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 SECURITIES
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
Hundred Thousand (100,000) 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.
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.
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 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:
