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EXHIBIT 10.16
NOVAVAX, INC.
STOCK AND WARRANT PURCHASE AGREEMENT
This Stock and Warrant Purchase Agreement (the "Agreement") is made as
of April 14, 1999 between Novavax, Inc., a Delaware corporation (the
"Company"), and the purchasers who are signatories hereto (the "Purchasers").
WHEREAS, the Company wishes to sell and the Purchasers desire to
purchase shares of the Company's Common Stock, $.01 par value per share (the
"Shares") and warrants for the purchase of shares of Common Stock exercisable
for a term of three years from the date of issuance at an exercise price equal
of $3.75 per share (the "Warrants"), as such are being offered by the Company
pursuant to a Private Placement Memorandum dated January 25, 1999 (together
with its Appendices, the "Memorandum");
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Purchase and Sale of Shares and Warrants.
1.1 Sale to the Purchasers. Subject to the terms and
conditions hereof, the Company will issue and sell to the Purchasers, and each
Purchaser will purchase from the Company the nearest whole number of Shares
that can be purchased at the Purchase Price (as defined in Section 1.4) on the
Closing Date for the dollar amount of the Purchaser's Investment (a
"Purchaser's Investment Amount") as set forth opposite such Purchaser's name on
the signature page hereto. The obligations of each Purchaser hereunder are
several and not joint and no Purchaser shall be obligated to purchase any
number of Shares in excess of the number that may be acquired for such
Purchaser's Investment Amount.
1.2 Warrants. Each Share sold shall be sold together with a
Warrant, substantially in the form of the Warrant appearing as Exhibit B
hereto, for the purchase of 0.25 additional shares of Common Stock (the
"Warrant Shares") at an exercise price equal of $3.75 per share.
1.3 Aggregate Sale. Pursuant to this Agreement, the Company
shall sell Shares for aggregate Purchaser's Investment Amounts totaling between
$2,000,000 and $6,000,000.
1.4 Purchase Price. The Purchase Price for each Share shall
be $2.50.
2. Closing Date and Delivery.
2.1 Closing Date. The closing of the purchase and sale of
the Shares and Warrants hereunder (the "Closing") will be held at 10:00 a.m. on
April 13, 1999 or such later date as the Company may designated by written
notice to all offerees and Purchasers but not later than April 30, 1999 (the
"Closing Date"). The Closing will be conducted at the offices of White &
XxXxxxxxx, P.C., 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000.
2.2 Delivery. On the Closing Date, the Company shall deliver
the following to each Purchaser: (a) a stock certificate registered in each
Purchaser's name representing the Shares purchased by such Purchaser, (b) a
Warrant in such Purchaser's name representing the right to acquire 0.25 Warrant
Shares for each Share purchased and (c) an opinion of White & XxXxxxxxx, P.C.
dated the Closing Date and substantially in the form attached hereto as Exhibit
A. Before 5:00 p.m. eastern time on April 12, 1999, each Purchaser shall pay
to the Company by certified check or wire transfer the amount of the
Purchaser's Investment Amount as set forth opposite such Purchaser's name on
the signature page hereto.
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3. Representations and Warranties by the Company. The Company
represents and warrants to the Purchasers as of the date hereof that:
3.1 Organization and Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has the requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted. The Company is qualified to do business and is in good standing as
a foreign corporation in every jurisdiction in which the failure to so qualify
would have a material adverse effect on the financial condition or business of
the Company.
3.2 Changes. Except as set forth in the Memorandum, since
September 30, 1998, the Company has not, to the extent material to the Company,
(i) incurred any debts, obligations or liabilities, absolute, accrued or
contingent, whether due or to become due, other than in the ordinary course of
business, (ii) mortgaged, pledged or subjected to lien, charge, security
interest or other encumbrance any of its assets, tangible or intangible, (iii)
waived any debt owed to the Company or its subsidiaries, (iv) satisfied or
discharged any lien, claim or encumbrance or paid any obligation other than in
the ordinary course of business, (v) declared or paid any dividends, or (vi)
entered into any transaction other than in the usual and ordinary course of
business.
3.3 Litigation. There are no legal actions, suits,
arbitrations or other legal, administrative or governmental proceedings pending
or, to the best of the Company's knowledge, threatened against the Company or
its properties, assets or business, and the Company is not aware of any facts
which might result in or form the basis for any such action, suit or other
proceeding, in each case which, if adversely determined, would individually or
in the aggregate have a material adverse effect on the financial condition or
business of the Company.
3.4 Compliance with Other Instruments. Except for such
matters which, either individually or in the aggregate, would not have a
material adverse effect on the financial condition or business of the Company,
the execution and delivery of, and the performance and compliance with, this
Agreement and the Warrants and the transactions contemplated hereby or thereby,
with or without the giving of notice or passage of time, will not (i) result in
any breach of, or constitute a default under, or result in the imposition of
any lien or encumbrance upon any asset or property of the Company pursuant to
any agreement or other instrument to which the Company is a party or by which
it or any of its properties, assets or rights is bound or affected, (ii)
violate the Certificate of Incorporation or Bylaws of the Company, or any law,
rule, regulation, judgment, order or decree, or (iii) except for the
registration of the Shares and the Warrant Shares under the Securities Act of
1933, the listing of the Shares and the Warrant Shares on the American Stock
Exchange, Inc. and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Exchange Act of 1934 and
applicable state securities laws in connection with the purchase of the Shares
and the Warrants by the Purchasers, require any consent, approval,
authorization or order of or filing with any court or governmental agency or
body.
3.5 Reports and Financial Statements. The Appendices to the
Memorandum contain true and complete copies of the Company's Form 10-K/A for
the year ended December 31, 1997, the Company's Proxy Statement in connection
with the 1998 Annual Meeting of Stockholders and all Forms 10-Q and 8-K filed
by the Company with the Securities and Exchange Commission (the "SEC") after
January 1, 1998, in each case without exhibits thereto (the "SEC Reports"). As
of their respective filing dates, the Company SEC Reports were prepared in all
material respects in accordance with the requirements of the Securities Act or
the Exchange Act, as the case may be, and the rules and regulations of the SEC
thereunder applicable to such Company SEC Reports. The audited consolidated
financial statements and unaudited interim financial statements of the Company
included in the Company SEC Reports have been prepared in accordance with
United States generally accepted accounting principles applied on a consistent
basis (except as may be indicated therein or in the notes thereto) and fairly
present, in all material respects, the financial
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position of the Company as at the dates thereof and the results of its
operations and cash flows for the periods then ended subject, in the case of
the unaudited interim financial statements, to normal year-end adjustments and
any other adjustments described in such financial statements.
3.6 Shares. The Shares and the Warrant Shares, when issued
and paid for pursuant to the terms of this Agreement or the Warrants, as the
case may be, will be duly and validly authorized, issued and outstanding, fully
paid, nonassessable and free and clear of all pledges, liens, encumbrances and
restrictions (other than those arising from the private placement of the Shares
and the Warrant Shares).
3.7 Securities Laws. Based in part upon the representations
and warranties of the Purchasers contained in Article 4 of this Agreement, the
offer, sale and issuance of the Shares and the Warrants as contemplated by this
Agreement are exempt from the registration requirements of the Securities Act,
and from the registration or qualifications requirements of the laws of any
applicable state or other U.S. jurisdiction.
3.8 Capital Stock. On December 31, 1998, 13,253,188 shares
of the Company's Common Stock were issued and outstanding, no shares of the
Company's Preferred Stock were issued and outstanding, options to purchase
3,554,247 shares of the Company's Common Stock were issued and outstanding and
warrants to purchase 1,300,000 shares of the Company's Common Stock were issued
and outstanding. All of the outstanding shares of the Company's capital stock
are validly issued, fully paid and nonassessable. Except as set forth in this
Section 3.8 or the Memorandum, as of December 31, 1998, there are no
outstanding subscriptions, options, warrants, calls, contracts, demands,
commitments, conversion rights or other agreements or arrangements of any
character or nature whatever under which the Company is or may be obligated to
issue its Common Stock, preferred stock or warrants or options to purchase
Common Stock or preferred stock. No holder of any security of the Company is
entitled to any preemptive or similar rights to purchase any securities of the
Company.
3.9 Corporate Acts and Proceedings. This Agreement has been
duly authorized by the requisite corporate action and has been duly executed
and delivered by an authorized officer of the Company, and is a valid and
binding obligation of the Company, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and as to limitations on the enforcement of the
remedy of specific performance and other equitable remedies. The requisite
corporate action necessary to the authorization, reservation, issuance and
delivery of the Shares, the Warrants and the Warrant Shares has been taken by
the Company. Upon execution and delivery thereof by a duly authorized officer
of the Company, the Warrants will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and as to limitations on the enforcement of the remedy of
specific performance and other equitable remedies.
3.10 No Implied Representations. All of the Company's
representations and warranties are contained in this Agreement, and no other
representations or warranties by the Company shall be implied.
3.11 Filing of Reports. Since the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1995, the Company has filed
with the Commission all reports and other material required to be filed by it
therewith pursuant to Section 13, 14 or 15(d) of the Exchange Act and the
Company is eligible to register the offer and resale of the Shares and the
Warrant Shares on a Registration Statement on Form S-3, or a successor form.
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3.12 Closing Date. All the representations and warranties
made by the Company in this Section 3 shall be true and complete from the date
of this Agreement through the Closing Date and the Company shall provide each
Purchaser, before the Closing, with any documents or information necessary for
such representations and warranties to remain true and complete as of the
Closing Date.
4. Representations and Warranties by the Purchasers; Restrictions on
Transfer.
Each Purchaser severally represents and warrants to, and covenants and
agrees with, the Company, as of the Closing Date, as follows:
4.1 Authorization. Purchaser has all requisite legal and
corporate or other power and capacity and has taken all requisite corporate or
other action to execute and deliver the Agreement, to purchase the Shares and
the Warrants to be purchased by it and to carry out and perform all of its
obligations under the Agreement. This Agreement constitutes the legal, valid
and binding obligation of Purchaser, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and as to limitations on the enforcement of the
remedy of specific performance and other equitable remedies.
4.2 Accredited Investor Status. Purchaser is an "Accredited
Investor" as defined in Rule 501 of Regulation D under the Securities Act of
1933. Purchaser acknowledges receiving and reviewing the Memorandum (including
its Appendices). Purchaser is aware of the Company's business affairs and
financial condition and has had access to and has acquired sufficient
information about the Company to reach an informed and knowledgeable decision
to acquire the Shares and the Warrants. Purchaser has such business and
financial experience as is required to give it the capacity to protect its own
interests in connection with the purchase of the Shares and the Warrants and is
able to bear the risks of an investment in the Shares and the Warrants.
Purchaser is not itself a "broker" or a "dealer" as defined in the Exchange Act
of 1934 and is not an "affiliate" of the Company as defined in Rule 405 of the
Securities Act, except as indicated below:
_____________________________________________________________________.
4.3 Investment Intent. Purchaser is purchasing the Shares
and the Warrants for its own account as principal, for investment purposes
only, and not with a present view to or for resale, distribution or
fractionalization thereof, in whole or in part, within the meaning of the
Securities Act. Purchaser understands that its acquisition of the Shares and
the Warrants has not been registered under the Securities Act or registered or
qualified under any state securities law in reliance on specific exemptions
therefrom, which exemptions may depend upon, among other things, the bona fide
nature of Purchaser's investment intent as expressed herein. Purchaser has, in
connection with its decision to purchase the number of Shares and the Warrants
set forth in this Agreement, relied solely upon the Memorandum and the
representations and warranties of the Company contained herein. Purchaser will
not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose
of (or solicit any offers to buy, purchase or otherwise acquire or take a
pledge of) any of the Shares or Warrants, except in compliance with the
Securities Act and the rules and regulations promulgated thereunder.
4.4 Registration or Exemption Requirements. Purchaser
further acknowledges and understands that neither the Shares nor the Warrants
may be resold or otherwise transferred except in a transaction registered under
the Securities Act or unless an exemption from such registration is available.
Purchaser understands that until the Shares and Warrant Shares have been
registered for resale by the Purchasers in compliance with applicable
securities laws, the certificates evidencing the Shares, the Warrants and
Warrant Shares will be imprinted with a legend that prohibits the transfer of
the Shares, Warrants and Warrant Shares unless (a) such transaction is
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registered or such registration is not required, and (b) if the transfer is
pursuant to an exemption from registration an opinion reasonably satisfactory
to the Company of counsel reasonably satisfactory to the Company is obtained to
the effect that the transaction is not required to be registered or is so
exempt.
4.5 Restriction on Sales, Short Sales and Hedging
Transactions. Purchaser represents and agrees that during the period from the
date Purchaser was first contacted with respect to the potential purchase of
Shares and Warrants through the date of the execution of the Agreement by
Purchaser, Purchaser did not, and from such date through the effectiveness of
the Registration Statement (as defined below), Purchaser will not, directly or
indirectly, execute or effect or cause to be executed or effected any short
sale, option or equity swap transactions in or with respect to the Company's
Common Stock or any other derivative security transaction the purpose or effect
of which is to hedge or transfer to a third party all or any part of the risk
of loss associated with the ownership of the Shares and Warrants by the
Purchaser.
4.6 No Legal, Tax Or Investment Advice. Purchaser
understands that nothing in the Memorandum, this Agreement or any other
materials presented to Purchaser in connection with the purchase and sale of
the Shares and the Warrants constitutes legal, tax or investment advice.
Purchaser has consulted such legal, tax and investment advisors as it, in its
sole discretion, has deemed necessary or appropriate in connection with its
purchase of the Shares and the Warrants.
4.7 Closing Date. All the representations and warranties
made by each Purchaser in this Section 4 shall be true and complete from the
date of this Agreement through the Closing Date and each Purchaser shall
provide the Company, before the Closing, with any documents or information
necessary for such representations and warranties to remain true and complete
as of the Closing Date.
5. Covenants
5.1 Registration Requirements.
(a) Within 14 days after the Closing Date, the
Company shall prepare and file a registration statement (the "Registration
Statement") with the SEC under the Securities Act to register the offer and
resale of the Shares and the Warrant Shares by the Purchasers (together, the
"Registrable Securities"), and shall use its reasonable efforts to secure the
effectiveness of such Registration Statement as soon as reasonably practicable
thereafter.
(b) The Company shall pay all Registration Expenses
(as defined below) in connection with any registration, qualification or
compliance hereunder and each Purchaser shall pay all Selling Expenses (as
defined below) and other expenses that are not Registration Expenses relating
to the Registrable Securities resold by such Purchaser. "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,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration. "Selling Expenses" shall
mean all selling commissions, underwriting fees and stock transfer taxes
applicable to the Registrable Securities and all fees and disbursements of
counsel for any Purchaser.
(c) If the Registration Statement becomes effective,
the Company will use its best efforts to: (i) keep such registration effective
until the second anniversary of the date such Registration Statement is
declared effective (or, in the case of Warrant Shares, the first anniversary of
the date of issuance of such Warrant Shares, but in any event not later than
the fourth anniversary of the date such Registration Statement is declared
effective); provided, however, if Rule 144 is
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amended so that the longest period that Rule 144 restricts the manner in which
privately placed securities may be sold is a period shorter than two years,
then the period required by this clause shall be reduced to (A) such shorter
period, (B) such date as all of the Registrable Securities have been resold, or
(C) such date as all Registrable Securities may be sold pursuant to Rule 144
(or any successor rule); (ii) except as provided in Section 5.1(e), 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 Purchaser from
time to time may reasonably request; (iv) cause the Shares and the Warrant
Shares to be listed on the American Stock Exchange or any securities exchange
or quoted on each quotation service on which the Common Stock of the Company is
then listed or quoted; (v) provide a transfer agent and registrar for all
securities registered pursuant to the Registration Statement and a CUSIP number
for all such securities; and (vi) file the documents required of the Company
and otherwise use its best efforts to maintain requisite blue sky clearance in
all U.S. jurisdictions in which any of the Shares are originally sold and all
other states specified in writing by Purchaser, provided, however, that the
Company shall not be required to qualify to do business in any state in which
it is not now so qualified or has not so consented.
(d) The Company shall furnish to each Purchaser upon
request a reasonable number of copies of a supplement to or an amendment of the
prospectus used in connection with the Registration Statement as may be
necessary to facilitate the public sale or other disposition of all or any of
the Registrable Securities held by Purchaser.
(e) At any time after the effective date of the
Registration Statement, the Company may by notice to the Purchasers refuse to
permit any Purchaser to resell any Registrable Securities pursuant to the
Registration Statement for a period not to exceed 30 days; provided, however,
that to exercise this right, the Company must deliver a certificate in writing
to each Purchaser to the effect that a delay in such sale is necessary because
a sale pursuant to such Registration Statement in its then-current form would
not be in the best interests of the Company and its shareholders due to
disclosure obligations of the Company. Notwithstanding the foregoing, the
Company shall not be entitled to exercise its right to block such sales more
than three times during the effectiveness of the Registration Statement nor
more than one time in any four month period. Each Purchaser hereby covenants
and agrees that it will not sell any Registrable Securities pursuant to the
Registration Statement during such blockage periods as set forth in this
Section 5.1(e).
(f) In the event that the Registration Statement has
not become effective on or before 120 days from the Closing Date, the Company
shall issue to each Purchaser an additional warrant to purchase the nearest
whole number of shares equal to five percent of the number of Shares purchased
by such Purchaser on the Closing Date, at an exercise price of $3.75 per share.
Similarly, in the event that the Registration Statement has not become
effective on or before the dates which are 150 days from the Closing Date, 180
days from the Closing Date, 210 days from the Closing Date and 240 days from
the Closing Date, the Company shall issue to each Purchaser on each such
occasion an additional warrant to purchase the nearest whole number of shares
equal to five percent of the number of Shares purchased by such Purchaser on
the Closing Date, at an exercise price of $3.75 per share. The maximum number
of shares purchasable pursuant to warrants issued pursuant to this Agreement
shall be equal to twenty five percent of the number of Shares purchased by each
such Purchaser on the Closing Date.
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5.2. Indemnification and Contribution
(a) The Company agrees to indemnify and hold harmless
each Purchaser from and against any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) to which such Purchaser 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, any untrue statement or alleged untrue statement of a
material fact or omission to state a material fact in the Registration
Statement on the effective date thereof, or arise out of any failure by the
Company to fulfill any undertaking included in the Registration Statement, and
the Company will, as incurred, reimburse such Purchaser for any legal or other
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, 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 based upon (i) an untrue statement or omission
in such Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Purchaser
specifically for use in preparation of the Registration Statement or (ii) an
untrue statement or omission in any prospectus that is corrected in any
subsequent prospectus, or supplement or amendment thereto, that was delivered
to a Purchaser prior to the pertinent sale or sales by such Purchaser and not
delivered by such Purchaser to the entity to which it made such sale(s) prior
to such sale(s).
(b) Each Purchaser, severally and not jointly, 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 or
alleged untrue statement of a material fact or omission to state a material
fact in the Registration Statement in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such Purchaser
specifically for use in preparation of the Registration Statement (provided,
however, that no Purchaser shall be liable in any such case for any untrue
statement or omission in any prospectus which statement has been corrected, in
writing, by such Purchaser and delivered to the Company at least 14 days before
the sale from which such loss occurred), or (ii) an untrue statement or
omission in any prospectus that is corrected in any subsequent prospectus or
supplement or amendment thereto, that was delivered to a Purchaser prior to the
pertinent sale or sales by such Purchaser and not delivered by such Purchaser
to the entity to which it made such sale(s) prior to such sale(s), and each
Purchaser, severally and not jointly, will, as incurred, reimburse the Company
for any legal or other expenses reasonably incurred in investigating, defending
or preparing to defend any such action, proceeding or claim. Notwithstanding
the foregoing, no Purchaser shall be liable, or required to indemnify the
Company, in the aggregate, for any amount in excess of the net proceeds
received by the Purchaser from the sale of the Shares or the Warrant Shares, as
the case may be, to which such loss, claim, damage or liability relates.
(c) Promptly after receipt by any indemnified person
of a notice of a claim or the beginning of any action in respect of which
indemnity is to be sought against an indemnifying person pursuant to this
Section 5.2, 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, the indemnifying person shall be entitled to participate
therein, and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to the indemnified person. After notice
from the indemnifying person to such indemnified person of the indemnifying
person's election to assume 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
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any affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided,
further, that the indemnifying person shall not be obligated to assume the
expenses of more than one counsel to represent all indemnified persons.
(d) If the indemnification provided for in this
Section 5.2 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 or proceedings in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a 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
the Purchasers 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 a Purchaser 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 the Purchasers agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Purchasers were treated
as one entity for such purpose) or by any other method of allocation which does
not take into account 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), no Purchaser shall be required to contribute
in the aggregate any amount in excess of the net proceeds received by the
Purchaser from the sale of the Shares or Warrant Shares, as the case may be, to
which such loss, claim, damage or liability relates. 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. The Purchaser's obligations in
this subsection (d) to contribute are several in proportion to their sales of
Shares or Warrant Shares, as the case may be, to which such loss relates and
not joint.
(e) The obligations of the Company and the Purchasers
under this Section 5.2 shall be in addition to any liability which the Company
and the respective Purchasers may otherwise have and shall extend, upon the
same terms and conditions, to directors, officers, employees and agents of the
Company and the Purchasers and to each person, if any, who controls the Company
or any Purchaser within the meaning of the Securities Act and the Exchange Act.
6. Restrictions on Transferability of Shares and Warrants; Compliance
with Securities Act.
6.1 Restrictions on Transferability. Neither the Shares nor
the Warrants shall be transferable in the absence of registration under the
Securities Act or an exemption therefrom or in the absence of compliance with
any term of the Agreement.
6.2 Restrictive Legend. Until and unless the Shares and
Warrant Shares are registered under the Securities Act, each certificate
representing the Shares and the Warrant Shares and each Warrant shall bear
substantially the following legend (in addition to any legends required under
applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED OR THE SECURI-
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TIES LAWS OF ANY STATE. THE SECURITIES MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM.
6.3 Transfer of Shares and Warrants. Each Purchaser hereby
covenants with the Company not to make any sale of the Shares or Warrants
except either (a) a sale of Shares or Warrant Shares in accordance with the
Registration Statement, in which case the Purchaser covenants to comply with
the requirement of delivering a current prospectus, (b) a sale of Shares or
Warrant Shares in accordance with Rule 144, in which case the Purchaser
covenants to comply with Rule 144 and to deliver such additional certificates
and documents as the Company may reasonably request, or (c) subject to such
conditions as the Company in its sole discretion shall impose, in accordance
with another exemption from the registration requirements of the Securities
Act. The legend set forth in Section 6.2 will be removed from a certificate
representing Shares or the Warrant Shares, as the case may be, following and in
connection with any sale of Shares or Warrant Shares pursuant to subsection (a)
or (b) hereof but not in connection with any sale of Shares or Warrant Shares
pursuant to subsection (c) hereof.
7. Miscellaneous.
7.1 Survival of Representations and Warranties. All
representations and warranties contained herein shall survive the execution and
delivery of this Agreement, any investigation at any time made by or on behalf
of the Purchaser, and the sale and purchase of the Shares and the Warrants and
payment therefor.
7.2 Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and do not constitute a
part of this Agreement.
7.3 Choice of Law. It is the intention of the parties that
the internal laws of the State of Delaware, without regard to the body of law
controlling conflicts of law, shall govern the validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of
the parties set forth herein.
7.4 Counterparts. This Agreement may be executed
concurrently in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
7.5 Assignment; Parties in Interest. This Agreement may not
be pledged, assigned or otherwise transferred by the Purchasers except by
operation of law but all the terms and provision of this Agreement shall be
binding upon and inure to the benefit of and be enforced by the successors in
interest of the parties hereto. Each successive transferee of the Purchasers
shall be deemed to be a Purchaser for the purpose of Section 5 of this
Agreement.
[The remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized representatives as
of the day and year first above written.
NOVAVAX, INC.
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------
Title: President and CEO
-----------------------
No. of Shares Investment Amount Signature of Purchaser Date
------------- ----------------- ---------------------- ----
$
------------- --------------- ----------------------- -------
(No. Shares x $2.50) Name:
Address:
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EXHIBIT A
FORM OF OPINION OF COUNSEL TO BE DELIVERED TO THE PURCHASERS ON
CLOSING DATE.
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as now being conducted and
to enter into and perform its obligations under this Agreement.
The Shares and the Warrant Shares have been duly authorized for
issuance and sale to the Purchasers pursuant to this Agreement and the Warrants
and, when issued and delivered by the Company pursuant to this Agreement or the
Warrants against payment of the consideration set forth herein, will be validly
issued and fully paid and non-assessable.
This Agreement and each Warrant have been duly authorized, executed
and delivered by the Company and are enforceable in accordance with their terms
except as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and as to limitations on the enforcement of the
remedy of specific performance and other equitable remedies.
Except for such matters which, either individually or in the
aggregate, would not have a material adverse effect on the financial condition
or business of the Company, the execution, delivery and performance of this
Agreement and the consummation of the transactions in the manner contemplated
herein and the compliance by the Company with its obligations hereunder and
thereunder will not (i) conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, any
contract or other instrument or agreement to which the Company is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company is subject, (ii) result in any violation of the provisions of
the charter or bylaws of the Company or any applicable statute, law, rule,
regulation, ordinance, code, or any applicable decision or order of any court
or regulatory agency exercising appropriate jurisdiction, and (iii) except for
the registration of the Shares and the Warrant Shares under the Securities Act
and the listing of the Shares and the Warrant Shares on the American Stock
Exchange, Inc. and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable state
securities laws in connection with the purchase of the Shares or the Warrants
by the Purchasers, no consents, approval, authorization or order of or filing
with any court or governmental agency or body is required for the execution,
delivery and performance of the Agreement by the Company and the consummation
of the transactions contemplated by the Agreement.
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EXHIBIT B -
FORM OF WARRANT AGREEMENT
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THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED EXCEPT AS PERMITTED HEREIN AND PURSUANT TO (i) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND SUCH
REGISTRATION OR QUALIFICATION AS MAY BE REQUIRED UNDER THE SECURITIES LAWS OF
ANY STATE OR (ii) AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH
SECURITIES LAWS.
NONTRANSFERABLE WARRANT FOR THE PURCHASE OF COMMON STOCK
No. [99-1] _________ Shares
THIS CERTIFIES that, for receipt in hand of $50.00 and other value
received, __________________________ (the "Holder") is entitled to subscribe
for and purchase from Novavax, Inc., a Delaware corporation (the "Company"),
upon the terms and conditions set forth herein, at any time or from time to
time after the date hereof, and before 5:00 p.m. on April __, 2002, eastern
time (the "Exercise Period"), _________ fully paid and nonassessable shares
(the "Warrant Shares") of the Company's Common Stock, par value $.01 per share
(the "Common Stock"), at a price of $3.75 per share (the "Exercise Price").
This Warrant may not be sold, transferred, assigned or hypothecated, in whole
or in part, at any time except by will or the laws of descent and distribution
(a "Permitted Transfer"). As used herein the term "this Warrant" shall mean
and include this Warrant and any Warrant or Warrants hereafter issued as a
consequence of the exercise of this Warrant in whole or in part.
The number of shares of Common Stock issuable at the Exercise Price
may be adjusted from time to time as hereinafter set forth.
1. Exercise of Warrant.
(a) Manner of Exercise. This Warrant may be exercised in
whole or in part at any time or from time to time during the Exercise Period by
the surrender of this Warrant (with the form of election to exercise attached
hereto duly executed) to the Company at its office at 0000 Xxxxxxxx Xxxx,
Xxxxxxxx, XX 00000 or such other place as is designated in writing by the
Company, together with a certified or bank cashier's check payable to the order
of the Company in an amount equal to the Exercise Price multiplied by the
number of Warrant Shares for which this Warrant is being exercised.
(b) Delivery of Stock Certificates, etc. Upon each exercise
of the Holder's rights to purchase the Warrant Shares granted pursuant to this
Warrant, as reissued from time to time, the Holder shall be deemed to be the
holder of record of the Warrant Shares issuable upon such exercise,
notwithstanding that the transfer books of the Company shall then be closed or
certificates representing such Warrant Shares shall not then have been actually
delivered to the Holder. As soon as practicable after each such exercise of
this Warrant, the Company shall issue and deliver to the Holder a certificate
or certificates for the Warrant Shares issuable upon such exercise, registered
in the name of the Holder or its designee. If this Warrant should be exercised
in part only, the Company shall, upon surrender of this Warrant for
cancellation, execute, and deliver a new Warrant evidencing the right of the
Holder to purchase the balance of the Warrant Shares (or portions thereof)
subject to purchase hereunder.
(c) Warrant Register. Any Warrants issued upon a Permitted
Transfer or exercise in part of this Warrant (together with this Warrant, the
"Warrants") shall be numbered and shall be registered in a warrant register as
they are issued. The Company shall be entitled to treat the
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registered holder or his permitted transferees of any Warrant on the Warrant
Register as the owner in fact thereof for all purposes and shall not be bound
to recognize any equitable or other claim to or interest in such Warrant on the
part of any other person, and shall not be liable for any registration or
transfer of such Warrants which are registered or to be registered in the name
of a fiduciary or the nominee of a fiduciary. Such Warrants shall be
transferable on the books of the Company only upon delivery thereof duly
endorsed by the Holder or by his duly authorized attorney or representative, or
accompanied by proper evidence of succession, assignment, or authority to
transfer. In all cases of transfer by an attorney, executor, administrator,
guardian, or other legal representative, duly authenticated evidence of his or
its authority shall be produced. Upon any registration of transfer, the
Company shall deliver a new Warrant or Warrants to the person entitled thereto.
The Warrants may be exchanged, at the option of the Holder thereof, for another
Warrant, or other Warrants of different denominations, of like tenor, and
representing in the aggregate the right to purchase a like number of Warrant
Shares (or portions thereof) upon surrender to the Company or its duly
authorized agent. Notwithstanding the foregoing, the Company shall have no
obligation to cause Warrants to be transferred on its books to any person if,
in the written opinion of counsel to the Company, such transfer does not comply
with the provisions of the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations thereunder.
2. Authorized Stock; Listing. The Company shall at all times reserve
and keep available out of its authorized and unissued Common Stock, solely for
the purpose of providing for the exercise of the rights to purchase all Warrant
Shares granted pursuant to this Warrant, such number of shares of Common Stock
as shall, from time to time, be sufficient therefor. The Company covenants
that all shares of Common Stock issuable upon exercise of this Warrant, upon
receipt by the Company of the purchase price therefor, shall be validly issued,
fully paid, nonassessable, and free of preemptive or similar contractual rights
to subscribe for shares of Common Stock. The Company shall list and maintain
the listing of the Warrant Shares on the American Stock Exchange (or other
national securities exchange upon which the Common Stock is listed).
3. Adjustments.
(a) Stock Dividends, Splits, Combinations, etc. In case the
Company shall at any time after the date of this Warrant (i) declare a
dividend, or make a distribution, on the outstanding Common Stock in shares of
its capital stock, (ii) subdivide the outstanding Common Stock, (iii) combine
the outstanding Common Stock into a smaller number of shares, or (iv) issue any
shares of its capital stock by reclassification of the Common Stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), then, in each case, the Exercise
Price, and the number and kind of shares of Common Stock receivable upon
exercise of this Warrant, in effect at the time of the record date for such
dividend or of the effective date of such subdivision, combination, or
reclassification, shall be proportionately adjusted so that the Holder after
such time shall be entitled to receive the aggregate number and kind of shares
which if such Warrant had been exercised immediately prior to such time, it
would have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification. Such adjustment
shall be made successively whenever any event listed above shall occur.
(b) Sale of Stock, Options, Rights, etc. In case the Company
shall issue, or fix a record date for the issuance of, shares of Common Stock
or rights, options, or warrants entitling the holders thereof to subscribe for
or purchase Common Stock (or securities convertible into or exchangeable for
Common Stock) at a price per share (or having a conversion price per share, if
a security convertible into or exchangeable for Common Stock) less than the
Current Market Price, (as defined in Section 3(d)) the Exercise Price shall be
reduced to a price determined by multiplying the then current Exercise Price by
a fraction (i) numerator of which shall be (a) the number of shares of Common
Stock outstanding immediately prior to such issue or sale plus (b) the number
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of shares of Common Stock which the aggregate consideration received by the
Company in connection with such issuance or sale would purchase at the Current
Market Price, and (ii) the denominator of which shall be the number of shares
of Common Stock outstanding immediately after such issuance or sale. Such
adjustment shall become effective at the close of business on such date of
issuance or record date; provided, however, that, to the extent the shares of
Common Stock (or securities convertible into or exchangeable for shares of
Common Stock) are not delivered, the Exercise Price shall be readjusted after
the expiration of such rights, options, or warrants (but only with respect to
Warrants exercised after such expiration), to the Exercise Price which would
then be in effect had the adjustments made upon the issuance of such rights,
options, or warrants been made upon the basis of delivery of only the number of
shares of Common Stock (or securities convertible into or exchangeable for
shares of Common Stock) actually issued. No readjustment shall have the effect
of increasing the Exercise Price by an amount greater than the original
adjustment. In case part or all of any consideration may be paid in a form
other than cash, the value of such consideration shall be as determined in good
faith by the Board of Directors of the Company, whose determination shall be
conclusive absent manifest error. Shares of Common Stock owned by or held for
the account of the Company or any majority-owned subsidiary shall not be deemed
outstanding for the purpose of any such computation.
In the case of the issuance of options to purchase or rights
to subscribe for Common Stock, securities by their terms convertible into or
exchangeable for Common Stock or options to purchase or rights to subscribe for
such convertible or exchangeable securities, the following provisions shall
apply:
(i) the shares of Common Stock deliverable upon
exercise of such options to purchase or rights to subscribe for Common Stock
shall be deemed to have been issued at the time such options or rights were
issued and for a consideration equal to the consideration, if any, received by
the Company upon the issuance of such options or rights plus the purchase price
provided in such options or rights for the Common Stock covered thereby;
(ii) the shares of Common Stock deliverable upon
conversion of or in exchange for any such convertible or exchangeable
securities or upon the exercise of options to purchase or rights to subscribe
for such convertible or exchangeable securities and subsequent conversion or
exchange thereof shall be deemed to have been issued at the time such
securities were issued or such options or rights were issued and for a
consideration equal to the consideration, if any, received by the Company for
any such securities and related options or rights (excluding any cash received
on account of accrued interest or accrued dividends), plus the additional
consideration, if any, to be received by the Company upon the conversion or
exchange of such securities or the exercise of any related options or rights;
(iii) in the event of any increase in the
consideration payable to the Company upon exercise of such options or rights or
upon conversion of or in exchange for such convertible or exchangeable
securities, including, but not limited to, a change resulting from any
antidilution provisions thereof, the Exercise Price with respect to the
adjustment which was made upon the issuance of such options, rights or
securities, and any subsequent adjustments based thereon, shall be recomputed
to reflect such change, but no further adjustment shall be made for the actual
issuance of Common Stock or any payment of such consideration upon the exercise
of any such options or rights or the conversion or exchange of such securities.
(c) Extraordinary Dividends. In case the Company shall
distribute to all holders of Common Stock (including any such distribution made
to the stockholders of the Company in connection with a consolidation or merger
in which the Company is the continuing corporation) evidences of its
indebtedness or assets (other than dividends payable in shares of Common
Stock), or subscription rights, options, or warrants or convertible or
exchangeable securities containing the right to subscribe for or purchase
shares of Common Stock (excluding those referred to in
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paragraph 3(b) hereof), then, in each case, the Exercise Price shall be
adjusted by multiplying the Exercise Price in effect immediately prior to the
record date for the determination of stockholders entitled to receive such
distribution by a fraction, the numerator of which shall be the current
Exercise Price per share of Common Stock on such record date, less the fair
market value (as determined in good faith by the Board of Directors of the
Company, whose determination shall be conclusive absent manifest error) of the
portion of the evidences of indebtedness or assets so to be distributed, or of
such subscription rights, options, or warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of Common
Stock, applicable to one share, and the denominator of which shall be such
current Exercise Price per share of Common Stock. Such adjustment shall be
made whenever any such distribution is made, and shall become effective on the
date of such distribution retroactive to the record date for the determination
of stockholders entitled to receive such distribution.
(d) Current Market Price. For the purpose of any computation
under this paragraph 3, Current Market Price per share of Common Stock on any
date shall be deemed to be the average daily closing price for the ten trading
days immediately preceding such day. The closing price for any day shall be
the last reported sales price regular way or, in case no such reported sale
takes place on such day, the closing bid price regular way, in either case on
the principal national securities exchange (including the NASDAQ National
Market System) on which the Common Stock is listed or admitted to trading or,
if the Common Stock is not listed or admitted to trading on any national
securities exchange, the highest reported bid price as furnished by the
National Association of Securities Dealers, Inc. through NASDAQ or a similar
organization if NASDAQ is no longer reporting such information. If on any such
date the Common Stock is not quoted by any such organization, the fair value of
a share of Common Stock on such date, as determined in good faith by the Board
of Directors of the Company, whose determination shall be conclusive absent
manifest error, shall be used.
(e) De Minimis Exception. No adjustment in the Exercise Price
shall be required if such adjustment is less than $.05; provided, however, that
any adjustments which by reason of this paragraph 3 are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this paragraph 3 shall be made to the nearest cent or to
the nearest one-thousandth of a share, as the case may be.
(f) Date of Issuance. In any case in which this paragraph 3
shall require that an adjustment in the Exercise Price be made effective as of
a record date for a specified event, the Company may elect to defer, until the
occurrence of such event, issuing to any Holder who exercised any Warrants
after such record date, the shares of Common Stock, if any, issuable upon such
exercise over and above the shares of Common Stock, if any, issuable upon such
exercise on the basis of the Exercise Price in effect prior to such adjustment.
(g) Adjustment to Number of Shares. Upon each adjustment of
the Exercise Price as a result of the calculations made in paragraphs 3(a),
3(b), or 3(c) hereof, each Warrant outstanding prior to the making of the
adjustment in the Exercise Price shall thereafter evidence the right to
purchase, at the adjusted Exercise Price, that number of shares (calculated to
the nearest thousandth) obtained by dividing (i) the product obtained by
multiplying the number of shares purchasable upon exercise of a Warrant prior
to adjustment of the number of shares by the Exercise Price in effect prior to
adjustment of the Exercise Price by (ii) the Exercise Price in effect after
such adjustment of the Exercise Price.
(h) Notice of Adjustments. Whenever there shall be an
adjustment as provided in this paragraph 3, the Company shall promptly cause
written notice thereof to be sent by overnight courier, to the Holder, at its
principal office, which notice shall be accompanied by an officer's certificate
setting forth the number of Warrant Shares purchasable upon the exercise of
this Warrant and the Exercise Price after such adjustment and setting forth a
brief statement of the facts requiring
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such adjustment and the computation thereof, which officer's certificate shall
be conclusive evidence of the correctness of any such adjustment absent any
error.
(i) No Fractional Shares. The Company shall not be required
to issue fractions of shares of Common Stock or other capital stock of the
Company upon the exercise of the Warrants. If any fraction of a share would be
issuable on the exercise of any Warrant (or specified portions thereof), the
Company shall purchase such fraction for an amount in cash equal to the same
fraction of the Current Market Price on the date of exercise of the Warrant.
(j) Employee Stock Options; Outstanding Options/Warrants. No
adjustment in the Exercise Price shall be required in the case of the issuance
of shares under or grant by the Company of options to employees, directors or
consultants of the Company under any stock option plan of the Company approved
by the stockholders of the Company, or the issuance of any and all shares of
Common Stock upon exercise of such options or upon the issuance of shares under
any options, warrants, or convertible securities outstanding as of the date
hereof.
4. Business Combinations.
(a) In case the Company, after the date hereof (i) shall
consolidate with or merge into any other person and shall not be the continuing
or surviving corporation of such consolidation or merger, or (ii) shall permit
any other person to consolidate with or merge into the Company and the Company
shall be the continuing or surviving person but, in connection with such
consolidation or merger, the Common Stock or other securities of the Company
which the Holder of this Warrant may receive upon exercise ("Other Securities")
shall be changed into or exchanged for stock or other securities of any other
person or cash or any other property, or (iii) shall transfer all or
substantially all of its properties or assets to any other person, or (iv)
shall effect a capital reorganization or reclassification of the Common Stock
or Other Securities (other than a capital reorganization or reclassification
resulting in the issue of additional shares of Common Stock for which
adjustment in the Exercise Price is provided in paragraph 3(a) or 3(b)), then,
and in the case of each such transaction, proper provision shall be made so
that, upon the basis and the terms and in the manner provided in this Warrant,
the Holder of this Warrant, upon the exercise hereof at any time after the
consummation of such transaction, shall be entitled to receive (at the
aggregate Exercise Price in effect at the time of such consummation for all
Common Stock or Other Securities issuable upon such exercise immediately prior
to such consummation), in lieu of the Common Stock or Other Securities issuable
upon such exercise prior to such consummation, the highest amount of
securities, cash or other property to which such Holder would actually have
been entitled as a shareholder upon such consummation if such Holder had
exercised the rights represented by this Warrant immediately prior thereto,
subject to adjustments (subsequent to such consummation) as nearly equivalent
as possible to the adjustments provided in paragraph 3; provided that if a
purchase, tender or exchange offer shall have been made to and accepted by the
holders of more than 50% of the outstanding shares of Common Stock, and if the
Holder of this Warrant so designates in a notice given to the Company on or
before the date immediately preceding the date of the consummation of such
transaction, the Holder of this Warrant shall be entitled to receive the
highest amount of securities, cash or other property to which such Holder would
actually have been entitled as a shareholder if the Holder of this Warrant had
exercised such Warrant prior to the expiration of such purchase, tender or
exchange offer and accepted such offer, less the Exercise Price that would have
been payable upon such exercise, subject to adjustments (from and after the
consummation of such purchase, tender or exchange offer) as nearly equivalent
as possible to the adjustments provided for in paragraph 3.
(b) In the event of any transaction described in clauses (i)
through (iv) of paragraph 4(a), each person (other than the Company) which may
be required to deliver any stock, securities, cash or property upon the
exercise of this Warrant as provided herein shall assume in writing (i) the
obligations of the Company under this Warrant (and if the Company shall survive
the
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consummation of such transaction, such assumption shall be in addition to, and
shall not release the Company from, any continuing obligations of the Company
under this Warrant) and (ii) the obligation to deliver to such Holder such
shares of stock, securities, cash or property as, in accordance with the
foregoing provisions of this paragraph 4, such Holder may be entitled to
receive.
5. Notice. In case at any time the Company shall propose:
(a) to pay any dividend or make any distribution on shares of
Common Stock in shares of Common Stock or make any other distribution to all
holders of Common Stock; or
(b) to issue any rights, warrants, or other securities to all
holders of Common Stock entitling them to purchase any additional shares of
Common Stock or any other rights, warrants, or other securities; or
(c) to effect any consolidation, merger, sale, reorganization
or reclassification described in paragraph 4; or
(d) to effect any liquidation, dissolution, or winding-up of
the Company; or
(e) to take any other action which would cause an adjustment
to the Exercise Price;
then, and in any one or more of such cases, the Company shall give written
notice thereof, by overnight courier, to the Holder at the Holder's address as
it shall appear in the Warrant Register, mailed at least 20 business days prior
to (i) the date as of which the holders of record of shares of Common Stock to
be entitled to receive any such dividend, distribution, rights, warrants, or
other securities are to be determined, (ii) the date on which any such
consolidation, merger, sale, reorganization or reclassification, liquidation,
dissolution, or winding-up is expected to become effective, and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares or warrants for securities or other property,
if any, deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up; or (iii) the earlier of the date or record date in
respect of such action which would require an adjustment to the Exercise Price.
6. Taxes. The issuance of any shares or warrants or other securities
upon the exercise of this Warrant, and the delivery of certificates or other
instruments representing such shares, warrants, or other securities, shall be
made without charge to the Holder for any tax or other charge in respect of
such issuance. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of any certificate in a name other than that of the Holder and the
Company shall not be required to issue or deliver any such certificate unless
and until the person or persons requesting the issue thereof shall have paid to
the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
7. Certain Rights.
(a) In case any event shall occur as to which the provisions
of paragraph 3 or 4 are not strictly applicable but the failure to make any
adjustment would not fairly protect the purchase rights represented by this
Warrant in accordance with the essential intent and principles of such
paragraphs, then in each such case, the Exercise Price and/or the amount of any
Common Stock, cash, securities or other assets to be delivered upon exercise of
this Warrant shall be adjusted on a basis consistent with the essential intent
and principles established in paragraph 3 or 4, as necessary to preserve the
purchase rights represented by this Warrant.
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(b) The Company will not, by amendment of its Certificate of
Incorporation or through any consolidation, merger, reorganization, transfer of
assets, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of
this Warrant.
8. Legend. The securities issued upon exercise of the Warrants shall
be subject to a stop transfer order and the certificate or certificates
evidencing any such securities shall bear the following legend:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO (i) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAW AND SUCH REGISTRATION OR QUALIFICATION AS MAY BE REQUIRED
UNDER THE SECURITIES LAWS OF ANY STATE OR (ii) AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT OR SUCH SECURITIES LAWS.
9. Miscellaneous.
(a) Upon receipt of evidence satisfactory to the Company of
the loss, theft, destruction, or mutilation of any Warrant (and upon surrender
of any Warrant if mutilated), and upon reimbursement of the Company's
reasonable incidental expenses, the Company shall execute and deliver to the
Holder thereof a new Warrant of like date, tenor, and denomination.
(b) The Holder of any Warrant shall not have, solely on
account of such status, any rights of a stockholder of the Company, either at
law or in equity, or to any notice of meetings of stockholders or of any other
proceedings of the Company, except as provided in this Warrant.
(c) This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
(d) This Warrant shall be construed in accordance with the
laws of the State of Delaware, without giving effect to conflict of laws.
IN WITNESS WHEREOF, the undersigned have set their hand to this
Warrant Agreement as of April ___, 1999.
NOVAVAX, INC.
By:
---------------------------------------
Xxxxxxxx X. Xxxxx, Interim President &
Chief Executive Officer
---------------------------
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To: Novavax, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: President
ELECTION TO EXERCISE
The undersigned hereby exercises its or his rights to purchase Warrant
Shares covered by the within Warrant and tenders payment herewith in the amount
of $__________ in accordance with the terms thereof, and requests that
certificates for such securities be issued in the name of, and delivered to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print Name, Address and Social Security or Tax Identification Number)
and, if such number of Warrant Shares shall not be all the Warrant Shares
covered by the within Warrant, that a new Warrant for the balance of the
Warrant Shares covered by the within Warrant be registered in the name of, and
delivered to, the undersigned at the address stated below.
Dated: Name:
----------------------------------- ---------------------------
(Print)
Address:
-------------------------------------------------------------------
-------------------------------------
(Signature)
