-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SDH6H+7JCWF0xiLre8F+zNT+sBulFf8Upml9dmTAiKHM5KLi+B/WC2z/KDuDnx4m 5L5GAqHKXxxwFaCPwmoENw== 0000950162-04-000044.txt : 20040123 0000950162-04-000044.hdr.sgml : 20040123 20040122172500 ACCESSION NUMBER: 0000950162-04-000044 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20040122 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ELAN INTERNATIONAL SERVICES LTD CENTRAL INDEX KEY: 0001002782 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 102 JAMES COURT FLATTS STREET 2: SMITH PARISH FL 04 CITY: BERMUDA STATE: D0 ZIP: 00000 BUSINESS PHONE: 4412929169 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GLYCOGENESYS INC CENTRAL INDEX KEY: 0000946661 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 330231238 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-51445 FILM NUMBER: 04538463 BUSINESS ADDRESS: STREET 1: 31 ST. JAMES AVENUE STREET 2: 8TH FLOOR CITY: BOSTON STATE: MA ZIP: 02116 BUSINESS PHONE: 6174220674 MAIL ADDRESS: STREET 1: 31 ST JAMES AVE STREET 2: 8TH FL CITY: BOSTON STATE: MA ZIP: 02116 FORMER COMPANY: FORMER CONFORMED NAME: GLYCOGENESY INC DATE OF NAME CHANGE: 20011107 FORMER COMPANY: FORMER CONFORMED NAME: SAFESCIENCE INC DATE OF NAME CHANGE: 19980401 FORMER COMPANY: FORMER CONFORMED NAME: IGG INTERNATIONAL INC DATE OF NAME CHANGE: 19950721 SC 13D 1 elan13d012204.txt SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ____________________________________________ SCHEDULE 13D Under the Securities Exchange Act of 1934 GlycoGenesys, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $0.01 par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 37989P10 - -------------------------------------------------------------------------------- (CUSIP Number) William F. Daniel Elan Corporation, plc Lincoln House Lincoln Place Dublin 2, Ireland (353) 1-709-4000 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) July 10, 2001 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ]. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Page 1 of 13 - -------------------------------------------------------------------------------- CUSIP No. 37989P10 - ----------------- -------------------------------------------------------------- (1) NAME OF REPORTING PERSONS Elan Corporation, plc I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) N/A - ----------------- -------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - ----------------- -------------------------------------------------------------- (3) SEC USE ONLY - ----------------- -------------------------------------------------------------- (4) SOURCE OF FUNDS (See Instructions) WC, OO - ----------------- -------------------------------------------------------------- (5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------------- -------------------------------------------------------------- (6) CITIZENSHIP OR PLACE OF ORGANIZATION Ireland - ----------------- -------------------------------------------------------------- Number of (7) SOLE VOTING POWER Shares 0 ------ ------------------------------------------------------- Beneficially (8) SHARED VOTING POWER Owned 14,198,049 ------ ------------------------------------------------------- by Each (9) SOLE DISPOSITIVE POWER Reporting 0 ------ ------------------------------------------------------- Person With (10) SHARED DISPOSITIVE POWER 14,198,049 - ----------------- -------------------------------------------------------------- (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 14,198,049 - ----------------- -------------------------------------------------------------- (12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ----------------- -------------------------------------------------------------- (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 23.5% - ----------------- -------------------------------------------------------------- (14) TYPE OF REPORTING PERSON (See Instructions) CO - ----------------- -------------------------------------------------------------- Page 2 of 13 - -------------------------------------------------------------------------------- CUSIP No. 37989P10 - ----------------- -------------------------------------------------------------- (1) NAME OF REPORTING PERSONS Elan International Services, Ltd. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) N/A - ----------------- -------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - ----------------- -------------------------------------------------------------- (3) SEC USE ONLY - ----------------- -------------------------------------------------------------- (4) SOURCE OF FUNDS (See Instructions) WC, OO - ----------------- -------------------------------------------------------------- (5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------------- -------------------------------------------------------------- (6) CITIZENSHIP OR PLACE OF ORGANIZATION Bermuda - ----------------- ------ ------------------------------------------------------- Number of (7) SOLE VOTING POWER Shares 0 ------ ------------------------------------------------------- Beneficially (8) SHARED VOTING POWER Owned 14,198,049 ------ ------------------------------------------------------- by Each (9) SOLE DISPOSITIVE POWER Reporting 0 ------ ------------------------------------------------------- Person With (10) SHARED DISPOSITIVE POWER 14,198,049 - ----------------- -------------------------------------------------------------- (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 14,198,049 - ----------------- -------------------------------------------------------------- (12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ----------------- -------------------------------------------------------------- (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 23.5% - ----------------- -------------------------------------------------------------- (14) TYPE OF REPORTING PERSON (See Instructions) CO - ----------------- -------------------------------------------------------------- Page 3 of 13 Item 1. Security and Issuer. Common Stock, $0.01 par value (the "Common Stock"), of GlycoGenesys, Inc. (the "Issuer"), a Nevada corporation whose principal offices are located at Park Square Building, 31 St. James Avenue, 8th Floor, Boston, Massachusetts 02116. Item 2. Identity and Background. This Schedule 13D is filed by Elan Corporation, plc, an Irish public limited company ("Elan"), and its direct wholly-owned subsidiary, Elan International Services, Ltd., a Bermuda exempted limited liability company ("EIS"). Elan's principal place of business is Lincoln House, Lincoln Place, Dublin 2, Ireland. Elan is a worldwide biopharmaceutical company. EIS's principal place of business is 102 St. James Court, Flatts, Smiths, FL 04 Bermuda. EIS is an investment and holding company. Schedule A to this Schedule 13D sets forth the (a) name, (b) residence or business address, (c) present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted and (d) citizenship or place of organization of each executive officer, director and controlling person of Elan and EIS. During the last five years, neither Elan, EIS nor any person identified on Schedule A to this Schedule 13D: (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction, as a result of which proceeding it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, United States federal or state securities laws, or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration On July 10, 2001, pursuant to a Securities Purchase Agreement dated June 22, 2001 (the "Securities Purchase Agreement"), EIS acquired (a) 2.7 million shares of the Common Stock of the Issuer, (b) 4,944.44 shares of Series A Preferred Stock, $0.01 par value, of the Issuer (the "Series A Preferred Stock"), (c) 1,116.79 shares of Series C Preferred Stock, $0.01 par value, of the Issuer (the "Series C Preferred Stock") and (d) a warrant to purchase initially up to 381,679 shares of Common Stock (the "2001 Warrant"). The aggregate purchase price, paid in cash, for the above-referenced securities was $17,015,000, $12,015,000 of which represented the purchase price for the Series A Preferred Stock and $5,000,000 which represented the purchase price for the shares of Common Stock, the Series C Preferred Stock and the 2001 Warrant. General corporate funds were used in acquiring the above-referenced securities. At the time of issuance, the Series A Preferred Stock accrued paid-in-kind dividends at an annual rate of 7%, compounded annually. Each share of the Series A Preferred Stock acquired pursuant to the Securities Purchase Agreement became convertible at the option of the holder at any time after July 10, 2003 into 1,000 shares of Common Stock at a conversion price per share of $2.43, subject to customary antidilution adjustments. The Series C Preferred Stock does not bear dividends. Each share of the Series C Preferred Stock became convertible at the option of the holder at any time after July 10, 2003 into 1,000 Page 4 of 13 shares of Common Stock, subject to customary antidilution adjustments for no additional consideration. The 2001 Warrant was at the time of issuance and is immediately exercisable for 381,679 shares of Common Stock, at an exercise price of $2.43 per share, subject to antidilution adjustments and expires on July 10, 2006. The antidilution adjustments were amended pursuant to the Agreement and Amendment, effective as of July 10, 2001, and the Termination Agreement, as defined below. On December 31, 2001, pursuant to the Securities Purchase Agreement, EIS purchased 862.70647 shares of Series B Convertible Preferred Stock of the Company, $0.01 par value ("Series B Preferred Stock") at a price per share of $1,700. General corporate funds were used in acquiring such securities. On May 7, 2002, pursuant to the Securities Purchase Agreement, EIS purchased 599.84706 shares of Series B Preferred Stock at a price per share of $1,700. General corporate funds were used in acquiring such securities. On August 15, 2002, pursuant to the Securities Purchase Agreement, EIS purchased 832.12450 shares of Series B Preferred Stock at a price per share of $1,700. General corporate funds were used in acquiring such securities. On December 18, 2002, pursuant to the Securities Purchase Agreement and the Termination Agreement (as defined below), EIS purchased 1,176.47059 shares of Series B Preferred Stock at a price per share of $1,700. General corporate funds were used in acquiring such securities. The Series B Preferred Stock accrues dividends at a rate of 7% per annum, compounded annually on December 31. Dividends are payable in kind at a price per share of $1,700 on December 31 of each year, provided such dividends are not declared or paid without the prior written consent of the holder. No dividends have been paid on the Series B Preferred Stock. Each share of the Series B Preferred Stock became convertible at the option of the holder at any time after December 31, 2003 into such number of shares of Common Stock as is determined by dividing the original issue price of $1,700 plus the amount of any accrued and unpaid dividends thereon by $1.70, subject to antidilution adjustments. The antidilution adjustments were amended pursuant to the Termination Agreement, as defined below. At the time of entering into the Securities Purchase Agreement, the Issuer and Elan formed SafeScience Newco, Ltd. ("SafeScience Newco") pursuant to which they entered into a joint venture relationship (the "Joint Venture"). In certain circumstances, the Series A Preferred Stock was exchangeable into securities of SafeScience Newco. EIS was granted a preemptive right (the "Preemptive Right") in the Securities Purchase Agreement to participate in any equity financing, any financing involving securities convertible or exchangeable for equity, or any grant of options, warrants or other rights to purchase capital stock of the Company. On January 21, 2002, pursuant to the Preemptive Right and in connection with a private placement by the Issuer, EIS subscribed for and purchased 597,205 shares of Common Stock at a purchase price of $1.79 per share and, in connection therewith, received at no additional consideration, Page 5 of 13 a warrant (the "First 2002 Warrant") to purchase 447,904 shares of Common Stock, at an exercise price of $2.15 per share, and a warrant (the "Second 2002 Warrant" and, collectively with the 2001 Warrant and the First 2002 Warrant, the "Warrants") to purchase 149,301 shares of Common Stock, at an exercise price of $0.01 per share. On December 18, 2002, Elan Corporation, plc, EIS and the Issuer executed a Termination Agreement (the "Termination Agreement"), pursuant to which, among other things (i) certain agreements between Elan and the Issuer relating to the Joint Venture were terminated, (ii) EIS purchased 1,176.47059 shares of Series B Preferred Stock at a price per share of $1,700, as described above, (iii) the exchange feature of Issuer's Series A preferred stock, which allowed Elan to exchange the Series A preferred stock into securities of SafeScience Newco was cancelled, (iv) the Preemptive Right was eliminated and (v) the Issuer issued to EIS 1209.07035 shares of Series A Preferred Stock, which will become convertible on December 18, 2004, in settlement of all mandatory paid-in-kind dividends for the period from July 11, 2001 to September 30, 2004 on the Series A Preferred Stock and the obligation of the Issuer to pay dividends subsequent to September 30, 2004 on the Series A Preferred Stock was terminated. On January 14, 2004, EIS exercised the Second 2002 Warrant at an exercise price of $0.01 per share and received 149,301 shares of Common Stock. Item 4. Purpose of the Transaction. EIS acquired the Securities described in Item 3 for the purpose of making an investment in the Company and in connection with the Termination Agreement. The 2001 Warrant is exercisable for 381,679 shares of Common Stock, at an exercise price of $2.43 per share, subject to customary antidilution adjustments at any time on or prior to July 10, 2006. The First 2002 Warrant is exercisable for 447,904 shares of Common stock, at an exercise price of $2.15 per share, subject to customary antidilution adjustments at any time on or prior to January 21, 2007. Each share of Series A Preferred Stock, including the Series A Preferred Stock issued as paid-in-kind dividends, is convertible into 1,000 shares of Common Stock at a price per share equal to $2.43, subject to customary antidilution adjustments. Each share of Series A Preferred Stock acquired on July 10, 2001 is currently convertible and each share of Series A Preferred Stock acquired on December 18, 2002 becomes convertible on December 18, 2004. Each share of Series B Preferred Stock, including any shares that may be issued as paid-in-kind dividends, is convertible at any time into such number of shares of Common Stock as is determined by dividing the original issue price of $1,700 plus the amount of any accrued and unpaid dividends thereon by $1.70. Each share of Series C Preferred Stock is convertible into 1,000 shares of Common Stock at no additional consideration. Page 6 of 13 The Issuer has granted to EIS certain registration rights for the shares of Common Stock held by Elan and for the shares of Common Stock issuable upon exercise or conversion of the Warrants, the Series A Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock. EIS and the Issuer agreed in the Securities Purchase Agreement that for so long as EIS owns at least 10% of the shares of Common Stock (assuming the exercise or conversion by EIS and its affiliates of any warrants or convertible securities), EIS will have the right (which right is assignable by EIS and its assignees and transferees, subject to the prior approval of the Company, such approval not to be unreasonably withheld, conditioned or delayed) to nominate one member to the Issuer's Board of Directors. The Issuer will take all necessary or appropriate steps to effect the appointment and any replacement of EIS's designee. The Securities Purchase Agreement, as amended by the Termination Agreement, provides that the Issuer shall not without the prior written consent of EIS: (i) enter into any material transaction with a director, officer or more than 20% beneficial owner of Common Stock other than on an arm's length basis or (ii) otherwise vary from a primary biotechnology/pharmaceutical business focus. EIS has a present intention to sell up to 3.3 million shares of the Common Stock from time to time in open market transactions, subject to market conditions. EIS expects to evaluate its investment in the Issuer on an ongoing basis and EIS may determine to change its investment intent with respect to the Issuer at any time in the future. In determining from time to time whether to sell or to retain its holdings of remaining securities of the Issuer, EIS will take into consideration such factors as it deems relevant, including the market price of the Common Stock, conditions in the securities markets generally, the Issuer's financial condition, business and prospects and general economic conditions. EIS reserves the right to dispose of all or a portion of its holdings of securities of the Issuer in public or private transactions and/or to enter into privately negotiated derivative transactions with institutional counterparties to hedge the market risk of some or all of its position in the securities of the Issuer. Any such transaction may be effected at any time or from time to time. Other than as set forth above in Item 3 or this Item 4, Elan has no present plans or intentions which would result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. The foregoing descriptions of the Securities Purchase Agreement and the Termination Agreement do not purport to be complete and are qualified in their entirety by reference to the full text thereof. The Securities Purchase Agreement and the Termination Agreement are incorporated by reference herein. Item 5. Interest in Securities of Issuer. (a) As of January 22, 2004, Elan (indirectly) and EIS (directly) each beneficially owned 14,198,049 shares of Common Stock, representing 23.5% of the outstanding shares of Common Stock (based on 49,636,397 shares of Common Stock outstanding on January 15, 2004 plus 10,751,543 shares issuable upon exercise or conversion of the Warrants, the Series A Preferred Stock, Series B Preferred Stock, including 389,581 shares issuable upon conversion of accrued but unpaid dividends on the Series B Preferred Stock as of January 22, 2004, and the Series C Preferred Stock). (b) As of January 22, 2004, each of Elan and EIS has the shared voting and dispositive power over 14,198,049 shares of Common Stock. Neither Elan nor EIS has sole voting or dispositive power over shares of Common Stock. (c) On January 14, 2004, EIS exercised the Second 2002 Warrant at an exercise price of $0.01 per share and received 149,301 shares of Common Stock. (d) Not applicable. (e) Not applicable. Page 7 of 13 Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Except as described in Items 3 and 4, there are no contracts, arrangements, understandings or relationships described in Item 6 of Schedule 13D. Item 7. Material to Be Filed as Exhibits. 1. Joint Filing Agreement.(1) 2. Securities Purchase Agreement, dated June 22, 2001.(2) 3. Registration Rights Agreement, dated June 22, 2001.(3) 4. Warrant to Purchase Shares of Common Stock, dated July 10, 2001.(4) 5. Subscription Agreement, dated January 11, 2002.(1) 6. Warrant to Purchase 447,904 Shares of Common Stock, dated January 21, 2002.(1) 7. Warrant to Purchase 149,301 Shares of Common Stock, dated January 21, 2002.(1) 8. Termination Agreement, dated December 18, 2002.(5) 9. Agreement and Amendment, dated July 10, 2001.(1) - ---------- 1 Filed herewith. 2 Filed as Exhibit 10.1 to the Issuer's Current Report on Form 8-K on June 29, 2001 (the "June 8-K") and incorporated by reference herein. 3 Filed as Exhibit 10.5 to the June 8-K and incorporated by reference herein. 4 Filed as Exhibit 10.7 to the June 8-K and incorporated by reference herein. 5 Filed as Exhibit 10.1 of the Issuer's 10-K dated April 11, 2003 and incorporated by reference herein. Page 8 of 13 SIGNATURE After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: January 22, 2004 ELAN CORPORATION, PLC By: /s/ Shane Cooke ----------------------------------- Name: Shane Cooke Title: CFO Dated: January 22, 2004 ELAN INTERNATIONAL SERVICES, LTD. By: /s/ Kevin Insley ------------------------------------ Name: Kevin Insley Title: President and Chief Financial Officer Page 9 of 13 SCHEDULE A The (a) name, (b) state or other place of its organization, (c) principal business, (d) address of its principal business and (e) address of its principal office of Elan is set forth below: (a) Elan Corporation, plc, (b) Ireland, (c) a worldwide biopharmaceutical company, (d) Lincoln House, Lincoln Place, Dublin 2, Ireland, and (e) Lincoln House, Lincoln Place, Dublin 2, Ireland. The (a) name, (b) business address, (c) present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted and (d) citizenship of each executive officer and director (other than Messrs. Armen, Boushel, Crowley, Gillespie, Groom, McGowan, McIntyre, McLaughlin, Selkoe, Thornburgh and Tully and Ms. Gray) of Elan are set forth below: 1. (a) G. Kelly Martin, (b) 345 Park Avenue, New York, New York 10154, (c) President and Chief Executive Officer, and (d) United States. 2. (a) Shane Cooke, (b) Lincoln House, Lincoln Place, Dublin 2, Ireland, (c) Executive Vice President and Chief Financial Officer, and (d) Ireland. 3. (a) William F. Daniel (b) Lincoln House, Lincoln Place, Dublin 2, Ireland, (c) Executive Vice President and Company Secretary, and (d) Ireland. 4. (a) Jean Duvall, (b) 800 Gateway Blvd., South San Francisco, CA 94080, (c) Executive Vice President and General Counsel, and (d) United States. The (a) name, (b) business address, (c) present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted and (d) citizenship of each director (other than Messrs. Martin and Daniel) of Elan are set forth below: 1. (a) Garo A. Armen, Ph.D., (b) 630 Fifth Avenue, Suite 2167, New York, New York 10111, (c) Chairman of the Board and Chief Executive Officer of Antigenics, Inc., and (d) United States. 2. (a) Brendan E. Boushel, (b) 9 Upper Mount Street, Dublin 2, Ireland, (c) Retired, and (d) Ireland. 3. (a) Laurence G. Crowley, (b) c/o Elan Corporation, plc, Lincoln House, Lincoln Place, Dublin 2, Ireland, (c) Governor (Chairman) Bank of Ireland, and (d) Ireland. 4. (a) Alan R. Gillespie, Ph.D., (b) c/o Elan Corporation, plc, Lincoln House, Lincoln Place, Dublin 2, Ireland, (c) Chairman, Ulster Bank Limited, and (d) United Kingdom. 5. (a) Ann Maynard Gray, (b) c/o Elan Corporation, plc, Lincoln House, Lincoln Place, Dublin 2, Ireland, (c) Retired, and (d) United Kingdom. 6. (a) John Groom, (b) c/o Elan Corporation, plc, Lincoln House, Lincoln Place, Dublin 2, Ireland, (c) Retired, and (d) United Kingdom. 7. (a) Kieran McGowan, (b) c/o Elan Corporation, plc, Lincoln House, Lincoln Place Dublin 2, Ireland, (c) Retired, and (d) Ireland. Page 10 of 13 8. (a) Kevin McIntyre, M.D., (b) c/o Elan Corporation, plc, Lincoln House, Lincoln Place, Dublin 2, Ireland, (c) Associate Clinical Professor of Medicine at Harvard Medical School, and (d) United States. 9. (a) Kyran McLaughlin, (b) Davy House, 49 Dawson Street, Dublin 2, Ireland, (c) Head of Equities and Corporate Finance, Davy Stockbrokers, and (d) Ireland. 10. (a) Dennis J. Selkoe, M.D., (b) c/o Elan Corporation, plc, Lincoln House, Lincoln Place, Dublin 2, Ireland, (c) Professor of Neurology and Neuroscience at Harvard Medical School, and (d) United States. 11. (a) Richard L. Thornburgh, (b) c/o Elan Corporation, plc, Lincoln House, Lincoln Place, Dublin 2, Ireland, (c) Counsel to the law firm of Kirkpatrick & Lockhart LLP, and (d) United States. 12. (a) Daniel P. Tully, (b) c/o Elan Corporation, plc, Lincoln House, Lincoln Place, Dublin 2, Ireland, (c) Retired, and (d) United States. The (a) name, (b) business address, (c) present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted and (d) citizenship of each executive officer and director of EIS are set forth below: 1. Kevin Insley, (b) c/o 102 St. James Court, Flatts, Smiths Bermuda, (c) Director, President and Chief Financial Officer, and (d) United Kingdom. 2. (a) Debra Moore Buryj, (b) c/o 102 St. James Court, Flatts, Smiths, Bermuda, (c) Director and Vice President and, (d) United States. 3. (a) David J. Doyle, (b) c/o Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda, (c) Director of EIS, and principal occupation is lawyer, law firm of Conyers, Dill & Pearman, Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda, and (d) Bermuda. Page 11 of 13 EXHIBIT INDEX Page No. 1. Joint Filing Agreement(1)............................................... 2. Securities Purchase Agreement, dated June 22, 2001.(2).................. 3. Registration Rights Agreement, dated June 22, 2001.(3).................. 4. Warrant to Purchase Shares of Common Stock, dated July 10, 2001.(4)..... 5. Subscription Agreement, dated January 11, 2002.(1) 6. Warrant to Purchase 447,904 Shares of Common Stock, dated January 21, 2002.(1) 7. Warrant to Purchase 149,301 Shares of Common Stock, dated January 21, 2002.(1).............................................................. 8. Termination Agreement, dated December 18, 2002(5)...................... 9. Agreement and Amendment, dated July 10, 2001.(1)...................... - ---------- 1 Filed herewith. 2 Filed at Exhibit 10.1 of the Issuer's Current Report on Form 8-K on June 29, 2001 (the "June 8-K") and incorporated by reference herein. 3 Filed as Exhibit 10.5 of the June 8-K and incorporated by reference herein. 4 Filed as Exhibit 10.7 of the June 8-K and incorporated by reference herein. 5 Filed as Exhibit 10.1 of the Issuer's Form 10-K dated April 11, 2003 and incorporated by reference herein. Page 12 of 13 JOINT FILING AGREEMENT The undersigned hereby agree that the statement on Schedule 13D with respect to the Common Stock of GlycoGenesys, Inc., dated as January 22, 2004, is, and any amendments thereto signed by each of the undersigned shall be, filed on behalf of each of us pursuant to and in accordance with the provisions of Rule 13d-1(k) under the Securities Exchange Act of 1934. Dated: January 22, 2004 ELAN CORPORATION, PLC By: /s/ Shane Cooke --------------------------------- Name: Shane Cooke Title: CFO Dated: January 22, 2004 ELAN INTERNATIONAL SERVICES, LTD. By: /s/ Kevin Insley ---------------------------------- Name: Kevin Insley Title: President and Chief Financial Officer Page 13 of 13 EX-5 3 glyco13dexsubagr.txt SUBSCRIPTION AGREEMENT -14- DO NOT SIGN WITHOUT READING THIS AGREEMENT IN ITS ENTIRETY Purchaser: Elan International Services, Ltd. Purchaser Representative: ____________ SUBSCRIPTION AGREEMENT THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES ACT OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OF THEM UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND/OR APPLICABLE STATE SECURITIES ACTS OR AN OPINION OF COUNSEL TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR ACTS. THIS INVESTMENT MAY BE SUBJECT TO ADDITIONAL STATE REQUIREMENTS AS SET FORTH BELOW. INVESTORS SHOULD REFER TO THOSE REQUIREMENTS BEFORE EXECUTING THIS AGREEMENT. GlycoGenesys, Inc. 31 St. James Avenue 8th Floor Boston, MA 02116 Ladies and Gentlemen: The undersigned has received and read the Private Placement Memorandum dated November 23, 2001, as the same has been amended or supplemented (the "Memorandum"). The undersigned desires to subscribe for shares of Common Stock in GlycoGenesys, Inc. (formerly, SafeScience, Inc.), a Nevada corporation (the "Company") in the Company's private placement pursuant to the Memorandum (the "Offering"). 1. Subscription. The undersigned hereby irrevocably subscribes for and agrees to purchase 597,205 shares of Common Stock (the "Shares") for an aggregate subscription price of $1,068,946.95 (at a price per share equal to the lower of the average closing sales price over the 5 most recent trading days or the most recent closing sales price (the "Purchase Price")). The undersigned shall also receive (i) a warrant to purchase 447,904 shares of Common Stock of the Company (75% warrant coverage) at price per share equal to 120% of the Purchase Price on the date hereof and (ii) a warrant to purchase 149,301 shares of Common Stock of the Company at $.01 per share, each in substantially the form of Exhibit A (together, the "Warrants"), in accordance with the terms and conditions of this Subscription Agreement. -1- 2. Acceptance of Subscription. The undersigned acknowledges that the Company has the right, without liability, to reject this subscription and to determine the date of acceptance of this subscription, and that such subscription shall be deemed to be accepted only when signed by the Company. The undersigned agrees that subscriptions need not be accepted in the order in which they are received. 3. Payment. Payment in full of the subscription price is due upon the acceptance of this subscription and shall be made by check made payable to the order of "GlycoGenesys, Inc." or by wire transfer to Fleet Bank; ABA Routing # 011000138; Account # 003176-2855; Account Name: GlycoGenesys, Inc. The Company may deposit, at its option, the proceeds from the Subscription into an account established by the Company pending the earlier of acceptance or rejection of such subscription or termination of the Offering. 4. Acceptance of Subscription. Upon acceptance of this subscription by the Company, compliance with any requirements under the Nevada corporation law, and any other applicable law, and the designation of the undersigned as a stockholder on the records of the Company, the undersigned shall become a stockholder of the Company. 5. Representations and Warranties of the Company. The Company hereby represents and warrants to the undersigned, as of the date hereof, as follows: (a) Organization and Qualification. The Company is duly organized, validly existing and in good standing under the laws of the State of Nevada and has all requisite corporate power and authority to own and lease its properties, to carry on its business as presently conducted and as proposed to be conducted and to consummate the transactions contemplated hereby. The Company is duly qualified as a foreign corporation and in good standing to do business in each jurisdiction in which the nature of the business conducted or the property owned by it requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on the business, assets, liabilities (contingent or otherwise), operations, condition (financial or otherwise), or prospects of the Company (a "Company Material Adverse Effect"). (b) Capitalization. (i) The authorized capital stock of the Company as of January 3, 2002 consists of 100,000,000 shares of Common Stock, of which 33,685,456 shares are issued and outstanding, and of which 1,563,142 shares are reserved for issuance upon exercise of outstanding options and 8,262,314 shares are reserved for issuance upon exercise of outstanding warrants and 5,000,000 shares of preferred stock of which 4,944.44 shares of Series A preferred stock are outstanding, 862.70647 shares of Series B preferred stock are outstanding and 1,116.79 shares of Series C preferred stock are issued and outstanding. (ii) As of the date hereof, the Company has reserved a sufficient number of shares of Common Stock for issuance upon exercise of the Warrants. -2- (iii) The Shares, when issued against payment therefor in accordance with this Agreement will be duly and validly issued, fully paid and non-assessable, and the Warrants, when issued against payment therefor in accordance with this Agreement, will be duly and validly issued. The shares of Common Stock issuable upon exercise of the Warrants, ("the "Warrant Shares"), will be duly and validly issued, fully paid and non-assessable. (c) Authorization of Transaction Documents. The Company has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution, delivery and performance by the Company of this Agreement shall be duly authorized by all requisite corporate action by the Company prior to the filing pursuant to section 9(a) of the registration statement covering the Shares and Warrant Shares and, when, authorized, executed and delivered by the Company, this Agreement will be the valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity. (d) No Violations. The execution, delivery and performance by the Company of this Agreement and the compliance with the provisions hereof by the Company do not and will not violate, conflict with or constitute or result in a breach of or default under (or an event which with notice or passage of time or both would constitute a default) or give rise to any right of termination, cancellation or acceleration under, or result in the creation of any Encumbrance (as defined below) upon any properties or assets of the Company under (i) the Articles of Incorporation or bylaws of the Company, (ii) any applicable law, statute, rule or regulation, or any ruling, writ, injunction, order, judgment or decree of any court, arbitrator, administrative agency or other governmental body applicable to the Company or any of its properties or assets or (iii) any contract, indenture, mortgage, deed of trust, lease, agreement or other instrument, to which the Company is a party or by which the Company or any of its property is bound, except, in each case, where such violation, conflict, breach, default, termination, cancellation, acceleration or Encumbrance would not, individually or in the aggregate, have a Company Material Adverse Effect. As used herein, the term "Encumbrance" shall mean any material lien, charge, encumbrance, claim, option, proxy, pledge, security interest, or other similar right of any nature other than statutory liens securing payments not yet due and payable or due but not yet delinquent. (e) Absence of Certain Events. Since September 30, 2001, except as disclosed in the Company's forms, reports, schedules, statements, exhibits and other documents (collectively, the "SEC Filings") filed pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), (A) the Company has not (i) varied its business plan or practices, in any material respect, from past practices, (ii) entered into any financing, joint venture, license or similar arrangement that would limit or restrict its ability to perform its obligations hereunder or (iii) suffered or permitted to be incurred any liability or obligation or any Encumbrance against any of its properties or assets that would limit or restrict its ability to perform its obligations hereunder; and (B) there has not been any change or development which has had, or could reasonably be expected to have, a Company Material Adverse Effect. -3- (f) Intellectual Property. The Company owns or possesses sufficient legal rights to use pursuant to license, sublicense, agreement or permission all Intellectual Property used in the operation of its business as presently conducted, in each case, subject to no Encumbrances required to be disclosed in the Financial Statements except as set forth therein, other than any failure to own or possess sufficient legal rights which, individually or in the aggregate, would not have a Company Material Adverse Effect. All of the Intellectual Property which is owned by the Company is owned free and clear of all Encumbrances; none of the Company's rights in or use of the Intellectual Property has been or, to the Company's knowledge, is currently threatened to be challenged; to the Company's knowledge, without making any inquiry other than those, if any, routinely conducted by the Company in the ordinary course of business, no current or currently planned product based upon the Company's Intellectual Property would infringe any patent, trademark, service mark, trade name or copyright of any other person or entity issued or pending on the Closing Date if the Company were to distribute, sell, market or manufacture such products, and the Company is not aware of any actual or threatened claim by any person or entity alleging any infringement by the Company of a patent, trademark, service mark, trade name or copyright possessed by such person or entity. None of such Intellectual Property, whether foreign or domestic, has been canceled, abandoned, or otherwise terminated, other than such cancellations, abandonments or terminations which, individually or in the aggregate, would not have a Company Material Adverse Effect. (g) Legal Proceedings, etc. Except as set forth under the Company's SEC Filings, there is no legal, administrative, arbitration or other action or proceeding or governmental or investigation pending, or to the Company's knowledge, threatened against the Company, or any director, officer or employee of the Company in their capacities as such that (i) challenges the validity or performance of this Agreement or (ii) could reasonably be expected to have a Company Material Adverse Effect. The Company is not in violation of, or default under, any material laws, judgments, injunctions, orders or decrees of any court, governmental department, commission, agency, instrumentality or arbitrator applicable to its business, other than any violations or defaults which, individually or in the aggregate, would not have a Company Material Adverse Effect. 6. Representations and Warranties of Undersigned. The undersigned hereby represents and warrants to the Company that: (a) the undersigned, if an individual, is not less than twenty-one years of age; (b) the undersigned, either alone or with his Purchaser Representative, if any, named below has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of an investment in the Company, and, if a resident of a certain state, meets any additional suitability standards applicable to him under state law; (c) if the undersigned is utilizing a Purchaser Representative for this investment: -4- (i) such Purchaser Representative, named at the beginning of this Agreement, has acted as his "Purchaser Representative" as defined in Regulation D under the Securities Act of 1933, as amended (the "1933 Act"); (ii) the undersigned has relied upon the advice of such Purchaser Representative as to the merits of an investment in the Company and the suitability of such investment for the undersigned; and (iii) such Purchaser Representative has heretofore confirmed to the undersigned in writing (a true and correct copy of which is furnished to the Company herewith) during the course of this transaction any past, present or future material relationship, actual or contemplated, between the Purchaser Representative and/or its affiliates and the Company and/or any of its affiliates, and any compensation received or to be received as a result thereof; (d) if the undersigned is a partnership, corporation, trust or other entity: (i) it was not formed for the purpose of this investment; (ii) it is authorized and otherwise duly qualified to purchase and hold Shares; and (iii) this Subscription Agreement has been duly and validly authorized and executed and, when delivered, will constitute the legal, valid, binding and enforceable obligation of the undersigned; (e) if the undersigned prospective investor is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), to the best of the undersigned's knowledge, neither the Company nor any affiliate of the Company is a party in interest or disqualified person, as defined in ERISA Section 3(14) and the Internal Revenue Code of 1954, as amended, section 4975(e)(2), respectively, with respect to such plan; (f) the undersigned is not subject to a statutory disqualification, as set forth in Section 3(a)(39) of the 1934 Act; (g) the undersigned and his Purchaser Representative, if any, have been given full and complete access to all information with respect to the Company and the Company's proposed activities that the undersigned and his Purchaser Representative, if any, have deemed necessary to evaluate the merits and risks of an investment in the Company; (h) the undersigned and, if applicable, his Purchaser Representative, have had a full opportunity to ask questions of and to receive satisfactory answers from a representative of the Company concerning the terms and conditions of this investment and all such questions have been answered to the full satisfaction of the undersigned; -5- (i) the undersigned and, if applicable, his Purchaser Representative, have had the opportunity to receive documents related to the Company and to ask questions of and receive answers from the Company regarding the Company, its business and the terms and conditions of the Offering and have read carefully copies of the Company's SEC Filings, including the exhibits thereto, and the undersigned is familiar with and agrees to all the terms and conditions of the offering of Shares and the Warrants; (j) the undersigned is aware of the risks associated with an investment in the Company, including those described in the "Risk Factors" section of the Company's SEC Filings; (k) the undersigned has adequate means of providing for his current needs and possible personal contingencies, has no need for liquidity with respect to his investment in the Company, and has financial resources sufficient to bear the economic risk of such investment; (l) the undersigned has been advised and understands that an investment in the Company is highly speculative and has received no representations or warranties from the Company with respect to such investment; (m) the undersigned acknowledges that there are substantial restrictions on the transferability of, and there will be no public market for, the Shares and the shares of Common Stock issuable upon exercise of the Warrants (the "Warrant Shares") and, accordingly, it may not be possible for the undersigned to liquidate his investment in case of an emergency or otherwise, and the undersigned has been advised that while Rule 144 of the 1933 Act is presently applicable to Shares and the Warrant Shares, the undersigned understands that Rule 144 may not be available in the future to such shares; (n) the undersigned is aware that no securities administrator of any state or federal government has made or will make any finding or determination relating to this investment; (o) Shares and the Warrants subscribed for hereby are being purchased for the undersigned's own account (or a trust account if the undersigned is a trustee), for investment purposes only and are not being purchased with a view to or for any resale, fractionalization, subdivision or distribution of such Shares; and (p) all information which the undersigned and his Purchaser Representative, if any, has provided to the Company, including (but not limited to) the information, representations and warranties of the undersigned contained in the Purchaser Suitability Statement executed by the undersigned and submitted to the Company in connection with this Subscription, is true and correct in all material respects as of the date set forth below and the undersigned agrees to furnish any additional information which the Company may request so as to determine the suitability of the undersigned, and to notify the Company immediately should any material changes in such information occur. -6- 7. Compliance with Federal and State Securities Laws. The undersigned understands and agrees that the following restrictions and limitations are applicable to his purchase, resales, pledges, hypothecations or other transfers of Shares and the Warrant Shares: (a) The undersigned agrees that Shares and the Warrant Shares shall not be sold, pledged, hypothecated or otherwise transferred unless such Shares or Warrant Shares are registered under the Securities Act of 1933, as amended, and applicable state securities laws or are exempt therefrom. (b) A legend in substantially the following form has been or will be placed on any instruments evidencing Shares and the Warrant Shares: THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES ACT OF ANY STATE. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES, AND SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OF THEM UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND/OR APPLICABLE STATE SECURITIES ACTS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR ACTS. (c) If applicable, the legend described in subparagraph (b) above will be placed with respect to any new instrument(s) or other document(s) issued upon presentment by the undersigned of such instrument(s) or other document(s) for transfer. 8. Transferability. The undersigned understands and agrees that the restrictions on the transfer or assignment of Shares and the Warrant Shares which may be imposed by the states in which such Shares and Warrant Shares may be offered shall be binding on the undersigned. 9. Registration Rights. (a) Registration. The Company shall use its reasonable good faith efforts to file a registration statement covering the Shares and the Warrant Shares (the "Registrable Securities") within 60 days of the earlier of the Company's termination of the Offering or February 16, 2002 (the "Final Closing"); provided, that if the undersigned previously purchased securities in the Company's private placement publicly announced December 21, 2001 and purchases Registrable Securities hereunder on or prior to January 11, 2002, the Company shall use its reasonable good faith efforts to file by January 15, 2002 a registration statement covering such Registrable Securities. Thereafter, the Company shall use its reasonable good faith efforts to cause any registration statement filed pursuant to this Section 9(a) to be declared effective by the 120th day after the Final Closing. Subject to Section 9(b) hereof, the Company agrees to pay the undersigned, as damages, an amount equal to one (1) percent of the total subscription amount paid by the undersigned for each full month during which the Company has failed to file a registration statement pursuant to the requirements of -7- the first sentence of this Section 9(a) for any Registrable Securities purchased prior to January 11, 2002. Such payment shall be the sole remedy to the undersigned for the Company's failure to file a registration statement pursuant to the requirements of the first sentence of this Section 9(a) and shall be made in shares of Common Stock, valued at the average closing sale price of the Company's Common Stock during the month for which such damages payment is applicable, provided, that the total number of shares payable pursuant to this Section 9(a) shall not exceed the number of Shares purchased under this subscription agreement by the undersigned. (b) Delays. The Company may postpone the filing or effectiveness of any registration statement required pursuant to this Section 9 for a reasonable period of time, not to exceed one-hundred twenty (120) days in the aggregate, in any 12-month period, if the Company's board of directors determines in good faith, with a copy to the undersigned upon their request, that such filing or effectiveness would (i) reasonably be executed to have a material adverse effect on (x) any proposal or plan by the Company to engage in any financing, acquisition, disposition of assets or other plan outside the ordinary course of business or (y) any merger, consolidation, tender offer or similar transaction, (ii) require disclosure of any information that the board of directors of the Company determines in good faith the disclosure of which would be detrimental to the Company or (iii) require a special audit by the Company. (c) Expenses. The Company shall pay all expenses incurred by the Company in connection with the registration, qualification and/or exemption of the Shares, including any Securities and Exchange Commission ("SEC") and state securities law registration and filing fees, printing expenses, fees and disbursements of the Company's counsel and accountants, transfer agents' and registrars' fees, fees and disbursements of experts used by the Company in connection with such registration, qualification and/or exemption, and expenses incidental to any amendment or supplement to the registration statement or prospectuses contained therein. The Company shall not, however, be liable for any sales, broker's or underwriting commissions upon sale by the undersigned or other holder of any of the Shares. (d) Registration Period. The Company shall keep the registration statement required pursuant to Section 9(a) hereof (the "Registration Statement") effective pursuant to Rule 415 promulgated under the 1933 Act at all times until the earlier of (i) the date on which the undersigned shall have sold all the Registrable Securities or (ii) the date on which all Registrable Securities may be sold without volume restrictions pursuant to Rule 144(k) promulgated under the 1933 Act (the "Registration Period"). (e) Amendments. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as required, as may be necessary to keep such Registration Statement (i) effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement and (ii) from containing any untrue statement of a material fact or -8- omitting to state a material fact required to be stated therein to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, that the Company shall be required to notify the undersigned, and may suspend sales under such Registration Statement for a period of up to three months if the board of directors determines in good faith that to amend or supplement such Registration Statement would reasonably be expected to have a material adverse effect on any proposal or plan by the Company to engage in any financing, acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or similar transaction or would require the disclosure of any information that the board of directors determines in good faith the disclosure of which would be materially detrimental to the Company, it being understood that the period for which the Company is obligated to keep the Registration Statement effective shall be extended for a number of days equal to the number of days the Company suspends sales under the Registration Statement pursuant to this provision. Upon receipt of any notice pursuant to this Section 9(e), the undersigned shall suspend all offers and sales of securities of the Company and all use of any prospectus until advised by the Company that offers and sales may resume, and shall keep confidential the fact and content of any notice given by the Company pursuant to this Section 9(e). (f) Legal Counsel Review. The Company shall permit one legal counsel designated by the investors in the Offering ("Legal Counsel") to review and comment upon the Registration Statement and all amendments and supplements thereto at least three (3) days prior to their filing with the SEC, and shall not file any document in a form to which Legal Counsel reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement or any amendment or supplement of such request without the prior approval of Legal Counsel, which approval shall not be unreasonably withheld and which shall be deemed granted if Legal Counsel does not object within two (2) days of receipt of such request. The Company shall furnish to Legal Counsel, without charge, (i) any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to the Registration Statement, (ii) promptly after the same is prepared and filed with the SEC, one (1) copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules, and all exhibits and (iii) upon the effectiveness of any Registration Statement, one (1) copy of the prospectus included in such Registration Statement and all amendments and supplements thereto. (g) State Securities Laws. If state securities law registration or qualification is required, the Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by a Registration Statement under such state securities or "blue sky" laws of such jurisdictions in the United States as Legal Counsel or the undersigned reasonably requests, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be reasonably necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition -9- thereto to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 9(g), (y) subject itself to general taxation in any such jurisdiction, or (z) take any action that would subject it to file general consent to service of process in any such jurisdiction. The Company shall promptly notify Legal Counsel and the undersigned of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or "blue sky" laws of any jurisdiction in the United States for which Legal Counsel or the undersigned has requested registration or qualification or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (h) Stop-Order and Suspension. The Company shall use its commercially reasonable good faith efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest practicable time and to notify Legal Counsel and the undersigned (and, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose. (i) Listing. The Company shall use its commercially reasonable good faith efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on The Nasdaq National Market System or The Nasdaq SmallCap Market for such Registrable Securities and, without limiting the generality of the foregoing, to maintain at least two (2) market makers registered with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to the Company shares of Common Stock. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 9(i). (j) Compliance with Securities Laws. The Company shall otherwise use its commercially reasonable good faith efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder and the Company shall use its commercially reasonable good faith efforts to file with the SEC in a timely manner all reports and documents required of the Company under the 1933 Act and the 1934 Act. (k) Disposition. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the undersigned of Registrable Securities pursuant to a Registration Statement. 10. Indemnification. The undersigned acknowledges and understands the meaning and legal consequences of the representations and warranties herein and hereby agrees to indemnify and hold harmless the Company and its officers, directors, controlling persons, -10- agents, employees, attorneys and accountants from and against any and all loss, damage or liability, together with all costs and expenses (including attorneys fees and disbursements) which any of them may incur by reason of: (a) any breach of any representation, warranty or agreement of the undersigned contained in this Subscription Agreement; or (b) any false, misleading or inaccurate information, or any breach of any representation, warranty or agreement of the undersigned, contained in the Purchaser Suitability Statement executed by the undersigned. Notwithstanding the foregoing, no representation, warranty, acknowledgment or agreement made herein by the undersigned shall in any manner be deemed to constitute a waiver of any rights of the undersigned under federal or state securities laws. All representations and warranties contained in this Subscription Agreement and the Purchaser Suitability Statement executed by the undersigned, and the indemnification contained in this paragraph 10, shall survive the acceptance of this subscription and any other transaction contemplated herein. 11. Applicable Law. This Subscription Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts, except as to any matter, to the extent it involves any United States statute, in accordance with the laws of the United States. 12. Gender. Whenever the singular number is used herein and when required by the context the same shall include the plural and the masculine gender shall include the feminine and, where applicable, shall include any corporation, firm or partnership executing this Subscription Agreement. 13. Binding Effect. This Subscription Agreement shall be binding upon and inure to the benefit of the undersigned and his successors and neither this Subscription Agreement nor any interest herein shall not be assignable by him. This Subscription Agreement shall inure to the benefit of the Company and its successors and assigns, and upon its acceptance by the Company shall be binding upon the Company and its successors and assigns. 14. Joint and Several Representations. If more than one person is signing this Subscription Agreement, each representation, warranty and undertaking herein shall be the joint and several representations warranty and undertaking of each such person. If the undersigned is a partnership, corporation, trust or other entity, the undersigned further represents and warrants that (a) the individual executing this Subscription Agreement has full power and authority to execute and deliver this Subscription Agreement on behalf of the undersigned and (b) the undersigned has full right and power to perform its obligations pursuant to the provisions hereof and become a stockholder of the Company. 15. Notice. All notice required to be given to the undersigned shall be deemed given when received by the undersigned, and shall be sent by air express courier with regular -11- service to the undersigned at the address indicated below, or as amended by written notice to the Company. IN WITNESS WHEREOF, the undersigned has executed and sealed this Subscription Agreement this day of January 11, 2002. Elan International Services, Ltd. By: /s/ Kevin Insley -------------------------------------- Kevin Insley President and Chief Financial Officer [____________________________] (If Purchaser is an individual, home address; or if Purchaser is an entity, business address) ______________________________ (Social Security or Tax Identification Number) ______________________________ (Signature of Joint Tenant, if any) ______________________________ (Printed Name of Joint Tenant, if any) ______________________________ ______________________________ City, State and Zip Code (Home Address) -12- ______________________________ (Social Security or Tax Identification Number of Joint Tenant) ______________________________ (Social Security or Tax Identification Number of Joint Tenant) Type of Ownership (check as appropriate): ___ Individual ___ Joint tenants with rights of survivorship ___ Tenants in common ___ Community property ___ Trust ___ Other (indicate): |X| Corporation Total Dollar Amount of Subscription: ____________________. THIS INVESTMENT MAY BE SUBJECT TO ADDITIONAL STATE REQUIREMENTS AS SET FORTH BELOW. INVESTORS SHOULD REFER TO THOSE REQUIREMENTS BEFORE EXECUTING THIS AGREEMENT. -13- Subject to the terms and conditions of this Subscription Agreement, the foregoing subscription is approved and accepted as of the 22nd day of January, 2002. GLYCOGENESYS, INC. By: /s/ John W. Burns -------------------------------------- John W. Burns, Senior Vice President and CFO -14- EX-6 4 gylco13dexa-2.txt WARRANT TO PURCHASE 447,904 Form of Warrant - Exhibit A THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY APPLICABLE STATE SECURITIES LAW, AND MAY NOT BE TRANSFERRED EXCEPT (i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (ii) UPON FIRST FURNISHING TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSFER IS NOT IN VIOLATION OF THE REGISTRATION REQUIREMENTS OF THE ACT OR ANY APPLICABLE STATE SECURITIES LAW. Warrant No. 447,904 Shares COMMON STOCK WARRANT For the Purchase of Shares of Common Stock of GlycoGenesys, Inc. ---------- THIS CERTIFIES THAT, for value received, Elan International Services, Ltd. (the "Holder") or its registered assigns, is entitled to subscribe for and purchase from GlycoGenesys, Inc., a Nevada corporation (the "Company"), 447,904 fully paid and non-assessable shares of the Company's Common Stock, par value $.01 per share ("Common Stock"), subject to the terms and conditions set forth herein at a purchase price of $2.15 (the "Warrant Purchase Price"). This Warrant is exercisable at any time from the date hereof to and including the date five (5) years from the date hereof. 1. Vesting. The shares of this Warrant shall be immediately exercisable. 2. Exercise of Warrant. The rights represented by this Warrant may be exercised by the holder hereof, in whole or in part (but not as to a fractional share of Common Stock), by the surrender of this Warrant (with the notice of exercise form attached hereto as Exhibit 1 (the "Notice of Exercise") duly executed) at the principal office of the Company to the attention of the Chief Financial Officer (which shall be delivered to the Company via nationally recognized overnight delivery service) and upon payment to the Company, or for the account of the Company, by cash or certified check or wire transfer, of the purchase price for such shares in the amount equal to the product of (a) the Warrant Purchase Price, times (b) the number of shares of Common Stock being purchased. In the event, the Company fails to register the shares issuable upon exercise of this Warrant with the Securities and Exchange Commission within one year of the date hereof, in addition to exercise pursuant to the provisions of the preceding sentence, the Holder may exercise this Warrant, in whole or in part, by the surrender of this Warrant (or a portion hereof) in accordance with the terms hereof but without payment in cash (a "Cashless Exercise"). The number of shares of Common Stock issuable in respect of a Cashless Exercise shall be computed using the following formula: X = Y (A-B) ----- A Where: X = the number of shares of Common Stock to be issued to the Holder in respect of a Cashless Exercise Y = the number of shares of Common Stock purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being canceled in connection with such Cashless Exercise (at the date of such calculation) A = the Fair Market Value (as defined below) of one share of the Company's Common Stock (at the date of such calculation) B = Warrant Price (as adjusted to the date of such calculation) The "Fair Market Value" of one share of Common Stock shall be determined by the Company's Board of Directors in good faith and certified in a Board resolution (taking into account the most recently or concurrently completed arm's length transaction between the Company and an unaffiliated third party the closing of which occurs within the six months preceding or on the date of such calculation, if any) and shall be reasonably agreed to by the Holder (provided, that in the event the Company and the Holder do not agree on the Fair Market Value, the parties shall jointly appoint an independent third party to determine the Fair Market Value); provided, however, that in the event the Common Stock is traded on a securities exchange, the Nasdaq National Market or the Nasdaq SmallCap Market, the Fair Market Value shall be deemed to be the average of the closing sale prices for the Common Stock over the five- or twenty-trading day period (or such shorter period for which closing sale prices are available if the Common Stock commenced trading during such period) ending one trading day prior to the date of exercise of this Warrant, whichever is higher. 3. Delivery of Stock Certificates on Exercise. As soon as practicable after the exercise of this Warrant in accordance with Section 1 hereof and in any event within 10 business days thereafter, the Company at its expense will cause to be issued in the name of and delivered to the holder hereof, or as such holder (upon payment by such holder of any applicable transfer taxes) may direct, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled on such exercise, and, unless this Warrant has expired or has been exercised in full, a new Warrant representing the number of shares with respect to which this Warrant shall not then have been exercised shall also be issued to the holder hereof at such time. The Holder of this Warrant acknowledges that the certificate or certificates representing the shares of stock issuable upon the exercise of this Warrant shall be stamped or otherwise imprinted with a legend substantially in the following form: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state. The securities have been acquired for investment and may not be sold, offered for sale or transferred -2- in the absence of an effective registration under the Securities Act of 1933, as amended, and any applicable state securities laws or an opinion of counsel satisfactory in form and substance to counsel for the Company that the transaction shall not result in a violation of state or federal securities laws." Upon the request of a holder of a certificate representing shares of Common Stock purchased upon exercise of this Warrant, the Company shall remove the foregoing legend from the certificate or issue to such holder a new certificate therefor free of any transfer legend, if, with such request, the Company shall have received an opinion of counsel reasonably satisfactory to the Company to the effect that such legend may be removed from such certificate. If the Company fails to issue a certificate within ten (10) business days following the exercise of this Warrant, and if after such tenth (10th) business day such holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such holder of the shares that the holder anticipated receiving from the Company (a "Buy-In"), then the Company shall (i) promptly honor its obligation to issue to such holder a certificate and (ii) pay to such holder in an amount equal to the excess (if any) of the total purchase price (including brokerage commissions, if any) of the shares of Common Stock so purchased over the product of (A) such number of shares of Common Stock, times (B) the closing sale price of the Common Stock on the date of the event giving rise to the Company's obligation to deliver such certificate, in shares of Common Stock valued at the closing sale price of the Common Stock on the date of the event giving rise to the Company's obligation to deliver such certificate. Such payment in shares of Common Stock shall be the sole remedy to the holder for the Company's failure to issue a certificate within ten (10) business days pursuant to this Section, provided, that the total number of shares payable pursuant to this Section shall not exceed the number of shares of Common Stock issuable pursuant to this Warrant. 4. Shares to be Issued, Reservation of Shares; Holders of Record. (a) Shares to be Issued. The Company covenants and agrees that all shares which may be issued upon the exercise of the rights represented by this Warrant will, upon issuance, be validly authorized, issued and outstanding, fully paid and non-assessable, and free from all taxes, liens and charges with respect to the issue thereof. (b) Reservation of Common Stock. The Company covenants and agrees that, during the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized and reserved a sufficient number of shares of its Common Stock to provide for the exercise of the rights represented by this Warrant. (c) Holders of Record. Each person or entity in whose name any certificate for shares of Common Stock is issued upon the exercise of this Warrant in accordance with its terms shall for all purposes be deemed to have become the holder of record of the shares of Common Stock represented thereby on, and such certificate shall be dated, the date upon which the Notice of Exercise was duly executed and payment of the aggregate Warrant Purchase Price was made pursuant to Section 2 hereof. Prior to the exercise of this Warrant, the holder hereof shall not be entitled to any rights of a stockholder of the Company with respect to the shares of Common -3- Stock for which this Warrant shall be exercisable, including, without limitation, the right to vote, to receive dividends or other distributions or to exercise any preemptive rights and shall not be entitled to receive any notice of any proceedings of the Company, except as provided herein. 5. Adjustment of Warrant Purchase Price. The Warrant Purchase Price in effect from time to time shall be subject to adjustment as follows: (a) Adjustment for Common Stock Dividends; Subdivisions and Combinations. Upon the issuance of additional shares of Common Stock as a dividend or other distribution on outstanding Common Stock, the subdivision of outstanding shares of Common Stock into a greater number of shares of Common Stock, or the combination of outstanding shares of Common Stock into a smaller number of shares of the Common Stock, the number of shares of Common Stock purchasable hereunder shall be proportionately adjusted to the nearest whole share, and the Warrant Purchase Price shall be proportionately decreased in the case of a dividend, split or subdivision and proportionately increased in the case of a combination. An adjustment made pursuant to this Section 5(a) shall be given effect, upon payment of such a dividend or distribution, as of the record date for the determination of stockholders entitled to receive such dividend or distribution (on a retroactive basis) and in the case of a subdivision or combination shall become effective immediately as of the effective date thereof. (b) Adjustments for Capital Reorganizations. If any capital reorganization or reclassification of the capital stock of the Company shall be effected, whether by merger, consolidation, sale of assets or otherwise (other than a subdivision or combination of shares or stock dividend as provided for above) (in each case, a "Reorganization"), then, as a condition of such Reorganization, lawful and adequate provision shall be made whereby the holder hereof shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified in this Warrant, in lieu of shares of Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented hereby, those shares of stock, securities or assets which would have been issued or payable with respect to or in exchange for the Common Stock issuable upon exercise of this Warrant had this Warrant been exercised immediately prior to the record date (or the effective date, as the case may be) for such Reorganization. Upon any Reorganization this Warrant shall continue in full force and effect and the terms hereof shall be applicable to the shares and other securities and property receivable on the exercise of this Warrant after the consummation of such Reorganization and shall be binding upon the issuer of any such stock or other securities, including the person acquiring all or substantially all of the properties or assets of the Company, whether or not such person shall have expressly assumed the terms of this Warrant. (c) Other Adjustments. In the event the Company shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Company other than shares of Common Stock, then and in each such event lawful and adequate provision shall be made so that the holders of Warrants shall receive upon exercise thereof in addition to the number of shares of Common Stock receivable thereupon, the number of securities of the Company which such holders would have received had such Warrants been exercised on the date of such event and had such holders thereafter, during the period from the date of such event to and including the date of exercise, retained such securities receivable by such holders as aforesaid during such period, giving -4- application to all adjustments called for during such period under this Section 5 as applied to such distributed securities. (d) Notices of Adjustments. In each case of an adjustment pursuant to this Section 5, the Company, at its expense, will furnish the holder of this Warrant with a certificate, prepared by the chief financial officer of the Company, showing such adjustment or readjustment, and the number of shares of Common Stock or other securities and the amount, if any, of other property that at the time would be received upon the exercise of this Warrant. (e) Notices of Record Date. In the event (i) the Company establishes a record date to determine the holders of any class of securities who are entitled to receive any dividend or other distribution or (ii) there occurs any capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company, any merger or consolidation of the Company, any acquisition of the Company, any transfer of all or substantially all of the assets of the Company to any other Company entity or person, any sale of a majority of the voting securities of the Company in one or a series of related transactions or any voluntary or involuntary dissolution, liquidation or winding up of the Company, the Company shall give to the holder hereof a notice specifying (a) the date of such record date for the purpose of such dividend or distribution and a description of such dividend or distribution, (b) the date on which any such reorganization, reclassification, transfer, consolidation, merger, acquisition, sale, dissolution, liquidation or winding up is expected to become effective, and (c) the time, if any, that is to be fixed, as to when the holders of record of Common Stock (or other securities) shall be entitled to exchange their shares of Common Stock (or other securities) for securities or other property deliverable upon such reorganization, reclassification, transfer, consolidation, merger, acquisition, sale, dissolution, liquidation or winding up. Such written notice shall be given to the holder of this Warrant at least fifteen (15) days prior to the date specified in such notice on which any such action is to be taken. 6. Holder Representations and Warranties. The Holder of this Warrant understands the risks of investing in emerging companies such as the Company and can afford a loss of its entire investment. The Holder is acquiring the Warrant for investment and not with the view to, or for resale in connection with, any distribution thereof. The Holder understands that the Warrant and the shares of Common Stock issuable upon exercise thereof have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), or any applicable state securities ("blue sky") laws, by reason of specified exemptions from the registration provisions of the Securities Act and such laws. The Holder acknowledges that the Warrant and the shares of Common Stock issuable upon exercise thereof must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Holder hereof has been advised or is aware of the provisions of Rule 144 promulgated under the Securities Act, which permits the resale of shares purchased in a private placement subject to the satisfaction of certain conditions and that such Rule may not be available for resale of the shares. 7. Transfer. Subject to compliance with applicable securities laws, this Warrant and all rights hereunder are transferable, in whole or in part, at the offices referred to in paragraph 2 hereof by the holder in person or by a duly authorized attorney, upon surrender of this Warrant properly endorsed. Each taker and holder of this Warrant, by taking or holding the same, -5- consents and agrees that this Warrant, when endorsed in blank, shall be deemed negotiable and that when this Warrant is so endorsed, the holder hereof may be treated by the Company and all other persons dealing with this Warrant as the absolute owner hereof for any purposes and as the person entitled to exercise the rights represented by this Warrant or to the transfer hereof on the books of the Company, any notice to the contrary notwithstanding; but until each transfer on such books, the Company may treat the registered holder hereof as the owner hereof for all purposes. 8. Exchange. Subject to compliance with applicable securities laws, this Warrant is exchangeable, upon the surrender hereof by the holder hereof at such offices for new Warrants of like tenor representing in the aggregate the right to subscribe for and purchase the number of shares which may be subscribed for and purchased hereunder, each of such new Warrants to represent the right to subscribe for and purchase such number of shares as shall be designated by such holder hereof at the time of such surrender. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction, upon delivery of a bond of indemnity satisfactory to the Company, or, in the case of any such mutilation, upon surrender or cancellation of this Warrant, the Company will issue to the holder hereof a new warrant of like tenor, in lieu of this Warrant, representing the right to subscribe for and purchase the number of shares which may be subscribed for and purchased hereunder. 9. Registration Rights. The Company shall file a registration statement covering the shares of Common Stock issuable upon exercise of this Warrant in accordance with the terms of Section 9 of the subscription agreement with the Company pursuant to which this Warrant was purchased. 10. No Impairment. The Company will not, by amendment of its Charter or by any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, 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 Holder of this Warrant against impairment. 11. Remedies. The Company stipulates that the remedies at law of the Holder of this Warrant in the event of any default or threatened default by the Company in the performance of or compliance with any of the terms of this Warrant are not adequate and may be enforced by a decree for the specific performance of any agreement contained herein or by an injunction against a violation of any of the terms hereof or otherwise. 12. No Rights or Liabilities as a Stockholder. This Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company. No provision of this Warrant, in the absence of affirmative action by the holder hereof to purchase Common Stock, and no mere enumeration herein of the rights or privileges of the holder hereof, shall give rise to any liability of such holder for the Warrant Purchase Price or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company. -6- 13. Miscellaneous. The provisions of this Warrant may be amended or waived by an instrument in writing signed by the party against which enforcement of such amendment or waiver is sought. This Warrant shall be construed and enforced in accordance with and governed by the laws of The Commonwealth of Massachusetts. The headings in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any of the terms hereof. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. -7- IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by a duly authorized officer as of January 21, 2002. GLYCOGENESYS, INC. By: /s/ Bradley Carver ----------------------------------- Bradley Carver, President -8- EXHIBIT 1 NOTICE OF EXERCISE (To be Executed by the Registered Holder in Order to Exercise the Warrant) 1. The undersigned hereby irrevocably elects to purchase _____________ (________) shares of the Common Stock, $.01 par value per share, GlycoGenesys, Inc., covered by Warrant No.___ and according to the terms thereof, and herewith makes payment of the Warrant Purchase Price of such shares in full. 2. Check one: _____ Such payment is hereby made in the amount of by wire transfer or by certified or bank check; or _____ Such payment is hereby made by surrender of this Warrant in connection with a Cashless Exercise. 3. Please issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned or in such other name as is specified below: _____________________ (Name) _____________________ (Address) ------------------------------ Signature Dated: ________________ -9- EX-7 5 glyco13dexa1.txt WARRANT TO PURCHASE 149,301 Form of Warrant - Exhibit A THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY APPLICABLE STATE SECURITIES LAW, AND MAY NOT BE TRANSFERRED EXCEPT (i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (ii) UPON FIRST FURNISHING TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSFER IS NOT IN VIOLATION OF THE REGISTRATION REQUIREMENTS OF THE ACT OR ANY APPLICABLE STATE SECURITIES LAW. Warrant No. 149,301 Shares COMMON STOCK WARRANT For the Purchase of Shares of Common Stock of GlycoGenesys, Inc. ---------- THIS CERTIFIES THAT, for value received, Elan International Services, Ltd. (the "Holder") or its registered assigns, is entitled to subscribe for and purchase from GlycoGenesys, Inc., a Nevada corporation (the "Company"), 149,301 fully paid and non-assessable shares of the Company's Common Stock, par value $.01 per share ("Common Stock"), subject to the terms and conditions set forth herein at a purchase price of $0.01 (the "Warrant Purchase Price"). This Warrant is exercisable at any time from the date hereof to and including the date five (5) years from the date hereof. 1. Vesting. The shares of this Warrant shall be immediately exercisable. 2. Exercise of Warrant. The rights represented by this Warrant may be exercised by the holder hereof, in whole or in part (but not as to a fractional share of Common Stock), by the surrender of this Warrant (with the notice of exercise form attached hereto as Exhibit 1 (the "Notice of Exercise") duly executed) at the principal office of the Company to the attention of the Chief Financial Officer (which shall be delivered to the Company via nationally recognized overnight delivery service) and upon payment to the Company, or for the account of the Company, by cash or certified check or wire transfer, of the purchase price for such shares in the amount equal to the product of (a) the Warrant Purchase Price, times (b) the number of shares of Common Stock being purchased. In the event, the Company fails to register the shares issuable upon exercise of this Warrant with the Securities and Exchange Commission within one year of the date hereof, in addition to exercise pursuant to the provisions of the preceding sentence, the Holder may exercise this Warrant, in whole or in part, by the surrender of this Warrant (or a portion hereof) in accordance with the terms hereof but without payment in cash (a "Cashless Exercise"). The number of shares of Common Stock issuable in respect of a Cashless Exercise shall be computed using the following formula: X = Y (A-B) ----- A Where: X = the number of shares of Common Stock to be issued to the Holder in respect of a Cashless Exercise Y = the number of shares of Common Stock purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being canceled in connection with such Cashless Exercise (at the date of such calculation) A = the Fair Market Value (as defined below) of one share of the Company's Common Stock (at the date of such calculation) B = Warrant Price (as adjusted to the date of such calculation) The "Fair Market Value" of one share of Common Stock shall be determined by the Company's Board of Directors in good faith and certified in a Board resolution (taking into account the most recently or concurrently completed arm's length transaction between the Company and an unaffiliated third party the closing of which occurs within the six months preceding or on the date of such calculation, if any) and shall be reasonably agreed to by the Holder (provided, that in the event the Company and the Holder do not agree on the Fair Market Value, the parties shall jointly appoint an independent third party to determine the Fair Market Value); provided, however, that in the event the Common Stock is traded on a securities exchange, the Nasdaq National Market or the Nasdaq SmallCap Market, the Fair Market Value shall be deemed to be the average of the closing sale prices for the Common Stock over the five- or twenty-trading day period (or such shorter period for which closing sale prices are available if the Common Stock commenced trading during such period) ending one trading day prior to the date of exercise of this Warrant, whichever is higher. 3. Delivery of Stock Certificates on Exercise. As soon as practicable after the exercise of this Warrant in accordance with Section 1 hereof and in any event within 10 business days thereafter, the Company at its expense will cause to be issued in the name of and delivered to the holder hereof, or as such holder (upon payment by such holder of any applicable transfer taxes) may direct, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled on such exercise, and, unless this Warrant has expired or has been exercised in full, a new Warrant representing the number of shares with respect to which this Warrant shall not then have been exercised shall also be issued to the holder hereof at such time. The Holder of this Warrant acknowledges that the certificate or certificates representing the shares of stock issuable upon the exercise of this Warrant shall be stamped or otherwise imprinted with a legend substantially in the following form: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state. The securities have been acquired for investment and may not be sold, offered for sale or transferred -2- in the absence of an effective registration under the Securities Act of 1933, as amended, and any applicable state securities laws or an opinion of counsel satisfactory in form and substance to counsel for the Company that the transaction shall not result in a violation of state or federal securities laws." Upon the request of a holder of a certificate representing shares of Common Stock purchased upon exercise of this Warrant, the Company shall remove the foregoing legend from the certificate or issue to such holder a new certificate therefor free of any transfer legend, if, with such request, the Company shall have received an opinion of counsel reasonably satisfactory to the Company to the effect that such legend may be removed from such certificate. If the Company fails to issue a certificate within ten (10) business days following the exercise of this Warrant, and if after such tenth (10th) business day such holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such holder of the shares that the holder anticipated receiving from the Company (a "Buy-In"), then the Company shall (i) promptly honor its obligation to issue to such holder a certificate and (ii) pay to such holder in an amount equal to the excess (if any) of the total purchase price (including brokerage commissions, if any) of the shares of Common Stock so purchased over the product of (A) such number of shares of Common Stock, times (B) the closing sale price of the Common Stock on the date of the event giving rise to the Company's obligation to deliver such certificate, in shares of Common Stock valued at the closing sale price of the Common Stock on the date of the event giving rise to the Company's obligation to deliver such certificate. Such payment in shares of Common Stock shall be the sole remedy to the holder for the Company's failure to issue a certificate within ten (10) business days pursuant to this Section, provided, that the total number of shares payable pursuant to this Section shall not exceed the number of shares of Common Stock issuable pursuant to this Warrant. 4. Shares to be Issued, Reservation of Shares; Holders of Record. (a) Shares to be Issued. The Company covenants and agrees that all shares which may be issued upon the exercise of the rights represented by this Warrant will, upon issuance, be validly authorized, issued and outstanding, fully paid and non-assessable, and free from all taxes, liens and charges with respect to the issue thereof. (b) Reservation of Common Stock. The Company covenants and agrees that, during the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized and reserved a sufficient number of shares of its Common Stock to provide for the exercise of the rights represented by this Warrant. (c) Holders of Record. Each person or entity in whose name any certificate for shares of Common Stock is issued upon the exercise of this Warrant in accordance with its terms shall for all purposes be deemed to have become the holder of record of the shares of Common Stock represented thereby on, and such certificate shall be dated, the date upon which the Notice of Exercise was duly executed and payment of the aggregate Warrant Purchase Price was made pursuant to Section 2 hereof. Prior to the exercise of this Warrant, the holder hereof shall not be entitled to any rights of a stockholder of the Company with respect to the shares of Common -3- Stock for which this Warrant shall be exercisable, including, without limitation, the right to vote, to receive dividends or other distributions or to exercise any preemptive rights and shall not be entitled to receive any notice of any proceedings of the Company, except as provided herein. 5. Adjustment of Warrant Purchase Price. The Warrant Purchase Price in effect from time to time shall be subject to adjustment as follows: (a) Adjustment for Common Stock Dividends; Subdivisions and Combinations. Upon the issuance of additional shares of Common Stock as a dividend or other distribution on outstanding Common Stock, the subdivision of outstanding shares of Common Stock into a greater number of shares of Common Stock, or the combination of outstanding shares of Common Stock into a smaller number of shares of the Common Stock, the number of shares of Common Stock purchasable hereunder shall be proportionately adjusted to the nearest whole share, and the Warrant Purchase Price shall be proportionately decreased in the case of a dividend, split or subdivision and proportionately increased in the case of a combination. An adjustment made pursuant to this Section 5(a) shall be given effect, upon payment of such a dividend or distribution, as of the record date for the determination of stockholders entitled to receive such dividend or distribution (on a retroactive basis) and in the case of a subdivision or combination shall become effective immediately as of the effective date thereof. (b) Adjustments for Capital Reorganizations. If any capital reorganization or reclassification of the capital stock of the Company shall be effected, whether by merger, consolidation, sale of assets or otherwise (other than a subdivision or combination of shares or stock dividend as provided for above) (in each case, a "Reorganization"), then, as a condition of such Reorganization, lawful and adequate provision shall be made whereby the holder hereof shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified in this Warrant, in lieu of shares of Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented hereby, those shares of stock, securities or assets which would have been issued or payable with respect to or in exchange for the Common Stock issuable upon exercise of this Warrant had this Warrant been exercised immediately prior to the record date (or the effective date, as the case may be) for such Reorganization. Upon any Reorganization this Warrant shall continue in full force and effect and the terms hereof shall be applicable to the shares and other securities and property receivable on the exercise of this Warrant after the consummation of such Reorganization and shall be binding upon the issuer of any such stock or other securities, including the person acquiring all or substantially all of the properties or assets of the Company, whether or not such person shall have expressly assumed the terms of this Warrant. (c) Other Adjustments. In the event the Company shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Company other than shares of Common Stock, then and in each such event lawful and adequate provision shall be made so that the holders of Warrants shall receive upon exercise thereof in addition to the number of shares of Common Stock receivable thereupon, the number of securities of the Company which such holders would have received had such Warrants been exercised on the date of such event and had such holders thereafter, during the period from the date of such event to and including the date of exercise, retained such securities receivable by such holders as aforesaid during such period, giving -4- application to all adjustments called for during such period under this Section 5 as applied to such distributed securities. (d) Notices of Adjustments. In each case of an adjustment pursuant to this Section 5, the Company, at its expense, will furnish the holder of this Warrant with a certificate, prepared by the chief financial officer of the Company, showing such adjustment or readjustment, and the number of shares of Common Stock or other securities and the amount, if any, of other property that at the time would be received upon the exercise of this Warrant. (e) Notices of Record Date. In the event (i) the Company establishes a record date to determine the holders of any class of securities who are entitled to receive any dividend or other distribution or (ii) there occurs any capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company, any merger or consolidation of the Company, any acquisition of the Company, any transfer of all or substantially all of the assets of the Company to any other Company entity or person, any sale of a majority of the voting securities of the Company in one or a series of related transactions or any voluntary or involuntary dissolution, liquidation or winding up of the Company, the Company shall give to the holder hereof a notice specifying (a) the date of such record date for the purpose of such dividend or distribution and a description of such dividend or distribution, (b) the date on which any such reorganization, reclassification, transfer, consolidation, merger, acquisition, sale, dissolution, liquidation or winding up is expected to become effective, and (c) the time, if any, that is to be fixed, as to when the holders of record of Common Stock (or other securities) shall be entitled to exchange their shares of Common Stock (or other securities) for securities or other property deliverable upon such reorganization, reclassification, transfer, consolidation, merger, acquisition, sale, dissolution, liquidation or winding up. Such written notice shall be given to the holder of this Warrant at least fifteen (15) days prior to the date specified in such notice on which any such action is to be taken. 6. Holder Representations and Warranties. The Holder of this Warrant understands the risks of investing in emerging companies such as the Company and can afford a loss of its entire investment. The Holder is acquiring the Warrant for investment and not with the view to, or for resale in connection with, any distribution thereof. The Holder understands that the Warrant and the shares of Common Stock issuable upon exercise thereof have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), or any applicable state securities ("blue sky") laws, by reason of specified exemptions from the registration provisions of the Securities Act and such laws. The Holder acknowledges that the Warrant and the shares of Common Stock issuable upon exercise thereof must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Holder hereof has been advised or is aware of the provisions of Rule 144 promulgated under the Securities Act, which permits the resale of shares purchased in a private placement subject to the satisfaction of certain conditions and that such Rule may not be available for resale of the shares. 7. Transfer. Subject to compliance with applicable securities laws, this Warrant and all rights hereunder are transferable, in whole or in part, at the offices referred to in paragraph 2 hereof by the holder in person or by a duly authorized attorney, upon surrender of this Warrant properly endorsed. Each taker and holder of this Warrant, by taking or holding the same, -5- consents and agrees that this Warrant, when endorsed in blank, shall be deemed negotiable and that when this Warrant is so endorsed, the holder hereof may be treated by the Company and all other persons dealing with this Warrant as the absolute owner hereof for any purposes and as the person entitled to exercise the rights represented by this Warrant or to the transfer hereof on the books of the Company, any notice to the contrary notwithstanding; but until each transfer on such books, the Company may treat the registered holder hereof as the owner hereof for all purposes. 8. Exchange. Subject to compliance with applicable securities laws, this Warrant is exchangeable, upon the surrender hereof by the holder hereof at such offices for new Warrants of like tenor representing in the aggregate the right to subscribe for and purchase the number of shares which may be subscribed for and purchased hereunder, each of such new Warrants to represent the right to subscribe for and purchase such number of shares as shall be designated by such holder hereof at the time of such surrender. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction, upon delivery of a bond of indemnity satisfactory to the Company, or, in the case of any such mutilation, upon surrender or cancellation of this Warrant, the Company will issue to the holder hereof a new warrant of like tenor, in lieu of this Warrant, representing the right to subscribe for and purchase the number of shares which may be subscribed for and purchased hereunder. 9. Registration Rights. The Company shall file a registration statement covering the shares of Common Stock issuable upon exercise of this Warrant in accordance with the terms of Section 9 of the subscription agreement with the Company pursuant to which this Warrant was purchased. 10. No Impairment. The Company will not, by amendment of its Charter or by any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, 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 Holder of this Warrant against impairment. 11. Remedies. The Company stipulates that the remedies at law of the Holder of this Warrant in the event of any default or threatened default by the Company in the performance of or compliance with any of the terms of this Warrant are not adequate and may be enforced by a decree for the specific performance of any agreement contained herein or by an injunction against a violation of any of the terms hereof or otherwise. 12. No Rights or Liabilities as a Stockholder. This Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company. No provision of this Warrant, in the absence of affirmative action by the holder hereof to purchase Common Stock, and no mere enumeration herein of the rights or privileges of the holder hereof, shall give rise to any liability of such holder for the Warrant Purchase Price or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company. -6- 13. Miscellaneous. The provisions of this Warrant may be amended or waived by an instrument in writing signed by the party against which enforcement of such amendment or waiver is sought. This Warrant shall be construed and enforced in accordance with and governed by the laws of The Commonwealth of Massachusetts. The headings in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any of the terms hereof. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. -7- IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by a duly authorized officer as of January 21, 2002. GLYCOGENESYS, INC. By: /s/ Bradley Carver --------------------------- Bradley Carver, President -8- EXHIBIT 1 NOTICE OF EXERCISE (To be Executed by the Registered Holder in Order to Exercise the Warrant) 1. The undersigned hereby irrevocably elects to purchase _____________ (________) shares of the Common Stock, $.01 par value per share, GlycoGenesys, Inc., covered by Warrant No.___ and according to the terms thereof, and herewith makes payment of the Warrant Purchase Price of such shares in full. 2. Check one: _____ Such payment is hereby made in the amount of by wire transfer or by certified or bank check; or _____ Such payment is hereby made by surrender of this Warrant in connection with a Cashless Exercise. 3. Please issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned or in such other name as is specified below: ____________________________ (Name) ____________________________ (Address) ________________________________ Signature Dated: _____________________ -9- EX-9 6 glyco13dexagrandamend.txt AGREEMENT AND AMENDMENT AGREEMENT AND AMENDMENT (the "Agreement"), effective as of July 10, 2001, by and among GlycoGenesys, Inc., a Nevada corporation (the "Company") and Elan International Services, Ltd. ("EIS"), a Bermuda exempted limited liability company. RECITALS: WHEREAS, the Company and EIS have entered into a Securities Purchase Agreement dated as of June 22, 2001 (the "Purchase Agreement"), pursuant to which the Company issued and sold to EIS, and EIS purchased from the Company, (i) 4,944.44 shares of the Company's Series A Preferred Stock, par value U.S.$0.01 per share (the "Series A Preferred Stock"), (ii) a warrant (the "Original Warrant") to purchase up to 381,679 shares of the Company's common stock, par value U.S.$0.01 per share (the "Common Stock"), (iii) 1,116.79 shares of Series C Preferred Stock, par value U.S. $0.01 per share (the "Series Preferred Stock") and (iv) 2,700,000 shares of Common Stock. The Company further has agreed to issue and sell to EIS and EIS has agreed to purchase from the Company, each subject to certain conditions, shares of Series B Preferred Stock, par value U.S. $0.01 per share (the "Series B Preferred Stock"), amounts in respect of which shall be sold from time to time in an aggregate amount of up to U.S.$9,612,000 in accordance with the terms and subject to the conditions contained in the Purchase Agreement. The rights, preferences and privileges of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock are as set forth in the Company's Certificate of Designations, Preferences and Rights, filed with the Secretary of State of the State of Nevada on July 9, 2001 (the "Certificate of Designations"); WHEREAS, the parties desire to amend the Certificate of Designations to establish a minimum price at which the Series A Preferred Stock may be redeemed for shares of Common Stock on the terms and conditions set forth therein; WHEREAS, the parties desire to amend the Certificate of Designations to establish a minimum price at which the Series A Preferred Stock and Series B Preferred Stock may be paid in shares of Common Stock in the event of certain Liquidations; and WHEREAS, the parties desire to amend the Original Warrant to modify a mechanical anti-dilution provision. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained herein, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Amendment to the Certificate of Designations. The parties agree that the Certificate of Designations shall be amended, by the filing of an amendment to the Certificate of Designations with the Secretary of State of the State of Nevada, as follows: 1.1 Section 6(a) of Article I of the Certificate of Designations shall be amended and restated in its entirety to read as follows: "(a) On July 10, 2007, if any shares of the Series A Preferred Stock shall be outstanding, the Corporation shall redeem all outstanding shares of the Series A Preferred Stock, at a redemption price per share equal to the aggregate Series A Liquidation Preference, either (i) to the extent the Corporation shall have funds legally available for such payment, in cash, or (ii) by the issuance of shares of Common Stock with an aggregate Fair Market Value (as defined below) equal to such redemption price, in each case, together with any accrued and unpaid dividends thereon to the date fixed for redemption. For the purposes of this Section 6, and Section 4(e)(i) of this Article I and Sections 4(e)(i) of Article II, the "Fair Market Value" of one share of Common Stock shall be determined by the Board of Directors in good faith and certified in a board resolution (taking into account the most recently or concurrently completed arm's length transaction between the Corporation and an unaffiliated third party the closing of which occurs within the six months preceding or on the date of such calculation, if any) and shall be reasonably agreed to by a majority of the holders of the Series A Preferred Stock or, as applicable, the Series B Preferred Stock; provided, that in the event the Corporation and a majority of holders of the Series A Preferred Stock or, as applicable, the Series B Preferred Stock do not agree on the Fair Market Value, the parties shall jointly appoint an independent third party appraiser to determine the Fair Market Value pursuant to the procedure set for in Section 3(d) of this Article I; provided further, that in the event the Common Stock is traded on a securities exchange, the Nasdaq National Market or the Nasdaq SmallCap Market, the Fair Market Value shall be deemed to be the average of the closing sale prices for the Common Stock over the 30-day trading period (or such shorter period for which closing sale prices are available if the Common Stock commenced trading during such period) ending three (3) trading days prior to, in the case of this Section 6, the date of notice of exercise of redemption pursuant to this Section 6, in the case of Section 4(e)(i) of this Article I or, as applicable, Section 4(e)(i) of Article II, the date of the sale of Additional Shares that results in an adjustment to the Series A Conversion Price pursuant to Section 4(e)(i) of this Article I or, as applicable, the Series B Conversion Price (as defined in Article II) pursuant to Section 4(e)(i) of Article II; provided further, that for the purpose of this Section 6 the Fair Market Value shall be deemed to be at least $0.50 per share (the "Share Floor Price"). The Share Price Floor shall be proportionately adjusted for any stock split, stock combination or similar event affecting the Common Stock." 1.2 Section 3(a) of Article I of the Certificate of Designations shall be amended and restated in its entirety to read as follows: "(a) Liquidation Events. The occurrence of any of the following events shall be deemed a "Liquidation": (i) any liquidation, dissolution, or winding-up of the affairs of the Corporation; (ii) any consolidation or merger of the Corporation with or into any other corporation or other entity or person, or any other corporate reorganization, in which the stockholders of the Corporation immediately prior to such consolidation, merger or reorganization, own less than 50% of the outstanding voting securities of the surviving or resulting entity immediately after such consolidation, merger or reorganization (a "Merger Event"); (iii) any transaction or series of related transactions approved by the Board of Directors of the Corporation in which securities of the Corporation representing 50% or more of the combined voting power of the Corporation's then outstanding voting securities are acquired by a person, entity or group of related persons or entities, excluding any consolidation or merger effected exclusively -2- to change the domicile of the Corporation; or (iv) any sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Corporation." 1.3 Section 3 of Article III of the Certificate of Designations shall be amended and restated in its entirety to read as follows: "3. In the event of a Liquidation described in clause (i) or clause (iv) of Section 3(a) of Article I, whether voluntary or involuntary, the holders of Series C Preferred Stock shall have the right to receive, pari passu with the holders of the Common Stock and subject to the rights of the holders of any other senior class or series of capital stock of the Corporation, the assets of the Corporation in proportion to the number of shares of Common Stock held by each such holder (assuming, for such purposes, the holders of Series C Preferred Stock are deemed to hold that number of shares of Common Stock equal to the number of shares of Common Stock into which such shares of Series C Preferred Stock are then convertible)." 1.4 Section 3(b)(iii) of Article I of the Certificate of Designations shall be amended and restated in its entirety to read as follows: "(iii) After the distributions described in clause (b)(i) above have been paid, subject to the rights of any other class or series of capital stock of the Corporation that may from time to time come into existence, in the event of a Liquidation described in clause (i) or clause (iv) of Section 3(a) of this Article I, the remaining assets of the Corporation available for distribution to stockholders shall be distributed among the holders of Common Stock, the holders of the Series A Preferred Stock, and the holders of any other class or series of capital stock of the Corporation entitled to share in such distribution pro rata based on the number of shares of Common Stock held by each, assuming conversion of any other class or series of capital stock of the Corporation convertible into shares of Common Stock." 1.5 Section 3(a)(iii) of Article II of the Certificate of Designations shall be amended and restated in its entirety to read as follows: "(iii) After the distributions described in clause (a)(i) above have been paid, subject to the rights of any other class or series of capital stock of the Corporation that may from time to time come into existence, in the event of a Liquidation described in clause (i) or clause (iv) of Section 3(a) of Article I, the remaining assets of the Corporation available for distribution to stockholders shall be distributed among the holders of Common Stock, the holders of the Series B Preferred Stock, and the holders of any other class or series of capital stock of the Corporation entitled to share in such distribution pro rata based on the number of shares of Common Stock held by each, assuming conversion of any other class or series of capital stock of the Corporation convertible into shares of Common Stock." 1.6 1.6 Section 4(a)(ii) of the Original Warrant shall be amended and restated in its entirety to read as follows: -3- "(ii) Adjustment for Common Stock Dividends and Distributions. If, at any time after the Original Issue Date, the Company makes, or fixes a record date for the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in additional shares of Common Stock, in each such event (x) the Warrant Price that is then in effect shall be decreased as of the time of such issuance or, in the event such record date is fixed, as of the close of business on such record date, by multiplying the Warrant Price then in effect by a fraction (I) the numerator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and (II) the denominator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution (the "Adjustment Factor") and (y) the number of shares of Common Stock issuable upon the exercise of this Warrant (the "Number Issuable") shall be increased as of the time of such issuance or, in the event such record date is fixed, as of the close of business on such record date, by dividing the Number Issuable by the Adjustment Factor; provided, however, that if such record date is fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Warrant Price and Number Issuable shall be recomputed accordingly as of the close of business on such record date and thereafter the Warrant Price and the Number Issuable shall be adjusted pursuant to this Section 4(a)(ii) to reflect the actual payment of such dividend or distribution." 2. Additional Warrant. If the Fair Market Value of the Common Stock is less than the Share Floor Price and the redemption of the Series A Preferred Stock is effected by the Company using shares of Common Stock then, after the redemption of the Series A Preferred Stock is effected and the appropriate number of shares of Common Stock is issued by the Company, the Company shall issue to EIS on the business day following the redemption a warrant in substantially the form of Exhibit A attached hereto (the "Warrant") exercisable for a number of shares of Common Stock equal to the sum of: (x) a number of shares obtained by dividing (I) the dollar value of the difference between (A) the number of shares of Common Stock that would have been issued upon such redemption or payment, as the case may be, had the Fair Market Value of the shares of Common Stock been calculated at the Fair Market Value without regard to the Share Floor Price and (B) the number of shares of Common Stock actually issued upon such redemption or payment, as the case may be by (II) the Fair Market Value of a share of Common Stock on the date of issuance of the Warrant without regard to the Share Floor Price, and (y) a number of shares obtained by dividing (I) the aggregate exercise price of the number of shares calculated in clause (x) above by (II) the Fair Market Value of a share of Common Stock on the date of issuance of the Warrant without regard to the Share Floor Price. -4- The Warrant shall have (i) an exercise price per share equal to the par value of the Common Stock on the date of issuance of the Warrant; (ii) a term of five years from the date of issuance, (iii) a cash-less exercise provision and (iv) customary anti-dilution adjustments in the event of stock splits, stock combination, reorganizations and similar events. The parties hereby agree (a) that the Registration Rights Agreement, dated June 29, 2001, among the Company and EIS, is hereby amended such that the definition of the term "Registrable Securities" shall include the shares of Common Stock issuable upon exercise of the Warrant and (b) to execute, prior to or simultaneously with the issuance of the Warrant, any reasonable and customary investment representations or similar document to make the issuance of the Warrant comply with or qualify for an exemption under federal, state and any other applicable jurisdiction's securities laws. EIS acknowledges that, because the number of shares to be covered by the Warrant cannot be determined at the time of this Agreement, the Company might not have sufficient authorized shares of Common Stock to enable the Company to issue the shares of Common Stock and, accordingly, the Company might need to obtain stockholder approval for the issuance of the Warrant to comply with Nasdaq or other exchange rules or other governmental or regulatory regulations, and EIS agrees that such lack of approval or sufficient shares shall not be a breach by the Company of this Agreement or any other Transaction Document (as that term is defined in the Purchase Agreement). In such event, the Company agrees to obtain the necessary approval of its stockholders and any governmental entity within 90 days of the exercise of the Warrant. 3. Existing Representations, Warrants and Covenants. The Company hereby represents and warrants that all representations and warranties contained in the Purchase Agreement are true and correct, in all material respects, and the Company has complied, and is presently in compliance, in all material respects, with all agreements and covenants set forth in the Transaction Documents, as of the date of this Agreement. 4. Notices. All notices, demands and requests of any kind to be delivered to any party hereunder shall be made in accordance with Section 9 of the Purchase Agreement. 5. Amendment and Waiver. This Agreement may not be modified or amended, or any of the provisions hereof waived, except by written agreement of the Company and EIS dated after the date hereof. 6. Headings. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of the Agreement. 7. Entire Agreement. This Agreement and the Transaction Documents contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings among the parties with respect thereto. 8. Governing Law. This Agreement shall be governed in all respects by the laws of the State of New York, without giving effect to principles of conflicts of laws, and in accordance with the terms of Section 14 of the Purchase Agreement. -5- 9. Counterparts. This Amendment may be executed in any number of counterparts, including by facsimile signature, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 10. Expenses. Each of the parties shall be responsible for its own costs and expenses incurred in connection with the transactions contemplated hereby. 11. Successors and Assigns. The provisions hereof shall inure to the benefit of, and be binding upon, the successors and assigns of the parties hereto. 12. Severability. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be in any way affected or impaired thereby. [The next page is the signature page.] -6- IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first above written. GLYCOGENESYS, INC. By: /s/ Bradley J. Carver ------------------------------ Name: Bradley J. Carver ---------------------------- Title: President & CEO --------------------------- ELAN INTERNATIONAL SERVICES, LTD. By: /s/ Debra Moore Buryj ------------------------------ Name: Debra Moore Buryj ---------------------------- Title: Vice President --------------------------- -7- -----END PRIVACY-ENHANCED MESSAGE-----