (iv) in the case of
a Foreign Lender acting as an intermediary, two accurate and complete original
signed copies of IRS Form W-8IMY (or a successor form).  Such forms shall be delivered by such Foreign
Lender on or prior to the date that it becomes a Lender under this Amended
Agreement, at any time thereafter when a change in the Foreign Lender’s
circumstances renders an existing form obsolete or invalid or requires a new
form to be provided, and within fifteen Business Days after a reasonable
written request of Borrower from time to time thereafter.  Notwithstanding any other provision of this Section 5.01(c),
no Foreign Lender shall be required to deliver any form pursuant to this Section 5.01(c) that
such Foreign Lender is not legally able to deliver.


 


(d)           Each
Lender that is not a Foreign Lender shall provide two properly completed and
duly executed copies of Form W-9 (or successor form) at the times
specified for delivery of forms under Section 5.01(c).


 


 


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(e)           Each
Lender having assigned its rights and obligations hereunder in whole or in part
or having granted a participating interest in its Loans shall collect from such
assignee or participant the documents described in Sections 5.01(c) and (d) as
applicable.


 


(f)            The
Lender shall not file any IRS form under Section 6050P of the Code
reporting any cancellation of indebtedness income of the Borrower as a result
of the transactions contemplated by this Amended Agreement and
the other Transaction Documents.


 


SECTION 5.02.               Receipt of Payment.  Within thirty days after the date of any
payment of Taxes withheld by Borrower in respect of any payment to the Lender,
Borrower shall furnish to the Lender the original or a certified copy of a
receipt evidencing payment thereof or other evidence reasonably satisfactory to
the Lender.


 


SECTION 5.03.               Other Taxes.  Borrower shall promptly pay any registration
or transfer taxes, stamp duties or similar levies, and any penalties or
interest that may be due with respect thereto, that may be imposed in
connection with the execution, delivery, registration or enforcement of this
Amended Agreement, the Notes issued hereunder or any other Transaction Document
or the filing, registration, recording or perfecting of any security interest
contemplated by this Amended Agreement.


 


SECTION 5.04.               Indemnification.  If the Lender pays any Taxes that Borrower is
required to pay pursuant to this Article V, Borrower shall indemnify the
Lender on demand in full in the currency in which such Taxes are paid, whether
or not such Taxes were correctly or legally asserted, together with interest
thereon from and including the date of payment to, but excluding, the date of
reimbursement at the Default Rate.  The
Lender shall promptly notify Borrower if any claim is made against the Lender
for any Taxes for which Borrower would be responsible to indemnify the Lender
pursuant to this Section 5.04.


 


SECTION 5.05.               Loans Treated As Indebtedness.  The Parties agree to treat the Loans as
indebtedness for borrowed money of Borrower for all tax purposes.  The Parties agree not to take any position
that is inconsistent with the provisions of this Section 5.05 on any tax
return or in any audit or other administrative or judicial proceeding unless (i) the
other Party has consented to such actions, or (ii) the Party that
contemplates taking such an inconsistent position has been advised by nationally
recognized tax counsel in writing that it is more likely than not that (x) there
is no “reasonable basis” (within the meaning of Treasury Regulation Section 1.6662-3(b)(3))
for the position specified in this Section 5.05 or (y) taking such a
position would otherwise subject the Party to penalties under the Code.


 


SECTION 5.06.               Allocation of Issue Price.  The Tranche A Note and the
Tranche A Warrant, taken together, constitute an “investment unit” for
purposes of Section 1273(c)(2) of the Code.  In accordance with Sections 1273(c)(2)(A) and
1273(b)(2) of the Code, the issue price of the investment unit is the
purchase price of the Tranche A Note, with $431,761 thereof representing
the fair market value of the Tranche A Warrant.  The Tranche B Note and the Tranche B Warrant,
taken together, constitute an “investment unit” for purposes of Section 1273(c)(2) of
the Code.  In accordance with Sections
1273(c)(2)(A) and 1273(b)(2) of the Code, 


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


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the issue price of the investment unit is the purchase price of the
Tranche B Note, with [*****] thereof representing the fair market value of the
Tranche B Warrant.  Unless otherwise
required by Law, the Parties shall not take any position inconsistent with
these allocations on any tax return or for any other tax purpose.


 


SECTION 5.07.               Registered Obligation.


 


(a)           Borrower
shall establish and maintain at its address referred to in Section 13.04 (A) a
record of ownership (the “Register”) in which Borrower agrees to
register by book entry the interests (including any rights to receive payment
hereunder) of each Lender in the Loans, each of their obligations under this
Amended Agreement to participate in the Loans, and any assignment of any such
interest, obligation or right, and (B) accounts in the Register in accordance
with its usual practice in which it shall record (1) the names and
addresses of the Lender(s) (and each change thereto pursuant to Section 13.02),
(2) the Tranche B Commitment of each Lender, (3) the amount of
the Loans and each funding of any participation described in clause (A) above,
(4) the amount of any principal or interest due and payable or paid, and (5) any
other payment received and its application to the Loans.


 


(b)           Notwithstanding
anything to the contrary contained in this Amended Agreement, the Loans
(including any Note evidencing such Loan) are registered obligations, the
right, title and interest of the Lender and its assignees in and to such Loans
shall be transferable only upon notation of such transfer in the Register and
no assignment thereof shall be effective until recorded therein.  This Section 5.07 and Section 13.02
shall be construed so that the Loans are at all times maintained in “registered
form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of
the Code and any related regulations (and any successor provisions).


 


ARTICLE VI

PAYMENTS; COMPUTATIONS


 


SECTION 6.01.               Making of Payments.


 


(a)           To
the extent (i) that Applicable Included Receipts received into the Lockbox
Account during any fiscal quarter are less than the total amount of Applicable
Included Receipts required for purposes of calculating the interest that
Borrower is required to pay to Lender under Section 4.01(a) on any
Interest Payment Date or (ii) Borrower exercises its option to pay any
Deficiency Amount out of other funds of Borrower and/or any of its Subsidiaries
as described in the last sentence of Section 4.01(a), then such deficiency
shall be made in Dollars, by deposit in same day funds by 3:00 p.m. New
York time on the date the interest payment is due, to the Lockbox Account, for
the account of the applicable Lending Office(s), or to any other account
designated by the Lenders by Notice to Borrower.


 


(b)           Notwithstanding
anything to the contrary contained herein, any payment stated to be due
hereunder or under any Note on a given day in a specified month shall be made
or shall end (as the case may be), (i) if there is no such given day or
corresponding day, on the last Business Day of such month or (ii) if such
given day or corresponding day is not a Business Day, on the next succeeding
Business Day, unless such next succeeding Business Day falls in a


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


27
















 


different calendar month, in which case such payment shall be made on
the next preceding Business Day.


 


SECTION 6.02.           Setoff
or Counterclaim.  Each payment by
Borrower under this Amended Agreement or under any Note shall be made without
setoff or counterclaim.  Lenders shall
have the right to setoff any and all amounts owed by Borrower and/or any of its
Subsidiaries under this Amended Agreement as provided in Section 11.03.


 


ARTICLE VII

CLOSING  DOCUMENTATION


 


SECTION 7.01.           Tranche A
Loan Closing Documentation.  In order
to induce the Lender to make the Tranche A Loan on the Closing Date, the
following documentation was provided simultaneous with the execution of the
Original Loan Agreement:


 


(a)           Borrower
delivered to the Lender the Tranche A Note, dated the Closing Date.


 


(b)           Borrower
delivered to the Lender an executed copy of:


 


(i)      a certificate of Borrower, dated
the Closing Date, substantially in the form set forth in Exhibit L
to the Original Loan Agreement together with the attachments specified therein;


 


(ii)     an opinion of Edwards Angell Palmer &
Dodge LLP, counsel to Borrower, dated the Closing Date, substantially in
the form of Exhibit M to the Original Loan Agreement and otherwise in form and substance satisfactory to the
Lender;


 


(iii)    an opinion of Wolf Greenfield, counsel of
Borrower , dated the Closing Date, substantially in the form of Exhibit N
to the Original Loan Agreement and otherwise in form and substance satisfactory
to the Lender.


 


(iv)    an opinion of Lowrie, Lando &
Anasasi, LLP, counsel of Borrower, dated the Closing Date, substantially in the
form of Exhibit O to the Original Loan Agreement and in form and
substance satisfactory to the Lender.


 


(c)           Borrower
delivered to the Lender a certificate, dated the Closing Date, of a senior officer
of Borrower (the statements made in which to have been true and correct on and
as of the Closing Date):  (i) attaching
copies, certified by such officer as true and complete, of Borrower’s
certificate of incorporation or other organizational documents (together with
any and all amendments thereto) certified by the appropriate Governmental
Authority as being true, correct and complete copies; (ii) attaching
copies, certified by such officer as true and complete, of resolutions of the
Board of Directors of Borrower authorizing and approving the execution,
delivery and performance by Borrower of the Original Loan Agreement, the other
Original Transaction Documents and the transactions 


 


 


Confidential materials omitted and filed
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28

















 


contemplated therein; (iii) setting
forth the incumbency of the officer or officers of Borrower who executed and
delivered the Original Loan Agreement and the other Original Transaction
Documents including therein a signature specimen of each such officer or officers;
and (iv) attaching copies, certified by such officer as true and complete,
of certificates of the appropriate Governmental Authority of the jurisdiction
of formation, stating that Borrower was in good standing under the laws of such
jurisdiction as of the Closing Date.


 


(d)           Borrower
executed and delivered to the Lender the Original Loan Documents and such other
documents as the Lender reasonably requested, in each case, in form and
substance satisfactory to the Lender.


 


(e)           Borrower
executed and delivered to the Lender the Tranche A Warrant Agreement.


 


(f)            Borrower
executed and delivered to the Lender the other Original Transaction Documents,
which were in full force and effect.


 


(g)           The
Lender received all fees and expenses due and payable to the Lender on the
Closing Date under the Original Loan Agreement and the other Original Transaction
Documents.


 


(h)           No
event occurred and continued that constituted a Default or an Event of Default
under the Original Loan Agreement or a similar event under the other Original
Transaction Documents and no such event occurred or would have occurred by
reason of the Tranche A Loan.


 


(i)            The
representations and warranties made by Borrower in Article VIII of the
Original Loan Agreement and in the other Original Transaction Documents were
true and correct as of the Closing Date, before and after giving effect to the
Tranche A Loan.


 


(j)            Borrower
delivered to the Lender true copies of the License Agreements in existence as
of the Closing Date, certified by an officer of Borrower, including all
amendments, supplements or other modifications thereto which, as of the Closing
Date, were in full force and effect.


 


(k)           All
filings, recordings and other actions that were necessary or reasonably
requested by the Lender in order to establish, protect, preserve and perfect
the security interest in the assets of Borrower as provided in the Original
Security Agreement as a valid and perfected first priority security interest
with respect to such assets were duly effected.


 


(l)            All
necessary governmental and third-party approvals, consents and filings,
including in connection with the Tranche A Loan, the Original Security
Agreement and the Tranche A Warrant Agreement were obtained or made and be in
full force and effect.


 


 


Confidential materials omitted and filed
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(m)          The
Lender had conducted a background check of the officers of Borrower and the
results were to the satisfaction of the Lender. 
The Lender received all documentation and other information required by
bank regulatory authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including without limitation,
the Patriot Act, including, without limitation, the information described in Section 13.19.


 


(n)           The
Lender received from Borrower (i) an executed copy of the Release of
Security Agreement between Borrower and Paul Royalty Funds Holdings II, (ii) evidence
to the satisfaction of the Lender that such release(s) in form and substance
satisfactory to the Lender were to be filed with the U.S. Patent and Trademark
Office and the U.S. Copyright Office on the Closing Date, (iii) evidence
to the satisfaction of the Lender that a UCC-3 termination statement was filed
with the office of the Secretary of State of the State of Delaware on the Closing
Date, and (iv) evidence to the satisfaction of the Lender of agreements to
terminate (A) the lockbox agreement among Paul Royalty Funds Holdings II,
Borrower and JP Morgan Chase Bank, and (B) the escrow arrangement with respect
to duplicate libraries for the benefit of Paul Royalty Funds Holdings II.


 


SECTION 7.02.           Tranche
B Loan Closing Documentation.  In order to induce the Lender to make the
Tranche B Loan on the Tranche B Funding Date, the following documentation was
provided simultaneous with the execution of this Amended Agreement:


 


(a)           Borrower
executed and delivered to the Lender the Tranche B Note.


 


(b)           Borrower
delivered to the Lender an executed copy of:


 


(i)      a certificate of Borrower, dated the
Tranche B Closing Date, substantially in the form set forth in Exhibit G
hereto together with the attachments specified therein;


 


(ii)     an opinion of Edwards Angell Palmer & Dodge LLP, counsel to
Borrower, dated the Tranche B Closing Date, substantially in the form of
Exhibit H hereto and otherwise in form and substance satisfactory to the Lender;


 


(iii)    an opinion of Wolf Greenfield, counsel of
Borrower, dated the Tranche B Closing Date, substantially in the form of Exhibit I
hereto and otherwise in form and substance satisfactory to the Lender; and


 


(iv)    an opinion of Lowrie, Lando &
Anasasi, LLP, counsel of Borrower, dated the Tranche B Closing Date,
substantially in the form of Exhibit J hereto and in form and
substance satisfactory to the Lender.


 


(c)           Borrower
delivered to the Lender a certificate, dated the Tranche B Closing Date, of a
senior officer of Borrower (the statements made in which shall be true and
correct on and as of the Tranche B Closing Date):  (i) attaching copies, certified by such
officer as true and complete, of Borrower’s certificate of incorporation or
other organiza-


 


 


Confidential materials omitted and filed
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30

















 


tional documents
(together with any and all amendments thereto) certified by the appropriate
Governmental Authority as being true, correct and complete copies; (ii) attaching
copies, certified by such officer as true and complete, of resolutions of the
Board of Directors of Borrower authorizing and approving the execution,
delivery and performance by Borrower of this Amended Agreement, the other
Transaction Documents and the transactions contemplated herein and therein; (iii) setting
forth the incumbency of the officer or officers of Borrower who have executed
and delivered this Amended Agreement and the other Transaction Documents
including therein a signature specimen of each such officer or officers; and (iv) attaching
copies, certified by such officer as true and complete, of certificates of the
appropriate Governmental Authority of the jurisdiction of formation, stating
that Borrower is in good standing under the laws of such jurisdiction.


 


(d)           Borrower
executed and delivered to the Lender the Security Agreement (including the
schedules thereto) and such other documents as the Lender reasonably requested,
in each case, in form and substance satisfactory to the Lender.


 


(e)           Borrower
executed and delivered to the Lender the Tranche B Warrant Agreement.


 


(f)            Borrower
executed and delivered to the Lender the other Transaction Documents, which
were in full force and effect.


 


(g)           The
Lender received all fees and expenses due and payable to the Lender on or prior
to the Tranche B Closing Date under this Amended Agreement and the other Transaction
Documents.


 


(h)           All
filings, recordings and other actions that are necessary or reasonably
requested by the Lender in order to establish, protect, preserve and perfect
the security interest in the assets of Borrower as provided in the Security
Agreement as a valid and perfected first priority security interest with
respect to such assets have been duly effected, including the filing of a UCC-3
financing statement amendment and a Patent Security Agreement (as defined in
the Security Agreement) and Copyright Security Agreement (as defined in the
Security Agreement) with respect to any registered intellectual property
Collateral which Lender has not previously filed a Patent Security Agreement or
Copyright Security Agreement, with respect thereto.


 


(i)            Borrower
delivered to the Lender true copies of the License Agreements certified by an
officer of Borrower, including all amendments, supplements or other
modifications thereto, and each License Agreement and amendment, supplement or
other modification thereto shall be in full force and effect, provided that
Borrower was not required to deliver any License Agreements which were
delivered to Lender as of the Closing Date or in any Business Report and that
have not been amended, modified, supplemented or terminated since the date they
were so delivered.


 


 


Confidential materials omitted and filed
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(j)            All
necessary governmental and third-party approvals, consents and filings,
including in connection with the Tranche B Loan, the Security Agreement and the
Tranche B Warrant Agreement were obtained or made and be in full force and
effect.


 


ARTICLE VIII

REPRESENTATIONS AND WARRANTIES


 


SECTION 8.01.           Representations and Warranties of
Borrower.  Borrower hereby represents and warrants to
Lender as follows (with such representations and warranties qualified to the
extent of the Schedules referred to therein and delivered to the Lender concurrently
with the execution and delivery of this Amended Agreement):


 


(a)           Borrower
is a corporation duly organized, validly existing and in good standing under
the laws of Delaware and is duly qualified as a foreign corporation and, where
legally applicable, is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which
the failure to be so qualified or in good standing could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect, and
has the power and authority (including any required license, permit or other
approval from any Governmental Authority) to own its assets, to carry on its
business as currently conducted and to consummate the transactions contemplated
in, and to perform its obligations under, this Amended Agreement and the other
Transaction Documents to which it is party or by which it is bound.


 


(b)           Borrower
has taken all necessary action to authorize its execution and delivery of this
Amended Agreement and the other Transaction Documents to which it is party, the
performance of its obligations under this Amended Agreement and the other
Transaction Documents to which it is party or by which it is bound and the
consummation of the transactions contemplated hereby and thereby.


 


(c)           This
Amended Agreement and each other Transaction Document to which Borrower is
party has been duly executed and delivered by Borrower, and each constitutes a
valid and binding obligation of Borrower, enforceable against Borrower in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium and
similar laws affecting creditors’ rights generally, and subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).


 


(d)           No
authorization or action of any kind by any Governmental Authority is necessary
to authorize the transactions contemplated by this Amended Agreement and each
other Transaction Document or required for the validity or enforceability
against Borrower of this Amended Agreement and each other Transaction Document,
except any filings with a Governmental Authority required to perfect the Lender’s
security interest under the Security Agreement and any filings with the United
States Securities and Exchange Commission (“SEC”).


 


 


Confidential materials omitted and filed
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(e)           No
consent or approval of, or notice to, any Person is required by the terms of
any agreement, contract, lease, commitment, license and other arrangement (each
a “Contract”) for the execution or delivery of, or the performance of
the obligations of Borrower under, this Amended Agreement and the other
Transaction Documents to which Borrower is party or the consummation of the
transactions contemplated hereby or thereby, and such execution, delivery,
performance and consummation will not result in any breach or violation of, or
constitute a default under Borrower Documents or any material Contract,
instrument or Law applicable to Borrower, any of its Subsidiaries or any of its
assets.


 


(f)            There
are no actions, proceedings or claims pending or, to the actual knowledge of Borrower,
threatened the adverse determination of which could reasonably be expected to
have a Material Adverse Effect.


 


(g)           No
Default or Event of Default has occurred and is continuing, and no such event
will occur upon the making of the Loan.


 


(h)           The
representations and warranties previously made by Borrower in Article VIII
of the Original Loan Agreement and in the other Transaction Documents shall
have been true and correct as of the date such representations and warranties
were made (in each case, except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct as of such
earlier date).


 


(i)            With
respect to each Contract that is material to the conduct of the LFRP, (i) each
such Contract is a valid and binding agreement and each such Contract is in
full force and effect, and (ii) Borrower and/or any of its Subsidiaries is in
compliance with each such Contract and has no actual knowledge of any default
under any such Contract which default has not been cured or waived.


 


(j)            All
written information heretofore, herein or hereafter supplied to the Lender by
or on behalf of Borrower in connection with the Loans and the other transactions
contemplated hereby has been, is and will be accurate and complete in all
material respects.  All representations
and warranties made by Borrower in any of the other Transaction Documents to
which it is party are true and correct in all material respects.


 


(k)           The
Financial Statements are complete and accurate in all material respects, were
prepared in conformity with GAAP applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto) and present
fairly in all material respects, in accordance with applicable requirements of
GAAP, the consolidated financial position and the consolidated financial
results of the operations of Borrower and its Subsidiaries as of the dates and
for the periods covered thereby and the consolidated statements of cash flows
of Borrower and its Subsidiaries for the periods presented therein.  Except as disclosed in Borrower’s SEC
filings, there have been no Material Adverse Effects since December 31,
2008.


 


 


Confidential materials omitted and filed separately
with the Securities and Exchange Commission. 
Asterisks denote such omission.


 


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(l)            Borrower
and its Subsidiaries have
no Indebtedness other than (i) identified in the Financial Statements or (ii) incurred
by Borrower or its Subsidiaries in the ordinary course of business since December 31,
2008 or (c) otherwise listed and described on Schedule 8.01(l).


 


(m)          As of February 28, 2009 and after
giving effect to the making of the Loans:


 


(i)      The aggregate value of the assets of
Borrower, at fair value and present fair salable value, exceeds (i) its
Liabilities and (ii) the amount required to pay such Liabilities as they
become absolute and matured in the normal course of business;


 


(ii)     Borrower has the ability to pay its debts
and Liabilities as they become absolute and matured in the normal course of
business; and


 


(iii)    Borrower does not have an unreasonably small
amount of capital with which to conduct its business.


 


(n)           Borrower’s Subsidiaries are set forth on Schedule
8.01(n).


 


(o)           (i)  Borrower and its
Subsidiaries are in compliance with all applicable Laws except where the
failure to be in compliance could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. 
No prospective change in any applicable laws, rules, ordinances or
regulations has been proposed or adopted which, when made effective, could
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


(ii)           Borrower
possesses all material certificates, authorizations and permits issued or
required by the appropriate federal, state, local or foreign regulatory
authorities, including any effective investigational new drug application or
its equivalent, necessary to conduct the LFRP, including all such certificates,
authorizations and permits required by the FDA or any other federal, state,
local or foreign agencies or bodies engaged in the regulation of
pharmaceuticals or biohazardous substances or materials except where the
failure to possess such certificates, authorizations and permits, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.  Borrower has not
received any notice of proceedings relating to, and to the Knowledge of
Borrower there are no facts or circumstances that could reasonably be expected
to lead to, the revocation, suspension, termination or modification of any such
certificate, authorization or permit.


 


(iii)          To
the actual knowledge of Borrower, there has been no indication that the FDA or
any other Regulatory Agency has any material concerns with any Product or may
not approve any Product, nor has any Product, to the actual knowledge of
Borrower, suffered any material adverse events in any clinical trial.


 


 


Confidential materials omitted and filed
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(p)           Borrower
is not an investment company subject to regulation under the Investment Company
Act of 1940.


 


(q)           Borrower
has timely filed all tax returns required to be filed by it and has paid all
taxes due reported on such returns or pursuant to any assessment received by
Borrower, except for failures to file tax returns or pay taxes that, individually,
and in the aggregate, are not reasonably expected to result in a Material
Adverse Effect.  Any charges, accruals or
reserves on the books of Borrower in respect of taxes are adequate except for
inadequacies that, individually, and in the aggregate, are not reasonably expected
to result in a Material Adverse Effect. 
Borrower has had no material liability for any taxes imposed on or with
respect to its net income (except for state or local income or franchise
taxes).  Borrower has fulfilled all its
obligations with respect to withholding taxes except for failures that,
individually, and in the aggregate, are not reasonably expected to result in a
Material Adverse Effect.  No deduction or
withholding for or on account of any tax has been made, or was required under
applicable Law to be made, from any payment to Borrower under the License
Agreements in effect on the Tranche B Closing Date.


 


(r)            Neither
Borrower nor any ERISA Affiliate has ever incurred any unsatisfied liability or
expects to incur any liability under Title IV or Section 302 of ERISA or Section 412
of the Code or any similar non-U.S. law or maintains or contributes to, or is
or has been required to maintain or contribute to, any employee benefit plan
(as defined in Section 3(3) of ERISA) subject to Title IV or Section 302
of ERISA or Section 412 of the Code or any non-U.S. law.  The consummation of the transactions
contemplated by this Amended Agreement will not constitute or result in any
non-exempt prohibited transaction under Section 406 of ERISA, Section 4975
of the Code or substantially similar provisions under any foreign or U.S.
federal, state or local laws, rules or regulations.  Neither Borrower nor any of its Subsidiaries
has incurred any material liability with respect to any obligation to provide
benefits, including death or medical benefits, with respect to any person
beyond their retirement or the termination of service other than coverage mandated
by law.


 


(s)           (i) 
Except as set forth on Schedule 8.01(s)(i), all of the LFRP Intellectual
Property owned by Borrower is solely (and not jointly) owned by Borrower and is
free and clear of any and all Liens, except those Liens created in favor of
Lender pursuant to the Transaction Documents. The Included Receipts and all of
the rights of Borrower under the In Licenses and License Agreements and all
other rights in and to the LFRP are free and clear of any and all Liens, except
those Liens created in favor of Lender pursuant to the Transaction Documents.


 


(ii)           Borrower
owns, and is the sole holder of, all the Included Receipts.  Borrower owns, and is the sole holder of,
and/or has and holds a valid, enforceable and subsisting license to, all assets
(including LFRP Intellectual Property) that are required to produce or receive
any payments from any Contract Party or payor under and pursuant to, and
subject to the terms of any License Agreements. 
Borrower has not transferred, sold, 


 


 


Confidential materials omitted and filed
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or
otherwise disposed of, or agreed to transfer, sell, or otherwise dispose of any
portion of its respective rights to receive payment of Royalties.  Except as set forth on Schedule
8.01(s)(ii), no Person other than Borrower has any right to receive the
payments payable under any License Agreement entered into from and after the
Closing Date through Tranche
B Closing Date, other than, in respect of the Included Receipts, Lender.


 


(t)            The
claims and rights of the Lender created by this Amended Agreement and any other
Transaction Document in and to the Collateral is senior to any Indebtedness or
other obligation of Borrower, with respect to such Collateral.


 


(u)           Borrower’s
principal place of business and chief executive office are set forth on Schedule
8.01(u).


 


(v)           (i) 
Borrower has provided Lender all material information in its possession, or
otherwise known to it with respect to the LFRP Patents.


 


(ii)           Schedule
8.01(v)(ii) sets forth an accurate and complete list of all LFRP
Patents (including all LFRP Patents not owned by Borrower).  For each item of the LFRP Patents listed on Schedule
8.01(v)(ii), Borrower has indicated (A) the countries in each case in which
such item is patented, registered or in which an application for patent or
registration is pending, (B) the application numbers, (C) the
registration or patent numbers, (D) the scheduled expiration date of the
issued patents, and (E) the owner of such item of LFRP Patents.


 


(iii)          The
issued LFRP Patents owned by Borrower are valid, enforceable and subsisting.  To the Knowledge of Borrower, each individual
associated with the filing and prosecution of the LFRP Patents owned by
Borrower, including the named inventors of such LFRP Patents, has complied in
all material respects with all applicable duties of candor and good faith in
dealing with any Patent Office, including any duty to disclose to any Patent
Office all information known to be material to the patentability of each of
such LFRP Patents, in those jurisdictions where such duties exist.  [*****].


 


(iv)          Schedule
8.01(v)(iv) sets forth an accurate and complete list of all LFRP
Patents owned by Borrower that have issued with at least one claim covering the
Company LFRP Methods and Libraries.


 


(v)           Borrower
has not sold or otherwise transferred any patents or patent applications that
have issued or may issue with at least one claim covering the Company LFRP
Methods and Libraries or falling within the scope of the patents licensed under
the Patent License Agreements.


 


(vi)          There
are no unpaid maintenance or renewal fees payable by Borrower to any third
party that are currently overdue for any of the LFRP Patents or other LFRP Intellectual
Property owned by Borrower.  To the
Knowledge of Borrower no material ap-


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


36

















 


plications
for LFRP Patents owned by Borrower in whole or in part have lapsed or been
abandoned, cancelled or expired.


 


 (vii)      Borrower has not
undertaken and, to the Knowledge of Borrower, no licensee has undertaken or
omitted to undertake any acts, and no conduct, circumstances or grounds exist
that would void, invalidate or eliminate, in whole or in part, the enforceability
of any of the LFRP Intellectual Property. 
[*****]


 


 (viii)      Except as set forth
on Schedule 8.01(v)(viii), Borrower has not received or otherwise been
the beneficiary of any written opinions of counsel with respect to infringement,
non-infringement or invalidity of third party intellectual property with respect
to the Company LFRP Methods and Libraries that are not the subject of an In License.


 


(ix)         Except
as set forth on Schedule 8.01(v)(ix), to the Knowledge of Borrower there
is, and has been, no pending, decided or settled opposition, interference,
reexamination, injunction, claim, lawsuit, proceeding, hearing, investigation,
complaint, arbitration, mediation, demand, International Trade Commission
investigation, decree, or any other dispute, disagreement, or claim
(collectively referred to hereinafter as “Disputes”), nor, to the
Knowledge of Borrower, has any such Dispute been threatened, challenging the
scope, legality, validity, enforceability or ownership of any LFRP Intellectual
Property or which would give rise to a credit against the payments due to
Borrower from the applicable License Agreements for the use of the related
licensed LFRP Intellectual Property, and no such scheduled Dispute is (or would
be if adversely determined) material to the LFRP.


 


(x)            To
the Knowledge of Borrower, there are no Disputes by any third party against Borrower,
any licensor under an In License or any licensee under a License Agreement
relating to the LFRP.  Borrower has not
received or given, and to the Knowledge of Borrower, no such licensee or
licensor has received or given any notice of any such Dispute and, to the
Knowledge of Borrower, there exist no circumstances or grounds upon which any
such claim could be asserted.  [*****].


 


(xi)           There
is no pending or, to the Knowledge of Borrower, threatened action, suit, or proceeding,
or any investigation or claim by any Governmental Authority to which Borrower
or, to the Knowledge of Borrower, to which any licensee under any License
Agreement or any party to a In License is a party (i) that would be the
subject of a claim for indemnification, if any, by or against Borrower or (ii) that
the Company LFRP Methods and Libraries do or will infringe on any patent or
other intellectual property rights of any other Person.  [*****].


 


(w)          (i)  Schedule 8.01(w)(i) sets forth
an accurate and complete list of all agreements relating to LFRP in the
following categories whether oral or written (provided such oral
agreements are to the Knowledge of Borrower): 
manufacturing and supply agreements, In Licenses and License Agreements,
options (not part of License 


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


37

















 


Agreements or In
Licenses), agreements not to enforce (not part of License Agreements or In
Licenses), consents, settlements, assignments, security interests, liens and
other encumbrances or mortgages, and any amendment(s), renewal(s), novation(s) and
termination(s) pertaining thereto, true and correct copies of which have
been provided to Lender.  For each
agreement specified on Schedule 8.01(w)(i), Borrower has indicated (A) whether
such agreement relates to inbound licenses of LFRP Intellectual Property to Borrower
or outbound licenses of LFRP Intellectual Property by Borrower and (B) the
specific LFRP Intellectual Property relating to such agreement.  Each agreement specified on Schedule
8.01(w)(i), whether or not terminated prior to the Tranche B Closing Date,
constitutes a valid and binding obligation, enforceable in accordance with its
terms, subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights
generally or general equitable principles. 
Borrower is not in breach of such agreements and, to the Knowledge of
Borrower, no circumstances or grounds exist that would give rise to a claim of
breach or right of rescission, termination (other than existing rights under
any License Agreement for a party to terminate for convenience), revision, or
amendment of any of the agreements specified on Schedule 8.01(w)(i),
including the signing of this Amended Agreement.  None of the Excluded Agreements fall within
the scope of an In License or License Agreement as each is defined; provided  that the intellectual property or technology
which is the subject of an In License may be assigned in connection with an
Excluded Agreement.  None of the Excluded Agreements was used in
the calculation of the revenue forecasts provided by Borrower to Lender on February 13,
2009.


 


(ii)           With
respect to the License Agreements and In Licenses, there has been no
correspondence or other written or, to the Knowledge of Borrower, oral communication
sent by or on behalf of Borrower to, or received by or on behalf of Borrower
from, any Contract Party, the subject matter of which could, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(iii)          Except
as set forth on Schedule 8.01(w)(iii), each such License Agreement or In
License is in full force and effect and has not been impaired, waived, altered
or modified in any respect, whether by consent or otherwise, and no scheduled
item could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


(iv)          The
Contract Party under each such License Agreement or In License has not been released,
in whole or in part, from any of its obligations under such License Agreement.


 


(v)           Borrower
has not received (A) any notice or other written or, to the Knowledge of
Borrower, oral communication of any Contract Party’s intention to terminate
such License Agreement or In License in whole or in part, or consideration of
any such termination, or (B) except as set forth on Schedule 8.01(w)(v),
any notice or other written or, to the Knowledge of Borrower, oral
communication requesting any amendment, alteration or modification of such
License Agreement or In License or any subli-


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


38
















 


cense
or assignment thereunder, and no scheduled item could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


(vi)          To
the Knowledge of Borrower, nothing has occurred and no condition exists that
would adversely impact the right of Borrower to receive any payments payable
under any License Agreement except where such occurrence or condition could not
reasonably be expected to result in a Material Adverse Effect.  Other than as set forth on Schedule
8.01(w)(vi), Borrower, or, to the Knowledge of Borrower, any Contract Party
has not taken any action or omitted to take any action, that would adversely
impact the right of Lender to take a security interest in the LFRP Technology,
and no scheduled item could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.


 


(vii)         [*****].


 


(viii)        Except
as set forth on Schedule 8.01(w)(viii), no License Agreement has been
satisfied in full, discharged, canceled, terminated, subordinated or rescinded,
in whole or in part.  Each License
Agreement is the entire agreement between the parties thereto relating to the
subject matter thereof, and no scheduled item could, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


(ix)           The
execution, delivery and performance of each License Agreement and In License
was and is within the corporate powers or other organizational power of Borrower
and, to the Knowledge of Borrower, the Contract Party thereto.  Each License Agreement and In License was
duly authorized by all necessary action on the part of, and validly executed
and delivered by, Borrower and, to the Knowledge of Borrower, the Contract
Party thereto.  There is no breach or
default, or event which upon notice or the passage of time, or both, could give
rise to any breach or default, in the performance of such License Agreement or
In License by Borrower or, to the Knowledge of Borrower, the Contract Party
thereto.


 


(x)            The
representations and warranties made in each existing Material License and In
License by Borrower were as of the date made true and correct in all material respects
except where the failure to be true and correct could not reasonably be expected
to have a Material Adverse Effect.


 


(xi)           The
royalty rates and the duration of such royalty rates in each country under each
existing License Agreement are as set forth on Schedule 8.01(w)(xi).  There are no royalties due to Contract
Parties under In Licenses with respect to Royalties under the License Agreements
except to [*****].


 


(xii)          [*****].


 


(xiii)         No
software is necessary for use in the LFRP other than commercially available
software.


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


39

















 


(xiv)        Schedule
C sets forth all the biological material, know-how, data, technical and
other information other than the LFRP Libraries described in Schedule D
that is provided to Contract Parties under Library License Agreements, other
than in oral form.


 


(xv)         The
LFRP Libraries described in Schedule D are all the libraries used in the
LFRP within the twelve (12) months prior to the Closing Date with the exception
of affinity maturation libraries.


 


(x)            Borrower and Borrower’s Subsidiaries have the
insurance policies with the coverages and limits set forth on Schedule
8.01(x), carried with the insurance companies also set forth therein.


 


SECTION 8.02.           Survival
of Representations and Warranties. 
All representations and warranties of Borrower contained in this Amended
Agreement shall survive the execution, delivery and acceptance thereof by the
Parties and the closing of the transactions described in this Amended
Agreement.


 


ARTICLE IX

AFFIRMATIVE COVENANTS


 


SECTION 9.01.           Maintenance
of Existence.  Borrower and/or any of
its Subsidiaries party to the Loan Documents shall at all times (a) preserve,
renew and maintain in full force and effect its legal existence and good
standing as a corporation under the Laws of the jurisdiction of its
organization; (b) not change its name or its chief executive office as set
forth herein without having given the Lender simultaneous notice thereof; (c) take
all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (d) preserve or renew all LFRP Intellectual
Property, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.


 


SECTION 9.02.           Use
of Proceeds.  Borrower shall use the
net proceeds of the Loans received by it (i) for general corporate
purposes and/or (ii) to pay all fees and expenses payable by Borrower
pursuant to the Transaction Documents.


 


SECTION 9.03.         Financial Statements and Information.


 


(a)           In
the event that any such information need not to be filed with the SEC pursuant
to Section 13 or 15(d) of the Exchange Act, Borrower shall furnish to
the Lender, on or before the forty-fifth day after the close of each quarter of
each fiscal year, the unaudited consolidated balance sheet of Borrower as at
the close of such quarter and unaudited consolidated statement of operations
and comprehensive loss and cash flows of Borrower for such quarter, duly
certified by the chief financial officer of Borrower as having been prepared in
accordance with GAAP.  Concurrently with
the delivery or filing of the documents described in the preceding sentence,
Borrower shall furnish to the Lender a certificate of the chief financial
officer, chief accounting officer or treasurer of Borrower, which certificate
shall include a statement that 


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


40

















 


such officer has no knowledge, except as specifically stated, of any
condition, event or act which constitutes a Default or Event of Default.


 


(b)           In
the event that any such information need not be filed with the SEC pursuant to Section 13
or 15(d) of the Exchange Act, Borrower shall furnish to the Lender, on or
before the sixtieth day after the close of each fiscal year, Borrower’s audited
financial statements as at the close of such fiscal year, including the
consolidated balance sheet as at the end of such fiscal year and consolidated
statement of operations and cash flows of Borrower for such fiscal year, in
each case accompanied by the report thereon of independent registered public
accountant of nationally recognized standing. 
Concurrently with the delivery or filing of the documents described in
the preceding sentence, Borrower shall furnish to the Lender a certificate of
the chief financial officer, chief accounting officer or treasurer of Borrower,
which certificate shall include a statement that such officer has no knowledge,
except as specifically stated, of any condition, event or act which constitutes
a Default or Event of Default.


 


(c)           Borrower
shall, promptly upon receipt thereof, forward or cause to be forwarded to the
Lender copies of all notices, reports, updates and other information regarding
the License Agreements and Included Receipts received from the Contract Parties
which could reasonably be expected to have a Material Adverse Effect.


 


(d)           Borrower
shall furnish or cause to be furnished to the Lender from time to time such
other information regarding the financial position, assets or business of Borrower
or any other Subsidiary or its compliance with any Transaction Document to
which it is a party or the LFRP as the Lender may from time to time reasonably
request.


 


(e)           Borrower shall, promptly after the end of each fiscal
quarter of Borrower (but in no event later than [*****] following the end of such quarter), produce
and deliver to the Lender a Quarterly Report and Business Report for such
quarter, together with a certificate of a senior officer of Borrower,
certifying that to the Knowledge of Borrower that such Quarterly Report and
Business Report are true, correct and accurate in all material respects.   Following receipt of
any Business Report, the Lenders shall have the right to require a meeting in
person or by phone with management of Borrower to discuss matters related to
the LFRP.  With each Quarterly Report,
Borrower shall provide a copy to the Lenders of each new executed License
Agreement, In License and a copy of any amendment or other action (and
notification of any action not in writing) as described in Section 9.15.


 


SECTION 9.04.           Books
and Records.  Borrower shall keep
proper books, records and accounts in which entries in conformity with sound
business practices and all requirements of Law applicable to it shall be made
of all dealings and transactions in relation to its business, assets and
activities and as shall permit the preparation of the consolidated financial
statements of Borrower in accordance with GAAP.


 


SECTION 9.05.           Inspection
Rights; Access.  Borrower shall, on
[*****], or, at any time during which a Default or Event of Default shall have
occurred and be continuing, permit representatives of the Lender to examine its
or its Subsidiaries’ assets, books and records 


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


41

















 


upon reasonable Notice during normal business hours.  Borrower shall allow the Lender reasonable
access to its managers and/or officers.  To the extent any License Agreement contains
provisions requiring confidential treatment of any information, including
financial information, that would prohibit Borrower from providing such information to the
Lender, in connection with any audit permitted hereunder, Borrower shall have its independent certified public
accountants provide a summary of the relevant information and certify that such
information is true and correct in all respects.


 


SECTION 9.06.           Maintenance
of Insurance and Properties. 
Borrower and its Subsidiaries shall maintain and preserve all of its
properties that are used and useful in the conduct of the LFRP in good working
order and condition, ordinary wear and tear excepted.  Borrower shall maintain insurance policies
with the same or better coverages and limits as those set forth on Schedule
8.01(x) with the insurance companies set forth therein (the “Insurance
Providers”) or with insurance companies rated at least as high as the
Insurance Providers as of the Closing Date (according to A.M. Best Company, Inc.).  Borrower shall furnish to the Lender from
time to time upon written request full information as to the insurance carried.


 


SECTION 9.07.           Governmental
Authorizations.  Borrower shall
obtain, make and keep in full force and effect all authorizations from and
registrations with Governmental Authorities that may be required for the
validity or enforceability against Borrower of this Amended Agreement and the
other Transaction Documents to which it is a party.


 


SECTION 9.08.         Compliance with Laws and Contracts.


 


(a)           Borrower
and any its Subsidiaries shall comply with all applicable Laws and perform its
obligations under all Contracts relative to the conduct of its business,
including the Transaction Documents to which it is party in all material
respects.


 


(b)           Borrower
shall at all times comply with the margin requirements set forth in Section 7
of the Exchange Act and any regulations issued pursuant thereto, including,
without limitation, Regulations T, U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R., Chapter II.


 


SECTION 9.09.         Plan Assets.  Borrower shall not take any action that
causes its assets to be deemed to be Plan Assets at any time.


 


SECTION 9.10.         Notices.


 


(a)           Borrower
shall promptly give written Notice to the Lender of each Default or Event of
Default and each other event that has or could reasonably be expected to have a
Material Adverse Effect; provided that in any situation where Borrower
knows a press release or other public disclosure is to be made, Borrower shall
use all commercially reasonable efforts to provide such information to the
Lender as early as possible but in no event later than simultaneously with such
release or other public disclosure.


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


42

















 


(b)           Borrower
shall promptly give written Notice to the Lender upon receiving notice, or
otherwise becoming aware, of any default or event of default under the License
Agreements.


 


(c)           Borrower
shall, promptly after becoming aware thereof, give written Notice to the Lender
of any litigation or proceedings to which Borrower or any of its Subsidiaries
is a party or which could reasonably be expected to have a Material Adverse
Effect.


 


(d)           Borrower
shall, promptly after becoming aware thereof, give written Notice to the Lender
of any litigation or proceedings challenging the validity of the License Agreements,
the LFRP Intellectual Property or any of the transactions contemplated therein.


 


(e)           Borrower
shall, promptly after becoming aware thereof, give written Notice to the Lender
of any representation or warranty made or deemed made by Borrower in any of the
Transaction Documents or in any certificate delivered to the Lender pursuant
hereto shall prove to be untrue, inaccurate or incomplete in any material
respect on the date as of which made or deemed made.


 


SECTION 9.11.           Payment of Taxes.  Borrower shall pay all material taxes of any
kind imposed on or in respect of its income or assets before any penalty or
interest accrues on the amount payable and before any Lien on any of its assets
exists as a result of nonpayment except
as provided in Section 10.03 hereof and except for taxes contested
in good faith by appropriate proceedings and for which adequate reserves are
maintained in accordance with GAAP.


 


SECTION 9.12.           Waiver
of Stay, Extension or Usury Laws. 
Borrower will not at any time, to the extent that it may lawfully not do
so, insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive Borrower from paying all or any portion of
the principal of or premium, if any, or interest on the Loans as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Amended Agreement; and, to the
extent that it may lawfully do so, Borrower hereby expressly waives all benefit
or advantage of any such law and expressly agrees that it will not hinder,
delay or impede the execution of any power herein granted to the Lender, but
will suffer and permit the execution of every such power as though no such law
had been enacted.


 


SECTION 9.13.         Additional Covenants of Borrower.


 


SECTION 9.14.         [*****]


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


43

















 


SECTION 9.15.           Further
Assurances.  Borrower shall promptly,
at its sole cost and expense, execute and deliver to the Lender such further
instruments and documents, and take such further action, as the Lender may, at any
time and from time to time, reasonably request in order to carry out the intent
and purpose of this Amended Agreement and the other Transaction Documents to
which it is a party and to establish and protect the rights, interests and
remedies created, or intended to be created, in favor of the Lender hereby and
thereby.    [*****]  In the event that any of the Collateral is,
directly or indirectly, sold, leased, licensed, transferred or otherwise
disposed of to a Subsidiary of Borrower (other than in connection with a
Permitted Collateralization), Borrower shall cause such Subsidiary to execute a
joinder to the Security Agreement confirming that the Collateral continues to
be subject to the Lien granted to the Lender thereunder and such other documentation
that the Agent shall reasonably request.


 


ARTICLE X

NEGATIVE COVENANTS


 


SECTION 10.01.       Activities of Borrower.


 


(a)           Neither
Borrower nor any of its Subsidiaries shall amend, modify or waive or terminate
any provision of, or permit or agree to the amendment, modification, waiver or
termination of any provision of, any of the Loan Documents, License Agreements
or any material Contract related to the LFRP that could reasonably be expected
to have a Material Adverse Effect without the prior written consent of the
Agent.


 


(b)           Neither Borrower nor any of its Subsidiaries shall use any current or future protein,
peptide or antibody selection technology to establish a business or business
unit competing with the LFRP or enable a third party to use for funded research
or license out any such technology in a way that would compete with the LFRP.


 


SECTION 10.02.       Merger;
Sale of Assets.


 


(a)           Borrower
shall not merge or consolidate with or into (whether or not Borrower is the
Surviving Person) any other Person and Borrower will not, and will not cause or
permit any Subsidiary to, sell, convey, assign, transfer, lease or otherwise
dispose of all or substantially all of Borrower’s and its Subsidiaries assets
(determined on a consolidated basis for Borrower and its Subsidiaries) to any
Person in a single transaction or series of related transactions, unless (1) either
(A) Borrower will be the Surviving Person or (B) the Surviving Person
(if other than Borrower) will be an entity organized and validly existing under
the laws of Delaware, and will, in any such case, expressly assume the due and
punctual payment of the principal of, premium, if any, and interest on the
Loans and the performance and observance of every covenant of the Loan
Documents to be performed or observed on the part of Borrower and shall use its
commercially reasonable efforts to actively market and promote the LFRP and to
seek out and exploit opportunities for entering into Future Licenses; and (2) immediately
thereafter, on a pro forma basis after giving effect to such transaction (and
treating any Indebtedness not previously an obligation of Borrower or any
Subsidiary of Borrower in connection with or as a result of 


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


44

















 


such transaction as having been incurred at the time of such
transaction), no Default or Event of Default will have occurred and be continuing.


 


(b)           Neither
Borrower nor any of its Subsidiaries shall directly or indirectly sell, lease,
license, transfer or otherwise dispose of all or any part of its assets consisting
of or used in the LFRP Technology or the LFRP, except (i) licenses of
intellectual property rights of Borrower or any of its Subsidiaries in
connection with services provided by Borrower or such Subsidiary for fair value
in an arm’s-length transaction in the ordinary course of its business; (ii) sales
of equipment not needed for Borrower’s business to one or more third parties
for fair value in an arm’s-length transaction; provided any assets
received in return from such transaction are subject to the Lien created by the
Security Agreement; (iii) sales of equipment to one or more third parties
for fair value in an arm’s-length transaction, the proceeds of which are used
to purchase replacement or other assets useful in Borrower’s LFRP business
within [*****] of such sale; (iv) other sales, leases, licenses, transfers
or other dispositions in an aggregate amount not to exceed [*****] from the
Closing Date through the term of this Amended Agreement and (v) Permitted Collateralizations; provided
the proceeds resulting therefrom are applied in accordance with Section 3.02(c) and
that any assets received in return from such transaction are subject to the
Lien created by the Security Agreement.


 


SECTION 10.03.         Liens.  Neither Borrower nor any of its Subsidiaries
shall create or suffer to exist any Lien on or with respect to the Collateral
other than pursuant to this Amended Agreement or the Security Agreement or to
the extent permitted under the Security Agreement.  Borrower shall not create or suffer to exist
any Lien on or with respect to any of its assets that are not Collateral,
whether now owned or hereafter acquired, other than the following
(collectively, “Permitted Liens”):


 


(a)           Liens
existing on the Tranche B Closing Date set forth in Schedule 10.03(a) to
the extent and in the manner such Liens are in effect on the Tranche B Closing
Date;


 


(b)           any
Lien granted to collaboration or development partners of Borrower or its
Affiliates in connection with funded research, development and
commercialization activities (other than on or with respect to the LFRP
Intellectual Property or the Included Receipts); provided that any such
Lien is limited to Borrower’s and/or any applicable Subsidiaries’ interest in
products developed in such collaboration;


 


(c)           any
Lien on any asset securing Indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such asset; provided
that such Lien attaches to such asset concurrently with or within [*****] after
the acquisition thereof;


 


(d)           any
Lien existing on any asset prior to the acquisition thereof by Borrower or any
Subsidiary of Borrower and not created in contemplation of such acquisition;


 


(e)           any
Lien created after the Closing Date in connection with capitalized lease
obligations, but only to the extent that such Lien encumbers property financed
by 


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


45

















 


such capital lease
obligation and the principal component of such capitalized lease obligation is
not increased;


 


(f)            Liens
arising in the ordinary course of its business (other than on or with respect
to the LFRP Intellectual Property or the Included Receipts) which (i) do
not secure Indebtedness and (ii) do not in the aggregate materially impair
the operation of the business of Borrower or impair the value of the Included
Receipts;


 


(g)           easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in
respect of real property not interfering with the ordinary conduct of the
business of Borrower;


 


(h)           any
Lien arising out of the refinancing, extension, renewal or refunding of any
Indebtedness secured by any Lien permitted by any of the foregoing clauses of
this Section 10.03; provided that such Indebtedness is not
increased and is not secured by any additional assets; and


 


(i)            Liens
securing taxes, assessments, fees or other governmental charges or levies,
Liens securing the claims of materialmen, mechanics, carriers’ landlords, warehousemen
and similar Persons, Liens in the ordinary course of business in connection
with workmen’s compensation, unemployment insurance and other similar Laws,
Liens to secure surety, appeal and performance bonds and other similar
obligations not incurred in connection with the borrowing of money, and
attachment, judgment and other similar Liens arising in connection with court
proceedings so long as the enforcement of such Liens is effectively stayed and
the claims secured thereby are being contested in good faith by appropriate
proceedings.


 


SECTION 10.04.         Investment
Company Act.  Neither Borrower nor
any of its Subsidiaries shall be or become an investment company subject to
registration under the Investment Company Act of 1940.


 


SECTION 10.05.         Limitation
on Additional Indebtedness.  Neither
Borrower nor any of its Subsidiaries shall, directly or indirectly, incur or
suffer to exist any Indebtedness; provided that Borrower and it
Subsidiaries may incur:


 


(a)           Indebtedness
under this Amended Agreement;


 


(b)           Indebtedness
secured by Liens permitted under Section 10.03 other than Section 10.03(b) (but,
in the case of Liens permitted under Section 10.03(a), only to the extent
of the Indebtedness related thereto);


 


(c)           any
other Indebtedness of Borrower, which by its terms (or by the terms of any
agreement governing such Indebtedness) is fully subordinated in right of
payment to the Loans;


 


 


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(d)           capital
leases and leasehold improvements consistent with past practices; or


 


(e)           other
unsecured Indebtedness of Borrower not to exceed [*****].


 


SECTION 10.06.         Limitation
on Transactions with Controlled Affiliates. 
Neither Borrower nor any of its Subsidiaries shall, directly or
indirectly, enter into any transaction or series of related transactions or
participate in any arrangement (including any purchase, sale, lease or exchange
of assets or the rendering of any service) with, or for the benefit of, any Controlled
Affiliate other than the Transaction Documents or in the ordinary course of
business of Borrower upon fair and reasonable terms no less favorable to
Borrower than it would obtain in a comparable arm’s-length transaction with a
non-Controlled Affiliate; provided that Borrower and its Subsidiaries
may engage in the following transactions:


 


(a)           reasonable and customary director,
officer and employee compensation (including bonuses) and other benefits
(including retirement, health, stock option and other benefit plans) and
indemnification arrangements, in each case approved in good faith by the Board
of Directors of Borrower;


 


(b)           transactions
with customers, clients, suppliers, joint venture partners or purchasers or
sellers of goods and services, in each case in the ordinary course of business
and otherwise not prohibited by the Loan Documents;


 


(c)           dividends
permitted by Section 10.08;


 


(d)           transactions
among Borrower and its Wholly Owned Subsidiaries.


 


SECTION 10.07.       ERISA.


 


(a)           Neither
Borrower nor any of its Subsidiaries shall maintain or contribute to, or agree
to maintain or contribute to or otherwise incur any liability with respect to,
any employee benefit plan (as defined in Section 3(3) of ERISA)
subject to Title IV or Section 302 of ERISA or Section 412 of the
Code or any similar plan under non-U.S. law (a “Plan”) that could
reasonably be expected to have a Material Adverse Effect.


 


(b)           Neither
Borrower nor any of its Subsidiaries shall engage in a non-exempt prohibited
transaction under Section 406 of ERISA, Section 4975 of the Code, or
substantially similar provisions under foreign or U.S. federal, state or local
laws, rules or regulations or in any transaction that would cause any
obligation or action taken or to be taken hereunder (or the exercise by the
Lender of any of its rights under the Notes, this Amended Agreement or the
Security Agreement) to be a non-exempt prohibited transaction under such
provisions.


 


(c)           Neither
Borrower nor any of its Subsidiaries will incur any material liability with
respect to any obligation to provide medical benefits with respect to any
person beyond their retirement or other termination of service other than
coverage mandated by law.


 


 


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SECTION 10.08.         Restricted
Payments.  Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, make any Restricted
Payment other than pursuant to clauses (a) through (b) below; provided
that Borrower and its Subsidiaries may not make any Restricted Payments while
an Event of Default has not occurred and is continuing:


 


(a)           Restricted
Payments not to exceed [*****] in the aggregate from the Closing Date through
the Maturity Date; and


 


(b)           the
redemption of any Capital Stock of Borrower or any Subsidiary in exchange for,
or out of the proceeds of the substantially concurrent issuance and sale of,
Qualified Capital Stock.


 


ARTICLE XI

EVENTS OF DEFAULT


 


SECTION 11.01.         Events
of Default.  If one or more of the
following events of default (each, an “Event of Default”) occurs and is
continuing, the Lender shall be entitled to the remedies set forth in Section 11.02:


 


(a)           Borrower
fails to pay any principal of the Loans when due, whether at the Maturity Date
or otherwise.


 


(b)           Except
as permitted by Section 4.01, Borrower fails to pay any interest on the
Loans or make payment of any other amounts payable under this Amended Agreement
within three Business Days after the same becomes due and payable.


 


(c)           Any
representation or warranty of Borrower or any of its Subsidiaries in any Loan
Document to which it is party or in any certificate, financial statement or
other document delivered by Borrower or such Subsidiary in connection with this
Amended Agreement proves to have not been true and correct either at the time
it was made or on the Tranche B Funding Date and the failure of such statement
to be true and correct, individually or in the aggregate, results in a Material
Adverse Effect or could reasonably be expected to have a Material Adverse
Effect (except that any representation or warranty that is qualified as to “materiality”
or “Material Adverse Effect” shall be true and correct in all respects).


 


(d)           Borrower
fails to perform or observe any covenant or agreement contained in Sections
9.03 (a), (c) or (d) or Section 9.10 of this Amended Agreement.


 


(e)           Borrower
or any of its Subsidiaries party to the Loan Documents fails to perform or
observe any other covenant or agreement contained in this Amended Agreement,
the Notes or the Security Agreement (other than those referred to in the
preceding clauses of this Section 11.01) if (i) such failure is not
remedied on or before the thirtieth day after Notice thereof from the Lender
and (ii) the failure to perform or observe any such covenant or agreement,
individually or in the aggregate, results in a Material Adverse Effect or could
reasonably be expected to have a Material Adverse Effect.


 


 


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(f)            Borrower or any of
its Subsidiaries (i) fails to pay when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) any Indebtedness (other
than the Obligations hereunder) having an aggregate principal amount in excess
of [*****] or (ii) fails to perform or observe any covenant or agreement
to be performed or observed by it contained in any agreement or in any
instrument evidencing any of its Indebtedness having an aggregate principal
amount in excess of [*****] and, as a result of such failure, any other party
to that agreement or instrument is entitled to exercise the right to accelerate
the maturity of any Indebtedness thereunder and such Indebtedness is accelerated;
provided, however, that a failure under items (i) or (ii) shall
not constitute an Event of Default under this clause (f) if (x) the
obligation to pay the overdue amounts has not resulted from acceleration and (z) the
failure is remedied on or before the greater of (I) the thirtieth day
after it occurs, or (II) any grace period applicable to such overdue
amounts.


 


(g)           Borrower
and/or any of its Subsidiaries shall sell, assign, lease, license, transfer or
otherwise dispose of the LFRP Intellectual Property, any Included Receipts, or
Borrower and/or any of its Subsidiaries takes any action which could reasonably
be expected to impair Lender’s security interest in any of the foregoing,
except to the extent permitted under Section 10.02(b).


 


(h)           Any
uninsured judgment, decree or order in excess of [*****] shall be rendered
against Borrower and any of its Subsidiaries and either (i) enforcement
proceedings shall have been commenced upon such judgment, decree or order or (ii) such
judgment, decree or order shall not have been vacated or discharged within
thirty days from entry.


 


(i)            Borrower
or any Significant Subsidiary (i) is dissolved or commences proceedings
for dissolution, (ii) fails or is unable to pay its debts generally as
they become due, (iii) commences a voluntary case in bankruptcy or any
other action or proceeding for any other relief under any law affecting
creditors’ rights that is similar to a bankruptcy law or (iv) consents by
answer or otherwise to the commencement against it of an involuntary case in
bankruptcy or any other such action or proceeding; or a court enters an order
for relief or a decree in an involuntary case in bankruptcy or any other such
action or proceeding in respect of any such Person or any of the assets of any
such Person if such order or decree is not dismissed or withdrawn on or before
the sixtieth day after the entry thereof or if any such dismissal or withdrawal
ceases to remain in effect.


 


(j)            Any
of the Transaction Documents (other than any License Agreement) shall cease to
be in full force and effect or its validity or enforceability is disaffirmed or
challenged in writing by any Person other than the Lender, or the Security
Agreement shall cease to give the Lender the rights purported to be created
thereby (including a first priority perfected Lien on the assets of Borrower or
any of its Subsidiaries party to the Loan Documents) other than as a direct
result of any action by a Lender or failure of a Lender to perform an
obligation.


 


 


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(k)           Borrower
and/or any of its Subsidiaries fails to perform or observe any covenant or
agreement contained in any License Agreement or Borrower Documents, as
applicable, and such failure is not cured or waived within any applicable grace
period except where such failure could not reasonably be expected to have a
Material Adverse Effect.


 


(l)            In
connection with a challenge to the validity of the Included Receipts or any
LFRP Intellectual Property or any transaction contemplated under the License
Agreements, any judgment, decree or order is issued that (i) halts or
suspends the payment by any Contract Party of any amount payable in respect of
the Included Receipts, or (ii) otherwise determines that the Included
Receipts have not been duly authorized or validly issued or that the Included
Receipts are not enforceable in accordance with the terms of the applicable
License Agreement, and such judgment, decree or order shall not have been
vacated or discharged within 10 days from entry.


 


(m)          Any security interest purported to be created by the
Security Agreement shall cease to be in full force and effect, or shall cease
to give the rights, powers and privileges purported to be created and granted
under such Security Agreement (including a perfected first priority security
interest in and Lien on all of the Collateral thereunder (except as otherwise
expressly provided in such Security Agreement)) in favor of the party secured
on behalf of the Lenders pursuant to the Security Agreement, or shall be asserted
by Borrower and/or any of its Subsidiaries not to be a valid, perfected, first
priority (except as otherwise expressly provided in this Amended Agreement or
such Security Agreement) security interest in the Collateral covered thereby.


 


SECTION 11.02.         Default
Remedies.  If any Event of Default
shall occur, the Lender may, by Notice to Borrower, (a) exercise all
rights and remedies available to the Lender hereunder and under the Security
Agreement, including enforcement of the security interests created thereby, (b) declare
the Loans or either Tranche thereof, all interest thereon and all other amounts
payable hereunder and under the applicable Note(s) by Borrower to be
immediately due and payable, whereupon all such amounts shall become
immediately due and payable, all without diligence, presentment, demand of
payment, protest or further notice of any kind, which are expressly waived by
Borrower and (c) declare the obligations of the Lender hereunder to be
terminated, whereupon such obligations shall terminate; provided, however,
that if any event of any kind referred to in Section 11.01(i) occurs,
the obligations of the Lender hereunder shall immediately terminate, all
amounts payable hereunder by Borrower shall become immediately due and payable
and the Lender shall be entitled to exercise rights and remedies under the Security
Agreement without diligence, presentment, demand of payment, protest or notice
of any kind, all of which are hereby expressly waived by Borrower.  Each Notice delivered pursuant to this Section 11.02
shall be effective when sent.


 


SECTION 11.03.       Right of Set-off; Sharing of Set-off.


 


(a)           If
any amount payable hereunder is not paid as and when due, Borrower irrevocably
authorizes the Lender and each Affiliate of the Lender (i) to proceed, to
the fullest 


 


 


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extent permitted by applicable Law, without prior notice, by right of
set-off, bankers’ lien, counterclaim or otherwise, against any assets of
Borrower in any currency that may at any time be in the possession of the
Lender or such Affiliate, to the full extent of all amounts payable to the
Lender hereunder or (ii) to charge to Borrower’s account with Lender the
full extent of all amounts payable by Borrower to the Lender hereunder; provided,
however, that the Lender shall notify Borrower of the exercise of such
right promptly following such exercise.


 


(b)           If
any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Loans or other obligations owed to such Lender resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of its Loans and
accrued interest thereon or other obligations owed to such Lender greater than
its pro  rata share thereof as provided herein,
then the Lender receiving such greater proportion shall (a) notify the
other Lenders of such fact, and (b) purchase (for cash at face value)
participations in the Loans and such other obligations of the other Lenders, or
make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them; provided
that:


 


(i)      if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest; and


 


(ii)     the provisions of this paragraph shall not
be construed to apply to (x) any payment made by Borrower pursuant to
and in accordance with the express terms of this Amended Agreement or (y) any
payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans to any assignee or participant.


 


Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable Law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against
Borrower rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of Borrower in the amount of
such participation.  If under applicable
bankruptcy, insolvency or any similar law any Lender receives a secured claim
in lieu of a setoff or counterclaim to which this Section 11.03 applies,
such Lender shall to the extent practicable, exercise its rights in respect of
such secured claim in a manner consistent with the rights to which the Lender
is entitled under this Section 11.03 to share in the benefits of the recovery
of such secured claim.


 


SECTION 11.04.       Rights Not Exclusive.  The rights provided for herein are cumulative
and are not exclusive of any other rights, powers, privileges or remedies
provided by Law.


 


ARTICLE XII

INDEMNIFICATION


 


SECTION 12.01.       Funding Losses.  If Borrower fails to borrow any amount on the
Tranche B Closing Date after Notice of Borrowing has been given to the Lender
in accordance


 


 


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with Section 2.02, Borrower shall reimburse the Lender within
three Business Days after demand for any resulting loss or expense incurred by
the Lender including any loss incurred in obtaining, liquidating or redeploying
deposits from third parties; provided that the Lender shall have
delivered to Borrower a certificate as to the amount of such loss or expense.


 


SECTION 12.02.         Increased
Costs.  Except as to Taxes (it being
understood that Borrower’s liability for Taxes will be exclusively determined
under Article V), Borrower shall reimburse the Lender on demand for all
increases in costs incurred by the Lender and all reductions in amounts
received or receivable by the Lender or in the rate of return on the Lender’s
capital, as reasonably determined by the Lender, that are attributable to the
Loans or the performance by the Lender of its obligations under this Amended
Agreement and that occur by reason of the promulgation after the date hereof of
any Law or treaty or any change after the date hereof in any Law or treaty or
in the interpretation thereof or by reason of compliance by the Lender with any
direction, requirement or request (whether or not having the force of Law) of
any Governmental Authority, including any such cost or reduction resulting from
the imposition or amendment of any capital adequacy requirement or any reserve,
special deposit or similar requirement against assets of, liabilities of,
deposits with or for the account of, or loans by, the Lender; provided
that the Lender shall not be entitled to be reimbursed for such increased costs
or reductions in amount receivable or the rate of return incurred more than 180
days prior to the date on which it gives notice to Borrower of such increased
costs or reduction in amount receivable or rate of return.


 


SECTION 12.03.       Other Losses.


 


(a)           Borrower
agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay
and hold harmless, the Lender and its Affiliates and their respective officers,
partners, directors, trustees, employees and agents (each, an “Indemnitee”),
from and against any and all Indemnified Liabilities, in all cases, whether or
not caused by or arising, in whole or in part, out of the comparative,
contributory or sole negligence of such Indemnitee; provided Borrower
shall not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise from
the gross negligence or willful misconduct of such Indemnitee.  To the extent that the undertakings to
defend, indemnify, pay and hold harmless set forth in this Section 12.03
may be unenforceable in whole or in part because they are violative of any law
or public policy, Borrower shall contribute the maximum portion that it is
permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of
them.


 


(b)           To
the extent permitted by applicable law, no Party shall assert, and each Party
hereby waives, any claim against each other Party and such Party’s Affiliates,
directors, employees, attorneys or agents, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) (whether or not the claim therefor is based on contract, tort
or duty imposed by any applicable legal requirement) arising out of, in
connection with, as a result of, or in any way related to, this Amended
Agreement or any Loan Document or any agreement or instrument contemplated
hereby or thereby or referred to herein or therein, the transactions
contemplated hereby or thereby, the Loans or the use of the proceeds 


 


 


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thereof or any act or omission or event occurring in connection
therewith, and each Party hereby waives, releases and agrees not to sue upon any
such claim or any such damages, whether or not accrued and whether or not known
or suspected to exist in its favor.


 


SECTION 12.04.         Assumption
of Defense; Settlements.  If the
Lender is entitled to indemnification under this Article XII with respect
to any action or proceeding brought by a third party that is also brought
against Borrower, Borrower shall be entitled to assume the defense of any such
action or proceeding with counsel reasonably satisfactory to the Lender.  Upon assumption by Borrower of the defense of
any such action or proceeding, Borrower shall have the right to participate in
such action or proceeding and to retain its own counsel but Borrower shall not
be liable for any legal expenses of other counsel subsequently incurred by the
Lender in connection with the defense thereof unless (i) Borrower has
otherwise agreed to pay such fees and expenses, (ii) Borrower shall have
failed to employ counsel reasonably satisfactory to the Lender in a timely
manner or (iii) the Lender shall have been advised by counsel that there
are actual or potential conflicting interests between Borrower and the Lender,
including situations in which there are one or more legal defenses available to
the Lender that are different from or additional to those available to
Borrower; provided, however, that Borrower shall not, in connection
with any one such action or proceeding or separate but substantially similar
actions or proceedings arising out of the same general allegations, be liable
for the fees and expenses of more than one separate firm of attorneys at any
time for the Lender, except to the extent that local counsel, in addition to
its regular counsel, is required in order to effectively defend against such
action or proceeding.  Borrower shall not
consent to the terms of any compromise or settlement of any action defended by
Borrower in accordance with the foregoing without the prior written consent of
the Lender unless such compromise or settlement (x) includes an
unconditional release of the Lender from all liability arising out of such
action and (y) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of the Lender.  Borrower shall not be required to indemnify
the Lender for any amount paid or payable by the Lender in the settlement of
any action, proceeding or investigation without the written consent of
Borrower, which consent shall not be unreasonably withheld.


 


ARTICLE XIII

MISCELLANEOUS


 


SECTION 13.01.       Assignments.


 


(a)           Borrower
shall not be permitted to assign this Amended Agreement without the prior
written consent of the Lender and any purported assignment in violation of this
Section 13.01 shall be null and void.


 


(b)           Lender
may at any time assign all its rights and obligations hereunder in whole or in
part (each an “Assignee”); provided, however, that to the
extent rights and obligations hereunder are assigned to more than one Assignee,
Agent shall be designated as the agent of all Assignees and any and all
obligations of Borrower under this Amended Agreement shall thereafter be coordinated
through such agent so that Borrower shall not be required to perform its
obligations hereunder for, or on behalf of, multiple Assignees.


 


 


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(c)           The
parties to each assignment shall execute and deliver to Borrower a written
instrument of assignment in the form set forth in Exhibit L, containing
the agreement of the assignee to be bound by the terms of this Amended
Agreement (an “Assignment and Acceptance”).  Upon the effectiveness of a permitted
assignment hereunder, (i) each reference in this Amended Agreement to “Lender”
shall be deemed to be a reference to the assignor and the assignee to the
extent of their respective interests, (ii) such assignee shall be a Lender
party to this Amended Agreement and shall have all the rights and obligations
of a Lender and (iii) the assignor shall be released from its obligations
hereunder to a corresponding extent of the assignment, and no further consent
or action by any party shall be required.


 


(d)           In
the event there are multiple Lenders, all payments of principal, interest, fees
and any other amounts payable pursuant to the Loan Documents shall be allocated
on a pro rata basis among the
Lenders according to their proportionate interests in the applicable Loans.


 


(e)           Borrower
shall, from time to time at the request of the Lender, execute and deliver any
documents that are necessary to give full force and effect to an assignment permitted
hereunder, including new Notes in exchange for the Notes held by the Lender.


 


(f)            Except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Loans of
any Tranche, the amount of the Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to Borrower) shall not be less than
[*****] unless Borrower otherwise consents, provided that no such
consent of Borrower shall be required if a Default has occurred and is continuing.


 


SECTION 13.02.         Participations.  Lender may at any time grant (each a “Participant”)
participating interests in its Loans.  In
the event of any such grant by the Lender of a participating interest to a
Participant, whether or not upon notice to Borrower, such Lender shall remain
responsible for the performance of its obligations hereunder, and Borrower
shall continue to deal solely and directly with the Lender in connection with
the Lender’s rights and obligations under this Amended Agreement.  Any agreement pursuant to which the Lender
may grant such a participating interest shall provide that the Lender shall
retain the sole right and responsibility to enforce the obligations of Borrower
hereunder including the right to approve any amendment, modification or waiver
of any provision of this Amended Agreement. 
Borrower agrees that each Participant shall, to the extent provided in
its participation agreement, be entitled to the benefits of Article V and Article XII
with respect to its participating interest, as though it were a Lender.  No Participant shall have any rights as a
Lender hereunder, including any right to make any demand hereunder or right to
approve any amendment or waiver of any provision of this Amended Agreement, or
any consent to any departure by Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest
on, the Loans in which the Participant participates or any fees or other
amounts payable hereunder, in each case to the extent subject to such participation,
or postpone any date fixed for any payment of principal of, or interest on, the
Loans in which the Participant participates or any fees or other amounts payable
hereunder or release, reduce or amend this Section 13.02 in any manner
adverse to such Participant, in each case, to the extent subject to such
participation.  Borrower agrees that each



 


 


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Participant shall, to the extent provided in its participation agreement,
be entitled to the benefits of Articles V and XII with respect to its
participating interest, as though it were a Lender; provided, however,
a Participant shall not be entitled to receive any greater payment under
Articles V and XII than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with Borrower’s written
consent (not to be unreasonably withheld).


 


SECTION 13.03.         Successors
and Assigns.  This Amended Agreement
shall be binding upon and inure to the benefit of the Parties and their
respective successors and permitted assigns.


 


SECTION 13.04.         Notices.  All notices, consents, approvals, reports,
designations, requests, waivers, elections and other communications
(collectively, “Notices”) authorized or required to be given pursuant to
this Amended Agreement shall be given in writing and either personally delivered
to the Party to whom it is given or delivered by an established delivery
service by which receipts are given or mailed by registered or certified mail,
postage prepaid, or sent by facsimile or electronic mail with a copy sent on
the following Business Day by one of the other methods of giving notice
described herein, addressed to the Party at its address listed below:


 


(a)           If to Borrower:


 


Dyax
Corp.

300 Technology Square

Cambridge, MA  02139

Attention:  Chief Financial Officer 

Facsimile:  (617) 225-7708 

E-mail:  gmigausky@dyax.com


 


with a
copy (which shall not constitute notice) to:



Dyax Corp.

300 Technology Square

Cambridge, MA  02139 

Attention:  General Counsel 

Facsimile:  (617) 225-7708 

E-mail:  imagovcevic@dyax.com


 


 


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with a
copy (which shall not constitute notice) to:



Dyax Corp.

300 Technology Square

Cambridge, MA  02139

Attention:  Associate General Counsel

Facsimile:  (617) 225-7708 

E-mail:  aashe@dyax.com


 


with a
copy (which shall not constitute notice) to:



Edwards Angell Palmer & Dodge LLP 

111 Huntington Avenue

Boston, MA  02199

Attention:  Stacie S. Aarestad

Facsimile:  (617) 227-4420

E-mail:  saarestad@eapdlaw.com


 


(b)           If to a Lender:


 


Cowen
Healthcare Royalty Partners, L.P.

177 Broad Street, Suite 1101

Stamford, CT  06901

Attention:  Gregory B. Brown, M.D.

Facsimile:  (203) 388-9084

Email:  greg.brown@cowen.com


 


with a
copy (which shall not constitute notice) to:



Cahill Gordon & Reindel LLP

80 Pine Street

New York, NY  10005

Attn:  Christopher T. Cox

Facsimile:  (212) 396-0136

E-mail:  ccox@cahill.com


 


Any
Party may change its address for the receipt of Notices at any time by giving
Notice thereof to the other Parties. 
Except as otherwise provided herein, any Notice authorized or required
to be given by this Amended Agreement shall be effective when received.


 


SECTION 13.05.         Entire
Agreement.  This Amended Agreement,
the other Transaction Documents and the Confidentiality Agreement contain the
entire agreement between the Parties relating to the subject matter hereof and
supersede all oral statements and prior writings with respect thereto.


 


 


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SECTION 13.06.         Modification.  No Loan Document or provision thereof may be
waived, amended or modified except, in the case of this Amended Agreement, by
an agreement or agreements in writing executed by Borrower and the Agent or, in
the case of any other Loan Document, by an agreement or agreements in writing
entered into by the parties thereto with the consent of the Agent.


 


SECTION 13.07.         No Delay; Waivers; etc. 
No delay on the part of the Lender in exercising any power or right
hereunder shall operate as a waiver thereof nor shall any single or partial exercise
of any power or right hereunder preclude other or further exercise thereof or
the exercise of any other power or right. 
The Lender shall not be deemed to have waived any rights hereunder
unless such waiver shall be in writing and signed by the Lender.


 


SECTION 13.08.         Severability.  If any provision of this Amended Agreement
shall be held to be invalid, illegal or unenforceable, then, to the fullest
extent permitted by law, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


SECTION 13.09.         Determinations.  Each determination or calculation by the
Lender hereunder shall, in the absence of manifest error, be conclusive and
binding on the Parties.


 


SECTION 13.10.         Replacement
of Note.  Upon the loss, theft, destruction,
or mutilation of any Note and (a) in the case of loss, theft or
destruction, upon receipt by Borrower of indemnity or security reasonably
satisfactory to it (except that if the holder of such Note is the Lender or any
other financial institution of recognized responsibility, the holder’s own agreement
of indemnity shall be deemed to be satisfactory) or (b) in the case of
mutilation, upon surrender to Borrower of any mutilated Note, Borrower shall
execute and deliver in lieu thereof a new Note, dated the Closing Date, in the
case of the Tranche A Note, or dated the Tranche B Closing Date, in the case of
the Tranche B Note, in the same principal amount.


 


SECTION 13.11.         Governing
Law.  THIS AMENDED AGREEMENT AND THE
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS PRINCIPLES
THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION).


 


SECTION 13.12.         Jurisdiction.  Borrower irrevocably submits to the jurisdiction
of the courts of the State of New York and of the United States sitting in the
State of New York, and of the courts of its own corporate domicile with respect
to actions or proceedings brought against it as a defendant, for purposes of
all legal proceedings arising out of or relating to this Amended Agreement or
the transactions contemplated hereby (a “Proceeding”).  Borrower irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to
the laying of venue of any Proceeding and any claim that any Proceeding has
been brought in an inconvenient forum. 
Any process or summons for purposes of any Proceeding


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


57

















 


may be served on Borrower by mailing a copy thereof by registered mail,
or a form of mail substantially equivalent thereto, addressed to it at its
address as provided for Notices hereunder.


 


SECTION 13.13.         Waiver
of Jury Trial.  BORROWER HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS AMENDED AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


SECTION 13.14.         Waiver
of Immunity.  To the extent that
Borrower has or hereafter may be entitled to claim or may acquire, for itself
or any of its assets, any immunity from suit, jurisdiction of any court or from
any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, or otherwise) with respect to itself
or any of its property, Borrower hereby irrevocably waives such immunity in
respect of its obligations hereunder and under the Notes to the fullest extent permitted
by law.


 


SECTION 13.15.         Counterparts.  This Amended Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.


 


SECTION 13.16.         Limitation
on Rights of Others.  Except for the
Indemnitees referred to in Section 12.03 or as provided in Section 13.02,
no Person other than a Party shall have any legal or equitable right, remedy or
claim under or in respect of this Amended Agreement.


 


SECTION 13.17.         No
Partnership.  Nothing in this Amended
Agreement or any other Transaction Document shall be read to create any agency,
partnership or joint venture of the Lender (or any of its Affiliates) and
Borrower (or any of its Affiliates).


 


SECTION 13.18.         Survival.  The obligations of Borrower contained in
Sections 4.04, 4.05, Article V and Article XII shall survive the
repayment of the Loans and the cancellation of the Notes and the termination of
the other obligations of Borrower hereunder.


 


SECTION 13.19.         Patriot
Act Notification.  Lender hereby
notifies Borrower that, consistent with the USA Patriot Act, Public Law No. 107-56
(the “Patriot Act”), regulations promulgated thereunder and under other
applicable Law, the Lender’s procedures and customer due diligence standards
require it to obtain, verify and record information that identifies Borrower,
including among other things name, address, information regarding persons with
authority or control over Borrower, and other information regarding Borrower,
its operations and transactions with the Lender.  Borrower agrees to provide such information
and take such actions as are reasonably requested by the Lender in order to
assist the Lender in maintaining compliance with its procedures, the Patriot
Act and any other applicable Laws.


 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


58

















 


IN
WITNESS WHEREOF, the Parties have duly executed this Amended Agreement as of
the day and year first above written.


 


	
   

  	
  COWEN HEALTHCARE ROYALTY PARTNERS, L.P.,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Cowen Healthcare Royalty GP, LLC,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory B. Brown

  
	
   

  	
   

  	
  Name: Gregory B. Brown, M.D.

  
	
   

  	
   

  	
  Title: Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DYAX CORP.,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ivana Magovcevic-Liebisch

  
	
   

  	
   

  	
  Name: Ivana Magovcevic-Liebisch, Ph.D, J.D.

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President of

  
	
   

  	
   

  	
   

  	
  Administration and General Counsel

  



 


 


Confidential materials omitted and filed
separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 
















 


EXHIBIT
A


Business
Report Format


 


 


[*****]


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 

















 


EXHIBIT
B


 


Form of
Tranche B Promissory Note


 


THIS TRANCHE B NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES
OF SECTIONS 1272, 1273, AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.  FOR EACH $1,000 PRINCIPAL
AMOUNT OF THIS NOTE, THE ISSUE PRICE IS $[      
], THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $[        ], THE ISSUE DATE IS THE TRANCHE B
FUNDING DATE, AND THE YIELD TO MATURITY IS [      ]% PER ANNUM.


 


 


	
  US $15,000,000

  	
  New York, New York

  
	
   

  	
  Tranche B Funding Date

  



 


FOR
VALUE RECEIVED, DYAX CORP., a Delaware corporation (the “Borrower”),
hereby promises to pay to the order of Cowen Healthcare Royalty Partners, L.P.
or its registered assigns (the “Lender”), in lawful money of the United
States of America, in same day funds on the Maturity Date the principal sum of (x) fifteen
million dollars (US $15,000,000) and (y) any principal added to the Loan
pursuant to Section 4.01 of the Loan Agreement, less any payments of
principal made prior to the Maturity Date as provided in the Loan Agreement.


 


The
Borrower also promises to pay interest on the unpaid principal amount hereof in
like money, from the date hereof until such unpaid principal is paid in full,
at the rates, at the times and in the manner provided in the Loan Agreement
referred to below.


 


This
Tranche B Note is the Tranche B Note referred to in the Loan Agreement, dated
as of August 5, 2008, amended and restated as of March 18, 2009, by
and between the Borrower and the Lender (as may be further amended from time to
time, the “Loan Agreement”) and is entitled to the benefits thereof and
of the other Loan Documents.  This
Tranche B Note is secured as provided in the Loan Documents.  This Tranche B Note is subject to optional
prepayment, in whole or in part, prior to the Maturity Date as provided in the
Loan Agreement.


 


This
Tranche B Note is secured as provided in the Security Agreement and other Loan
Documents.  Reference is hereby made to
the Security Agreement for a description of the properties and assets in which
a security interest has been granted, the nature and extent of the security,
the terms and conditions upon which the security interest was granted and the
rights of the holder of this Tranche B Note in respect thereof.


 


If an
Event of Default shall occur and be continuing, the principal of and accrued
interest on this Tranche B Note may become or be declared to be due and payable
in the manner and with the effect provided in the Loan Agreement.


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 

















 


The
Borrower hereby waives presentment, demand, protest or notice of any kind in
connection with this Tranche B Note.


 


Capitalized
terms used but not defined herein shall have the meanings given to them in the
Loan Agreement.


 


THIS
TRANCHE B NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS
PRINCIPLES THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION).


 


 


	
   

  	
  DYAX CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 

















 


EXHIBIT C


Quarterly
Report Format


 


[*****]


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 

















 


EXHIBIT D


FORM OF SECURITY AGREEMENT


 




 


 





SECURITY AGREEMENT


 


Dated as of August 5, 2008


 


Amended and Restated as of March 18,
2009


 


between


 


COWEN HEALTHCARE ROYALTY PARTNERS, L.P.


 


and


 


DYAX CORP.


 


(in favor of Cowen Healthcare Royalty
Partners, L.P.)


 




 


 





Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 1.

  	
  Definitions

  	
  1

  
	
  Section 2.

  	
  Grant of Security

  	
  2

  
	
  Section 3.

  	
  Security for Obligations

  	
  3

  
	
  Section 4.

  	
  Borrower to Remain Liable

  	
  3

  
	
  Section 5.

  	
  Promissory Notes and Tangible Chattel Paper

  	
  4

  
	
  Section 6.

  	
  Pledged Deposit Accounts

  	
  4

  
	
  Section 7.

  	
  Investment Property

  	
  4

  
	
  Section 8.

  	
  Collateral in the Possession of a Bailee

  	
  4

  
	
  Section 9.

  	
  Electronic Chattel Paper and Transferable Records

  	
  4

  
	
  Section 10.

  	
  Letter-of-credit Rights

  	
  5

  
	
  Section 11.

  	
  Representations and Warranties

  	
  5

  
	
  Section 12.

  	
  Further Assurances

  	
  7

  
	
  Section 13.

  	
  Certain Covenants of Borrower

  	
  7

  
	
  Section 14.

  	
  Special Covenants With Respect to the Collateral

  	
  9

  
	
  Section 15.

  	
  Investor Appointed Attorney-in-Fact

  	
  14

  
	
  Section 16.

  	
  Standard of Care

  	
  15

  
	
  Section 17.

  	
  Remedies Upon Event of Default

  	
  16

  
	
  Section 18.

  	
  Application of Proceeds

  	
  18

  
	
  Section 19.

  	
  Expenses

  	
  18

  
	
  Section 20.

  	
  Continuing Security Interest; Termination and Release

  	
  18

  
	
  Section 21.

  	
  Miscellaneous

  	
  19

  



 


 


	
  Schedules

  	
   

  
	
  Schedule 1

  	
  Definitions

  
	
  Schedule 2(b)(i)

  	
  LFRP Patents

  
	
  Schedule 2(b)(ii)

  	
  LFRP Know-How

  
	
  Schedule 2(c)

  	
  License Agreements

  
	
  Schedule 2(e)

  	
  In Licenses

  
	
  Schedule 2(j)(i) and
  (ii)

  	
  Pledged Deposit Accounts

  
	
  Schedule 11(b)

  	
  Filing Jurisdictions

  
	
  Schedule 11(c)(i)

  	
  Excluded Agreements

  
	
   

  	
   

  
	
  Exhibits

  	
   

  
	
  Exhibit A

  	
  Form of Special Power of Attorney

  
	
  Exhibit B

  	
  Form of Copyright Security Agreement

  
	
  Exhibit C

  	
  Form of Patent Security Agreement

  
	
  Exhibit D

  	
  Form of Perfection Certificate

  
			



 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


i

















 


SECURITY AGREEMENT


 


This
SECURITY AGREEMENT (the “Agreement”) is dated as of August 5, 2008,
amended and restated as of March 18, 2009 (the “Effective Date”) by
and between Dyax Corp., a Delaware corporation (including its permitted
successors and assigns, “Borrower”), and Cowen Healthcare Royalty
Partners, L.P., a Delaware limited partnership (including its successors and
assigns, “Investor”).


 


W I T N E S S E T
H:


 


WHEREAS,
this Agreement was originally entered into on August 5, 2008 (the “Original
Security Agreement”) and the parties hereto desire to amend and restate
this Agreement as herein set forth;


 


WHEREAS,
Borrower and Investor are parties to that certain Loan Agreement dated as of August 5,
2008, amended and restated as of March 18, 2009 (as amended, supplemented
and otherwise modified from time to time, the “Loan Agreement”);


 


WHEREAS,
pursuant to the Original Loan Agreement, Borrower entered into the Original
Security Agreement, under which Borrower granted to Investor a security interest
in and to the Collateral as general and continuing security for the due performance
and payment of all of Borrower’s obligations to Investor under the Transaction
Documents (as defined in the Original Loan Agreement);


 


WHEREAS,
Borrower now desires to create a new tranche of Loans under the Loan Agreement,
and has accordingly agreed to enter into this amended and restated Security
Agreement in connection with the Loan Agreement.


 


NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants
hereinafter set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:


 


Section 1.     Definitions.


 


(a)           For purposes of this Agreement,
capitalized terms and certain other terms used herein shall have the meanings
set forth in Schedule 1 hereto. 
Capitalized terms used herein and not otherwise defined herein or in
Schedule 1 shall have the meanings given such terms in the Loan Agreement.  Terms used herein and defined in the UCC
shall have the meaning ascribed to such terms in the UCC unless the context
clearly requires otherwise.


 


(b)           This Agreement amends and restates
the Original Security Agreement. The Obligations of the Borrower under the
Original Security Agreement and the grant of security interest in the
Collateral by the Borrower under the Original Security Agreement 


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 

















 


shall continue under this Agreement, and shall not in any event be
terminated, extinguished or annulled, but shall hereafter be governed by this
Agreement.  Unless otherwise indicated,
all references to the Original Security Agreement in any Loan Document (other
than this Agreement) or other document or instrument delivered in connection
therewith shall be deemed to refer to this Agreement and the provisions
hereof.  It is understood and agreed that
the Original Security Agreement is being amended and restated by entry into this
Agreement on the Tranche B Closing Date. 
Notwithstanding any other provision herein, the terms and provisions of
this amended and restated Security Agreement shall only become effective and
supersede the terms and provisions of the Original Security Agreement upon the
occurrence of the funding of the Tranche B Loan.


 


Section 2.     Grant
of Security.  Borrower hereby grants
Investor, for the benefit of the Lenders, and confirm its grant of, a security
interest in all of the Borrower’s right, title and interest in and to the
following personal property, whether now or hereafter existing, and wherever
the same may be located (all such property, collectively, the “Collateral”):


 


(a)           the Gross Payments and Included
Receipts;


 


(b)           the LFRP Patents, including those set
forth on Schedule 2(b)(i) and LFRP Know-How, including that described in
Schedule 2(b)(ii), and all other know-how, materials, trademarks, service
marks, trade names and goodwill associated therewith, trade secrets, data,
formulations, processes, franchises, inventions, software, copyrights, and all
intellectual property (including biological materials), and all registrations
of any of the foregoing, or applications therefor, that are (i) owned by,
controlled by, issued to, licensed to, or licensed by Borrower and (ii) used
in the performance of the LFRP as presently conducted by Borrower or as
conducted by Borrower as of the Closing Date or during the term of the Loan
(but specifically excluding the biological material comprising the Company
Physical Libraries, it being the intent of the parties that while intellectual
property covering or embodied in the LFRP Libraries be within the scope of the
Collateral, all biological material comprising the LFRP Libraries except for
the Duplicate Libraries is excluded from the Collateral);


 


(c)           the License Agreements, including
those set forth on Schedule 2(c);


 


(d)           [Reserved];


 


(e)           the In Licenses including those set
forth on Schedule 2(e);


 


(f)            books, records, data bases, and
information related to the LFRP;


 


(g)           all general intangibles, including
all payment intangibles and all documents (notwithstanding any other provisions
herein, as that term is defined in the UCC), instruments (including promissory
notes), accounts, letter-of-credit rights (whether or not the letter of credit
is evidenced by a writing), commercial tort claims, 


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


2

















 


securities and all other investment property, supporting obligations,
any other contract rights or rights to the payment of money, insurance claims
and proceeds, in each case related to the Gross Payments and Included Receipts;


 


(h)           any other general intangibles
necessary to the performance of or forming part of the LFRP;


 


(i)            [Reserved];


 


(j)             (i) the Borrower’s interests
in the Lockbox Account, details of which are provided on Schedule 2(j)(i), and
any successor account, (ii) the Company Concentration Account, details of
which are provided on Schedule 2(j)(ii), and any successor account, and (iii) any
other deposit account or securities account containing proceeds of Collateral
and into which a party to a License Agreement has remitted Royalties (the accounts
referred to in clauses (i), (ii) and (iii) collectively, the “Pledged
Deposit Accounts”), all funds on deposit in each such account, all
investments arising out of such funds, all claims thereunder or in connection
therewith and special purpose subaccounts maintained therein, and all monies
and credit balances from time to time held in the Pledged Deposit Accounts or
such subaccounts; all notes, certificates of deposit, deposit accounts, checks
and other instruments from time to time hereafter delivered to or otherwise
possessed by Borrower in substitution for or in addition to any or all of the
then existing items described in this subsection (j); and all interest,
dividends, cash, securities, rights, instruments and other property at any time
and from time to time received, receivable or otherwise distributed in respect
of such accounts, such funds, or such investments or received in exchange for
any or all of the items described in this subsection;


 


(k)           all money now or at any time in the
possession or under the control of, or in transit to, the Lockbox Bank, or the
Borrower relating to any of the foregoing in this Section 2;


 


(l)            quantities of biological material
comprising a complete copy of each of the LFRP Libraries that are sufficient to
be used to create a reproducible supply of the LFRP Libraries (the “Duplicate
Libraries”); and


 


(m)          all Proceeds.


 


Section 3.     Security
for Obligations.  This Agreement
secures, and the Collateral pledged by Borrower is collateral security for, the
due and punctual payment or performance in full (including the payment of
amounts that would become due but for the operation of the automatic stay under
Subsection 362(a) of the United States Bankruptcy Code) of all Secured
Obligations of Borrower.


 


Section 4.     Borrower
to Remain Liable.  Notwithstanding
anything to the contrary contained herein, (a) Borrower shall remain
liable to perform all of its duties and other obligations under the Loan
Agreement to the same extent as if this Agreement had not been 


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


3

















 


executed, and (b) the
exercise by Investor of any of its rights hereunder shall not release Borrower
from any of its duties or other obligations under the Loan Agreement.


 


Section 5.     Promissory
Notes and Tangible Chattel Paper.  If
Borrower at any time shall hold or acquire any promissory notes or tangible
chattel paper constituting Collateral having a face value greater than
twenty-five thousand dollars ($25,000), Borrower shall forthwith endorse,
assign and deliver the same to Investor, accompanied by such instruments of
transfer or assignment duly executed in blank as Investor may from time to time
specify.


 


Section 6.     Pledged
Deposit Accounts.  Borrower shall
follow the procedures and payment mechanisms relating to the Pledged Deposit
Accounts set forth in Section 4.02 of the Loan Agreement.


 


Section 7.     Investment
Property.  If Borrower shall at any
time hold or acquire any certificated securities constituting Collateral,
Borrower shall forthwith endorse, assign and deliver the same to Investor,
accompanied by such instruments of transfer or assignment duly executed in
blank as Investor may from time to time specify.  If any securities constituting Collateral now
or hereafter acquired by Borrower are uncertificated and are issued to Borrower
or its nominee directly by the issuer thereof, Borrower shall promptly notify
Investor thereof and, at Investor’s request, pursuant to an agreement in form
and substance satisfactory to Investor in its discretion reasonably exercised,
cause the issuer of such securities to agree to comply with instructions from
Investor as to such securities, without further consent of Borrower or such nominee.  If any securities constituting Collateral,
whether certificated or uncertificated, or other investment property now or
hereafter acquired by Borrower are held by Borrower or its nominee through a
securities intermediary or commodity intermediary, Borrower shall promptly
notify Investor thereof and, at Investor’s request, pursuant to an agreement in
form and substance satisfactory to Investor in its discretion reasonably
exercised, cause such securities intermediary or (as the case may be) commodity
intermediary to agree to comply with entitlement orders or other instructions
from Investor to such securities intermediary as to such securities or other
investment property, or (as the case may be) to apply any value distributed on
account of any commodity contract as directed by Investor to such commodity
intermediary, in each case without further consent of Borrower or such nominee.


 


Section 8.     Collateral
in the Possession of a Bailee.  If
any property constituting Collateral is at any time in the possession of a
bailee, Borrower shall promptly notify Investor thereof and, if requested by
Investor, shall promptly obtain an acknowledgement from the bailee, in form and
substance satisfactory to Investor in its discretion reasonably exercised, that
the bailee holds such Collateral for the benefit of Investor and shall act upon
the instructions of Investor, without the further consent of Borrower.


 


Section 9.     Electronic
Chattel Paper and Transferable Records. 
If Borrower at any time holds or acquires an interest in any electronic
chattel paper or any “transferable record,” as that term is defined in Section 201
of the federal Electronic Signatures in Global and National Commerce Act, or in
§ 16 of the Uniform Electronic Transactions Act as in effect in any relevant 


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


4

















 


jurisdiction, constituting Collateral,
Borrower shall promptly notify Investor thereof and, at the request of
Investor, shall take such action as Investor may reasonably request to vest in
Investor control under UCC § 9-105 of such electronic chattel paper or control
under Section 201 of the federal Electronic Signatures in Global and
National Commerce Act or, as the case may be, § 16 of the Uniform Electronic
Transactions Act, as so in effect in such jurisdiction, of such transferable
record.


 


Section 10.   Letter-of-credit
Rights.  If Borrower is at any time a
beneficiary under a letter of credit now or hereafter issued in favor of
Borrower constituting Collateral, Borrower shall promptly notify Investor
thereof and, at the request of Investor, Borrower shall, pursuant to an
agreement in form and substance satisfactory to Investor in its discretion
reasonably exercised, arrange for the issuer and any confirmer of such letter
of credit to consent to an assignment to Investor of the proceeds of any
drawing under the letter of credit.


 


Section 11.   Representations
and Warranties.


 


(a)           Borrower represents and warrants to
Investor as of the date hereof, Borrower (or any predecessor by merger or
otherwise) has not, within the five (5) year period preceding the date
hereof, had a different name from the name listed on the signature pages hereof.


 


(b)           Borrower represents and warrants to
Investor as of the date hereof, and represents and warrants to Investor in all
material respects on each date it acquires rights in Collateral in which a
security interest is purported to be granted hereunder, as follows:


 


(i)      Ownership
of Collateral.  Borrower has the
power to grant a lien and security interest in each item of Collateral upon
which it purports to grant a lien or security interest hereunder and the grant
of such security interest shall not constitute or result in (A) the
abandonment, invalidation or unenforceability of any right, title or interest
of Borrower under any lease, license or contract to which it is a party or (B) a
breach or termination pursuant to the terms of, or a default under, any such
lease, license, contract or agreement (other than to the extent that any such
term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or
9-409 of the UCC).  Other than such as
may have been filed in favor of Investor relating to this Agreement, the
Original Security Agreement or as contemplated by the Loan Agreement, no
effective UCC financing statement or other instrument similar in effect
covering all or any part of the Collateral or the LFRP Patents is on file in
any filing or recording office.


 


(ii)     Validity.  This Agreement creates a valid security
interest in the Collateral, and upon the filing of the appropriate UCC
financing statements naming Investor as secured party and describing the
Collateral in the applicable filing office(s) in the jurisdiction(s) listed
in Schedule 11(b), such security interest will be perfected in all Collateral
in which a security interest can be perfected by the filing of a UCC-1 Uniform
Commercial Code financing statement. 
Other than Permitted Liens which have priority 


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


5

















 


under law, the security interest in the Collateral granted herein is
prior to any and all other Liens.  As of
the date hereof, there are no Liens other than Permitted Liens on or with respect
to the Collateral.


 


(iii)    Authorization,
Approval.  No authorization,
approval, or other action by, and no notice to or filing with, any government
or agency of any government or other Person is required either (A) for the
assignment, pledge and grant by Borrower of the security interest granted
hereby or for the execution, delivery and performance of this Agreement by
Borrower; or (B) for the perfection of, the pledge, assignment and grant
of the security interest created hereby or the exercise by Investor of its
rights and remedies hereunder (provided, however, that the
exercise by Investor of certain rights and remedies relating to certain
licenses or leases of the Borrower may require the consent of the other parties
to such licenses or leases), other than (X) the filing of financing
statements in the appropriate office(s) located in the jurisdiction(s) listed
on Schedule 11(b) and (Y) the filing of the Patent Security Agreement
with the United States Patent and Trademark Office and the filing of the
Copyright Security Agreement in the United States Copyright Office and any
supplements or amendments thereto.


 


(iv)    Enforceability.  This Agreement is the legally valid and
binding obligation of Borrower, enforceable against Borrower in accordance with
its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights
generally or general equitable principles.


 


(c)           Other Representations and
Warranties.  As of the date hereof
and as of the earlier of the date on which the Business Report is delivered or
the date on which such Business Report is due in each fiscal year:


 


(i)      Schedules.  (i) (A) Schedule 2(b)(i) shall
set forth all of the LFRP Patents, (B) Schedule 2(b)(ii) shall set
forth a description of the LFRP Know-How; (C) Schedule 11(c)(i) shall
set forth all of the Excluded Agreements; (D) Schedule 2(c) shall set
forth all of the License Agreements; (E) [Reserved]; (F) Schedule 2(e) shall
set forth all of the In Licenses; (G) [Reserved]; and (H) Schedule
2(j)(i) and (ii) shall set forth details of the Pledged Deposit
Accounts; and


 


(ii)     Perfection
Certificate.  (A) Borrower’s
exact legal name is that indicated on the Perfection Certificate and on the
signature page thereof; (B) Borrower is an organization of the type
and organized in the jurisdiction set forth in the Perfection Certificate; (C) the
Perfection Certificate accurately sets forth Borrower’s organizational identification
number or accurately states that Borrower has none; (D) the Perfection
Certificate accurately sets forth each place of Borrower’s business or, if more
than one, its chief executive office as well as its mailing address (if
different) and where Collateral is located; (E) Borrower’s FEIN is
accurately set forth in the Perfection Certificate; and, (F) all other
information set forth on the Perfection Certificate is accurate and complete in
all material respects.


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


6
















 


Section 12.                                      Further
Assurances.  Borrower agrees that,
from time to time, at its cost and expense, Borrower will promptly execute and
deliver all further instruments and documents, and take all further action that
may be necessary or desirable, or that Investor may reasonably request, in
order to perfect and protect any security interest granted or purported to be
granted hereby or to enable Investor to exercise and enforce its rights and
remedies hereunder with respect to any Collateral.  Without limiting the generality of the
foregoing, Borrower will:  (a) (i) execute
and file such financing or continuation statements, or amendments thereto, as
well as documents for filing in the Unites States Patent Office and United
States Copyright Office (ii) execute and deliver, and cause to be executed
and delivered, agreements establishing that Investor has control of specified
items of Collateral, including the Lockbox Agreement, and (iii) deliver
such other instruments or notices, in each case, as may be necessary or
desirable, or as Investor may reasonably request, in order to perfect and
preserve the security interests granted or purported to be granted hereby; (b) furnish
to Investor from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as Investor may reasonably request, all in reasonable detail; (c) at
Investor’s reasonable request, appear in and defend any action or proceeding
that may affect Borrower’s title to or Investor’s security interest in all or
any part of the Collateral, including any proceeding in which the issue is
whether any property in which Borrower has rights constitutes Collateral; and (d) use
commercially reasonable efforts to obtain any necessary consents of third
parties to the assignment and perfection of a security interest to Investor
with respect to any Collateral.  Borrower
hereby authorizes Investor to file one or more financing or continuation
statements, and amendments thereto, relative to all or any part of the
Collateral without the signature of Borrower. 
Borrower agrees that a carbon, photographic or other reproduction of
this Agreement or of a financing statement signed by Borrower shall be
sufficient as a financing statement and may be filed as a financing statement
in any and all jurisdictions. 
Notwithstanding the foregoing, so long as there exists no Event of
Default, the Borrower shall not be required to obtain the consent of the other
parties to the existing License Agreements and In Licenses.


 


Section 13.                                      Certain
Covenants of Borrower.  Borrower
shall:


 


(a)                                  not
use or permit any Collateral to be used unlawfully or in violation of any
applicable statute, regulation or ordinance or any policy of insurance covering
the Collateral to the extent the same could reasonably be expected to have a
Material Adverse Effect;


 


(b)                                 at
its own cost and expense, with respect to each property that it leases on which
any Collateral is located, obtain, at Investor’s request, an agreement
satisfactory to Investor with the landlord of such leased property, (i) subordinating
such landlord’s lien in any Collateral to the security interest purported to be
granted hereunder and (ii) granting access to such leased property;


 


(c)                                  maintain
insurance as provided in Section 9.06 the Loan Agreement;


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


7

















 


(d)                                 notify
Investor of any change in its name, identity or corporate structure at least
fifteen (15) days prior to such change;


 


(e)                                  give
Investor thirty (30) days’ prior written notice of any change in its chief
place of business, chief executive office or residence or the office where Borrower
keeps its records regarding the Collateral or a reincorporation, reorganization
or other action that results in a change of the jurisdiction of organization of
Borrower;


 


(f)                                    pay
promptly when due all taxes, assessments and governmental charges or levies
imposed upon, and all claims against, the Collateral, except to the extent the
validity thereof is being contested in good faith; provided, however,
that Borrower shall in any event pay such taxes, assessments, charges, levies
or claims not later than five (5) days prior to the date of any proposed
sale under any judgment, writ or warrant of attachment entered or filed against
Borrower or any of the Collateral as a result of the failure to make such
payment;


 


(g)                                 except
for licenses of LFRP Intellectual Property and In Licenses in effect on the
date hereof, not suffer to exist any license, lease, contract or agreement to
which it is a party forming part of or used in the LFRP that contains any
provision that purports to prohibit Borrower from granting to Investor a
security interest in any item of Collateral including any such license, lease,
contract or agreement itself;


 


(h)                                 comply
with all of its obligations with respect to any personal property owned or
leased by it and used in the LFRP, including capital leases, operating leases
and purchase money indebtedness except to the extent non-compliance could not
reasonably be expected to have a Material Adverse Effect;


 


(i)                                     from
and after the date that the Duplicate Libraries are delivered to the location
specified in Section 14(f), in the event that there are any updates or
improvements to the LFRP Libraries, or other libraries as set forth in the
definition of LFRP Libraries, promptly deliver sufficient quantities of such
updated, improved or other LFRP Libraries as necessary to maintain the
Duplicate Libraries as a duplicate reproducible supply of the LFRP Libraries at
such location; and


 


(j)                                     not
transfer, sell, convey, assign, dispose of or license the Company Physical
Libraries, except (x) in the ordinary course of business of the LFRP
consistent with past practices, or (y) outside the scope of the LFRP the
non-exclusive licensing of the Company Physical Libraries but limited to a
scope or for a use so as to not compete with the LFRP, provided, that non-exclusive
licensing of the Company Physical Libraries under Internally Developed Product
Agreements or under Co-Development Agreements shall not be considered in breach
hereof, so long as in no event shall any third party or Affiliate be granted a
license or other rights under the Company Physical Libraries in a way that
would allow such third party or Affiliate to operate a funded research or licensing
program that would compete with the LFRP.


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


8

















 


(k)                                  concurrently
with Borrower’s delivery of a Business Report pursuant to Section 9.03(e) of
the Loan Agreement, confirm the attachment of the security interest in the
registered intellectual property of Borrower created by this Agreement by
execution of Copyright Security Agreement or a Patent Security Agreement, as
applicable, with respect to any such registered intellectual property not
subject at such time to a Patent Security Agreement or a Copyright Security
Agreement, as applicable, and the filing of such agreement with the patent
office or any other Governmental Authority as shall be necessary to create,
preserve, protect or perfect Investor’s security interest in such intellectual
property as may be reasonably requested by Investor.


 


Section 14.                                      Special
Covenants With Respect to the Collateral.


 


(a)                                  Borrower
shall:


 


(i)                                 diligently keep
records in reasonable detail respecting the Collateral at its chief executive office
or principal place of business;


 


(ii)                              not locate any Collateral
in any location other than (1) those owned by Borrower or for which it has
delivered an agreement described in Section 13(b) hereof, (2) the
deposit accounts as contemplated by the Lockbox Agreement, or (3) in the
locations as contemplated in Section 14(f), and shall not relocate any
collateral from its location as of the Closing Date to another such location
without first notifying Investor in writing of such relocation;


 


(iii)                           give thirty (30) days’ prior
written notice to Investor of its intent to establish any additional place of
business;


 


(iv)                          other than items deposited
for collection in the Lockbox Account, forthwith turn over (with any required endorsement
and assignment requested by Investor), any instrument or cash constituting
Collateral;


 


(v)                             not create, incur, assume
or suffer to exist any Lien with respect to Collateral, other than Permitted
Liens;


 


(vi)                          not Transfer the Collateral,
other than the Proceeds the Borrower is permitted to receive in accordance with
the Lockbox Agreement, except (x) with respect to the LFRP, licensing out
in the ordinary course of business of the LFRP consistent with past practices,
or (y) outside the scope of the LFRP, non-exclusive licensing out of LFRP
Intellectual Property (including the provision of LFRP Libraries or other
biological material) but limited to a scope or for a use so as not to compete
with the LFRP; provided, that non-exclusive licensing of LFRP
Intellectual Property under Internally Developed Product Agreements or under
Co-Development Agreements shall not be considered in breach hereof, so long as
in no event shall any third party or Affiliate be granted a license or other
rights under the LFRP Intellectual Property (including the provision of LFRP Libraries
or other biological material) in a way that would allow such 


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


9





















 


third party or Affiliate to operate a funded research or licensing
program that would compete with the LFRP.


 


(vii)                       in the event that Borrower has
rights to a commercial tort claim constituting Collateral, notify Investor and
provide a detailed description of the claim and shall grant Investor a security
interest therein in a manner specified by Investor; and


 


(viii)                    in the event that Borrower shall
have a security interest in any property securing any Collateral, promptly
execute an assignment of such security interest to Investor.


 


(b)                                 Borrower
shall, at Borrower’s sole cost and expense, (A) take any and all actions
and make all payments, which are necessary and desirable to diligently maintain
the LFRP Patents owned by it; (B) defend such LFRP Patents against any
claims of invalidity or unenforceability; and (C) take
commercially reasonable measures to protect the proprietary nature of each item
of LFRP Intellectual Property and to maintain in confidence all confidential
information compromising a part thereof; provided, that in no
event shall Borrower be required to take any action under subsection (B) or
(C) if: (i) the failure to take action could not reasonably be
expected to result in a Material Adverse Effect, (ii) the reasonably
estimated cost to Borrower associated with pursuing such action would outweigh
the reasonably estimated extent by which the Included Receipts and the interest
in the Royalties retained by the Borrower would benefit as a result of
successfully pursuing such action, or (iii) Borrower obtains the requisite
written consent of Lenders required under the Loan Agreement, which shall not
be unreasonably withheld (as in the case, for example, where pursuing such
action would jeopardize the LFRP Intellectual Property or adversely effect the
LFRP as a whole). Consent hereunder shall be provided or denied within ten (10) Business
Days after notice and provision of such information as may be reasonably
requested by the Lender from the Borrower. Borrower shall immediately notify
Lender of such claim. The parties shall consult as to strategy regarding any
response to such claim. Borrower shall not abandon, or fail to take any action
necessary or desirable to prevent the disclaimer or abandonment of material
LFRP Patents owned by it.


 


(c)                                  Unless
there shall occur and be continuing any Event of Default and the Investor has
accelerated the Obligations under the Loan Agreement, Borrower shall have the
right to commence and prosecute in its own name, as the party in interest, for
its own benefit and at the sole cost and expense of the Borrower, such
applications for protection of the LFRP Intellectual Property and suits,
proceedings or other actions to prevent the infringement, counterfeiting, unfair
competition, dilution, diminution in value or other damage as are necessary to
protect the LFRP Intellectual Property. 
Upon the occurrence and during the continuance of any Event of Default,
the Investor shall have the right but shall in no way be obligated to file
applications for protection of the LFRP Intellectual Property and/or bring suit
in the name of the Borrower or Investor to enforce the LFRP Intellectual
Property and any license thereunder.  In
the event of such suit, the Borrower shall, at the reasonable request of the
Investor, do any and all lawful acts and execute any and all documents
requested by the Investor in aid of such enforcement and the Borrower shall
promptly reimburse and indemnify the Investor for all costs 


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


10





















 


and expenses incurred by the
Investor in the exercise of its rights under this Section 14(c) in
accordance with the Loan Agreement.  In
the event that the Investor shall elect not to bring suit to enforce the LFRP
Intellectual Property, the Borrower agrees, at the reasonable request of the
Investor, to take all commercially reasonable actions necessary, whether by
suit, proceeding or other action, to prevent the infringement, counterfeiting,
unfair competition, dilution, diminution in value of or other damage to any of
the LFRP Intellectual Property by any person.


 


(d)                                 Borrower
shall, concurrently with the execution and delivery of this Agreement, execute
and deliver to Investor five (5) originals of a Special Power of Attorney
in the form of Exhibit A annexed hereto for execution of an assignment of
the Collateral to Investor, or the implementation of the sale or other disposition
of the Collateral pursuant to Investor’s good faith exercise of the rights and
remedies granted hereunder; provided, however, Investor agrees
that it will not exercise its rights under such Special Power of Attorney unless
an Event of Default has occurred and is continuing.


 


(e)                                  Borrower
shall, concurrently with the execution and delivery of this Agreement, execute
and deliver to Investor the Patent Security Agreement and the Copyright Security
Agreement (in respect of intellectual property not covered by the filings made
promptly after the Closing Date) and all other documents, instruments and other
items as may be necessary for Investor to file such agreements with the United
States Patent and Trademark Office and United States Copyright Office and any
similar domestic or foreign office, department or agency.  Borrower shall upon and after the occurrence
of an Event of Default, use its commercially reasonable efforts to obtain any
consents, waivers and agreements requested by Investor that are necessary to
enable Investor to exercise its remedies with respect to the Collateral.


 


(f)                                    Certain
Rights upon an Event of Default before and following a Foreclosure.


 


(i)                                    Upon the occurrence
and during the continuance of an Event of Default and upon notice by Investor
(the “Notice Event”):


 


(1)                                  Borrower hereby
agrees to grant and hereby grants to Investor effective upon the Notice Event
an exclusive worldwide royalty-free license, with the right to sublicense,
under the Shared Intellectual Property (the “Marks”)) to the extent
permitted under the In Licenses solely to carry out the LFRP program (including
through a designee other than a phage-display company that competes with
Borrower) in the same general manner as carried out by Borrower immediately
prior to any such Event of Default; provided that such license shall be
subject to any licenses granted by Borrower to third parties (not in violation
of the Loan Agreement) prior to the date of the grant to Investor hereunder;


 


(2)                                  Borrower hereby
agrees to grant and hereby grants to Investor effective upon the Notice Event
an exclusive royalty-free limited license to use and display the Marks, solely
in association with any product or service used or 


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


11

















 


provided in connection with the LFRP in the same general manner and at
least as high a level of quality as carried out by Borrower immediately prior
to any such Event of Default; provided, that (I) Borrower shall
have the right to monitor any such product or service for the purpose of
protecting and maintaining the level of quality established by Borrower prior
to any such Event of Default; (II) Investor acknowledges that the goodwill
and other benefits associated with such Marks shall inure to the benefit of
Borrower; and (III) Investor shall not use or omit use of the Marks in any
manner which would injure or destroy their value or diminish Borrower’s
property rights; and provided, further, that, in the event
Borrower advises Investor of any discrepancy in the level of quality of such
products or services, Borrower shall have the right to terminate the use and
display of the Marks by Investor (but not the other rights licensed hereunder)
until such time as the discrepancy is corrected; and


 


(3)                                  For the avoidance of
doubt, the Parties agree and acknowledge that (A) Investor shall not practice
the licenses set forth in this Section 14(e)(i) unless and until the
occurrence of an Event of Default and only for so long as such Event of Default
continues; provided that such licenses shall immediately terminate on
the date that the security interest granted under this Agreement is terminated
in accordance with Section 20 hereof, and (B) subject to the grant of
the security interest under and the other provisions of this Agreement and the
Loan Agreement, Borrower shall retain ownership of its rights under the Shared
Intellectual Property (including the Marks) and shall be free to practice,
exploit and license the Shared Intellectual Property on a non-exclusive basis
outside the scope of the LFRP but limited to a scope or for a use so as to not
compete with the LFRP; provided that non-exclusive licensing of Shared
Intellectual Property under Internally Developed Product Agreements or under
Co-Development Agreements shall not be considered in breach hereof, so long as
in no event shall any third party or Affiliate be granted a license or other
rights under the Shared Intellectual Property in a way that would allow such
third party or Affiliate to operate a funded research or licensing program that
would compete with the LFRP.


 


(ii)                                 Upon the occurrence
and during the continuance of an Event of Default, following or in connection
with Investor’s exercise of the foreclosure remedies hereunder:


 


(1)                                  Investor hereby
agrees to grant and hereby grants to Borrower a non-exclusive, perpetual,
royalty-free worldwide license, with the right to sublicense, under the Shared
Intellectual Property (other than the Marks) to the extent permitted under the
In Licenses, for any purpose outside the LFRP on a non-exclusive basis, but
limited to a scope or for a use so as to not compete with the LFRP; provided
that non-exclusive licensing of Shared Intellectual Property under Internally
Developed Product Agreements or under Co-Development 


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


12

















 


Agreements shall not be considered in breach hereof, so long as in no
event shall any third party or Affiliate be granted a license or other rights
under the Shared Intellectual Property in a way that would allow such third
party or Affiliate to operate a funded research or licensing program that would
compete with the LFRP.


 


(2)                                  Investor hereby
agrees to grant and hereby grants to Borrower a non-exclusive, perpetual,
royalty-free limited license to use and display the Marks in association with
any product or service used or provided in connection with the Borrower’s
business outside of the LFRP, within the scope permitted under Section 14(e)(ii)(1),
above, in the same general manner and at least as high a level of quality as
carried out by Borrower immediately prior to any such foreclosure; provided,
that (I) Investor shall have the right to monitor any such product or service
for the purpose of protecting and maintaining the level of quality established
by Borrower prior to any such foreclosure; (II) Borrower acknowledges that
the goodwill and other benefits associated with such Marks shall inure to the
benefit of Investor; and (III) Borrower shall not use or omit use of the
Marks in any manner which would injure or destroy their value or diminish
Investor’s property rights; and provided, further, that, in the
event Investor advises Borrower of any discrepancy in the level of quality of
such products or services, Investor shall have the right to terminate the use
and display of the Marks (but not the other rights licensed hereunder) by
Borrower until such time as the discrepancy is corrected; and


 


(3)                                  Investor hereby
agrees, at Borrower’s sole cost and expense, to make, or to permit Borrower to
make, copies of all books, records, data bases, and information (including the
handbooks, manuals and sequence information) related to the LFRP and to use all
Shared Intellectual Property solely for the purpose of the conduct of the
business of Borrower outside the LFRP within the scope permitted under Section 14(e)(ii)(1),
above.  For avoidance of doubt, the
licenses granted to the Borrower in Section 14(e)(ii) shall survive
the termination of this Agreement.  The
parties acknowledge that such licenses are licenses of “intellectual property”
for the purposes of Section 365 (n) of the Bankruptcy Code.


 


(g)                                 Borrower
prepared the Duplicate Libraries and delivered the Duplicate Libraries to
Fisher Clinical Services, 631 Lofstrand Lane, Rockville, MD 20850 (phone:  (301) 315-2238) or such other secure location
or locations as are reasonably acceptable to Borrower and Investor, clearly
identified as the Duplicate Libraries prepared for the benefit of Investor, and
segregated from property of Borrower.


 


(h)                                 Borrower
shall:  (i) maintain copies of all
source and object codes for all Software at one or more safe and secure
locations reasonably acceptable to Investor, (ii) keep 


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


13

















 


Investor fully informed of each
such location, and (iii) maintain the currency of all such Software stored
thereat.


 


(i)                                     Borrower
shall, concurrently with the execution and delivery of this Agreement, execute
and deliver to Investor (to the extent there have been any changes in the information
required to be included therein since the Closing Date) the Perfection
Certificate.


 


(j)                                     Borrower
agrees that a breach of any of the covenants contained in this Agreement will
cause irreparable injury to Investor, that Investor has no adequate remedy at
law in respect of such breach and, as a consequence, that each and every
covenant contained herein shall be specifically enforceable against Borrower,
and Borrower hereby waives and agrees not to assert any defenses against an
action for specific performance of such covenants.


 


(k)                                  The
Borrower shall:  (a) notify in
reasonable detail Investor promptly, but in no event later than quarterly (on
the earlier of the date on which the Business Report is delivered by the
Borrower or the date on which such Business Report is due in each fiscal
quarter) after the acquisition, execution or filing thereof, of any (i) License
Agreements, LFRP Patents, Co-Development Agreements, payments under which form
part of the Collateral, and In Licenses, and (b) on the last day of each
quarter provide, in reasonable detail, updates to Schedules 2(b)(i), 2(b)(ii) 2(c),
2(e), 2(j)(i) and 2(j)(ii), which would make the representations and warranties
contained in Section 11(c)(i) true, correct and complete as of such
date of the delivery of such Business Report. 
Upon the delivery and acceptance of such updated schedules by Investor,
such schedules will be automatically deemed to amend and restate Schedules
2(b)(i), 2(b)(ii), 2(c), 2(e), 2(j)(i) and 2(j)(ii) hereto.(1)


 


Section 15.                                      Investor
Appointed Attorney-in-Fact.  Borrower
hereby irrevocably appoints Investor, or any person or agent as Investor may
designate as such, Borrower’s attorney-in-fact, with full authority in the
place and stead of Borrower and in the name of Borrower, Investor or otherwise,
from time to time in Investor’s discretion to take any action and to execute
any instrument that Investor may in its good faith sole discretion deem
necessary or advisable to accomplish the following:


 


(a)                                  upon
the occurrence and during the continuance of an Event of Default, to ask for,
demand, collect, sue for, recover, compound, receive and give acquittance and
receipts for monies due and to become due under or in respect of any of the
Collateral, and to manage the LFRP, including taking actions under the License
Agreements and In Licenses;


 






(1)                                  Note
we will revise format of Reports so that the amendments to schedules are more
straightforward.


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


14

















 


(b)                                 upon
the occurrence and during the continuance of an Event of Default, to receive,
direct payment of, endorse and collect any drafts or other instruments, documents
and chattel paper in connection with clause (a) above;


 


(c)                                  upon
the occurrence and during the continuance of an Event of Default, to file any
claims or take any action or institute any proceedings that Investor may in its
good faith sole discretion deem necessary or desirable for the collection of
any of the Collateral or otherwise to enforce the rights of Investor with
respect to any of the Collateral;


 


(d)                                 upon
the occurrence and during the continuance of an Event of Default, to pay or
discharge taxes or liens levied or placed upon or threatened against the
Collateral, the legality or validity thereof and the amounts necessary to
discharge the same to be determined by Investor in its sole discretion, any
such payments made by Investor to become obligations of Borrower to Investor,
due and payable immediately without demand;


 


(e)                                  upon
the occurrence and during the continuance of an Event of Default, to sign and
endorse any invoices, drafts against debtors, assignments, verifications,
notices and other documents relating to the Collateral; and


 


(f)                                    upon
the occurrence and during the continuance of an Event of Default, to perform
any obligations of the Borrower under the Transaction Documents with the Borrower
which the Borrower has not performed.


 


(g)                                 upon
and at any time after the occurrence and during the continuance of an Event of
Default, to prepare, file and sign Borrower’s name on an assignment document in
such form as Investor may in its sole discretion deem necessary or desirable to
transfer ownership of the Collateral to Investor or an assignee or transferee
of Investor, which transfer expressly shall be subject to the rights of the
Borrower in such Collateral set forth in Section 14(e) hereof.


 


Section 16.                                      Standard of
Care.  The powers conferred on
Investor hereunder are solely to protect its interest in the Collateral and
shall not impose any duty upon it to exercise any such powers.  Except for the exercise of good faith and of
reasonable care in the accounting for monies actually received by Investor
hereunder, Investor shall have no duty as to any Collateral or as to the taking
of any necessary steps to preserve rights against prior parties or any other
rights pertaining to any Collateral. 
Investor shall be deemed to have exercised reasonable care in the
custody and preservation of Collateral in its possession if such Collateral is
accorded treatment substantially equal to that which Investor accords its own
property.  The Investor shall act as
agent hereunder for any other Lenders that become a party to the Loan Agreement
after the date hereof and the security interest granted hereunder to the
Investor is also granted to the Investor for the benefit of other Lenders.  Except as provided in the Loan Agreement, the
Investor shall have no duty to any Lender hereunder and its sole responsibility
shall be limited to 


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


15

















 


(i) being named as a secured party hereunder and
in any UCC financing statement, intellectual property filing, Lockbox
Agreement, any escrow agreement or other documents, instrument or agreement
entered into or filed pursuant hereto and (ii) holding any possessory
Collateral delivered to it by the Company pursuant hereto, in each case for the
benefit of all Lenders.  The Investor is
entitled to, but has no obligation to exercise any rights or remedies hereunder
or under applicable law.


 


Section 17.                                      Remedies Upon
Event of Default.


 


(a)                                  If,
and only if, any Event of Default shall have occurred and be continuing,
Investor may exercise in respect of the Collateral (i) all rights and remedies
provided for herein, under the Loan Agreement or otherwise available to it, (ii) all
the rights and remedies of a secured party on default under the UCC (whether or
not the UCC applies to the Collateral), in all relevant jurisdictions, and (iii) the
rights to:


 


(i)                                     require Borrower
to, and Borrower hereby agrees that it will at its cost and expense and upon
request of Investor forthwith, assemble all or part of the Collateral as
directed by Investor and make it available to Investor at a place to be
designated by Investor that is reasonably convenient to both parties;


 


(ii)                                  personally or by
agents or attorneys, immediately take possession of the Collateral or any part
thereof, from Borrower or any other person who has possession of any part
thereof, with or without notice or process of law, and for that purpose may enter
upon Borrower’s premises where any of the Collateral is located and remove
same;


 


(iii)                               foreclose or otherwise
enforce Investor’s security interest in any manner permitted by law or provided
for in this Agreement;


 


(iv)                              without notice except as
may be required by applicable law and that cannot be waived, sell the
Collateral or any part thereof in one or more parcels at public or private
sale, at any place or places for cash, on credit, or for future delivery, and
upon such other terms as Investor may deem commercially reasonable; and


 


(v)                                 without notice,
exercise any right to set-off or offset provided by law.


 


(b)                                 Until
an Event of Default has occurred and is continuing, Borrower shall, subject to
the provisions of the Loan Agreement and the Lockbox Agreement, continue to collect,
at its own cost and expense, all amounts due or to become due Borrower in
respect of the Collateral; it being understood and agreed that any and all such
collections shall be held in trust for, and be for the benefit of,
Investor.  In connection with such
collections; provided, no Event of Default shall have occurred and be
continuing, Borrower may, subject to the provisions of the Loan Agreement, take
such action as Borrower reasonably may deem necessary or advisable to enforce
collection of the Collateral.  At any
time after an Event of Default has occurred and is continuing, Investor shall
have the right to notify the account debtors or obligors under any Collateral
of the security interest of Investor in such Collateral and to direct such
account debtors 


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such
omission.


 


16

















 


or obligors to make payment to
Investor (or its designee) of any amounts due or to become due thereunder and
enforce collection of any of the Collateral by suit or otherwise and surrender,
release or exchange all or any part thereof, or adjust, settle or compromise or
extend or renew for any period (whether or not longer than the original period)
any indebtedness thereunder or evidence thereby.  If an Event of Default has occurred and is
continuing, upon the request of Investor, Borrower shall, at its own cost and
expense, notify any parties obligated on any of the Collateral to make payment
to Investor (or its designee) of any amounts due or to become due thereunder,
and in such event, Investor is authorized to endorse, in the name of Borrower,
any item representing any payment on or other proceeds of any of the
Collateral.  Borrower irrevocably directs
and requires all licensees and account debtors to honor Investor’s request for
direct payment and comply with any such request, notwithstanding any directions
or instructions to the contrary that may be given by Borrower and agrees that
the compliance by such licensee or account debtor with the provisions of this Section shall
not be deemed a violation of such party’s contractual agreements with Borrower.


 


(c)                                  After
delivery to Borrower by Investor of a notice that an Event of Default has
occurred and so long as such Event of Default is continuing: (i) all
amounts and proceeds (including instruments) received by Borrower in respect of
any Collateral shall be received in trust for the benefit of Investor
hereunder, shall be segregated from other funds of Borrower, and shall be
forthwith paid over to Investor in the same form as so received (with any
necessary endorsements) to be held as cash collateral and applied as provided
by this Security Agreement; and (ii) Borrower shall not adjust, settle, or
compromise the amount or payment of any Collateral, or release wholly or partly
any account debtor or obligor thereof, or allow any credit or discount thereon.


 


(d)                                 After
the occurrence and during the continuation of an Event of Default, (i) Investor
may in its own name or in the name of others communicate with account debtors
(including Contract Parties to License Agreements and In License Agreements) in
order to verify with them to Investor’s reasonable satisfaction the existence,
amount and terms of any Collateral and (ii) Investor shall have the right,
at Borrower’s cost and expense, to make test verifications of the Collateral in
any reasonable manner and through any medium that it considers advisable, and
Borrower agrees to furnish all such assistance as Investor may reasonably
require in connection therewith.


 


(e)                                  Anything
contained herein to the contrary notwithstanding, upon the occurrence and
during the continuation of an Event of Default, Investor shall have the right
(but not the obligation) to bring suit, in the name of Borrower, Investor or
otherwise, to enforce any Collateral, in which event Borrower shall, at the
request of Investor, do any and all lawful acts and execute any and all
documents required by Investor in aid of such enforcement and Borrower shall
promptly, upon demand, reimburse and indemnify Investor as provided in the Loan
Agreement and Section 19 hereof, as applicable, in connection with the
exercise of its rights under this Section 17.


 


 


Confidential
materials omitted and filed separately with the Securities and Exchange
Commission.  Asterisks denote such omission.


 


17
















 


Section 18.                                      Application of
Proceeds.  Except as expressly
provided elsewhere in this Agreement, all proceeds received by Investor in
respect of any sale of, collection from, or other realization upon all or any
part of the Collateral shall be applied in good faith to satisfy (to the extent
of the net cash proceeds received by Investor) the payment in full in cash of
amounts constituting Secured Obligations, in each case equally and ratably to
the holders of the Tranche A Loans and Tranche B Loans, in accordance with the
amounts of such Loans then outstanding, respectively.


 


Section 19.                                      Expenses.


 


(a)                                  Borrower
agrees to pay to Investor upon demand the amount of any and all costs and
expenses, including the reasonable fees and expenses of its counsel and of any
experts and agents, that Investor may incur in connection with (i) the
custody, preservation, management, enforcement, use or operation of, or the
sale of, collection from, or other realization upon, any of the Collateral, (ii) the
exercise or enforcement of any of the rights of Investor hereunder, or (iii) the
failure by Borrower to perform or observe any of the provisions hereof.  Any costs and expenses payable hereunder
shall be deemed to be Secured Obligations and entitled to the security interest
hereunder.


 


(b)                                 The
obligations of Borrower in this Section 19 shall survive the termination
of this Agreement and the discharge of Borrower’s other obligations under this
Agreement and the Loan Agreement.


 


Section 20.                                      Continuing
Security Interest; Termination and Release.


 


(a)                                  This
Agreement shall (i) create a continuing security interest in the Collateral,
(ii) remain in full force and effect until the later of the indefeasible
payment and performance in full of the Secured Obligations and the expiration
or termination of the Loan Agreement (other than indemnification obligations
that are unasserted at the time of expiration or termination of Loan Agreement
and other contingent obligations that, by their terms, survive the termination
hereof and thereof), (iii) be binding upon Borrower and its respective
successors and assigns, and (iv) inure, together with the rights and
remedies of Investor hereunder, to the benefit of Investor and its successors,
transferees and assigns.  The Borrower
agrees that its obligations hereunder and the security interest created
hereunder shall continue to be effective or be reinstated, as applicable, if at
any time payment, or any part thereof, of all or any part of the Secured
Obligations is rescinded or must otherwise be restored by the Investor upon the
bankruptcy or reorganization of the Borrower or otherwise.


 


(b)                                 Upon
the payment and performance in full of all Secured Obligations (other than
indemnification obligations that are unasserted as of the expiration or
termination of the Loan Agreement and other contingent obligations not then due
and payable that, by their terms, survive the termination hereof), the security
interest granted hereby shall terminate and all rights to the Collateral shall
revert to Borrower.  Upon such
termination or any release of Collateral or any part thereof in accordance with
the provisions of Section 10.02(b) of the Loan 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


18

















 


Agreement, the Investor shall,
upon the request and at the sole cost and expense of the Borrower, assign,
transfer and deliver to Borrower, against receipt and without recourse to or
warranty by the Investor except as to the fact that the Investor has not
encumbered the released assets, such of the Collateral or any part thereof to
be released (in the case of a release) as may be in possession of the Investor
and as shall not have been sold or otherwise applied pursuant to the terms
hereof, and, with respect to any other Collateral, proper documents and
instruments (including UCC 3 termination financing statements or releases)
acknowledging the termination hereof and the security interest granted hereby
or the release of such Collateral, as the case may be.


 


Section 21.                                      Miscellaneous.


 


(a)                                  Notices.  All notices, consents, waivers and
communications hereunder given by any party to any other party shall be given
pursuant to Section 13.04 of the Loan Agreement.


 


(b)                                 Effectiveness;
Entire Agreement.  The terms and
provisions of this amended and restated Security Agreement shall only become
effective and supersede the terms and provisions of the Original Security
Agreement upon the occurrence of the funding of the Tranche B Loan.  This Agreement, together with the other
Transaction Documents and Schedules and Exhibits hereto and thereto (which are
incorporated herein by reference), constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all prior
agreements, understandings and negotiations, both written and oral, among the
parties with respect to the subject matter of this Agreement.  No representation, inducement, promise, understanding,
condition or warranty not set forth herein (or in Schedules or Exhibits hereto)
has been made or relied upon by any party hereto.  None of this Agreement, nor any provision
hereof, is intended to confer upon any Person other than the parties hereto any
rights or remedies hereunder.


 


(c)                                  Amendments;
No Waivers.


 


(i)                                    This
Agreement or any term or provision hereof may not be amended, changed or
modified except with the written consent of the parties hereto and subject to
any consent required under the Loan Agreement; provided, that Investor
may amend this agreement without the consent of the Borrower in order to add
mechanics related to syndication of the Loan to one or more additional Lenders
so long as such amendments do not in any way alter Borrower’s rights or
obligations hereunder. Investor may take any action that is permitted under the
Loan Agreement or hereunder.  No waiver
of any right hereunder shall be effective unless such waiver is signed in
writing by the party against whom such waiver is sought to be enforced.  To the extent Borrower transfers any of the
Collateral to any of its Subsidiaries, then such Subsidiaries shall execute a
joinder to this Agreement or a new agreement substantially similar to this
Agreement and any other applicable Loan Documents, in each case in form and
substance reasonably satisfactory to the Investor, to confirm the continued
security interest of the Investor in such Collateral.


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


19





















 


(ii)                                 No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. 
The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.


 


(d)                                 Successors
and Assigns.  The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, and any reference herein to a
party shall be deemed a reference to such party’s successors and assigns, if
any.  Borrower shall not be entitled to
assign any of its obligations and rights hereunder or any other Transaction
Documents without the prior written consent of Investor.  Investor may assign this Agreement and any of
its rights hereunder without restriction.


 


(e)                                  Severability.  If any provision of this Agreement is held to
be invalid or unenforceable, the remaining provisions shall nevertheless be
given full force and effect.


 


(f)                                    Interpretation.  When a reference is made in this Agreement to
Sections, subsections, Schedules or Exhibits, such reference shall be to a
Section, subsection, Schedule or Exhibit to this Agreement unless
otherwise indicated.  The terms “Agreement”,
“herein”, “hereto”, “hereof” and words of similar import shall, unless the
context otherwise requires, mean this Agreement, as amended, supplemented or
otherwise modified from time to time. 
The words “include”, “includes” and “including” when used herein shall
be deemed in each case to be followed by the words “without limitation”.  No party hereto shall be or be deemed to be
the drafter of this Agreement for the purposes of construing this Agreement
against any other party.


 


(g)                                 Headings
and Captions.  The headings and
captions in this Agreement are for convenience and reference purposes only and
shall not be considered a part of or affect the construction or interpretation
of any provision of this Agreement.


 


(h)                                 Governing
Law; Jurisdiction.


 


(i)                                    THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
THE PRINCIPLES OF CONFLICTS OF LAW THEREOF THAT WOULD REQUIRE THE APPLICATION
OF LAWS OTHER THAN THOSE OF THE STATE OF NEW YORK.


 


(ii)                                 ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK.  BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS TO AND ACCEPTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY THE NON-EXCLUSIVE
JURISDICTION OF SUCH COURTS.  


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


20

















 


EACH PARTY HERETO HEREBY FURTHER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
OTHER TRANSACTION DOCUMENT.


 


(iii)                              EACH
PARTY HERETO HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY
OF THE COURTS REFERRED TO IN SUBSECTION (ii) ABOVE OF THIS SECTION 21(h) IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS SET FORTH IN THIS AGREEMENT.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES
ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER
THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE.  NOTHING HEREIN SHALL AFFECT THE RIGHT OF A
PARTY TO SERVE PROCESS ON THE OTHER PARTY IN ANY OTHER MANNER PERMITTED BY LAW.


 


(i)                                    Waiver
of Jury Trial; Exclusion of Punitive Damages.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.  IN ADDITION, WITHOUT LIMITING BORROWER’S
OBLIGATION TO INDEMNIFY INVESTOR FOR ANY THIRD PARTY CLAIM FOR PUNITIVE
DAMAGES, IN ANY LITIGATION OR ARBITRATION BETWEEN THE PARTIES HEREUNDER NEITHER
PARTY SHALL BE ENTITLED TO SEEK PUNITIVE DAMAGES FROM THE OTHER PARTY.


 


(j)                                    Counterparts;
Effectiveness.  This Agreement may be
executed in two or more counterparts, each of which shall be an original, but
all of which together shall constitute one and the same instrument.  This Agreement shall become effective when
each party hereto shall have received a counterpart hereof signed by the other
parties hereto.


 


[REMAINDER OF PAGE INTENTIONALLY BLANK;
SIGNATURE PAGE FOLLOWS]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


21

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the date first above
written.


 


 


	
  BORROWER:

  	
  DYAX CORP.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  INVESTOR:

  	
  COWEN
  HEALTHCARE ROYALTY PARTNERS, L.P.,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  Cowen
  Healthcare Royalty GP, LLC,

  
	
   

  	
   

  	
  its General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


SCHEDULE 1

TO

SECURITY AGREEMENT


 


Definitions


 


Unless
otherwise defined herein or the context otherwise requires, terms for which
meanings are provided in the UCC are used in this Security Agreement, including
its preamble and recitals, with such meanings; provided, however,
that the term “instrument” shall be such term as defined in Article 9 of
the UCC rather than Article 3 of the UCC.


 


 “Collateral” has the meaning set forth
in Section 2 of this Agreement.


 


“Company
Physical Libraries” shall mean the biological material, individually or
collectively, comprising each of the LFRP Libraries in the possession of the
Borrower.


 


“Copyright
Security Agreement” means an agreement substantially in the form set forth
in Exhibit B and suitable for filing with the United States Copyright
Office, including the executed Copyright Security Agreement, executed in
counterparts, dated August 5, 2008.


 


“Duplicate
Libraries” has the meaning specified in Section 2(l).


 


“Marks”
has the meaning specified in Section 14(f).


 


“Notice
Event” has the meaning specified in Section 14(f).


 


“Original
Security Agreement” has the meaning specified in the recitals hereto.


 


“Patent
Security Agreement” means an agreement substantially in the form set forth
in Exhibit C and suitable for filing with the United States Patent and
Trademark Office, including the executed Patent Security Agreement, executed in
counterparts, dated August 5, 2008.


 


“Perfection
Certificate” means a document in the form set forth on Exhibit D
hereto.


 


“Permitted
Liens” means tax liens or assessments and other governmental levies that
are not yet due and payable or similar non-consensual liens for amounts not yet
due and payable, which also qualify as “Permitted Liens” as defined in the Loan
Agreement.


 


“Pledged
Deposit Accounts” has the meaning specified in Section 2(j).


 


“Proceeds”
or “proceeds” includes whatever is receivable or received when Collateral
is sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary.


 


“Secured
Obligations” means any and all Obligations of Borrower under the
Transaction Documents including all amounts owing under the Loan Agreement,
including the 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


payment to Investor of the amounts of the Included
Receipts with respect to any Royalties or other payments received by the Borrower,
damages, interest (including interest that, but for the filing of a petition in
bankruptcy with respect to Borrower, would accrue on such obligations, whether
or not a claim is allowed against Borrower for such interest in the related
bankruptcy proceeding), reimbursement of fees, costs, expenses, indemnities or
otherwise, whether voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not jointly owed with
others, and whether or not from time to time decreased or extinguished and
later increased, created or incurred, and all or any portion of such
liabilities and other obligations that are paid, to the extent all or any part
of such payment is avoided or recovered directly or indirectly from Investor as
a preference, fraudulent transfer or otherwise, and all obligations of every
nature of Borrower now or hereafter existing under this Agreement.


 


“Shared
Intellectual Property” means, collectively, those items identified in Sections
2(b), 2(e), 2(f) and 2(h) hereof.


 


“Transfer”
means any sale, conveyance, assignment, disposition or license either to a
third party or to an Affiliate.


 


“UCC”
means the Uniform Commercial Code as in effect from time to time in the State
of New York or Delaware, as applicable.


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


2

















 


EXHIBIT E


 


Form of Notice of Borrowing


 


Dyax Corp.

300 Technology Square

Cambridge, MA 02139


 


March 18, 2009


 


Cowen Healthcare Royalty Partners, L.P.

177 Broad Street, Suite 1101

Stamford, CT  06901

Attention:  Gregory B. Brown, M.D.


 


Ladies and Gentlemen:


 


The
undersigned (the “Borrower”) refers to the Loan Agreement, dated as of August 5,
2008, as amended and restated as of March 18, 2009, (as may be further
amended from time to time, the “Loan Agreement”), between the Borrower
and Cowen Healthcare Royalty Partners, L.P. (the “Lender”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Loan Agreement.


 


The
Borrower hereby gives you irrevocable notice, pursuant to Section 2.02 of
the Loan Agreement, that it hereby requests to borrow an amount of Tranche B
Loans equal to $15,000,000 (the “Borrowing”), which amount shall be
delivered to Borrower on
the Tranche B Funding Date in accordance with the terms of the Loan
Agreement.


 


The
bank and account to which the proceeds payable to the Borrower pursuant to Section 2.03
of the Loan Agreement should be sent are:


 


	
  Beneficiary Bank
  ABA #

  	
   

  	
  121 140 399

  
	
  Beneficiary Bank
  Name

  	
   

  	
  Silicon Valley
  Bank San Jose

  
	
   

  	
   

  	
  3005 Tasman
  Drive

  
	
   

  	
   

  	
  Santa Clara, CA
  95054

  
	
  Contact Name

  	
   

  	
  Susana Santos

  
	
   

  	
   

  	
  Relationship
  Advisor

  
	
   

  	
   

  	
  617-630-4117

  
	
  Beneficiary Name

  	
   

  	
  Dyax Corporation

  
	
  Beneficiary
  Account #

  	
   

  	
  3300211750

  



 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  DYAX CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


EXHIBIT
F

Lockbox Instructions


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Lockbox Account Payment Procedures


 


During each calendar quarter, all Gross Payments deposited into
the Lockbox Account shall be treated in the following priority with sweeps to
occur not less frequently than monthly:


 


I.                                         Any
amounts shall be swept into the Company Concentration Account until Company
shall have received an amount equal to any CAT Payments due to MedImmune
Limited as a result of, or in connection with, such Gross Payments.


 


II.                                     Any
remaining amounts shall be swept into the Company Concentration Account for the payment of any Reimbursement
Payments in the amounts received from Contract Parties;


 


III.                                 Any
remaining amounts shall be swept as follows:


 


A.                                   The
remaining amounts shall be swept into the Assignee Concentration Account until
Assignee shall have received an amount equal to Applicable Included Receipts(2); and


 


B.                                     The
remainder of the remaining amounts shall be swept into the Company
Concentration Account.


 


For the avoidance of doubt, on the first day of any
calendar quarter, that process above shall be reset and repeated.


 






(2)  As provided in
the Loan Agreement, “Applicable Included Receipts” shall exclude FTE Payments
so long as the principal amount of the Loan prepaid pursuant to Section 3.01(a) of
the Loan Agreement exceeds any principal amount added to the Loans pursuant to Section 4.01(a)(ii) of
the Loan Agreement (as calculated on an annual basis for each calendar year)
which shall be determined at the end of any applicable calendar year and shall
be applied to amortization in accordance with Section 3.01(a), provided
that Borrower may, at its option, include such costs in Applicable Included
Receipts on a quarterly basis to pay scheduled amortization in accordance with Section 3.01(a).


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 
















 


EXHIBIT G


 


Form of
Certificate of the Borrower


 


The
undersigned authorized officer of DYAX CORP., a corporation  organized
and existing under the laws of the State of Delaware  (the
“Borrower”), does hereby
certify on behalf of the Borrower that:


 


1.                                       This
certificate is furnished pursuant to Section 7.02(b)(i) of the Loan
Agreement, dated as of August 5, 2008, amended and restated as of March 18,
2009, by and between the Borrower and Cowen Healthcare Royalty Partners, L.P.
(such Loan Agreement as in effect on the date of this Certificate, the “Loan Agreement”).  Capitalized terms used but not defined in
this certificate shall have the meanings given in the Loan Agreement.


 


2.                                       No
event has occurred and is continuing that constitutes a Default or an Event of
Default and no such event will occur or will have occurred by reason of the
Tranche B Loans.


 


3.                                       The
representations and warranties made by the Borrower in Article VIII of the
Loan Agreement and in the other Transaction Documents are true and correct and
will be true after giving effect to the Tranche B Loans.


 


4.                                       All
of the conditions set forth in Section 7.02(a), (c), and (e) through (k) of
the Loan Agreement have been satisfied. 
All documents specified in Section 7.02(b) and all documents
and information requested by the Lender pursuant to Section 7.02(d) have
been delivered to Lender.


 


IN
WITNESS WHEREOF, I have hereunto set my hand this 18th day of March, 2009.


 


	
   

  	
  DYAX CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


EXHIBIT H


Form of Edwards, Angell Palmer &
Dodge LLP Opinion


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


EXHIBIT
I

Form of Wolf Greenfield Opinion


 


[*****]


 


 


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and Exchange Commission.  Asterisks
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EXHIBIT
J

Form of Lowrie, Lando & Anastasi, LLP Opinion


 


[*****]


 


 


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and Exchange Commission.  Asterisks
denote such omission.


 

















 


EXHIBIT K


FORM OF TRANCHE B WARRANT AGREEMENT


 


 




 


 


WARRANT AGREEMENT




 


Dated as of



March 18, 2009



between



DYAX CORP.



and



COWEN HEALTHCARE ROYALTY PARTNERS, L.P.




 





 


 


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TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DEFINED
  TERMS

  	
   

  	
   

  
	
  SECTION 1.1.

  	
  DEFINITIONS

  	
  1

  
	
  SECTION 1.2.

  	
  OTHER DEFINITIONS

  	
  3

  
	
  SECTION 1.3.

  	
  TERMS GENERALLY

  	
  3

  
	
  ARTICLE 2

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WARRANT CERTIFICATES

  	
   

  
	
  SECTION 2.1.

  	
  ISSUANCE AND DATING

  	
  4

  
	
  SECTION 2.2.

  	
  EXECUTION AND COUNTERSIGNATURE

  	
  4

  
	
  SECTION 2.3.

  	
  CERTIFICATE REGISTER

  	
  4

  
	
  SECTION 2.4.

  	
  TRANSFER AND EXCHANGE

  	
  4

  
	
  SECTION 2.5.

  	
  LEGENDS

  	
  6

  
	
  SECTION 2.6.

  	
  REPLACEMENT CERTIFICATES

  	
  7

  
	
  SECTION 2.7.

  	
  CANCELLATION

  	
  7

  
	
  ARTICLE 3

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  INITIAL ISSUANCE AND EXERCISE TERMS

  	
   

  
	
  SECTION 3.1.

  	
  INITIAL ISSUANCE OF WARRANTS

  	
  7

  
	
  SECTION 3.2.

  	
  EXERCISE PRICE

  	
  7

  
	
  SECTION 3.3.

  	
  EXERCISE PERIOD

  	
  8

  
	
  SECTION 3.4.

  	
  EXPIRATION

  	
  8

  
	
  SECTION 3.5.

  	
  MANNER OF EXERCISE

  	
  8

  
	
  SECTION 3.6.

  	
  ISSUANCE OF WARRANT SHARES

  	
  9

  
	
  SECTION 3.7.

  	
  FRACTIONAL WARRANT SHARES

  	
  9

  
	
  SECTION 3.8.

  	
  RESERVATION OF WARRANT SHARES

  	
  9

  
	
  SECTION 3.9.

  	
  LISTING ON SECURITIES EXCHANGE

  	
  10

  
	
  ARTICLE 4

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ANTIDILUTION PROVISIONS

  	
   

  
	
  SECTION 4.1.

  	
  CHANGES IN COMMON STOCK

  	
  10

  
	
  SECTION 4.2.

  	
  DIVIDENDS AND OTHER
  DISTRIBUTIONS

  	
  10

  
	
  SECTION 4.3.

  	
  COMBINATION

  	
  11

  
	
  SECTION 4.4.

  	
  CURRENT MARKET VALUE

  	
  11

  
	
  SECTION 4.5.

  	
  CERTAIN ACTIONS

  	
  12

  
	
  SECTION 4.6.

  	
  NOTICE OF ADJUSTMENT

  	
  13

  
	
  SECTION 4.7.

  	
  COMMON STOCK

  	
  13

  
	
  SECTION 4.8.

  	
  NOTICE OF CERTAIN TRANSACTIONS

  	
  13

  



 


 


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  SECTION 4.9.

  	
  ADJUSTMENT TO WARRANT
  CERTIFICATE

  	
  14

  
	
  SECTION 4.10.

  	
  ADJUSTMENTS OR ISSUANCES
  DEFERRED/ADJUSTMENTS NOT REQUIRED

  	
  14

  
	
  ARTICLE 5

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  REPRESENTATIONS AND AGREEMENT OF THE COMPANY

  	
   

  
	
  ARTICLE 6

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  	
   

  
	
  SECTION 6.1.

  	
  PERSONS BENEFITING

  	
  16

  
	
  SECTION 6.2.

  	
  RIGHTS OF HOLDERS

  	
  16

  
	
  SECTION 6.3.

  	
  AMENDMENT

  	
  16

  
	
  SECTION 6.4.

  	
  NOTICES

  	
  17

  
	
  SECTION 6.5.

  	
  GOVERNING LAW

  	
  18

  
	
  SECTION 6.6.

  	
  JURISDICTION; WAIVER OF TRIAL BY
  JURY

  	
  18

  
	
  SECTION 6.7.

  	
  SUCCESSORS

  	
  19

  
	
  SECTION 6.8.

  	
  COUNTERPARTS

  	
  19

  
	
  SECTION 6.9.

  	
  TABLE OF CONTENTS

  	
  19

  
	
  SECTION 6.10.

  	
  SEVERABILITY

  	
  19

  
	
  SECTION 6.11.

  	
  REMEDIES

  	
  19

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
  -

  	
  Form of Warrant Certificate

  	
   

  
	
  EXHIBIT B

  	
  -

  	
  Form of Transfer Certificate

  	
   

  
	
  EXHIBIT C

  	
  -

  	
  Form of Certification

  	
   

  
					



 


 


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WARRANT
AGREEMENT, dated as of March 18, 2009 (this “Agreement”), between
DYAX CORP., a Delaware corporation (the “Company”), and COWEN HEALTHCARE
ROYALTY PARTNERS, L.P., a Delaware limited partnership (the “Initial Holder”).


 


RECITALS


 


WHEREAS,
the obligation of the Initial Holder to fund the Tranche B Loan (as defined
below) under the Loan Agreement, dated as of August 5, 2008, amended and
restated as of March 18, 2009, by and between the Company and the Initial
Holder (as may be further amended from time to time, the “Loan Agreement”),
is contingent on the Company’s execution and delivery of this Warrant Agreement
and the issuance to the Initial Holder of the Warrants (as defined below); and


 


WHEREAS,
the Company and the Initial Holder desire to enter into this Agreement in order
to set forth the terms and conditions of the Warrants.


 


NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein, the parties hereto hereby agree as follows:


 


Section 22.


 


DEFINED TERMS


 


(a)                                                                                                          Definitions.


 


All
terms defined in the Loan Agreement shall have such defined meanings when used
herein or in any Exhibit hereto unless otherwise defined herein or
therein.  As used in this Agreement, the
following terms shall have the following meanings:


 


“Board”
means the Board of Directors of the Company or any committee thereof duly
authorized to act on behalf of such Board of Directors.


 


“Cashless
Exercise Ratio” means a fraction, (a) the numerator of which is the excess
of (i) the Current Market Value per share of Common Stock on the date of
exercise over (ii) the Exercise Price per share on the date of exercise
and (b) the denominator of which is the Current Market Value per share of
the Common Stock on the date of exercise.


 


“Common
Stock” means the common stock, $.01 par value per share, of the Company.


 


“Expiration
Date” means August 5, 2016.


 


“Fair
Market Value” means, as of any date of determination, the price that a willing
buyer would pay to a willing seller for the Common Stock, in an arm’s-length 


 


 


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transaction, with neither party being under any
immediate obligation or need to consummate the transaction, it being understood
that the buyer and seller, in arriving at such price, would each consider,
among other factors
customarily considered by valuation professionals, the past and prospective
earnings of the Company, comparable stock market valuations, and the absence or
existence of liquidity for the Common Stock.


 


“Holder”
means the duly registered holder of a Warrant under the terms of this
Agreement.


 


“Issuance
Date” means, as to any Warrant, the date on which such Warrant is issued in
accordance with Section 3.1 hereof.


 


“Loan
Agreement” has the meaning specified in the recitals hereto.


 


“Officer”
means the Chief Executive Officer, the Chief Financial Officer, any Executive
Vice President or the Treasurer of the Company.


 


“Rule 144”
means Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any successor rule or regulation
hereinafter adopted by the SEC.


 


“SEC”
means the Securities and Exchange Commission (or any successor thereto).


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Trading
Day” means any day on which trading in equity securities is generally
conducted on the principal Trading Market on which the Common Stock is then
listed or included.


 


“Trading
Market” means the American Stock Exchange, the Nasdaq Global Market, the
Nasdaq Global Select Market, The New York Stock Exchange, Inc. and the OTC
Bulletin Board.


 


“Tranche
B Funding Date” has the meaning specified in the Loan Agreement.


 


“Tranche
B Loan” has the meaning specified in the Loan Agreement.


 


“Transfer
Restricted Securities” means the Warrants and the Warrant Shares which may
be issued to Holders upon exercise of the Warrants, whether or not such
exercise has been effected.  Each such
security shall cease to be a Transfer Restricted Security when the legend set
forth in Section 2.5 hereof is, or may be, removed pursuant to Section 2.4(b)(iv) hereof.


 


 


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2

















 


“Warrant”
means a warrant to purchase one share of Common Stock.  The Warrants to be issued on each Issuance
Date shall be evidenced by Warrant Certificates.


 


“Warrant
Certificates” means the certificates evidencing the Warrants to be delivered
pursuant to this Agreement, substantially in the form of Exhibit A
hereto.


 


“Warrant
Shares” means the shares of Common Stock to be issued and received, or
issued and received, as the case may be, upon exercise of the Warrants.


 


(b)                                                                                                         Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “Agreement”

  	
   

  	
  Preamble

  
	
  “Cashless Exercise”

  	
   

  	
  3.5

  
	
  “Certificate Register”

  	
   

  	
  2.3

  
	
  “closing price”

  	
   

  	
  4.4

  
	
  “Combination”

  	
   

  	
  4.3

  
	
  “Company”

  	
   

  	
  Preamble

  
	
  “Current Market Value”

  	
   

  	
  4.4

  
	
  “Exercise Commencement Date”

  	
   

  	
  3.3(a)

  
	
  “Exercise Date”

  	
   

  	
  3.5

  
	
  “Exercise Price”

  	
   

  	
  3.2

  
	
  “Exercise Rate”

  	
   

  	
  4.1

  
	
  “Initial Holder”

  	
   

  	
  Preamble

  
	
  “Loan Agreement”

  	
   

  	
  Recitals

  
	
  “Time of Determination”

  	
   

  	
  4.4

  
	
  “Transfer Agent”

  	
   

  	
  3.6

  



 


(c)                                                                                                          Terms
Generally.  The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined.  Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.  The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation.”  The word “will” shall be
construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (a) any
definition of or reference to the Loan Agreement or any other agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended, supplemented
or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference herein
to any Person shall be construed to include such Person’s successors and
assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of
similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (d) all references herein to
Articles, Sections and Exhibits shall be construed to refer to Articles and
Sections of, and Exhibits to, this Agreement, (e) any reference to any law
or regulation herein shall refer to such law or regulation 


 


 


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3

















 


as amended, modified or supplemented from time to time
and (f) the words “asset” and “property” shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.


 


Section 23.


 


Warrant
Certificates


 


(a)                                                                                                          Issuance
and Dating.  The Warrant Certificates
will be issued on the Tranche B Funding Date in registered form as definitive
Warrant Certificates, substantially in the form of Exhibit A hereto
(subject to Section 4.9 hereof), which is hereby incorporated in and
expressly made a part of this Agreement. 
Except for Warrant Certificates delivered pursuant to Section 2.4(b)(iv) hereof,
the Warrant Certificates shall bear the legend required by Section 2.5
hereof.  Each Warrant shall be dated the
date of its execution by the Company. 
The terms of the Warrants set forth in Exhibit A are part of
the terms of this Agreement.


 


(b)                                                                                                         Execution
and Countersignature.  The Warrants
to be issued pursuant to this Agreement shall be executed on behalf of the Company
by manual signature by one Officer.  The
Warrant Certificates shall be delivered in accordance with Section 2.1
hereof.


 


(c)                                                                                                          Certificate
Register.  The Company shall keep a
register (the “Certificate Register”) of the Warrant Certificates and of
their transfer and exchange.  The Certificate
Register shall show the names and addresses of the respective Holders and the
date and number of Warrants evidenced on the face of each of the Warrant Certificates.  The Company may deem and treat the Person in
whose name a Warrant Certificate is registered as the absolute owner of such
Warrant Certificate for all purposes whatsoever and the Company shall not be affected
by notice to the contrary.


 


(d)                                                                                                         Transfer
and Exchange.


 


(i)                                     When
Warrants are presented to the Company with a request to register the transfer of
such Warrants or to exchange such Warrants for an equal number of Warrants of
other authorized denominations, the Company shall register the transfer or make
the exchange; provided, however, that the Warrant Certificates
representing such Warrants surrendered for transfer or exchange:


 


(1)                                  shall be duly
endorsed or accompanied by a written instrument of transfer in form reasonably
satisfactory to the Company, duly executed by the Holder thereof; and


 


(2)                                  in the case of
Warrants that are Transfer Restricted Securities, shall be accompanied by the
following additional information and documents:


 


 


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4




















 


(i)                                                             a
certificate from such Holder in substantially the form of Exhibit B hereto
certifying that:


 


such securities are being delivered for
registration in the name of such Holder without transfer;


 


such securities are being transferred to the
Company;


 


such securities are being transferred
pursuant to an effective registration statement under the Securities Act; or


 


such
securities are being transferred (w) to a “qualified institutional buyer”,
as defined in Rule 144A under the Securities Act pursuant to such Rule 144A,
(x) in an offshore transaction in accordance
with Rule 904 under the Securities Act, (y) in a transaction meeting
the requirements of Rule 144 under the Securities Act or (z) pursuant
to another available exemption from the registration requirements of the
Securities Act; and


 


(ii)                                                          provided,
however, that in the case of any transfer described under clause (a)(ii)(A)(4) of
this Section 2.4, the certificate will be accompanied by an opinion of
counsel reasonably acceptable to the Company that the transfer is exempt from
the registration requirements of the Securities Act.


 


(ii)                                  (1)                                  To
permit registrations of transfers and exchanges, the Company shall execute
Warrant Certificates as required pursuant to the provisions of this Section 2.4.


 


(2)                                  All Warrant
Certificates issued upon any registration of transfer or exchange of Warrants
shall be the valid obligations of the Company, entitled to the same benefits
under this Agreement as the Warrant Certificates surrendered upon such registration
of transfer or exchange.


 


(3)                                  No service charge
shall be made by the Company to any Holder for any registration of transfer or
exchange upon surrender of any Warrant Certificate at the principal office of
the Company.  The Company will pay all
documentary stamp taxes attributable to the issuance of the Warrants and the
Warrant Shares upon the exercise of Warrants; provided, however,
that the Company shall not be required to pay any tax or taxes which may be
payable in respect of any transfer involved in the issuance of any Warrant
Certificates or any certificates for Warrant Shares in a name other than the
Holder of such Warrant Certificate.


 


(4)                                  Upon any sale or
transfer of Warrants pursuant to an effective registration statement under the
Securities Act, in accordance with Rule 144 under the Securities Act or
pursuant to an opinion of counsel reasonably satisfactory to the Company that
no legend is required, the Company shall permit the Holder thereof to exchange
such 


 


 


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and Exchange Commission.  Asterisks
denote such omission.


 


5

















 


Warrants for Warrants represented by Warrant Certificates that do not
bear the legend set forth in Section 2.5(a) hereof and rescind any
restriction on the transfer of such Warrants; provided, however,
that the Warrant Certificate shall continue to bear a legend with respect to
restrictions on the transfer of the Warrant Shares.


 


(e)                                                                                                          Legends.


 


(i)                                     Except
for Warrant Certificates delivered pursuant to Section 2.4(b)(iv) hereof,
each Warrant Certificate evidencing the Warrants (and all Warrant Certificates
issued in exchange therefor or substitution thereof) shall bear a legend in substantially
the following form:


 


“THE WARRANTS AND THE WARRANT SHARES (THE “SECURITIES”) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR ANY STATE SECURITIES LAWS.  NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION AND SUBJECT TO COMPLIANCE WITH OTHER APPLICABLE
LAWS.  THE HOLDER HEREOF, BY ITS
ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
UNLESS PREVIOUSLY REGISTERED UNDER THE SECURITIES ACT, ONLY (A) TO THE
COMPANY; (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE); (C) TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A; (D) PURSUANT TO AN
OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT; OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.”


 


(ii)                                  Each
certificate representing the Warrant Shares (unless such Warrant Shares are not
Transfer Restricted Securities) shall bear a legend in substantially the following
form:


 


 


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and Exchange Commission.  Asterisks
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THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL SUCH SECURITIES ARE REGISTERED UNDER SUCH ACT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT
THAT SUCH REGISTRATION IS NOT REQUIRED.


 


(f)                                                                                                            Replacement
Certificates.  If a mutilated Warrant
Certificate is surrendered to the Company or if the Holder of a Warrant
Certificate claims that the Warrant Certificate has been lost, destroyed or
wrongfully taken, the Company shall issue a replacement Warrant
Certificate.  If required by the Company,
such Holder shall furnish an indemnity bond (or, in the case of the Initial
Holder, an unsecured indemnity) sufficient in the reasonable judgment of the
Company to protect the Company from any loss which it may suffer if a Warrant
Certificate is replaced.  The Company may
charge the Holder for its reasonable expenses in replacing a Warrant
Certificate.  Every replacement Warrant
Certificate is an additional obligation of the Company.


 


(g)                                                                                                         Cancellation.


 


(i)                                     In
the event the Company shall purchase or otherwise acquire Warrants, the Warrant
Certificates representing such Warrants shall thereupon be cancelled.


 


(ii)                                  The
Company shall cancel and destroy all Warrant Certificates surrendered for
transfer, exchange, replacement, exercise or cancellation.  The Company may not issue new Warrant
Certificates to replace Warrant Certificates to the extent they evidence
Warrants which have been exercised or Warrants which the Company has purchased
or otherwise acquired.


 


Section 24.


 


INITIAL
ISSUANCE AND EXERCISE TERMS


 


(a)                                                                                                          Initial
Issuance of Warrants.  On the Tranche
B Closing Date subject to receipt by the Company of a Certificate from the
Initial Holder, substantially in the form of Exhibit C hereto, the
Company shall execute and deliver to the Initial Holder a Warrant Certificate
representing 250,000 Warrants registered in the name of the Initial
Holder.  Such Warrant Certificate shall
be issued by its terms contemporaneous with, and as a condition to, the funding
by the Initial Holder of the Tranche B Loan on the Tranche B Funding Date.


 


(b)                                                                                                         Exercise
Price.  Each Warrant shall entitle
the Holder thereof to purchase one share of Common Stock (as the same may be
adjusted pursuant to Article 4) for 


 


 


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and Exchange Commission.  Asterisks
denote such omission.


 


7

















 


a per share exercise price of $[                                                         ](3) (as
the same may be adjusted pursuant to Article 4, the “Exercise Price”).


 


(c)                                                                                                          Exercise
Period.


 


(i)                                     Subject
to the terms and conditions set forth herein, each Warrant shall be exercisable
at any time or from time to time on or after the earlier to occur of (i) the
one year anniversary of the Tranche B Funding Date and (ii) the date on
which the Company delivers or is required to deliver to the Holders written
notice of a Combination pursuant to clause (d) of Section 4.8 hereof
(such date, the “Exercise Commencement Date”).


 


(ii)                                  No
Warrant shall be exercisable after 6:00 p.m., New York time, on the
Expiration Date.


 


(d)                                                                                                         Expiration.  A Warrant shall terminate and become void as
of the earlier of (a) 6:00 p.m., New York time, on the Expiration
Date and (b) the time and date such Warrant is exercised.  The Warrants shall terminate and become void
after the Expiration Date.


 


(e)                                                                                                          Manner
of Exercise.  Subject to Section 3.3
hereof, Warrants may be exercised upon (a) surrender to the Company of the
Warrant Certificate(s) representing such Warrants, together with the form
of election to purchase Warrant Shares on the reverse thereof duly completed
and executed by the Holder thereof and (b) payment to the Company of the
Exercise Price for the number of Warrant Shares in respect of which such
Warrant is then exercised (each date on which such exercise occurs, an “Exercise
Date”).  Such payment of the Exercise
Price shall be made (i) in cash or by certified or official bank check
payable to the order of the Company or by wire transfer of funds to an account
designated by the Company for such purpose or (ii) by the surrender (which
surrender shall be evidenced by cancellation of the number of Warrants
represented by any Warrant Certificate presented in connection with a Cashless
Exercise) of a Warrant or Warrants (represented by one or more relevant Warrant
Certificates), and without the payment of the Exercise Price in cash, in
exchange for the issuance of such number of shares of Common Stock equal to the
product of (1) the number of shares of Common Stock for which such Warrant
would otherwise be nominally exercisable immediately prior to such exercise if
payment of the Exercise Price were being made in cash pursuant to clause (i) of
this Section 3.5 and (2) the Cashless Exercise Ratio.  An exercise of a Warrant in accordance with
the immediately preceding sentence is herein called a “Cashless Exercise”.  For U.S. tax purposes, the Company and the
Initial Holder agree to treat an exercise of Warrants pursuant to a Cashless
Exercise as a “recapitalization” within the meaning of Section 368(a)(1)(E) of
the Internal Revenue Code of 1986, as amended. 
All provisions of this 


 






(3)                                  Shall
be a number equal to 125% of the average closing sale price of a share of
Common Stock for the 45 consecutive calendar days immediately preceding the
earlier of (i) the date of this Agreement and (ii) the date of public
announcement of the financing.


 


 


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Agreement shall be applicable with respect to an
exercise of Warrants pursuant to a Cashless Exercise for less than the full
number of Warrants represented thereby. 
The rights represented by the Warrants shall be exercisable at the
election of the Holders thereof either in full at any time or in part from time
to time during the period commencing on the Exercise Commencement Date and
ending at 6:00 p.m., New York time, on the Expiration Date and in the
event that a Warrant Certificate is surrendered for exercise in respect of less
than all the Warrants represented by such Warrant Certificate at any time prior
to the Expiration Date a new Warrant Certificate exercisable for the remaining
Warrants will be duly executed and promptly issued by the Company in accordance
with this Agreement.


 


(f)                                                                                                            Issuance
of Warrant Shares.  Upon the
surrender of Warrant Certificates and payment of the per share Exercise Price
(either in cash or by Cashless Exercise), as set forth in Section 3.5
hereof, the Company shall within three Business Days issue and cause the
transfer agent for the Common Stock (“Transfer Agent”) to countersign
and deliver to or upon the written order of the Holder and in such name or
names as the Holder may designate, a certificate or certificates for the number
of full Warrant Shares so purchased upon the exercise of such Warrants or other
securities or property to which it is entitled, registered or otherwise to the
Person or Persons entitled to receive the same, together with cash as provided
in Section 3.7 hereof in respect of any fractional Warrant Shares
otherwise issuable upon such exercise. 
Such certificate or certificates shall be deemed to have been issued and
any Person so designated to be named therein shall be deemed to have become a
holder of record of such Warrant Shares as of the date of the surrender of such
Warrant Certificates and payment of the per share Exercise Price (either in
cash or by Cashless Exercise).


 


(g)                                                                                                         Fractional
Warrant Shares.  No fractional
Warrant Shares shall be issued on exercise of Warrants.  If more than one Warrant shall be exercised
at the same time by the same Holder, the number of full Warrant Shares which
shall be issuable upon such exercise shall be computed on the basis of the
aggregate number of Warrant Shares purchasable on exercise of the Warrants so
exercised.  If any fraction of a Warrant
Share would, except for the provisions of this Section 3.7, be issuable on
the exercise of any Warrant (or specified portion thereof), the Company shall
notify the Holder exercising the Warrant in writing of the amount to be paid in
lieu of the fraction of a Warrant Share and concurrently shall pay to such
Holder an amount in cash equal to the Current Market Value for one Warrant
Share on the date the Warrant is exercised, multiplied by such fraction,
rounded up to the nearest whole cent.


 


(h)                                                                                                         Reservation
of Warrant Shares.  The Company shall
at all times keep reserved out of its authorized shares of Common Stock a
number of shares of Common Stock sufficient to provide for the exercise of all
outstanding Warrants at all times until the Expiration Date, or the time at
which all Warrants have been exercised or cancelled.  All Warrant Shares that may be issued upon
exercise of Warrants shall, upon issue, be fully paid, nonassessable, free of
preemptive rights and free from all taxes, liens, charges and security interests
with respect to the issue thereof.  The
Company will provide or otherwise make available to the Transfer Agent any cash
which may be payable as provided in Section 3.6 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


9

















 


hereof.  The
Company will furnish to the Transfer Agent a copy of all notices of adjustments
and certificates related thereto transmitted to each Holder.


 


(i)                                                                                                             Listing
on Securities Exchange.  The Company
will use commercially reasonable efforts to procure, at its sole cost and expense,
the listing of all Warrant Shares (subject to issuance or notice of issuance)
on all stock exchanges on which the Common Stock then listed and to maintain
such listing of all Warrant Shares after issuance.


 


Section 25.


 


ANTIDILUTION
PROVISIONS


 


(a)                                                                                                          Changes
in Common Stock.  In the event that,
at any time or from time to time after the date of this Agreement, the Company
shall (a) pay a dividend or make a distribution on its Common Stock
exclusively in shares of its Common Stock, (b) subdivide its outstanding
shares of Common Stock into a greater number of shares of Common Stock or (c) combine
its outstanding shares of Common Stock into a smaller number of shares of Common
Stock, then, in each case the number of shares of Common Stock purchasable upon
exercise of each Warrant (the “Exercise Rate”) and the Exercise Price in
effect immediately prior to such action will be proportionately adjusted upon
the happening of such event so that, after giving effect to such adjustment,
the Holder of each Warrant shall be entitled to receive, upon payment of the
same aggregate Exercise Price, the number of shares of Common Stock upon
exercise that such Holder would have owned or have been entitled to receive had
such Warrant been exercised immediately prior to the happening of any of the
events described in clauses (a), (b) or (c) of this Section 4.1
(or, in the case of a dividend or distribution of Common Stock, immediately
prior to the record date therefor).  An
adjustment made pursuant to this Section 4.1 shall become effective at the
opening of business on the day immediately following the record date fixed for
determining the stockholders entitled to receive such dividend or distribution,
in the case of a dividend or distribution in shares of Common Stock, and shall
become effective at the opening of business on the day immediately following
the effective date of such subdivision or combination.


 


(b)                                                                                                         Dividends
and Other Distributions.  In the
event that, at any time or from time to time after the date of this Agreement,
the Company shall make or issue, or fix a record date for the determination of
stockholders entitled to receive, a dividend or other distribution payable in
securities (other than shares of Common Stock) or in cash or other property
(other than regular cash dividends paid out of earnings or earned surplus,
determined in accordance with generally accepted accounting principles), then
and in each such event, lawful and adequate provision shall be made so that,
after giving effect to the making of such provision, the Holder of each
Warrant, upon exercise of such Warrant, shall be entitled to receive, and such
Warrant shall represent the right to receive, in addition to the number of
Warrant Shares issuable thereunder, the kind and amount of securities, cash or
other property to which such Holder would have been entitled if such Holder had
exercised such Warrant immediately prior to the happening of such event (or, in
the case of a dividend or other distribution in respect of which a record date 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


10

















 


is fixed, immediately prior to the record date therefor)
and such Holder had, during the period from and including the effective date of
such provision to and including the Exercise Date, retained any such securities
receivable during such period, giving application to all adjustments provided
for in this Article 4 during such period. 
A provision made pursuant to this Section 4.2 shall become
effective at the opening of business on the day immediately following the happening
of such event or, in the case of a dividend or other distribution in respect of
which a record date is fixed, at the opening of business on the day immediately
following such record date therefor.  The
foregoing provisions of this Section 4.2 shall similarly apply to
successive dividends or other distributions.


 


(c)                                                                                                          Combination.  In case, at any time, the Company shall (i) merge
or consolidate with or into any other Person (other than a merger or consolidation
in which the stockholders of the Company as of immediately prior to the consummation
of the merger or consolidation own, immediately after such merger or consolidation,
less than a majority of the outstanding Capital Stock entitled to vote under
ordinary circumstances in the election of members of the Board of the surviving
entity, (ii) sell all or substantially all of the Company’s assets, (iii) complete
any tender offer or exchange offer (whether by the Company or another Person)
pursuant to which holders of Common Stock are permitted to tender or exchange
their shares of Common Stock for other securities, cash or other property or (iv) the
Company effects any reclassification of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into
or exchanged for other securities, cash or other property (other than as a
result of a subdivision or combination of shares of Common Stock covered by Section 4.1
hereof) and, in each case the previously outstanding Common Stock shall be
converted or changed into or exchanged for different securities, interests, or
other property or assets (including cash), or any combination of the foregoing
(each such transaction being herein called a “Combination”), then, as a
condition to the consummation of such Combination, lawful and adequate
provision shall be made so that each Holder of a Warrant, upon the exercise of
such Warrant at any time at or after the consummation of such Combination,
shall be entitled to receive, and such Warrant shall thereafter represent the
right to receive, in lieu of the Common Stock issuable upon such exercise prior
to such consummation, the securities, cash or other property to which such
Holder would have been entitled upon consummation of the Combination if such
Holder had exercised such Warrant immediately prior thereto (subject to adjustments
from and after the consummation date as nearly equivalent as possible to the
adjustments provided for in this Article 4 and assuming such Holder failed
to exercise any rights of election and received per share the kind and amount
of consideration receivable per share by a plurality of non-electing
shares).  The foregoing provisions of this Section 4.3 shall
similarly apply to successive Combinations.


 


(d)                                                                                                         Current
Market Value.  For purposes of any
computation under Sections 3.5 and 3.7 hereof or this Article 4, the
Current Market Value per share of Common Stock (the “Current Market Value”)
at any date shall be (a) for purposes of Sections 3.5 and 3.7 hereof, the
closing price of the Common Stock on the Trading Day immediately preceding the
date of exercise of the applicable Warrant pursuant to Section 3 and (b) for
purposes of this Article 4, the arithmetic average of the daily closing
prices of such Common Stock for the 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


11

















 


shorter of (i) the twenty (20) consecutive
Trading Days ending on the last full Trading Day prior to the Time of
Determination (as defined below) and (ii) the consecutive Trading Days commencing
on the date next succeeding the first public announcement of the event giving
rise to the adjustment required by this Article 4 and ending on the
Trading Day immediately prior to the Time of Determination.  The term “Time of Determination” as
used herein shall be the earlier to occur of (A) the date as of which the
Current Market Value is to be computed and (B) if applicable, the date of
commencement of “ex-dividend” trading in the Common Stock relating to the event
giving rise to the adjustment required by this Article 4.  The “closing price” of the Common
Stock for any Trading Day shall be the last reported sale price, regular way,
of the Common Stock on such Trading Day or, in case no such reported sale takes
place on such Trading Day, the arithmetic average of the closing bid and
closing asked prices of the Common Stock for such Trading Day, in each case on
the principal Trading Market on which the Common Stock is then listed or
included.  Notwithstanding the foregoing,
in the event that the Common Stock is not then listed or included on a Trading
Market or if, for any other reason, the Current Market Value per share cannot
be determined pursuant to the foregoing provisions of this Section 4.4,
the Current Market Value per share of Common Stock shall be the Fair Market
Value thereof and shall be determined in good faith by the Board, with the
unanimous approval of the independent directors of the Board, not later than
five (5) Business Days following the Time of Determination.  The Company shall, promptly after such
determination by the Board, deliver to each Holder written notice of the
Current Market Value per share of Common Stock, as so determined by the Board,
together with a resolution of the Board evidencing such determination.


 


(e)                                                                                                          Certain
Actions.


 


(i)                                     The
Company shall not, directly or indirectly, by any action, including, without
limitation, reincorporation in a jurisdiction other than Delaware, amending its
certificate of incorporation or through any consolidation, merger, reorganization,
reclassification, transfer of assets, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Agreement or the Warrants, but will at
all times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holders against dilution or other impairment.  Without limiting the generality of the
foregoing, the Company shall (i) take, at its sole cost and expense, all
such action as may be necessary or appropriate in order that the Company may
validly and legally issue Common Stock on the exercise of the Warrants from
time to time outstanding and (ii) not take any action which results in any
adjustment of the number of Warrant Shares if the total number of shares of
Common Stock issuable after the action upon the exercise of all of the Warrants
would exceed the total number of shares of Common Stock then authorized by the
Company’s certificate of incorporation and available for the purposes of
issuance upon such exercise.


 


(ii)                                  The
Company shall not, directly or indirectly, (i) make any adjustment
pursuant to this Article 4 to the extent that it would result in reducing
the Exercise Price below 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


12





















 


the then par value of the
Common Stock or (ii) increase the par value of the Common Stock above its
current $.01 per share.


 


(f)                                                                                                            Notice
of Adjustment.


 


Upon
any adjustment of the Exercise Rate and/or the Exercise Price pursuant to this Article 4,
the Company shall promptly deliver to each Holder a certificate signed by an
Officer of the Company setting forth, in reasonable detail, the event requiring
such adjustment and the method by which such adjustment was calculated
(including, if applicable, a description of the basis on which the Board
determined the Fair Market Value of any evidences of indebtedness, securities
or other property or assets, and attaching a Board resolution evidencing such determination),
and specifying the number of shares of Common Stock purchasable upon exercise
of Warrants after giving effect to such adjustment.


 


(g)                                                                                                         Common
Stock.  For purposes of this Article 4,
the term “Common Stock” includes any stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which is not subject to redemption by the Company.  However, subject to Section 4.9 hereof,
shares issuable upon exercise of the Warrants shall include only shares of the
class designated as Common Stock on the date of this Agreement or shares of any
other class or classes resulting from any reclassification or change of such
Common Stock and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution
or winding-up of the Company and which are not subject to redemption by the
Company; provided that, if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable upon exercise
of the Warrants shall be substantially in the proportion which the total number
of shares of such class resulting from such reclassification or change bears to
the total number of shares of all such classes resulting from such reclassifications
or changes.


 


(h)                                                                                                         Notice
of Certain Transactions.  In the
event that the Company shall propose to (a) pay any dividend or make any
other distribution on the Common Stock, whether in cash, Common Stock, other
Capital Stock or securities, including, without limitation, rights, options,
warrants or convertible or exchangeable securities, evidences of indebtedness
or other property or assets, (b) effect any subdivision, combination,
reclassification or other change of its Common Stock, (c) effect any
tender offer, exchange offer or open market repurchase program, in any case
involving more than two percent (2%) of its outstanding Common Stock, (d) effect
any Combination or (e) effect the voluntary or involuntary dissolution, liquidation
or winding-up of the Company, the Company shall deliver written notice thereof
to each Holder, at least ten (10) Business Days prior to the applicable
record date hereinafter specified, or, in the case of events for which there is
no record date, at least ten (10) Business Days prior to the effective
date of such event or the commencement of such tender offer, exchange offer, or
repurchase program.  Any written notice provided pursuant to this Section 4.8
shall state (i) the date as of which the holders of record of the Common
Stock are entitled to receive any such Common Stock, other Capital Stock or
securities, rights, options, warrants or convertible or 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


13

















 


exchangeable securities, evidences of indebtedness or
other property or assets, (ii) the commencement date of any tender offer,
exchange offer or repurchase program for the Common Stock or (iii) the
date on which any such Combination, dissolution, liquidation or winding-up is
expected to become effective or consummated, and the date as of which it is
expected that holders of record of Common Stock shall be entitled to exchange
such shares for securities or other property, if any, deliverable upon such
Combination, dissolution, liquidation or winding-up.  The failure to give
the notice required by this Section 4.8 or any defect therein shall not
affect the legality or validity of any dividend, distribution, issuance, right,
option, warrant, security, tender offer, exchange offer, repurchase program,
Combination, reclassification, dissolution, liquidation or winding-up, or the
vote upon any action.


 


(i)                                                                                                             Adjustment
to Warrant Certificate.


 


The
form of Warrant Certificate need not be changed because of any adjustment made
pursuant to this Article 4, and Warrant Certificates issued after such
adjustment may state the same number of shares of Common Stock as are stated in
any Warrant Certificates issued prior to the adjustment.  The Company, however, may at any time in its
sole discretion make any change in the form of Warrant Certificate that it may
deem appropriate to give effect to such adjustments and that does not otherwise
affect the substance of the Warrant Certificate, and any Warrant Certificate
thereafter issued, whether in exchange or substitution for an outstanding
Warrant Certificate or otherwise, may be in the form as so changed.


 


(j)                                                                                                             Adjustments
or Issuances Deferred/Adjustments Not Required.


 


(i)                                     All
calculations under this Article 4 shall be made to the nearest 1/1,000th
of one cent or to the nearest 1/1,000th of one share, as the case may be.


 


(ii)                                  In
any case in which this Article 4 shall require an adjustment in the Exercise
Rate or the making of a provision effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such event (i) issuing
to the Holder of any Warrant exercised after such record date the Warrant
Shares and other equity of the Company, if any, issuable upon such exercise
over and above the Warrant Shares and other equity of the Company, if any,
issuable upon such exercise on the basis of the Exercise Rate and (ii) paying
to such Holder any amount in cash in lieu of a fractional share pursuant to Section 3.7
hereof; provided, however, that
the Company shall deliver to such Holder, upon request, a due bill or other appropriate instrument
evidencing such Holder’s right to receive such additional Warrant Shares, other
equity and cash upon the occurrence of the event requiring such adjustment.


 


(iii)                               Notwithstanding
anything to the contrary contained in this Article 4, no adjustment in the
Exercise Rate and the Exercise Price shall be required under clause (a) of
Section 4.1 hereof if the Company issues or distributes to each Holder, at
or before the time such issuance or distribution is made to the stockholders of
the Company, the Common Stock referred to therein which would have been
distributed to such Holders had the Warrants held by such 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


14

















 


Holder been exercised
immediately prior to happening of such event or the record date with respect
thereto, as applicable.


 


Section 26.


 


REPRESENTATIONS
AND AGREEMENT OF THE COMPANY


 


The
Company represents and warrants to and agrees with the Initial Holder, as of
the date hereof, as follows:


 


·                                          The Warrants
and the Warrant Shares are duly authorized and, when issued and paid for in
accordance with the terms of this Agreement, will be duly and validly issued,
fully paid and nonassessable, free and clear of all liens, charges, security interests,
encumbrances, rights of first refusal, preemptive rights or other restrictions
(except for restrictions imposed generally by applicable securities laws).  The Company has reserved from its authorized
but unissued Common Stock a number of shares of Common Stock that is at least
equal to the maximum number of shares of Common Stock issuable pursuant to this
Agreement and the Warrants (at the Exercise Rate in effect on the Tranche B
Funding Date).


 


·                                          Assuming the
accuracy of the Initial Holder’s representations and warranties set forth in
the certificate attached as Exhibit C hereto and delivered by the Initial
Holder pursuant to Section 3.1 hereof, no registration under the
Securities Act is required for the offer, sale, issuance and delivery of the
Warrants and the Warrant Shares by the Company to the Initial Holder as
contemplated hereby.  The issuance and
sale of the Warrants and the Warrant Shares do not contravene the rules and
regulations of the Nasdaq Global Market.


 


·                                          Assuming that
the Exercise Price of the Warrants is equal to or greater than a 10% premium on
the closing price of the Company’s Common Stock on the Tranche B Funding Date,
the Warrants are eligible for resale pursuant to Rule 144A of the
Securities Act and will not, as of the initial Issuance Date to the Initial
Holder, be of the same class as securities listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted on a
U.S. automated inter-dealer quotation system.


 


·                                          The Company
hereby agrees that, for so long as any Warrants or Warrant Shares remain
outstanding and during any period in which the Company is not subject to Section 13
or 15(d) of the Exchange Act, to make available, upon request of any
Holder, to any Holder or beneficial owner of Warrants or Warrant Shares in connection
with any sale thereof and any prospective purchaser thereof from such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under
the Securities Act in order to permit resales pursuant to Rule 144A.


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


15
















 


·                                          None of the
Company, its Affiliates or any Person acting on any of their behalf (other than
the Holders and their Affiliates, as to whom the Company makes no
representation or warranty) has, directly or indirectly, offered, issued, sold
or solicited any offer to buy any security of a type which would be integrated
with the sale of the Warrants in any manner that would require the Warrants to
be registered under the Securities Act. 
None of the Company, its Affiliates or any Person acting on any of their
behalf (other than the Holders and their Affiliates, as to whom the Company
makes no representation or warranty) has engaged in any form of general
solicitation or general advertising within the meaning of Rule 502 in
connection with the offering of the Warrants.


 


·                                          The Holders
will have no obligation with respect to any brokerage or finder’s fees or
commissions payable by the Company or any of its Affiliates to any broker,
financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by this
Agreement.


 


Section 27.



MISCELLANEOUS


 


(a)                                                                                                          Persons
Benefiting.  Nothing in this
Agreement is intended or shall be construed to confer upon any Person other
than the Company and the Holders any legal or equitable right, remedy or claim
under or by reason of this Agreement or any part hereof, and this Agreement
shall be for the sole and exclusive benefit of the Company and the Holders.


 


(b)                                                                                                         Rights
of Holders.  Except as otherwise
specifically required herein, holders of unexercised Warrants are not entitled
to (a) receive dividends or other distributions from the Company, (b) receive
notice of or vote at any meeting of the stockholders of the Company, (c) consent
to any action of the stockholders of the Company, (d) receive notice of
any other proceedings of the Company or (e) exercise any other rights as
stockholders of the Company.


 


(c)                                                                                                          Amendment.  This Agreement may be amended by the Company
and the Initial Holder without the consent of any other Holder for the purpose
of curing any ambiguity, or 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 Initial
Holder may deem necessary or desirable; provided, however, that
such action shall not affect adversely the rights of any other Holder.  Any amendment or supplement to this Agreement
(including any Exhibit hereto) that has or would have an adverse effect on
the interests of the Holders shall require the written consent of the requisite
Holders.  The consent of each Holder
affected shall be required for any amendment pursuant to which the Exercise
Price would be increased or the Exercise Rate would be decreased (other than
pursuant to adjustments provided herein). 
In determining whether the Holders of the required number of Warrants
have concurred in any direction, waiver or consent, 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


16

















 


Warrants owned by the Company or any of its Affiliates
shall be disregarded and deemed not to be outstanding.


 


(d)                                                                                                         Notices.  All notices, consents, approvals, reports,
designations, requests, waivers, elections and other communications authorized
or required to be given pursuant to this Agreement shall be given in writing
and either personally delivered to the party to whom it is given or delivered
by an established delivery service by which receipts are given or mailed by
registered or certified mail, postage prepaid, or sent by facsimile or
electronic mail with a copy sent on the following Business Day by one of the
other methods of giving notice described herein, addressed to the party at its
address listed below:


 


(i)                                     If
to the Company:


 


Dyax Corp.

300 Technology Square

Cambridge, MA  02139

Attention:  Chief Financial Officer 

Facsimile:  (617) 225-7708 

E-mail:  imagovcevic@dyax.com



with a copy (which shall not constitute notice) to:



Dyax Corp.

300 Technology Square

Cambridge, MA  02139 

Attention:  General Counsel 

Facsimile:  (617) 225-7708 

E-mail:  imagovcevic@dyax.com



with a copy (which shall not constitute notice) to:



Dyax Corp.

300 Technology Square

Cambridge, MA  02139

Attention:  Associate General Counsel

Facsimile:  (617) 225-7708 

E-mail:  aashe@dyax.com



with a copy (which shall not constitute notice) to:



Edwards Angell Palmer & Dodge LLP 

111 Huntington Avenue

Boston, MA  02199

Attention: Stacie S. Aarestad


Facsimile: 
(617) 227-4420

E-mail:  saarestad@eapdlaw.com


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


17

















 


(ii)                                  If
to the Initial Holder:


 


Cowen Healthcare Royalty Partners, L.P.

177 Broad Street, Suite 1101

Stamford, CT  06901

Attention:  Gregory B. Brown, M.D.

Facsimile:  (646) 562-1293

Email:  greg.brown@cowen.com



with a copy (which shall not constitute notice) to:



Cahill Gordon & Reindel LLP

80 Pine Street

New York, NY  10005

Attn:  Christopher T. Cox

Facsimile:  (212) 396-0136

E-mail:  ccox@cahill.com


 


(iii)                               If
to any other Holder, to the address set forth on the Certificate Register.


 


The
Company and the Initial Holder, by written notice to the other, may designate
additional or different addresses for subsequent notices or communications.


 


Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.


 


(e)                                                                                                          GOVERNING LAW.  THIS AGREEMENT AND THE WARRANT CERTIFICATES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES THAT WOULD
REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION).


 


(f)                                                                                                            JURISDICTION; WAIVER OF TRIAL BY JURY.  IN CONNECTION WITH THE
ADJUDICATION OF ANY DISPUTES RELATING TO THIS AGREEMENT OR THE WARRANTS, EACH
PARTY HEREBY IRREVOCABLY (A) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE
UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED
THAT EACH PARTY SUBMITS TO THE JURISDICTION OF ANY OTHER COURT IN WHICH A CLAIM
RELATING TO THIS AGREEMENT OR THE WARRANTS IS BROUGHT BY ANY THIRD PARTY
AGAINST THE OTHER 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


18

















 


PARTY; (B) WAIVES, AND AGREES NOT TO ASSERT, (1) ANY
CLAIM THAT IT IS NOT SUBJECT TO THE JURISDICTION OF ANY SUCH COURT OR THAT SUCH
PROCEEDING HAS BEEN COMMENCED IN AN IMPROPER OR INCONVENIENT FORUM AND (2) ANY
RIGHT IT MAY HAVE TO TRIAL BY JURY; AND (C) AGREES THAT SERVICE OF
ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO SUCH PARTY’S
ADDRESS AS PROVIDED HEREIN SHALL BE EFFECTIVE FOR ANY ACTION, SUIT OR PROCEEDING
WITH RESPECT TO ANY MATTER FOR WHICH IT HAS SUBMITTED TO JURISDICTION
HEREBY.  A JUDGMENT IN ANY SUCH
PROCEEDING MAY BE ENFORCED IN ANY OTHER COURTS TO WHOSE JURISDICTION THE
APPLICABLE PARTY MAY BE SUBJECT.  EACH PARTY (X) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER OF A RIGHT TO A JURY TRIAL AND (Y) ACKNOWLEDGES
THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS, AGREEMENTS AND CERTIFICATIONS IN THIS
SECTION.


 


(g)                                                                                                         Successors.  All representations, warranties, covenants
and agreements contained in this Agreement and the Warrant Certificate by or
for the benefit of the Company and the Holders shall inure to the benefit of,
and shall bind, their respective successors and assigns.


 


(h)                                                                                                         Counterparts.  This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.


 


(i)                                                                                                             Table
of Contents.  The table of contents
and headings of the Articles and Sections of this Agreement have been inserted
for convenience of reference only, are not intended to be considered a part
hereof and shall not modify or restrict any of the terms or provisions hereof.


 


(j)                                                                                                             Severability.  The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Agreement in any jurisdiction.


 


(k)                                                                                                          Remedies.  The rights and remedies provided herein shall
be cumulative and not exclusive of any other rights or remedies available.  The Company
and the Initial Holder acknowledge and agree that the remedy at law for
any breach or threatened breach by the other party in the performance or
compliance with any of the terms of this Agreement or the Warrants is not and
would not be adequate and that, to the fullest extent permitted by law, 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


19

















 


such terms may be specifically enforced by a decree
for specific performance, injunctive relief or other equitable remedies or by
an injunction against violation of any such terms or otherwise and each of the
Company and the Initial Holder agrees not to allege, and hereby waives the defense,
that an adequate remedy exists at law.


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


20

















 


IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as
of the date first written above.


 


	
   

  	
  DYAX CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COWEN HEALTHCARE ROYALTY

  PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Cowen Healthcare Royalty GP, LLC,

  
	
   

  	
   

  	
    its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


EXHIBIT A

TO WARRANT AGREEMENT


 


[FORM WARRANT
CERTIFICATE]


 


[Face]


 


THE
WARRANTS AND THE WARRANT SHARES (THE “SECURITIES”) HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS.  NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION AND SUBJECT TO COMPLIANCE WITH OTHER APPLICABLE LAWS.  THE HOLDER HEREOF, BY ITS ACCEPTANCE HEREOF,
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, UNLESS PREVIOUSLY
REGISTERED UNDER THE SECURITIES ACT, ONLY (A) TO THE COMPANY; (B) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE); (C) TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A; (D) PURSUANT TO AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904
OF REGULATION S UNDER THE SECURITIES ACT; OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


 


	
  No.  2

  	
  Number of Warrants: 250,000

  



 


WARRANTS TO PURCHASE
COMMON STOCK OF


 


DYAX CORP.


 


THIS
CERTIFIES THAT COWEN HEALTHCARE ROYALTY PARTNERS, L.P., a Delaware limited
partnership, or its registered assigns, is the registered holder of the number
of Warrants set forth above (the “Warrants”).  Each Warrant entitles the holder thereof (the
“Holder”), at its option and subject to the provisions contained herein
and in the Warrant Agreement referred to below, to purchase from DYAX CORP., a
Delaware corporation (the “Company”), one share of 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


A-1

















 


Common Stock, $.01 par value per share, of the Company
(the “Common Stock”) at the exercise price of $[                 ] (the “Exercise
Price”) or by Cashless Exercise, as referred to below.


 


This
Warrant Certificate is issued on the Tranche B Funding Date under and in
accordance with the Warrant Agreement, dated as of March [     ], 
2009, between the Company and the Initial Holder thereunder (the “Warrant
Agreement”), and is subject to the terms and provisions contained in the
Warrant Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof.  The Warrant Agreement is hereby incorporated
herein by reference and made a part hereof. 
Reference is hereby made to the Warrant Agreement for a full statement
of the respective rights, limitations of rights, duties and obligations of the
Company and the Holders of the Warrants. 
Capitalized terms used but not defined herein shall have the meanings
ascribed thereto in the Warrant Agreement. 
A copy of the Warrant Agreement may be obtained for inspection by the
Holder hereof upon written request to the Company at Dyax Corp., 300 Technology
Square, Cambridge, MA 02139, Attention: 
Ivana Magovcevic-Liebisch.


 


Subject
to the terms and conditions set forth in this Warrant Certificate and the
Warrant Agreement, each Warrant represented hereby shall be exercisable at any
time or from time to time on or after the earlier of (i) the one year
anniversary of the Tranche B Funding Date and (ii) the date on which the
Company delivers or is required to deliver to the Holders written notice of a
Combination pursuant to clause (d) of Section 4.8 of the Warrant
Agreement (the “Exercise Commencement Date”).  This Warrant Certificate shall terminate and
become void as of 6:00 p.m., New York time, on August 5, 2016 (the “Expiration
Date”) or upon the exercise hereof as to all Warrants represented
thereby.  The number of Warrant Shares
and the kind of securities, cash and other property purchasable upon exercise
of the Warrants and the Exercise Price shall be subject to adjustment from time
to time as set forth in the Warrant Agreement.


 


Reference
is hereby made to the further provisions of this Warrant Certificate set forth
on the reverse hereof, which provisions shall for all purposes have the same
effect as though fully set forth at this place.


 


THIS
WARRANT CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW
PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION).


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


A-2

















 


IN
WITNESS WHEREOF, Dyax Corp. has caused this Warrant Certificate to be executed
by its duly authorized officer as of the date first written above.


 


	
   

  	
  DYAX CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


A-3

















 


[FORM OF REVERSE OF
WARRANT CERTIFICATE]


 


[Reverse]


 


Subject
to the terms of this Warrant Certificate and the Warrant Agreement, the
Warrants represented by this Warrant Certificate may be exercised in whole  or in part upon (a) surrender to the Company of this
Warrant Certificate, together with the form of election to purchase Warrant
Shares below duly completed and executed by the Holder hereof and (b) payment
to the Company of the Exercise Price for the number of Warrant Shares in respect
of which the Warrants are exercised. 
Such payment of the Exercise Price shall be made (i) in cash or by
certified or official bank check payable to the order of the Company or by wire
transfer of funds to an account designated by the Company for such purpose or (ii) by
Cashless Exercise by the surrender (which surrender shall be evidenced by
cancellation of the number of Warrants represented by this Warrant Certificate
presented in connection with a Cashless Exercise) of the Warrants represented
by this Warrant Certificates, and without the payment of the Exercise Price in
cash, in exchange for the issuance of such number of shares of Common Stock
equal to the product of (1) the number of shares of Common Stock for which
the Warrants would otherwise be nominally exercisable immediately prior to such
exercise if payment of the Exercise Price were being made in cash and (2) the
Cashless Exercise Ratio (as defined in the Warrant Agreement).  All Warrant Shares issued upon exercise of
Warrants will be fully paid, nonassessable, free of preemptive rights and free
from all taxes, liens, charges and security interests with respect to the issue
thereof.


 


The
Warrants represented by this Warrant Certificate shall be exercisable at the
election of the Holders hereof either in full at any time or in part from time
to time during the period commencing on the Exercise Commencement Date and
ending at 6:00 p.m., New York time, on the Expiration Date and in the
event that this Warrant Certificate is surrendered for exercise in respect of
less than all the Warrants represented hereby at any time prior to the Expiration
Date a new Warrant Certificate representing the remaining Warrants will be duly
executed and promptly issued by the Company in accordance with the Warrant Agreement.


 


No
fractional Warrant Shares will be issued on exercise of Warrants.  If more than one Warrant shall be exercised
at the same time by the same Holder, the number of full Warrant Shares which
shall be issuable upon such exercise shall be computed on the basis of the aggregate
number of Warrant Shares purchasable on exercise of the Warrants so exercised.  If any fraction of a Warrant Share would be
issuable on the exercise of any Warrant (or specified portion thereof), the Company
will notify the Holder exercising the Warrant in writing of the amount to be
paid in lieu of the fraction of a Warrant Share and concurrently will pay to
such Holder an amount in cash equal to the Current Market Value for one Warrant
Share on the date the Warrant is exercised, multiplied by such fraction,
rounded up to the nearest whole cent.


 


When
Warrants are presented to the Company with a request to register the transfer
of such Warrants or to exchange such Warrants for an equal number of Warrants
of other 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


A-4

















 


authorized denominations, the Company will register
the transfer or make the exchange in the manner and subject to the limitations
set forth in the Warrant Agreement.


 


No
service charge will be made by the Company to any Holder for any registration
of transfer or exchange upon surrender of this Warrant Certificate at the
principal office of the Company.  The
Company will pay all documentary stamp taxes attributable to the issuance of
the Warrants and the Warrant Shares upon the exercise of Warrants; provided,
however, that the Company will not be required to pay any tax or taxes
which may be payable in respect of any transfer involved in the issuance of any
Warrant Certificates or any certificates for Warrant Shares in a name other
than the Holder of such Warrant Certificate.


 


Except
as otherwise specifically required in the Warrant Agreement, Holders of
unexercised Warrants are not entitled to (a) receive dividends or other
distributions from the Company, (b) receive notice of or vote at any
meeting of the stockholders of the Company, (c) consent to any action of the
stockholders of the Company, (d) receive notice of any other proceedings
of the Company or (e) exercise any other rights as stockholders of the Company.  All shares of Common Stock issuable by the
Company upon the exercise of the Warrants shall, upon such issue, be duly and
validly issued and fully paid and non-assessable.


 


The
holder in whose name this Warrant Certificate is registered may be deemed and
treated by the Company as the absolute owner of the Warrant Certificate for all
purposes whatsoever and the Company shall not be affected by notice to the
contrary.


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


A-5
















 


FORM OF ELECTION TO
PURCHASE WARRANT SHARES

(to be executed only upon exercise of Warrants)


 


DYAX CORP.


 


The
undersigned hereby irrevocably elects to exercise                
Warrants to purchase Warrant Shares, on the terms and conditions specified in
the within Warrant Certificate and the Warrant Agreement therein referred to
and herewith (choose one by marking “X” in the space provided):


 


o                                    Tenders
payment of the aggregate Exercise Price for such Warrant Shares to the order of
Dyax Corp. in the amount $           
in accordance with the terms of the Warrant Agreement.


 


o                                    Directs
that such exercise be a Cashless Exercise in accordance with the terms of the
Warrant Agreement.


 


The
undersigned directs that the Warrant Shares and the other securities, if any,
deliverable upon the exercise of such Warrants be registered in the name and at
the address specified below and delivered thereto.


 


Date:                                     ,
20      


 


	
   

  	
   

  	
  (4)

  
	
   

  	
  (Signature of Holder)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Street Address)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (City)    
  (State)    (Zip Code)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Social Security or Tax Identification No.)

  



 






(4)                                  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 whatever.


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


A-6

















 


Warrant Shares
and any other securities, cash and other property, and/or payment in lieu of
fractional Warrant Shares to be issued and delivered to:


 


	
   

  	
   

  
	
   

  	
  (Name)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Street Address)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (City)    
  (State)    (Zip Code)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Social Security or Tax Identification No.)

  



 


 


A Warrant
Certificate representing any unexercised Warrants evidenced by the within Warrant
Certificate to be issued to:


 


 


	
   

  	
   

  
	
   

  	
  (Name)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Street Address)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (City)    
  (State)    (Zip Code)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Social Security or Tax Identification No.)

  



 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


A-7

















 


EXHIBIT B

TO WARRANT AGREEMENT


 


CERTIFICATE TO BE
DELIVERED UPON EXCHANGE OR

REGISTRATION OF TRANSFER OF WARRANTS


 


Re:                               Warrants to Purchase
Common Stock (the “Warrants”) of DYAX CORP. (the “Company”)


 


This
Certificate relates to                   
Warrants held in definitive form by                         
(the “Transferor”).


 


The
Transferor has requested the Company to exchange or register the transfer of a
Warrant or Warrants.  In connection with
such request and in respect of each such Warrant, the Transferor does hereby
certify that the Transferor is familiar with the Warrant Agreement relating to
the above captioned Warrants and that the transfer of this Warrant does not
require registration under the Securities Act of 1933, as amended (the “Securities
Act”), because(5):


 


o                                    Such
Warrant is being acquired for the Transferor’s own account without transfer.


 


o                                    Such
Warrant is being transferred to the Company.


 


o                                    Such
Warrant is being transferred in a transaction meeting the requirements of Rule 144
under the Securities Act.


 


o                                    Such
Warrant is being transferred to a qualified institutional buyer (as defined in Rule 144A
under the Securities Act) in reliance on Rule 144A.


 


o                                    Such
Warrant is being transferred pursuant to an offshore transaction in accordance
with Rule 904 under the Securities Act.


 


o                                    Such
warrant is being transferred pursuant to another available exemption from the
registration requirements under the Securities Act.


 


The
Company is entitled to rely upon this Certificate.


 


	
   

  	
  [INSERT NAME OF TRANSFEROR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
				



 






(5)                                  Please
check applicable box.


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


B-1

















 


EXHIBIT C

TO

WARRANT AGREEMENT


 


FORM OF
CERTIFICATION


 


The
undersigned hereby acknowledges receipt of 250,000 Warrants at an exercise
price per Warrant (subject to adjustment) of $[      ]  to
acquire shares of Common Stock of DYAX CORP., on the terms and conditions
specified in the Warrant Certificate and the Warrant Agreement therein referred
(a “Holder”).


 


Each
Holder, severally and not jointly, represents and warrants to DYAX CORP. (the “Company”)
as of the date hereof and the Tranche B Funding Date as follows:


 


(a)                                  Such
Holder is acquiring the Warrants and (if and when it exercises the Warrants)
will acquire the Warrant Shares for its own account, for investment purposes
only and not with a view to any distribution thereof within the meaning of the
Securities Act.


 


(b)                                 Such
Holder has received such information as it deems necessary in order to make an
investment decision with respect to the Warrants and has had the opportunity to
ask questions of and receive answers from the Company and its officers and
directors and to obtain such additional information which the Company possesses
or could acquire without unreasonable effort or expense as such Holder deems
necessary to verify the accuracy of the information furnished to such Holder
and has asked questions, received such answers and obtained such information as
it deems necessary to verify the such accuracy of the information furnished to
such Holder.


 


(c)                                  Such
Holder is an “accredited investor” within the meaning of Rule 501 of the
Securities Act.


 


(d)                                 Such
Holder understands that the Warrants have not been and will not be registered
under the Securities Act or any state or other securities law, that the
Warrants are being issued by the Company in transactions exempt from the
registration requirements of the Securities Act and that the Warrants may be
resold only if registered pursuant to the provisions of the Securities Act or
if an exemption from registration under the Securities Act is available.


 


(e)                                  Such
Holder further understands that the exemption from registration afforded by Rule 144
of the Securities Act depends on the satisfaction of various conditions, and
that, if applicable, Rule 144 of the Securities Act may afford the basis
for sales only in limited amounts.


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


B-2

















 


(f)                                    Such
Holder did not employ any broker or finder in connection with the transaction
contemplated the Warrant Agreement and no fees or commissions are payable to
the Holders except as otherwise provided for in the Warrant Agreement.


 


 


	
   

  	
  COWEN HEALTHCARE ROYALTY PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Cowen Healthcare Royalty GP, LLC,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gregory B. Brown, M.D.

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DATED:  March [       ],
  2009

  



 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


B-3

















 


EXHIBIT L


 


Form of
Assignment and Acceptance


 


[date]


 


[Lender]

[                 ]


[                 ]




	
  Attention:

  	
  [          ]

  
	
  Facsimile:

  	
  [          ]

  



 


Dyax Corp.

300 Technology Square

Cambridge, MA 02139




	
  Attention:

  	
  [          ]

  
	
  Facsimile:

  	
  [          ]

  



 


Ladies and Gentlemen:


 


Re: Assignment Pursuant to the Loan Agreement


 


We
refer to the Loan Agreement dated as of August 5, 2008, amended and restated
as of March 18, 2009, (as may be further amended from time to time, the “Agreement”), providing for loans to DYAX CORP. in an
aggregate principal amounts of up to $50,000,000 in Tranche A Loans and
$15,000,000 in Tranche B Loans.             
(the “Seller”) and              
(the “Buyer”) are delivering this instrument
to you in connection with an assignment by the Seller of its rights and
obligations under the Agreement pursuant to Section 13.01 thereof. Capitalized
terms used and not otherwise defined herein have the meanings given to them in
the Agreement.


 


1.                                       The
Seller and the Buyer hereby advise you (a) that the Seller will assign to
the Buyer the Seller’s right, title and interest in respect of the Agreement
described below as the “Assigned Rights”
and the Buyer will accept that assignment and assume the Seller’s related
obligations described below as the “Assumed Obligations,”
and (b) that as between the Seller and the Buyer that assignment and
assumption will be effective as of the date identified below as the “Effective Date.”


 


2.                                       In
connection with the assignment referred to herein, the Buyer hereby confirms to
you that (a) the Buyer is a financial institution, institutional investor
or commercial paper conduit and (b) the Buyer agrees to be bound as a
Lender by the terms of the Agreement to the extent of the assignment and
assumption referred to herein.


 


3.                                       The
Buyer (a) represents and warrants that (i) it is sophisticated with respect
to decisions to acquire assets of the type represented by the Assigned Rights
and Assumed Obligations and either it, or the Person exercising discretion in
making its decision to acquire the Assigned Rights and Assumed Obligations, is
experienced in acquiring assets of such 


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


type, (ii) it has received a copy of the Loan
Agreement, together with copies of the most recent financial statements
delivered pursuant to Sections 9.03 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance and to
purchase the Assigned Rights and Assumed Obligations on the basis of which it
has made such analysis and decision independently and without reliance on the
Seller or any other Lender; and (b) agrees that (i) it will, independently
and without reliance on the Seller or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of
the obligations that by the terms of the Loan Documents are required to be
performed by it as a Lender.


 


4.                                       Buyer
hereby appoints Cowen Healthcare Royalty Partners, L.P. to act as its agent
under the Security Agreement which grant a security interest on terms specified
in Section 16 of the Security Agreement, including for the purpose of
filings related to the security interest granted under the Security Agreement
and other Loan Documents which grant a security interest.


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


L-2

















 


Terms
Relating to the Assignment and Acceptance


 


Effective
Date:


 


Assigned
Rights:


 


[A        %
undivided interest in (i) the Tranche A Loan of the Seller outstanding on
the Effective Date, (ii) all related rights of the Seller to interest
accruing on such portion of the Tranche A Loan from and after the Effective
Date, and (iii) all related rights of the Seller under the Agreement and
the Tranche A Note delivered to the Seller thereunder from and after the
Effective Date.]


 


[and


 


A        %
undivided interest in (i) the Tranche B Loan of the Seller outstanding on
the Effective Date, (ii) all related rights of the Seller to interest
accruing on such portion of the Tranche B Loan from and after the Effective
Date, and (iii) all related rights of the Seller under the Agreement and
the Tranche B Note delivered to the Seller thereunder from and after the
Effective Date.]


 


Assumed
Obligations:


 


All obligations of
the Seller relating to the Assigned Rights that arise under the Agreement on or
after the Effective Date


 


[Tranche
A Loan of the Seller:


 


Before the Effective
Date: $                      


 


After giving
effect to the assignment referred to herein: $                      ]


 


[Tranche
B Loan of the Seller:


 


Before the
Effective Date: $                      


 


After giving
effect to the assignment referred to herein: $                      ]


 


[Tranche
A Loan of the Buyer:


 


Before the
Effective Date:  $                      


 


After giving
effect to the assignment referred to herein: $                      ]


 


[Tranche
B Loan of the Buyer:


 


Before the
Effective Date:  $                      


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


L-3

















 


After
giving effect to the assignment referred to herein: $                            ]


 


For these purposes, the Buyer hereby informs you that
the address for notices and account for payments in connection with the
Agreement are as set forth below.


 


 


	
  [LENDER]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Include Notice and account

  information for Buyer.]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
											



 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 


L-4

















 


Schedule A


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


SCHEDULE B


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 
















 


Schedule C


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule D


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01(l)


Indebtedness


 


None


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01(n)


Subsidiaries


 


Subsidiaries


 





 


Dyax SA


Building 22


Boulevard du Rectorat 27B


Sart Tilman


B-4000 Liege 1


Belgium


 


Dyax B.V. and Holding B. V.


Voorstraat 5


3633 BA VREELAND


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01(s)(i)


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01(s)(ii)


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01 (u)


Borrower’s Principal Place of Business


and Chief Executive Office


 


 


300 Technology Square, Cambridge, MA 02139, USA


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01 (v) (ii)


 


 


 [*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01(v)(iii)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01 (v) (iv)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01(v)(vii)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 
















 


Schedule 8.01(v)(viii)


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01(v)(ix)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01(v)(x)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01(v)(xi)


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01 (w) (i)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01(w)(iii)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01(w)(v)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01 (w) (vi)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01(w)(vii)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01 (w) (viii)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01 (w)(x)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 
















 


Schedule 8.01(w)(xi)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 8.01 (x)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.


 

















 


Schedule 10.03(a)


 


 


[*****]


 


 


Confidential materials omitted and filed separately with the Securities
and Exchange Commission.  Asterisks
denote such omission.