Exhibit 10.8.2
THIS NOTE AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR PURSUANT TO RULE 144 UNDER SUCH
ACT.
THIS NOTE AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF MAY NOT BE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, PURSUANT TO REGISTRATION UNDER THE
SECURITIES ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING
TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE SECURITIES ACT.
CONVERTIBLE PROMISSORY NOTE
No. ____ Date of Issuance
$____________ August __, 2006
FOR VALUE RECEIVED, BioVex Group, Inc., a Delaware corporation (the
"Company"), hereby promises to pay __________________ (the "Lender"), the
principal sum of __________________ ($_____________), together with interest
thereon from the date of this Note. Interest shall accrue at a rate of 8% per
annum, compounded annually based on the actual number of days elapsed over a
year of 360 days. Unless earlier converted into Conversion Shares pursuant to
Section 2.2 of the Note and Warrant Purchase Agreement dated August __, 2006
among the Company, Lender and certain other lenders (the "Purchase Agreement"),
the principal and accrued interest shall be due and payable by the Company on
demand by the holder hereof at any time after the Maturity Date; provided that
the Majority Note Holders shall have consented to such demand.
This Note is one of a series of Notes issued pursuant to the Purchase
Agreement and shall be governed by and construed in accordance with the terms of
the Purchase Agreement. Capitalized terms not defined herein shall have the
meaning set forth in the Purchase Agreement.
1. PAYMENT. All payments shall be made in lawful money of the United States
of America at the principal office of the Company, or at such other place as the
holder hereof may from time to time designate in writing to the Company. Payment
shall be credited first to accrued interest due and payable and any remainder
applied to principal. Prepayment of all or a portion of the principal, together
with accrued interest, may be made at any time on or before the Maturity Date
pro rata among the notes issued pursuant to the Purchase Agreement. In
accordance with the terms of Section 2.2(b) of the Purchase Agreement, in the
event of a Sale of the Company, this Note, and any accrued interest thereon,
plus the Premium shall, at the election of the Lender, (i) be prepaid by the
Company or (ii) be automatically converted into
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Conversion Shares. The Company hereby waives demand, notice, presentment,
protest and notice of dishonor.
2. SECURITY. This Note is a general unsecured obligation of the Company.
3. CONVERSION OF THE NOTES. This Note and any amounts due hereunder shall
only be convertible into Conversion Shares in accordance with the terms of
Section 2.2 of the Purchase Agreement. As promptly as practicable after the
conversion of this Note, the Company at its expense shall issue and deliver to
the holder of this Note, upon surrender of the Note, a certificate or
certificates for the number of full Conversion Shares issuable upon such
conversion.
4. AMENDMENTS AND WAIVERS; RESOLUTIONS OF DISPUTE; NOTICE. The amendment or
waiver of any term of this Note, the resolution of any controversy or claim
arising out of or relating to this Note and the provision of notice shall be
conducted pursuant to the terms of the Purchase Agreement.
5. SUCCESSORS AND ASSIGNS. This Note applies to, inures to the benefit of,
and binds the successors and assigns of the parties hereto; provided, however,
that the Company may not assign its obligations under this Note without the
written consent of the Majority Note Holders. Any transfer of this Note may be
effected only pursuant to the Purchase Agreement and by surrender of this Note
to the Company and reissuance of a new note to the transferee. The Lender and
any subsequent holder of this Note receives this Note subject to the foregoing
terms and conditions, and agrees to comply with the foregoing terms and
conditions for the benefit of the Company and any other Lenders.
6. OFFICERS AND DIRECTORS NOT LIABLE. In no event shall any officer or
director of the Company be liable for any amounts due and payable pursuant to
this Note.
7. GOVERNING LAW. This Note shall be governed by and construed under the
laws of the Commonwealth of Massachusetts as applied to other instruments made
by Massachusetts residents to be performed entirely within the Commonwealth of
Massachusetts.
8. APPROVAL. The Company hereby represents that its board of directors, in
the exercise of its fiduciary duty, has approved the Company's execution of this
Convertible Promissory Note based upon a reasonable belief that the principal
provided hereunder is appropriate for the Company after reasonable inquiry
concerning the Company's financing objectives and financial situation. In
addition, the Company hereby represents that it intends to use the principal of
this Convertible Promissory Note primarily for the operations of its business,
and not for any personal, family or household purpose.
BIOVEX GROUP, INC.
By:
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Xxxxxx Xxxxxx-Xxxxxx
President and Chief
Financial Officer
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