NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND SUCH SECURITIES MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED UNLESS SO REGISTERED OR AN EXEMPTION FROM
REGISTRATION UNDER SAID 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. 00-___
THIS CERTIFIES that, for value received, SCO CAPITAL PARTNERS
LLC, or its permitted 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, One
Million Five Hundred Thousand (1,500,000) fully paid, validly
issued and nonassessable shares (the "Warrant Shares") of common
stock of the Company, par value $0.001 (the "Common Stock") at
the exercise price of $1.25 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, and not defined, herein shall have the meanings
ascribed thereto in the letter agreement, dated as of November
16, 2001, between the Company and the Holder (the "Letter
Agreement").
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 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 Act and applicable
state securities laws or exempt from registration under such laws
to the satisfaction of the Company and its counsel.
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 prior to 5 p.m. New York time on November 16,
2006, by presentation and surrender of this Warrant to the
principal offices of the Company, or at the office of its
Transfer Agent (as hereinafter defined), 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; provided, however, that in each
case, the minimum number of Warrant Shares as to which this
Warrant is being exercised shall not be less than 1,000 Warrant
Shares; provided, further, that in the event of any merger,
consolidation or sale of all or substantially all the assets of
the Company resulting in any distribution to the Company's
shareholders, prior to November 16, 2006, the Holder shall have
the right to exercise this Warrant commencing at such time
through November 16, 2006 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 Act, and applicable
state securities laws or exempt from registration under such laws
to the satisfaction of the Company and its counsel. The Holder
of this Warrant shall be deemed to be a shareholder 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
by certified or official bank check or wire transfer of the cash
purchase price for the number of Warrant Shares as to which the
exercise is being made, or by delivery to the Company of
securities of the Company having a value equal to the cash
purchase price for such number of Warrant Shares determined in
good faith by the Board of Directors of the Company as of the
date of delivery, 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.
(b) All or any portion of the Warrant Share Price may be
paid by surrendering Warrants effected by presentation and
surrender of this Warrant to the Company, or at the office of its
Transfer Agent, if any, with a Cashless Exercise Form annexed
hereto duly executed (a "Cashless Exercise"). Such presentation
and surrender shall be deemed a waiver by the Company of the
Holder's obligation to pay all or any portion of the aggregate
Warrant Share Price. In the event of a Cashless Exercise, the
Holder shall exchange its Warrant for that number of shares of
Common Stock determined by multiplying the number of Warrant
Shares for which the Holder desires to exercise this Warrant by a
fraction, the numerator of which shall be the difference between
the then current market price per share of the Common Stock and
the Warrant Share Price, and the denominator of which shall be
the then current market price per share of Common Stock. For
purposes of any computation under this Section 3(b), the then
current market price per share of Common Stock at any date shall
be deemed to be the average for the ten consecutive business days
immediately prior to the Cashless Exercise of the daily closing
prices of the Common Stock on the principal national securities
exchange on which the Common Stock is admitted to trading or
listed, or if not listed or admitted to trading on any such
exchange, the closing prices as reported by the Nasdaq National
Market or, if applicable, the Nasdaq SmallCap Market, or if not
then included for quotation on the Nasdaq National Market or the
Nasdaq SmallCap Market, the average of the highest reported bid
and lowest reported asked prices as reported by the OTC Bulletin
Board or the National Quotations Bureau, as the case may be, or
if not then publicly traded, the fair market price, not less than
book value thereof, of the Common Stock as determined in good
faith by the Board of Directors of the Company.
(c) If this Warrant shall be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation,
execute and deliver 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 shall in good faith determine), and
(ii) will deliver 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.
(d) In the event that SCO fails to fund a Tranche upon
receipt of notice requesting such funding as a result of a Pro
Rata Event, the number of Warrant Shares that SCO may purchase
pursuant to this Warrant shall be reduced to a number determined
by multiplying 1,500,000 by a fraction, the numerator of which
shall be the aggregate value of the Tranches funded and the
denominator of which shall be the Maximum Funded Amount;
provided, however, that in no event shall such number of Warrant
Shares exercisable be reduced to less than the number of Warrant
Shares previously purchased by SCO pursuant to 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 and the Warrant Share Price shall be
subject to adjustment from time to time upon happening of certain
events as follows:
2.1 Adjustments. If the Company:
(i) subdivides or reclassifies its outstanding shares of
Common Stock into a greater number of shares;
(ii) combines or reclassifies its outstanding shares of
Common Stock into a smaller number of shares;
(iii) issues, by reclassification of its Common Stock,
any shares of its capital 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. An adjustment
made pursuant to this Section 2.1 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, 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 of
Directors (whose determination shall be conclusive and shall be
described in a written notice to all holders of Warrants promptly
after such adjustment) shall determine the allocation of the
adjusted Warrant Share Price between or among 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 shall
be made each time any event listed in paragraphs (i) through (v)
of this Section 2.1 occurs.
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.
2.2 Sale of Securities. In the event the Company (i) at any
time after the date of this Warrant but prior to the earlier to
occur of (x) the closing of either debt or equity financing in
which the Company receives at least Four Million Dollars
($4,000,000) in any transaction or series of related transactions
or (y) termination of that certain engagement letter, dated
November 16, 2001, by and between SCO Securities LLC and the
Company (whereby SCO Securities LLC has been appointed as
exclusive financial consultant and advisor to the Company) (each,
a "Milestone Date"), issues additional Common Stock, convertible
preferred stock, options, warrants, or other securities
convertible into or exercisable for Common Stock other than
securities currently outstanding as of the date hereof or issued
upon the conversion or exercise of any securities outstanding as
of the date hereof, at a purchase price per share of Common Stock
less than the Warrant Share Price in effect immediately prior to
such issuance or sale, then the Warrant Share Price shall be
automatically reduced to such lower purchase price; and (ii) at
any time after a Milestone Date, issues additional Common Stock,
convertible preferred stock, options, warrants, or other
securities convertible or exercisable for Common Stock other than
securities currently outstanding as of the date hereof or issued
upon the conversion or exercise of any securities outstanding as
of the date hereof, at a purchase price per share of Common Stock
less than the Warrant Share Price in effect immediately prior to
such issuance or sale, then the Warrant Share Price shall be
automatically reduced to such lower purchase price and the number
of Warrant Shares shall be increased to a number determined by
multiplying the number of Warrant Shares so purchasable
immediately prior to the date of such issuance or sale by a
fraction, the numerator of which shall be the Warrant Share Price
in effect immediately prior to the adjustment required by this
Section 2.2 and the denominator of which shall be the Warrant
Share Price in effect immediately after such adjustment.
provided, however, that no adjustment to the Warrant Share Price
or the number and kind of Warrant Shares shall be made pursuant
to this Section 2.2 in the event the Company (a) grants options
to employees, officers, directors or consultants of the Company
pursuant to contracts or plans approved by the Board of Directors
of the Company or (b) effectuates an amendment (repricing or
otherwise) of any options previously issued and disclosed in the
Company's SEC reports through this date to conform to the terms
of this Warrant; provided, however, that under no circumstances
shall such repricing result in an exercise price less than the
Warrant Share Price.
(a) For the purpose of making any adjustment in the Warrant
Share Price as provided in this Section 2.2, the consideration
received by the Company for any issue or sale of Common Stock
will be computed:
(i) to the extent it consists of cash, as the amount
of cash received by the Company before deduction of any offering
expenses payable by the Company and any underwriting or similar
commissions, compensation, or concessions paid or allowed by the
Company in connection with such issue or sale;
(ii) to the extent it consists of property other than
cash, at the fair market value of that property as determined in
good faith by the Company's Board of Directors (irrespective of
the accounting treatment thereof); and
(iii) if Common Stock is issued or sold together with
other stock or securities (including convertible preferred stock,
options, warrants or securities convertible into or exchangeable
for common stock) or other assets of the Company for a
consideration which covers both, as the portion of the
consideration so received that may be reasonably determined in
good faith by the Company's Board of Directors to be allocable to
such Common Stock; provided, however, that with respect to such
other stock or securities, such consideration as determined by
the Company's Board of Directors shall not be less than the total
consideration received by the Company for the issuance of such
other stock or securities plus the additional aggregate
consideration, if any, to be received by the Company upon
conversion or exchange thereof.
(b) If the Company (i) issues, grants or sells any rights
or options to subscribe for, purchase, or otherwise acquire
shares of Common Stock, or (ii) issues or sells any security
convertible into shares of Common Stock, then, in each case, the
price per share of Common Stock issuable on the exercise of the
rights or options or the conversion of the securities will be
determined by dividing (x) the total amount, if any, received or
receivable by the Company as consideration for the granting or
sale of the rights or options or the issue or sale of the
convertible securities, plus the minimum aggregate amount of
additional consideration payable to the Company on exercise or
conversion of the securities, by (y) the maximum number of shares
of Common Stock issuable on the exercise of conversion. Such
granting or issue or sale will be considered to be an issue or
sale for cash of the maximum number of shares of Common Stock
issuable on exercise or conversion at the price per share
determined under this Section 2.2, and the Warrant Share Price
will be adjusted as above provided to reflect (on the basis of
that determination) the issue or sale. No further adjustment of
the Warrant Share Price will be made as a result of the actual
issuance of shares of Common Stock on the exercise of any such
rights or options or the conversion of any such convertible
securities.
(c) Upon the redemption or repurchase of any such
securities or the expiration or termination of the right to
convert into, exchange for, or exercise with respect to, Common
Stock, the Warrant Share Price will be readjusted to such price
as would have been obtained had the adjustment made upon their
issuance been made upon the basis of the issuance of only the
number of such securities as were actually converted into,
exchanged for, or exercised with respect to, Common Stock. If
the purchase price or conversion or exchange rate provided for in
any such security changes at any time, then, upon such change
becoming effective, the Warrant Share Price then in effect will
be readjusted to such price as would have been obtained had the
adjustment made upon the issuance of such securities been made
upon the basis of (i) the issuance of only the number of shares
of Common Stock theretofore actually delivered upon the
conversion, exchange or exercise of such securities, and the
total consideration received therefor, and (ii) the granting or
issuance, at the time of such change, of any such securities then
still outstanding for the consideration, if any, received by the
Company therefor and to be received on the basis of such changed
price or rate.
2.3 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 Sections 2.1 or 2.2 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 of
Directors of the Company shall in good faith determine to be
equitable under the circumstances.
2.4 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 promptly 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 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.
2.5 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 to the holders of shares of the Common Stock
(including, without limitation, 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, (a) at least 15 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, and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, at least 15 days' prior
written notice of the date when the same shall take place if no
stockholder vote is required and at least 15 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 (a) 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 (b) 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.
2.6 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 2.6 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.
3. No Voting Rights. 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.
4. Warrants Transferable. This Warrant and all rights
hereunder are transferable, in whole or in part, at the principal
offices of the Company by the Holder hereof, upon surrender of
this Warrant properly endorsed provided, however, that in each
case the minimum number of Warrant Shares being transferred by
the Holder shall not be less than 1,000 Warrant Shares; provided,
further, that without the prior written consent of the Company,
this Warrant and all rights hereunder may be transferred only (i)
to an affiliate of the initial Holder hereof or successor in
interest to any such person in a transaction exempt from
registration under the 1933 Act; or (ii) pursuant to the
registration of this Warrant or the Warrant Shares under the 1933
Act or subsequent to one year from the date hereof pursuant to an
available exemption from such registration.
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 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
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
"ACT") OR ANY OTHER SECURITIES LAWS, AND SUCH SECURITIES MAY NOT
BE SOLD, TRANSFERRED OR ASSIGNED UNLESS SO REGISTERED OR AN
EXEMPTION FROM REGISTRATION UNDER SAID ACT AND ANY OTHER
APPLICABLE SECURITIES LAWS IS AVAILABLE.
Upon the registration, under the 1933 Act, of the securities
issued upon exercise of the Warrant such legend shall be removed
from the certificate evidencing such securities.
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. Miscellaneous. 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 (other than any issuance taxes, including,
without limitation, documentary stamp taxes, transfer taxes and
other governmental charges, which shall be paid by the Company)
in connection with such issuance and delivery of this Warrant and
the Warrant Shares. In addition, the Holder shall pay all taxes
in connection with any sale, assignment or other transfer of this
Warrant.
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.
9. Reservation of Warrant Shares. The Company 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 2.6 hereof.
The Company covenants that all Warrant Shares which may be issued
upon exercise of this Warrant will, upon issue, be fully paid,
nonassessable, free of preemptive rights and free from all taxes,
liens, charges and security interests with respect to the issue
thereof.
10. Registration.
A. Demand Registration Rights. Commencing on the one-year
anniversary of the date hereof and at any time thereafter, if at
any time the Company shall receive from one or more Holders a
written request that the Company register not less than a
majority of all of the Registrable Securities (as defined below)
identified in such request under the Act, the Company agrees that
on one (1) such occasion only it shall prepare and file promptly
with the Securities and Commission a registration statement under
the Act covering an amount equal to the shares of Registrable
Securities held by such requesting Holders and agrees to use its
best efforts to cause such registration statement to become
effective as expeditiously as possible. Upon the receipt of such
request, the Company agrees to give promptly written notice to
all Holders of Registrable Securities that such registration is
to be effected. The Company agrees to include in such
registration statement those shares of Registrable Securities
from the Holders of which it has received written requests for
registration within the thirty (30) day period after such
Holders' receipt of written notice from the Company. "Registrable
Securities" means the Warrant Shares (as such shares may have
been adjusted from time to time pursuant to the anti-dilution
provisions of this Warrant), except that any such Warrant Shares
shall cease to be Registrable Securities when they have been
sold, transferred or otherwise disposed of or exchanged pursuant
to a registration statement under the Act.
The Company shall not be required to effect a registration
pursuant to this Section 10.A. if the Company shall furnish to
Holders requesting a registration statement pursuant to this
Section 10.A, a certificate signed by the Chief Operating Officer
of the Company stating that in the good faith of the Board of
Directors of the Company that the Company (1) has reached a
"probable" state on an acquisition with respect to which the
Company reasonably believes it is required by the Act to include
in a registration statement information and financial statements
concerning such application or (2) has completed such an
acquisition but has not yet filed the financial statements
required by Item 7 of Form 8-K under the Securities Exchange Act
of 1934 (the "Exchange Act"), as amended, then the Company shall
have the right to defer such filing until 30 days after the
financial statements required by Item 7 of the Exchange Act are
filed with the SEC with respect to either such acquisition. If
the Company shall postpone the filing of any registration
statement, Holders holding in the aggregate 50% or more of the
number of Registrable Securities requested to be included in such
registration statement shall have the right to withdraw their
requests for such registration by giving notice to the Company
within 15 days of the notice of postponement. Such withdrawal
request shall be deemed to apply to all Holders who had requested
to have such Registrable Securities included in such registration
statement. In the event that any Holders withdraw their request
in the foregoing manner, such request shall not be counted for
purposes of determining the number of registrations to which the
Holders are entitled pursuant to this Section 10.A.
Notwithstanding anything herein to the contrary, under no
circumstances shall the Company be permitted to defer a filing
pursuant to this paragraph more than once during any twelve (12)
month period.
B. "Piggyback" Registration Rights. From and after the
date hereof, each time the Company shall determine to prepare and
file a registration statement under the Act with respect to any
of its securities (other than pursuant to Section 10.A. hereof or
pursuant to a registration statement on Form X-0, X-0 or other
limited purpose form) in connection with the proposed offer and
sale for money of any of its securities either for its own
account or on behalf of any other security holder, the Company
agrees to give prompt prior written notice of its determination
to the Holder of Registrable Securities, which notice shall offer
to such Holders the opportunity to register 150% of the number of
shares of Registrable Securities, as each Holder may request.
Upon the written request of a Holder of any shares of Registrable
Securities given within thirty (30) days after the receipt of
such written notice from the Company, the Company agrees to use
its best efforts to cause all of such Registrable Securities, the
Holders of which have so requested registration thereof, to be
included in such registration statement and registered under the
Act, all to the extent necessary to permit the sale or other
disposition by the prospective seller or sellers of the
Registrable Securities to be so registered. Notwithstanding any
other provision of this Warrant, if the underwriter determines in
good faith that marketing factors require a limitation of the
number of shares to be underwritten, the number of shares that
may be included in the underwriting shall be allocated, first, to
the Company and second, to the Holders electing to participate in
the registration on a pro rata basis based on the total number of
Registrable Securities held by such participating Holders.
C. Expenses of Registration. Except as specifically set
forth herein, all registration expenses (including, without
limitation, all registration and filing fees, printing expenses,
fees and disbursements of counsel for the Company, blue sky fees
and expenses and the expense of any special audits incident to or
required by any such regulation) incurred in connection with any
registration, qualification or compliance pursuant to Section
10.A. or 10.B. shall be borne by the Company. All applicable
underwriting documents and selling commissions shall be borne by
the Holder of Registrable Securities so registered pro rata on
the basis of the number of shares so requested.
D. Further Agreements. In connection with any
registration of Registrable Securities contemplated under this
Section 10, the Company and each of the Holders requesting
registration agree to enter into customary agreements regarding
the furnishing of information by such Holders for the
registration statements and indemnification.
11. Descriptive Headings and Governing Law. The descriptive
headings of the several paragraphs of this Warrant are inserted
for convenience only and do not constitute a part of this
Warrant. This Warrant shall be construed and enforced in
accordance with the laws of the State of New York, and the rights
of the parties shall be governed by, the law of such State.
[Signature page follows]
IN WITNESS WHEREOF, this Warrant Agreement has been executed as
of the 16th day of November, 2001.
BIOENVISION, INC.
By:________________________________
Name:
Title:
PURCHASE FORM
Dated:__________, ____
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _____ Warrant Shares and
hereby makes payment of $_____________ in payment of the exercise
price thereof.
__________________________________________
CASHLESS EXERCISE
Dated:__________, ____
The undersigned irrevocably elects to exercise the within Warrant
for ___ Warrant Shares and hereby makes payment pursuant to the
Cashless Exercise provision of the within Warrant, and directs
that the payment of the Warrant Share Price be made by
cancellation as of the date of exercise of a portion of the
within Warrant in accordance with the terms and provisions of
Section 3(b) of the within Warrant.
_________________________________________
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:
_______________________
