Full Press Release Details
Pharmaceuticals, Inc.
KRW18,000,000 1.00% Convertible Bonds due 2024
Registration Rights Agreement
Each of the Holders listed on Schedule A
Ladies and Gentlemen:
Inovio Pharmaceuticals, Inc.,
a Delaware corporation (the Company ), proposes to issue and sell to you, its 1.00% Convertible Bonds due 2024 (the Bonds ), in the amounts and upon the terms set forth in the Subscription Agreement by and between
the Company and the purchasers named therein, dated as of July 31, 2019 (the Subscription Agreement ), relating to the offer and sale of the Bonds (the Offering ). In certain circumstances, the Bonds will be
convertible into shares of common stock, par value $0.001 per share, of the Company (the Common Stock ) or Korea Depository Receipts ( KDRs ) representing Common Stock if, on the relevant conversion date, the
Company has KDRs listed on the KOSDAQ Market of the Korea Exchange ( KOSDAQ ), in each case, in accordance with the terms of the Bonds and the Subscription Agreement. To induce you to enter into the Subscription Agreement and to
satisfy your obligations thereunder, you and your Affiliates that are holders of the Bonds from time to time will have the benefit of this registration rights agreement (this Agreement ) whereby the Company agrees with you for your
benefit and the benefit of your Affiliates that are holders from time to time of the Bonds (each a Holder and, collectively, the Holders ), as follows:
1. Definitions. Capitalized terms used herein without definition shall have their respective meanings set forth in the Subscription Agreement. As used
in this Agreement, the following capitalized defined terms shall have the following meanings:
Act shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
Affiliate shall have the meaning specified in Rule 405 under
the Act and the terms controlling and controlled shall have meanings correlative thereto.
Bonds shall have the
meaning set forth in the preamble hereto.
Broker-Dealer shall mean any broker or dealer registered as such under the Exchange Act.
Business Day shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
Closing Date shall mean August 1, 2019, the first date of original
issuance of the Bonds.
Commission shall mean the Securities and Exchange Commission.
Common Stock shall have the meaning set forth in the preamble hereto.
Company shall have the meaning set forth in the preamble hereto.
Deferral Period shall have the meaning indicated in Section 3(i) hereof.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
FINRA shall mean the Financial Industry Regulatory Authority or any successor agency thereto.
Holder shall have the meaning set forth in the preamble hereto.
KDRs shall have the meaning set forth in the preamble hereto.
KOSDAQ shall have the meaning set forth in the preamble hereto.
Losses shall have the meaning set forth in Section 5(d) hereof.
Majority Holders shall mean, on any date, Holders of a majority of the shares of Common Stock registered under the Shelf Registration Statement
and that still constitute Registrable Securities.
Material Event shall have the meaning set forth in Section 3(c)(v) hereof.
Bond shall have the meaning set forth in the preamble.
Notice and Questionnaire shall mean a written notice delivered to the Company substantially in the form attached hereto as Annex A.
Notice Holder shall mean, on any date, any Holder of Registrable Securities that has delivered a properly completed Notice and Questionnaire to
the Company on or prior to such date.
Offering shall have the meaning set forth in the preamble hereto.
Prospectus shall mean a prospectus included in the Shelf Registration Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A or Rule 430B under the Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Common Stock covered by the Shelf Registration Statement, and all amendments and supplements thereto, including any and all exhibits thereto and any information incorporated by reference therein.
Subscription Agreement shall have the meaning set forth in the preamble hereto.
Registrable Securities shall mean (a) shares of Common Stock initially issuable upon conversion of the Bonds sold to the Holders pursuant to
the Subscription Agreement and (b) any shares of Common Stock issued or issuable with respect to any shares described in subsection (a) above by way of a stock dividend or stock split or in exchange for or upon conversion of such shares or
otherwise in connection with a combination of shares, distribution, recapitalization, merger, consolidation, other reorganization or other similar event with respect to the Common Stock (it being understood that, for purposes of this Agreement, a
Holder shall be deemed to be a holder of Registrable Securities whenever such Holder has the right to then acquire or obtain from the Company any Registrable Securities, whether or not such acquisition has actually been effected), in each case,
other than those that (i) become eligible for sale pursuant to Rule 144 (or any successor rule or regulation thereto that may be adopted by the Commission) without volume or
manner-of-sale restrictions and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144(c)(1), as set
forth in a written opinion letter to such effect, addressed, delivered and reasonably acceptable to the applicable transfer agent and the holders of such securities, (ii) ceased to be outstanding, whether as a result of repurchase,
cancellation, exchange or otherwise, or (iii) been sold to the public pursuant to Rule 144 under the Act. For the avoidance of doubt, Registrable Securities shall not include KDRs initially issuable upon conversion of the Bonds.
Registration Default Damages shall have the meaning set forth in Section 7 hereof.
Shelf Registration Period shall have the meaning set forth in Section 2(c) hereof.
Shelf Registration Statement shall mean a shelf registration statement of the Company pursuant to the provisions of Section 2
hereof which covers some or all of the Common Stock on an appropriate form under Rule 415 under the Act, or any similar rule that may be adopted by the Commission, 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.
Subscription Agreement shall have the meaning set forth in the preamble hereto.
underwriter shall mean any underwriter of Common Stock in connection with an offering thereof
under the Shelf Registration Statement.
2. Shelf Registration. (a) The Company shall file with the Commission a Shelf Registration Statement
as soon as practicable following the date hereof and in any event on or prior to the six-month anniversary of the Closing Date, providing for the registration of, and the sale on a continuous or delayed basis
by the Holders of, all of the Registrable Securities, from time to time in accordance with the methods of distribution elected by such Holders, pursuant to Rule 415 under the Act or any similar rule that may be adopted by the Commission.
(b) The Company shall use its commercially reasonable efforts to cause the Shelf Registration Statement to become or be declared effective under the Act within
one year after the Closing Date.
(c) The Company shall use its commercially reasonable efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the Act, in order to permit the Prospectus forming part thereof to be usable by Holders for a period (the Shelf Registration Period ) from the date the Shelf Registration Statement is
declared effective by the Commission until the earlier of (i) the 120th calendar day immediately following the maturity date of the Bonds or (ii) the date upon which there are no longer outstanding any Bonds.
(d) The Company shall cause the Shelf Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement or such amendment or supplement, (i) to comply in all material respects with the applicable requirements of the Act; and (ii) not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(e) The Company shall notify Holders of the anticipated effective date of the Shelf Registration Statement as promptly as reasonably practicable. Each Holder
of Registrable Securities agrees to deliver a Notice and Questionnaire and such other information as the Company may reasonably request in writing, if any, to the Company at least ten Business Days prior to the anticipated effective date of the
Shelf Registration Statement as notified to Holders. Each Holder agree to notify the Company as promptly as practicable of any inaccuracy or change in information previously furnished by such Holder to the Company or of the occurrence of any event
in either case as a result of which any the Shelf Registration Statement contains or would contain an untrue statement of a material fact regarding such Holder. If a Holder does not timely complete and deliver a Notice and Questionnaire or provide
the other information the Company may reasonably request in writing, that Holder will not be named as a selling securityholder in the Prospectus and will not be permitted to sell its Registrable Securities under the Shelf Registration Statement.
From and after the effective date of the Shelf Registration Statement, the Company shall, as promptly as is practicable after the date a Notice and Questionnaire is delivered, and in any event within 20 Business Days after such date, (i) if
required by applicable law, use its commercially reasonable efforts to file with the Commission a post-effective amendment to the Shelf Registration Statement or prepare and, if permitted or required by applicable law, file a supplement to the
related Prospectus or an amendment or supplement to any document incorporated therein by reference or file any other required document so that the Holder delivering such Notice and Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus, and so that such Holder is permitted to deliver such Prospectus to purchasers of the Registrable Securities in accordance with applicable law and, if the Company shall file a post-effective
amendment to the Shelf Registration Statement, cause such post-effective amendment to be declared effective under the Act as promptly as is practicable; provided that the Company shall not be required to file more than one post-effective
amendment in any 120-day period in accordance with this Section 2(e)(i); (ii) provide such Holder, upon request, copies of any documents filed pursuant to Section 2(e)(i) hereof; and
(iii) notify such Holder as promptly as practicable after the effectiveness under the Act of any post-effective amendment filed or the filing of any supplement to the related Prospectus, pursuant to Section 2(e)(i) hereof; provided
that if such Notice and Questionnaire is delivered during a Deferral Period, the Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set forth in clauses (i), (ii) and (iii) above upon
expiration of the Deferral Period in accordance with Section 3(i) hereof. Notwithstanding anything contained herein to the contrary, the Company shall be under no obligation to name any Holder that is not a Notice Holder as a selling
securityholder in the Shelf Registration Statement or related Prospectus; provided, however, that any Holder that becomes a Notice Holder pursuant to the provisions of this Section 2(e) (whether or not such Holder was a Notice
Holder at the effective date of the Shelf Registration Statement) shall be named as a selling securityholder in the Shelf Registration Statement or related Prospectus in accordance with the requirements of this Section 2(e).
3. Registration Procedures. The following provisions shall apply in connection with the Shelf Registration Statement.
(a) The Company shall:
(i) furnish to counsel for the Notice Holders (as appointed in accordance with Section 4), not less
than five Business Days prior to the filing thereof with the Commission, a copy of the Shelf Registration Statement and each amendment thereto and each amendment or supplement, if any, to the Prospectus included therein and shall use its
commercially reasonable efforts to reflect in each such document, when so filed with the Commission, such comments as the Holders reasonably propose within three (3) Business Days of the delivery of such copies to counsel for the Notice
(ii) include information regarding the Notice Holders and the methods of distribution they have elected for their Registrable Securities
provided to the Company in Notices and Questionnaires as necessary to permit such distribution by the methods specified therein.
(b) The Company shall
(i) the Shelf Registration Statement and any amendment thereto and any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act; and