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EXHIBIT 8
EXECUTION COPY
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is dated as of this 7th day of September, 2001, by and between
NOVAVAX, INC., a Delaware corporation (the "Company"), and KING PHARMACEUTICALS,
INC., a Tennessee corporation ("King").
WHEREAS, pursuant to a Note Purchase Agreement, dated as of December
19, 2000 (the "December 2000 Note Purchase Agreement"), by and between the
Company and King, (i) King purchased from the Company, and the Company sold to
King, a 4% Convertible Senior Note of the Company in the aggregate principal
amount of $20,000,000 (the "First December 2000 Note") and (ii) subject to the
terms and conditions set forth in the December 2000 Note Purchase Agreement,
King is purchasing as of the date hereof a 4% Convertible Senior Note in the
aggregate principal amount of $5,000,000 (the "Second December 2000 Note" and
together with the First December 2000 Note, the "December 2000 Notes");
WHEREAS, pursuant to the September 2001 Note Purchase Agreement, dated
as of September 7, 2001 (the "September 2001 Note Purchase Agreement"), by and
between the Company and King, King has agreed, subject to the satisfaction of
certain conditions described therein, to purchase from the Company, and the
Company has agreed, subject to the satisfaction of certain conditions described
therein, to sell to King, a 4% Convertible Senior Note of the Company in the
aggregate principal amount of $5,000,000 (the "September 2001 Note");
WHEREAS, each of the December 2000 Note Purchase Agreement and the
September 2001 Note Purchase Agreement contemplates that the Company will grant
shelf and piggyback registration rights with respect to the shares of common
stock issued or issuable by the Company upon the conversion of, and as interest
payments on the Notes issued pursuant to such agreements; and
WHEREAS, the Company and King desire to set forth the rights and
obligations of the parties with respect to such registration rights.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements of the parties contained herein, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions.
The following terms as used herein shall have the following meanings:
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"Business Day" means a day other than Saturday, Sunday or any
day on which banks located in the State of Maryland are authorized or obligated
by law to close.
"Commission" means the Securities and Exchange Commission and
any other similar or successor agency of the federal government then
administering the Securities Act or the Exchange Act.
"Common Stock" means the Common Stock, par value $.01 per
share, of the Company and any other securities issued or issuable upon the
conversion of, or as interest payments on, the Notes pursuant to the terms
thereof.
"December 2000 Notes" has the meaning specified in the
recitals to this Agreement.
"December 2000 Note Purchase Agreement" has the meaning
specified in the recitals to this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute then in effect, and any reference to a
particular section thereof shall include a reference to the comparable section,
if any, of any such similar federal statute, and the rules and regulations
thereunder.
"First Note Closing Date" means the issue date of the First
December 2000 Note sold under the December 2000 Note Purchase Agreement.
"Holder" or "Holders" shall mean King and the other beneficial
owners from time to time of Registrable Securities, but in each case only so
long as each such Person continues to hold any Registrable Securities.
"Initial Shelf Registrable Securities" means the shares of
Common Stock issued or issuable upon the conversion of the Notes and any
additional shares of Common Stock received by the Holders with respect to such
shares pursuant to a subsequent stock split, stock dividend or other
recapitalization of the Company.
"Initial Shelf Registration Statement" means a Shelf
Registration Statement relating to the Initial Shelf Registrable Securities.
"Initiating Holder" has the meaning specified in Section
3.3(a).
"Maryland Process Agent" has the meaning specified in Section
7.11(c).
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"Notes" mean the December 2000 Notes and the September 2001
Note.
"Person" means any individual, corporation, partnership,
limited liability company or partnership, association, trust or other entity or
organization, including a government or a political subdivision or an agency or
instrumentality thereof.
"Piggyback Registration Statement" means a registration
statement of the Company filed pursuant to Section 3.3 and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Plan of Distribution" has the meaning specified in Section
3.1(c).
"Prospectus" means the prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any of the Registrable Securities covered by a
Registration Statement and by all other amendments and supplements to the
prospectus, including pre-effective amendments and post-effective amendments to
a Registration Statement and all material incorporated by reference in such
prospectus.
"Registered Securities" means the securities covered by a
Registration Statement.
"Registrable Securities" means the Initial Shelf Registrable
Securities and the Top-up Shelf Registrable Securities. For purposes of this
Agreement, the shares of Common Stock constituting Initial Shelf Registrable
Securities or Top-up Shelf Registrable Securities shall cease to be Registrable
Securities when (a) a registration statement covering such shares of Common
Stock has been declared effective under the Securities Act and such shares of
Common Stock have been sold or disposed of pursuant to such effective
registration statement or (b) such shares of Common Stock have been distributed
to the public pursuant to Rule 144 under the Securities Act.
"Registration Statement" means a Shelf Registration Statement
or a Piggyback Registration Statement, as the case may be.
"Requesting Holder" has the meaning specified in Section
3.3(a).
"Second December 2000 Note" has the meaning specified in the
recitals to this Agreement.
"Second Note Closing Date" means the issue date of (a) the
September 2001 Note sold under the September 2001 Note Purchase
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Agreement and (b) the Second December 2000 Note sold under the December 2000
Note Purchase Agreement.
"September 2001 Note" has the meaning specified in the
recitals to this Agreement.
"September 2001 Note Purchase Agreement" has the meaning
specified in the recitals to this Agreement.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal statute then in effect, and any reference to a particular
section thereof shall include a reference to a comparable section, if any, of
any such similar federal statute, and the rules and regulations thereunder.
"Shelf Registration" means the registration of Registrable
Securities effected pursuant to Section 3.1 or Section 3.2.
"Shelf Registration Effective Date" means, with respect to any
Shelf Registration Statement, the date on which such Shelf Registration
Statement is declared effective by the Commission.
"Shelf Registration Period" means, with respect to any Shelf
Registration Statement, the shorter of (a) the period from and including the
Shelf Registration Effective Date to and including the Shelf Registration
Termination Date or (b) the period from and including the Shelf Registration
Effective Date to and including the date on which all of the Holders of the
Registrable Securities covered by such Shelf Registration Statement shall have
disposed of such Registrable Securities.
"Shelf Registration Statement" means a shelf registration
statement of the Company filed pursuant to the provisions of Section 3.1 or
Section 3.2 which covers the Registrable Securities on an appropriate form under
Rule 415 of the Securities Act, or any similar rule that may be adopted by the
Commission, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein. "Shelf Registration Statement" shall include the Initial
Shelf Registration Statement and each Top-up Shelf Registration Statement.
"Shelf Registration Termination Date" means, with respect to
any Shelf Registration Statement, the date on which all of the Registrable
Securities covered by such Shelf Registration Statement may be sold by the
respective Holders thereof pursuant to Rule 144(k) under the Securities Act.
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"Tennessee Process Agent" has the meaning specified in Section
7.11(b).
"Top-up Shelf Registrable Securities" means the shares of
Common Stock issued or issuable as interest payments on the Notes and any
additional shares of Common Stock received by the Holders with respect to such
shares pursuant to a subsequent stock split, stock dividend or other
recapitalization of the Company.
"Top-up Shelf Registration Statement" means a Shelf
Registration Statement relating to Top-up Shelf Registrable Securities.
2. Effectiveness of Agreement.
This Agreement shall become effective on the date hereof.
3. Registrations.
3.1 Initial Shelf Registration Statements.
(a) The Company shall file an Initial Shelf Registration Statement
with the Commission not later than ten (10) Business Days following the First
Note Closing Date, and shall use its best efforts to cause such Initial Shelf
Registration Statement to be declared effective by the Commission as soon as
reasonably practicable thereafter and in any event within one hundred eighty
(180) calendar days following the First Note Closing Date. The failure to have
such Initial Shelf Registration Statement declared effective by the Commission
within such one hundred eighty (180) calendar day period shall constitute an
Event of Default under the Notes. Such Initial Shelf Registration Statement
shall register the offering of Initial Shelf Registrable Securities issued or
issuable upon conversion of the Note sold on the First Note Closing Date. The
Company shall promptly notify the Holders of the date and time of declaration of
effectiveness of such Initial Shelf Registration Statement.
(b) The Company shall file an Initial Shelf Registration Statement
with the Commission not later than ten (10) Business Days following the Second
Note Closing Date, and shall use its best efforts to cause such Initial Shelf
Registration Statement to be declared effective by the Commission as soon as
reasonably practicable thereafter and in any event within one hundred eighty
(180) days following the Second Note Closing Date. The failure to have such
Initial Shelf Registration Statement declared effective by the Commission within
such one hundred eighty (180) calendar day period shall constitute an Event of
Default under the September 2001 Note. Such Initial Shelf Registration Statement
shall register the offering of Initial Shelf Registrable Securities issued or
issuable upon conversion of the September 2001 Note sold on the Second Note
Closing Date. The Company shall promptly
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notify the Holders of the date and time of declaration of effectiveness of such
Initial Shelf Registration Statement.
(c) Each Initial Shelf Registration Statement shall cover the offer
and sale of the Initial Shelf Registrable Securities in accordance with the
methods of distribution included in the plan of distribution substantially in
the form attached to this Agreement as Exhibit A (the "Plan of Distribution").
The Plan of Distribution shall be included in each Initial Shelf Registration
Statement and shall not be modified without the written consent of the holder of
a majority of the Registrable Securities.
3.2 Top-up Shelf Registration Statements.
(a) At any time following the issuance of Common Stock as interest
payments on the Notes, the holders of a majority in principal amount of the
Notes then outstanding may request the Company in writing to file a Top-up Shelf
Registration Statement with the Commission registering the offering of some or
all Top-up Shelf Registrable Securities which the Company has not previously
registered. The Company shall file such Top-up Shelf Registration Statement with
the Commission not later than twenty (20) Business Days following its receipt of
such request and shall use its best efforts to cause such Top-up Shelf
Registration Statement to be declared effective by the Commission as soon as
reasonably practicable thereafter. Within five (5) Business Days following
receipt of such request, the Company shall give written notice to each Holder of
unregistered Top-up Shelf Registrable Securities then outstanding, specifying
the approximate date on which the Company proposes to file such Top-up Shelf
Registration Statement and advising such Holder of its right to have any or all
of the unregistered Top-up Shelf Registrable Securities then held by such Holder
included among the securities to be covered thereby. At the written request of
any such Holder given to the Company within ten (10) Business Days after such
Holder's receipt of written notice from the Company, the Company shall include
among the securities covered by such registration statement the number of Top-up
Shelf Registrable Securities which such Holder shall have requested be so
included.
(b) Each Top-up Shelf Registration Statement shall cover the offer
and sale of the Top-up Shelf Registrable Securities in accordance with the
methods of distribution included in the Plan of Distribution substantially in
the form attached hereto. The Plan of Distribution shall be included in each
Top-up Shelf Registration Statement and shall not be modified without the
written consent of the holders of a majority of the Registrable Securities.
3.3 Piggy-Back Registration Statements.
(a) Whenever the Company shall propose to file a registration
statement under the Securities Act relating to the public offering of Common
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Stock for the Company's own account (other than pursuant to a registration
statement on Form S-4 or Form S-8 or any successor forms, or filed in connection
with an exchange offer or an offering of securities solely to existing
stockholders or employees of the Company) or for the account of any holder of
Common Stock (the "Initiating Holder") and on a form and in a manner that would
permit registration of Registrable Securities for sale to the public under the
Securities Act, the Company shall (i) give written notice at least fifteen (15)
Business Days prior to the filing thereof to each Holder of Registrable
Securities then outstanding, specifying the approximate date on which the
Company proposes to file such registration statement and advising such Holder of
its right to have any or all of the Registrable Securities then held by such
Holder included among the securities to be covered thereby and (ii) at the
written request of any such Holder given to the Company within eight (8)
Business Days after such Holder's receipt of written notice from the Company,
include among the securities covered by such registration statement the number
of Registrable Securities which such Holder (the "Requesting Holder") shall have
requested be so included (subject, however, to reduction in accordance with
Section 3.3(b)).
(b) Each Holder of Registrable Securities desiring to participate
in an offering pursuant to Section 3.3(a) may include shares of Common Stock in
any registration statement relating to such offering to the extent that the
inclusion of such shares of Common Stock shall not reduce the number of shares
of Common Stock to be offered and sold by the Company or any Initiating Holder
pursuant thereto. If the lead managing underwriter selected for an underwritten
offering pursuant to Section 3.3(a) determines that marketing factors require a
limitation on the number of shares of Common Stock to be offered and sold by
Requesting Holders in such offering, there shall be included in the offering
only that number of shares of Common Stock, if any, that such lead managing
underwriter reasonably and in good faith believes will not jeopardize the
success of the offering of all the shares of Common Stock that the Company
desires to sell for its own account or that the Initiating Holder desires to
sell for its own account, as the case may be. In such event and provided the
lead managing underwriter has so notified the Company in writing, the shares of
Common Stock, including the Registrable Securities, to be included in such
offering shall be allocated in accordance with the following priorities: first,
among the shares of Common Stock proposed to be included for the account of the
Company or the Initiating Holder, as the case may be; second, on a pro rata
basis with respect to (A) the Registrable Securities held by all Requesting
Holders based on the number of Registrable Securities that each Requesting
Holder has requested to be so included and (B) the shares of Common Stock held
by holders of registration rights pursuant to the Agreement and Plan of Merger
dated as of October 4, 2000, among the Company, The Fielding Pharmaceutical
Company and the other persons named therein who have requested such shares to be
so included; and third, among
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the shares of Common Stock held by holders of any other Common Stock in
accordance with the terms of their respective registration rights, if any.
(c) Nothing in this Section 3.3 shall create any liability on the
part of the Company to the Holders of Registrable Securities if the Company for
any reason should decide not to file a registration statement proposed to be
filed under Section 3.3(a) or to withdraw such registration statement subsequent
to its filing, regardless of any action whatsoever that a Holder may have taken,
whether as a result of the issuance by the Company of any notice hereunder or
otherwise.
(d) No Holder of Registrable Securities may participate in any
underwritten offering pursuant to this Section 3.3 unless such Holder (i) agrees
to sell such Holder's securities on the basis provided in any underwriting
arrangements approved by the Company in its reasonable discretion and (ii)
completes and executes all questionnaires, powers of attorney, custody
agreements, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(e) In the case of an underwritten offering of Common Stock in
which the Holders have the right to participate pursuant to this Section 3.3,
each Holder which holds, together with such Holder's affiliates, Registrable
Securities representing more than 1% of the outstanding Common Stock (assuming
conversion of all outstanding Notes) shall agree, if requested in writing by the
managing underwriter of such underwritten offering, not to effect any public
sale or distribution of such Registrable Securities or any Notes held by such
Holder during the seven (7) days prior to and up to ninety (90) days after the
effective date of the registration statement covering such underwritten
offering, provided that if directors and officers of the Company holding Common
Stock generally are subject to hold-back restrictions of shorter duration, such
shorter periods shall apply to such Holder. If requested in writing by the
managing underwriter of such underwritten offering, such Holder shall enter into
a lock-up agreement with the applicable underwriters that is consistent with the
agreement in the preceding sentence.
3.4 Registration Procedures. When the Company causes the registration
of the Registrable Securities pursuant to a Registration Statement, the Company
shall:
(a) subject to the terms of Section 4, use its reasonable best
efforts to keep any Shelf Registration Statement continuously effective during
the Shelf Registration Period in order to permit the Prospectus forming a part
thereof to be usable and deliverable by the Holders for the Shelf Registration
Period;
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(b) use its reasonable best efforts to cause the Registered
Securities to be registered and qualified under the securities laws of such
jurisdictions as shall reasonably be requested by the Holders to enable them to
consummate the sale or disposition of the Registered Securities; provided,
however, that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business, to subject itself to taxation or to
file a general consent to service of process in any such jurisdiction in which
it is not otherwise required to do so;
(c) furnish to each Holder, as applicable, without charge, such
number of copies of each preliminary prospectus and of the Prospectus as such
Holder may reasonably request in order to facilitate the sale or disposition of
the Registered Securities;
(d) subject to the requirements of Section 4(b), if at any time
when a prospectus is required by the Securities Act to be delivered in
connection with the offering or sale of the Registered Securities, an event
occurs or a fact exists as a result of which it is necessary, in the opinion of
the Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, or if it shall be
necessary, in the opinion of the Company, at any such time to amend the
Registration Statement or amend or supplement the Prospectus to comply with the
regulations of the Commission thereunder, (i) promptly notify each Holder of the
occurrence of such event or existence of such fact or requirements and,
consistent with the terms of Section 4, direct each Holder to cease making
offers and sales of the Registered Securities pursuant to the Registration
Statement or deliveries of the Prospectus contained therein for any purpose and
(ii) prepare and file with the Commission in a timely manner such amendment or
supplement as may be necessary or appropriate to correct such untrue statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements;
(e) promptly notify each Holder when the Registration Statement or
any post-effective amendment to the Registration Statement shall have become
effective, or when any supplement to the Prospectus or any amended Prospectus
shall have been filed, and furnish to each Holder copies of any amendment of or
supplement to the Prospectus so that, as thereafter delivered to purchasers of
the Registered Securities, the Prospectus shall not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances then
existing;
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(f) promptly notify the Holders of (i) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any Prospectus, or
of the suspension of the qualification of the Registered Securities for offer or
sale in any jurisdiction, or of the institution or threatening of any
proceedings for any of such purposes, and (ii) the lifting of any such order or
suspension or resolution of any such proceedings that permits the resumption of
offers and sales of the Registered Securities;
(g) provide a transfer agent and registrar for all the Registered
Securities covered by any Registration Statement not later than the effective
date of such Registration Statement;
(h) promptly after the filing thereof with the Commission, and for
so long as the Common Stock is listed on the American Stock Exchange, file
copies of the Prospectus with the American Stock Exchange;
(i) comply with the requirements of the Securities Act and the
Exchange Act applicable to issuers so as to permit the completion of the
distribution of the Registered Securities in accordance with the intended method
or methods of distribution thereof; and
(j) provide counsel to the Holders with a reasonable opportunity to
review and comment on each Registration Statement before such Registration
Statement is filed with the Commission.
4. Agreements of Holders.
(a) As a condition to the Company's obligation under this Agreement
to cause the Shelf Registration Statements to be filed and the Registrable
Securities of any Holder to be included in any Registration Statement, such
Holder shall provide to the Company, in writing, with such information,
including, without limitation, the information required by Items 507 and 508 of
Regulation S-K under the Securities Act (or any successor provisions), as may
reasonably be required by the Company in order to comply with applicable
provisions of the Securities Act and the Exchange Act in connection with any
registration of Registrable Securities.
(b) If at any time when a Prospectus is required by the Securities
Act to be delivered in connection with the offering or sale of the Registered
Securities of a Holder, an event occurs or a fact exists affecting the Plan of
Distribution as it relates to such Holder or affecting the information provided
by such Holder pursuant to Section 4(a) hereof, such that it is necessary to
amend the Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at
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the time the Prospectus is delivered to a purchaser, then such Holder shall (i)
promptly notify the Company of the occurrence of such event or existence of such
fact and (ii) provide the Company with such information as may be necessary for
the Company to comply with its obligations as set forth in Section 3.4(d)
hereof.
(c) Each Holder agrees that it shall not make offers of or sell the
Registered Securities pursuant to any Registration Statement or make deliveries
of the Prospectus contained therein for any purpose (i) after receipt by such
Holder of the notice to cease making such offers and sales and such deliveries
which is furnished by the Company pursuant to Section 3.4(d) until delivery by
the Company to such Holder of copies of any amendment of or supplement to the
Prospectus pursuant to Section 3.4(e) or (ii) after receipt by such Holder of
the notice furnished by the Company pursuant to Section 3.4(f)(i) until delivery
by the Company to such Holder of the notice referred to in Section 3.4(f)(ii).
(d) Each Holder agrees that it shall not offer the Registered
Securities in transactions to cover short sales.
5. Registration Expenses.
(a) The Company shall pay and bear all costs and expenses incident
to the performance of its obligations under this Agreement, including the
following:
(i) expenses related to the preparation and printing of each
Registration Statement (including financial statements and exhibits),
any preliminary prospectuses and the Prospectus, and the cost of
furnishing copies thereof to the Holders, as the case may be;
(ii) all Commission, self-regulatory organization, stock
exchange and other registration and filing fees and listing fees;
(iii) expenses related to the preparation, printing and
distribution of certificates representing the Registered Securities and
other documents relating to the Company's performance of and compliance
with the terms of this Agreement;
(iv) the fees and disbursements of the Company's counsel and
independent accountants; and
(v) expenses related to the qualification of the Registered
Securities under United States and other applicable securities laws.
(b) Each Holder shall pay and bear all costs and expenses incident
to the delivery of the Registered Securities to be sold by such Holder,
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including any stock transfer taxes payable upon the sale of such Registered
Securities to the purchasers thereof, any discounts or commissions payable to
brokers, dealers or agents in connection therewith, and the fees and
disbursements of counsel to such Holder.
6. Indemnification; Contribution.
6.1 Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Holder, its officers, directors, agents, partners, trustees
and stockholders and each Person who controls such Holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) against all
losses, claims, damages, liabilities and expenses (including reasonable
attorneys' fees, disbursements and expenses, as incurred) incurred by such party
pursuant to any actual or threatened action, suit, proceeding or investigation
arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, any Prospectus or
preliminary Prospectus or any amendment or supplement to any of the foregoing,
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the case of a
Prospectus or a preliminary Prospectus, in the light of the circumstances then
existing) not misleading, except in each case insofar as the same arise out of
or are based upon any such untrue statement or omission made in reliance on and
in conformity with information with respect to such Holder or other indemnified
party furnished in writing to the Company by such Holder or other indemnified
party or its counsel expressly for use therein. In connection with an
underwritten offering, the Company shall indemnify the underwriters thereof,
their officers, directors, agents, partners, trustees and stockholders and each
Person who controls such underwriters (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the same extent as provided
above with respect to the indemnification of the Holders. Notwithstanding the
foregoing provisions of this Section 6.1, the Company shall not be liable to any
Person who participates as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such underwriter (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) under the indemnity agreement in this Section 6.1 for any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense that
arises out of such Person's failure to send or deliver a copy of the final
Prospectus to the Person asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of the Registrable Securities to such Person if such
statement or omission was corrected in such final Prospectus and the Company has
previously furnished copies thereof to such Holder or other Person in accordance
with this Agreement.
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6.2 Indemnification by the Holders. Each Holder agrees severally and
not jointly to indemnify and hold harmless the Company and any underwriter, as
the case may be, and their respective directors, officers, agents, partners,
trustees, stockholders and controlling Persons (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) against any losses,
claims, damages, liabilities and expenses (including reasonable attorneys' fees,
disbursements and expenses, as incurred), incurred by such party pursuant to any
actual or threatened action, suit, proceeding or investigation arising out of or
based upon any untrue or alleged untrue statement of a material fact contained
in, or any omission or alleged omission of a material fact required to be stated
in, any Registration Statement, any Prospectus or preliminary Prospectus or any
amendment or supplement to any of the foregoing or necessary to make the
statements therein (in case of the Prospectus or a preliminary Prospectus, in
the light of the circumstances then existing) not misleading, but only to the
extent that any such untrue statement or omission is made in reliance on and in
conformity with information furnished in writing to the Company by such Holder
or its counsel specifically for inclusion therein; provided, however, that the
liability of each Holder hereunder shall not in any event exceed the net
proceeds (after deduction of underwriting discounts and commissions and offering
expenses payable by such Holder) received by such Holder from the sale of
Registrable Securities covered by the applicable Registration Statement.
6.3 Indemnification Proceedings. Any Person entitled to indemnification
under Section 6.1 or Section 6.2 agrees to give prompt written notification to
the indemnifying party after the receipt by such indemnified party of any
written notice of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which such indemnified party
may claim indemnification or contribution pursuant to this Agreement; provided
that failure to give such notification shall not affect the obligations of the
indemnifying party pursuant to Section 6.1, Section 6.2 or Section 6.4 except to
the extent the indemnifying party shall have been actually prejudiced as a
result of such failure; provided, further, that if the indemnified party shall
fail to provide such notice to the indemnifying party, then the indemnifying
party shall not be required to pay the costs and expenses of such indemnified
party incurred by such indemnified party during the period commencing on the
date such indemnified party was required to provide such notice to the
indemnifying party and ending on the date that the indemnifying party has
knowledge of such action, suit, proceeding or investigation. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall
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not be liable to such indemnified party under these indemnification provisions
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation, unless in the reasonable
judgment of any indemnified party a conflict of interest is likely to exist,
based on the written opinion of counsel, between such indemnified party and any
other of such indemnified parties with respect to such claim. In the event of
such a conflict of interest, the indemnifying party shall not be liable for the
fees and expenses of (a) more than one counsel for all Holders of Registrable
Securities who are indemnified parties, which counsel shall be selected by the
Holders of a majority of the Registrable Securities covered by the applicable
Registration Statement who are indemnified parties (and which selection shall be
reasonably satisfactory to the Company), (b) more than one counsel for any
underwriters or (c) more than one counsel for the Company in connection with any
one action or separate but similar or related actions. An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claims, unless in
the reasonable judgment of any indemnified party, based on the written opinion
of counsel, a conflict of interest may exist between such indemnified party and
any other of such indemnified parties with respect to such claim. In the event
of such a conflict of interest, the indemnifying party shall be obligated to pay
the fees and expenses of such additional counsel or counsels, provided that the
indemnifying party shall not be liable for the fees and expenses of (a) more
than one counsel for all Holders of Registrable Securities who are indemnified
parties, which counsel shall be selected by the Holders of a majority of the
Registrable Securities covered by the applicable Registration Statement who are
indemnified parties (and which selection shall be reasonably satisfactory to the
Company), (b) more than one counsel for any underwriters or (c) more than one
counsel for the Company in connection with any one action or separate but
similar or related actions. No indemnifying party, in defense of any such
action, suit, proceeding or investigation, shall, except with the consent of
each indemnified party, consent to the entry of any judgment or entry into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such action, suit, proceeding or investigation to the
extent the same is covered by the indemnity obligations set forth in Section 6.1
or Section 6.2. No indemnified party shall consent to entry of any judgment or
enter into any settlement without the consent of each indemnifying party, which
consent shall not be unreasonably withheld or delayed.
6.4 Contribution. If the indemnification from the indemnifying party
provided for in Section 6.1 or Section 6.2 is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to herein, then the indemnifying party, in lieu of
indemnifying such
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indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities and
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified party in connection with the actions
which resulted in such losses, claims, damages, liabilities and expenses, as
well as any other relevant equitable considerations; provided, however, that the
liability of each Holder hereunder shall not in any event exceed the net
proceeds (after deduction of underwriting discounts and commissions and offering
expenses payable by such Holder) received by such Holder from the sale of
Registrable Securities covered by the applicable Registration Statement. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 6.3, any legal or other fees and expenses reasonably incurred by such
indemnified party in connection with any investigation or proceeding. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
6.5 Other Liability. The provisions of Sections 6.1, 6.2, 6.3 and 6.4
shall be in addition to any liability which any indemnifying party may have to
any indemnified party and shall survive the termination of this Agreement.
7. Miscellaneous.
7.1 Assignment. The registration rights contained in Section 3 may be
transferred by a Holder in connection with the transfer by such Holder of the
Registrable Securities to which such registration rights relate. As a condition
to the effectiveness of any such transfer of registration rights hereunder, the
transferee shall execute a counterpart of, and shall become a party to, this
Agreement.
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7.2 Reports Under the Exchange Act. The Company agrees to:
(a) file with the Commission in a timely manner all reports and
other documents required to be filed by the Company under the Exchange Act; and
(b) furnish to any Holder promptly upon request a written statement
by the Company that it has complied with the current public information and
reporting requirements of Rule 144 under the Securities Act.
7.3 Mergers, etc. The Company agrees that, as a condition to any
merger, consolidation or the sale of all or substantially all of its assets in
exchange for securities of another company, it shall use its commercially
reasonable efforts in light of the circumstances then existing to require the
surviving, consolidated or purchasing corporation to enter into an agreement to
register the securities of such surviving, consolidated or purchasing
corporation, to be received by the Holders, on substantially the same terms and
provisions as are provided in this Agreement.
7.4 No Inconsistent Agreements. The Company shall not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
in any way shall limit the registration rights granted to the Holders in this
Agreement without the consent of the Holders of a majority of the Registrable
Securities.
7.5 Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when (a) delivered personally to
the recipient, (b) telecopied to the recipient (with hard copy sent to the
recipient by reputable overnight courier service (charges prepaid) that same
day) if telecopied before 5:00 p.m. Eastern time on a Business Day, and
otherwise on the next Business Day, or (c) one Business Day after being sent to
the recipient by reputable overnight courier service (charges prepaid). Such
notices, demands and other communications shall be sent to the following Persons
at the following addresses:
To the Company:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy (which shall not constitute notice) to:
White & ▇▇▇▇▇▇▇▇▇, P.C.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
To King:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Executive Vice President
and General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
Notice to any other Holder shall be addressed to such Holder at the address set
forth for such Holder in the Company's records or at such other address and to
the attention of such other Person as such Holder may designate by written
notice to the Company.
7.6 Counterparts. This Agreement may be executed in one or more
counterparts (including by facsimile transmission), each of which shall be
deemed an original and all of which taken together shall constitute one and the
same agreement.
7.7 Headings. Section headings are inserted herein for convenience only
and do not form a part of this Agreement.
7.8 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, without giving effect to
any choice of law or conflict of law rules or provisions (whether of the State
of Delaware or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware.
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7.9 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereunder shall be enforceable to the fullest extent permitted by law.
7.10 Entire Agreement; Amendment. This Agreement, the December 2000
Note Purchase Agreement, the September 2001 Note Purchase Agreement and the
Investor Rights Agreement (as defined in the September 2001 Note Purchase
Agreement), as amended, contain the entire agreement among the parties with
respect to the transactions contemplated herein, and supersede all prior written
agreements and negotiations and oral understandings, if any, with respect to
their subject matter, including, without limitation, the Registration Rights
Agreement dated as of December 19, 2000 between the Company and King. Except as
otherwise expressly provided herein, the provisions of this Agreement may be
amended and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company has
obtained the written consent of the Holders of a majority of the Registrable
Securities; provided, that if any such amendment, modification or waiver would
adversely affect any Holder of Registrable Securities relative to the Holders of
Registrable Securities voting in favor of such amendment, modification, or
waiver, such amendment, modification or waiver shall also require the written
consent of the holders of a majority of the Registrable Securities held by all
Holders so adversely affected; and provided further that if such amendment,
modification or waiver is to a provision in this Agreement that requires a
specific vote to take an action thereunder or to take an action with respect to
the matters described therein, such amendment, modification or waiver shall not
be effective unless such vote is obtained with respect to such amendment,
modification or waiver. No other course of dealing between the Company and any
Holder or any delay in exercising any rights hereunder or under the Notes or the
Company's certificate of incorporation shall operate as a waiver of any rights
of any such Holder.
7.11 Jurisdiction; Venue.
(a) Each of the Company and King hereby waives personal service of
any process upon it in connection with any suit, action or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby,
and hereby covenants and agrees that all such service of process may be made in
the manner set forth in Section 7.5 with the same effect as though served on it
personally.
(b) The Company hereby covenants and agrees that any suit, action
or proceeding initiated by the Company against King, its affiliates,
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subsidiaries, successors and/or assigns arising out of or relating to this
Agreement or the transactions contemplated hereby shall be brought exclusively
in the federal courts located in and/or state courts of the State of Tennessee.
In the event of any such suit, action or proceeding each of the Company and King
hereby submit to the exclusive jurisdiction and venue of the federal courts
located in and state courts of the State of Tennessee and hereby waive any and
all objections based on jurisdiction or venue that such party may have under
applicable law or the Federal Rules of Civil Procedure. Each of the parties
hereby irrevocably designates CT Corporation in the State of Tennessee (the
"Tennessee Process Agent") as its designee, appointee and agent to receive, for
and on its behalf, service of process in the State of Tennessee in any such
suit, action or proceedings with respect to this Agreement and the transactions
contemplated hereby. Service on the Tennessee Process Agent shall be deemed
complete upon delivery thereof to the Tennessee Process Agent, provided that, in
the case of any such service upon the Tennessee Process Agent, the party
effecting such service shall also deliver a copy thereof to the other parties in
accordance with the notice provision set forth in Section 7.5. Each such party
shall take all such action as may be necessary to continue the appointment of
the Tennessee Process Agent in full force and effect or to appoint another
agent, who shall thereafter be referred to herein as the "Tennessee Process
Agent," so that each such party shall at all times have an agent for service for
the foregoing purposes in the State of Tennessee.
(c) King hereby covenants and agrees that any suit, action or
proceeding initiated by King against the Company, its affiliates, subsidiaries,
successors and/or assigns arising out of or relating to this Agreement or the
transactions contemplated hereby shall be brought exclusively in the federal
courts located in and state courts of the State of Maryland. In the event of any
such suit, action or proceeding initiated by King, each of the Company and King
hereby submit to the exclusive jurisdiction and venue of the federal courts
located in and state courts of the State of Maryland and hereby waive any and
all objections based on jurisdiction or venue that such party may have under
applicable law or the Federal Rules of Civil Procedure. Each of the foregoing
parties hereby irrevocably designates CT Corporation in the State of Maryland
(the "Maryland Process Agent"), as its designee, appointee and agent to receive,
for and on its behalf, service of process in the State of Maryland in any such
suit, action or proceedings with respect to this Agreement and the transactions
contemplated hereby. Service on the Maryland Process Agent shall be deemed
complete upon delivery thereof to the Maryland Process Agent, provided that in
the case of any such service upon the Maryland Process Agent, the party
effecting such service shall also deliver a copy thereof to the other parties in
accordance with the notice provision set forth in Section 7.5. Each such party
shall take all such action as may be necessary to continue the appointment of
the Maryland Process Agent in full force and effect or to appoint another agent,
who shall thereafter be referred to herein as the "Maryland Process Agent," so
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that each such party shall at all times have an agent for service for the
foregoing purposes in the State of Maryland.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Registration Rights Agreement to be duly executed as of the date first
written above.
COMPANY:
NOVAVAX, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Title: President and CEO
-------------------------------------
KING:
KING PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: President
-------------------------------------
22
EXHIBIT A
PLAN OF DISTRIBUTION
Shares may be sold or distributed from time to time by the selling
stockholders named in this prospectus and, to the extent permitted by their
registration rights agreement with the Company, by their donees or transferees
and their other successors in interest. The selling stockholders may sell their
shares at market prices prevailing at the time of sale, at prices related to
such prevailing market prices, at negotiated prices, or at fixed prices, which
may be changed. Each selling stockholder reserves the right to accept or reject,
in whole or in part, any proposed purchase of shares, whether the purchase is to
be made directly or through agents.
The selling stockholders may offer their shares at various times in one
or more of the following transactions:
- in ordinary brokers' transactions and transactions in which the
broker solicits purchasers;
- in transactions involving cross or block trades or otherwise on
the Nasdaq National Market or any national securities exchange on which the
Common Stock is listed;
- in transactions "at the market" to or through market makers in
the common stock or into an existing market for the common stock;
- in other ways not involving market makers or established trading
markets, including direct sales of the shares to purchasers or sales of the
shares effected through agents;
- through transactions in options, swaps or other derivatives which
may or may not be listed on an exchange;
- in privately negotiated transactions; or
- in a combination of any of the foregoing transactions.
The selling stockholders also may sell their shares in accordance with
Rule 144 under the Securities Act.
From time to time, one or more of the selling stockholders may pledge
or grant a security interest in some or all of the shares owned by them. If the
selling stockholders default in performance of their secured obligations, the
pledgees or secured parties may offer and sell the shares from time to time by
23
this prospectus. The selling stockholders also may transfer and donate shares in
other circumstances. The number of shares beneficially owned by selling
stockholders will decrease as and when the selling stockholders transfer or
donate their shares or default in performing obligations secured by their
shares. The plan of distribution for the shares offered and sold under this
prospectus will otherwise remain unchanged, except that the transferees, donees,
pledgees, other secured parties or other successors in interest will be selling
stockholders for purposes of this prospectus.
A selling stockholder may enter into hedging transactions with
broker-dealers. A selling stockholder also may enter into option or other
transactions with broker-dealers that involve the delivery of shares to the
broker-dealers, who may then resell or otherwise transfer such shares. In
addition, a selling stockholder may loan or pledge shares to a broker-dealer,
which may sell the loaned shares or, upon a default by the selling stockholder
of the secured obligation, may sell or otherwise transfer the pledged shares.
The selling stockholders may use brokers, dealers, underwriters or
agents to sell their shares. The persons acting as agents may receive
compensation in the form of commissions, discounts or concessions. This
compensation may be paid by the selling stockholders or the purchasers of the
shares of whom such persons may act as agent, or to whom they may sell as
principal, or both. The compensation as to a particular person may be less than
or in excess of customary commissions. The selling stockholders and any agents
or broker-dealers that participate with the selling stockholders in the offer
and sale of the shares may be deemed to be "underwriters" within the meaning of
the Securities Act. Any commissions they receive and any profit they realize on
the resale of the shares by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Neither we nor any selling stockholders
can presently estimate the amount of such compensation.
If a selling stockholder sells shares in an underwritten offering, the
underwriters may acquire the shares for their own account and resell the shares
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. In such event, we will set forth in a supplement to this
prospectus the names of the underwriters and the terms of the transactions,
including any underwriting discounts, concessions or commissions and other items
constituting compensation of the underwriters and broker-dealers. The
underwriters from time to time may change any public offering price and any
discounts, concessions or commissions allowed or reallowed or paid to
broker-dealers. Unless otherwise set forth in a supplement, the obligations of
the underwriters to purchase the shares will be subject to certain conditions,
and the underwriters will be obligated to purchase all of the shares specified
in the supplement if they purchase any of the shares.
Exhibit A -- Page 2
24
We have informed the selling stockholders that during such time as they
may be engaged in a distribution of the shares, they are required to comply with
Regulation M under the Securities Exchange Act. With exceptions, Regulation M
prohibits any selling stockholder, any affiliated purchasers and other persons
who participate in such a distribution from bidding for or purchasing, or
attempting to induce any person to bid for or purchase, any security which is
the subject of the distribution until the entire distribution is complete.
Under the Company's registration rights agreement with the selling
stockholders, the Company is required to bear the expenses relating to this
offering, excluding any underwriting discounts or commissions, stock transfer
taxes and fees and disbursements of counsel to the selling stockholders.
The Company has agreed to indemnify the selling stockholders and their
respective controlling persons against certain liabilities, including certain
liabilities under the Securities Act. The Company will not receive any of the
proceeds from the sale by the selling stockholders of the shares offered by this
document.
This offering by any selling stockholder will terminate on the date
specified in the selling stockholder's registration rights agreement with the
Company, or, if earlier, on the date on which the selling stockholder has sold
all of such selling stockholder's shares.
Exhibit A -- Page 3
