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Title: |
Investor Rights Agreement |
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Date: |
2000 |
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Preview shows 10KB of 87KB total |
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$51 |
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ID: |
#281722 |
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INVESTOR RIGHTS AGREEMENT
BY AND BETWEEN
NOVAVAX, INC.
AND
KING PHARMACEUTICALS, INC.
DATED AS OF DECEMBER 19, 2000
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
----
{S} {C} {C}
Section 1. DEFINITIONS...............................................................................1
Section 2. CONVERSION RIGHTS.........................................................................8
2.1 Optional Conversion.............................................................8
2.2 Mandatory Conversion............................................................8
2.3 Mechanics of Conversion.........................................................9
2.4 Undertakings by the Company....................................................10
2.5 Adjustments to Conversion Price................................................11
2.6 Effect on Conversion Price of Certain Events...................................12
2.7. Subdivision or Combination of Common Stock.....................................15
2.8. Reorganization, Reclassification, Consolidation, Merger or Sale................15
2.9. Certain Events.................................................................16
2.10. Notices........................................................................16
2.11. No Avoidance...................................................................17
2.12. Hart-Scott-Rodino..............................................................17
Section 3. MANDATORY REDEMPTION....................................................................17
Section 4. PARTIAL PREPAYMENT OF THE NOTES.........................................................18
Section 5. PURCHASE RIGHTS.........................................................................19
Section 6. REPURCHASE OF NOTES UPON A CHANGE OF CONTROL............................................19
Section 7. BOARD OF DIRECTORS......................................................................20
7.1 Effective Period of Rights.....................................................20
7.2 Board Observer Rights..........................................................20
7.3 Board Representation Rights....................................................21
Section 8. RESTRICTIVE COVENANTS....................................................................21
Section 9. INFORMATION AND INSPECTION RIGHTS........................................................23
9.1 Information Rights.............................................................23
9.2 Inspection Rights..............................................................24
9.3 Confidentiality................................................................24
Section 10. MISCELLANEOUS...........................................................................24
10.1 Remedies.......................................................................24
10.2 Consent to Amendments..........................................................25
10.3 Successors and Assigns.........................................................25
10.4 Severability...................................................................25
10.5 Counterparts...................................................................26
10.6 Descriptive Headings; Interpretation; No Strict Construction...................26
10.7 Governing Law..................................................................26
10.8 Notices........................................................................26
10.9 Jurisdiction; Venue............................................................28
10.10 Business Day...................................................................29
10.11 Delivery by Facsimile..........................................................29
{/TABLE}
{PAGE} 3
INVESTOR RIGHTS AGREEMENT
THIS INVESTOR RIGHTS AGREEMENT (this "AGREEMENT") is made as of the
19th day of December, 2000 by and between NOVAVAX, INC., a Delaware corporation
(the "COMPANY"), and KING PHARMACEUTICALS, INC., a Tennessee corporation
("KING").
WHEREAS, the Company and King have entered into a Note Purchase
Agreement, dated as of December 19, 2000, pursuant to which King has agreed to
purchase from the Company, and the Company has agreed to sell to King, 4%
Convertible Senior Notes of the Company in the aggregate principal amount of
Twenty-Five Million Dollars ($25,000,000);
WHEREAS, as of the date hereof, King has purchased from the Company,
and the Company has sold to King, a 4% Convertible Senior Note of the Company in
the aggregate principal amount of Twenty Million Dollars ($20,000,000); and
WHEREAS, in order to induce King to enter into the Note Purchase
Agreement, the Company has agreed that this Agreement shall govern the rights of
King as holder of the 4% Convertible Senior Notes and the Common Stock of the
Company issuable upon the conversion thereof, and as interest payments thereon,
and certain other matters as set forth herein.
NOW THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein contained, the
parties hereto, intending to be legally bound, agree as follows:
SECTION 1. DEFINITIONS.
The capitalized terms defined below have the following meanings when
used in this Agreement:
"AFFILIATE" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a person whether through the ownership of
voting securities, contract or otherwise and, if such Person is a partnership or
limited liability company, any partner or member thereof.
"AGREEMENT" has the meaning set forth in the Preamble.
"BOARD OBSERVER" has the meaning set forth in SECTION 7.2(a).
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
{PAGE} 4
"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.
"CHANGE OF CONTROL" means, with respect to any Person, such time as (a)
a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act) of more than fifty percent (50%) of the total voting
power of the Voting Stock of such Person on a fully diluted basis; (b)
individuals who on the Closing Date constitute the board of directors of such
Person (together with any new directors whose election by the board of directors
of such Person or whose nomination by the board of directors of such Person for
election by the stockholders of such Person was approved by a vote of at least
two-thirds of the members of the board of directors of such Person then in
office who either were members of the board of directors of such Person on the
Closing Date or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the members of the
board of directors of such Person then in office; or (c) the stockholders of
such Person approve a complete liquidation or dissolution of such Person.
"CLOSING DATE" shall mean December 19, 2000.
"COMMON STOCK" means the Common Stock, $.01 par value per share, of the
Company, any stock into which such Common Stock shall have been changed, or any
stock resulting from any capital reorganization or reclassification of such
Common Stock, and all other stock of any class or classes (however designated)
of the Company the holders of which have the right, without limitation as to
amount, either to all or to a share of the balance of current dividends and
liquidating dividends after the payment of dividends and distributions of any
shares entitled to preference.
"COMMON STOCK DEEMED OUTSTANDING" means, at any given time, the number
of shares of Common Stock actually outstanding at such time, plus the number of
shares of Common Stock deemed to be outstanding pursuant to SECTIONS 2.5(b),
whether or not the Options or Convertible Securities are actually exercisable at
such time, without duplication.
"COMPANY" has the meaning set forth in the Preamble.
"CONFIDENTIALITY AGREEMENT" has the meaning set forth in SECTION
7.2(b).
"CONVERSION PRICE" means the price used to compute the number of shares
of Common Stock to be received upon the conversion of any Note.
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