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EXHIBIT 4.4
BIOVEX GROUP, INC.
BIOVEX LIMITED
AND
THE SHAREHOLDERS OF
BIOVEX LIMITED
SHARE CONTRIBUTION AND
EXCHANGE AGREEMENT
for the
acquisition of the entire issued share capital of BioVex
Limited
August 30, 2005
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THIS AGREEMENT is made as of August 30, 2005
BETWEEN:-
(1) BIOVEX GROUP,
INC., a Delaware corporation (the "NEW PARENT");
(2) BIOVEX LIMITED, a
private company limited by shares incorporated in England
and
Wales (registered number 3480520), whose registered office is at
70
Milton Park, Abingdon, Oxfordshire, OX14 4RX ("SUBSIDIARY");
and
(3) THE SHAREHOLDERS
OF BIOVEX LIMITED whose names and addresses are set out in
column 1 of Schedule 1 hereto (each, a "SHAREHOLDER" and together,
the
"SHAREHOLDERS").
WHEREAS:
(A) The Shareholders
together are the legal and beneficial owners of 100% of
the
issued share capital in the Subsidiary (the "SUBSIDIARY SHARES") as
is
detailed in column 2 of Schedule 1 hereto; and
(B) Each of the
Shareholders has agreed to sell and the New Parent has agreed
to
purchase the Subsidiary Shares on the terms and conditions set out
in
this
Agreement (the "EXCHANGE").
NOW IT IS AGREED as follows:-
1. SALE AND
PURCHASE
1.1 The Shareholders
shall sell and the New Parent shall purchase the
Subsidiary Shares for the consideration specified in clause 2
below.
1.2 The Subsidiary
Shares are sold with full title guarantee and free from any
option, charge, lien, equity, encumbrance, rights of pre-emption or
any
other third party rights and together with all rights attached to
them at
the
date of this Agreement or subsequently becoming attached to
them.
Immediately following the sale of the Subsidiary Shares
contemplated
hereby, the outstanding capitalisation of the New Parent will
consist
solely of the Consideration Shares (as defined below), the
certificate of
incorporation of the New Parent will be in the form attached hereto
as
Exhibit A, and each
Shareholder shall become a party to a Stockholders'
Agreement in the form attached hereto as Exhibit B.
2.
CONSIDERATION
The
consideration for the purchase of the Subsidiary Shares shall
be
satisfied on Completion by the issue of such number of shares of
Common
Stock, par value $0.0001 per share; Series A Preferred Stock, par
value
$0.0001 per share; Series B Preferred Stock, par value $0.0001 per
share;
Series C Preferred Stock, par value
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$0.0001 per share; Series D Preferred Stock, par value $0.0001 per
share;
and
Series M Preferred Stock, par value $0.0001 per share; as is set
out in
column 3 opposite each Shareholder's respective name in Schedule 1
hereto
(the
"CONSIDERATION SHARES").
Such
Consideration Shares shall be issued in respect of the number
of
Ordinary Shares, 'A' Ordinary Shares, 'B' Ordinary Shares, 'C'
Ordinary
Shares and 'D' Ordinary Shares, together with the aggregate number
of
Deferred Shares, if any, held by each Shareholder, as indicated in
column 2
of
Schedule 1 hereto.
For
the avoidance of doubt, shares of Series M Preferred Stock shall
be
issued to Merlin General Partner Limited ("MERLIN") as the
Consideration
Shares in respect of the Ordinary Shares held by Merlin in order to
give
continuing effect to the liquidation preference Merlin enjoys in
respect of
such
Ordinary Shares.
3.
COMPLETION
3.1 Completion shall
take place forthwith upon the signing of this Agreement by
all
the parties hereto at the offices of Wilmer Cutler Pickering Hale
and
Dorr
LLP, 10 Noble Street, London EC2V 7QJ, England.
3.2 At Completion the
Shareholders shall deliver or cause to be delivered to
the
New Parent duly executed transfers of the Subsidiary Shares
together
with
the share certificates for them or, where the share certificates
have
been
lost or are otherwise unobtainable, an indemnity in a form
satisfactory to the New
Parent.
3.3 Where facsimile
copies of this Agreement or duly executed transfers of the
Subsidiary Shares have been received by the New Parent, the
relevant
Shareholder or Shareholders warrant(s) and represent(s) that the
originals
of
such documents have been sent by courier or registered post (or
the
equivalent) to the New Parent c/o Wilmer Cutler Pickering Hale and
Dorr
LLP,
10 Noble Street, London EC2V 7QJ, England, marked for the attention
of
Timothy Corbett.
3.4 Prior to
Completion, the directors of Subsidiary shall have resolved to
approve the transfers of the Subsidiary Shares and (subject to them
being
duly
stamped) the registration of the New Parent as member in respect
of
the
Subsidiary Shares.
4.
WARRANTIES
4.1 Each of the
parties warrants and represents to the other that it has the
full
power and authority to enter into this Agreement and that this
Agreement has been duly authorised, executed and delivered by it or
on its
behalf.
4.2 Each of the
Shareholders severally warrants and represents to the New
Parent that:
(a)
he is the owner of the
Subsidiary Shares set forth opposite his
respective name in Schedule 1 hereto and, except for such
Subsidiary
Shares as are identified on Schedule 1 hereto, he does not own
any
shares of Subsidiary or (save for any ordinary shares issuable
upon
the conversion of such Subsidiary Shares
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that are convertible into ordinary shares) have the right to
purchase
or acquire any shares of Subsidiary through any subscription,
warrant,
option, convertible security or other right (contingent or
otherwise)
(other than pursuant to options granted under the Subsidiary's
employee share option schemes which are listed on Schedule 2
hereto
and which will be converted into options to purchase Common Stock
of
the New Parent as described in Section 7 hereof);
(b)
he will at Completion
have the right and power to sell and transfer or
procure the transfer of all of such Subsidiary Shares to the
New
Parent in accordance with the provisions of this Agreement, free
and
clear of any liens, claims or other encumbrances; and
(c)
execution and
performance of the provisions of this Agreement will
effect the transfer of good and marketable title to and the full
legal
and beneficial ownership in such Subsidiary Shares, free and clear
of
any liens, claims or other encumbrances.
4.3 Each of the
Shareholders waives all restrictions on transfer (including
pre-emption rights) and any procedural requirements not
specifically
provided for herein which may exist in relation to the sale of
the
Subsidiary Shares contemplated hereby under the articles of
association of
Subsidiary, any subscription or investment agreement relating to
Subsidiary
or
otherwise.
4.4 The Subsidiary
covenants to the New Parent that the Subsidiary Shares
constitute the whole of the allotted and issued share capital
of
Subsidiary.
5. INVESTMENT
WARRANTIES
5.1 Each Shareholder
severally warrants that he: (i) is an "ACCREDITED
INVESTOR" within the meaning of Rule 501 of Regulation D of the
U.S.
Securities Act of 1933, as amended (the "SECURITIES ACT"); or (ii)
is not a
"U.S. PERSON" as such term is defined in Regulation S under the
Securities
Act ("REGULATION S"),
and is not acquiring the securities for the account
or
benefit of any U.S. Person, and that he is obtaining the
Consideration
Shares in an "OFFSHORE TRANSACTION" (as such term is defined in
Regulation
S
under the Securities Act) outside the United States, and that, to
his
knowledge, no "DIRECTED SELLING EFFORTS" (as such term is defined
in
Regulation S) in the United States have been made by the Company
in
connection with his acquisition of Consideration Shares.
5.2 Each Shareholder
severally warrants that he is acquiring the Consideration
Shares for his 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 such Shareholder
has no
present or contemplated agreement, undertaking, arrangement,
obligation,
indebtedness or commitment providing for the disposition
thereof.
5.3 Each Shareholder
severally warrants that he is familiar with the New Parent
and
Subsidiary, their business and personnel; the officers of the
New
Parent and Subsidiary have made available to such Shareholder any
and all
information which he
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has
requested and have answered to such Shareholder's satisfaction
all
inquiries made by such Shareholder with respect to the New Parent
and the
Exchange; and such Shareholder has sufficient knowledge and
experience in
finance and business that he
is capable of evaluating the risks and merits
of
his investment in the New Parent and such Shareholder is
financially
able
to bear the risks thereof.
5.4 Each Shareholder
acknowledges and understands that (i) the Consideration
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 Consideration Shares cannot be sold, transferred or
otherwise
disposed of except in accordance with Regulation S, if applicable,
pursuant
to
registration under the Securities Act, or pursuant to an
available
exemption from registration; and hedging transactions involving
the
Consideration Shares may not be conducted unless in compliance with
the
Securities Act; (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
of the
New
Parent, adequate information concerning the New Parent 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 U.S. Securities
and Exchange Commission with respect to any stock of
the
New Parent and the New Parent has no obligation to register the
Consideration Shares under the Securities Act. Consideration Shares
shall
not
be sold or transferred unless either (i) they first shall have
been
registered under the Securities Act, or (ii) they shall be sold
pursuant to
a
valid exemption from the registration requirements of the
Securities Act.
5.5 All certificates
representing Consideration Shares shall have affixed
thereto legends in substantially the following form, in addition to
any
other legends that may be required under U.S. federal or state
securities
laws:
"The Shares represented by this certificate have not been
registered
under the Securities Act of 1933, as amended, and may not be
sold,
transferred or otherwise disposed of except in accordance with
the
provisions of Regulation S under the Securities Act, pursuant
to
registration under the Securities Act, or pursuant to an
available
exemption from registration, and hedging transactions involving
the
Shares represented by this Certificate may not be conducted unless
in
compliance with the Securities Act."
6. TERMINATION
OF SUBSIDIARY SHAREHOLDER AGREEMENTS
Each
party agrees that each of: (i) the investment agreement dated 3
October 2003 between Subsidiary and certain shareholders of
Subsidiary
(except for article 6 (Warranties and Indemnity) thereof); (ii)
the
subscription agreement dated 21 December 2004 between Subsidiary
and
certain shareholders of Subsidiary (except for article 5
(Warranties)
thereof); (iii) the subscription agreement dated 26 May 2005
between
Subsidiary and certain shareholders of Subsidiary (except for
article 3
(Warranties) thereof); and (iv) the Management Rights Letter dated
3
October 2003 between Subsidiary and Merlin General Partner II
Limited shall
terminate in its
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entirety upon the signing of this Agreement, and each party
irrevocably
waives all rights and claims under each such agreement with effect
from
Completion, except for claims in respect of warranties as provided
in each
of
the subscription agreements set forth above, upon and pursuant to
the
terms of the surviving articles thereof.
7. SUBSIDIARY
OPTIONS
7.1 As soon as
reasonably practicable following Completion, the New Parent
will
extend an offer to each person identified on Schedule 2 hereto
(each, an
"OPTIONHOLDER") to exchange the option or options to purchase the
number of
Ordinary Shares in the Subsidiary set forth opposite such
Optionholder's
name on Schedule 2
hereto for an option or options to acquire an equal
number of shares of Common Stock of the New Parent upon
substantially
equivalent terms (excluding terms which relate to the tax status of
such
options).
7.2 As soon as
reasonably practicable following Completion, the New Parent, in
its
capacity as a shareholder of the Subsidiary, will amend the
Articles of
Association of the Subsidiary to provide that, immediately
following any
issue of Ordinary Shares of the Subsidiary (pursuant to the
exercise of any
employee option to purchase such shares) thereafter, the holder
thereof
will
by virtue of such articles be obliged to transfer such Ordinary
Shares
of
the Subsidiary to the New Parent in consideration for the issuance
by
the
New Parent of an equal number of shares of Common Stock of the
New
Parent.
8.
MISCELLANEOUS
8.1 Each of the
Shareholders confirms that he has no and will have no claims
(whether statutory, contractual or otherwise) against the New
Parent or
Subsidiary or any of their subsidiaries (if any) for compensation,
damages
or
otherwise in relation to the Subsidiary Shares, the
Consideration
Shares, any other ownership interest in the Subsidiary or the New
Parent or
this
Agreement, and hereby waives any such claims that he may have.
8.2 In relation to its
subject matter this Agreement represents the entire
understanding and constitutes the whole agreement, and supersedes
any
previous agreement, between the parties and, save as provided in
this
Agreement, no party has relied on any representation made by any
other
party.
8.3 The Shareholders
shall after completion execute all such deeds and
documents and do all such things as the New Parent may reasonably
require
for
perfecting the transactions intended to be effected under or
pursuant
to
this Agreement and for vesting in the New Parent the full benefit
of the
Subsidiary Shares.
8.4 This Agreement may
be executed in more than one counterpart (including
facsimile copies), each of which shall be deemed to constitute an
original,
and
shall become effective when one or more counterparts have been
signed
by
all of the parties hereto and such a counterpart (so signed) has
been
delivered to each of the parties hereto.
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8.5 This Agreement
shall be governed by, and construed in accordance with, the
laws
of England and Wales and the parties hereby submit to the
non-exclusive jurisdiction of the English courts.
8.6 The New Parent
shall be liable for any stamp duty or stamp duty reserve tax
arising as a result of this Agreement.
8.7 This Agreement may
be amended, modified or supplemented and portions of it
waived in writing by the New Parent, the Subsidiary and
Shareholders
holding not les
