EXHIBIT 8
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is dated as of this 26th day of June, 2002, 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, King purchased from the Company, and the Company sold to
King, (i) a 4% Convertible Senior Note of the Company in the aggregate
principal amount of $20,000,000 (the "First December 2000 Note") and (ii) 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 purchased from the Company, and the Company
sold to King, a 4% Convertible Senior Note of the Company in the aggregate
principal amount of $5,000,000 (the "September 2001 Note");
WHEREAS, pursuant to the June 2002 Note Purchase Agreement, dated as
of June 26, 2002 (the "June 2002 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 $10,000,000 (the "June 2002 Note");
WHEREAS, each of the December 2000 Note Purchase Agreement, the
September 2001 Note Purchase Agreement and the June 2002 Note Purchase
Agreement contemplates that the Company will grant shelf and piggyback
registration rights with respect to the shares of Common Stock (as defined
hereafter) issued or issuable by the Company upon the conversion of, and as
interest payments on the Notes issued pursuant to such agreements;
WHEREAS, the Company and King entered into a certain Amended and
Restated Registration Rights Agreement dated as of September 7, 2001 (the
"Amended and Restated Registration Rights Agreement") pursuant to which the
Company granted certain registration rights to King; and
WHEREAS, the Company and King have agreed to amend and restate the
Amended and Restated Registration Rights Agreement as a condition to the
closing of the June 2002 Note Purchase Agreement.
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 Amended and Restated Registration Rights Agreement is hereby
amended and restated as follows:
1. Definitions.
The following terms as used herein shall have the following meanings:
"Amended and Restated Registration Rights Agreement" has the
meaning specified in the recitals to this Agreement.
"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 December 2000 Note" has the meaning specified in the
recitals to this Agreement.
"First Note Closing Date" means December 19, 2000.
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"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).
"June 2002 Note" has the meaning specified in the recitals to
this Agreement.
"June 2002 Note Purchase Agreement" has the meaning specified
in the recitals to this Agreement.
"Maryland Process Agent" has the meaning specified in Section
7.11(c).
"Notes" mean the December 2000 Notes, the September 2001 Note
and the June 2002 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(d).
"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.
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"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 September 7, 2001.
"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.
"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.
"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.
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"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.
"Tennessee Process Agent" has the meaning specified in
Section 7.11(b).
"Third Note Closing Date" means the issue date of the June
2002 Note sold under the June 2002 Note Purchase Agreement.
"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.
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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 First December 2000 Note. 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 Notes. Such Initial Shelf Registration
Statement shall register the offering of Initial Shelf Registrable Securities
issued or issuable upon conversion of the Second December 2000 Note and the
September 2001 Note. The Company shall promptly notify the Holders of the date
and time of declaration of effectiveness of such Initial Shelf Registration
Statement.
(c) The Company shall file an Initial Shelf Registration
Statement with the Commission not later than ten (10) Business Days following
the Third 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 Third 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 (i) the offering of Initial Shelf Registrable
Securities issued or issuable upon conversion of the June 2002 Note and (ii)
the offering of the shares of Common Stock issued to King as interest payments
on the December 2000 Notes in December 2001. The Company shall promptly notify
the Holders
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of the date and time of declaration of effectiveness of such Initial Shelf
Registration Statement.
(d) 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 Nasdaq
National Market ("Nasdaq"), file copies of the Prospectus with Nasdaq;
(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
-14-
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
-15-
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.
-16-
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: (▇▇▇) ▇▇▇-▇▇▇▇
-17-
with a copy (which shall not constitute notice) to:
Novavax, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Vice President and General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
To King:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Executive Vice President of Legal Affairs
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.
-18-
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, the
June 2002 Note Purchase Agreement and the Amended and Restated Investor Rights
Agreement (as defined in the June 2002 Note Purchase Agreement), 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, the Amended and Restated
Registration Rights Agreement dated as of September 7, 2001 between the Company
and King and the Investor Rights Agreement, as amended, 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
-19-
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, 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 initiated by
the Company each of the Company and King hereby submits to the exclusive
jurisdiction and venue of the federal courts located in and state courts of the
State of Tennessee and hereby waives any and all objections based on
jurisdiction or venue that such party may have under applicable law or the
Federal Rules of Civil Procedure. The Company 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, King shall also deliver a copy thereof to the
Company in accordance with the notice provision set forth in Section 7.5. The
Company 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 the Company 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/or 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 submits to the exclusive jurisdiction and venue of
the federal courts located in and state courts of the State of Maryland and
hereby waives any and all objections based on jurisdiction or venue that such
party may have under applicable law or the Federal Rules of Civil Procedure.
King 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 Company shall
also deliver a copy thereof to King in accordance with the notice provision set
forth in
-20-
Section 7.5. King 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 that King 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.]
-21-
IN WITNESS WHEREOF, the parties hereto have caused this Second 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 & CEO
-----------------------------------
KING:
KING PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Executive Vice President and
-----------------------------------
General Counsel
-----------------------------------
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
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
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