EXHIBIT 10.1.3
BIOVEX GROUP, INC.
ENTERPRISE MANAGEMENT INCENTIVE STOCK OPTION AGREEMENT
FOR UK QUALIFYING EMPLOYEES
GRANTED UNDER 2005 STOCK INCENTIVE PLAN
THIS AGREEMENT is made __ day _________________ 200[_]
BETWEEN:
(1) BIOVEX GROUP, INC., a Delaware corporation (the "COMPANY"); and
(2) [EMPLOYEE] of [ADDRESS] (the "PARTICIPANT")
WHEREAS:
(A) The Board (as defined below) considers that the Company is a qualifying
company as defined in Part 3 of Schedule 5 to the UK Income Tax (Earnings
and ▇▇▇▇▇▇▇▇) ▇▇▇ ▇▇▇▇ ("SCHEDULE 5"). In this agreement, the "Board" shall
have the same meaning as it carries in the Company's 2005 Stock Incentive
Plan (the "PLAN"), a copy of which is set out in Exhibit A.
(B) The Participant is an eligible employee as defined in Part 4 of Schedule 5.
(C) The Board considers that the grant of this option to the Participant is for
commercial reasons in order to recruit or retain the Participant and not as
part of a scheme or arrangement the main purpose, or one of the main
purposes, of which is the avoidance of tax.
(D) The Board considers that the total Market Value (as defined below) of
shares in the Company in respect of which unexercised options (granted in
respect of the Company's shares which qualify or are intended to qualify as
enterprise management incentive options under the terms of Schedule 5 ("EMI
OPTIONS")) subsist does not exceed L3 million or such other value as shall
be specified at that time in paragraph 7 of Schedule 5. In this agreement,
"MARKET VALUE" shall be determined in accordance with Part VIII of the
Taxation of Chargeable Gains ▇▇▇ ▇▇▇▇.
(E) The Market Value (as at the date of grant) of the shares of common stock
which the Participant could acquire or has acquired or could have acquired
by the exercise of:
(i) this option, and/or
(ii) any other EMI Options granted to him under the Plan or otherwise by
reason of his employment with any Group Company (as defined below) in
the preceding three years (whether or not exercised or released),
and/or
(iii) any unexercised options to acquire shares under a scheme approved
under Schedule 4 to the UK Income Tax (Earnings and ▇▇▇▇▇▇▇▇) ▇▇▇ ▇▇▇▇
granted to him by reason of his employment with any Group Company in
the preceding three years,
does not exceed L100,000 or such other limit as may be imposed from time to
time by Schedule 5. The term "GROUP COMPANY" shall include any of the
Company's present or future parent or subsidiary corporations, and any
present or future subsidiary corporations of any such present or future
parent corporations, as defined in Sections 424(e) or (f) of the Code.
(F) The Company has agreed to grant the Participant an enterprise management
incentive option to acquire shares of common stock in the capital of the
Company in accordance with the terms of Schedule 5 and on the terms set out
in this agreement and the Plan.
(G) The restrictions to which the Shares may be subject are set out in: (i) the
Company's certificate of incorporation, as amended from time to time (a
copy of which is set out in Exhibit B), (ii) the terms set forth in the
Notice of Exercise as amended from time to time (a copy of which is set out
in Exhibit C), (iii) the Company's Stockholders' Agreement dated as of 30
August 2005 as amended or substituted from time to time (a copy of which is
set out in Exhibit D to this agreement) and (iv) this agreement and the
Plan generally.
1. Grant of Option.
This agreement evidences the grant by BioVex Group, Inc., a Delaware
corporation (the "COMPANY"), on _______, 200[_] (the "GRANT DATE") to [_______],
an employee of the Company or one of its wholly owned subsidiaries (the
"PARTICIPANT"), of an option to purchase, in whole or in part, on the terms on
the terms of Schedule 5 and as provided herein and in the Plan, a total of [___]
shares (the "SHARES") of common stock, $0.0001 par value per share, of the
Company ("COMMON STOCK") at $[______] per Share. Unless earlier terminated, this
option shall expire at 5:00 p.m., Eastern time, on the day immediately preceding
the tenth anniversary of the Grant Date (the "FINAL EXERCISE DATE").
It is intended that the option evidenced by this agreement shall not be an
incentive stock option as defined in Section 422 of the Internal Revenue Code of
1986, as amended, and any regulations promulgated thereunder (the "CODE").
Except as otherwise indicated by the context, the term "Participant", as used in
this option, shall be deemed to include any person who acquires the right to
exercise this option validly under its terms.
The Participant shall within 30 days (or such longer period as permitted by
the Board) immediately following the Grant Date give a declaration to the
Company (in the form determined by the Board) that he meets the requirements of
paragraph 26 of Schedule 5 (commitment of working time) in relation to this
option. If the Participant fails to provide the
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declaration referred to above within such period, the Board shall give at least
7 days' notice to the Participant requiring him to provide such declaration and
if the Participant fails to provide that declaration by the expiry of the
notice, the Board may in its absolute discretion determine that this option
shall lapse immediately and be deemed never to have been granted.
The Company will procure that notice of the grant of this option shall
within 92 days after the Grant Date be given to HM Revenue & Customs by the
company by which the Participant is employed. Such notice shall be in a form
required or authorised by the Inland Revenue and must contain, or be supported
by, such information as the Inland Revenue may require including the
declarations under paragraph 44(5) of Schedule 5.
2. Vesting Schedule.
(a) Time based vesting. Subject always to Section 2(b), this option will
become exercisable ("vest") as to one-quarter (1/4) of the original number of
Shares on the first anniversary of the Grant Date and as to an additional
one-forty-eighth (1/48th) of the original number of Shares at the end of each
successive one-month period following the first anniversary of the Grant Date
until the fourth anniversary of the Grant Date.]
Subject always to Section 2(b), the right of exercise shall be cumulative
so that to the extent the option is not exercised in any period to the maximum
extent permissible it shall continue to be exercisable, in whole or in part,
with respect to all Shares for which it is vested until the earlier of the Final
Exercise Date or the termination of this option under Section 3 hereof or the
Plan.
(b) Overriding requirement for Listing, etc. Notwithstanding anything to
the contrary in this agreement or the Plan, no part of this option may be
exercised unless and until a Listing (as defined in Plan) has taken effect or
the option becomes exercisable as a result of the application of Section 8(b)(2)
of the Plan (change of control - effect on options).
3. Exercise of Option.
(a) Form of Exercise. Each election to exercise this option shall be in
writing, in the form of Exhibit C, signed by the Participant, and received by
the Company at its principal office, accompanied by this agreement, and payment
in full in the manner provided in the Plan. The Participant may purchase fewer
than the number of shares covered hereby, provided that no partial exercise of
this option may be for any fractional share.
(b) Continuous Relationship with the Company Required. Except as otherwise
provided in this Section 3 and subject to Section 2(b) above, this option may
not be exercised unless the Participant, at the time he or she exercises this
option, is, and has been at all times since the Grant Date, an employee or
officer of, or consultant or advisor to, the Company or any parent or subsidiary
of the Company as defined in Section 424(e) or (f) of the Code (an "ELIGIBLE
PARTICIPANT").
(c) Termination of Relationship with the Company. If the Participant ceases
to be an Eligible Participant for any reason, then, except as provided in
paragraphs (d) and (e) below, this option shall terminate three months after
such cessation (but in no event after the Final Exercise
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Date), provided that this option shall be exercisable (subject to Section 2(b)
above) only to the extent that this option was vested in accordance with Section
2(a) above on the date of such cessation. Notwithstanding the foregoing, if the
Participant, prior to the Final Exercise Date, violates the non-competition or
confidentiality provisions of any employment contract, confidentiality and
nondisclosure agreement or other agreement between the Participant and the
Company, any right to exercise this option and the option itself shall terminate
immediately upon such violation.
(d) Exercise Period Upon Death or Disability. If the Participant dies or
becomes disabled (within the meaning of Section 22(e)(3) of the Code) prior to
the Final Exercise Date while he or she is an Eligible Participant and the
Company has not terminated such relationship for "cause" as specified in
paragraph (e) below, this option shall be exercisable (subject to Section 2(b)
above), within the period of one year following the date of death or disability
of the Participant, by the Participant (or in the case of death by an authorized
transferee), provided that this option shall be exercisable (subject to Section
2(b) above) only to the extent that this option was vested in accordance with
Section 2(a) above on the date of the Participant's death or disability, and
further provided that this option shall not be exercisable after the Final
Exercise Date.
(e) Discharge for Cause. If the Participant, prior to the Final Exercise
Date, is discharged by the Company for "cause" (as defined below), any right to
exercise this option and the option itself shall terminate immediately upon the
effective date of such discharge. "CAUSE" shall mean willful misconduct by the
Participant or willful failure by the Participant to perform his or her
responsibilities to the Company (including, without limitation, any material
breach by the Participant of any provision of any employment, consulting,
advisory, nondisclosure, non-competition or other similar agreement between the
Participant and the Company), as determined by the Company, which determination
shall be conclusive. The Participant shall be considered to have been discharged
for "Cause" if the Company determines, within 30 days after the Participant's
resignation, that discharge for cause was warranted.
(f) Conditions on Delivery of Stock. The Company will not be obligated to
deliver any shares of Common Stock pursuant to this agreement until (i) all
conditions of this option have been met to the satisfaction of the Company; (ii)
in the opinion of the Company's counsel, all other legal matters in connection
with the issuance and delivery of such shares have been satisfied, including any
applicable securities laws and any applicable stock exchange or stock market
rules and regulations; (iii) the Participant has become a party to, and become
bound as a "Common Holder" under, the Company's Stockholders' Agreement, dated
as of 30 August 2005 and as amended or substituted from time to time, by
executing a counterpart signature page in substantially the form of Exhibit E;
and (iv) the Participant has executed and delivered to the Company such
additional representations or agreements as the Company may consider appropriate
to satisfy the requirements of any applicable laws, rules or regulations.
(g) Employer national insurance. This option may not be exercised unless
and until the Company (or any Group Company) has received from the Participant
duly executed documentation (in such form as prescribed by the Board from time
to time) to the effect that the Participant will become liable, so far as
permissible by law, for the whole of any secondary Class
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1 national insurance contributions which may arise in connection with this
option and the shares of common stock which may or are acquired on the exercise
of this option.
(h) Restricted Shares Election. Unless the Board permits otherwise, this
option may not be exercised unless and until the Participant enters into a joint
election under Section 431(1) of the Income Tax (Earnings and Pensions) ▇▇▇ ▇▇▇▇
(in the form prescribed by the Board from time to time) for the full
disapplication of Chapter 2 of Part 7 of that Act.
4. No Obligation to Recognize Invalid Transfer.
The Company shall not be required (1) to transfer on its books any of the
Shares which shall have been sold or transferred in violation of any of the
provisions set forth in the Stockholders' Agreement, or (2) to treat as owner of
such Shares or to pay dividends to any transferee to whom any such Shares shall
have been so sold or transferred.
5. Tax Matters.
(a) Withholding. No Shares will be issued pursuant to the exercise of this
option unless and until the Participant pays to the Company, or makes provision
satisfactory to the Company for payment of, any federal, state or local
withholding taxes required by law to be withheld in respect of this option.
(b) Tax status. Neither the Company nor any parent or subsidiary of the
Company shall have any liability to the Participant if this option (or any part
thereof) is not or ceases to be a qualifying option under schedule 5 to the
Income Tax (Earnings and Pensions) ▇▇▇ ▇▇▇▇.
6. Nontransferability of Option.
This option may not be sold, assigned, transferred, pledged or otherwise
encumbered by the Participant, either voluntarily or by operation of law, except
by will or the laws of descent and distribution, and, during the lifetime of the
Participant, this option shall be exercisable only by the Participant.
7. No Right to Employment etc.
(a) The grant of options under the Plan is made at the discretion of the
Board and the Plan may be suspended or terminated by the Company at any time.
The grant of an option in one year or at one time does not in any way entitle
the Participant to an option grant in the future. The Plan is wholly
discretionary and is not to be considered part of the Participant's normal or
expected compensation subject to severance, resignation, redundancy or similar
compensation. The value of the option is an extraordinary item of compensation
which is outside the scope of the Participant's employment contract (if any).
(b) Nothing in this agreement or the Plan shall confer upon the Participant
any right to continue in service for any period of specific duration or
interfere with or otherwise restrict in any way the rights of the Company (or
any company employing or retaining the Participant) or of the Participant, which
rights are hereby expressly reserved by each, to terminate the Participant's
service at any time for any reason, with or without cause.
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(c) The rights and obligations of the Participant under the terms of his
office or employment with the Company, any past or present subsidiary, or
associated or affiliate company of the Company shall not be affected by his
participation in the Plan or the grant of this option or any right which he may
have to participate therein, and the Participant hereby waives all and any
rights to compensation or damages in consequence of the termination of his
office or employment with any such company for any reasons whatsoever (whether
lawful or unlawful and including, without prejudice to the generality of the
foregoing, in circumstances giving rise to a claim for wrongful dismissal)
insofar as those rights arise or may arise from his ceasing to have rights under
or being entitled to exercise this option as a result of such termination, or
from the loss or diminution in value of such rights or entitlements.
8. Data Protection.
The Participant agrees to the receipt, holding and processing of
information in connection with the grant, vesting, exercise, taxation and
general administration of the Plan and this option by the Company or any
subsidiary of the Company and any of their advisers or agents and to the
transmission of such information outside of the European Economic Area for this
purpose.
9. Provisions of the Plan.
This option is subject to the provisions of the Plan, a copy of which is
furnished to the Participant with this option.
10. Third Party Rights.
The Contracts (Rights of Third Parties) Act 1999 shall not apply to this
option and no person other than parties hereto shall have any rights under it
nor shall it be enforceable under that Act by any person other than the parties
to it.
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IN WITNESS WHEREOF, the parties have executed this agreement as a Deed on
the date first above written. This agreement shall take effect as a deed and a
sealed instrument.
BIOVEX GROUP, INC.
By:
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Name:
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Title:
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EXECUTED as a DEED by PARTICIPANT: By:
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(Signature of Participant)
Name:
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(Printed Name of Participant)
In the presence of:
Witness signature:
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Witness name:
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Witness address:
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Witness occupation:
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EXHIBIT A
2005 STOCK INCENTIVE PLAN
EXHIBIT B
CERTIFICATE OF INCORPORATION
EXHIBIT C
NOTICE OF STOCK OPTION EXERCISE
Date: ____________(1)
BioVex Group, Inc.
Attention: Treasurer
Dear Sir or Madam:
I am the holder of Stock Option granted to me under the BioVex Group, Inc.
(the "Company") 2005 Stock Incentive Plan on __________(2) for the purchase of
__________(3) shares of Common Stock of the Company at a purchase price of
$__________(4) per share.
I hereby exercise my option to purchase _________(5) shares of Common Stock
(the "Shares"), for which I have enclosed __________(6) in the amount of
________(7). Please register my stock certificate as follows:
Name(s): __________________________(8)
__________________________
Address: __________________________
Tax I.D. #: _______________________(9)
I represent, warrant and covenant as follows:
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(1) Enter the date of exercise.
(2) Enter the date of grant.
(3) Enter the total number of shares of Common Stock for which the option was
granted.
(4) Enter the option exercise price per share of Common Stock.
(5) Enter the number of shares of Common Stock to be purchased upon exercise of
all or part of the option.
(6) Enter "cash", "personal check" or if permitted by the option or Plan,
"stock certificates No. XXXX and XXXX".
(7) Enter the dollar amount (price per share of Common Stock times the number
of shares of Common Stock to be purchased), or the number of shares
tendered. Fair market value of shares tendered, together with cash or
check, must cover the purchase price of the shares issued upon exercise.
(8) Enter name(s) to appear on stock certificate: (a) Your name only; (b) Your
name and other name (i.e., ▇▇▇▇ ▇▇▇ and ▇▇▇▇ ▇▇▇, Joint Tenants With Right
of Survivorship); or (c) In the case of a Nonstatutory option only, a
Child's name, with you as custodian (i.e., ▇▇▇▇ ▇▇▇, Custodian for ▇▇▇▇▇
▇▇▇). Note: There may be income and/or gift tax consequences of registering
shares in a Child's name.
(9) Social Security Number of Holder(s).
1. I am purchasing the Shares for my own account for investment only, and not
with a view to, or for sale in connection with, any distribution of the Shares
in violation of the Securities Act of 1933 (the "Securities Act"), or any rule
or regulation under the Securities Act.
2. I have had such opportunity as I have deemed adequate to obtain from
representatives of the Company such information as is necessary to permit me to
evaluate the merits and risks of my investment in the Company.
3. I have sufficient experience in business, financial and investment matters to
be able to evaluate the risks involved in the purchase of the Shares and to make
an informed investment decision with respect to such purchase.
4. I can afford a complete loss of the value of the Shares and am able to bear
the economic risk of holding such Shares for an indefinite period.
5. I understand that (i) the Shares have not been registered under the
Securities Act and are "restricted securities" within the meaning of Rule 144
under the Securities Act, (ii) the Shares cannot be sold, transferred or
otherwise disposed of unless they are subsequently registered under the
Securities Act or an exemption from registration is then available; (iii) in any
event, the exemption from registration under Rule 144 will not be available for
at least one year and even then will not be available unless a public market
then exists for the Common Stock, adequate information concerning the Company is
then available to the public, and other terms and conditions of Rule 144 are
complied with; and (iv) there is now no registration statement on file with the
Securities and Exchange Commission with respect to any stock of the Company and
the Company has no obligation or current intention to register the Shares under
the Securities Act.
Very truly yours,
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(Signature)
EXHIBIT D
STOCKHOLDERS' AGREEMENT
EXHIBIT E
BIOVEX GROUP, INC.
COUNTERPART SIGNATURE PAGE
The undersigned, a holder of common stock of BioVex Group, Inc., a Delaware
corporation (the "Company"), hereby agrees to become a party to, and to be bound
as a "Common Holder" under the Company's Stockholders' Agreement, originally
entered into among the Company and certain of its stockholders as of 30 August
2005, a copy of which is attached hereto as Annex A.
EXECUTED as of __________, 200[_].
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(Signature)
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(Printed name)