Exhibit 10.9.3
THIS WARRANT AND THE SHARES OF CAPITAL STOCK ISSUED UPON ITS EXERCISE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED WITHOUT COMPLIANCE
WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND
STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM
THIS WARRANT AND THE SHARES OF CAPITAL STOCK ISSUED UPON ITS EXERCISE ARE
SUBJECT TO THE RESTRICTIONS ON TRANSFER
SET FORTH IN SECTION 6 OF THIS WARRANT
Date of Issuance: August __, 2006
BIOVEX GROUP, INC.
Common Stock Purchase Warrant
BIOVEX GROUP, INC., a Delaware corporation whose principal office is
located at 00 Xxxxxxxx Xxx, Xxxxxx, XX 00000, (the "Company"), for value
received, hereby certifies that EUROPEAN VENTURE PARTNERS II ANNEX LIMITED, a
public company with limited liability incorporated in Jersey under registered
number 93146 whose registered office is at St. Xxxx'x Xxxx, Xxx Xxxxxx, Xx.
Xxxxxx, Xxxxxx XX0 0XX, or its registered assigns (the "Registered Holder"), is
entitled, subject to the terms and conditions set forth below, to purchase from
the Company, at any time or from time to time following the closing of an
initial firm commitment underwritten public offering of the Company's Common
Stock (the "IPO") and before 5:00 p.m. (Boston time) on the Termination Date (as
defined below), up to the number of shares of Common Stock, $0.0001 par value
per share, of the Company ("Common Stock") determined as set forth below, at a
purchase price of $0.0001 per share. The shares purchasable upon exercise of
this Warrant, and the purchase price per share, each as adjusted from time to
time pursuant to the provisions of this Warrant, are hereinafter referred to as
the "Warrant Shares" and the "Purchase Price," respectively. This Warrant is
issued by the Company in connection with the transactions contemplated by a
Sub-Lease dated August __, 2006 among the Company, BioVex Limited, a
wholly-owned subsidiary of the Company, and Venture Leasing (UK) Annex Limited,
a wholly-owned subsidiary of the Registered Holder. The Company is
simultaneously issuing to the Registered Holder a Series D Preferred Stock
Purchase Warrant (the "Series D Warrant").
Upon exercise of this Warrant and subject to adjustment as set forth
herein, the Registered Holder shall be entitled to purchase up to an aggregate
number of shares of Common Stock equal to $574,200, divided by the initial
public offering price per share of Common Stock sold in the IPO.
LONDON 181981v4
Notwithstanding the foregoing, in the event that the IPO has not closed by
5:00 p.m. (Boston time) on December 31, 2006, this Warrant shall terminate and
thereafter be void and of no further force or effect and the Series D Warrant
shall be operative.
For purposes hereof, "Termination Date" shall be the earlier to occur of
(a) the fifth anniversary of the closing of the IPO, (b) the closing of a
Merger/Sale (as defined below) and (c) the exercise of the Series D Warrant;
provided however, that the Company shall provide written notice to the
Registered Holder of a pending Merger/Sale not less than twenty (20) days, nor
more than ninety (90) days, prior to the proposed closing of such Merger/Sale.
"Merger/Sale" shall mean the consummation of (i) the acquisition of the Company
by another entity by means of any transaction or series of related transactions
(including, without limitation, any reorganization, merger or consolidation)
that results in the transfer of 50% or more of the outstanding voting power of
the Company; provided, that the holders of record of the Company's outstanding
shares immediately before such reorganization, merger or consolidation do not,
immediately after such reorganization, merger or consolidation, hold (by virtue
of securities issued as consideration in such transaction or otherwise) a
majority of the voting power of the surviving company of such reorganization,
merger or consolidation; or (ii) the sale, transfer or other disposition of all
or substantially all of the Company's assets. For the avoidance of doubt, the
exercisability of the Series D Warrant and this Warrant shall be mutually
exclusive.
1. Exercise.
(a) Exercise for Cash. The Registered Holder may, at its option, elect
to exercise this Warrant, in whole or in part, by surrendering this Warrant,
with the purchase form appended hereto as Exhibit I duly executed by or on
behalf of the Registered Holder, at the principal office of the Company, or at
such other office or agency as the Company may designate, accompanied by payment
in full, in lawful money of the United States, of the Purchase Price payable in
respect of the number of Warrant Shares purchased upon such exercise.
(b) Cashless Exercise.
(i) The Registered Holder may, at its option, elect to exercise
this Warrant, in whole or in part, on a cashless basis, by surrendering this
Warrant, with the purchase form appended hereto as Exhibit I duly executed by or
on behalf of the Registered Holder, at the principal office of the Company, or
at such other office or agency as the Company may designate, by canceling a
portion of this Warrant in payment of the Purchase Price payable in respect of
the number of Warrant Shares purchased upon such exercise. In the event of an
exercise pursuant to this subsection 1(b), the number of Warrant Shares issued
to the Registered Holder shall be determined according to the following formula:
X = Y(A-B)
------
A
Where: X = the number of Warrant Shares that shall be issued to the
Registered Holder;
LONDON 181981v4
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Y = the number of Warrant Shares for which this Warrant is being
exercised (which shall include both the number of Warrant Shares
issued to the Registered Holder and the number of Warrant Shares
subject to the portion of the Warrant being cancelled in payment
of the Purchase Price);
A = the Fair Market Value (as defined below) of one share of Common
Stock; and
B = the Purchase Price then in effect.
(ii) The Fair Market Value per share of Common Stock shall be
determined as follows:
(1) If the Common Stock is listed on a national securities
exchange or an internationally recognized trading system as of the Exercise
Date, the Fair Market Value per share of Common Stock shall be deemed to be the
average of the closing sale prices per share of Common Stock thereon on the ten
(10) trading days (or all such trading days such Common Stock has been traded if
fewer than ten (10) trading days) immediately preceding the Exercise Date.
(2) If the Common Stock is not listed on a national
securities exchange or an internationally recognized trading system as of the
Exercise Date, the Fair Market Value per share of Common Stock shall be deemed
to be the price per share which the Company could obtain from a willing buyer
for shares of Common Stock sold by the Company from authorized but unissued
shares, as such price shall be determined by mutual agreement of the Company and
the Registered Holder. If the Company and the Registered Holder cannot agree on
such value, the fair market value shall be determined by a reputable independent
appraiser selected by the Company with the consent of the Registered Holder
(which consent shall not be unreasonably withheld) (the "Appraiser"), whose fees
and expenses shall be borne equally by the Company and the Registered Holder.
(c) Automatic Exercise. Notwithstanding the provisions of Section 1(a)
and (b), this Warrant shall automatically be deemed to undergo a cashless
exercise, without any further action on behalf of the Registered Holder
immediately prior to the liquidation, dissolution or winding up of the Company.
(d) Exercise Date. Each exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on the day on
which this Warrant shall have been surrendered to the Company as provided in
subsection 1(a), 1(b) or 1(c) above (the "Exercise Date"). At such time, the
person or persons in whose name or names any certificates for Warrant Shares
shall be issuable upon such exercise as provided in subsection 1(e) below shall
be deemed to have become the holder or holders of record of the Warrant Shares
represented by such certificates.
(e) Issuance of Certificates. As soon as practicable after the
exercise of this Warrant in whole or in part, and in any event within 10 days
thereafter, the Company, at its expense, will cause to be issued in the name of,
and delivered to, the Registered Holder, or as the
LONDON 181981v4
-3-
Registered Holder (upon payment by the Registered Holder of any applicable
transfer taxes) may direct:
(i) a certificate or certificates for the number of full Warrant
Shares to which the Registered Holder shall be entitled upon such exercise plus,
in lieu of any fractional share to which the Registered Holder would otherwise
be entitled, cash in an amount determined pursuant to Section 3 hereof; and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on the
face or faces thereof for the number of Warrant Shares equal (without giving
effect to any adjustment therein) to the number of such shares called for on the
face of this Warrant minus the number of Warrant Shares for which this Warrant
was so exercised (which, in the case of an exercise pursuant to subsection 1(b),
shall include both the number of Warrant Shares issued to the Registered Holder
pursuant to such partial exercise and the number of Warrant Shares subject to
the portion of the Warrant being cancelled in payment of the Purchase Price).
2. Adjustments.
(a) Adjustment for Stock Splits and Combinations. If the Company shall
at any time or from time to time after the date on which this Warrant was first
issued (or, if this Warrant was issued upon partial exercise of, or in
replacement of, another warrant of like tenor, then the date on which such
original warrant was first issued) (either such date being referred to as the
"Original Issue Date") effect a subdivision of the outstanding Common Stock, the
Purchase Price then in effect immediately before that subdivision shall be
proportionately decreased. If the Company shall at any time or from time to time
after the Original Issue Date combine the outstanding shares of Common Stock,
the Purchase Price then in effect immediately before the combination shall be
proportionately increased. The aggregate Purchase Price payable for the total
number of Warrant Shares purchasable under this Warrant (as adjusted) shall
remain the same. Any adjustment under this paragraph shall become effective at
the close of business on the date the subdivision or combination becomes
effective.
(b) Adjustment for Certain Dividends and Distributions. In the event
the Company at any time, or from time to time after the Original Issue Date
shall make or issue, or fix a record date for the determination of holders of
Common Stock entitled to receive, a dividend or other distribution payable in
additional shares of Common Stock, then and in each such event the Purchase
Price then in effect immediately before such event shall be decreased as of the
time of such issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the Purchase
Price then in effect by a fraction:
(1) the numerator of which shall be the total number of
shares of Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date, and
(2) the denominator of which shall be the total number of
shares of Common Stock issued and outstanding immediately prior to the time of
such issuance
LONDON 181981v4
-4-
or the close of business on such record date plus the number of shares of Common
Stock issuable in payment of such dividend or distribution;
provided, however, that if such record date shall have been fixed and such
dividend is not fully paid or if such distribution is not fully made on the date
fixed therefor, the Purchase Price shall be recomputed accordingly as of the
close of business on such record date and thereafter the Purchase Price shall be
adjusted pursuant to this paragraph as of the time of actual payment of such
dividends or distributions.
(c) Adjustment in Number of Warrant Shares. When any adjustment is
required to be made in the Purchase Price pursuant to subsections 2(a) or 2(b),
the number of Warrant Shares purchasable upon the exercise of this Warrant shall
be changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior to
such adjustment, multiplied by the Purchase Price in effect immediately prior to
such adjustment, by (ii) the Purchase Price in effect immediately after such
adjustment.
(d) Adjustments for Other Dividends and Distributions. In the event
the Company at any time or from time to time after the Original Issue Date shall
make or issue, or fix a record date for the determination of holders of Common
Stock entitled to receive, a dividend or other distribution payable in
securities of the Company (other than shares of Common Stock) or in cash or
other property (other than regular cash dividends paid out of earnings or earned
surplus, determined in accordance with generally accepted accounting
principles), then and in each such event provision shall be made so that the
Registered Holder shall receive upon exercise hereof, in addition to the number
of shares of Common Stock issuable hereunder, the kind and amount of securities
of the Company, cash or other property which the Registered Holder would have
been entitled to receive had this Warrant been exercised on the date of such
event and had the Registered Holder thereafter, during the period from the date
of such event to and including the Exercise Date, retained any such securities
receivable during such period, giving application to all adjustments called for
during such period under this Section 2 with respect to the rights of the
Registered Holder.
(e) Adjustment for Reorganization. If there shall occur any
reorganization, recapitalization, reclassification, consolidation or merger
involving the Company in which the Common Stock is converted into or exchanged
for securities, cash or other property (other than a transaction covered by
subsections 2(a), 2(b) or 2(d)) (collectively, a "Reorganization"), then,
following such Reorganization, the Registered Holder shall receive upon exercise
hereof the kind and amount of securities, cash or other property which the
Registered Holder would have been entitled to receive pursuant to such
Reorganization if such exercise had taken place immediately prior to such
Reorganization. In any such case, appropriate adjustment (as determined in good
faith by the Board) shall be made in the application of the provisions set forth
herein with respect to the rights and interests thereafter of the Registered
Holder, to the end that the provisions set forth in this Section 2 (including
provisions with respect to changes in and other adjustments of the Purchase
Price) shall thereafter be applicable, as nearly as reasonably may be, in
relation to any securities, cash or other property thereafter deliverable upon
the exercise of this Warrant.
LONDON 181981v4
-5-
(f) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Purchase Price pursuant to this Section 2, the
Company at its expense shall, as promptly as reasonably practicable but in any
event not later than 10 days thereafter, compute such adjustment or readjustment
in accordance with the terms hereof and furnish to the Registered Holder a
certificate setting forth such adjustment or readjustment (including the kind
and amount of securities, cash or other property for which this Warrant shall be
exercisable and the Purchase Price) and showing in detail the facts upon which
such adjustment or readjustment is based. The Company shall, as promptly as
reasonably practicable after the written request at any time of the Registered
Holder (but in any event not later than 10 days thereafter), furnish or cause to
be furnished to the Registered Holder a certificate setting forth (i) the
Purchase Price then in effect and (ii) the number of shares of Common Stock and
the amount, if any, of other securities, cash or property which then would be
received upon the exercise of this Warrant.
3. Fractional Shares. The Company shall not be required upon the exercise
of this Warrant to issue any fractional shares, but shall pay the value thereof
to the Registered Holder in cash on the basis of the Fair Market Value per share
of Common Stock, as determined pursuant to subsection 1(b)(ii) above.
4. Investment Representations. The initial Registered Holder represents and
warrants to the Company as follows:
(a) Investment. It is acquiring the Warrant, and (if and when it
exercises this Warrant) it will acquire the Warrant Shares, for its own account
for investment and not with a view to, or for sale in connection with, any
distribution thereof, nor with any present intention of distributing or selling
the same; and the Registered Holder has no present or contemplated agreement,
undertaking, arrangement, obligation, indebtedness or commitment providing for
the disposition thereof.
(b) Accredited Investor. The Registered Holder is an "accredited
investor" as defined in Rule 501(a) under the Securities Act of 1933, as amended
(the "Act").
(c) Experience. The Registered Holder has made such inquiry concerning
the Company and its business and personnel as it has deemed appropriate; and the
Registered Holder has sufficient knowledge and experience in finance and
business that it is capable of evaluating the risks and merits of its investment
in the Company.
5. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Registered Holder that:
(a) This Warrant has been duly authorized, executed and delivered by
the Company and constitutes the valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable remedies;
(b) The Warrant Shares have been duly authorized and reserved for
issuance by the Company and, when issued or converted in accordance with the
terms hereof, will be
LONDON 181981v4
-6-
validly issued, fully paid and nonassessable, free of any liens, charges,
pre-emptive rights, rights of first refusal and any other third party right with
respect to the issue thereof;
(c) The execution and delivery of this Warrant, the issuance of this
Warrant, the issuance of the Common Stock upon exercise or conversion of this
Warrant in accordance with the terms hereof and the compliance by the Company
with the provisions hereof (i) do not and will not conflict with the Certificate
or the Company's By-laws, (ii) to its knowledge, do not and will not contravene
any law, governmental rule or regulation, judgment or order applicable to the
Company, and (iii) do not and, to its knowledge, will not contravene any
provision of, or constitute a default under, any indenture, mortgage, contract
or other instrument to which the Company is a party or by which it is bound or
require the consent or approval of, the giving of notice to, the registration
with or the taking of any action in respect of or by, any Federal, state or
local government authority or agency or other person, other than applicable
federal and state securities law filings, which the Company shall complete
within the applicable periods of time.
(d) The Company received all consents and/or approvals of any third
party required in respect of the issuance of the Warrant Shares pursuant to any
applicable laws and/or regulation and/or agreement and/or other instrument to
which the Company is party and/or by which it is bound.
6. Transfers, etc.
(a) This Warrant and the Warrant Shares shall not be sold or
transferred unless either (i) they first shall have been registered under the
Act, or (ii) the Company first shall have been furnished with an opinion of
legal counsel, reasonably satisfactory to the Company, to the effect that such
sale or transfer is exempt from the registration requirements of the Act.
Notwithstanding the foregoing, no registration or opinion of counsel shall be
required for (i) a transfer by a Registered Holder which is an entity to a
wholly owned subsidiary of such entity, a transfer by a Registered Holder which
is a partnership to a partner of such partnership or a retired partner of such
partnership or to the estate of any such partner or retired partner, or a
transfer by a Registered Holder which is a limited liability company to a member
of such limited liability company or a retired member or to the estate of any
such member or retired member, provided that the transferee in each case agrees
in writing to be subject to the terms of this Section 6, or (ii) a transfer made
in accordance with Rule 144 under the Act. Without limiting the generality of
the foregoing, the rights of the Registered Holder under this Warrant may be
assigned in whole or in part to Deutsche Trustee Company Limited, Deutsche Bank
AG London and to any third party who controls, is controlled by or is under
common control with the Registered Holder and to European Venture Partners II
Leveraged Venture Leasing Company Limited.
(b) Each certificate representing Warrant Shares shall bear a legend
substantially in the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may
not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such securities are registered
under
LONDON 181981v4
-7-
such Act or an opinion of counsel satisfactory to the Company is
obtained to the effect that such registration is not required."
The foregoing legend shall be removed from the certificates representing any
Warrant Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Act.
(c) The Company will maintain a register containing the name and
address of the Registered Holder of this Warrant. The Registered Holder may
change its address as shown on the warrant register by written notice to the
Company requesting such change.
(d) Subject to the provisions of Section 6 hereof, this Warrant and
all rights hereunder are transferable, in whole or in part, upon surrender of
this Warrant with a properly executed assignment (in the form of Exhibit II
hereto) at the principal office of the Company (or, if another office or agency
has been designated by the Company for such purpose, then at such other office
or agency).
7. No Impairment. The Company will not, by amendment of its charter or
by-laws or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Registered Holder against
impairment.
8. Notices of Record Date, etc. In the event:
(a) the Company shall take a record of the holders of its Common Stock
(or other stock or securities at the time deliverable upon the exercise of this
Warrant) for the purpose of entitling or enabling them to receive any dividend
or other distribution, or to receive any right to subscribe for or purchase any
shares of stock of any class or any other securities, or to receive any other
right; or
(b) of any capital reorganization of the Company, any reclassification
of the Common Stock of the Company, any consolidation or merger of the Company
with or into another corporation (other than a consolidation or merger in which
the Company is the surviving entity and its Common Stock is not converted into
or exchanged for any other securities or property), or any transfer of all or
substantially all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company will send or cause to be sent to the
Registered Holder a notice specifying, as the case may be, (i) the record date
for such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable
LONDON 181981v4
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upon the exercise of this Warrant) shall be entitled to exchange their shares of
Common Stock (or such other stock or securities) for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, transfer, dissolution, liquidation or winding up. Such notice shall be
sent at lease twenty (20) days prior to the record date or effective date for
the event specified in such notice.
9. Reservation of Stock. All Warrant Shares that may be issued upon the
valid exercise of this Warrant (including payment of the Purchase Price), shall,
upon issuance, be duly authorized, validly issued, fully paid and nonassessable,
and free from any liens, encumbrances or third party rights. The Company will at
all times reserve and keep available, solely for issuance and delivery upon the
exercise of this Warrant, such number of Warrant Shares and other securities,
cash and/or property, as from time to time shall be issuable upon the exercise
of this Warrant. Upon issuance of the Warrant Shares upon exercise of this
Warrant, the rights of the Warrant Shares will be as set forth in the Company's
Certificate of Incorporation, as amended to such date.
10. Exchange or Replacement of Warrants.
(a) Upon the surrender by the Registered Holder, properly endorsed, to
the Company at the principal office of the Company, the Company will, subject to
the provisions of Section 6 hereof, issue and deliver to or upon the order of
the Registered Holder, at the Company's expense, a new Warrant or Warrants of
like tenor, in the name of the Registered Holder or as the Registered Holder
(upon payment by the Registered Holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock (or other securities, cash and/or property) then issuable
upon exercise of this Warrant.
(b) Upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant and (in the case of
loss, theft or destruction) upon delivery of an indemnity agreement (with surety
if reasonably required) in an amount reasonably satisfactory to the Company, or
(in the case of mutilation) upon surrender and cancellation of this Warrant, the
Company will issue, in lieu thereof, a new Warrant of like tenor.
11. Lock-up Agreement. As a condition to the issuance of this Warrant, the
Registered Holder (a) shall execute and deliver to the Company and the
underwriters named therein the lock-up agreement attached hereto as Exhibit III,
and (b) additionally agrees that it shall enter into any other or additional
form of lock up agreement with any other underwriter engaged by the Company in
connection with the IPO, providing that the Registered Holder shall not sell any
shares of capital stock of the Company without the consent of such underwriters
for a period of not more than 180 days following the effective date of the
registration statement relating to such offering, provided that all officers and
directors of the Company and all two percent (2%) stockholders enter into
substantially the same agreement.
12. Notices. All notices and other communications from the Company to the
Registered Holder in connection herewith shall be mailed by certified or
registered mail, postage prepaid, or sent via a reputable nationwide overnight
courier service guaranteeing next business day delivery, to (i) its registered
office set forth in the first paragraph of this Warrant and (ii)
LONDON 181981v4
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Xxxxxxxx Xxxxx, 00-00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx X0X 0XX, Attn: Xxxxxxxx
Xxxxxxxx, with a copy, which shall not constitute notice, to Xxxxxxxxxxxx Xxxx
and Xxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attn:
Xxxxxx Xxxxxx, Esq. or to such other address furnished to the Company in writing
by the Registered Holder. All notices and other communications from the
Registered Holder to the Company in connection herewith shall be mailed by
certified or registered mail, postage prepaid, or sent via a reputable
nationwide overnight courier service guaranteeing next business day delivery, to
the Company at its principal office set forth below. If the Company should at
any time change the location of its principal office to a place other than as
set forth below, it shall give prompt written notice to the Registered Holder
and thereafter all references in this Warrant to the location of its principal
office at the particular time shall be as so specified in such notice. All such
notices and communications shall be deemed delivered (i) two business days after
being sent by certified or registered mail, return receipt requested, postage
prepaid, or (ii) one business day after being sent via a reputable nationwide
overnight courier service guaranteeing next business day delivery.
13. No Rights as Stockholder. Until the exercise of this Warrant, the
Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company, except as set forth herein.
14. Amendment or Waiver. Any term of this Warrant may be amended or waived
only by an instrument in writing signed by the party against which enforcement
of the change or waiver is sought. No waivers of any term, condition or
provision of this Warrant, in any one or more instances, shall be deemed to be,
or construed as, a further or continuing waiver of any such term, condition or
provision.
15. Section Headings. The section headings in this Warrant are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
16. Governing Law. This Warrant will be governed by and construed in
accordance with the internal laws of the State of Delaware (without reference to
the conflicts of law provisions thereof).
17. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS WARRANT OR THE TRANSACTIONS
CONTEMPLATED BY THIS WARRANT.
18. Counterparts. This Warrant may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
19. Facsimile Signatures. This Warrant may be executed by facsimile
signature.
LONDON 181981v4
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IN WITNESS WHEREOF, the undersigned parties have executed this Warrant as
of August ___, 2006.
BIOVEX GROUP, INC.
By:
------------------------------------
Xxxxxx Xxxxxx-Xxxxxx
President and Chief Financial
Officer
EUROPEAN VENTURE PARTNERS II
ANNEX LIMITED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LONDON 181981v4
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EXHIBIT I
PURCHASE FORM
To: ________________ Dated: ___________
The undersigned, pursuant to the provisions set forth in the attached
Warrant (No. ___), hereby elects to purchase (check applicable box):
____ shares of the Common Stock of BioVex Group, Inc. covered by such
Warrant; or
the maximum number of shares of Common Stock covered by such Warrant
pursuant to the cashless exercise procedure set forth in subsection 1(b).
The undersigned herewith makes payment of the full purchase price for such
shares at the price per share provided for in such Warrant. Such payment takes
the form of (check applicable box or boxes):
$______ in lawful money of the United States; and/or
the cancellation of such portion of the attached Warrant as is
exercisable for a total of _____ Warrant Shares (using a Fair Market Value
of $_____ per share for purposes of this calculation) ; and/or
the cancellation of such number of Warrant Shares as is necessary, in
accordance with the formula set forth in subsection 1(b), to exercise this
Warrant with respect to the maximum number of Warrant Shares purchasable
pursuant to the cashless exercise procedure set forth in subsection 1(b).
Please issue a certificate or certificates representing said shares in the
name of the undersigned as specified below:
-------------------------------
Signature:
-----------------------------
Address:
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LONDON 181981v4
-12-
EXHIBIT II
ASSIGNMENT FORM
FOR VALUE RECEIVED, ________________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (No. ____) with respect to the number of shares of Common Stock of
BioVex Group, Inc. covered thereby set forth below, unto:
Name of Assignee Address No. of Shares
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Dated: Signature:
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LONDON 181981v4
-13-
EXHIBIT I
FORM OF LOCK-UP AGREEMENT
LONDON 181981v4
-14-
