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EXHIBIT 4.16
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of October 10, 2000, by
and among AVIRON, a Delaware corporation (the "Company"), and EVANS VACCINES
LIMITED ("Evans").
RECITALS
A. Concurrent with the date hereof, the Company and Evans entered into
an agreement (the "Manufacturing Agreement") relating to the manufacture of the
Company's intranasal flu vaccine, FluMist(TM).
B. In connection with the Manufacturing Agreement, the Company agreed to
issue to Evans a total of six (6) warrants (each, a "Warrant") to purchase an
aggregate total of sixty three thousand one hundred sixty two (63,162) shares
(ten thousand five hundred twenty seven (10,527) shares per Warrant) of the
Company's common stock, par value $0.001 (the "Shares"), pursuant to the terms
as set forth in each Warrant.
The parties hereto hereby agree as follows:
1. DEMAND REGISTRATION
(a) Except as provided in Section 1(d) below, the Company shall,
as expeditiously as possible, but in no event later than ninety (90) days of the
date hereof, prepare and file a registration statement on Form S-3 with the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended (the "Securities Act"), to register the resale of the Registrable
Securities (as defined below) by Evans (the "Registration Statement") and to use
its best efforts to cause the Registration Statement to be declared effective as
soon as possible. In the event that at any time the filing of such Registration
Statement is undertaken or is required to be undertaken the Company fails to
qualify for use of Form S-3 (or other available form for similar type securities
registration) for purposes of registering for resale the Shares, the Company
shall cause a registration statement on Form S-1 (or other available form for
similar type securities registration) to be filed as soon as practicable
thereunder. Evans agrees to furnish promptly to the Company in writing all
information reasonably required by the Company to file such Registration
Statement.
For purposes of this Agreement, "Registrable Securities" means the
Shares issued and/or issuable to Evans upon exercise of the Warrants, or upon
any stock split, stock dividend, recapitalization or similar event with respect
to such Shares, but only to the extent and so long as Shares constitute
"restricted securities" under Rule 144 under the Securities Act. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities on the seventh anniversary of the date hereof.
(b) The Company shall pay all Registration Expenses (as defined
below) in connection with any registration, qualification or compliance
hereunder, and Evans shall pay all Selling Expenses (as defined below).
"Registration Expenses" shall mean all expenses, except for Selling Expenses,
incurred by the Company in complying with the registration provisions herein
described, including, without limitation, all registration, qualification and
filing fees,
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printing expenses, escrow fees, fees and disbursements of counsel and
independent public accountants for the Company, blue sky fees, transfer agent
fees and expenses and the expense of any special audits incident to or required
by any such registration. "Selling Expenses" shall mean selling commissions,
underwriting fees and stock transfer taxes applicable to the Registrable
Securities.
(c) In the case of the registration effected by the Company
pursuant to these registration provisions, the Company will use its best efforts
to: (i) keep such registration effective with respect to the Registrable
Securities until the earliest of (A) the seventh anniversary of the effective
date of the registration statement, (B) such date as all of the Registrable
Securities have been resold or (C) such time as all of the Registrable
Securities held by Evans and registered thereunder can be sold without
restriction pursuant to Rule 144 under the Securities Act; (ii) prepare and file
with the SEC such amendments and supplements to the Registration Statement and
the prospectus used in connection with the Registration Statement as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by the Registration Statement; (iii)
furnish such number of prospectuses and other documents incident thereto,
including any amendment of or supplement to the prospectus, as Evans from time
to time may reasonably request in order to facilitate the public sale or other
disposition of all or any of the Registrable Securities held by Evans; (iv)
cause all Registrable Securities registered as described herein to be listed on
each securities exchange and quoted on each quotation service on which similar
securities issued by the Company are then listed or quoted; (v) provide a
transfer agent and registrar for all Registrable Securities registered pursuant
to the Registration Statement and a CUSIP number for all such Registrable
Securities; (vi) otherwise use its best efforts promptly to comply with all
applicable rules and regulations of the SEC; and (vii) file the documents
required of the Company and otherwise use its best efforts promptly to obtain,
if applicable, and maintain requisite blue sky clearance in (A) all
jurisdictions in which any of the Registrable Securities are originally sold and
(B) all other states specified in writing by Evans, provided as to clause (B),
however, that the Company shall not be required to qualify to do business or
consent to service of process in any state in which it is not now so qualified
or has not so consented. The Company shall use its best efforts to qualify for
use of Form S-3 or other similar form then available under the Securities Act to
register the resale of the Registrable Securities and to maintain such
qualification during the periods described in clause (i) above.
(d) The Company may delay the filing of the Registration
Statement for up to forty-five (45) days by giving written notice to Evans if
the Board of Directors of the Company shall have determined in good faith that
the Company may be required to disclose any material corporate development which
disclosure may have a material effect on the Company.
(e) Following the effectiveness of the Registration Statement,
the Company may, at any time, but not more than once in any six-month period,
suspend the effectiveness of such registration statement for up to 30 days, as
appropriate (a "Suspension Period"), by giving notice to Evans, if the Company
shall have determined that the Company may be required to disclose any material
corporate development which disclosure may have a material effect on the
Company. The Company agrees to use commercially reasonable efforts to minimize
the length of any such suspension. The duration of any Suspension Period shall
be added to the period of time that the Company agrees to keep the Registration
Statement effective. Evans agrees that,
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upon receipt of any notice from the Company of a Suspension Period, Evans shall
forthwith discontinue disposition of shares covered by such Registration
Statement or prospectus until Evans (i) is advised in writing by the Company
that the use of the applicable prospectus may be resumed, (ii) has received
copies of a supplemental or amended prospectus, if applicable, and (iii) has
received copies of any additional or supplemental filings which are incorporated
or deemed to be incorporated by reference in such prospectus.
(f) The Company will, as expeditiously as possible, notify Evans
(i) of the effective date of the Registration Statement and the date when any
post-effective amendment the Registration Statement becomes effective; (ii) of
any stop order or notification from Securities and Exchange Commission or any
other jurisdiction as to the suspension of the effectiveness of the Registration
Statement; and (iii) of the end of any suspension hereunder.
(g) With a view to making available to Evans the benefits of
Rule 144 and any other rule or regulation of the SEC that may at any time permit
Evans to sell Registrable Securities to the public without registration or
pursuant to registration, the Company covenants and agrees to: (i) make and keep
public information available, as those terms are understood and defined in Rule
144, until the earlier of (A) the seventh anniversary of the Closing Date or (B)
such date as all of the Registrable Securities shall have been resold; (ii) file
with the SEC in a timely manner all reports and other documents required of the
Company under the Securities Exchange Act of 1934, as amended (the "Exchange
Act) and maintain registration of its Common Stock under Section 12 of the
Exchange Act; and (iii) furnish to Evans upon request, as long as Evans owns any
Registrable Securities, (A) a written statement by the Company that it has
complied with the reporting requirements of the Exchange Act, (B) a copy of the
most recent annual or quarterly report of the Company, and (C) such other
information as may be reasonably requested in order to avail Evans of any rule
or regulation of the SEC that permits the selling of any such Registrable
Securities without registration
(h) The obligation to request the Company to file any
Registration Statement shall not be assignable.
2. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify Evans and hold Evans
harmless from and against any losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) to which Evans may become subject (under the
Securities Act, Exchange Act, state securities laws or otherwise) insofar as
such losses, claims, damages or liabilities (or actions proceedings or
settlements in respect thereof) arise out of, or are based upon, (i) any untrue
statement (or alleged untrue statement) of a material fact contained in the
Registration Statement, on the effective date thereof or any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, (ii) the omission or the alleged omission of a material fact required
to be stated therein or necessary to make the statements therein not misleading
or (iii) any failure by the Company (or its agents) to fulfill any undertaking
included in the Registration Statement, and the Company will, as incurred,
reimburse Evans for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, loss, damage,
proceeding or claim; provided, however, that the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of, or is
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based upon (i) an untrue statement (or omission) made in such Registration
Statement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of Evans specifically for use in preparation of
the Registration Statement, or (ii) any untrue statement (or omission) in any
Prospectus that is corrected in any subsequent Prospectus that was delivered to
Evans by the Company prior to the pertinent sale or sales by Evans. The Company
will reimburse Evans for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim notwithstanding the absence of a judicial determination as to the
propriety and enforceability of the obligations under this section and the
possibility that such payments might later be held to be improper, provided,
that (i) to the extent any such payment is ultimately held to be improper, the
persons receiving such payments shall promptly refund them and (ii) such persons
shall provide to the Company, upon request, reasonable assurances of their
ability to effect any refund, when and if due.
(b) Evans agrees to indemnify and hold harmless the Company from
and against any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) to which the Company may become subject (under
the Securities Act or otherwise) insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon (i) an untrue statement made in such Registration Statement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of Evans specifically for use in preparation of the
Registration Statement, provided, however, that Evans shall not be liable in any
such case for any untrue statement included in any Prospectus which statement
has been corrected, in writing, by Evans and delivered to the Company before the
sale from which such loss occurred, or (ii) any untrue statement in any
Prospectus that is corrected in any subsequent Prospectus that was delivered to
Evans prior to the pertinent sale or sales by Evans, provided, further, however,
that the liability of Evans hereunder shall be limited to the proceeds received
by Evans from the sale of the Registrable Securities covered by such
Registration Statement; and provided, further, however, that the obligations of
Evans hereunder shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, or action settlement is effected without the consent
of Evans. Evans will reimburse the Company for any legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such
action, proceeding or claim up to the limits set forth herein notwithstanding
the absence of a judicial determination as to the propriety and enforceability
of the obligations under this section and the possibility that such payments
might later be held to be improper, provided, that (i) to the extent any such
payment is ultimately held to be improper, the persons receiving such payments
shall promptly refund them and (ii) such persons shall provide to Evans, upon
request, reasonable assurances of their ability to effect any refund, when and
if due.
(c) Promptly after receipt by any indemnified person of a notice
of a claim or the commencement of any action in respect of which indemnity is to
be sought against an indemnifying person pursuant to this Section 2, such
indemnified person shall notify the indemnifying person in writing of such claim
or of the commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person and the indemnifying person shall have been notified thereof,
the indemnifying person shall be entitled to participate therein, and, to the
extent that it shall wish, to assume and undertake the defense thereof, with
counsel reasonably satisfactory to the indemnified person. After notice from the
indemnifying person to such indemnified person of
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the indemnifying person's election to assume and undertake the defense thereof,
the indemnifying person shall not be liable to such indemnified person for any
legal expenses subsequently incurred by such indemnified person in connection
with the defense thereof; provided, however, that if there exists or shall exist
a conflict of interest that would make it inappropriate in the reasonable
judgment of the indemnified person for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person.
(d) If the indemnification provided for in this Section 2 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions proceedings or settlements in respect thereof) referred
to therein, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and Evans on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or Evans on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and Evans agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), Evans shall not be required to contribute any
amount in excess of the amount by which the amount received by Evans (net of
Selling Expenses) from the sale of the Registrable Securities to which such loss
relates exceeds the amount of any damages which Evans has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. 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.
(e) The obligations of the Company and Evans under this Section
2 shall be in addition to any liability which the Company and Evans may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Company or Evans within the meaning of the
Securities Act.
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3. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not.
(b) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(c) COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(d) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(e) GOVERNING LAW. All issues and questions concerning the
construction, validity, interpretation and enforcement of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of California, without giving effect to any choice
of law or conflict of law rules or provisions (whether of the State of
California or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of California.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
AVIRON,
a Delaware corporation
By: /s/ Fred Kurland
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Fred Kurland
Senior Vice President and Chief
Financial Officer
EVANS VACCINES LIMITED
By: /c/ C.S.W. Swingland
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C.S.W. Swingland
General Counsel
7.
