REGISTRATION RIGHTS AGREEMENT
Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of July 18, 2007, by and between DYNAVAX
TECHNOLOGIES CORPORATION, a Delaware corporation (the “Company”), DEERFIELD PRIVATE DESIGN FUND,
L.P. (“Deerfield Design”), DEERFIELD PRIVATE DESIGN INTERNATIONAL, L.P. (“Deerfield Design
International”), DEERFIELD SPECIAL SITUATIONS FUND, L.P. (“Deerfield Special Situations”),
DEERFIELD SPECIAL SITUATIONS FUND INTERNATIONAL LIMITED (“Deerfield Special Situations
International” and, together with Deerfield Design, Deerfield Design International and Deerfield
Special Situations Fund, the “Buyer”), DEERFIELD PARTNERS, L.P. (“Deerfield Partners”) and
DEERFIELD INTERNATIONAL LIMITED (“Deerfield International” and, together with Deerfield Partners,
the “Deerfield Entities”).
WHEREAS:
A. In connection with the Loan Agreement by and between certain of the parties hereto of even date
herewith (the “Loan Agreement”), the Company has agreed, upon the terms and subject to the
conditions contained therein, to issue and sell to the Buyer Warrants in the amount described in
the Loan Agreement, where each of the Warrants is exercisable into shares of the Company’s common
stock, par value $0.001 per share (the “Common Stock”), each upon the terms and conditions
and subject to the limitations and conditions set forth in the Warrants, all subject to the terms
and conditions of the Loan Agreement; and
B. To induce the Buyer to execute and deliver the Loan Agreement, the Company has agreed to provide
certain registration rights under the Securities Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute (collectively, the “Securities Act”), and
applicable state securities laws,
NOW, THEREFORE, In consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Buyer hereby agree as follows:
1. DEFINITIONS.
a. As used in this Agreement, the following terms shall have the following meanings:
(i) “Buyer” means the purchasers of Warrants pursuant to the Loan Agreement specified on the
signature page hereof, and any transferee or assignee who agrees to become bound by the provisions
of this Agreement in accordance with Section 10 hereof.
(ii) “Filing Deadline,” for each Registration Statement required to be filed hereunder, shall mean
a date that is forty-five (45) calendar days following the date the applicable Warrant is issued.
(iii) [Intentionally Deleted]
(iv) “Warrants” means the warrants issued by the Company pursuant to the Loan Agreement.
(v) “Register,” “Registered,” and “Registration” refer to a registration effected by preparing and
filing a Registration Statement or Statements in compliance with the Securities Act and pursuant to
Rule 415 under the Securities Act or any successor rule providing for offering securities on a
continuous basis, and the declaration or ordering of effectiveness of such Registration Statement
by the United States Securities and Exchange Commission (the “SEC”).
(vi) “Registrable Securities,” for a given Registration, means (a) any shares of Common Stock (the
“Warrant Shares”) issued or issuable upon exercise of or otherwise pursuant to the Warrants, (b)
1,516,401 shares of Common Stock held by Deerfield Partners, (c) 433,589 shares of Common Stock
held by Deerfield Special Situations, (d) 2,035,137 shares of Common Stock held by Deerfield
International, (e) 866,411 shares of Common Stock held by Deerfield Special Situations
International, (f) any shares of capital stock issued or issuable as a dividend on or in
exchange for or otherwise with respect to any of the foregoing, (g) any other shares of common
stock issued pursuant to the terms of the Loan Agreement, the Warrants or this Registration Rights
Agreement including, without limitation, shares of Common Stock issued upon the occurrence of a
Major Transaction (as defined in the Warrant), Event of Failure (as defined in the Warrant) and
Event of Default (as defined in the Warrant), and (i) any securities issued or issuable upon any
stock split, dividend or other distribution, recapitalization or similar event with respect to the
foregoing.
(vii) “Registration Statement(s)” means a registration statement(s) of the Company under the
Securities Act required to be filed hereunder.
(viii) “Person” means and includes any natural person, individual, partnership, joint venture,
corporation, trust, limited liability company, limited company, joint stock company, unincorporated
organization, government entity or any political subdivision or agency thereof, or any other
entity.
2. REGISTRATION.
a. MANDATORY REGISTRATION. Following the issuance of any Warrants pursuant to the Loan Agreement,
the Company shall prepare, and, on or prior to the applicable Filing Deadline (as defined above)
file with the SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3
(or, if Form S-3 is not then available, on such form of Registration Statement as is then available
to effect a registration of the Registrable Securities) covering the resale of the Registrable
Securities issued or outstanding on the applicable Issuance Date (as defined below) which
Registration Statement, to the extent allowable under the Securities Act and the rules and
regulations promulgated thereunder (including Rule 416), shall state that such Registration
Statement also covers such indeterminate number of additional shares of Common Stock as may become
issuable upon exercise of or otherwise pursuant to the Warrants to prevent dilution resulting from
stock splits, stock dividends or similar transactions. The number of shares of Common Stock
initially included in such Registration Statement shall be no less than the number of Registrable
Securities issuable or outstanding as of such date, including, without limitation, upon exercise of
Warrants, without regard to any limitation on the Buyer’s ability to exercise the Warrants. The
Company acknowledges that the number of shares initially included in each Registration Statement
represents a good faith estimate of the maximum number of shares issuable upon exercise of or
otherwise pursuant to the Warrants issued on the applicable Issuance Date and shall be amended if
not sufficient. Each Registration Statement (and each amendment or supplement thereto, and each
request for acceleration of effectiveness thereof) shall be provided to the Buyer and its counsel
prior to its filing or other submission.
b. PIGGY-BACK REGISTRATIONS. If at any time prior to the expiration of the Registration Period (as
hereinafter defined) the Company shall determine to file with the SEC a Registration Statement
relating to an offering for its own account or the account of others under the Securities Act of
any of its equity securities (other than on Form S-4 or Form S-8 or their then equivalents relating
to equity securities to be issued solely in connection with any acquisition of any entity or
business or equity securities issuable in connection with stock option or other employee benefit
plans), the Company shall send (i) to any Buyer holding 100,000 shares or more of Registrable
Securities and the Deerfield Entities written notice of such determination and, if within fifteen
(15) days after the effective date of such notice, the Buyer and the Deerfield Entities if the
Buyer shall so request in writing, the Company shall include in such Registration Statement all or
any part of the Registrable Securities a Buyer and the Deerfield Entities requests to be
registered, except that (i) in the case of a Buyer holding less than 100,000 shares of Registrable
Securities, written notice of a proposed filing of a Registration Statement shall be provided not
less than seven (7) days prior to the filing of such Registration Statement and a request from the
Buyer to include Registrable Securities in such Registration Statement shall be required to be
received within four (4) days of the Buyer’s receipt of such notice and (ii) if, in connection with
any underwritten public offering for the account of the Company, the managing underwriter(s)
thereof shall impose a limitation on the number of Registrable Securities which may be included in
the Registration Statement because, in such underwriter(s)’ judgment, marketing or other factors
dictate such limitation is necessary to facilitate public distribution, then the Company shall be
obligated to include in such Registration Statement only such limited portion of the Registrable
Securities with respect to which the Buyer and the Deerfield Entities have requested inclusion
hereunder as the underwriter shall permit;
PROVIDED, HOWEVER, that the Company shall not exclude any Registrable Securities unless the Company
has first excluded all outstanding securities, the holders of which are not entitled by contract to
inclusion of such
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securities in such Registration Statement or are not entitled to pro rata inclusion with the
Registrable Securities; and
PROVIDED, FURTHER, HOWEVER, that, after giving effect to the immediately preceding proviso, any
exclusion of Registrable Securities shall be made pro rata with holders of other securities having
the contractual right to include such securities in the Registration Statement other than holders
of securities entitled to inclusion of their securities in such Registration Statement by reason of
demand registration rights. No right to registration of Registrable Securities under this Section
2(b) shall be construed to limit any registration required under Section 2(a) hereof. If an
offering in connection with which the Buyer and the Deerfield Entities are entitled to registration
under this Section 2(b) is an underwritten offering, then the Buyer and the Deerfield Entities
shall, unless otherwise agreed by the Company, offer and sell such Registrable Securities in an
underwritten offering using the same underwriter or underwriters and, subject to the provisions of
this Agreement, on the same terms and conditions as other shares of Common Stock included in such
underwritten offering. Notwithstanding anything to the contrary set forth herein, the registration
rights of the Buyer and the Deerfield Entities pursuant to this Section 2(b) shall only be
available in the event the Company fails to timely file, obtain effectiveness or maintain
effectiveness of any Registration Statement to be filed pursuant to Section 2(a) in accordance with
the terms of this Agreement.
3. OBLIGATIONS OF THE COMPANY. In connection with the registration of the Registrable Securities,
the Company shall have the following obligations:
a. The Company shall prepare promptly, and file with the SEC as soon as practicable after each date
that any Warrants are issued under the Loan Agreement (each an “Issuance Date”) (but no later than
the Filing Deadline), a Registration Statement with respect to the number of Registrable Securities
provided in Section 2(a), and thereafter use its best efforts to (1) cause each such Registration
Statement relating to Registrable Securities to become effective as soon as possible after such
filing, and (2) keep the Registration Statement current and effective pursuant to Rule 415 at all
times until such date as is the earlier of (i) the date on which all of the Registrable Securities
for such Registration Statement have been sold and (ii) the date on which all of the Registrable
Securities for such Registration Statement (in the reasonable opinion of outside counsel to the
Buyer) may be immediately sold to the public without registration or restriction (including without
limitation as to volume by each holder thereof) under the Securities Act (the “Registration
Period”), which Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein, or necessary to make the statements therein
not misleading.
b. The Company shall prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to each Registration Statement and the prospectus used in connection
with each Registration Statement as may be necessary to keep each Registration Statement effective
at all times during the Registration Period, and, during such period, comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Securities of the Company
covered by each Registration Statement until such time as all of such Registrable Securities have
been disposed of in accordance with the intended methods of disposition by the seller or sellers
thereof as set forth in each Registration Statement. In the event that on any Trading Day (as
defined below) (the “Registration Trigger Date”) the number of shares available under the
Registration Statements filed pursuant to this Agreement is insufficient to cover all of the
applicable Registrable Securities, the Company shall amend the Registration Statements, or file a
new Registration Statement (on the short form available therefore, if applicable), or both, so as
to cover the total number of Registrable Securities so issued or issuable (without giving effect to
any limitations on exercise contained in the Warrants or limitations on conversion or exercise) as
of the Registration Trigger Date as soon as practicable, but in any event within twenty (20) days
after the Registration Trigger Date (based on the Exercise Price (as defined in the Warrant) of the
Warrants, and other relevant factors on which the Company reasonably elects to rely). The Company
shall use its best efforts to cause such amendment and/or new Registration Statement to become
effective as soon as practicable following the filing thereof. “Trading Day” shall mean any day on
which the Common Sock is traded for any period on the NASDAQ Global Market, or on the principal
securities exchange or other securities market on which the Common Stock is then being traded.
c. The Company shall furnish to the Buyer and its legal counsel and to the Deerfield Entities and
its counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC,
or received by the Company, one copy of each Registration Statement and any amendment thereto, each
preliminary prospectus and prospectus and each amendment or supplement thereto and, in the case of
a Registration Statement referred to in Section 2(a), each letter written by or on behalf of the
Company to the SEC or the staff of the SEC, and each item of correspondence
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from the SEC or the staff of the SEC, in each case relating to such Registration Statement (other
than any portion of any thereof which contains information for which the Company has sought or
intends to seek confidential treatment), and (ii) such number of copies of a prospectus, including
a preliminary prospectus, and all amendments and supplements thereto and such other documents as
the Buyer and the Deerfield Entities may reasonably request in order to facilitate the disposition
of the Registrable Securities. The Company will immediately notify the Buyer and the Deerfield
Entities by facsimile of the effectiveness of each Registration Statement or any post-effective
amendment. The Company will promptly respond to any and all comments received from the SEC, with a
view towards causing each Registration Statement or any amendment thereto to be declared effective
by the SEC as soon as practicable and shall file an acceleration request as soon as practicable,
but no later than three (3) business days, following the resolution or clearance of all SEC
comments or, if applicable, following notification by the SEC that any such Registration Statement
or any amendment thereto will not be subject to review.
d. The Company shall use best efforts to (i) register and qualify, in any jurisdiction where
registration and/or qualification is required, the Registrable Securities covered by the
Registration Statements under such other securities or “blue sky” laws of such jurisdictions in the
United States as the Buyer shall reasonably request, (ii) prepare and file in those jurisdictions
such amendments (including post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof during the Registration
Period, (iii) take such other actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such
jurisdictions, provided, however, that the Company shall not be required in connection therewith or
as a condition thereto to (x) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (y) subject itself to general taxation
in any such jurisdiction, or (z) file a general consent to service of process in any such
jurisdiction.
e. As promptly as practicable after becoming aware of such event, the Company shall notify the
Buyer and the Deerfield Entities of the happening of any event, of which the Company has knowledge,
as a result of which the prospectus included in any Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and use its best efforts
promptly to prepare a supplement or amendment to any Registration Statement to correct such untrue
statement or omission, and deliver such number of copies of such supplement or amendment to the
Buyer and the Deerfield Entities if the Buyer is not Deerfield Design Private Fund, L.P., as the
Buyer and the Deerfield Entities if the Buyer is not Deerfield Design Private Fund, L.P., may
reasonably request.
f. The Company shall use its best efforts to prevent the issuance of any stop order or other
suspension of effectiveness of any Registration Statement, and, if such an order is issued, to
obtain the withdrawal of such order at the earliest possible moment and to notify the Buyer and the
Deerfield Entities if the Buyer is not Deerfield Design Private Fund, L.P., who holds Registrable
Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of
the issuance of such order and the resolution thereof.
g. The Company shall permit a single firm of counsel designated by the Buyer to review such
Registration Statement and all amendments and supplements thereto (as well as all requests for
acceleration or effectiveness thereof), at Buyer’s own cost, a reasonable period of time prior to
their filing with the SEC (not less than three (3) business days but not more than eight (8)
business days) and not file any document in a form to which such counsel reasonably objects and
will not request acceleration of such Registration Statement without prior notice to such counsel.
h. The Company shall hold in confidence and not make any disclosure of information concerning the
Buyer and the Deerfield Entities provided to the Company unless (i) disclosure of such information
is necessary to comply with federal or state securities laws or rules of any securities exchange or
trading market on which the Company’s securities are then listed or traded, (ii) the disclosure of
such information is necessary to avoid or correct a misstatement or omission in any Registration
Statement, (iii) the release of such information is ordered pursuant to a subpoena or other order
from a court or governmental body of competent jurisdiction, or (iv) such information has been made
generally available to the public other than by disclosure in violation of this or any other
agreement. The Company agrees that it shall, upon learning that disclosure of such information
concerning the Buyer and the Deerfield Entities is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt notice to the Buyer and the Deerfield
Entities prior to making such disclosure, and allow the Buyer and the Deerfield Entities, at their
expense, to undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, such information.
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i. The Company shall use its best efforts to cause all the Registrable Securities covered by each
Registration Statement to be listed on each securities exchange on which securities of the same
class or series issued by the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange, and, if listed on a national
exchange, to arrange for at least two market makers to register with the National Association of
Securities Dealers, Inc. (“NASD”) as such with respect to such Registrable Securities.
j. The Company shall provide a transfer agent and registrar, which may be a single entity, for the
Registrable Securities not later than the effective date of the initial Registration Statement.
k. The Company shall cooperate with the holders of Registrable Securities being offered (including
securities that are exercisable or convertible for Registrable Securities) and the managing
underwriter or underwriters with respect to an applicable Registration Statement, if any, to
facilitate the timely preparation and delivery of certificates or shares (in either case not
bearing any restrictive legends) representing Registrable Securities to be offered pursuant to such
Registration Statement in such denominations or amounts, as the case may be, as the managing
underwriter or underwriters, if any, or such holders may reasonably request and registered in such
names as the managing underwriter or underwriters, if any, or such holders and the Deerfield
Entities may request, and, within three (3) business days after a Registration Statement which
includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and
shall cause legal counsel selected by the Company to deliver, to the transfer agent for the
Registrable Securities (with copies to such holders) an appropriate instruction and an opinion of
such counsel in the form required by the transfer agent in order to issue the Registrable
Securities free of restrictive legends.
l. At the request of the Buyer and the Deerfield Entities, the Company shall prepare and file with
the SEC such amendments (including post-effective amendments) and supplements to a Registration
Statement and any prospectus used in connection with the Registration Statement as may be necessary
in order to change the plan of distribution set forth in such Registration Statement.
m. The Company shall not, and shall not agree to, allow the holders of any securities of the
Company to include any of their securities in any Registration Statement under Section 2(a) hereof
or any amendment or supplement thereto under Section 3(b) hereof without the consent of the Buyer
and, if the Buyer is not Deerfield Private Design Fund, L.P., the Deerfield Entities. In addition,
the Company shall not offer any securities for its own account or the account of others in any
Registration Statement under Section 2(a) hereof or any amendment or supplement thereto under
Section 3(b) hereof without the consent of the Buyer and if the Buyer is not Deerfield Design
Private Fund, L.P., the Deerfield Entities.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate
disposition by the Buyer and the Deerfield Entities of Registrable Securities pursuant to a
Registration Statement.
o. The Company shall comply with all applicable laws related to a Registration Statement and
offering and sale of securities and all applicable rules and regulations of governmental
authorities in connection therewith (including without limitation the Securities Act and the
Exchange Act and the rules and regulations promulgated by the SEC).
p. NASD Rule 2710 Filing; Broker Compensation. If required by the National Association of
Securities Dealers, Inc. Corporate Financing Department, the Company shall promptly effect a filing
with the NASD pursuant to NASD Rule 2710 with respect to the public offering contemplated by
resales of securities under the Registration Statement (an “Issuer Filing”), and pay the filing fee
required by such Issuer Filing. The Company shall use best efforts to pursue the Issuer Filing
until the NASD issues a letter confirming that it does not object to the terms of the offering
contemplated by the Registration Statement.
q. Notwithstanding anything to the contrary herein, at any time after the Registration Statement
has been declared effective by the SEC, the Company may delay or suspend the effectiveness of any
Registration Statement or the use of any prospectus forming a part of the Registration Statement
due to the non-disclosure of material, non-public information concerning Company the disclosure of
which at the time is not in its best interest, in the good faith opinion of the Company (a “Grace
Period”); provided, that the Company shall promptly notify the Buyer and the Deerfield Entities in
writing of the existence of a Grace Period in conformity with the provisions of this Section 3(q)
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and the date on which the Grace Period will begin (such notice, a “Commencement Notice”); and,
provided further, that no Grace Period shall exceed 30 days, and such Grace Periods shall not
exceed an aggregate total of 60 days during any 360 day period. For purposes of determining the
length of a Grace Period above, the Grace Period shall begin on and include the date specified by
the Company in the Commencement Notice and shall end on and include the date the Buyer and the
Deerfield Entities receive written notice of the termination of the Grace Period by the Company
(which notice may be contained in the Commencement Notice). The provisions of Section 3(e) hereof
shall not be applicable during any Grace Period. Upon expiration of the Grace Period, the Company
shall again be bound by Section 3(e) with respect to the information giving rise thereto unless
such material, non-public information is no longer applicable.
4. OBLIGATIONS OF THE BUYER AND THE DEERFIELD ENTITIES. In connection with the registration of the
Registrable Securities, the Buyer and the Deerfield Entities shall have the following obligations:
a. It shall be a condition precedent to the obligations of the Company to complete the registration
pursuant to this Agreement with respect to the Registrable Securities that the Buyer and the
Deefield Entities shall furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable Securities held by
it as shall be reasonably required to effect the registration of such Registrable Securities and
shall execute such documents in connection with such registration as the Company may reasonably
request. At least five (5) business days prior to the first anticipated filing date of the
Registration Statement, the Company shall notify the Buyer and the Deerfield Entities of the
information the Company requires from each Buyer and the Deerfield Entities.
b. The Buyer and the Deefield Entities agree to cooperate with the Company as reasonably requested
by the Company in connection with the preparation and filing of a Registration Statement hereunder,
unless either the Buyer and the Deefield Entities has notified the Company in writing of its
election to exclude all of the Registrable Securities held by Buyer or the Deerfield Entities, as
the case may be, from such Registration Statement.
c. In the event of an underwritten offering pursuant to Section 2(b) in which any Registrable
Securities are to be included, each of the Buyer and the Deefield Entities agrees to enter into and
perform the obligations under an underwriting agreement, in usual and customary form, including,
without limitation, customary indemnification and contribution obligations, with the managing
underwriter of such offering and take such other actions as are reasonably required in order to
expedite or facilitate the disposition of the Registrable Securities, unless the Buyer or any of
the Deefield Entities have notified the Company in writing of its election to exclude all of the
Registrable Securities held by the party electing to exclude its Registrable Securities from such
Registration Statement.
d. Each of the Buyer and the Deefield Entities agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(e) or 3(f), the Buyer and
the Deerfield Entities will immediately discontinue disposition of Registrable Securities pursuant
to the Registration Statement covering such Registrable Securities until the receipt of the copies
of the supplemented or amended prospectus contemplated by Section 3(e) or 3(f) and, if so directed
by the Company, the Buyer and the Deefield Entities shall deliver to the Company (at the expense of
the Company) or destroy (and deliver to the Company a certificate of destruction) all copies in the
Buyer’s and the Deefield Entities’ possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.
5. REGISTRATION FAILURE. In the event of a Registration Failure (as defined in the Warrant), the
Buyer shall be entitled to Failure Payments (as defined in the Warrant) and such other rights as
set forth in the Warrant.
6. EXPENSES OF REGISTRATION. All reasonable expenses, other than underwriting discounts and
commissions, incurred in connection with registrations, filings or qualifications pursuant to
Sections 2 and 3, including, without limitation, all registration, listing and qualification fees,
printers and accounting fees, and the fees and disbursements of counsel for the Company shall be
borne by the Company.
7. INDEMNIFICATION. In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
a. The Company will indemnify, hold harmless and defend (i) the Buyer, (ii) the Deerfield Entities,
(iii) the
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directors, officers, partners, managers, members, employees, agents and each person who controls
any Buyer or the Deerfield Entities within the meaning of the Securities Act or the Exchange Act,
if any, (iv) any underwriter (as defined in the Securities Act) for the Buyer or the Deerfield
Entities in connection with an underwritten offering pursuant to Section 2(b) hereof, and (iv) the
directors, officers, partners, employees and each person who controls any such underwriter within
the meaning of the Securities Act or the Exchange Act, if any (each, a “Non-Company Indemnified
Person”), against any joint or several losses, claims, damages, liabilities or expenses
(collectively, together with actions, proceedings or inquiries by any regulatory or self-regulatory
organization, whether commenced or threatened, in respect thereof, “Claims”) to which any of them
may become subject insofar as such Claims arise out of or are based upon: (i) any untrue statement
or alleged untrue statement of a material fact in a Registration Statement or the omission or
alleged omission to state therein a material fact required to be stated or necessary to make the
statements therein not misleading; (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus if used prior to the effective date of such
Registration Statement, or contained in the final prospectus (as amended or supplemented, if the
Company files any amendment thereof or supplement thereto with the SEC) or the omission or alleged
omission to state therein any material fact necessary to make the statements made therein, in light
of the circumstances under which the statements therein were made, not misleading; or (iii) any
violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other
law, including, without limitation, any state securities law, or any rule or regulation thereunder
relating to the offer or sale of the Registrable Securities (the matters in the foregoing clauses
(i) through (iii) being, collectively, “Violations”). The Company shall reimburse the Non-Company
Indemnified Person, promptly as such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 7(a) (A) shall not apply to a Claim
arising out of or based upon a Violation to the extent that such Violation occurs in reliance upon
and in conformity with information furnished in writing to the Company by any Non-Company
Indemnified Person expressly for use in connection with such Registration Statement or any such
amendment thereof or supplement thereto; (B) with respect to any preliminary prospectus, shall not
inure to the benefit of any such Person from whom the Person asserting any such Claim purchased the
Registrable Securities that are the subject thereof (or to the benefit of any Person controlling
such Person) if the untrue statement or omission of material fact contained in the preliminary
prospectus was corrected in the prospectus, as then amended or supplemented, if such prospectus was
timely made available by the Company pursuant to Section 3(d), and the Non-Company Indemnified
Person was promptly advised in writing not to use the incorrect prospectus prior to the use giving
rise to a violation and such Non Company Indemnified Person, notwithstanding such advice, used it
or failed to deliver the correct prospectus as required by the Securities Act and such correct
prospectus was timely made available pursuant to Section 3(d); (C) shall not be available to the
extent such Claim is based on a failure of the Non-Company Indemnified Person to deliver or to
cause to be delivered the prospectus made available by the Company, including a corrected
prospectus, if such prospectus or corrected prospectus was timely made available by the Company
pursuant to Section 3(d); and (D) shall not apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written consent of the Company, which consent shall
not be unreasonably withheld or delayed. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Non-Company Indemnified Person and
shall survive the transfer of the Registrable Securities by the Buyer pursuant to Section 10 and
shall be binding upon such transferee.
b. The Buyer, if the Buyer is not Deerfield Private Design Fund, L.P., the Deerfield Entities,
severally and not jointly, indemnify and hold harmless (i) the Company, and (ii) the directors,
officers, partners, managers, members, employees, or agents of the Company, if any (each, a
“Company Indemnified Person”), against any Claims to which any of them may become subject insofar
as such Claims arise out of or are based upon any Violation, to the extent such Violation occurs
due to the inclusion by the Company in a Registration Statement of false or misleading information
about the Buyer or the Deerfield Entities, where such information was furnished in writing to the
Company by the Buyer or the Deerfield Entities expressly for inclusion in such Registration
Statement. The Buyer or Deerfield Entities, as applicable, shall reimburse the Company Indemnified
Person, promptly as such expenses are incurred and are due and payable, for any reasonable legal
fees or other reasonable expenses incurred by them in connection with investigating or defending
any such Claim, provided however, that the indemnity agreement contained in this Section 7(b) and
the agreement with respect to contribution contained in Section 8 shall not apply to amounts paid
in settlement of any Claim if such settlement is effected without the prior written consent of the
Buyer and the Deerfield Entities which consent shall not be unreasonably withheld or delayed;
provided, further, however, that the Buyer and the Deerfield Entities if the Buyer is not Deerfield
Design Private Fund, L.P. shall be
7
liable under this Section 7(b) for only that amount of a Claim as does not exceed the net amount of
proceeds received by Buyer or the Deerfield Entities if the Buyer is not Deerfield Design Private
Fund, L.P., respectively, as a result of the sale of Registrable Securities pursuant to such
Registration Statement. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Company Indemnified Person. Notwithstanding anything to
the contrary contained herein, the indemnification agreement contained in this Section 7(b) with
respect to any preliminary prospectus shall not inure to the benefit of any Company Indemnified
Person if the untrue statement or omission of material fact contained in the preliminary prospectus
was corrected on a timely basis in the prospectus, as then amended or supplemented.
c. Promptly after receipt by a Non-Company Indemnified Person or a Company Indemnified Person (each
an “Indemnified Person”) under this Section 7 of notice of the commencement of any action
(including any governmental action), such Indemnified Person shall, if a Claim in respect thereof
is to be made against the Company, the Buyer or the Deerfield Entities (each an “Indemnifying
Person”) under this Section 7, deliver to the Indemnifying Person a written notice of the
commencement thereof enclosing a copy of all relevant documents, including all papers served and
claims made, but the failure to deliver written notice to the Indemnifying Person within a
reasonable time of the commencement of any such action shall not relieve the Indemnifying Person of
any liability to the Indemnified Person under this Section 7, except to the extent that the
Indemnifying Person is actually prejudiced in its ability to defend such action. The
indemnification required by this Section 7 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss, damage or liability is
incurred and is due and payable.
d. In the event a Claim is made against an Indemnified Person and it shall notify the applicable
Indemnifying Person of the commencement thereof as provided by Section 7(c), such Indemnifying
Person shall be entitled to participate in, and provided such Claim is solely for money damages and
does not seek an injunction or other equitable relief against the Indemnified Person and is not a
criminal or regulatory action, to assume the defense of, such Claim with counsel reasonably
satisfactory to such Indemnified Person, and after notice from such Indemnifying Person to such
Indemnified Person of such Indemnifying Person’s election so to assume the defense thereof and the
failure by such Indemnified Person to object to such counsel within ten (10) business days
following its receipt of such notice, such Indemnifying Person shall not be liable to such
Indemnified Person for legal or other expenses related to such Claim incurred after such notice of
election to assume such defense except as provided below and except for the reasonable costs of
investigating, monitoring or cooperating in such defense subsequently incurred by such Indemnified
Person reasonably necessary in connection with the defense thereof. Such Indemnified Person shall
have the right to employ its counsel in any such Claim, but the reasonable fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless:
(i) the engagement of counsel by such Indemnified Person at the expense of the applicable
Indemnifying Person has been authorized in writing by such Indemnifying Person;
(ii) such Indemnified Person shall have reasonably concluded in its good faith (which
conclusion shall be determinative unless a court determines that such conclusion was not reached
reasonably and in good faith) that there is or may be a conflict of interest between the applicable
Indemnifying Person and such Indemnified Person in the conduct of the defense of such Claim or that
there are or may be one or more different or additional defenses, claims, counterclaims, or causes
of action available to such Indemnified Person (it being agreed that in any case referred to in
this clause (ii) such Indemnifying Person shall not have the right to direct the defense of such
Claim on behalf of the Indemnified Person);
(iii) the applicable Indemnifying Person shall not have engaged counsel reasonably acceptable
to the Indemnified Person, to assume the defense of such Claim within a reasonable time after
notice of the commencement thereof, provided however, this clause shall not be deemed to constitute
a waiver of any conflict of interest that may arise with respect to any such counsel); or
(iv) any counsel engaged by the applicable Indemnifying Person shall fail to timely commence or
diligently conduct the defense of such Claim and such failure has materially prejudiced (or, in the
reasonable judgment of the Indemnified Person, is in danger of materially prejudicing) the outcome
of such Claim;
In each instance of (i) through (iv) above, the reasonable fees and expenses of counsel for such
Indemnified Person
8
shall be at the expense of such Indemnifying Person. Only one counsel shall be retained by all
Indemnified Persons with respect to any Claim, unless counsel for any Indemnified Person reasonably
concludes in good faith (which conclusion shall be determinative unless a court determines that
such conclusion was not reached reasonably and in good faith) that there is or may be a conflict of
interest between such Indemnified Person and one or more other Indemnified Persons in the conduct
of the defense of such Claim or that there are or may be one or more different or additional
defenses, claims, counterclaims, or causes or action available to such Indemnified Person.
8. CONTRIBUTION. To the extent any indemnification by the Company, Buyer or the Deerfield Entities
is prohibited or limited by law, each of the Company, the Buyer and the Deerfield Entities agree to
make the maximum contribution with respect to any amounts for which it would otherwise be liable
under Section 7 to the fullest extent permitted by law, based upon a comparative fault standard,
provided, however, that (i) no Person that is guilty of fraudulent misrepresentation (within the
meaning Section 11(f) of the Securities Act) in connection with such sale shall be entitled to
contribution from any Person who was not guilty of fraudulent misrepresentation; and (ii)
contribution by any seller of Registrable Securities shall be limited in amount to the net amount
of proceeds received by such seller from the sale of such Registrable Securities pursuant to such
Registration Statement.
9. REPORTS UNDER THE 1934 ACT. With a view to making available to the Buyer and the Deerfield
Entities the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or
regulation of the SEC that may at any time permit the Buyer and the Deerfield Entities to sell
securities of the Company to the public without registration the Company agrees to:
a. make and keep public information available, as those terms are understood and defined in Rule
144;
b. file with the SEC in a timely manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act so long as the Company remains subject to such
requirements and the filing of such reports and other documents is required for the applicable
provisions of Rule 144; and
c. furnish to the Buyer and the Deerfield Entities so long as the Buyer and the Deerfield Entities
own Registrable Securities (or securities convertible or exercisable into Registrable Securities),
promptly upon request, (i) a written statement by the Company that it has complied with the
reporting requirements of the Securities Act and the Exchange Act as required for applicable
provisions of Rule 144, (ii) a copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company, and (iii) such other information as
may be reasonably requested to permit the Buyers to sell such securities pursuant to Rule 144
without registration.
10. ASSIGNMENT OF REGISTRATION RIGHTS. The rights under this Agreement shall be automatically
assignable to any transferee(s) of all or any portion of the Registrable Securities (or securities
convertible or exercisable into Registrable Securities) if: (i) the Buyer agrees in writing with
the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment, (ii) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of (a) the name and address
of such transferee or assignee, and (b) the securities with respect to which such registration
rights are being transferred or assigned, and (iii) at or before the time the Company receives the
written notice contemplated by clause (ii) of this sentence, the transferee or assignee agrees in
writing with the Company to be bound by all of the provisions contained herein. In the event that
the Buyer transfers all or any portion of its Registrable Securities pursuant to this Section, the
Buyer shall promptly notify the Company in writing of such transfer, and the Company shall
thereafter have at least ten (10) days to file any amendments or supplements necessary to keep the
Registration Statement current and effective pursuant to Rule 415, and the commencement date of any
Event of Failure (as defined in the Warrants) or Event of Default (as defined in the Warrants)
under Warrants caused thereby will be extended by ten (10) days.
11. AMENDMENT OF REGISTRATION RIGHTS. Provisions of this Agreement may be amended and the
observance thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with written consent of the Company, the Buyer and the
Deerfield Entities (to the extent such Buyer or the Deerfield Entities still owns Registrable
Securities and solely with respect to the Registrable Securities of such Buyer or the Deerfield
Entities). Any amendment or waiver effected in accordance with this Section 11 shall be binding
upon the Buyer and the Company.
9
12. MISCELLANEOUS.
a. A person or entity is deemed to be a holder of Registrable Securities whenever such person or
entity owns of record or beneficially through a “street name” holder such Registrable Securities.
If the Company receives conflicting instructions, notices or elections from two or more persons or
entities with respect to the same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from the registered owner of such Registrable Securities.
b. Any notices required or permitted to be given under the terms hereof shall be in writing and
shall be deemed given only if delivered by certified or registered mail (return receipt requested)
with postage and registration or certification fees thereon prepaid, or delivered personally or by
courier (including a recognized overnight delivery service) or by facsimile, in each case addressed
to a party. The addresses for such communications shall be:
If to the Company:
Dynavax Technologies Corporation
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Chief Executive Officer
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Chief Executive Officer
With copy to:
Cooley Godward Kronish LLP
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Fax: (000) 000-0000
Attn: Xxxx Xxxx, Esq.
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Fax: (000) 000-0000
Attn: Xxxx Xxxx, Esq.
If to a Buyer:
Deerfield Private Design Fund, L.P.
x/x Xxxxxxxxx Xxxxxxx, X.X.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxx
x/x Xxxxxxxxx Xxxxxxx, X.X.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxx
With a copy to:
Xxxxxx Xxxxxx Xxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Elliot Press, Esq.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Elliot Press, Esq.
If to the Deerfield Entities:
Deerfield Capital, L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxx
10
With a copy to:
Xxxxxx Xxxxxx Rosenman LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Elliot Press, Esq.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Elliot Press, Esq.
Each party shall provide notice to the other party of any change in address.
c. Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay
by a party in exercising such right or remedy, shall not operate as a waiver thereof.
d. Governing Law. All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed and enforced in accordance with
the internal laws of the State of New York, without regard to the principles of conflicts of law
thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement (whether brought against a party
hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall
be commenced exclusively in the state and federal courts sitting in the City of New York. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in the City of New York, borough of Manhattan for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that such suit, action or
proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby
irrevocably waives personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight
delivery (with evidence of delivery) to such party at the address in effect for notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve
process in any other manner permitted by law. The parties hereby waive all rights to a trial by
jury. If either party shall commence an action or proceeding to enforce any provisions of the this
Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other
party for its reasonable attorneys’ fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or proceeding.
e. This Agreement, the Warrants and the Loan Agreement (including all schedules and exhibits
thereto) constitute the entire agreement among the parties hereto with respect to the subject
matter hereof and thereof. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein and therein. This Agreement, the Warrants and the Loan
Agreement supersede all prior agreements and understandings among the parties hereto with respect
to the subject matter hereof and thereof.
f. Subject to the requirements of Section 10 hereof, this Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto.
g. The headings in this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
h. This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same agreement. This Agreement, once
executed by a party, may be delivered to the other party hereto by facsimile transmission of a copy
of this Agreement bearing the signature of the party so delivering this Agreement.
i. Each party shall do and perform, or cause to be done and performed, all such further acts and
things, and shall execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
11
j. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable
harm to the Buyer by vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, the Company acknowledges that the remedy at law for breach of its obligations
hereunder will be inadequate and agrees, in the event of a breach or threatened breach by the
Company of any of the provisions hereunder, that the Buyer and the Deerfield Entities shall be
entitled, in addition to all other available remedies in law or in equity, to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof, without the necessity of showing economic loss and
without any bond or other security being required.
k. The language used in this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent, and no rules of strict construction will be applied against any party.
l. In the event that any provision of this Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed inoperative to the extent
that it may conflict therewith and shall be deemed modified to conform with such statute or rule of
law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect
the validity or enforceability of any other provision hereof.
m. In the event a Buyer shall sell or otherwise transfer any of such holder’s Registrable
Securities, each transferee shall be allocated a pro rata portion of the number of Registrable
Securities included in a Registration Statement for such transferor.
n. There shall be no oral modifications or amendments to this Agreement. This Agreement may be
modified or amended only in writing.
12
IN WITNESS WHEREOF, the undersigned Buyer and the Company have caused this Agreement to be duly
executed as of the 18th day of July, 2007.
| COMPANY: | BUYER: | |||||||||
| DYNAVAX TECHNOLOGIES CORPORATION | DEERFIELD PRIVATE DESIGN FUND, L.P. | |||||||||
By:
|
By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| DEERFIELD PARTNERS, L.P. | DEERFIELD PRIVATE DESIGN INTERNATIONAL, L.P. |
|||||||||
By:
|
By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| DEERFIELD INTERNATIONAL LIMITED | DEERFIELD SPECIAL SITUATIONS FUND, L.P. | |||||||||
By:
|
By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| DEERFIELD SPECIAL SITUATIONS FUND INTERNATIONAL LIMITED |
||||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
13
