As filed with the Securities and Exchange Commission on February 25, 2004.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
BIOENVISION, INC.
(Exact name of issuer as specified in its charter)
Delaware 13-4025857
(State of Incorporation) (IRS Employer Identification Number)
509 Madison Avenue, Suite 404, New York, NY 10022
(Address of Principal Executive Offices) (Zip Code)
BIOENVISION, INC.
2003 STOCK INCENTIVE PLAN
(Full title of the Plan)
Christopher B. Wood, M.D., Chairman and Chief Executive Officer
Bioenvision, Inc.
509 Madison Avenue, Suite 404
New York, NY 10022
(Name and address of agent for service)
(212) 750-6700
(Telephone number, including area code, of agent for service)
copy to:
J. Mark Poerio, Esq.
Paul, Hastings, Janofsky & Walker LLP
1299 Pennsylvania Ave., N.W., Tenth Floor
Washington, DC 20004
(202) 508-9582
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
registered registered Offering Price Aggregate Offering Registration Fee
Per Unit Price
2003 Stock Incentive Plan, 3,000,000 $3.80 (3) $11,400,000 $1,444.38
Common Shares, par value
$.001 per share (1)
Retention Grant Pursuant 1,500,000 $1.25 (4) $1,875,000 $237.56
to an Employment
Agreement, Common Shares,
par value $.001 per share
(2)
TOTAL FEE:
$1,681.94
(1) Registered herein are 3,000,000 shares of the Registrant's Common Shares
that may be issued pursuant to its 2003 Stock Incentive Plan. Also registered
hereunder are such additional number of Common Shares, presently indeterminable,
as may be necessary to satisfy the anti-dilution provisions of the Plans to
which this Registration Statement relates in accordance with Rule 416 under the
Securities Act of 1933, as amended (the "Securities Act").
(2) Registered herein are 1,500,000 shares of the Registrant's Common Shares
that have been issued pursuant to an option agreement between the Registrant and
Christopher B. Wood, M.D.
(3) Calculated pursuant to paragraphs (c) and (h) of Rule 457 of the Securities
Act, the proposed maximum offering price per share of the shares being
registered is estimated solely for the purpose of determining the registration
fee, based upon the weighted average of (i) the weighted average exercise price
of $2.05 per share with respect to the 1,975,000 Common Shares subject to
outstanding stock option awards pursuant to the 2003 Stock Incentive Plan and
(ii) $7.16 per share for the remaining 1,025,000 of Common Shares eligible for
issuance pursuant to the 2003 Stock Incentive Plan, which is based upon the
average of the high and low prices per share of the Registrant's Common Shares,
as reported on the American Stock Exchange on February 20, 2004, which is within
five business days prior to the date of the filing of this Registration
Statement.
(4) Calculated pursuant to paragraph (h) of Rule 457 of the Securities Act, the
proposed maximum offering price per share of the shares being registered is
estimated solely for the purpose of determining the registration fee, based upon
the exercise price of the 1,500,000 Common Shares subject to an outstanding
stock option award pursuant to Mr. Wood's stock option award agreement.
PART I
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in Item 1 of Part I
of this Registration Statement will be sent or given to participants who receive
awards under the Bioenvision, Inc. 2003 Stock Incentive Plan (the "Plan") and,
in accordance with Section 10(a) of the Securities Act and Rules 424 and 428
promulgated under the Securities Act by the Securities and Exchange Commission
(the "Commission"), are not being filed with, or included in, this Registration
Statement.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in Item 2 of Part I
of this Registration Statement will be sent or given free of charge to
participants who receive awards under the Bioenvision, Inc. 2003 Stock Incentive
Plan and, in accordance with Section 10(a) of the Securities Act and Rule 428
promulgated under the Securities Act, are not being filed with, or included in,
this Registration Statement. All requests can be sent to:
Bioenvision, Inc.
509 Madison Avenue
Suite 404
New York, New York 10022
Attn: General Counsel
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed with the SEC by the
Registrant, are incorporated by reference in this Registration Statement. The
information incorporated by reference is considered to be part of this
Registration Statement, and information that the Registrant files later with the
SEC will automatically update and supersede this information. The Registrant
incorporates by reference the documents listed below and any future filings the
Registrant makes with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"):
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended June 30, 2003, filed with the SEC on September 29, 2003 (SEC File No.
001-31787); and
(b) The Registrant's Quarterly Report on Form 10-QSB, for the
three-month period ended December 31, 2003, filed with the SEC on February 17,
2003 (SEC File No. 001-31787);
(c) The Registrant's Quarterly Report on Form 10-QSB/A1, for the
three-month period ended December 31, 2003, filed with the SEC on February 18,
2003 (SEC File No. 001-31787); and
(d) The description of the Registrant's common shares of beneficial
interest contained in its Registration Statement on Form 8-A dated and filed
with the Commission on September 5, 2003 pursuant to Section 12(g) of the
Exchange Act, as amended (SEC File No. 001-31787), including any amendment or
report filed for the purpose of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
The validity of the common stock has been passed upon by Paul, Hastings,
Janofsky & Walker LLP for the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The indemnification of officers and directors of the Registrant is
governed by Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") and the Certificate of Incorporation, as amended, and By-Laws of
the Registrant. Subsection (a) of DGCL Section 145 empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in the
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful.
Subsection (b) of DGCL Section 145 empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in a connection with the defense or settlement
of such action or suit if the person acted in good faith and in the manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
DGCL Section 145 further provides that to the extent that a present or
former director or officer is successful, on the merits or otherwise, in the
defense of any action, suit or proceeding referred to in subsections (a) and (b)
of Section 145, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith. In all cases in
which indemnification is permitted under subsection (a) and (b) of Section 145
(unless ordered by a
court), it shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances because the
applicable standard of conduct has been met by the party to be indemnified. Such
determination must be made, with respect to a person who is a director or
officer at the time of such determination, (1) by a majority vote of the
directors who are no parties to such action, suit or proceeding, even though
less than a quorum, or (2) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or (3) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (4) by the stockholders. The statute authorizes
the corporation to pay expenses incurred by an officer or director in advance of
the final disposition of a proceeding upon receipt of an undertaking by or on
behalf of the person to whom the advance will be made, to repay the advances if
it shall ultimately be determined that he was not entitled to indemnification.
DGCL Section 145 also provides that indemnification and advancement of expenses
permitted thereunder are not to be exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
By-Law, agreement, vote of stockholders or disinterested directors, or
otherwise. DGCL Section 145 also authorizes the corporation to purchase and
maintain liability insurance on behalf of its directors, officers, employees and
agents regardless of whether the corporation would have the statutory power to
indemnify such persons against the liabilities insures.
Article Seventh of the Certificate of Incorporation of the Registrant,
as amended (the "Certificate"), provides that no director of the Registrant
shall be personally liable to the Registrant or its stockholders for monetary
damages for breach of fiduciary duty as a director except for liability (i) for
any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL (involving certain unlawful dividends or stock purchases or
redemptions), or (iv) for any transaction from which the director derived an
improper personal benefit.
Pursuant to Section 145(g) of the DGCL, the Registrant's By-Laws, as
amended, authorize the Registrant to obtain insurance to protect officers and
directors from certain liabilities, including liabilities against which the
Registration cannot indemnify its officers and directors.
In derivative actions, the Registrant may only protect from liability
its officers, directors, employees and agents against expenses actually and
reasonably incurred in connection with the defense or settlement of a suit, and
only if they acted in good faith and in a manner they reasonably believed to be
in, or not opposed to, the best interests of the corporation. Indemnification is
not permitted in the event that the director, officer, employee or agent is
actually adjudged liable to Bioenvision unless, and only to the extent that, the
court in which the action was brought so determines.
Bioenvision's Certificate of Incorporation permits it to protect from
liability its directors except in the event of: (1) any breach of the director's
duty of loyalty to Bioenvision or its stockholders; (2) any act or failure to
act that is not in good faith or involves intentional misconduct or a knowing
violation of the law; (3) liability arising under Section 174 of the
Delaware General Corporation Law, relating to unlawful stock purchases,
redemptions, or payment of dividends; or (4) any transaction in which the
director received an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NO. DESCRIPTION
4.1 Bioenvision, Inc. 2003 Stock Incentive Plan (included as an
exhibit to Registrant's definitive proxy statement on Schedule
14-A, filed in connection with the annual meeting held on January
14, 2004 (SEC File No. 001-31787), which is incorporated herein
by reference)
5.1 Opinion of Paul, Hastings, Janofsky & Walker LLP regarding the
legality of the securities being registered by the Registrant
23.1 Consent of Grant Thornton LLP, Independent Certified Public
Accountants
23.2 Consent of Paul, Hastings, Janofsky & Walker LLP (included in
Exhibit 5.1)
24.1 Powers of Attorney (included as a part of the signature page of
this Registration Statement)
99.1 Form of Option Award Agreement with U.S. Employees for
Bioenvision, Inc. 2003 Stock Incentive Plan
99.2 Form of Restricted Share Award Agreement for Bioenvision, Inc.
2003 Stock Incentive Plan
99.3 Form of Option Award Agreement with U.K. Employees for
Bioenvision, Inc. 2003 Stock Incentive Plan
99.4 Option Award Agreement between the Registrant. and Christopher B.
Wood, M.D., April 30, 2001, which certifies that Mr. Wood has an
option to purchase 1,500,000 shares of Bioenvision common shares,
par value $.001, at an exercise price of $1.25 per share
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes the following:
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than a 20% change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed
in the Registration Statement or any material
change to such information in the Registration
Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act, that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned Registrant hereby undertakes, that, insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Bioenvision,
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on this 25th day of
February, 2004.
BIOENVISION, INC.
A Delaware corporation (Registrant)
By: /s/ Christopher B. Wood
--------------------------------------
Name: Christopher B. Wood
Title: Chairman and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Christopher M. Wood as his or her true and lawful attorney-in-fact with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement (or any registration
statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933) and to cause the same to be filed,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby granting to said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing whatsoever requisite or desirable to be done in and
about the premises, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all acts and things
that said attorneys-in-fact and agents, or either of them, or their substitutes
or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Christopher B. Wood Chairman and Chief Executive February 25, 2004
----------------------- Officer (Principal Executive
Christopher B. Wood Officer)
/s/ David P. Luci
----------------------- Director of Finance, General February 25, 2004
David P. Luci Counsel and Corporate Secretary
/s/ Jeffrey B. Davis Director February 25, 2004
-----------------------
Jeffrey B. Davis
/s/ Thomas Scott Nelson Director February 25, 2004
-----------------------
Thomas Scott Nelson
/s/ Steven A. Elms Director February 25, 2004
-----------------------
Steven A. Elms
/s/Andrew Schiff Director February 25, 2004
-----------------------
Andrew Schiff
/s/ Michael Kauffman Director February 25, 2004
-----------------------
Michael Kauffman
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
4.1 Bioenvision, Inc. 2003 Stock Incentive Plan (included as an
exhibit to Registrant's definitive proxy statement on Schedule
14-A, filed in connection with the annual meeting held on January
14, 2004 (SEC File No. 001-31787), which is incorporated herein
by reference)
5.1 Opinion of Paul, Hastings, Janofsky & Walker LLP regarding the
legality of the securities being registered by the Registrant
23.1 Consent of Grant Thornton LLP, Independent Certified Public
Accountants
23.2 Consent of Paul, Hastings, Janofsky & Walker LLP (included in
Exhibit 5.1)
24.1 Powers of Attorney (included as a part of the signature page of
this Registration Statement)
99.1 Form of Option Award Agreement with U.S. Employees for
Bioenvision, Inc. 2003 Stock Incentive Plan
99.2 Form of Restricted Share Award Agreement for Bioenvision, Inc.
2003 Stock Incentive Plan
99.3 Form of Option Award Agreement with U.K. Employees for
Bioenvision, Inc. 2003 Stock Incentive Plan
99.4 Option Award Agreement between the Registrant. and Christopher B.
Wood, M.D., April 30, 2001, which certifies that Mr. Wood has an
option to purchase 1,500,000 shares of Bioenvision common shares,
par value $.001, at an exercise price of $1.25 per share
EXHIBIT 5.1
OPINION REGARDING LEGALITY
PAUL, HASTINGS, JANOFSKY & WALKER LLP
1299 PENNSYLVANIA AVENUE, N.W.
TENTH FLOOR
WASHINGTON, D.C. 20004
TELEPHONE (202) 508-9500 FAX (202) 508-9700
February 25, 2004
Bioenvision, Inc.
509 Madison Avenue
Suite 404
New York, NY 10022
Re: Bioenvision, Inc. Registration of 2003 Stock Incentive Plan on
Form S-8
Ladies and Gentlemen:
We have acted as special counsel for Bioenvision, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
registration statement on Form S-8 (the "Registration Statement") relating to
3,000,000 Common Shares of Beneficial Interest, par value $.001 per share
("Common Shares") which may be issued under the Company's 2003 Stock Incentive
Plan (the "Plan"), 1,500,000 Common Shares which have been issued pursuant to an
option award agreement (the "Option Agreement"), dated April 30, 2001, between
the Company and Christopher B. Wood, M.D., and Common Shares which may be issued
as may be necessary to satisfy the anti-dilution provisions of the Plan and the
Option Agreement. In accordance with the Registration Statement, the Company may
initially issue up to an aggregate of 3,000,000 shares of its Common Shares
pursuant to the Plan. This opinion is being furnished to you as a supporting
document for such Registration Statement.
In this connection we have examined and considered the original or
copies, certified or otherwise identified to our satisfaction, of the following:
(i) The Articles of Incorporation, including all amendments thereto, of
the Company, as in effect on the date hereof;
(ii) The By-Laws of the Company, including all amendments thereto, as in
effect on the date hereof;
(iii) The Notice of the 2004 Annual Meeting ("Notice") and Proxy
Statement mailed to holders of Common Shares of the Company noticing an annual
meeting of holders of shares of the Company ("Annual Meeting") and describing
the actions to be voted on at such meeting, including approval of the Plan;
Opinion of Paul, Hastings, Janofsky & Walker LLP 2
(iv) Resolutions of the Board of Directors of the Company, adopted
pursuant to Unanimous Written Consent of the Board on November 17, 2003,
approving the Plan and authorizing the registration of the 3,000,000 Common
Shares that may be issued pursuant to the Plan under the Securities Act of 1933,
as amended;
(v) The Registration Statement filed with the Securities and Exchange
Commission with respect to the 3,000,000 Common Shares issuable upon exercise of
options granted under the Plan; and
(vi) The Option Award Agreement between the Company and Christopher B.
Wood, M.D., dated April 30, 2001.
In addition, we have obtained from public officials, officers and other
representatives of the Company, and others such certificates, documents and
assurances as we considered necessary or appropriate for purposes of rendering
this opinion. In our examination of the documents listed in (i)-(v) above and
the other certificates and documents referred to herein, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures on
documents not executed in our presence and facsimile or photostatic copies of
which we reviewed, the authenticity of all documents submitted to us as
originals, the conformity to the original documents of all documents submitted
to us as certified or photostatic copies and the authenticity of the originals
of such documents. Without limiting the generality of the foregoing we have
relied upon the representations of the Company as to the accuracy and
completeness of (i) the Articles of Incorporation and the By-laws of the
Company; (ii) the Plan; (iii) the Registration Statement; and (iv) the
representations of the Company that (a) the resolutions of the Board, dated
November 17, 2003, approving, among other things, the Plans, filing the
Registration Statement, and reserving the 3,000,000 Common Shares that may be
issued pursuant to the Plan, and (b) the Articles of Incorporation and By-laws
of the Company have not been rescinded, modified or revoked.
Based upon the assumptions, qualifications and limitations set forth
herein, and relying upon the statements of fact contained in the documents that
we have examined, we are of the opinion, as of the date hereof, that when
options have been exercised as contemplated by the Plan and consideration has
been paid for the Common Shares underlying the options as contemplated by the
Plan, such Common Shares will constitute legally issued, fully paid and
nonassessable, and valid and binding obligations of the Company.
In addition to the assumptions set forth above, the opinions set forth
herein are also subject to the following qualifications and limitations:
(a) The opinions expressed in this letter are based upon the assumption
that the Company will cause the Registration Statement to become effective and
the Company will keep the Registration Statement effective and that any Common
Shares issued upon the exercise of options or purchased pursuant to the Plan
will be issued only at a time when the Registration Statement is effective.
(b) The opinions expressed in this letter are specifically limited to
the matters set forth in this letter and no other opinions should be inferred
beyond the matters expressly stated herein.
Opinion of Paul, Hastings, Janofsky & Walker LLP 3
(c) The opinions expressed in this letter are based on the laws of the
jurisdictions referred to in the next paragraph as they may be in effect on the
date hereof and we assume no obligation to supplement this opinion if any
applicable laws change after the date hereof.
The opinions herein expressed are limited in all respects solely to
matters governed by the General Corporation Law of the State of Delaware, and
the federal laws of the United States of America, insofar as each may be
applicable. We express no opinion herein with respect to matters of local,
county or municipal law, or with respect to the laws, regulations, or ordinances
of local agencies within any state. Subject to the foregoing, any reference
herein to "law" means applicable constitutions, statutes, regulations and
judicial decisions.
This opinion letter is rendered solely to you in connection with the
above referenced matter and may not be relied upon by you for any other purpose
or delivered to, or quoted or relied upon by, any other person without our prior
written consent. This opinion letter is rendered as of the date hereof, and we
assume no obligation to advise you of any facts, circumstances, events or
developments that may be brought to our attention in the future, which facts,
circumstances, events or developments may alter, affect or modify the opinions
or beliefs expressed herein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Paul, Hastings, Janofsky & Walker LLP
EXHIBIT 23.1
Consent of Independent Certified Public Accountants
We have issued our report dated September 22, 2003 accompanying the consolidated
financial statements of Bioenvision, Inc. and subsidiaries appearing in the
Annual Report on Form 10-KSB for the year ended June 30, 2003 which is
incorporated by reference in this Registration Statement. We consent to the
incorporation by reference in the Registration Statement of the aforementioned
report.
/s/ GRANT THORNTON LLP
New York, New York
February 18, 2004
EXHIBIT 99.1
FORM OF OPTION AWARD AGREEMENT WITH U.S. EMPLOYEES FOR
BIOENVISION, INC. 2003 STOCK INCENTIVE PLAN
BIOENVISION, INC.
2003 STOCK INCENTIVE PLAN
------------------------------
Stock Option Award Agreement
------------------------------
Award No.
----
You (the "Participant") are hereby awarded the following stock option (the
"Option") to purchase Common Stock of Bioenvision, Inc. ("the "Company"),
subject to the terms and conditions set forth in this Stock Option Award
Agreement (this "Award Agreement") and in the Bioenvision, Inc. 2003 Stock
Incentive Plan (the "Plan"), which is attached hereto as Exhibit A. Capitalized
terms used herein and not otherwise defined herein shall have the meanings given
to such terms in the Plan.
1. Variable Terms. This Option shall be controlled by and
interpreted according to the following terms, subject to the provisions
of the Plan in all instances:
Name of Participant:
---------------------------------
Type of Stock Option: |_| Incentive Stock Option (ISO)1
|_| Non-Incentive Stock Option
Number of Shares subject to Option: _____
--------------------------------
--------------------------------
Option Exercise Price per Share: $____.___
--------------------------------
--------------------------------
Date of Option Grant: _________ ___, 20__
--------------------------------
Expiration Date: |_| ____ years after Date of
Option Grant
|_| 10 years after Date of Option
Grant
Vesting Schedule: (Establishes the Participant's rights to exercise
this Option with respect to the Number of Shares
stated above.)
|_| ___% on Date of Option Grant.
|_| ___% on each of the first
__ (#) annual (_quarterly/__
monthly) anniversary dates of
the Participant's service as
an employee, consultant, or
director ("Service") after
the Date of Option Grant.
--------
1 If an ISO is awarded to a person owning more than 10% of the voting power of
all classes of stock of the Company or of any Subsidiary, then the term of the
Option cannot exceed 5 years and the exercise price must be at least 110% of the
Fair Market Value (100% for any other employee who is receiving ISO awards).
2. Term of Option. The term of the Option will expire at 5:00
p.m. (E.D.T. or E.S.T., as applicable) on the Expiration Date.
3. Manner of Exercise. The Option shall be exercised in the
manner set forth in the Plan. The amount of Shares for which the Option
may be exercised is cumulative; that is, if the Participant fails to
exercise the Option for all of the Shares vested under the Option during
any period set forth above, then any Shares subject to the Option that
are not exercised during such period may be exercised during any
subsequent period, until the expiration or termination of the Option
pursuant to Sections 2 and 5 of this Award Agreement and the terms of
the Plan. Fractional Shares may not be purchased.
4. Premature Disposition of an ISO. If the Participant sells or
otherwise disposes of Shares acquired upon the exercise of an ISO within
1 year from the date such Shares were acquired or 2 years from the Date
of Option Grant, the Participant agrees that to deliver a written report
to the Company within 10 days following the sale or other disposition of
such Shares detailing the net proceeds of such sale or disposition.
5. Termination of Service. If the Participant's Service with the
Company is terminated for any reason, this Option shall terminate on the
date on which the Participant ceases to have any right to exercise the
Option pursuant to the terms and conditions set forth in Section 7 of
the Plan.
6. Subject to Plan. This Option is subject to all of the terms
and conditions of the Plan, and by executing this Award Agreement, the
Participant agrees to be bound by all of the Plan's terms and conditions
as if it had been set out verbatim in this Award Agreement. In addition,
the Participant recognizes and agrees that all determinations,
interpretations or other actions respecting the Plan may be made by a
majority of the Board or of the Committee in their sole and absolute
discretion, and that such determinations, interpretations or other
actions are (unless arbitrary and capricious) final, conclusive and
binding upon all parties, including the Participant, his or her heirs,
and representatives.
7. Designation of Beneficiary. Notwithstanding anything to the
contrary contained herein or in the Plan, following the execution of
this Award Agreement, the Participant may expressly designate a
beneficiary (the "Beneficiary") to his or her interest in the Option
awarded hereby. The Participant shall designate the Beneficiary by
completing and executing a designation of beneficiary agreement
substantially in the form attached hereto as Exhibit B (the "Designation
of Beneficiary") and delivering an executed copy of the Designation of
Beneficiary to the Company.
8. Notices. Any notice, payment or communication required or
permitted to be given by any provision of this Award Agreement shall be
in writing and shall be delivered personally or sent by certified mail,
return receipt requested, addressed as follows: (i) if to the Company,
at the address set forth on the signature page hereto (attention: 2003
Stock Incentive Plan Committee); (ii) if to Participant, at the address
set forth below his or her signature on the signature page hereto. Each
party may, from time
to time, by notice to the other party hereto, specify a new address for
delivery of notices to such party hereunder. Any such notice shall be
deemed to be delivered, given, and received for all purposes as of the
date such notice is received or properly mailed.
9. Binding Effect. Except as otherwise provided in this Award
Agreement or in the Plan, every covenant, term, and provision of this
Award Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legatees, legal
representatives, successors, transferees, and assigns.
10. Modifications. This Award Agreement may be modified or
amended at any time, provided that the Participant must consent to any
modification that adversely alters or impairs any rights or obligations
under this Option.
11. Headings. Section and other headings contained in this Award
Agreement are for reference purposes only and are not intended to
describe, interpret, define or limit the scope or intent of this Award
Agreement or any provision hereof.
12. Severability. Every provision of this Award Agreement and of
the Plan is intended to be severable. If any term hereof is illegal or
invalid for any reason, such illegality or invalidity shall not affect
the validity or legality of the remaining terms of this Award Agreement.
13. Governing Law. The laws of the State of New York shall govern
the validity of this Award Agreement, the construction of its terms, and
the interpretation of the rights and duties of the parties hereto.
14. Counterparts. This Award Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument.
BY YOUR SIGNATURE BELOW, along with the signature of the Company's
representative, you and the Company agree that the Option is awarded under and
governed by the terms and conditions of this Award Agreement and the Plan.
BIOENVISION, INC.
By:
A duly authorized Director or Officer
The undersigned Participant hereby accepts the
terms of this Award Agreement and the Plan.
By:
Name of Participant: ______________________
Exhibit A
---------
BIOENVISION, INC.
2003 STOCK INCENTIVE PLAN
Exhibit B
---------
BIOENVISION, INC.
2003 STOCK INCENTIVE PLAN
Designation of Beneficiary
In connection with the STOCK OPTION AWARD AGREEMENT (the "Award
Agreement") entered into on _______________, 20__ between Bioenvision, Inc. (the
"Company") and _______________, an individual residing at _______________ (the
"Participant"), the Participant hereby designates the person specified below as
the beneficiary of the Participant's interest in a stock option to purchase
shares of Common Stock (as defined in the Award Agreement) of the Company
awarded pursuant to the Award Agreement. This designation shall remain in effect
until revoked in writing by the Participant.
Name of Beneficiary:
-------------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
Social Security No.:
-------------------------------
The Participant understands that this designation operates to entitle
the above-named beneficiary to the rights conferred by the Award Agreement from
the date this form is delivered to the Company until such date as this
designation is revoked in writing by the Participant, including by delivery to
the Company of a written designation of beneficiary executed by the Participant
on a later date.
Date:
--------------------
By:
--------------------
[Participant Name]
Sworn to before me this
____ day of ____________, 20__
------------------------------
Notary Public
County of __________________
State of __________________
EXHIBIT 99.2
FORM OF RESTRICTED SHARE AWARD AGREEMENT FOR
BIOENVISION, INC. 2003 STOCK INCENTIVE PLAN
BIOENVISION, INC.
2003 STOCK INCENTIVE PLAN
-------------------------------
Restricted Stock Award Agreement
------------------------------
Award No.
----
You are hereby awarded Restricted Stock subject to the terms and conditions set
forth in this Restricted Stock Award Agreement ("Award") and in the Bioenvision,
Inc. 2003 Stock Incentive Plan ("Plan"), which is attached hereto as Exhibit A.
By executing this Award, you agree to be bound by all of the Plan's terms and
conditions as if they had been set out verbatim in this Award. In addition, you
recognize and agree that all determinations, interpretations, or other actions
respecting the Plan and this Award will be made by the Plan Administrator, and
shall be final, conclusive and binding on all parties, including you and your
successors in interest. Capitalized terms are defined in the Plan or in this
Award.
Specific Terms. Your Restricted Stock has the following terms:
-------------------------------- -----------------------------------------------
Name of Participant
-------------------------------- -----------------------------------------------
Number of Shares Subject to
Award
-------------------------------- -----------------------------------------------
Purchase Price per Share $
-------------------------------- -----------------------------------------------
Date of Award
-------------------------------- -----------------------------------------------
Last Date to Purchase Shares
-------------------------------- -----------------------------------------------
Vesting Subject to acceleration, as provided in the
Plan, your Restricted Stock under this Award
shall vest at the rate of ___% per calendar
year (up to a maximum of 100%) at the end of
which you have not terminated service with the
Company for any reason.
-------------------------------- -----------------------------------------------
1. Dividends. Dividends on your Restricted Stock will be reinvested
in additional shares of Restricted Stock that are subject to the same terms and
conditions as the Restricted Stock with respect to which the dividends were
paid.
2. Investment Purposes. You acknowledge that you are acquiring your
Restricted Stock for investment purposes only and without any present intention
of selling or distributing them.
3. Legend. Until all vesting restrictions lapse and new certificates
are issued pursuant to the next section, Certificates representing shares of
Restricted Stock issued pursuant to this Award shall bear the following legend:
The shares represented by this certificate are subject to
reacquisition by, and such shares may not be sold or otherwise
transferred except pursuant to the provisions of the Restricted
Stock Award Agreement by and between Bioenvision, Inc. and the
registered owner of such shares.
4. Lapse of Vesting Restrictions. As vesting restrictions lapse, the
Company shall cause new certificates to be issued and delivered to you, free
from the legend in the preceding section, but with any other legends the Company
determines to be appropriate. New certificates shall not be delivered to you
unless you have made arrangements satisfactory to the Plan Administrator to
satisfy tax-withholding obligations.
5. Section 83(b) Election Notice. If you elect under Code Section
83(b) to be taxed immediately on your Restricted Stock when it was granted to,
you promise to notify the Company of the election within 10 days of filing that
election with the Internal Revenue Service. Exhibit B is a suggested form of
Section 83(b) election.
6. Not a Contract of Employment. By executing this Award Agreement,
you acknowledge and agree that (1) any person who is terminated before full
vesting of an award, such as the one granted to you by this Award Agreement,
could claim that he or she was terminated to preclude vesting; (2) you promise
never to make such a claim; (3) nothing in this Award Agreement or the Plan
confers on you any right to continued Company employment or restricts the
Company's right to terminate your employment at any time for any or no reason;
and (4) the Company would not have granted this Award to you but for these
acknowledgements and agreements.
7. Severability. Subject to one exception, every provision of this
Award Agreement and the Plan is intended to be severable, and any illegal or
invalid term shall not affect the validity or legality of the remaining terms.
The only exception is that this Award Agreement shall be unenforceable if any
provision of the preceding section is illegal, invalid, or unenforceable.
8. Governing Law. New York law shall govern all issues associated
with this Plan and this Award, except to the limited extent (if at all) that
federal law is preemptive.
9. Notices. Any notice, payment or communication required or
permitted to be given by any provision of this Award shall be in writing and
shall be delivered personally or sent by certified mail, return receipt
requested, addressed as follows: (i) if to the Company, at the address set forth
on the signature page, to the attention of: Plan Administrator of the
Bioenvision, Inc. 2003 Stock Incentive Plan; (ii) if to you, at the address set
forth below your signature on the signature page. Each party may, from time to
time, by notice to the other party hereto, specify a new address for delivery of
notices relating to this Award. Any such notice shall be deemed to be given as
of the date such notice is personally delivered or properly mailed.
10. Binding Effect. Every provision of this Award shall be binding on
and inure to the benefit the parties' respective heirs, legatees, legal
representatives, successors, transferees, and assigns.
11. Headings. Headings shall be ignored in interpreting this Award.
12. Counterparts. This Award may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute the same
instrument.
BY YOUR SIGNATURE BELOW, along with the signature of the Company's
representative, you and the Company agree that the Option is awarded under and
governed by the terms and conditions of this Award Agreement and the Plan.
BIOENVISION, INC.
By:
Name:
Title:
The undersigned Participant hereby accepts the terms of this Award Agreement and
the Plan.
By:
Name of Participant: ______________________
Exhibit A
---------
BIOENVISION, INC.
2003 STOCK INCENTIVE PLAN
Exhibit B
---------
BIOENVISION, INC.
2003 STOCK INCENTIVE PLAN
Section 83(b) Election Form
Attached is an Internal Revenue Code Section 83(b) Election Form. If you wish to
make a Section 83(b) election, you must do so within 30 days of the date the
restricted stock was transferred to you. In order to make the election, you must
completely fill out the attached form and file one copy with the Internal
Revenue office where you file your tax return. In addition, one copy of the
statement also must be submitted with your income tax return for the taxable
year in which you make this election. Finally, you also must submit a copy of
the election form to the Company. Section 83(b) election normally cannot be
revoked.
BIOENVISION, INC.
--------------------------------------------------------
Election to Include Value of Restricted Stock in Gross Income
in Year of Transfer Under Internal Revenue Code Section 83(b)
---------------------------------------------------------
Pursuant to Section 83(b) of the Internal Revenue Code, I hereby elect
within 30 days of receiving the property described herein to be taxed
immediately on its value specified in item 5 below.
1. My General Information:
Name: __________________________________
Address: ________________________________
S.S.N. ________________________________
or T.I.N.: ____________________________
2. Description of the property with respect to which I am making this
election:
____________________ shares of ___________ stock of Bioenvision,
Inc. (Restricted Stock).
3. The Restricted Stock was transferred to me on ______________ ___, 20__.
This election relates to the 20____ calendar taxable year.
4. The Restricted Stock is subject to the following restrictions:
The Restricted Stock is forfeitable until it is earned in
accordance with Section 1 of the Bioenvision, Inc. 2003 Stock
Incentive Plan ("Plan") Restricted Stock Award Agreement
("Award") or other Award or Plan provisions. The Restricted Stock
generally is not transferable until my interest becomes vested
and nonforfeitable, pursuant to the Award and the Plan.
5. Fair market value:
The fair market value at the time of transfer (determined without
regard to any restrictions other then restrictions which by their
terms never will lapse) of the Restricted Stock with respect to
which I am making this election is $_____ per share.
6. Amount paid for Restricted Stock:
The amount I paid for the Restricted Stock is $____ per share.
7. Furnishing statement to employer:
A copy of this statement has been furnished to my employer,
______________. If the transferor of the Restricted Stock is not
my employer, that entity also has been furnished with a copy of
this statement.
8. Award or Plan not affected:
Nothing contained herein shall be held to change any of the terms
or conditions of the Award or the Plan.
Dated: ____________ __, 20__.
------------------------------
Taxpayer
EXHIBIT 99.3
FORM OF OPTION AWARD AGREEMENT WITH U.K. EMPLOYEES FOR
BIOENVISION, INC. 2003 STOCK INCENTIVE PLAN
BIOENVISION, INC.
2003 STOCK INCENTIVE PLAN
------------------------------
Stock Option Award Agreement
------------------------------
Award No.
----
You (the "Participant") are hereby awarded the following stock option (the
"Option") to purchase Common Stock of Bioenvision, Inc. ("the "Company"),
subject to the terms and conditions set forth in this Stock Option Award
Agreement (this "Award Agreement") and in the Bioenvision, Inc. 2003 Stock
Incentive Plan (the "Plan"), which is attached hereto as Exhibit A. Capitalized
terms used herein and not otherwise defined herein shall have the meanings given
to such terms in the Plan. The Option is granted under the provisions of
Schedule 5 to Income Tax (Earnings and Pensions) Act 2003 (a law of the United
Kingdom). If and to the extent determined by the Administrator (in its
discretion), the Option shall qualify for the favorable U.K. tax treatment that
is available for grants under plans approved by the Inland Revenue Service.
1. Variable Terms. This Option shall be controlled by and interpreted
according to the following terms, subject to the provisions of the Plan in all
instances:
Name of Participant:
-----------------------------
Number of Shares subject to Option: _____
Option Exercise Price per Share: $____.___
Date of Option Grant: _________ ___, 20__
Expiration Date: |_| ____ years after Date of
Option Grant
|_| 10 years after Date of
Option Grant
Vesting Schedule: (Establishes the Participant's rights to exercise
this Option with respect to the Number of Shares
stated above.)
|_| ___% on Date of Option
Grant.
|_| ___% on each of the first
__(#) annual (_quarterly/
__monthly) anniversary
dates of the
Participant's service as
an employee, ("Service"))
after the Date of Option
Grant.
2. Term of Option. The term of the Option will expire at 5:00 p.m.
(E.D.T. or E.S.T., as applicable) on the Expiration Date.
3. Manner of Exercise. The Option shall be exercised in the manner
set forth in Section 7 the Plan. The amount of Shares for which the Option may
be exercised is cumulative; that is, if the Participant fails to exercise the
Option for all of the Shares vested under the Option during any period set forth
above, then any Shares subject to the Option that are not exercised during such
period may be exercised during any subsequent period, until the expiration or
termination of the Option pursuant to Sections 2 and 5 of this Award Agreement
and the terms of the Plan. Fractional Shares may not be purchased.
4. Conditions to be Satisfied. Notwithstanding anything herein to the
contrary, the Participant may not exercise the Option (or any part thereof)
unless and until the Company has determined the legality of the issuance of
shares pursuant to the Plan, in accordance with Section 14(a) of the Plan.
5. Premature Disposition of Shares Acquired on Exercise of the
Option. If the Participant sells or otherwise disposes of Shares acquired upon
the exercise of the Option within 1 year from the date such Shares were acquired
or 2 years from the Date of Option Grant, the Participant agrees that to deliver
a written report to the Company within 10 days following the sale or other
disposition of such Shares detailing the net proceeds of such sale or
disposition.
6. Restrictions Applicable to Shares Acquired on Exercise of the
Option. The shares that may be acquired on exercise of the Option are subject to
the restrictions found in Section 14(b) of the Plan.
7. Termination of Service. If the Participant's Service with the
Company is terminated for any reason, this Option shall terminate on the date on
which the Participant ceases to have any right to exercise the Option pursuant
to the terms and conditions set forth in Section 7 of the Plan.
8. Subject to Plan. This Option is subject to all of the terms and
conditions of the Plan, and by executing this Award Agreement, the Participant
agrees to be bound by all of the Plan's terms and conditions as if it had been
set out verbatim in this Award Agreement. In addition, the Participant
recognizes and agrees that all determinations, interpretations or other actions
respecting the Plan may be made by a majority of the Board or of the Committee
in their sole and absolute discretion, and that such determinations,
interpretations or other actions are (unless arbitrary and capricious) final,
conclusive and binding upon all parties, including the Participant, his or her
heirs, and representatives.
9. Notices. Any notice, payment or communication required or
permitted to be given by any provision of this Award Agreement shall be in
writing and shall be delivered personally or sent by certified mail, return
receipt requested, addressed as follows: (i) if to the Company, at the address
set forth on the signature page hereto (attention: 2003 Stock Incentive Plan
Committee); (ii) if to Participant, at the address set forth below his or her
signature on the signature page hereto. Each party may, from time to time, by
notice to the other party hereto, specify a new address for delivery of notices
to such party hereunder. Any such notice shall be
deemed to be delivered, given, and received for all purposes as of the date such
notice is received or properly mailed.
10. Binding Effect. Except as otherwise provided in this Award
Agreement or in the Plan, every covenant, term, and provision of this Award
Agreement shall be binding upon and inure to the benefit of the parties hereto.
11. Non-Transferability of Options. Notwithstanding anything in the
Plan to the contrary, none of the rights granted by this Award Agreement may be
transferred by the Participant. If the Option granted pursuant to this Award
Agreement is outstanding and unexercised at the time of his or her death, such
Option shall expire and no heir of the Participant shall have any rights with
respect to such Option under the Plan.
12. Headings. Section and other headings contained in this Award
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope or intent of this Award Agreement or any
provision hereof.
13. Severability. Every provision of this Award Agreement and of the
Plan is intended to be severable. If any term hereof is illegal or invalid for
any reason, such illegality or invalidity shall not affect the validity or
legality of the remaining terms of this Award Agreement.
14. Governing Law. The laws of the State of New York shall govern the
validity of this Award Agreement, the construction of its terms, and the
interpretation of the rights and duties of the parties hereto.
15. Counterparts. This Award Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
BY YOUR SIGNATURE BELOW, along with the signature of the Company's
representative, you and the Company agree that the Option is awarded under and
governed by the terms and conditions of this Award Agreement and the Plan.
BIOENVISION, INC.
By:
A duly authorized Director or Officer
The undersigned Participant hereby accepts the
terms of this Award Agreement and the Plan.
By:
Name of Participant: ______________________
Exhibit A
---------
BIOENVISION, INC.
2003 STOCK INCENTIVE PLAN
EXHIBIT 99.4
OPTION AWARD AGREEMENT BETWEEN BIOENVISION, INC.
AND CHRISTOPHER B. WOOD, M.D., APRIL 30, 2001
NEITHER THIS OPTION AGREEMENT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS SO
REGISTERED OR AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS AVAILABLE. THIS
LEGEND SHALL BE ENDORSED UPON ANY OPTION ISSUED IN EXCHANGE FOR THIS OPTION.
OPTION AGREEMENT
FOR COMMON STOCK OF
BIOENVISION, INC.
Date: April 30, 2001
THIS CERTIFIES that, for value received, Christopher B. Wood, M.D., or
his permitted assigns (collectively, the "Holder"), is entitled to purchase from
BIOENVISION, INC., a Delaware corporation (the "Company"), at any time, and from
time to time, during the exercise period referred to in Section 1 hereof, One
Million Five Hundred Thousand (1,500,000) fully paid, validly issued and
nonassessable shares (the "Option Shares") of common stock of the Company, par
value $0.001 (the "Common Stock"), at the exercise price of $1.25 per share,
subject to anti-dilution adjustments as provided herein (the "Option Share
Price"). Securities issuable upon exercise of this Option Agreement and the
exercise price payable therefor are subject to adjustment from time to time as
hereinafter set forth. As used herein, the term "Option" shall include any
option or options hereafter issued in consequence of the exercise of this Option
Agreement in part or transfer of this Option Agreement in whole or in part.
The Company shall register this Option Agreement, upon records to be
maintained by the Company for that purpose (the "Option Register"), in the name
of the record Holder hereof from time to time. The Company may deem and treat
the registered Holder of this Option Agreement as the absolute owner hereof for
the purpose of any exercise hereof or any distribution to the Holder, and for
all other purposes, and-the Company shall not be affected by notice to the
contrary.
Subject to Section 4 of this Option Agreement, the Company shall
register the transfer of any portion of this Option Agreement in the Option
Register, upon surrender of this Option Agreement, with the Form of Assignment
attached hereto duly completed and signed, to the Transfer Agent or to the
Company. Upon any such registration or transfer, a new option to purchase Common
Stock, in substantially the form of this Option Agreement (any such new option,
a "New Option"), evidencing the portion of this Option so transferred shall be
issued to the transferee and a New Option evidencing the remaining portion of
this Option not so transferred, if any, shall be issued to
the transferring Holder. The acceptance of the New Option by the transferee
thereof shall be deemed the acceptance by such transferee of all of the rights
and obligations of a holder of an Option. Any transfer or assignment of this
Option and Option Shares obtained by the Holder in exercise of this Option
Agreement is subject to the requirements that such securities be registered
under the Securities Act of 1933, as amended (the "Securities Act") and
applicable state securities laws or exempt from registration under such laws to
the satisfaction of the Company and its counsel.
1. Exercise; Payment for Ownership Interest.
(a) Upon the terms and subject to the conditions set forth
herein, this Option may be exercised in whole or in part by the Holder hereof at
any time, or from time to time, on or after the date hereof and prior to 5 p.m.
New York time on April 30, 2006 by presentation and surrender of this Option
Agreement to the principal offices of the Company, or at the office of its
Transfer Agent (as hereinafter defined), if any, together with the Purchase Form
annexed hereto, duly executed, and accompanied by payment to the Company of an
amount equal to the Option Share Price multiplied by the number of Option Shares
as to which this Option Agreement is then being exercised; provided, however,
that in each case, the minimum number of Option Shares as to which this Option
Agreement is being exercised shall not be less than 1,000 Option Shares;
provided, further, that in the event of any merger, consolidation or sale of all
or substantially all the assets of the Company resulting in any distribution to
the Company's shareholders, prior to April 30, 2006 the Holder shall have the
right to exercise this Option Agreement commencing at such time through April
30, 2006 into the kind and amount of shares of stock and other securities and
property (including cash) receivable by a holder of the number of shares of
Common Stock into which this Option Agreement might have been exercisable
immediately prior thereto. Any transfer of Option Shares obtained by the Holder
in exercise of this Option Agreement is subject to the requirement that such
securities be registered under the Securities Act, and applicable state
securities laws or exempt from registration under such laws to the satisfaction
of the Company and its counsel. The Holder of this Option Agreement shall be
deemed to be a shareholder of the Option Shares as to which this Option
Agreement is exercised in accordance herewith effective immediately after the
close of business on the date on which the Holder shall have delivered to the
Company this Option Agreement in proper form for exercise and payment by
certified or official bank check or wire transfer of the cash purchase price for
the number of Option Shares as ,to which the exercise is being made, or by
delivery to the Company of securities of the Company having a value equal to the
cash purchase price for such number of Option Shares determined in good faith by
the Board of Directors of the Company as of the date of delivery,
notwithstanding that the stock transfer books of the Company shall be then
closed or that certificates representing such Option Shares shall not then be
physically delivered to the Holder.
(b) All or any portion of the Option Share Price may be paid by
surrendering Options effected by presentation and surrender of this Option to
the Company, or at the office of its Transfer Agent, if any, with a Cashless
Exercise Form annexed hereto duly executed; provided that the Company in its
sole discretion may require a broker-assisted cashless exercise in accordance
with Regulation T of the Board of Governors of the Federal Reserve System
through a brokerage firm approved by the Company (a "Cashless Exercise"). The
Company may
2
impose any other limitations on the Cashless Exercise as it deems appropriate in
consultation with counsel.. Such presentation and surrender shall be deemed a
waiver by the Company of the Holder's obligation to pay all or any portion of
the aggregate Option Share Price. In the event of a Cashless Exercise, the
Holder shall exchange its Option for that number of shares of Common Stock
determined by multiplying the number of Option Shares for which the Holder
desires to exercise this Option by a fraction, the numerator of which shall be
the difference between the then current market price per share of the Common
Stock and the Option Share Price, and the denominator of which shall be the then
current market price per share of Common Stock. For purposes of any computation
under this Section 3(b), the then current market price per share of Common Stock
at any date shall be deemed to be the average for the ten consecutive business
days immediately prior to the Cashless Exercise of the daily closing prices of
the Common Stock on the principal national securities exchange on which the
Common Stock is admitted to trading or listed, or if not listed or admitted to
trading on any such exchange, the closing prices as reported by the Nasdaq
National Market or, if applicable, the Nasdaq SmallCap Market, or if not then
included for quotation on the Nasdaq National Market or the Nasdaq SmallCap
Market, the average of the highest reported bid and lowest reported asked prices
as reported by the OTC Bulletin Board or the National Quotations Bureau, as the
case may be, or if not then publicly traded, the fair market price, not less
than book value thereof, of the Common Stock as determined in good faith by the
Board of Directors of the Company.
(c) If this Option shall be exercised in part only, the Company
shall, upon surrender of this Option for cancellation, execute and deliver a new
Option evidencing the rights of the Holder thereof to purchase the balance of
the Option Shares purchasable hereunder as to which the Option has not been
exercised. If this Option is exercised in part, such exercise shall be for a
whole number of Option Shares. Upon any exercise and surrender of this Option,
the Company (i) will issue and deliver to the Holder a certificate or
certificates in the name of the Holder for the largest whole number of Option
Shares to which the Holder shall be entitled and, if this Option is exercised in
whole, in lieu of any fractional Option Share to which the Holder otherwise
might be entitled, cash in an amount equal to the fair value of such fractional
Option Share (determined in such reasonable and equitable manner as the Board of
Directors of the Company shall in good faith determine), and (ii) will deliver
to the Holder such other securities, properties and cash which the Holder may be
entitled to receive upon such exercise, or the proportionate part thereof if
this Option is exercised in part, pursuant to the provisions of this Option.
2. Anti-Dilution Provisions. The Option Share Price in effect at any time
and the number and kind of securities issuable upon exercise of this Option and
the Option Share Price shall be subject to adjustment from time to time upon
happening of certain events as follows:
2.1 Adjustments. If the Company:
(i) subdivides or reclassifies its outstanding shares of
Common Stock into a greater number of shares;
(ii) combines or reclassifies its outstanding shares of
Common Stock into a smaller number of shares;
(iii) issues, by reclassification of its Common Stock, any
shares of its capital stock;
3
then the number and kind of Option Shares purchasable upon exercise of this
Option shall be adjusted so that the Holder upon exercise hereof shall be
entitled to receive the kind and number of Option Shares or other securities of
the Company that the Holder would have owned or have been entitled to receive
after the happening of any of the events described above had this Option been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this Section 2.1 shall
become effective immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or issuance. If, as a result of an
adjustment made pursuant to this Section 2.1, the Holder of this Option
thereafter surrendered for exercise shall become entitled to receive shares of
two or more classes of capital stock or shares of Common Stock and any other
class of capital stock of the Company, the Board of Directors (whose
determination shall be conclusive and shall be described in a written notice to
all holders of Options promptly after such adjustment) shall determine the
allocation of the adjusted Option Share Price between or among shares of such
classes of capital stock or shares of Common Stock and such other class of
capital stock.
The adjustment to the number of Option Shares purchasable upon the
exercise of this Option described in this Section 2.1 shall be made each time
any event listed in paragraphs (i) through (iii) of this Section 2.1 occurs.
In the event that at any time, as a result of an adjustment made
pursuant to this Section 2.1, the Holder of this Option thereafter shall become
entitled to receive any shares of the Company, other than Common Stock,
thereafter the number of such other shares so receivable upon exercise of this
Option shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the Common
Stock contained herein.
2.2 Sale of Securities. In the event the Company at any time
after the date hereof, issues additional Common Stock, convertible preferred
stock, options, warrants, or other securities convertible or exercisable for
Common Stock other than securities currently outstanding as of the date hereof
or issued upon the conversion or exercise of any securities outstanding as of
the date hereof, at a purchase price per share of Common Stock less than the
Option Share Price in effect immediately prior to such issuance or sale, then
the Option Share Price shall be automatically reduced to such lower purchase
price and the number of Option Shares shall be increased to a number determined
by multiplying the number of Option Shares so purchasable immediately prior to
the date of such issuance or sale by a fraction, the numerator of which shall be
the Option Share Price in effect immediately prior to the adjustment required by
this Section 2.2 and the denominator of which shall be the Option Share Price in
effect immediately after such adjustment; provided, however, that no adjustment
to the Option Share Price or the number and kind of Option Shares shall be made
pursuant to this Section 2.2 in the event the Company grants options to
employees, officers, directors or consultants of the Company pursuant to
contracts or plans approved by the Board of Directors of the Company.
(a) For the purpose of making any adjustment in the Option Share
Price as provided in this Section 2.2, the consideration received by the Company
for any issue or sale of Common Stock will be computed:
(i) to the extent it consists of cash, as the amount of
cash received by the Company before deduction of any offering expenses payable
by the Company and any
4
underwriting or similar commissions, compensation, or concessions paid or
allowed by the Company in connection with such issue or sale;
(ii) to the extent it consists of property other than
cash, at the fair market value of that property as determined in good faith by
the Company's Board of Directors (irrespective of the accounting treatment
thereof); and
(iii) if Common Stock is issued or sold together with
other stock or securities (including convertible preferred stock, options,
warrants or securities convertible into or exchangeable for common stock) or
other assets of the Company for a consideration which covers both, as the
portion of the consideration so received that may be reasonably determined in
good faith by the Company's Board of Directors to be allocable to such Common
Stock; provided, however, that with respect to such other stock or securities,
such consideration as determined by the Company's Board of Directors shall not
be less than the total consideration received by the Company for the issuance of
such other stock or securities plus the additional aggregate consideration, if
any, to be received by the Company upon conversion or exchange thereof
(b) If the Company (i) issues, grants or sells any rights or
options to subscribe for, purchase, or otherwise acquire shares of Common Stock,
or (ii) issues or sells any security convertible into shares of Common Stock,
then, in each case, the price per share of Common Stock issuable on the exercise
of the rights or options or the conversion of the securities will be determined
by dividing (x) the total amount, if any, received or receivable by the Company
as consideration for the granting or sale of the rights or options or the issue
or sale of the convertible securities, plus the minimum aggregate amount of
additional consideration payable to the Company on exercise or conversion of the
securities, by (y) the maximum number of shares of Common Stock issuable on the
exercise of conversion. Such granting or issue or sale will be considered to be
an issue or sale for cash of the maximum number of shares of Common Stock
issuable on exercise or conversion at the price per share determined under this
Section 2.2, and the Option Share Price will be adjusted as above provided to
reflect (on the basis of that determination) the issue or sale. No further
adjustment of the Option Share Price will be made as a result of the actual
issuance of shares of Common Stock on the exercise of any such rights or options
or the conversion of any such convertible securities.
(c) Upon the redemption or repurchase of any such securities or
the expiration or termination of the right to convert into, exchange for, or
exercise with respect to, Common Stock, the Option Share Price will be
readjusted to such price as would have been obtained had the adjustment made
upon their issuance been made upon the basis of the issuance of only the number
of such securities as were actually converted into, exchanged for, or exercised
with respect to, Common Stock. If the purchase price or conversion or exchange
rate provided for in any such security changes at any time, then, upon such
change becoming effective, the Option Share Price then in effect will be
readjusted to such price as would have been obtained had the adjustment made
upon the issuance of such securities been made upon the basis of (i) the
issuance of only the number of shares of Common Stock theretofore actually
delivered upon the conversion, exchange or exercise of such securities, and the
total consideration received therefor, and (ii) the granting or issuance, at the
time of such change, of any such securities then still outstanding for the
consideration, if any, received by the Company therefor and to be received on
the basis of such changed price or rate.
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2.3 Other Action Affecting Option Shares. If the Company takes
any action affecting its shares of Common Stock after the date hereof, that
would be covered by Sections 2.1 or 2.2 but for the manner in which such action
is taken or structured, which would in any way diminish the value of this
Option, then the Option Share Price shall be adjusted in such manner as the
Board of Directors of the Company shall in good faith determine to be equitable
under the circumstances.
2.4 Notice of Adjustments. Upon the occurrence of each adjustment
or readjustment of the Option Share Price pursuant to this Section 2, the
Company at its expense will promptly compute such adjustment or readjustment in
accordance with the terms of this Option and prepare a certificate setting forth
such adjustment or readjustment, including a statement of the adjusted Option
Share Price or adjusted number of shares of Common Stock, if any, issuable upon
exercise of each Option, describing the transaction giving rise to such
adjustments and showing in detail the facts upon which such adjustment or
readjustment is based. The Company will forthwith mail, by first class mail,
postage prepaid, a copy of each such certificate to the Holder of this Option at
the address of such Holder as shown on the books of the Company, and to its
Transfer Agent.
2.5 Other Notices. If at any time:
(a) the Company shall (i) offer for subscription pro rata to the
holders of shares of the Common Stock any additional equity in the Company or
other rights; (ii) pay a dividend in additional shares of the Common Stock or
distribute securities or other property to the holders of shares of the Common
Stock (including, without limitation, evidences of indebtedness and equity and
debt securities); or (iii) issue securities convertible into, or rights or
warrants to purchase, securities of the Company;
(b) there shall be any capital reorganization or reclassification
or consolidation or merger of the Company with, or sale, transfer or lease of
all or substantially all of its assets to, another entity; or
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, to the Holder of this Option at the address of such
Holder as shown on the books of the Company, (a) at least 15 days' prior written
notice of the date on which the books of the Company shall close or a record
shall be taken for such subscription rights, dividend, distribution or issuance,
and (b) in the case of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, at least 15 days' prior
written notice of the date when the same shall take place if no stockholder vote
is required and at least 15 days' prior written notice of the record date for
stockholders entitled to vote upon such matter if a stockholder vote is
required. Such notice in accordance with the foregoing clause (a) shall also
specify, in the case of any such subscription rights, the date on which the
holders of shares of Common Stock shall be entitled to exercise their rights
with respect thereto, and such notice in accordance with the foregoing clause
(b) shall also specify the date on which the holders of shares of Common Stock
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, as the case
may be.
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2.6 Adjustment Calculations. No adjustment in the Option Share
Price shall be required unless such adjustment would require an increase or
decrease of at least one cent ($0.01) in such price; provided, however, that any
adjustments which by reason of this Section 2.6 are not required to be made
shall be carried forward and taken into account in any subsequent adjustment
required to be made hereunder. All calculations under this Section 2 shall be
made to the nearest cent or to the nearest one-hundredth of a share, as the case
may be.
3. No Voting Rights. Except as otherwise provided herein, this Option
shall not be deemed to confer upon the Holder any right to vote or to consent to
or receive notice as a stockholder of the Company, as such, in respect of any
matters whatsoever, or any other rights or liabilities as a stockholder, prior
to the exercise hereof.
4. Options Transferable. This Option and all rights hereunder are
transferable, in whole or in part, at the principal offices of the Company by
the Holder hereof, upon surrender of this Option properly endorsed provided,
however, that in each case the minimum number of Option Shares being transferred
by the Holder shall not be less than 1,000 Option Shares; provided, further,
that without the prior written consent of the Company, this Option and all
rights hereunder may be transferred only (i) to an affiliate of the initial
Holder hereof or successor in interest to any such person in a transaction
exempt from registration under the Securities Act; or (ii) pursuant to the
registration of this Option or the Option Shares under the Securities Act or
subsequent to one year from the date hereof pursuant to an available exemption
from such registration or (iii) in the case of an officer, director or employee
of the Company, the option shall only be transferable by will or the laws of
descent and distribution, or as otherwise permitted by the Company, in its sole
discretion, or to certain permitted transferees as defined below.
For purposes of this Section 4, the term "permitted transferee" means
one or more members of the Optionee's immediate family, a trust for the
exclusive benefit of the Optionee or such immediate family members, any other
entity owned exclusively by the Optionee or such immediate family members, or
any combination of the foregoing; provided, however, that no transfers made
pursuant to any divorce or separation proceedings or settlements will be
permitted. "Immediate family member" means spouse, children, grandchildren,
parents or siblings of the Optionee, including in each case in-laws and adoptive
relations.
5. Options Exchangeable: Assignment; Loss, Theft, Destruction, Etc. This
Option is exchangeable, without expense, upon surrender hereof by the Holder
hereof at the principal offices of the Company, or at the office of its Transfer
Agent, if any, for new Options of like tenor representing in the aggregate the
right to subscribe for and purchase the Option Shares which may be subscribed
for and purchased hereunder, each such new Option to represent the right to
subscribe for and purchase such Option Shares as shall be designated by such
Holder hereof at the time of such surrender. Upon surrender of this Option to
the Company at its principal office, or at the office of its Transfer Agent, if
any, with an instrument of assignment duly executed and funds sufficient to pay
any transfer tax, the Company shall, without charge, execute and deliver a new
Option in the name of the assignee named in such instrument of assignment and
this Option shall promptly be cancelled. This Option may be divided or combined
with other options which carry the same rights upon presentation hereof at the
principal office of the Company, or at the office of its Transfer Agent, if any,
together with a written notice specifying the names and denominations in which
new Options are to be issued
7
and signed by the Holder hereof. The term "Option" as used herein includes any
Options into which this Option may be divided or exchanged. Upon receipt of
evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Option and, in the case of any such loss, theft or
destruction, upon delivery of indemnity satisfactory to the Company, or, in the
case of any such mutilation, upon surrender or cancellation of this Option, the
Company will issue to the Holder hereof a new Option of like tenor, in lieu of
this Option, representing the right to subscribe for and purchase the Option
Shares which may be subscribed for and purchased hereunder. Any such new Option
executed and delivered shall constitute an additional contractual obligation of
the Company, whether or not this Option so lost, stolen, destroyed, or mutilated
shall be at any time enforceable by anyone.
6. Legends; Investment Representations. Any certificate evidencing the
securities issued upon exercise of this Option shall bear a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY OTHER SECURITIES
LAWS, AND SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS SO
REGISTERED OR AN EXEMPTION FROM REGISTRATION UNDER SAID ACT AND ANY OTHER
APPLICABLE SECURITIES LAWS IS AVAILABLE.
Upon the registration, under the Securities Act, of the securities
issued upon exercise of the Option such legend shall be removed from the
certificate evidencing such securities.
7. Modifications and Waivers. The Holder of this Option acknowledges and
agrees that the terms of this Option may be amended, modified or waived only by
the written agreement between the Holder and the Company.
8. Miscellaneous. The Company shall pay all expenses and other charges
payable in connection with the preparation, issuance and delivery of this Option
and all substitute Options. The Holder shall pay all taxes (other than any
issuance taxes, including, without limitation, documentary stamp taxes, transfer
taxes and other governmental charges, which shall be paid by the Company) in
connection with such issuance and delivery of this Option and the Option Shares.
In addition, the Holder shall pay all taxes in connection with any sale,
assignment or other transfer of this Option.
The Company shall maintain, at the office or agency of the Company
maintained by the Company, books for the registration and transfer of the
Option.
9. Reservation of Option Shares. The Company will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Stock or its authorized and issued Common Stock
held in its treasury, solely for the purpose of enabling it to satisfy any
obligation to issue Option Shares upon exercise of this Option, the maximum
number of shares of Common Stock which may then be deliverable upon the exercise
of this Option. The Company or, if appointed, the Transfer Agent for the Common
Stock (the "Transfer Agent") and every subsequent transfer agent for any shares
of the Company's capital stock issuable upon the exercise of any of the rights
of purchase aforesaid will be irrevocably authorized and directed at all times
to reserve such number of authorized shares as shall be required for such
purpose. The Company will keep a copy of this Option on
8
file with the Transfer Agent and with every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise of the rights
of purchase represented by this Option. The Company will furnish such Transfer
Agent a copy of all notices of adjustments and certificates related thereto
transmitted to the Holder pursuant to Section 2.6 hereof. The Company covenants
that all Option Shares which may be issued upon exercise of this Option will,
upon issue, be fully paid, nonassessable, free of preemptive rights and free
from all taxes, liens, charges and security interests with respect to the issue
thereof.
10. Registration.
A. Demand Registration Rights. Commencing on the one-year
anniversary of the date hereof and at any time thereafter, if at any time the
Company shall receive from one or more Holders a written request that the
Company register not less than a majority of all of the Registrable Securities
(as defined below) identified in such request under the Securities Act, the
Company agrees that on one (1) such occasion only it shall prepare and file
promptly with the Securities and Exchange Commission (the "SEC") a registration
statement under the Securities Act covering an amount equal to the shares of
Registrable Securities held by such requesting Holders and agrees to use its
best efforts to cause such registration statement to become effective as
expeditiously as possible. Upon the receipt of such request, the Company agrees
to give promptly written notice to all Holders of Registrable Securities that
such registration is to be effected. The Company agrees to include in such
registration statement those shares of Registrable Securities from the Holders
of which it has received written requests for registration within the thirty
(30) day period after such Holders' receipt of written notice from the Company.
"Registrable Securities" means the Option Shares (as such shares may have been
adjusted from time to time pursuant to the anti-dilution provisions of this
Option), except that any such Option Shares shall cease to be Registrable
Securities when they have been sold, transferred or otherwise disposed of or
exchanged pursuant to a registration statement under the Securities Act.
The Company shall not be required to effect a registration pursuant to
this Section 10.A. if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 10.A, a certificate signed by
the Chief Operating Officer of the Company stating that in the good faith of the
Board of Directors of the Company that the Company (1) has reached a "probable"
state on an acquisition with respect to which the Company reasonably believes it
is required by the Securities Act to include in a registration statement
information and financial statements concerning such application or (2) has
completed such an acquisition but has not yet filed the financial statements
required by Item 7 of Form 8-K under the Securities Exchange Act of 1934 (the
"Exchange Act"), as amended, then the Company shall have the right to defer such
filing until 30 days after the financial statements required by Item 7 of the
Exchange Act are filed with the SEC with respect to either such acquisition. If
the Company shall postpone the filing of any registration statement, Holders
holding in the aggregate 50% or more of the number of Registrable Securities
requested to be included in such registration statement shall have the right to
withdraw their requests for such registration by giving notice to the Company
within 15 days of the notice of postponement. Such withdrawal request shall be
deemed to apply to all Holders who had requested to have such Registrable
Securities included in such registration statement. In the event that any
Holders withdraw their request in the foregoing manner, such request shall not
be counted for purposes of determining the number of registrations to which the
Holders are entitled pursuant to this Section 10.A. Notwithstanding anything
herein to the
9
contrary, under no circumstances shall the Company be permitted to defer a
filing pursuant to this paragraph more than once during any twelve (12) month
period.
B. "Piggyback" Registration Rights. From and after the date
hereof, each time the Company shall determine to prepare and file a registration
statement under the Securities Act with respect to any of its securities (other
than pursuant to Section 10.A. hereof or pursuant to a registration statement on
Form S-4, S-8 or other limited purpose form) in connection with the proposed
offer and sale for money of any of its securities either for its own account or
on behalf of any other security holder, the Company agrees to give prompt prior
written notice of its determination to the Holder of Registrable Securities,
which notice shall offer to such Holders the opportunity to register 150% of the
number of shares of Registrable Securities, as each Holder may request. Upon the
written request of a Holder of any shares of Registrable Securities given within
thirty (30) days after the receipt of such written notice from the Company, the
Company agrees to use its best efforts to cause all of such Registrable
Securities, the Holders of which have so requested registration thereof, to be
included in such registration statement and registered under the Securities Act,
all to the extent necessary to permit the sale or other disposition by the
prospective seller or sellers of the Registrable Securities to be so registered.
Notwithstanding any other provision of this Option, if the underwriter
determines in good faith that marketing factors require a limitation of the
number of shares to be underwritten, the number of shares that may be included
in the underwriting shall be allocated, first, to the Company and second, to the
Holders electing to participate in the registration on a pro rata basis based on
the total number of Registrable Securities held by such participating Holders.
C. Expenses of Registration. Except as specifically set forth
herein, all registration expenses (including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses and the expense of any
special audits incident to or required by any such regulation) incurred in
connection with any registration, qualification or compliance pursuant to
Section 10.A. or 10.B. shall be home by the Company. All applicable underwriting
documents and selling commissions shall be borne by the Holder of Registrable
Securities so registered pro rata on the basis of the number of shares so
requested.
D. Further Agreements. In connection with any registration of
Registrable Securities contemplated under this Section 10, the Company and each
of the Holders requesting registration agree to enter into customary agreements
regarding the furnishing of information by such Holders for the registration
statements and indemnification.
E. Descriptive Headings and Governing Law. The descriptive
headings of the several paragraphs of this Option are inserted for convenience
only and do not constitute a part of this Option. This Option shall be construed
and enforced in accordance with the laws of the State of New York, and the
rights of the parties shall be governed by, the law of such State.
[Signature page follows]
10
IN WITNESS WHEREOF, this Option Agreement has been executed as of the
date first written above.
BIOENVISION, INC.
By:
------------------------------------
Name: Christopher B. Wood
Title: President
--------------------------------------------
Print Name of Optionee
By:
------------------------------------
Name:
Title:
11
PURCHASE FORM
Dated: _______________
The undersigned hereby irrevocably elects to exercise the within Option to the
extent of purchasing ________ Option Shares and hereby makes payment of $
_________in payment of the exercise price thereof.
------------------------------
12
CASHLESS EXERCISE
Dated: _______________
The undersigned irrevocably elects to exercise the within Option for -
Option Shares and hereby makes payment pursuant to the Cashless Exercise
provision of the within Option, and directs that the payment of the Option Share
Price be made by cancellation as of the date of exercise of a portion of the
within Option in accordance with the terms and provisions of Section 3(b) of the
within Option.
------------------------------
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FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Option)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _________ the right represented by the within Option to purchase ________
shares of Common Stock of Bioenvision, Inc. to which the within Option relates
and appoints _______ attorney to transfer said right on the books of __________
with full power of substitution in the premises.
Dated: ___________________ ______, 200___
(Signature must conform in all respects to name of holder as specified on the
face of the Option)
Address of Transferee:
-----------------------------
-----------------------------
-----------------------------
In the presence of:
------------------------
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