Exhibit 10.8.3
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. 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, 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.
THESE SECURITIES 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.
Date of Issuance Void after
August __, 2006 August __, 2013
BIOVEX GROUP, INC.
WARRANT TO PURCHASE SHARES OF CAPITAL STOCK
For the mutual promises and other consideration contemplated by the
Note and Warrant Purchase Agreement (the "Purchase Agreement") dated as of
August __, 2006, the receipt and sufficiency of which are hereby acknowledged,
this Warrant is issued to _____________________________________ or its assigns
(the "Holder") by BioVex Group, Inc., a Delaware corporation (the "Company").
Capitalized terms not defined herein shall have the meaning set forth in the
Purchase Agreement.
1. PURCHASE OF SHARES.
(a) Number of Shares Issuable. Subject to the terms and
conditions set forth herein and set forth in the Purchase Agreement, the Holder
is entitled, upon surrender of this Warrant at the principal office of the
Company (or at such other place as the Company shall notify the Holder in
writing), to purchase from the Company up to the number of fully paid and
nonassessable Warrant Shares as described in the Purchase Agreement (as adjusted
pursuant to Section 6 hereof).
(b) Exercise Price. The purchase price for the Warrant Shares
issuable pursuant to this Section 1 shall be equal to the Exercise Price defined
in Section 1 of the Purchase Agreement. The Warrant Shares and the purchase
price of such Warrant Shares shall be subject to adjustment pursuant to Section
6 hereof. Such purchase price, as adjusted from time to time, is herein referred
to as the "Exercise Price."
2. EXERCISE PERIOD. This Warrant shall be exercisable at the
earliest to occur of (i) the closing of the Initial Public Offering and (ii) the
Maturity Date, and shall expire on August __, 2013 (the "Exercise Period"). With
respect to the Initial Public Offering, the Company shall provide notice to the
Holder of such Initial Public Offering at least ten (10) days prior to the
consummation of such Initial Public Offering.
3. METHOD OF EXERCISE.
(a) While this Warrant remains outstanding and exercisable in
accordance with Section 2 above, the Holder may exercise, in whole or in part,
the purchase rights evidenced hereby. Such exercise shall be effected by:
(i) the surrender of the Warrant, together with a duly
executed copy of the Notice of Exercise attached hereto, to the Secretary of the
Company at its principal office (or at such other place as the Company shall
notify the Holder in writing); and
(ii) the payment to the Company of an amount equal to
the aggregate Exercise Price for the number of Warrant Shares being purchased.
(b) 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 is surrendered to the Company as provided in Section 3(a) above. At such
time, the person or persons in whose name or names any certificates for the
Warrant Shares shall be issuable upon such exercise as provided in Section 3(c)
below shall be deemed to have become the holder or holders of record of the
Warrant Shares represented by such certificates.
(c) As soon as practicable after the exercise of this Warrant
in whole or in part, and in any event within twenty (20) days thereafter, the
Company at its expense will cause to be issued in the name of, and delivered to,
the Holder, or as such Holder (upon payment by such Holder of any applicable
transfer taxes) may direct:
(i) a certificate or certificates for the number of
Warrant Shares to which such Holder shall be entitled, 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 to
the number of such Warrant Shares called for on the face of this Warrant minus
the number of Warrant Shares purchased by the Holder upon all exercises made in
accordance with Section 3(a) above or Section 4 below.
4. NET EXERCISE. In lieu of exercising this Warrant for cash, the
Holder may elect to receive shares equal to the value of this Warrant (or the
portion thereof being exercised) by surrender of this Warrant at the principal
office of the Company together with notice of such election (a "Net Exercise").
In the event of such a Net Exercise, the Company shall issue to such Holder a
number of Warrant Shares computed using the following formula:
Y (A - B)
---------
X = A
Where
X = The number of Warrant Shares to be issued to the Holder.
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Y = The number of Warrant Shares purchasable under this Warrant
or, if only a portion of the Warrant is being exercised, the
portion of the Warrant being cancelled (at the date of such
calculation).
A = The fair market value of one (1) Warrant Share (at the date
of such calculation).
B = The Exercise Price (as adjusted to the date of such
calculations).
For purposes of this Section 4, the fair market value of a Warrant
Share shall mean the average of the closing price of the Warrant Shares quoted
in the over-the-counter market in which the Warrant Shares are traded or the
closing price quoted on any exchange or electronic securities market on which
the Warrant Shares are listed, whichever is applicable, as published in The Wall
Street Journal for the thirty (30) trading days prior to the date of
determination of fair market value (or such shorter period of time during which
such Warrant Shares were traded over-the-counter or on such exchange). In the
event that this Warrant is exercised pursuant to this Section 4 in connection
with the Company's Initial Public Offering of its Common Stock, the fair market
value per Warrant Share shall be the product of (i) the per share offering price
to the public of the Company's Initial Public Offering, and (ii) the number of
shares of Common Stock into which each Warrant Share is convertible at the time
of such exercise. If the Warrant Shares are not traded on the over-the-counter
market, an exchange or an electronic securities market, the fair market value
shall be the price per Warrant Share that the Company could obtain from a
willing buyer for Warrant Shares sold by the Company from authorized but
unissued Warrant Shares, as such prices shall be determined in good faith by the
Company's Board of Directors.
5. COVENANTS OF THE COMPANY.
(a) Notices of Record Date. In the event of any taking by the
Company of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend (other
than a cash dividend which is the same as cash dividends paid in previous
quarters or a stock dividend) or other distribution, the Company shall mail to
the Holder, at least ten (10) days prior to such record date, a notice
specifying the date on which any such record is to be taken for the purpose of
such dividend or distribution.
(b) Covenants as to Exercise Shares. The Company covenants and
agrees that all Warrant Shares that may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance in accordance with the
terms hereof, be validly issued and outstanding, fully paid and nonassessable,
and free from all taxes, liens and charges with respect to the issuance thereof.
The Company further covenants and agrees that the Company will at all times
during the Exercise Period have authorized and reserved, free from preemptive
rights, a sufficient number of shares of its capital stock to provide for the
exercise of the rights represented by this Warrant. If at any time during the
Exercise Period the number of authorized but unissued shares of capital stock
shall not be sufficient to permit exercise of this Warrant, the Company will
take such corporate action as may, in the opinion of its counsel, be necessary
to
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increase its authorized but unissued shares of capital stock to such number
of shares as shall be sufficient for such purposes.
(c) No Impairment. Except and to the extent waived or
consented to by the Holder or as otherwise permitted under the terms hereof, the
Company will not, by amendment of its Certificate of Incorporation 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 to be observed or
performed hereunder by the Company, but will at all times in good faith assist
in the carrying out of all the provisions of this Warrant and in the taking of
all such action as may be necessary or appropriate in order to protect the
exercise rights of the Holder against impairment.
6. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The
number of Warrant Shares purchasable upon exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the
Company shall at any time after the issuance but prior to the expiration of this
Warrant subdivide its Common Stock or Series D Preferred Stock, as the case may
be, by split-up or otherwise, or combine such capital stock, or issue additional
shares of such capital stock as a dividend with respect to any shares of such
capital stock, the number of Warrant Shares issuable on the exercise of this
Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination. Appropriate adjustments shall also be made to the Exercise Price
payable per share, but the aggregate Exercise Price payable for the total number
of Warrant Shares purchasable under this Warrant (as adjusted) shall remain the
same. Any adjustment under this Section 6(a) shall become effective at the close
of business on the date the subdivision or combination becomes effective, or as
of the record date of such dividend, or in the event that no record date is
fixed, upon the making of such dividend.
(b) Reclassification, Reorganization and Consolidation. In
case of any reclassification, capital reorganization or change in the capital
stock of the Company (other than as a result of a subdivision, combination or
stock dividend provided for in Section 6(a) above), then, as a condition of such
reclassification, reorganization or change, lawful provision shall be made, and
duly executed documents evidencing the same from the Company or its successor
shall be delivered to the Holder, so that the Holder shall have the right at any
time prior to the expiration of this Warrant to purchase, at a total price equal
to that payable upon the exercise of this Warrant, the kind and amount of shares
of stock and other securities or property receivable in connection with such
reclassification, reorganization or change by a holder of the same number and
type of securities as were purchasable as Warrant Shares by the Holder
immediately prior to such reclassification, reorganization or change. In any
such case appropriate provisions shall be made with respect to the rights and
interest of the Holder so that the provisions hereof shall thereafter be
applicable with respect to any shares of stock or other securities or property
deliverable upon exercise hereof, and appropriate adjustments shall be made to
the Exercise Price per Warrant Share payable hereunder, provided the aggregate
Exercise Price shall remain the same.
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(c) Notice of Adjustment. When any adjustment is required to
be made in the number or kind of shares, or property, purchasable upon exercise
of the Warrant, or in the Exercise Price, the Company shall promptly notify the
Holder of such event and of the number of Warrant Shares or other securities or
property thereafter purchasable upon exercise of this Warrant.
7. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the Exercise Price then in effect.
8. NO STOCKHOLDER RIGHTS OR LIABILITIES. Prior to exercise of this
Warrant, the Holder shall not be entitled to any rights of a stockholder with
respect to the Warrant Shares, including (without limitation) the right to vote
such Warrant Shares, receive dividends or other distributions thereon, exercise
preemptive rights or be notified of stockholder meetings, and except as
otherwise provided in this Warrant or the Purchase Agreement, such Holder (in
such capacity) shall not be entitled to any stockholder notice or other
communication concerning the business or affairs of the Company. No provisions
hereof, in the absence of affirmative action by the Holder to purchase stock,
and no enumeration herein of the rights or privileges of the Holder shall give
rise to any liability of the Holder as a stockholder of the Company.
9. TRANSFER OF WARRANT. Subject to compliance with applicable
federal and state securities laws and any other contractual restrictions between
the Company and the Holder contained in the Purchase Agreement, this Warrant and
all rights hereunder are transferable in whole or in part by the Holder to any
person or entity upon written notice to the Company. Within a reasonable time
after the Company's receipt of an executed Assignment Form in the form attached
hereto, the transfer shall be recorded on the books of the Company upon the
surrender of this Warrant, properly endorsed, to the Company at its principal
offices, and the payment to the Company of all transfer taxes and other
governmental charges imposed on such transfer. In the event of a partial
transfer, the Company shall issue to the new holders one or more appropriate new
warrants.
10. GOVERNING LAW. This Warrant shall be governed by and construed
under the laws of the Commonwealth of Massachusetts as applied to agreements
among Massachusetts residents, made and to be performed entirely within the
Commonwealth of Massachusetts.
11. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant
and the Purchase Agreement shall inure to the benefit of, and be binding upon,
the Company and the holders hereof and their respective successors and assigns.
12. TITLES AND SUBTITLES. The titles and subtitles used in this
Warrant are used for convenience only and are not to be considered in construing
or interpreting this Warrant.
13. NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed effectively given: (i)
upon personal delivery to the party to be notified, (ii) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient, (iii) five (5) days after having been sent by registered or
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certified mail, return receipt requested, postage prepaid, or (iv) one (1) day
after deposit with an internationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All communications
shall be sent to the respective parties at the following addresses (or at such
other addresses as shall be specified by notice given in accordance with this
Section 13):
If to the Company:
BioVex Group, Inc.
00 Xxxxxxxx Xxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
If to Holders:
At the addresses shown on the signature pages hereto.
14. ASSUMPTION OF WARRANT. If at any time while this Warrant, or any
portion thereof, is outstanding and unexpired there shall be a Corporate
Transaction, then, as a part of such transaction, lawful provision shall be made
so that the Holder shall thereafter be entitled to receive upon exercise of this
Warrant, during the period specified herein and upon payment of the Exercise
Price then in effect, the number of shares of stock or other securities or
property of the successor corporation resulting from the Corporate Transaction
which a holder of the shares deliverable upon exercise of this Warrant would
have been entitled to receive in such Corporate Transaction if this Warrant had
been exercised immediately before such Corporate Transaction, all subject to
further adjustment as provided in this Section 14; and, in any such case,
appropriate adjustment (as determined by the Company's Board of Directors) shall
be made in the application of the provisions herein set forth with respect to
the rights and interests thereafter of the Holder to the end that the provisions
set forth herein (including provisions with respect to changes in and other
adjustments of the number of Warrant Shares the Holder is entitled to purchase)
shall thereafter be applicable, as nearly as possible, in relation to any
Warrant Shares or other securities or other property thereafter deliverable upon
the exercise of this Warrant. For purposes of this Warrant, a "Corporate
Transaction" shall mean any transaction defined as a "Deemed Liquidation Event"
in the Company's current Restated Certificate of Incorporation on file with the
Secretary of State of the State of Delaware (the "Restated Certificate").
15. AMENDMENTS AND WAIVERS; RESOLUTIONS OF DISPUTE; NOTICE. The
amendment or waiver of any term of this Warrant, the resolution of any
controversy or claim arising out of or relating to this Warrant and the
provision of notice shall be conducted pursuant to the terms of the Purchase
Agreement.
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16. SEVERABILITY. If any provision of this Warrant is held to be
unenforceable under applicable law, such provision shall be excluded from this
Warrant and the balance of the Warrant shall be interpreted as if such provision
were so excluded and shall be enforceable in accordance with its terms.
[Remainder of Page Left Intentionally Blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date above written,
BIOVEX GROUP, INC.
By: ______________________________________________
Xxxxxx Xxxxxx-Xxxxxx
President and Chief Financial Officer
Address: 00 Xxxxxxxx Xxx
Xxxxxx, XX 00000
ACKNOWLEDGED AND AGREED:
HOLDER
By: __________________________________
__________________________________
__________________________________
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NOTICE OF EXERCISE
BioVex Group, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the
provisions of the Warrant, as follows:
____ _____________ Warrant Shares pursuant to the terms of the
attached Warrant, and tenders herewith payment in cash of the
Exercise Price of such Warrant Shares in full, together with
all applicable transfer taxes, if any.
____ Net Exercise the attached Warrant with respect to __________
Warrant Shares.
The undersigned hereby represents and warrants that Representations
and Warranties in Section 6 of the Purchase Agreement are true and correct as of
the date hereof.
HOLDER:
Date:___________________ By:____________________________________
Address: ______________________________
______________________________
______________________________
Name in which shares should be registered:
____________________________________________
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute
this form and supply required information.
Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
Name: _________________________________________________________________________
(Please Print)
Address: ______________________________________________________________________
(Please Print)
Dated: _________________
Holder's
Signature: _________________________________________
Holder's
Address: __________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant. Officers of corporations and those acting in
a fiduciary or other representative capacity should provide proper evidence of
authority to assign the foregoing Warrant.
