Exhibit 10.8.1
BIOVEX GROUP, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
AUGUST 23, 2006
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TABLE OF CONTENTS
Page
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1. Definitions........................................................... 1
2. Terms of the Notes.................................................... 3
2.1 Issuance of Notes.............................................. 3
2.2 Right to Convert Notes; Repayment.............................. 3
3. Warrants.............................................................. 4
4. Closing............................................................... 4
5. Representations and Warranties of the Company......................... 5
5.1 Organization, Good Standing and Qualification.................. 5
5.2 Authorization.................................................. 5
5.3 Compliance with Other Instruments.............................. 5
5.4 Valid Issuance of Stock........................................ 5
5.5 Capitalization of the Company.................................. 6
6. Representations and Warranties of the Lenders......................... 6
6.1 Authorization.................................................. 6
6.2 Purchase Entirely for Own Account.............................. 7
6.3 Disclosure of Information...................................... 7
6.4 Investment Experience.......................................... 7
6.5 Accredited Investor............................................ 7
6.6 Restricted Securities.......................................... 7
6.7 Further Limitations on Disposition............................. 8
6.8 Legends........................................................ 8
7. Defaults and Remedies................................................. 9
7.1 Events of Default.............................................. 9
7.2 Remedies....................................................... 10
8. Miscellaneous......................................................... 10
8.1 Successors and Assigns......................................... 10
8.2 Governing Law.................................................. 10
8.3 Counterparts................................................... 10
8.4 Titles and Subtitles........................................... 10
8.5 Notices........................................................ 10
8.6 Finder's Fee................................................... 11
8.7 Expenses....................................................... 11
8.8 Entire Agreement; Amendments and Waivers....................... 11
8.9 Effect of Amendment or Waiver.................................. 12
8.10 Severability................................................... 12
8.11 Exculpation Among Lenders...................................... 12
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8.12 Acknowledgement................................................ 12
8.13 Waiver of Jury Trial........................................... 12
EXHIBIT A CONVERTIBLE PROMISSORY NOTE
EXHIBIT B WARRANT TO PURCHASE SHARES OF EQUITY SECURITIES
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NOTE AND WARRANT PURCHASE AGREEMENT
THIS NOTE AND WARRANT PURCHASE AGREEMENT (the "Agreement") is made as of
August 23, 2006, by and among BioVex Group, Inc., a Delaware corporation (the
"Company"), and the lenders (each, a "Lender" and collectively, the "Lenders")
named on the Schedule of Lenders attached hereto (the "Schedule of Lenders").
Capitalized terms not otherwise defined in this Agreement shall have the
meanings ascribed to them in Section 1 below.
WHEREAS, each of the Lenders intends to provide certain Consideration to
the Company as described for each Lender on the Schedule of Lenders;
WHEREAS, the parties wish to provide for the sale and issuance of Notes and
Warrants in return for the provision by the Lenders of the Consideration to the
Company; and
WHEREAS, the parties intend for the Company to issue in return for the
Consideration one or more Notes and Warrants to purchase shares of the Company's
Common Stock;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS.
(a) "CONSIDERATION" shall mean the amount of money paid by each
Lender pursuant to this Agreement as shown on the Schedule of Lenders.
(b) "CONVERSION SHARES" shall, for purposes of determining the
type of Equity Securities issuable upon conversion of the Notes, mean:
(i) if the Notes are converted to equity pursuant to Section
2.2(a) below, shares of Common Stock of the Company; and
(ii) if the Notes are converted to equity pursuant to
Section 2.2(b), 2.2(c) or 2.2(d) below, the Series D Preferred Stock.
(c) "CONVERSION PRICE" shall mean:
(i) with respect to a conversion pursuant to Section 2.2(a)
below, the price per share at which the Common Stock is offered and sold to the
public in connection with the Initial Public Offering; and
(ii) with respect to a conversion pursuant to Section
2.2(b), 2.2(c) or 2.2(d) below, $1.42 per share.
(d) "EQUITY SECURITIES" shall mean the Company's Common Stock or
Preferred Stock or any securities conferring the right to purchase the Company's
Common Stock or Preferred Stock or securities convertible into, or exchangeable
for (with or without additional consideration), the Company's Common Stock or
Preferred Stock.
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(e) "EXERCISE PRICE" shall mean either (a) the price per share at
which the Common Stock is offered and sold to the public in connection with the
Initial Public Offering or (b) in the event that the Initial Public Offering has
not occurred on or prior to the IPO Date, $1.42 per share.
(f) "INITIAL PUBLIC OFFERING" or "IPO" shall mean the closing of
the Company's first underwritten public offering of its Common Stock pursuant to
an effective registration statement under the Securities Act of 1933, as amended
(the "Act"), and which results in aggregate gross proceeds to the Company of not
less than $20,000,000 (including the aggregate amount of debt securities
converted into Common Stock upon conversion of the Notes pursuant to Section
2.2(a) below).
(g) "IPO DATE" shall mean November 30, 2006.
(h) "MAJORITY NOTE HOLDERS" shall mean the holders of at least
sixty percent (60%) of the aggregate principal amount of Notes outstanding from
time to time.
(i) "MATURITY DATE" shall mean 11:59 p.m. (Boston time) on
November 30, 2006.
(j) "NOTES" shall mean the one or more promissory notes issued to
each Lender pursuant to Section 2.1 below, the form of which is attached hereto
as Exhibit A.
(k) "PREMIUM" shall mean an amount equal to fifteen percent (15%)
of the outstanding principal of a Note.
(l) "PURCHASE PRICE OF WARRANT" shall mean the price paid by the
Lenders to receive each Warrant, which amount shall be one-tenth of one percent
(0.1%) of the principal amount of each related Note.
(m) "SALE" of the Company shall mean (i) any merger or
consolidation (by sale of stock or otherwise) to which the Company is a party
(except any merger or consolidation in which the holders of capital stock of the
Company immediately prior to such merger or consolidation continue to hold,
immediately following such merger or consolidation and in approximately the same
relative proportions as they held voting stock of the Company, at least 51% of
the voting power of the capital stock of (A) the surviving or resulting
corporation or (B) if the surviving or resulting corporation is a wholly-owned
subsidiary of another corporation immediately following such merger or
consolidation, of the parent corporation of such surviving or resulting
corporation), or (ii) the sale to a third party of all or substantially all of
the assets of the Company.
(n) "SERIES D PREFERRED STOCK" shall mean shares of the Company's
Series D Preferred Stock, par value $0.0001 per share.
(o) "WARRANT SHARES" shall mean either (a) shares of Common Stock
of the Company or (b) in the event that the Initial Public Offering has not
occurred on or prior to the IPO Date, shares of Series D Preferred Stock,
issuable pursuant to the Warrants.
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(p) "WARRANTS" shall mean one or more warrants issued pursuant to
Section 3 below.
(q) "WARRANT COVERAGE AMOUNT" shall mean, with respect to any
particular Warrant issued to a Lender, thirty percent (30%) of the principal
amount of the Note issued to such Lender in conjunction with such Warrant.
2. TERMS OF THE NOTES.
2.1 ISSUANCE OF NOTES.
In return for the Consideration paid by each Lender, the Company shall sell
and issue to such Lender one or more Notes. Each Note shall have a principal
balance equal to that portion of the Consideration, less the related Purchase
Price of Warrant, paid by such Lender, as set forth in the Schedule of Lenders.
Each Note shall be convertible into Conversion Shares pursuant to Section 2.2
below.
2.2 RIGHT TO CONVERT NOTES; REPAYMENT.
(a) INITIAL PUBLIC OFFERING. Unless earlier converted pursuant to
Section 2.2(b), 2.2(c) or 2.2(d), immediately prior to the closing of the
Initial Public Offering, all outstanding principal and unpaid accrued interest
of each Note shall be automatically converted into Conversion Shares. The number
of Conversion Shares to be issued upon such conversion shall be equal to the
quotient obtained by dividing the outstanding principal and unpaid accrued
interest on a Note to be converted on the date of conversion by the Conversion
Price.
(b) SALE OF COMPANY. Unless earlier converted pursuant to Section
2.2(a), 2.2(c) or 2.2(d), immediately prior to the closing of a Sale of the
Company, all outstanding principal and unpaid accrued interest of each Note plus
the Premium shall, at the election of the Lender, (i) be prepaid by the Company
or (ii) be automatically converted into Conversion Shares. The number of
Conversion Shares to be issued upon such conversion shall be equal to the
quotient obtained by dividing the sum of (x) the outstanding principal and
unpaid accrued interest on a Note to be converted on the date of conversion and
(y) the Premium by the Conversion Price.
(c) MANDATORY PRIOR CONVERSION. Unless earlier converted pursuant
to Section 2.2(a), 2.2(b) or 2.2(d), the Majority Note Holders may request in
writing at any time that the Company convert all outstanding principal and
unpaid accrued interest of each Note into Conversion Shares (the "Mandatory
Conversion"). Thereupon, the outstanding principal and unpaid accrued interest
of each Note shall automatically be converted into Conversion Shares. The number
of Conversion Shares to be issued upon such conversion shall be equal to the
quotient obtained by dividing the outstanding principal and unpaid accrued
interest on a Note to be converted on the date of conversion by the Conversion
Price. The Company shall, as soon as reasonably practicable after such Mandatory
Conversion, provide written notice of such Mandatory Conversion to the other
holders of the Notes and take all necessary corporate action to effect the
Mandatory Conversion.
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(d) OPTIONAL CONVERSION. Unless earlier converted pursuant to
Section 2.2(a), 2.2(b) or 2.2(c), the outstanding principal and unpaid accrued
interest of a Note may at any time be converted, solely at the option of the
holder thereof, into Conversion Shares (the "Optional Conversion"). The number
of Conversion Shares to be issued upon such conversion shall be equal to the
quotient obtained by dividing the outstanding principal and unpaid accrued
interest on a Note to be converted on the date of conversion by the Conversion
Price.
(e) REPAYMENT. In the event that none of the Initial Public
Offering, the Sale, the Mandatory Conversion or (in respect of each and every
Note) an Optional Conversion has occurred on or before the Maturity Date, each
holder of a Note then outstanding may at any time after the Maturity Date demand
full payment of the outstanding principal and unpaid accrued interest of such
Note, which payment shall be in immediately available funds; provided that the
Majority Note Holders shall have consented to such demand.
(f) NO FRACTIONAL SHARES. Upon the conversion of a Note into
Conversion Shares, in lieu of any fractional shares to which the holder of the
Note would otherwise be entitled, the Company shall pay the Note holder cash
equal to such fraction multiplied by the applicable Conversion Price.
(g) MECHANICS OF CONVERSION. The Company shall not be required to
issue or deliver the Conversion Shares until the Note holder has surrendered the
Note to the Company. Such conversion may be made contingent upon the closing of
the Initial Public Offering (with respect to conversion pursuant to Section
2.2(a)) or the Sale (with respect to conversion pursuant to Section 2.2(b)).
Upon the automatic conversion of the Notes, all Notes shall be deemed to have
been converted (regardless of surrender) and all rights with respect to the
Notes shall terminate, except only the right of the holder thereof, upon
surrender of the Note, to receive the Conversion Shares.
3. WARRANTS.
At the Closing (as defined in Section 4 below), and in return for the
Company's receipt of the Purchase Price of Warrant and the principal amount of
the Notes, each Lender shall receive a warrant to purchase Warrant Shares in the
form attached hereto as Exhibit B (the "Warrant"). Each Warrant shall be
exercisable for that number of Warrant Shares determined by dividing the Warrant
Coverage Amount by the Exercise Price.
4. CLOSING.
The closing (the "Closing") of the purchase of the Notes and issuance of
the Warrants in return for the Consideration paid by each Lender shall take
place at the offices of WilmerHale, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, at
9:00 a.m. (Boston time), on August 23, 2006, or at such other time and place as
the Company and Lenders purchasing sixty percent (60%) in interest of the
aggregate principal amount of the Notes to be sold at the Closing agree upon
orally or in writing. At the Closing, each Lender shall deliver the
Consideration to the Company and the Company shall deliver to each Lender one or
more executed Notes and Warrants in return for the respective Consideration
provided to the Company.
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5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
In connection with the transactions provided for herein, the Company hereby
represents and warrants to the Lenders that:
5.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION.
The Company is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware and has all requisite corporate
power and authority to carry on its business as now conducted. The Company is
duly qualified to transact business and is in good standing in each jurisdiction
in which the failure to so qualify would have a material adverse effect on its
business or properties.
5.2 AUTHORIZATION.
Except for the authorization and issuance of the shares issuable in
connection with the Initial Public Offering or a Sale, all corporate action has
been taken on the part of the Company, its officers, directors and stockholders
necessary for the authorization, execution and delivery of this Agreement, the
Notes and the Warrants. Except as may be limited by applicable bankruptcy,
insolvency, reorganization, or similar laws relating to or affecting the
enforcement of creditors' rights, the Company has taken all corporate action
required to make all of the obligations of the Company reflected in the
provisions of this Agreement, the Notes and the Warrants, the valid and
enforceable obligations they purport to be. The issuance of the Notes and
Warrants, or their subsequent conversion into Conversion Shares or exercise into
Warrant Shares, will not be subject to the preemptive rights of any stockholder
of the Company.
5.3 COMPLIANCE WITH OTHER INSTRUMENTS.
Neither the authorization, execution and delivery of this Agreement, nor
the issuance and delivery of the Notes and the Warrants, will constitute or
result in a material default or violation of any law or regulation applicable to
the Company or any material term or provision of the Company's current
certificate of incorporation or bylaws or any material agreement or instrument
by which it is bound or to which its properties or assets are subject.
5.4 VALID ISSUANCE OF STOCK.
The Conversion Shares to be issued, sold and delivered upon conversion of
the Notes will be duly and validly issued, fully paid and nonassessable and,
based in part upon the representations and warranties of the Lenders in this
Agreement, will be issued in compliance with all applicable federal and state
securities laws. The Warrant Shares to be issued, sold and delivered in
accordance with the terms of the Warrants will be duly authorized and validly
issued, fully paid and nonassessable and, based in part upon the representations
and warranties of the Lenders in this Agreement, will be issued in compliance
with all applicable federal and state securities laws.
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5.5 CAPITALIZATION OF THE COMPANY.
The authorized capital of the Company consists of:
(a) Preferred Stock. 43,170,337 shares of Preferred Stock, par
value $0.0001 per share, of which:
(i) 9,692,462 shares have been designated Series A Preferred
Stock, 9,521,832 of which are issued and outstanding,
(ii) 18,931,043 shares have been designated Series B
Preferred Stock, all of which are issued and outstanding,
(iii) 2,529,366 shares have been designated Series C
Preferred Stock, all of which are issued and outstanding,
(iv) 10,117,466 shares have been designated Series D
Preferred Stock, 7,588,098 of which are issued and outstanding, and
(v) 1,900,000 shares have been designated Series M Preferred
Stock, all of which are issued and outstanding.
The rights, privileges and preferences of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series M
Preferred Stock are as stated in the Company's Restated Certificate of
Incorporation.
(b) Common Stock. 50,860,902 shares of Common Stock, par value
$0.0001 per share, of which 224,220 are issued and outstanding.
(c) The outstanding securities of the Company are owned by the
security holders in the numbers specified in Exhibit B hereto.
(d) The outstanding shares of capital stock of the Company are
all duly and validly authorized and issued, fully paid and nonassessable, and
were issued pursuant to an exemption from registration under the Act.
6. REPRESENTATIONS AND WARRANTIES OF THE LENDERS.
In connection with the transactions provided for herein, each Lender,
severally and not jointly, hereby represents and warrants to the Company that:
6.1 AUTHORIZATION.
This Agreement constitutes such Lender's valid and legally binding
obligation, enforceable in accordance with its terms, except as may be limited
by (i) applicable bankruptcy, insolvency, reorganization, or similar laws
relating to or affecting the enforcement of creditors' rights and (ii) laws
relating to the availability of specific performance, injunctive relief or other
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equitable remedies. Each Lender represents that it has full power and authority
to enter into this Agreement.
6.2 PURCHASE ENTIRELY FOR OWN ACCOUNT.
Each Lender acknowledges that this Agreement is made with such Lender in
reliance upon such Lender's representation to the Company that the Notes, the
Warrants, the Conversion Shares, the Warrant Shares and any Common Stock
issuable upon conversion of the Conversion Shares (collectively, the
"Securities") will be acquired for investment for such Lender's own account, not
as a nominee or agent, and not with a view to the resale or distribution of any
part thereof, and that such Lender has no present intention of selling, granting
any participation in, or otherwise distributing the same.
6.3 DISCLOSURE OF INFORMATION.
Each Lender acknowledges that it has received all the information it
considers necessary or appropriate for deciding whether to acquire the
Securities. Each Lender further represents that it has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the offering of the Securities.
6.4 INVESTMENT EXPERIENCE.
Each Lender is an investor in securities of companies in the development
stage and acknowledges that it is able to fend for itself, can bear the economic
risk of its investment and has such knowledge and experience in financial or
business matters that it is capable of evaluating the merits and risks of the
investment in the Securities. Each Lender also represents it has not been
organized solely for the purpose of acquiring the Securities.
6.5 ACCREDITED INVESTOR.
Each Lender either (1) is an "accredited investor" within the meaning of
Rule 501 of Regulation D of the Securities and Exchange Commission (the "SEC"),
as presently in effect or (2) is not a "U.S. Person," and is not acquiring the
securities for the account or benefit of any U.S. Person, within the meaning of
Regulation S under the Act. If such Lender is not a U.S. Person, such Lender
agrees to resell such securities only in accordance with the provisions of
Regulation S under the Act, pursuant to registration under the Act, or pursuant
to an available exemption from registration, and agrees not to engage in hedging
transactions with regard to such securities unless in compliance with the Act.
6.6 RESTRICTED SECURITIES.
Each Lender understands that the Securities are characterized as
"restricted securities" under the federal securities laws inasmuch as they are
being acquired from the Company in a transaction not involving a public offering
and that under such laws and applicable regulations such securities may be
resold without registration under the Act only in certain limited circumstances.
Each Lender represents that it is familiar with SEC Rule 144, as presently in
effect, and understands the resale limitations imposed thereby and by the Act.
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6.7 FURTHER LIMITATIONS ON DISPOSITION.
(a) Without in any way limiting the representations and
warranties set forth above, each Lender further agrees not to make any
disposition of all or any portion of the Securities unless and until the
transferee has agreed in writing for the benefit of the Company to be bound by
this Section 6 and:
(i) There is then in effect a registration statement under
the Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(ii) (A) Such Lender has notified the Company of the
proposed disposition and has furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition and (B) if reasonably
requested by the Company, such Lender shall have furnished the Company with an
opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such shares under the Act. It is
agreed that the Company will not require opinions of counsel for transactions
made pursuant to Rule 144 except in extraordinary circumstances.
(b) Notwithstanding the foregoing, the following transactions
shall be exempt from the provisions of Section 6.7(a):
(i) if the Lender is a legal entity, a transfer to any
holding or subsidiary company of that Lender or to any other subsidiary of any
such Lender's holding company (all such entities together, the "Lender's
Group"), provided that if the transferee ceases to be a member of the Lender's
Group, it shall, immediately prior to such event, transfer the Securities back
to the original transferor or to another member of the Lender's Group at that
time and also provided that no transfer shall take place under this Section 6.7
unless the business of the proposed transferee consists wholly or mainly of
holding securities for investment purposes;
(ii) a transfer to a person who is the beneficial owner of
such Securities or (in the case of the legal title only) to a different or
additional nominee or trustee on behalf of such beneficial owner, provided that
such person has not become the beneficial owner thereof other than in accordance
with the provisions hereof; and
(iii) if the transferor is either a person whose principal
business is to make, manage or advise upon investments (an "Institutional
Preferred Holder") (or a nominee thereof), or a fund, partnership or other
entity managed or advised by an Institutional Preferred Holder, to any
affiliated or parallel fund or partnership (or nominee thereof) managed or
advised by such Institutional Preferred Holder, to any participant or partner or
former partner in such fund, partnership or other entity (or nominee thereof),
to such Institutional Preferred Holder itself or to any successor manager of
such fund or partnership or to any subsidiary or holding company from time to
time of any limited or general partner of such fund or partnership.
6.8 LEGENDS.
It is understood that the Securities may bear the following legend:
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"THESE SECURITIES 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 UNLESS SOLD 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."
7. DEFAULTS AND REMEDIES.
7.1 EVENTS OF DEFAULT.
The following events shall be considered Events of Default with respect to
each Note:
(a) The Company shall default in the payment of any part of the
principal or unpaid accrued interest on the Note after the Maturity Date or at a
date fixed by acceleration or otherwise.
(b) The Company shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts as they
become due, or shall file a voluntary petition for bankruptcy, or shall file any
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, dissolution or similar relief under any present or
future statute, law or regulation, or shall file any answer admitting the
material allegations of a petition filed against the Company in any such
proceeding, or shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of the Company, or of all or any substantial
part of the properties of the Company, or the Company or its respective
directors or majority stockholders shall take any action looking to the
dissolution or liquidation of the Company.
(c) Within thirty (30) days after the commencement of any
proceeding against the Company seeking any bankruptcy reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, such proceeding
shall not have been dismissed, or within thirty (30) days after the appointment
without the consent or acquiescence of the Company of any trustee, receiver or
liquidator of the Company or of all or any substantial part of the properties of
the Company, such appointment shall not have been vacated.
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(d) The Company shall materially breach any obligation to be
observed or performed by it under this Agreement, the Notes or the Warrants, and
fails to cure such breach within thirty (30) days after written notice thereof
from the Majority Note Holders.
7.2 REMEDIES.
Upon the occurrence of an Event of Default under Section 7.1 hereof, at the
option and upon the declaration of the holder of a Note, the entire unpaid
principal and accrued and unpaid interest on such Note shall, without
presentment, demand, protest, or notice of any kind, all of which are hereby
expressly waived, be forthwith due and payable, and such holder may, immediately
and without expiration of any period of grace, enforce payment of all amounts
due and owing under such Note and exercise any and all other remedies granted to
it at law, in equity or otherwise.
8. MISCELLANEOUS.
8.1 SUCCESSORS AND ASSIGNS.
Except as otherwise provided herein, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties, provided, however, that the Company may
not assign its obligations under this Agreement without the written consent of
the Majority Note Holders. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8.2 GOVERNING LAW.
This Agreement, the Notes and the Warrants 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.
8.3 COUNTERPARTS.
This Agreement 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.
8.4 TITLES AND SUBTITLES.
The titles and subtitles used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
8.5 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
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recipient, (iii) five (5) days after having been sent by registered or 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
8.5):
If to the Company:
BioVex Group, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
If to Lenders:
At the respective addresses shown on the signature pages hereto.
8.6 FINDER'S FEE.
Each party represents that it neither is nor will be obligated for any
finder's fee or commission in connection with this transaction. Lender agrees to
indemnify and to hold harmless the Company from any liability for any commission
or compensation in the nature of a finder's fee (and the costs and expenses of
defending against such liability or asserted liability) for which Lender or any
of its officers, partners, employees or representatives is responsible. The
Company agrees to indemnify and hold harmless each Lender from any liability for
any commission or compensation in the nature of a finder's fee (and the costs
and expenses of defending against such liability or asserted liability) for
which the Company or any of its officers, employees or representatives is
responsible.
8.7 EXPENSES.
If any action at law or in equity is necessary to enforce or interpret the
terms of this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled. The Company shall pay all costs and
expenses that it incurs with respect to the negotiation, execution, delivery and
performance of this Agreement.
8.8 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS.
This Agreement, the Notes and the Warrants and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
The Company's agreements with each of the Lenders are separate agreements, and
the sales of the Notes and Warrants to each of the Lenders are separate sales.
Nonetheless, any term of this Agreement, the Notes or the Warrants may be
amended and the observance of any term of this Agreement, the Notes or the
Warrants may be waived (either generally or in a particular instance and either
retroactively or prospectively), with the written
US1DOCS 5696650v8
11
consent of the Company and the Majority Note Holders. Any waiver or amendment
effected in accordance with this Section shall be binding upon each party to
this Agreement and any holder of any Note or Warrant purchased under this
Agreement at the time outstanding and each future holder of all such Notes or
Warrants. Notwithstanding the foregoing, in the event that any such waiver or
amendment adversely affects the rights or obligations of a Lender under this
Agreement, the Notes or the Warrants in a different manner than other Lenders,
such waiver or amendment shall also require the written consent of a
majority-in-interest of such adversely affected Lenders.
8.9 EFFECT OF AMENDMENT OR WAIVER.
Each Lender acknowledges that by the operation of Section 8.8 hereof and
subject to the terms and conditions thereof, the Majority Note Holders will have
the right and power to diminish or eliminate all rights of such Lender under
this Agreement and each Note and Warrant issued to such Lender.
8.10 SEVERABILITY.
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement and
the balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
8.11 EXCULPATION AMONG LENDERS.
Each Lender acknowledges that it is not relying upon any person, firm,
corporation or stockholder, other than the Company and its officers and
directors in their capacities as such, in making its investment or decision to
invest in the Company. Each Lender agrees that no other Lender nor the
respective controlling persons, officers, directors, partners, agents,
stockholders or employees of any other Lender shall be liable for any action
heretofore or hereafter taken or omitted to be taken by any of them in
connection with the purchase and sale of the Securities.
8.12 ACKNOWLEDGEMENT.
In order to avoid doubt, it is acknowledged that each Lender shall be
entitled to the benefit of all adjustments in the number of shares of Common
Stock of the Company issuable upon conversion of the Preferred Stock of the
Company or as a result of any splits, recapitalizations, combinations or other
similar transaction affecting the Common Stock or Preferred Stock underlying the
Conversion Shares that occur prior to the conversion of the Notes.
8.13 WAIVER OF JURY TRIAL.
TO THE EXTENT EACH MAY LEGALLY DO SO, EACH PARTY HERETO HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION,
OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, OR IN ANY WAY
CONNECTED WITH, OR RELATED
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12
TO, OR INCIDENTAL TO, THE DEALING OF THE PARTIES HERETO WITH RESPECT TO THIS
AGREEMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE. TO THE EXTENT EACH MAY LEGALLY DO SO, EACH PARTY HERETO
HEREBY AGREES THAT ANY SUCH CLAIM, DEMAND, ACTION, OR PROCEEDING SHALL BE
DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT EITHER PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF ANY OTHER PARTY HERETO TO THE WAIVER OF ITS RIGHT TO
TRIAL BY JURY.
[Remainder of Page Intentionally Left Blank.]
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13
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BIOVEX GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
President and Chief Financial
Officer
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO BIOVEX GROUP, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
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LENDERS:
ABN AMRO PARTICIPATIES B.V.
By: /s/ illegible
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
Address:
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO BIOVEX GROUP, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
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AVALON VENTURES VI, LP
By: /s/ illegible
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
Address:
----------------------------------------
----------------------------------------
AVALON VENTURES VI GP FUND, LLC
By: /s/ illegible
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
Address:
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO BIOVEX GROUP, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
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CREDIT LYONNAIS INNOVATION 3 FONDS
By: /s/ illegible
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
Address:
----------------------------------------
----------------------------------------
CREDIT LYONNAIS INNOVATION 4 FONDS
By: /s/ illegible
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
Address:
----------------------------------------
----------------------------------------
CREDIT LYONNAIS INNOVATION 5 FONDS
By: /s/ illegible
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
Address:
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO BIOVEX GROUP, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
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CREDIT LYONNAIS VENTURE 1 FONDS
By: /s/ illegible
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
Address:
----------------------------------------
----------------------------------------
LION CAPITAL INVESTISSEMENT FONDS
By: /s/ illegible
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
Address:
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO BIOVEX GROUP, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
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GENECHEM THERAPEUTICS VENTURE FUND L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Printed Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President, GeneChem Management
Inc.
Address:
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO BIOVEX GROUP, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
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FCPI POSTE INNOVATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Printed Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
Address:
----------------------------------------
----------------------------------------
FCPI POSTE INNOVATION 6
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Printed Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
Address:
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO BIOVEX GROUP, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
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INNOVEN 2001 FCPI NO 5
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Printed Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
Address:
----------------------------------------
----------------------------------------
INNOVEN 2002 FCPI NO 6
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Printed Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
Address:
----------------------------------------
----------------------------------------
INNOVEN 2003 FCPI NO 7
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Printed Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
Address:
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO BIOVEX GROUP, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
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LLOYDS TSB DEVELOPMENT CAPITAL LIMITED
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Printed Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director of Finanace
Address:
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO BIOVEX GROUP, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
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MERLIN GENERAL PARTNER II LTD.
(AS MANAGING PARTNER OF
THE MERLIN BIOSCIENCES FUND G.B.R.)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director Director
Address:
----------------------------------------
----------------------------------------
MERLIN GENERAL PARTNER II LTD.
(AS GENERAL PARTNER OF
THE MERLIN BIOSCIENCES FUND L.P.)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director Director
Address:
----------------------------------------
----------------------------------------
MERLIN GENERAL PARTNER LIMITED
(AS GENERAL PARTNER OF
THE MERLIN FUND L.P.)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director Director
Address:
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO BIOVEX GROUP, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
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SEP II
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Printed Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director, Scottish Equity
Partners
Address:
----------------------------------------
----------------------------------------
SEP II B
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Printed Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director, Scottish Equity
Partners
Address:
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO BIOVEX GROUP, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
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PHARMABIO DEVELOPMENT INC.
(d/b/a NovaQuest)
By: /s/ illegible
------------------------------------
Printed Name: illegible
Title: Global VP, Emerging Biotech
Address:
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO BIOVEX GROUP, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
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SCHEDULE OF LENDERS
PRINCIPAL BALANCE OF PURCHASE PRICE TOTAL
LENDER PROMISSORY NOTE OF WARRANT CONSIDERATION
------ -------------------- -------------- -------------
ABN Amro Participaties B.V $ 219,847 $ 220 $ 220,067
Avalon Ventures VI, LP 184,049 184 184,233
Avalon Ventures VI GP Fund, LLC 54,668 55 54,723
Avalon Total 238,517 239 238,956
Credit Lyonnais Innovation 3 Fonds 122,138 122 122,260
Credit Lyonnais Innovation 4 Fonds 141,168 141 141,309
Credit Lyonnais Innovation 5 Fonds 62,625 63 62,688
Credit Lyonnais Venture 1 Fonds 28,372 28 28,400
Lion Capital Investissement Fonds 12,110 12 12,122
Credit Agricole
Total 366,412 367 366,779
Genechem Therapeutics Venture Fund L.P. 275,264 276 275,540
Innoven 2001 FCPI No 5 64,000 64 64,064
Innoven 2002 FCPI No 6 23,944 24 23,968
Innoven 2003 FCPI No 7 24,086 24 24,110
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PRINCIPAL BALANCE OF PURCHASE PRICE TOTAL
LENDER PROMISSORY NOTE OF WARRANT CONSIDERATION
------ -------------------- -------------- -------------
FCPI Poste Innovation 204,596 205 204,801
FCPI Poste Innovation 6 154,475 155 154,630
Innoven Total 471,101 472 471,573
Lloyds TSB Development Capital Limited 316,043 316 316,359
Merlin General Partner II
Ltd. (as Managing Partner of
The Merlin Biosciences Fund G.B.R.) 19,751 19 19,770
Merlin General Partner II Ltd.
(as General Partner of The Merlin
Biosciences Fund L.P.) 328,641 330 328,971
Merlin Total 348,392 349 348,741
PharmaBio Development Inc. 999,000 1,000 1,000,000
SEP II
249,827 250 250,077
SEP II B
11,896 12 11,908
SEP Total
261,723 262 261,985
---------- ------ ----------
TOTAL $3,496,500 $3,500 $3,500,000
========== ====== ==========
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