EX-4.4 Share Contribution and Exchange Agreement dated August 30, 2005
EX-4.4 5 b61114s1exv4w4.txt EX-4.4 SHARE CONTRIBUTION AND EXCHANGE AGREEMENT DATED AUGUST 30, 2005 EXHIBIT 4.4 BIOVEX GROUP, INC. BIOVEX LIMITED AND THE SHAREHOLDERS OF BIOVEX LIMITED SHARE CONTRIBUTION AND EXCHANGE AGREEMENT for the acquisition of the entire issued share capital of BioVex Limited August 30, 2005 THIS AGREEMENT is made as of August 30, 2005 BETWEEN:- (1) BIOVEX GROUP, INC., a Delaware corporation (the "NEW PARENT"); (2) BIOVEX LIMITED, a private company limited by shares incorporated in England and Wales (registered number ###-###-####), whose registered office is at 70 Milton Park, Abingdon, Oxfordshire, OX14 4RX ("SUBSIDIARY"); and (3) THE SHAREHOLDERS OF BIOVEX LIMITED whose names and addresses are set out in column 1 of Schedule 1 hereto (each, a "SHAREHOLDER" and together, the "SHAREHOLDERS"). WHEREAS: (A) The Shareholders together are the legal and beneficial owners of 100% of the issued share capital in the Subsidiary (the "SUBSIDIARY SHARES") as is detailed in column 2 of Schedule 1 hereto; and (B) Each of the Shareholders has agreed to sell and the New Parent has agreed to purchase the Subsidiary Shares on the terms and conditions set out in this Agreement (the "EXCHANGE"). NOW IT IS AGREED as follows:- 1. SALE AND PURCHASE 1.1 The Shareholders shall sell and the New Parent shall purchase the Subsidiary Shares for the consideration specified in clause 2 below. 1.2 The Subsidiary Shares are sold with full title guarantee and free from any option, charge, lien, equity, encumbrance, rights of pre-emption or any other third party rights and together with all rights attached to them at the date of this Agreement or subsequently becoming attached to them. Immediately following the sale of the Subsidiary Shares contemplated hereby, the outstanding capitalisation of the New Parent will consist solely of the Consideration Shares (as defined below), the certificate of incorporation of the New Parent will be in the form attached hereto as Exhibit A, and each Shareholder shall become a party to a Stockholders' Agreement in the form attached hereto as Exhibit B. 2. CONSIDERATION The consideration for the purchase of the Subsidiary Shares shall be satisfied on Completion by the issue of such number of shares of Common Stock, par value $0.0001 per share; Series A Preferred Stock, par value $0.0001 per share; Series B Preferred Stock, par value $0.0001 per share; Series C Preferred Stock, par value 2 $0.0001 per share; Series D Preferred Stock, par value $0.0001 per share; and Series M Preferred Stock, par value $0.0001 per share; as is set out in column 3 opposite each Shareholder's respective name in Schedule 1 hereto (the "CONSIDERATION SHARES"). Such Consideration Shares shall be issued in respect of the number of Ordinary Shares, 'A' Ordinary Shares, 'B' Ordinary Shares, 'C' Ordinary Shares and 'D' Ordinary Shares, together with the aggregate number of Deferred Shares, if any, held by each Shareholder, as indicated in column 2 of Schedule 1 hereto. For the avoidance of doubt, shares of Series M Preferred Stock shall be issued to Merlin General Partner Limited ("MERLIN") as the Consideration Shares in respect of the Ordinary Shares held by Merlin in order to give continuing effect to the liquidation preference Merlin enjoys in respect of such Ordinary Shares. 3. COMPLETION 3.1 Completion shall take place forthwith upon the signing of this Agreement by all the parties hereto at the offices of Wilmer Cutler Pickering Hale and Dorr LLP, 10 Noble Street, London EC2V 7QJ, England. 3.2 At Completion the Shareholders shall deliver or cause to be delivered to the New Parent duly executed transfers of the Subsidiary Shares together with the share certificates for them or, where the share certificates have been lost or are otherwise unobtainable, an indemnity in a form satisfactory to the New Parent. 3.3 Where facsimile copies of this Agreement or duly executed transfers of the Subsidiary Shares have been received by the New Parent, the relevant Shareholder or Shareholders warrant(s) and represent(s) that the originals of such documents have been sent by courier or registered post (or the equivalent) to the New Parent c/o Wilmer Cutler Pickering Hale and Dorr LLP, 10 Noble Street, London EC2V 7QJ, England, marked for the attention of Timothy Corbett. 3.4 Prior to Completion, the directors of Subsidiary shall have resolved to approve the transfers of the Subsidiary Shares and (subject to them being duly stamped) the registration of the New Parent as member in respect of the Subsidiary Shares. 4. WARRANTIES 4.1 Each of the parties warrants and represents to the other that it has the full power and authority to enter into this Agreement and that this Agreement has been duly authorised, executed and delivered by it or on its behalf. 4.2 Each of the Shareholders severally warrants and represents to the New Parent that: (a) he is the owner of the Subsidiary Shares set forth opposite his respective name in Schedule 1 hereto and, except for such Subsidiary Shares as are identified on Schedule 1 hereto, he does not own any shares of Subsidiary or (save for any ordinary shares issuable upon the conversion of such Subsidiary Shares 3 that are convertible into ordinary shares) have the right to purchase or acquire any shares of Subsidiary through any subscription, warrant, option, convertible security or other right (contingent or otherwise) (other than pursuant to options granted under the Subsidiary's employee share option schemes which are listed on Schedule 2 hereto and which will be converted into options to purchase Common Stock of the New Parent as described in Section 7 hereof); (b) he will at Completion have the right and power to sell and transfer or procure the transfer of all of such Subsidiary Shares to the New Parent in accordance with the provisions of this Agreement, free and clear of any liens, claims or other encumbrances; and (c) execution and performance of the provisions of this Agreement will effect the transfer of good and marketable title to and the full legal and beneficial ownership in such Subsidiary Shares, free and clear of any liens, claims or other encumbrances. 4.3 Each of the Shareholders waives all restrictions on transfer (including pre-emption rights) and any procedural requirements not specifically provided for herein which may exist in relation to the sale of the Subsidiary Shares contemplated hereby under the articles of association of Subsidiary, any subscription or investment agreement relating to Subsidiary or otherwise. 4.4 The Subsidiary covenants to the New Parent that the Subsidiary Shares constitute the whole of the allotted and issued share capital of Subsidiary. 5. INVESTMENT WARRANTIES 5.1 Each Shareholder severally warrants that he: (i) is an "ACCREDITED INVESTOR" within the meaning of Rule 501 of Regulation D of the U.S. Securities Act of 1933, as amended (the "SECURITIES ACT"); or (ii) is not a "U.S. PERSON" as such term is defined in Regulation S under the Securities Act ("REGULATION S"), and is not acquiring the securities for the account or benefit of any U.S. Person, and that he is obtaining the Consideration Shares in an "OFFSHORE TRANSACTION" (as such term is defined in Regulation S under the Securities Act) outside the United States, and that, to his knowledge, no "DIRECTED SELLING EFFORTS" (as such term is defined in Regulation S) in the United States have been made by the Company in connection with his acquisition of Consideration Shares. 5.2 Each Shareholder severally warrants that he is acquiring the Consideration Shares for his own account for investment and not with a view to, or for sale in connection with, any distribution thereof, nor with any present intention of distributing or selling the same; and such Shareholder has no present or contemplated agreement, undertaking, arrangement, obligation, indebtedness or commitment providing for the disposition thereof. 5.3 Each Shareholder severally warrants that he is familiar with the New Parent and Subsidiary, their business and personnel; the officers of the New Parent and Subsidiary have made available to such Shareholder any and all information which he 4 has requested and have answered to such Shareholder's satisfaction all inquiries made by such Shareholder with respect to the New Parent and the Exchange; and such Shareholder has sufficient knowledge and experience in finance and business that he is capable of evaluating the risks and merits of his investment in the New Parent and such Shareholder is financially able to bear the risks thereof. 5.4 Each Shareholder acknowledges and understands that (i) the Consideration Shares have not been registered under the Securities Act and are "RESTRICTED SECURITIES" within the meaning of Rule 144 under the Securities Act, (ii) the Consideration Shares cannot be sold, transferred or otherwise disposed of except in accordance with Regulation S, if applicable, pursuant to registration under the Securities Act, or pursuant to an available exemption from registration; and hedging transactions involving the Consideration Shares may not be conducted unless in compliance with the Securities Act; (iii) in any event, the exemption from registration under Rule 144 will not be available for at least one year and even then will not be available unless a public market then exists for the Common Stock of the New Parent, adequate information concerning the New Parent is then available to the public, and other terms and conditions of Rule 144 are complied with; and (iv) there is now no registration statement on file with the U.S. Securities and Exchange Commission with respect to any stock of the New Parent and the New Parent has no obligation to register the Consideration Shares under the Securities Act. Consideration Shares shall not be sold or transferred unless either (i) they first shall have been registered under the Securities Act, or (ii) they shall be sold pursuant to a valid exemption from the registration requirements of the Securities Act. 5.5 All certificates representing Consideration Shares shall have affixed thereto legends in substantially the following form, in addition to any other legends that may be required under U.S. federal or state securities laws: "The Shares represented by this certificate have not been registered under the Securities Act of 1933, as amended, and may not be sold, transferred or otherwise disposed of except in accordance with the provisions of Regulation S under the Securities Act, pursuant to registration under the Securities Act, or pursuant to an available exemption from registration, and hedging transactions involving the Shares represented by this Certificate may not be conducted unless in compliance with the Securities Act." 6. TERMINATION OF SUBSIDIARY SHAREHOLDER AGREEMENTS Each party agrees that each of: (i) the investment agreement dated 3 October 2003 between Subsidiary and certain shareholders of Subsidiary (except for article 6 (Warranties and Indemnity) thereof); (ii) the subscription agreement dated 21 December 2004 between Subsidiary and certain shareholders of Subsidiary (except for article 5 (Warranties) thereof); (iii) the subscription agreement dated 26 May 2005 between Subsidiary and certain shareholders of Subsidiary (except for article 3 (Warranties) thereof); and (iv) the Management Rights Letter dated 3 October 2003 between Subsidiary and Merlin General Partner II Limited shall terminate in its 5 entirety upon the signing of this Agreement, and each party irrevocably waives all rights and claims under each such agreement with effect from Completion, except for claims in respect of warranties as provided in each of the subscription agreements set forth above, upon and pursuant to the terms of the surviving articles thereof. 7. SUBSIDIARY OPTIONS 7.1 As soon as reasonably practicable following Completion, the New Parent will extend an offer to each person identified on Schedule 2 hereto (each, an "OPTIONHOLDER") to exchange the option or options to purchase the number of Ordinary Shares in the Subsidiary set forth opposite such Optionholder's name on Schedule 2 hereto for an option or options to acquire an equal number of shares of Common Stock of the New Parent upon substantially equivalent terms (excluding terms which relate to the tax status of such options). 7.2 As soon as reasonably practicable following Completion, the New Parent, in its capacity as a shareholder of the Subsidiary, will amend the Articles of Association of the Subsidiary to provide that, immediately following any issue of Ordinary Shares of the Subsidiary (pursuant to the exercise of any employee option to purchase such shares) thereafter, the holder thereof will by virtue of such articles be obliged to transfer such Ordinary Shares of the Subsidiary to the New Parent in consideration for the issuance by the New Parent of an equal number of shares of Common Stock of the New Parent. 8. MISCELLANEOUS 8.1 Each of the Shareholders confirms that he has no and will have no claims (whether statutory, contractual or otherwise) against the New Parent or Subsidiary or any of their subsidiaries (if any) for compensation, damages or otherwise in relation to the Subsidiary Shares, the Consideration Shares, any other ownership interest in the Subsidiary or the New Parent or this Agreement, and hereby waives any such claims that he may have. 8.2 In relation to its subject matter this Agreement represents the entire understanding and constitutes the whole agreement, and supersedes any previous agreement, between the parties and, save as provided in this Agreement, no party has relied on any representation made by any other party. 8.3 The Shareholders shall after completion execute all such deeds and documents and do all such things as the New Parent may reasonably require for perfecting the transactions intended to be effected under or pursuant to this Agreement and for vesting in the New Parent the full benefit of the Subsidiary Shares. 8.4 This Agreement may be executed in more than one counterpart (including facsimile copies), each of which shall be deemed to constitute an original, and shall become effective when one or more counterparts have been signed by all of the parties hereto and such a counterpart (so signed) has been delivered to each of the parties hereto. 6 8.5 This Agreement shall be governed by, and construed in accordance with, the laws of England and Wales and the parties hereby submit to the non-exclusive jurisdiction of the English courts. 8.6 The New Parent shall be liable for any stamp duty or stamp duty reserve tax arising as a result of this Agreement. 8.7 This Agreement may be amended, modified or supplemented and portions of it waived in writing by the New Parent, the Subsidiary and Shareholders holding not less than 70% of the Subsidiary Shares. Notwithstanding the foregoing, (a) no amendment, modification, supplement or waiver shall be binding against any Shareholder who has not consented in writing thereto unless such amendment, modification, supplement or waiver affects all Shareholders in the same fashion, and (b) the consent of the Shareholders shall not be required for any amendment to add additional Shareholders as parties to this Agreement or to adjust the share numbers set forth on Schedule A solely to reflect the issuance subsequent to the date hereof of additional Subsidiary Shares upon the exercise of options in the Subsidiary outstanding on the date hereof. Neither this Agreement nor any rights or obligations under this Agreement may be assigned by any party. ***** 7 SCHEDULE 1 SHAREHOLDINGS COLUMN 2 NUMBER OF SUBSIDIARY SHARES ------------------------------------------------------------------------ COLUMN 1 A B C D NAME AND ADDRESS OF Ordinary Ordinary Ordinary Ordinary Ordinary Deferred SHAREHOLDER Shares Shares Shares Shares Shares Shares - --------------------- -------- --------- --------- -------- --------- -------------- ABN Amro 2,655,835 Participaties B.V. Gustav Mahlerlaan 10 1082 PP Amsterdam Avalon Ventures VI GP 289,622 Fund LLC 4370 La Jolla Village Drive Suite 685 San Diego CA 92122 Avalon Ventures VI LP 975,061 4370 La Jolla Village Drive Suite 685 San Diego CA 92122 Bionex Investment plc 190,437 252,937 1,959,904,264 223a Kensington High Street London W8 6SG COLUMN 3 NUMBER OF CONSIDERATION SHARES ------------------------------------------------------------------- COLUMN 1 Series A Series B Series C Series D Series M NAME AND ADDRESS OF Common Preferred Preferred Preferred Preferred Preferred SHAREHOLDER Stock Stock Stock Stock Stock Stock - --------------------- ------- --------- --------- --------- --------- --------- ABN Amro 2,655,835 Participaties B.V. Gustav Mahlerlaan 10 1082 PP Amsterdam Avalon Ventures VI GP 289,622 Fund LLC 4370 La Jolla Village Drive Suite 685 San Diego CA 92122 Avalon Ventures VI LP 975,061 4370 La Jolla Village Drive Suite 685 San Diego CA 92122 Bionex Investment plc 190,437 252,937 223a Kensington High Street London W8 6SG
8 COLUMN 2 NUMBER OF SUBSIDIARY SHARES ------------------------------------------------------------------------ COLUMN 1 A B C D NAME AND ADDRESS OF Ordinary Ordinary Ordinary Ordinary Ordinary Deferred SHAREHOLDER Shares Shares Shares Shares Shares Shares - --------------------- -------- --------- --------- -------- --------- -------------- Robert Stuart Coffin 237,500 Flat 4 43 Colville Gardens London W11 2BU Credit Lyonnais 1,264,683 210,515 Innovation 3 Fonds Commun de Placement dans L'Innovation "CLI3" Credit Lyonnais 843,122 860,256 Innovation 4 Fonds Commun de Placement dans L'Innovation "CLI4" Credit Lyonnais 756,082 Innovation 5 Fonds Commun de Placement dans L'Innovation "CLI5" Credit Lyonnais 295,093 49,120 Venture 1 Fonds Commun de Placement a Risques "CLV1" FCPI Poste Innovation 575,819 10 rue de la Paix 75002 Paris France COLUMN 3 NUMBER OF CONSIDERATION SHARES ------------------------------------------------------------------- COLUMN 1 Series A Series B Series C Series D Series M NAME AND ADDRESS OF Common Preferred Preferred Preferred Preferred Preferred SHAREHOLDER Stock Stock Stock Stock Stock Stock - --------------------- ------- --------- --------- --------- --------- --------- Robert Stuart Coffin 237,500 Flat 4 43 Colville Gardens London W11 2BU Credit Lyonnais 1,264,683 210,515 Innovation 3 Fonds Commun de Placement dans L'Innovation "CLI3" Credit Lyonnais 843,122 860,256 Innovation 4 Fonds Commun de Placement dans L'Innovation "CLI4" Credit Lyonnais 756,082 Innovation 5 Fonds Commun de Placement dans L'Innovation "CLI5" Credit Lyonnais 295,093 49,120 Venture 1 Fonds Commun de Placement a Risques "CLV1" FCPI Poste Innovation 575,819 10 rue de la Paix 75002 Paris France
9 COLUMN 2 NUMBER OF SUBSIDIARY SHARES ------------------------------------------------------------------------ COLUMN 1 A B C D NAME AND ADDRESS OF Ordinary Ordinary Ordinary Ordinary Ordinary Deferred SHAREHOLDER Shares Shares Shares Shares Shares Shares - --------------------- -------- --------- --------- -------- --------- -------------- FCPI Poste Innovation 1,198,303 2 10 rue de la Paix 75002 Paris France FCPI Poste Innovation 1,715,619 3 10 rue de la Paix 75002 Paris France FCPI Poste Innovation 1,451,278 5 10 rue de la Paix 75002 Paris France FCPI Poste Innovation 434,756 6 10 rue de la Paix 75002 Paris France Genechem Therapeutics 1,428,275 1,897,025 14,699,281,975 Venture Fund LP 1001 de Maisonneuve West Suite 920 Montreal Quebec H3A 3C8 COLUMN 3 NUMBER OF CONSIDERATION SHARES ------------------------------------------------------------------- COLUMN 1 Series A Series B Series C Series D Series M NAME AND ADDRESS OF Common Preferred Preferred Preferred Preferred Preferred SHAREHOLDER Stock Stock Stock Stock Stock Stock - --------------------- ------- --------- --------- --------- --------- --------- FCPI Poste Innovation 1,198,303 2 10 rue de la Paix 75002 Paris France FCPI Poste Innovation 1,715,619 3 10 rue de la Paix 75002 Paris France FCPI Poste Innovation 1,451,278 5 10 rue de la Paix 75002 Paris France FCPI Poste Innovation 434,756 6 10 rue de la Paix 75002 Paris France Genechem Therapeutics 1,428,275 1,897,025 Venture Fund LP 1001 de Maisonneuve West Suite 920 Montreal Quebec H3A 3C8
10 COLUMN 2 NUMBER OF SUBSIDIARY SHARES ------------------------------------------------------------------------ COLUMN 1 A B C D NAME AND ADDRESS OF Ordinary Ordinary Ordinary Ordinary Ordinary Deferred SHAREHOLDER Shares Shares Shares Shares Shares Shares - --------------------- -------- --------- --------- -------- --------- -------------- Dr John Gordon 25,000 42,999 Bishop Oak Jarn Way Old Boars Hill Oxford OX1 5JF Innoven 2001 FCPI No5 180,123 10 rue de la Paix 75002 Paris France Innoven 2002 FCPI No6 67,387 10 rue de la Paix 75002 Paris France Innoven 2003 FCPI No7 67,789 10 rue de la Paix 75002 Paris France J Edward Sellars 157,614 Nominees Ltd (a/c Technomark Co-investment Ltd Partnership) 503 Worle Parkway Worle Weston-super-Mare BS22 0WA COLUMN 3 NUMBER OF CONSIDERATION SHARES ------------------------------------------------------------------- COLUMN 1 Series A Series B Series C Series D Series M NAME AND ADDRESS OF Common Preferred Preferred Preferred Preferred Preferred SHAREHOLDER Stock Stock Stock Stock Stock Stock - --------------------- ------- --------- --------- --------- --------- --------- Dr John Gordon 25,000 42,999 Bishop Oak Jarn Way Old Boars Hill Oxford OX1 5JF Innoven 2001 FCPI No5 180,123 10 rue de la Paix 75002 Paris France Innoven 2002 FCPI No6 67,387 10 rue de la Paix 75002 Paris France Innoven 2003 FCPI No7 67,789 10 rue de la Paix 75002 Paris France J Edward Sellars 157,614 Nominees Ltd (a/c Technomark Co-investment Ltd Partnership) 503 Worle Parkway Worle Weston-super-Mare BS22 0WA
11 COLUMN 1 NAME AND ADDRESS COLUMN 2 OF SHAREHOLDER NUMBER OF SUBSIDIARY SHARES - ---------------- -------------------------------------------------------------------- A B C D Ordinary Ordinary Ordinary Ordinary Ordinary Deferred Shares Shares Shares Shares Shares Shares --------- --------- --------- --------- -------- -------------- David Seymour 237,500 Latchman 9 Gresham Gardens London NW11 8NX Lion Capital 126,468 21,051 Investissement Fonds Commun de Placement a Risques "LCI FCPR" Lloyds TSB 1,667,946 2,149,961 19,601,097,004 Development Capital Limited 45 Old Bond Street London W1S 4QT Lloyds TSB Ventures 39,403 63,234 Nominees Limited (A/C LDC Co-investment plan 2001 "A") 45 Old Bond Street London W1S 4QT Lloyds TSB Ventures 39,403 63,234 Nominees Limited (A/C LDC Co-investment plan 2001 "B") 45 Old Bond Street London W1S 4QT COLUMN 1 NAME AND ADDRESS COLUMN 3 OF SHAREHOLDER NUMBER OF CONSIDERATION SHARES - ---------------- -------------------------------------------------------------- Series A Series B Series C Series D Series M Common Preferred Preferred Preferred Preferred Preferred Stock Stock Stock Stock Stock Stock ------- --------- --------- --------- --------- --------- David Seymour 237,500 Latchman 9 Gresham Gardens London NW11 8NX Lion Capital 126,468 21,051 Investissement Fonds Commun de Placement a Risques "LCI FCPR" Lloyds TSB 1,667,946 2,149,961 Development Capital Limited 45 Old Bond Street London W1S 4QT Lloyds TSB Ventures 39,403 63,234 Nominees Limited (A/C LDC Co-investment plan 2001 "A") 45 Old Bond Street London W1S 4QT Lloyds TSB Ventures 39,403 63,234 Nominees Limited (A/C LDC Co-investment plan 2001 "B") 45 Old Bond Street London W1S 4QT
12 COLUMN 1 NAME AND ADDRESS COLUMN 2 OF SHAREHOLDER NUMBER OF SUBSIDIARY SHARES - ---------------- -------------------------------------------------------------------- A B C D Ordinary Ordinary Ordinary Ordinary Ordinary Deferred Shares Shares Shares Shares Shares Shares --------- --------- --------- --------- -------- -------------- Merlin Equity Limited 225,000 33 King Street St James's London SW1Y 6RJ Merlin General 2,514,970 2,982,471 25,883,165,669 Partner II Ltd (as general partner of the Merlin Biosciences Fund LP) La Motte Chambers St Helier Jersey JE1 1BJ Merlin General 151,143 179,237 1,555,494,017 Partner II Ltd (as general partner of the Merlin Biosciences Fund GbR) La Motte Chambers St Helier Jersey JE1 1BJ Merlin General 1,900,000 952,183 9,799,521,317 Partner Limited La Motte Chambers St Helier Jersey JE1 1BJ Mr James Noble 25,000 20 Charlbury Road Oxford OX2 6UU COLUMN 1 NAME AND ADDRESS COLUMN 3 OF SHAREHOLDER NUMBER OF CONSIDERATION SHARES - ---------------- -------------------------------------------------------------- Series A Series B Series C Series D Series M Common Preferred Preferred Preferred Preferred Preferred Stock Stock Stock Stock Stock Stock ------- --------- --------- --------- --------- --------- Merlin Equity Limited 225,000 33 King Street St James's London SW1Y 6RJ Merlin General 2,514,970 2,982,471 Partner II Ltd (as general partner of the Merlin Biosciences Fund LP) La Motte Chambers St Helier Jersey JE1 1BJ Merlin General 151,143 179,237 Partner II Ltd (as general partner of the Merlin Biosciences Fund GbR) La Motte Chambers St Helier Jersey JE1 1BJ Merlin General 0 952,183 1,900,000 Partner Limited La Motte Chambers St Helier Jersey JE1 1BJ Mr James Noble 25,000 20 Charlbury Road Oxford OX2 6UU
13 COLUMN 2 NUMBER OF SUBSIDIARY SHARES --------------------------------------------------------------------------- COLUMN 1 A B C D NAME AND ADDRESS OF Ordinary Ordinary Ordinary Ordinary Ordinary Deferred SHAREHOLDER Shares Shares Shares Shares Shares Shares - --------------------- --------- --------- ---------- --------- --------- -------------- Dr Timothy J Rink 63,234 41 Avenue Hector Otto Apt 81 MC9800 Monaco SEP II 3,017,994 17 Blythswood Square Glasgow G2 4AD SEP II B 143,714 17 Blythswood Square Glasgow G2 4AD Sitka Health Fund VCT 82,204 739,840 Plc 23 Buckingham Gate London SW1E 6LB Technomark 252,937 Co-investment LP(1) King House 5-11 Westbourne Grove London W2 4WA COLUMN 3 NUMBER OF CONSIDERATION SHARES ---------------------------------------------------------------------- COLUMN 1 Series A Series B Series C Series D Series M NAME AND ADDRESS OF Common Preferred Preferred Preferred Preferred Preferred SHAREHOLDER Stock Stock Stock Stock Stock Stock - --------------------- --------- --------- ---------- --------- --------- --------- Dr Timothy J Rink 63,234 41 Avenue Hector Otto Apt 81 MC9800 Monaco SEP II 3,017,994 17 Blythswood Square Glasgow G2 4AD SEP II B 143,714 17 Blythswood Square Glasgow G2 4AD Sitka Health Fund VCT 82,204 739,840 Plc 23 Buckingham Gate London SW1E 6LB Technomark 252,937 Co-investment LP(1) King House 5-11 Westbourne Grove London W2 4WA
- ---------- (1) Via its nominee J. Edward Sellers Nominees Limited 14 COLUMN 2 NUMBER OF SUBSIDIARY SHARES --------------------------------------------------------------------------- COLUMN 1 A B C D NAME AND ADDRESS OF Ordinary Ordinary Ordinary Ordinary Ordinary Deferred SHAREHOLDER Shares Shares Shares Shares Shares Shares - --------------------- --------- --------- ---------- --------- --------- -------------- University College 475,000 London Gower Street London WC1E 6BT V-Sciences 952,183 1,264,683 9,799,521,317 Investments Pte Ltd 8 Shenton Way #38-03 Temasek Tower Singapore 068811 West KB - 1,428,275 1,897,025 14,699,281,975 Westdeutsche Kapitalbeteiligungs- gesellschaft mbH Herzogstrasse 15 D-40217 Dusseldof Germany --------- --------- ---------- --------- --------- -------------- GRAND TOTAL: 3,207,204 9,521,832 18,931,043 2,529,366 7,588,098 97,997,267,538 ========= ========= ========== ========= ========= ============== COLUMN 3 NUMBER OF CONSIDERATION SHARES ---------------------------------------------------------------------- COLUMN 1 Series A Series B Series C Series D Series M NAME AND ADDRESS OF Common Preferred Preferred Preferred Preferred Preferred SHAREHOLDER Stock Stock Stock Stock Stock Stock - --------------------- --------- --------- ---------- --------- --------- --------- University College 475,000 London Gower Street London WC1E 6BT V-Sciences 952,183 1,264,683 Investments Pte Ltd 8 Shenton Way #38-03 Temasek Tower Singapore 068811 West KB - 1,428,275 1,897,025 Westdeutsche Kapitalbeteiligungs- gesellschaft mbH Herzogstrasse 15 D-40217 Dusseldof Germany --------- --------- ---------- --------- --------- --------- GRAND TOTAL: 1,307,204 9,521,832 1,8931,043 2,529,366 7,588,098 1,900,000 ========= ========= ========== ========= ========= =========
15 SCHEDULE 2 OPTIONS NUMBER OF SHARES OF COMMON STOCK SURNAME FIRST NAME UNDERLYING OPTION - ------- ---------- ----------------- Amir 12,000 Anesti Mariane 20,000 Assenberg Magdalena 30,000 Beynon Gareth 1,200,000 Brannan (Murray) Helan 20,000 Brown Jason 35,000 Brown Alice 20,000 Bullock Paul 80,000 Coffin Robert 1,200,000 Davis (King) Natalie 30,000 Davy Stephen 12,000 English Christie 30,000 Evans Victoria 10,000 Gordon John 47,400 Groves Natasha 30,000 Hogg Stuart 12,000 Justin John 30,000 Kundra Saptal 20,000 Liu Binlei 50,000 Love Colin 800,000 Martins Sonia 12,000 Mason Joanne 30,000 McGrath Yvonne 35,000 McIntyre Sarah 2,500 Metson Neil 20,000 Mills Tony 200,000 Nicholson Paul 47,400 Pheasey Nigel 30,000 Price Toby 35,000 Reay Philip 90,000 Rink Tim 47,400 Roddis Mathew 20,000 Rust Mark 12,000 Shorrock Claire 35,000 Simpson Guy 30,000 Sims Ruth 30,000 Sun Mei-Yi 35,000 Thomas Suzanne 90,000 Thornton Mark 80,000 Wakeling Madeline 30,000 Wang Yibing 20,000
16 NUMBER OF SHARES OF COMMON STOCK SURNAME FIRST NAME UNDERLYING OPTION - ------- ---------- ----------------- Wilcox Sue 25,000 Williamson Ian 30,000 Woodhouse (Harris) Julie 25,000 Ziquin Han 30,000 --------- TOTAL: 4,729,700 =========
17 EXECUTED as a deed on the date set out above. /s/ [signature illegible] ---------------------------------------- /s/ [signature illegible] ---------------------------------------- /s/ [signature illegible] ---------------------------------------- /s/ H.A. Slootweg, Director ---------------------------------------- Signed for and on behalf of ABN AMRO PARTICIPATIES B.V. /s/ Kevin J. Kinsella ---------------------------------------- Signed for and on behalf of AVALON VENTURES VI LP by its general partner AVALON VENTURES VI GP FUND LLC /s/ Kevin J. Kinsella ---------------------------------------- Signed for and on behalf of AVALON VENTURES VI GP FUND LLC /s/ Chris Roberts ---------------------------------------- Signed for and on behalf of BIONEX INVESTMENT PLC /s/ Philip Astley-Sparke ---------------------------------------- Signed for and on behalf of BIOVEX GROUP, INC. /s/ Philip Astley-Sparke ---------------------------------------- Signed for and on behalf of BIOVEX LIMITED /s/ [signature illegible] ---------------------------------------- Signed by ROBERT STUART COFFIN 18 /s/ [signature illegible] ---------------------------------------- Signed for and on behalf of CREDIT LYONNAIS INNOVATION 3 FONDS COMMUN DE PLACEMENT DANS L'INNOVATION /s/ [signature illegible] ---------------------------------------- Signed for and on behalf of CREDIT LYONNAIS INNOVATION 4 FONDS COMMUN DE PLACEMENT DANS L'INNOVATION /s/ [signature illegible] ---------------------------------------- Signed for and on behalf of CREDIT LYONNAIS INNOVATION 5 FONDS COMMUN DE PLACEMENT DANS L'INNOVATION /s/ [signature illegible] ---------------------------------------- Signed for and on behalf of CREDIT LYONNAIS VENTURE 1 FONDS COMMUN DE PLACEMENT A RISQUES /s/ Paul Toon ---------------------------------------- FCPI POSTE INNOVATION represented by its management company INNOVEN PARTENAIRES SA itself represented by Mr Paul Toon duly authorised /s/ Paul Toon ---------------------------------------- FCPI POSTE INNOVATION 2 represented by its management company INNOVEN PARTENAIRES SA itself represented by Mr Paul Toon duly authorised 19 /s/ Paul Toon ---------------------------------------- FCPI POSTE INNOVATION 3 represented by its management company INNOVEN PARTENAIRES SA itself represented by Mr Paul Toon duly authorised /s/ Paul Toon ---------------------------------------- FCPI POSTE INNOVATION 5 represented by its management company INNOVEN PARTENAIRES SA itself represented by Mr Paul Toon duly authorised /s/ Paul Toon ---------------------------------------- FCPI POSTE INNOVATION 6 represented by its management company INNOVEN PARTENAIRES SA itself represented by Mr Paul Toon duly authorised /s/ [signature illegible] ---------------------------------------- Signed for and on behalf of GENECHEM THERAPEUTICS VENTURE FUND L.P. on behalf of its General Partner GENECHEM THERAPEUTICS INC. /s/ John Laurie Gordon ---------------------------------------- Signed by JOHN LAURIE GORDON /s/ Paul Toon ---------------------------------------- INNOVEN 2001 FCPI No 5 represented by its management company INNOVEN PARTENAIRES SA itself represented by Mr Paul Toon duly authorised 20 /s/ Paul Toon ---------------------------------------- INNOVEN 2002 FCPI No 6 represented by its management company INNOVEN PARTENAIRES SA itself represented by Mr Paul Toon duly authorised /s/ Paul Toon ---------------------------------------- INNOVEN 2003 FCPI No 7 represented by its management company INNOVEN PARTENAIRES SA itself represented by Mr Paul Toon duly authorised /s/ D.E. Babbington ---------------------------------------- Signed for and on behalf of J EDWARD SELLARS NOMINEES LTD by its attorney TECHNOMARK CONSULTING SERVICES LIMITED /s/ D.S. Latchman ---------------------------------------- Signed by DAVID SEYMOUR LATCHMAN /s/ [signature illegible] ---------------------------------------- Signed for and on behalf of LION CAPITAL INVESTISSEMENT FONDS COMMUN DE PLACEMENT A RISQUES /s/ Stewart Licudi ---------------------------------------- Signed for and on behalf of LLOYDS TSB DEVELOPMENT CAPITAL LIMITED 21 /s/ Stewart Licudi ---------------------------------------- Signed for and on behalf of LDC CO-INVESTMENT PLAN 2001 'B' acting by its general partner LLOYDS TSB VENTURES GENERAL PARTNER LIMITED /s/ Stewart Licudi ---------------------------------------- Signed for and on behalf of LDC CO-INVESTMENT PLAN 2001 'A' acting by its general partner LLOYDS TSB VENTURES GENERAL PARTNER LIMITED /s/ [signature illegible] ---------------------------------------- Signed for and on behalf of MERLIN GENERAL PARTNER LIMITED as general partner of THE MERLIN FUND L.P. /s/ [signature illegible] ---------------------------------------- Signed for and on behalf of MERLIN GENERAL PARTNER II LIMITED as Managing Partner of THE MERLIN BIOSCIENCES GBR /s/ [signature illegible] ---------------------------------------- Signed for and on behalf of MERLIN EQUITY LIMITED /s/ [signature illegible] ---------------------------------------- Signed for and on behalf of MERLIN GENERAL PARTNER II LIMITED as General Partner of THE MERLIN BIOSCIENCES FUND L.P. /s/ James Noble ---------------------------------------- Signed by JAMES NOBLE 22 /s/ Timothy James Rink ---------------------------------------- Signed by TIMOTHY JAMES RINK /s/ Richard Sparrow ---------------------------------------- Signed for and on behalf of SCOTTISH EQUITY PARTNERS LIMITED /s/ Richard Sparrow ---------------------------------------- Signed for and on behalf of SEP II acting by its manager SCOTTISH EQUITY PARTNERS LIMITED /s/ Richard Sparrow ---------------------------------------- Signed for and on behalf of SEP II B acting by its manager SCOTTISH EQUITY PARTNERS LIMITED /s/ Louis Nisbet ---------------------------------------- Signed for and on behalf of SITKA HEALTH FUND VCT PLC ---------------------------------------- Signed for and on behalf of TECHNOMARK CO-INVESTMENT L.P. /s/ [signature illegible] ---------------------------------------- Signed for and on behalf of UNIVERSITY COLLEGE LONDON /s/ [signature illegible], Director ---------------------------------------- /s/ [signature illegible], Company Sec'ty ---------------------------------------- Signed for and on behalf of V-SCIENCES INVESTMENTS PTE LTD 23 /s/ [signature illegible] ---------------------------------------- Signed for and on behalf of WEST KB - WESTDEUTSCHE KAPITALBETEILIGUNGS-GESELLSCHAFT MBH 24
