EXHIBIT 4
to SCHEDULE 13D
WARRANT
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED
OR OTHERWISE ASSIGNED UNLESS SO REGISTERED OR AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT IS AVAILABLE. THIS LEGEND SHALL BE ENDORSED UPON ANY
WARRANT ISSUED IN EXCHANGE FOR THIS WARRANT.
WARRANT AGREEMENT
FOR COMMON STOCK OF
BIOENVISION, INC.
Warrant No. 1
Date of Issuance: May 7, 2002 Warrant to purchase an aggregate of
3,000,000 shares of Common Stock
THIS CERTIFIES that, for value received, PERSEUS-XXXXX
BIOPHARMACEUTICAL FUND, LP, or its permitted transferees, successors or assigns
(collectively, the "HOLDER"), is entitled to purchase from BIOENVISION, INC., a
Delaware corporation (the "COMPANY"), at any time, and from time to time, during
the exercise period referred to in Section 1 hereof, Three Million (3,000,000)
fully paid, validly issued and nonassessable shares (the "WARRANT SHARES") of
common stock of the Company, par value $0.00l per share (the "COMMON STOCK"), at
the exercise price of $2.00 per share, subject to anti-dilution adjustments as
provided herein (the "WARRANT SHARE PRICE"). Securities issuable upon exercise
of this Warrant and the exercise price payable therefor are subject to
adjustment from time to time as hereinafter set forth. As used herein, the term
"Warrant" shall include any warrant or warrants hereafter issued in consequence
of the exercise of this Warrant Agreement in part or transfer of this Warrant in
whole or in part. Capitalized terms used herein and not defined have the
respective meanings given to them in that certain Securities Purchase Agreement,
dated the date hereof, by and among the Company, the Holder and the other
parties named therein.
The Company shall register this Warrant, upon records to be maintained
by the Company for that purpose (the "WARRANT REGISTER"), in the name of the
record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose
of any exercise hereof or any distribution to the Holder, and for all other
purposes, and the Company shall not be affected by notice to the contrary.
Subject to Section 4 of this Warrant, the Company shall register the
transfer of any portion of this Warrant in the Warrant Register, upon surrender
of this Warrant, with the Form of Assignment attached hereto duly completed and
signed, to the Transfer Agent (as defined herein) or to the Company. Upon any
such registration or transfer, a new warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new warrant, a "NEW WARRANT"),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance by such transferee of all of the rights and obligations of a holder
of a Warrant. Any transfer or assignment of this Warrant and Warrant Shares
obtained by the Holder in exercise of this Warrant is subject to the
requirements that such securities be registered under the Securities Act and
applicable state securities laws or exempt from registration under such laws.
1. EXERCISE; PAYMENT FOR OWNERSHIP INTEREST.
(a) Upon the terms and subject to the conditions set
forth herein, this Warrant may be exercised in whole or in part by the Holder
hereof at any time, or from time to time, on or after the date hereof and on or
prior to 5 p.m. New York local time on May 7, 2007 (the "EXPIRATION DATE"), by
presentation and surrender of this Warrant to the principal offices of the
Company, or at the office of its Transfer Agent, if any, together with the
Purchase Form annexed hereto, duly executed, and accompanied by payment to the
Company of an amount equal to the Warrant Share Price multiplied by the number
of Warrant Shares as to which this Warrant is then being exercised in U.S.
dollars by certified or official bank check or wire transfer of immediately
available funds of the cash purchase price; provided, however, that in each
case, the minimum number of Warrant Shares as to which this Warrant is being
exercised shall be the lesser of (i) 1,000 Warrant Shares or (ii) all Warrant
Shares then held by the Holder on an as exercised basis; provided, further, that
in the event of any merger, consolidation or sale, lease or transfer of all or
substantially all of the assets of the Company, prior to the Expiration Date,
the Holder shall have the right to exercise this Warrant commencing at such time
through the Expiration Date into the kind and amount of shares of stock and
other securities and property (including cash) receivable by a holder of the
number of shares of Common Stock into which this Warrant might have been
exercisable immediately prior thereto. Any transfer of Warrant Shares obtained
by the Holder in exercise of this Warrant is subject to the requirement that
such securities be registered under the Securities Act, and applicable state
securities laws or exempt from registration under such laws. The Holder of this
Warrant shall be deemed to be a stockholder of the Warrant Shares as to which
this Warrant is exercised in accordance herewith effective immediately after the
close of business on the date on which the Holder shall have delivered to the
Company this Warrant in proper form for exercise and payment in U.S. dollars by
certified or official bank check or wire transfer of immediately available funds
of the cash purchase price for the number of Warrant Shares as to which the
exercise is being made, notwithstanding that the stock transfer books of the
Company shall be then closed or that certificates representing such Warrant
Shares shall not then be physically delivered to the Holder. The Company shall
not enter into any merger, consolidation or sale, lease or transfer of all or
substantially all of the assets of the Company
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unless effective provision shall be made so as to give effect to the provisions
set forth in this subsection (a).
(b) If this Warrant shall be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation, promptly execute
and deliver (but in no event more than ten business days) a new Warrant
evidencing the rights of the Holder thereof to purchase the balance of the
Warrant Shares purchasable hereunder as to which the Warrant has not been
exercised. If this Warrant is exercised in part, such exercise shall be for a
whole number of Warrant Shares. Upon any exercise and surrender of this Warrant,
the Company (i) will issue and deliver to the Holder a certificate or
certificates in the name of the Holder for the largest whole number of Warrant
Shares to which the Holder shall be entitled and, if this Warrant is exercised
in whole, in lieu of any fractional Warrant Share to which the Holder otherwise
might be entitled, cash in an amount equal to the fair value of such fractional
Warrant Share (determined in such reasonable and equitable manner as the Board
of Directors of the Company (the "BOARD") shall in good faith determine), and
(ii) will promptly deliver (but in no event more than ten business days) to the
Holder such other securities, properties and cash which the Holder may be
entitled to receive upon such exercise, or the proportionate part thereof if
this Warrant is exercised in part, pursuant to the provisions of this Warrant.
2. ANTI-DILUTION PROVISIONS. The Warrant Share Price in effect at
any time and the number and kind of securities issuable upon exercise of this
Warrant shall be subject to adjustment from time to time upon the happening of
certain events as follows:
2.1 Adjustments.
(a) DEFINITION OF ADDITIONAL STOCK. The term "Additional Shares of
Common Stock" includes all shares of Common Stock issued by the Company after
the Date of Issuance, other than:
(i) Shares of Common Stock issued upon conversion of
shares of Series A Preferred Stock;
(ii) Shares of Common Stock (subject to appropriate
adjustment for any stock dividend, stock split, combination or other
similar recapitalization affecting such shares) issuable or issued to
the Company's employees, directors or consultants pursuant to a stock
option plan or restricted stock plan approved by the Board;
(iii) Shares of Common Stock issued or issuable pursuant to
subsection 2.1(b)(iv) below;
(iv) Shares of Common Stock or Preferred Stock issuable
upon exercise of options, warrants or upon conversion of convertible
securities or other rights outstanding as of the Date of Issuance; and
(v) Shares of capital stock or options or warrants to
purchase capital stock issued to financial institutions or lessors in
connections with commercial credit
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agreements, equipment financings or similar transactions or to other
corporations, persons or entities in connection with acquisitions,
mergers or similar business combinations, partnership arrangements,
strategic alliances, licensing arrangements or similar non-capital
raising transactions approved by the Board; PROVIDED THAT if more than
33% of the currently outstanding shares of capital stock are issued in
connection with one or a series of related acquisitions, mergers or
similar business combinations, then any shares issued in excess of 33%
of the currently outstanding shares of capital stock shall be deemed
Additional Shares of Common Stock; PROVIDED, FURTHER, THAT in no event
shall the foregoing apply to any issuances to private equity or venture
capital firms or any private equity division of any investment bank or
commercial bank unless such issuances are made pursuant to contracts or
other obligations existing as of the date hereof.
(b) DIVIDEND, SUBDIVISION, COMBINATION OR RECLASSIFICATION OF
COMMON STOCK. In the event that the Company shall at any time or from time to
time after the issuance of this Warrant but prior to the exercise hereof:
(i) make a dividend or distribution on the
outstanding shares of Common Stock payable in capital stock;
(ii) subdivide or reclassify or reorganize its
outstanding shares of Common Stock into a greater number of shares;
(iii) combine or reclassify or reorganize its
outstanding shares of Common Stock into a smaller number of shares; or
(iv) issue, by reclassification of its Common
Stock or other reorganization, any Additional Shares of Common Stock;
then the number and kind of Warrant Shares purchasable upon exercise of this
Warrant shall be adjusted so that the Holder upon exercise hereof shall be
entitled to receive the kind and number of Warrant Shares or other securities of
the Company that the Holder would have owned or have been entitled to receive
after the happening of any of the events described above had this Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. Whenever the number of Warrant Shares purchasable upon
exercise hereof is adjusted as herein provided, the Warrant Price shall be
adjusted by multiplying the Warrant Price by a fraction, the numerator of which
is equal to the number of shares of Common Stock purchasable prior to the
adjustment and the denominator of which is equal to the number of shares of
Common Stock purchasable after the adjustment. An adjustment made pursuant to
this Section 2.1(b) shall become effective immediately after the record date in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination or issuance.
If, as a result of an adjustment made pursuant to this Section 2.1(b), the
Holder of this Warrant thereafter surrendered for exercise shall become entitled
to receive shares of two or more classes of capital stock or shares of Common
Stock and any other class of capital stock of the Company, the Board (whose good
faith determination shall be applied fairly and ratably to all holders of
Warrants and shall be conclusive and shall be
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described in a written notice to all holders of Warrants promptly after such
adjustment) shall determine in good faith the allocation of the adjusted Warrant
Share Price between or among the shares of such classes of capital stock or
shares of Common Stock and such other class of capital stock.
The adjustment to the number of Warrant Shares purchasable upon the
exercise of this Warrant described in this Section 2.1(b) shall be made each
time any event listed in paragraphs (i) through (iv) of this Section 2.1(b)
occurs.
(c) ISSUANCE OF COMMON STOCK BELOW WARRANT SHARE PRICE. If the
Company shall issue any Additional Shares of Common Stock after the date hereof
(excluding any such issuance for which an adjustment is made under the foregoing
subsection (b)), for no consideration or for a consideration per share less than
the Warrant Share Price in effect on the date of and immediately prior to such
issue, then in such event, the Warrant Share Price shall be reduced,
concurrently with such issue, to a price equal to the quotient obtained by
dividing:
(A) an amount equal to (x) the total number of
shares of Common Stock outstanding immediately prior to such issuance
or sale multiplied by the Warrant Share Price in effect immediately
prior to such issuance or sale, plus (y) the aggregate consideration
received or deemed to be received by the Company upon such issuance or
sale, by
(B) the total number of shares of Common Stock
outstanding immediately after such issuance or sale.
As used herein, "Market Price" means, with respect to the shares of
Common Stock, (a) if the shares are listed or admitted for trading on any
national securities exchange or included in The Nasdaq National Market or Nasdaq
SmallCap Market, the last reported sales price as reported on such exchange or
market; (b) if the shares are not listed or admitted for trading on any national
securities exchange or included in The Nasdaq National Market or Nasdaq SmallCap
Market, the average of the last reported closing bid and asked quotation for the
shares as reported on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") or a similar service if NASDAQ is not reporting such
information; (c) if the shares are not listed or admitted for trading on any
national securities exchange or included in The Nasdaq National Market or Nasdaq
SmallCap Market or quoted by NASDAQ or a similar service, the average of the
last reported bid and asked quotation for the shares as quoted by a market maker
in the shares (or if there is more than one market maker, the bid and asked
quotation shall be obtained from two market makers and the average of the lowest
bid and highest asked quotation). In the absence of any available public
quotations for the Common Stock, the Board shall determine in good faith the
fair value of the Common Stock, which determination shall be set forth in a
certificate by the Secretary of the Company.
(d) ISSUANCE OF OPTIONS AND CONVERTIBLE SECURITIES DEEMED ISSUANCE
OF ADDITIONAL SHARES OF COMMON Stock. If the Company, at any time or from time
to time after the Date of Issuance, shall issue any options, warrants or other
rights to purchase Common Stock
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(collectively, "OPTIONS") or securities that, by their terms, directly or
indirectly, are convertible into or exchangeable for shares of Common Stock
("CONVERTIBLE Securities") or shall fix a record date for the determination of
holders of any class of securities entitled to receive any such Options or
Convertible Securities, then the maximum number of shares of Common Stock (as
set forth in the instrument relating thereto without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options or, in the case of Convertible Securities and Options
therefor, the conversion or exchange of such Convertible Securities, shall be
deemed to be Additional Shares of Common Stock issued as of the time of such
issue or, in case such a record date shall have been fixed, as of the close of
business on such record date, provided that in any such case in which Additional
Shares of Common Stock are deemed to be issued:
(i) no further adjustment in the Warrant Share Price
shall be made upon the subsequent issue of Convertible Securities or
shares of Common Stock upon the exercise of such Options or conversion
or exchange of such Convertible Securities and, upon the expiration of
any such Option or the termination of any such right to convert or
exchange such Convertible Securities, the Warrant Share Price then in
effect hereunder shall forthwith be increased to the Warrant Share
Price which would have been in effect at the time of such expiration or
termination had such Option or Convertible Securities, to the extent
outstanding immediately prior to such expiration or termination, never
been issued, and the Common Stock issuable thereunder shall no longer
be deemed to be outstanding;
(ii) if such Options or Convertible Securities by their
terms provide, with the passage of time or otherwise, for any increase
in the consideration payable to the Company, or decrease in the number
of shares of Common Stock issuable, upon the exercise, conversion or
exchange thereof, the Warrant Share Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based thereon, shall, upon any
such increase or decrease becoming effective, be recomputed to reflect
such increase or decrease insofar as it affects such Options or the
rights of conversion or exchange under such Convertible Securities,
provided that no readjustment pursuant to this clause (ii) shall have
the effect of increasing the Warrant Share Price to an amount which
exceeds the lower of (A) the Warrant Share Price on the original
adjustment date, or (B) the Warrant Share Price that would have
resulted from any issuance of Additional Shares of Common Stock between
the original adjustment date and such readjustment date; and
(iii) if such Options or Convertible Securities by their
terms provide, with the passage of time or otherwise, for any decrease
in the consideration payable to the Company, or increase in the number
of shares of Common Stock issuable, upon the exercise, conversion or
exchange thereof, the Warrant Share Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based thereon, shall, upon any
such decrease or increase becoming effective, be recomputed to reflect
such decrease or increase insofar as it affects such Options or the
rights of conversion or exchange under such Convertible Securities,
provided that no readjustment pursuant to this clause (iii) shall have
the effect
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of decreasing the Warrant Share Price to an amount which exceeds the
lower of (A) the Warrant Share Price on the original adjustment date,
or (B) the Warrant Share Price that would have resulted from any
issuance of Additional Shares of Common Stock between the original
adjustment date and such readjustment date.
(iv) DETERMINATION OF CONSIDERATION. For purposes of this
Subsection 2.1(d), the consideration received by the Company for the
issue of any Additional Shares of Common Stock shall be computed as
follows:
(A) CASH AND PROPERTY: Such consideration shall:
(1) insofar as it consists of cash, be
computed at the aggregate of cash
received by the Company, excluding
amounts paid or payable for accrued
interest or accrued dividends;
(2) insofar as it consists of property
other than cash, be computed at the
fair market value thereof at the
time of such issue, as determined in
good faith by the Board; and
in the event Additional Shares of Common Stock are issued together with other
shares or securities or other assets of the Company for consideration which
covers both, be the proportion of such consideration so received, computed as
provided in clauses (1) and (2) above, as determined in good faith by the Board.
(B) OPTIONS AND CONVERTIBLE SECURITIES. The
consideration per share received by the Company for Additional Shares
of Common Stock deemed to have been issued pursuant to Subsection
2.1(d)(ii), relating to Options and Convertible Securities, shall be
determined by dividing
(1) the total amount, if any, received
or receivable by the Company as
consideration for the issue of such
Options or Convertible Securities,
plus the minimum aggregate amount of
additional consideration (as set
forth in the instruments relating
thereto, without regard to any
provision contained therein for a
subsequent adjustment of such
consideration) payable to the
Company upon the exercise of such
Options or the conversion or
exchange of such Convertible
Securities, or in the case of
Options for Convertible Securities,
the exercise of such Options for
Convertible Securities and the
conversion or exchange of such
Convertible Securities, by
(2) the maximum number of shares of
Common Stock (as set forth in the
instruments relating thereto,
without regard to any provision
contained therein for a subsequent
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adjustment of such number) issuable
upon the exercise of such Options or
the conversion or exchange of such
Convertible Securities.
In the event that at any time, as a result of an adjustment made
pursuant to this Section 2.1, the Holder of this Warrant thereafter shall become
entitled to receive any shares of the Company, other than Common Stock,
thereafter the number of such other shares so receivable upon exercise of this
Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Common Stock contained herein.
(e) EXTRAORDINARY DISTRIBUTIONS. In case the Company
shall at any time or from time to time, after the issuance of the Warrant but
prior to the exercise hereof, distribute to all holders of its Common Stock
(including any such distribution made in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation and the
Common Stock is not changed or exchanged) cash, evidences of indebtedness,
securities or other property or assets (excluding any such event for which
adjustment is made under Section 2) or rights or warrants to subscribe for or
purchase any of the foregoing, then, and in each such case, the Holder shall be
entitled to participate in any such distribution based on the number of shares
of Common Stock it would have been entitled to receive had the Warrant been
exercised immediately prior to the occurrence of such distribution, as if the
Holder were the owner of such shares of Common Stock at the time of such
distribution. Notwithstanding the foregoing, this Section 2.1(e) shall be of no
force or effect until and unless such time as the Company shall grant a similar
right to holders of warrants issued after the date hereof, at which time the
Holders shall be entitled to the same protection for extraordinary dividends as
granted to such future holders of warrants, if any.
2.2 OTHER ACTION AFFECTING WARRANT SHARES. If the Company
takes any action affecting its shares of Common Stock after the date hereof,
that would be covered by Section 2.1 but for the manner in which such action is
taken or structured, which would in any way diminish the value of this Warrant,
then the Warrant Share Price shall be adjusted in such manner as the Board shall
in good faith determine to be equitable under the circumstances.
2.3 NOTICE OF ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the Warrant Share Price pursuant to this Section
2, the Company at its expense will as promptly as possible, but in any event
within ten (10) business days, compute such adjustment or readjustment in
accordance with the terms of this Warrant and prepare a certificate setting
forth such adjustment or readjustment, including a statement of the adjusted
Warrant Share Price or adjusted number of shares of Common Stock, if any,
issuable upon exercise of each Warrant, describing in reasonable detail the
transaction giving rise to such adjustments and showing in detail the facts upon
which such adjustment or readjustment is based. The Company will forthwith mail,
by first class mail, postage prepaid, a copy of each such certificate to the
Holder of this Warrant at the address of such Holder as shown on the books of
the Company, and to its Transfer Agent.
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2.4 OTHER NOTICES. If at any time:
(a) the Company shall (i) offer for subscription pro rata
to the holders of shares of the Common Stock any additional equity in the
Company or other rights; (ii) pay a dividend in additional shares of the Common
Stock or distribute securities or other property or assets to the holders of
shares of the Common Stock (including, without limitation, cash, evidences of
indebtedness and equity and debt securities); or (iii) issue securities
convertible into, or rights or warrants to purchase, securities of the Company;
(b) there shall be any capital reorganization or
reclassification or consolidation or merger of the Company with, or sale,
transfer or lease of all or substantially all of its assets to, another entity;
or
(c) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, to the Holder of this Warrant at the address of such
Holder as shown on the books of the Company, (x) at least 10 days' prior written
notice of the date on which the books of the Company shall close or a record
shall be taken for such subscription rights, dividend, distribution or issuance;
PROVIDED THAT such ten (10) day period shall be increased to thirty (30) days in
the case of Section 2.4(a)(ii), and (y) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, at least 10 days' prior written notice of the date when the same
shall take place if no stockholder vote is required and at least 10 days' prior
written notice of the record date for stockholders entitled to vote upon such
matter if a stockholder vote is required. Such notice in accordance with the
foregoing clause (x) shall also specify, in the case of any such subscription
rights, the date on which the holders of shares of Common Stock shall be
entitled to exercise their rights with respect thereto, and such notice in
accordance with the foregoing clause (y) shall also specify the date on which
the holders of shares of Common Stock shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be.
2.5 ADJUSTMENT CALCULATIONS. No adjustment in the Warrant
Share Price shall be required unless such adjustment would require an increase
or decrease of at least one cent ($0.01) in such price; provided, however, that
any adjustments which by reason of this Section 2.5 are not required to be made
shall be carried forward and taken into account in any subsequent adjustment
required to be made hereunder. All calculations under this Section 2 shall be
made to the nearest cent or to the nearest one-hundredth of a share, as the case
may be.
2.6 APPRAISAL. If a majority in interest of the Holders
reasonably disagrees with any of the Board's determinations referred to in this
Section 2 (each, a "DETERMINATION"), then the Company and a majority in interest
of such Holders (the "WARRANT REPRESENTATIVE") shall use good faith efforts to
mutually agree upon the designation of a single Qualified Appraiser (as defined
below) within seven (7) business days of such event requiring a Determination.
The date
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of such event requiring a Determination shall be referred to as the
"DETERMINATION DATE." If such a single Qualified Appraiser is designated, that
person shall make a Determination. If the Company and the Warrant Representative
do not so agree upon the designation of a single Qualified Appraiser within such
period, then within five (5) business days following the end of such period,
each of the Company and the Warrant Representative by written notice to the
other shall designate a Qualified Appraiser (or if any party fails to so select
a Qualified Appraiser within the time period specified, the Person selected by
the other party shall be the Qualified Appraiser) and the two Qualified
Appraisers so designated shall within ten (10) business days of their
designation jointly designate a third Qualified Appraiser and solely such third
Qualified Appraiser so designated shall independently make a Determination. If
there is only a single Qualified Appraiser, the fees and expenses of the
Qualified Appraiser shall be paid equally by the Company and the Warrant
Representative. If three Qualified Appraisers are appointed, the Company shall
pay the fees and expenses of the Qualified Appraiser which it appoints, the
Warrant Representative shall pay the fees and expenses of the Qualified
Appraiser which it appoints, and the fees and expenses of the third Qualified
Appraiser shall be shared equally by the Company and the Warrant Representative.
The designated Qualified Appraiser shall make the Determination not later than
ten (10) business days following the Determination Date. The Determination made
by the Qualified Appraiser shall be final, conclusive and binding on the parties
hereto. None of the Qualified Appraisers shall be affiliated with any of the
Company, the Warrant Representative or another Qualified Appraiser. For the
purposes of this Agreement, "QUALIFIED APPRAISER" shall mean an individual who
is engaged on a regular basis (although not necessarily full time) in valuing
securities or arrangements similar to this Agreement, as the case may be, and
may include (but shall not be limited to) professional business appraisers,
investment bankers or accountants.
3. NO VOTING RIGHTS AS STOCKHOLDERS OR LIABILITIES. Except as
otherwise provided herein, this Warrant shall not be deemed to confer upon the
Holder any right to vote or to consent to or receive notice as a stockholder of
the Company, as such, in respect of any matters whatsoever, or any other rights
or liabilities as a stockholder, prior to the exercise hereof. Nothing contained
in this Warrant shall be deemed as imposing any liabilities on the Holder to
purchase any securities whether such liabilities are asserted by the Company or
by creditors or stockholders of the Company or otherwise.
4. WARRANTS TRANSFERABLE. Subject to the terms hereof, this
Warrant and all rights hereunder are transferable, in whole or in part, upon
surrender of this Warrant with a properly executed Form of Assignment at the
principal offices of the Company. This Warrant and the underlying shares of
Common Stock may not be offered, sold or transferred except in compliance with
the Securities Act, and any applicable state securities laws, or an exception
therefrom, and then only against receipt of an agreement of the person to whom
such offer or sale or transfer is made to comply with the provisions of this
Warrant with respect to any resale or other disposition of such securities;
provided that no such agreement shall be required from any person purchasing
this Warrant or the underlying shares of Common Stock pursuant to a registration
statement effective under the Securities Act. No such disposition shall occur
without an opinion of such Holder's counsel, which opinion shall be reasonably
satisfactory to the Company's counsel.
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5. WARRANTS EXCHANGEABLE; ASSIGNMENT; LOSS, THEFT, DESTRUCTION,
ETC. This Warrant is exchangeable, without expense, upon surrender hereof by the
Holder hereof at the principal offices of the Company, or at the office of its
Transfer Agent, if any, for new Warrants of like tenor representing in the
aggregate the right to subscribe for and purchase the Warrant Shares which may
be subscribed for and purchased hereunder, each such new Warrant to represent
the right to subscribe for and purchase such Warrant Shares as shall be
designated by such Holder hereof at the time of such surrender. Upon surrender
of this Warrant to the Company at its principal office, or at the office of its
Transfer Agent, if any, with an instrument of assignment duly executed and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant in the name of the assignee named in such instrument
of assignment and this Warrant shall promptly be cancelled. This Warrant may be
divided or combined with other warrants which carry the same rights upon
presentation hereof at the principal office of the Company, or at the office of
its Transfer Agent, if any, together with a written notice specifying the names
and denominations in which new Warrants are to be issued and signed by the
Holder hereof. The term "Warrant" as used herein includes any Warrants into
which this Warrant may be divided or exchanged. Upon receipt of evidence
reasonably 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 indemnity reasonably 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 Warrant Shares which may be subscribed for and purchased hereunder.
Any such new Warrant executed and delivered shall constitute an additional
contractual obligation of the Company, whether or not this Warrant so lost,
stolen, destroyed, or mutilated shall be at any time enforceable by anyone.
6. LEGENDS; INVESTMENT REPRESENTATIONS. Any certificate
evidencing the securities issued upon exercise of this Warrant shall bear a
legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
OTHER SECURITIES LAWS, AND SUCH SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED UNLESS SO REGISTERED OR
AN EXEMPTION FROM REGISTRATION UNDER SAID ACT AND ANY OTHER APPLICABLE
SECURITIES LAWS IS AVAILABLE.
7. MODIFICATIONS AND WAIVERS. The Holder of this Warrant
acknowledges and agrees that the terms of this Warrant may be amended, modified
or waived only by the written agreement between the Holder and the Company.
8. EXPENSES. The Company shall pay all expenses and other charges
payable in connection with the preparation, issuance and delivery of this
Warrant and all substitute Warrants. The Holder shall pay all taxes in
connection with any sale, assignment or other transfer of this Warrant.
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9. BOOKS. The Company shall maintain, at the office or agency of
the Company maintained by the Company, books for the registration and transfer
of the Warrant.
10. RESERVATION OF WARRANT SHARES. The Company covenants and
agrees that it will at all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued Common
Stock or its authorized and issued Common Stock held in its treasury, solely for
the purpose of enabling it to satisfy any obligation to issue Warrant Shares
upon exercise of this Warrant, the maximum number of shares of Common Stock
which may then be deliverable upon the exercise of this Warrant. The Company or,
if appointed, the transfer agent for the Common Stock (the "TRANSFER AGENT"),
and every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of any of the rights of purchase aforesaid will
be irrevocably authorized and directed at all times to reserve such number of
authorized shares as shall be required for such purpose. The Company will keep a
copy of this Warrant on file with the Transfer Agent and with every subsequent
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by this Warrant. The Company will
furnish such Transfer Agent a copy of all notices of adjustments and
certificates related thereto transmitted to the Holder pursuant to Section 2.5
hereof. The Company covenants that all Warrant Shares which may be issued upon
exercise of this Warrant will, upon issue, be validly issued, fully paid and
nonassessable, not subject to any preemptive rights, and free from all taxes,
liens, security interests, charges, and other encumbrances with respect to the
issuance thereof.
11. REGISTRATION. The Warrant Shares shall be registered under the
Securities Act, to the extent provided in that certain Registration Rights
Agreement of even date herewith, by and between the Company and the Holder of
this Warrant.
12. LISTING ON SECURITIES EXCHANGES; REGISTRATION. If, and so long
as, any class of the Company's Common Stock shall be listed on any national
securities exchange (as defined in the Exchange Act) or NASDAQ, the Company
shall use its reasonable best efforts to, at its expense, obtain and maintain
the approval for listing upon official notice of issuance of all Warrant Shares
and maintain the listing of Warrant Shares after their issuance; and the Company
will so list on such national securities exchange or NASDAQ, if applicable, will
register under the Exchange Act (or any similar statute then in effect), and
will maintain such listing of, any other securities that at any time are
issuable upon exercise of this Warrant if and at the time any securities of the
same class shall be listed on such national securities exchange or NASDAQ by the
Company.
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13. NO DILUTION OR IMPAIRMENT. The Company will not act for the
purpose of avoiding or seeking to avoid the observance or performance of any of
the terms of this Warrant, by amendment of its certificate or articles of
incorporation or other organizational documents or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other action, but will, at all times, in good faith, assist in
the carrying out of all such terms. Without limiting the generality of the
foregoing, the Company will not increase the par value of any shares of stock
receivable on the exercise of this Warrant above the amount payable therefor on
such exercise.
14. MISCELLANEOUS.
14.1 NOTICES. All notices and other communications shall
be mailed by first-class certified or registered mail, postage prepaid, sent by
reputable overnight delivery, delivered by hand or sent by facsimile as follows:
If to the Company: Bioenvision, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Facsimile: (000) 000-0000
With a copy to: Xxxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Holder: The address and/or facsimile
furnished to the Company in writing
by the last registered Holder of
this Warrant who shall have
furnished an address and/or
facsimile to the Company in writing.
except that any of the foregoing may from time to time by written notice to the
other designate another address which shall thereupon become its effective
address for the purposes of this paragraph. Any notices, requests or consents
hereunder shall be deemed given, and any instruments delivered, five days after
they have been mailed by first-class certified or registered mail, postage
prepaid, or upon receipt if delivered by a reputable overnight courier or if
delivered personally or by facsimile transmission.
14.2 ENTIRE AGREEMENT. This Warrant, including the
exhibits and documents referred to herein which are a part hereof, contain the
entire understanding of the parties hereto with respect to the subject matter
and may be amended only by a written instrument executed by the parties hereto
or their successors or assigns. Any paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Warrant.
-13-
14.3 GOVERNING LAW. This Warrant shall be governed by and
construed in accordance with the laws of the State of New York with respect to
contracts made and to be fully performed therein, without regard to the
conflicts of laws principles thereof. The parties hereto hereby agree that any
suit or proceeding arising under this Warrant, or in connection with the
consummation of the transactions contemplated hereby, shall be brought solely in
a federal or state court located in the County of New York and State of New
York. By its execution hereof, both the Company and the undersigned hereby
consent and irrevocably submit to the in personam jurisdiction of the federal
and state courts located in the County of New York and State of New York and
agree that any process in any suit or proceeding commenced in such courts under
this Warrant may be served upon it personally or by certified or registered
mail, return receipt requested, or by Federal Express or other courier service,
with the same force and effect as if personally served upon the applicable party
in New York and in the city or county in which such other court is located. The
parties hereto each waive any claim that any such jurisdiction is not a
convenient forum for any such suit or proceeding and any defense of lack of in
personam jurisdiction with respect thereto.
14.4 HEADINGS. The headings of this Warrant are for
purposes of reference only and shall not limit or otherwise affect the meaning
of any provision of this Warrant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, this Warrant Agreement has been executed as of the
date first written above.
BIOENVISION, INC.
By: /s/ Xxxxxxxxxxx X. Xxxx
---------------------------------------
Name: Xx. Xxxxxxxxxxx X. Xxxx
Title: Chief Executive Officer
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PURCHASE FORM
Dated: __________
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _____ Warrant Shares and hereby makes full
cash payment of $_____________ in payment of the exercise price thereof.
The undersigned has had the opportunity to ask questions of and receive
answers from the officers of the Company regarding the affairs of the Company
and related matters, and has had the opportunity to obtain additional
information necessary to verify the accuracy of all information so obtained.
[The undersigned understands that the shares have not been registered
under the Securities Act of 1933, as amended, or the securities laws of any
other jurisdiction, and hereby represents to the Company that the undersigned is
acquiring the shares for its own account, for investment, and not with a view
to, or for sale in connection with, the distribution of any such shares.] [THIS
MAY NOT APPLY DEPENDING UPON WHETHER THE REGISTRATION STATEMENT IS EFFECTIVE.]
____________________________________________
(Signature)
____________________________________________
(Print or type name)
____________________________________________
(Address)
____________________________________________
____________________________________________
NOTICE: The signature of this Purchase Form must correspond with the
name as written upon the face of the within Warrant, or upon the assignment
thereof, if applicable, in every particular, without alteration, enlargement or
any change whatsoever.
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________ the right represented by the within Warrant to
purchase ________ shares of Common Stock of _____________ to which the within
Warrant relates and appoints _____________ attorney to transfer said right on
the books of ___________________ with full power of substitution in the
premises.
Dated: __________________ ___, 200__
____________________________________________
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant)
Address of Transferee:
____________________________________________
____________________________________________
____________________________________________
In the presence of:
_____________________________
CONSENT OF ASSIGNEE
-------------------
I HEREBY CONSENT to abide by the terms and conditions of the within
Warrant.
Dated: ______________________
____________________________________________
(Signature of Assignee)
____________________________________________
(Print or type name)
