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EXHIBIT 7
FIRST AMENDMENT TO INVESTOR RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO INVESTOR RIGHTS AGREEMENT (this "Amendment") is
entered into as of September 7, 2001, by and between KING PHARMACEUTICALS,
INC., a Tennessee corporation ("King"), and NOVAVAX, INC., a Delaware
corporation (the "Company").
WHEREAS, King and the Company entered into an Investor Rights Agreement
dated as of December 19, 2000 (the "Agreement") and the parties now desire to
modify certain provisions of the Agreement, as more specifically set forth
below; and
WHEREAS, capitalized terms used herein but not otherwise defined herein
shall have the meanings set forth in the Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and intending to be legally bound hereby, the parties agree to
the following:
1. The following definitions are hereby added to Section 1 of the
Agreement:
"September 2001 Note" means the 4% Convertible Senior Note issued by
the Company pursuant to the September 2001 Note Purchase Agreement,
together with all Notes issued by the Company in substitution or
exchange therefor pursuant to this Agreement.
"September 2001 Note Purchase Agreement" means that certain September
2001 Note Purchase Agreement dated as of September 7, 2001, between King and
the Company.
2. The definition of "Notes" contained in Section 1 of the Agreement is
hereby deleted and replaced in its entirety with the following:
"Notes" mean the First December 2000 Note, the Second December 2000
Note, and the September 2001 Note, together with all Notes issued by
the Company in substitution or exchange therefor pursuant to this
Agreement.
3. The definition of "Conversion Price" contained in Section 1 of the
Agreement is hereby deleted and replaced in its entirety with the following:
"Conversion Price" for any Note means the Initial Conversion Price
for such Note, as adjusted pursuant to Section 2 hereof.
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4. The definition of "Initial Conversion Price" contained in Section 1
of the Agreement is hereby deleted and replaced in its entirety with the
following:
"Initial Conversion Price" means Ten Dollars ($10) for each of the
First December 2000 Note and the Second December 2000 Note. The
"Initial Conversion Price" means Thirteen Dollars and Eighty-Seven
Cents ($13.87) for the September 2001 Note.
5. The definition of "Registration Rights Agreement" contained in
Section 1 of the Agreement is hereby deleted and replaced in its entirety with
the following:
"Registration Rights Agreement" means the Amended and Restated
Registration Rights Agreement, dated as of September 7, 2001
between King and the Company.
6. The following definitions contained in Section 1 of the Agreement
are hereby amended as follows:
"First Note" shall be amended to read "First December 2000 Note".
"Second Note" shall be amended to read "Second December 2000 Note".
"Note Purchase Agreement" shall be amended to read "December 2000
Note Purchase Agreement".
7. The first sentence of Section 2.1(a) is hereby deleted in its
entirety and replaced with the following:
"Subject to and in compliance with the provisions of this Section 2,
at the option of the holder thereof, any Note may be converted in
whole or in part into fully paid and nonassessable shares
(calculated as to each conversion to the nearest one one-hundredth
of a share) of Common Stock at the Conversion Price, determined as
hereinafter provided, in effect at the close of business on the day
of conversion, but not for less than Three Hundred Fifty Thousand
(350,000) shares at a time (or such lesser number of shares which
may then constitute the maximum number purchasable; such number
being subject to adjustment as provided for herein).
8. Except as otherwise expressly provided in this Amendment, all
provisions of the Agreement are hereby ratified and agreed to be in full force
and effect, and are incorporated herein by reference.
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9. This Amendment may be executed in separate counterparts, none of
which need contain the signatures of all parties, each of which shall be deemed
to be an original, and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this Amendment to
produce or account for more than the number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto. Original
signatures transmitted by facsimile shall be acceptable to purposes of executing
this Amendment. If original signatures are transmitted by facsimile, the parties
shall endeavor in good faith to deliver to each other executed counterpart
originals as soon as practicable after the date of this Amendment.
10. This Amendment and the documents referred to herein constitute the
entire agreement among the parties and no party shall be liable or bound to any
other party in any manner by any warranties, representations, or covenants
except as specifically set forth herein or therein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the parties hereto has executed this First
Amendment to Investor Rights Agreement, or has caused this First Amendment to
Investor Rights Agreement to be duly executed and delivered in its name on its
behalf, all as of the day and year first above written.
KING PHARMACEUTICALS, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
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Title: President
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NOVAVAX, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: President and CEO
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