Exhibit 10.9.4
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
Number of Shares: 404,366
(subject to adjustment)
Date of Issuance: August __, 2006
BIOVEX GROUP, INC.
Series D Preferred 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 (i) prior to 5:00 p.m. (Boston
time) on December 31, 2006 (so long as an IPO (as defined below) or the
Termination Date shall not have occurred), and (ii) after 5.01 p.m. (Boston
time) on December 31, 2006 and before 5.00 p.m. (Boston time) on the Termination
Date (as defined below), up to 404,366 shares of Series D Preferred Stock,
$0.0001 par value per share (the "Series D Preferred Stock") of the Company (the
"Warrant Shares"). The purchase price per Warrant Share shall be $0.0001
(subject to adjustment as provided herein). The shares purchasable upon exercise
of this Warrant, and the purchase price per share, are hereinafter referred to
as the "Warrant Shares" and the "Purchase Price," respectively. The Series D
Preferred Stock shall have the rights, restrictions and privileges set forth in
the Restated Certificate of Incorporation of the Company, as amended or restated
from time to time (the "Certificate of Incorporation"). This Warrant is issued
by the Company in connection with the transactions contemplated pursuant to 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 Common Stock Purchase Warrant
(the "Common Warrant").
Notwithstanding the foregoing, in the event that an initial firm commitment
underwritten public offering of the Company's Common Stock (the "IPO") closes at
any time prior to 5.00 p.m. on December 31, 2006, this Warrant shall immediately
terminate and shall thereafter be void and of no further force or effect and the
Common Warrant shall be operative.
LONDON 181973v4
For purposes hereof, "Termination Date" shall be the earliest to occur of
(a) the tenth anniversary hereof, (b) the closing of a Merger/Sale (as defined
below) and (c) the exercise of the Common 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 Common Warrant and this Warrant shall be mutually
exclusive.
1. Exercise.
(a) Exercise for Cash. This Warrant may be exercised by the Registered
Holder, in whole or in part, by surrendering this Warrant, with the purchase
form appended hereto as Exhibit I duly executed by such Registered Holder or by
such Registered Holder's duly authorized attorney, 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. The Registered Holder may, at its option, pay
the Purchase Price by canceling the portion of this Warrant as is determined by
dividing (i) the total Purchase Price payable in respect of the number of
Warrant Shares being purchased upon such exercise by (ii) the excess of the Fair
Market Value (defined below) per share of Series D Preferred Stock as of the
Exercise Date (as defined in Section 1(d) below) over the Purchase Price per
share. If the Registered Holder wishes to exercise this Warrant pursuant to this
method of payment, with respect to the maximum number of Warrant Shares
purchasable pursuant to this method, then the number of Warrant Shares so
purchasable shall be equal to the total number of exercisable Warrant Shares,
minus the product obtained by multiplying (x) the total number of exercisable
Warrant Shares by (y) a fraction, the numerator of which shall be the Purchase
Price per share and the denominator of which shall be the Fair Market Value per
share of Series D Preferred Stock as of the Exercise Date. The Fair Market Value
per share of Series D Preferred Stock shall be deemed to be the price per share
which the Company could obtain from a willing buyer for shares of Series D
Preferred 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.
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(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 full 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 such Registered Holder (upon
payment by such Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full Warrant
Shares to which such Registered Holder shall be entitled upon such exercise
plus, in lieu of any fractional share to which such 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, including but not limited
to the date of issuance, 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 sum of (a) the number of such shares purchased by
the Registered Holder upon such exercise plus (b) the number of Warrant
Shares (if any) covered by the portion of this Warrant canceled in payment
of the Purchase Price payable upon such exercise pursuant to subsection
1(b) above.
2. Adjustments.
(a) Adjustment for Conversion of Preferred Stock. If all of the
outstanding shares of Series D Preferred Stock are converted into Common Stock
of the Company (in connection with the IPO or otherwise) in accordance with the
terms of the Certificate of Incorporation, then, effective upon such conversion,
(i) this Warrant shall be exercisable for such number of shares of Common Stock
as is equal to the number of shares of Common Stock that each share of Series D
Preferred Stock was converted into, multiplied by the number of shares of Series
D Preferred Stock subject to this Warrant immediately prior to such conversion,
(ii) the Purchase Price shall be the Purchase Price in effect immediately prior
to such conversion divided by the number of shares of Common Stock into which
each share of Series D Preferred Stock was converted, and (iii) all references
in this Warrant to "Series D Preferred Stock" shall thereafter be deemed to
refer to "Common Stock." On the date hereof, every ten (10) shares of Series D
Preferred Stock are convertible into one (1) share of Common Stock.
LONDON 181973v4
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(b) Stock Splits and Combinations of Preferred Stock. If outstanding
shares of the Company's Series D Preferred Stock shall be subdivided into a
greater number of shares or a dividend shall be paid in respect of the Series D
Preferred Stock other than accruing dividends payable pursuant to the
Certificate of Incorporation, the Purchase Price in effect immediately prior to
such subdivision or at the record date of such dividend shall simultaneously
with the effectiveness of such subdivision or immediately after the record date
of such dividend be proportionately reduced. If outstanding shares of Series D
Preferred Stock shall be combined into a smaller number of shares, the Purchase
Price with respect to such shares of Series D Preferred Stock in effect
immediately prior to such combination shall, simultaneously with the
effectiveness of such combination, 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. When any adjustment is
required to be made in the Purchase Price in accordance with this Section 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.
(c) Stock Splits and Combinations of Common Stock. After any mandatory
conversion of shares of Series D Preferred Stock pursuant to the Company's
Certificate of Incorporation, (i) if outstanding shares of the Company's Common
Stock shall be subdivided into a greater number of shares or a dividend in
Common Stock shall be paid in respect of Common Stock, the Purchase Price in
effect immediately prior to such subdivision or at the record date of such
dividend shall simultaneously with the effectiveness of such subdivision or
immediately after the record date of such dividend be proportionately reduced
and (ii) if outstanding shares of Common Stock shall be combined into a smaller
number of shares, the Purchase Price with respect to such shares of Common Stock
in effect immediately prior to such combination shall, simultaneously with the
effectiveness of such combination, 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. When any adjustment is
required to be made in the Purchase Price pursuant to this Section 2(c), 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) Adjustment for Reorganization. If there shall occur any capital
reorganization or reclassification of the Company's capital stock of the same
type, class and series as the Warrant Shares then issuable upon exercise of this
Warrant (other than a change in par value or a subdivision or combination as
provided for in subsection 2(b) or 2(c) above), or any consolidation or merger
of the Company with or into another corporation, whether or not the Company is
the surviving corporation, then, as part of any such reorganization,
reclassification, consolidation or merger, as the case may be, lawful provision
shall be made so that the Registered Holder of this Warrant shall have the right
thereafter to receive upon the exercise hereof the kind and amount of shares of
stock or other securities or property which such Registered Holder would have
been entitled to receive if, immediately prior to any such
LONDON 181973v4
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reorganization, reclassification, consolidation or merger, as the case may be,
such Registered Holder had held the number of shares of Series D Preferred Stock
which were then purchasable upon the exercise of this Warrant. In any such case,
appropriate adjustment (as reasonably determined in good faith by the Board of
Directors of the Company) shall be made in the application of the provisions set
forth herein with respect to the rights and interests thereafter of the
Registered Holder of this Warrant, such that the provisions set forth in this
Section 2 (including provisions with respect to adjustment of the Purchase
Price) shall thereafter be applicable, as nearly as is reasonably practicable,
in relation to any shares of stock or other securities or property thereafter
deliverable upon the exercise of this Warrant.
(e) Other Antidilution Protections. Additional antidilution rights
applicable to the Series D Preferred Stock purchasable hereunder are as set
forth in the Certificate of Incorporation. The Company shall promptly provide
the Registered Holder with any restatement, amendment, modification or waiver of
the Certificate of Incorporation.
(f) Notice of Adjustments. When any adjustment is required to be made
in the Purchase Price, the Company shall promptly mail to the Registered Holder
a certificate setting forth the Purchase Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment. Such certificate
shall also set forth the kind and amount of stock or other securities or
property into which this Warrant shall be exercisable following the occurrence
of any of the events specified in subsection 2(b), (c), (d) or (e) above.
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 Series D Preferred Stock (or Common Stock if there has been a mandatory
conversion of the Series D Preferred Stock pursuant to Section 2(a) above), as
determined pursuant to subsection 1(b) above.
4. Reservation of Stock. 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 stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant and such number
of shares of Common Stock, as from time to time shall be issuable upon
conversion of the Warrant Shares.
5. Representations, Warranties and Covenants of the Company.
(a) Reservation of Series D Preferred Stock. The Series D Preferred
Stock issuable upon exercise of this Warrant has been duly and validly reserved
and, when issued in accordance with the provisions of this Warrant, will be
validly issued, fully paid and non-assessable, and will be free of any taxes,
liens, charges or encumbrances of any nature whatsoever; provided, however, that
the Series D Preferred Stock issuable pursuant to this Warrant may be subject to
restrictions on transfer under state and/or Federal securities laws. The Company
has made available to the Registered Holder true, correct and complete copies of
its Certificate of Incorporation and Bylaws, as amended as of the date of this
Warrant. The issuance of certificates for shares of Series D Preferred Stock
upon exercise of the Warrant shall be made without charge to the Registered
Holder for any issuance tax in respect thereof, or other cost incurred by the
Company in connection with such exercise and the related issuance of shares of
LONDON 181973v4
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Series D Preferred Stock, provided that the Company shall not be required to pay
any tax which may be payable in respect of any transfer involved and the
issuance and delivery of any certificate in a name other than that of the
Registered Holder.
(b) Due Authority. The execution and delivery by the Company of this
Warrant and the performance of all obligations of the Company hereunder, have
been duly authorized by all necessary corporate action on the part of the
Company, and this Warrant does not contravene any provision of, or constitute a
default under, any indenture, mortgage, contract or other instrument to which it
is a party or by which it is bound, and this Warrant constitutes a legal, valid
and binding agreement of the Company, enforceable in accordance with its terms.
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. Requirements for Transfer.
(a) This Warrant and the Warrant Shares shall not be sold or
transferred unless either (i) they first shall have been registered under the
Securities Act of 1933, as amended (the "Act"), or (ii) the Company first shall
have been furnished with an opinion of legal counsel of the Registered Holder
(such opinion may be from the Registered Holder's inside counsel), reasonably
satisfactory to the Company, to the effect that such sale or transfer is exempt
from the registration requirements of the Act.
(b) Notwithstanding the foregoing, no registration or opinion of
counsel shall be required for (i) a transfer by a Registered Holder which is a
corporation to a wholly owned subsidiary of such corporation or to a parent of
such corporation, a transfer by a Registered Holder which is a partnership to a
partner of such partnership or a retired partner of such partnership who retires
after the date hereof, or to the estate of any such partner or retired partner,
or to its nominee or from such nominee to its beneficial owner, if the
transferee agrees in writing to be subject to the terms of this Section 6,
provided that, in no event shall such transferee be a competitor of the Company
or (ii) a transfer made in accordance with Rule 144 under the Act. Without
limiting the generality of the foregoing, the rights of the 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 Holder and to European Venture Partners II
Leveraged Venture Leasing Company Limited.
(c) 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 such Act or an
opinion of counsel satisfactory to the Company is obtained to the
effect that such registration is not required."
-6-
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.
7. Representations of the Registered Holder. The 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, and the shares of
Common Stock into which the Warrant Shares may be converted, 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.
8. No Impairment. The Company will not, by amendment of its charter or
by-laws or through 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 holder of this Warrant against impairment.
9. Notices of Record Date, etc. In case:
(a) the Company shall take a record of the holders of its Series D
Preferred 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 capital 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), 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 mail or cause to be mailed to the
Registered Holder of this Warrant a notice specifying, as the case may be, (i)
the date on which a record is
LONDON 181973v4
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to be taken for the purpose of such dividend, distribution or right, and stating
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 Series D
Preferred Stock (or such other stock or securities at the time deliverable upon
the exercise of this Warrant) shall be entitled to exchange their shares of
Series D Preferred 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 mailed at least fifteen (15) days prior to the record date or
effective date for the event specified in such notice.
10. Exchange of Warrants. Upon the surrender by the Registered Holder of
any Warrant or Warrants, 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 such Registered Holder, at the
Company's expense, a new Warrant or Warrants of like tenor, in the name of such
Registered Holder or as such Registered Holder (upon payment by such 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 Series D Preferred Stock
called for on the face or faces of the Warrant or Warrants so surrendered.
11. Replacement of Warrants. 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.
12. Transfers, etc.
(a) The Company will maintain a register containing the names and
addresses of the Registered Holders of this Warrant. Any Registered Holder may
change its or his address as shown on the warrant register by written notice to
the Company requesting such change.
(b) 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.
(c) Until any transfer of this Warrant is made in the warrant
register, the Company may treat the Registered Holder of this Warrant as the
absolute owner hereof for all purposes; provided, however, that if and when this
Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
13. Lock-up Agreement; Stockholders' Agreement.
(a) As a condition to the issuance of this Warrant, the Registered
Holder agrees that it shall enter into any 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
LONDON 181973v4
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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.
(b) As a condition to the exercise of this Warrant (in whole or in
part), the Registered Holder agrees that it shall become a party to the
Stockholders' Agreement of the Company dated as of August 30, 2005, as the same
may be amended from time to time, as a "Preferred Holder" thereunder.
14. 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) 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.
15. No Rights as Stockholder. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company, except as set forth herein.
16. Information. The Company shall deliver to the registered Holder hereof
such information as may be delivered from time to time by the Company to the
holders of the Series D Preferred Stock pursuant to Section 6.1 of the
Stockholders' Agreement of the Company dated as of August 31, 2005, as and when
so delivered. The foregoing covenant shall terminate upon the closing of the
IPO.
17. Change or Waiver. Any term of this Warrant may be changed 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.
LONDON 181973v4
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18. 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.
19. 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 conflict of law provisions thereof).
20. 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.
21. 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.
22. Facsimile Signatures. This Warrant may be executed by facsimile
signature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
LONDON 181973v4
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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 181973v4
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EXHIBIT I
PURCHASE FORM
To: BioVex Group, Inc., Company Secretary
Dated: ______________
The undersigned, pursuant to the provisions set forth in the attached
Warrant, hereby irrevocably elects to purchase _____ shares of the [Series D
Preferred Stock] [Common Stock] covered by such Warrant. The undersigned
herewith makes payment of $____________, representing 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).
Please issue a certificate or certificates representing said shares in the
name of the undersigned as specified below:
-------------------------------
Signature:
-----------------------------
Address:
-------------------------------
----------------------------------------
LONDON 181973v4
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EXHIBIT II
ASSIGNMENT FORM
FOR VALUE RECEIVED, _______________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant with respect to the number of Warrant Shares covered thereby set forth
below, unto:
Name of Assignee Address No. of Shares
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Dated: Signature:
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Dated: Witness:
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LONDON 181973v4
-13-
EXHIBIT III
LOCK UP AGREEMENT
Attached
LONDON 181973v4
-14-
