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EXHIBIT 4.4
NOVAVAX, INC.
STOCK AND WARRANT PURCHASE AGREEMENT
This Stock and Warrant Purchase Agreement is made as of February 10,
1997, 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;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Sale and Purchase of Shares. 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 number of shares of Common Stock, A Warrants
and B Warrants set forth opposite such Purchaser's name on the signature page
hereto at the aggregate price 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 set forth opposite its name.
The total amount of Common Stock sold to the Purchasers pursuant to
this Agreement is hereinafter referred to as the "Shares." The total amount of
warrants designated A Warrants sold to the Purchasers pursuant to this
Agreement is hereinafter referred to as the "A Warrants." The total amount of
warrants designated B Warrants sold to the Purchasers pursuant to this
Agreement is hereinafter referred to as the "B Warrants." The maximum number of
Shares sold to Purchasers will be 1,200,000, the maximum number of A Warrants
will be 600,000 and the maximum number of B Warrants will be 600,000.
2. Closing Date; Delivery.
2.1 Closing Date. The closing of the purchase and sale of the
Shares hereunder (the "Closing") will be held at the offices of White &
XxXxxxxxx, P.C., 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX, 00000, on the day
which is the later to occur of (i) the 30th day following the execution of this
Agreement and (ii) one business day after the last of the conditions to Closing
described in Section 6 have been satisfied or waived (the "Closing Date"), or
at such other time and place as the Company and the Purchasers may mutually
agree upon.
2.2 Delivery. At the Closing, the Company will deliver to each
Purchaser (a) a certificate registered in such Purchaser's name representing
the shares of Common Stock purchased by such Purchaser, (b) a warrant in such
Purchaser's name representing the A Warrants purchased by such Purchaser, which
warrant shall be exercisable for a term of three years from the date of
issuance at an exercise price of $6.00 per share and shall be substantially in
the form of Exhibit B, (c) a warrant in such Purchaser's name representing the
B Warrants purchased by such Purchaser, which warrant shall be exercisable for
a term of three years from the date of issuance at an exercise price of $8.00
per share and shall be substantially in the form of Exhibit B and (d) an
opinion of White & XxXxxxxxx, P.C. dated the Closing Date and substantially in
the form attached hereto as Exhibit A. At the Closing, each Purchaser will pay
to the Company by certified check or wire transfer the amount of the purchase
price set forth opposite the name of such Purchaser on the signature page of
such Purchaser attached hereto.
3. Definitions. Unless the context otherwise requires, the terms
defined in this Section 3 shall have the meanings herein specified for all
purposes of this Agreement.
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"A Warrants" is defined in Section 1.
"Affiliate" shall have the meaning set forth in Rule 405 under the
Securities Act.
"Agreement" means this agreement, including the exhibits hereto.
"B Warrants" is defined in Section 1.
"Certificate" means the Certificate of Incorporation of the Company
as filed with the Delaware Secretary of State as amended to the date hereof.
"Closing" is defined in Section 2.1.
"Closing Date" is defined in Section 2.1.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the shares of Common Stock, $.01 par value,
authorized by the Certificate, any additional shares of Common Stock which may
be authorized in the future by the Company, and any stock into which such
Common Stock may hereafter be changed, and shall also include capital stock of
any other class of the Company which is not preferred as to dividends or assets
over any other class of stock of the Company and which is not subject to
redemption.
"Company Disclosure Documents" shall mean the Company SEC Reports,
the Company's press releases provided to the Purchasers prior to the execution
of this Agreement, the minutes of the meetings of the stockholders and
directors of the Company during calendar 1996 provided to the Purchasers prior
to the execution of this Agreement and the Disclosure Schedule attached hereto.
"Company SEC Reports" shall mean the Company's (i) Annual Report on
Form 10-K for the fiscal year ended December 31, 1995, as filed with the
Commission, (ii) Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996, each as filed with the
Commission, (iii) Forms 8-K filed with the Commission since January 1, 1996;
and (iv) the Company Proxy Statement dated April 5, 1996.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Proprietary Rights" shall have the meaning set forth in Section 4.12
of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Shares" is defined in Section 1.
"Warrants" shall mean the A Warrants and the B Warrants.
"Warrant Shares" shall mean the shares of the Common Stock of the
Company issuable in connection with the exercise of the Warrants.
4. Representations and Warranties by the Company. The Company
represents and warrants to the Purchasers as of the date hereof that:
4.1 Organization and Standing. The Company is a corporation
duly organized and validly existing, and is in good standing, under the laws
of the State of Delaware, and has the
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requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. Other than as
disclosed in the Company Disclosure Documents, the Company has no subsidiaries
or direct or indirect ownership interest in any firm, corporation, association
or business which either, individually or in the aggregate, are material to the
business of the Company. Each subsidiary of the Company is a corporation duly
organized and validly existing, and is in good standing, under the laws of the
jurisdiction of its incorporation, 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; all of the issued and outstanding capital stock of each
such subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, charge,
encumbrance, claim or equity. The Company and each subsidiary are qualified to
do business and in good standing as a foreign corporation in every jurisdiction
in which its ownership of property or conduct of business requires it so to be
qualified and in which the failure to so qualify would have a material adverse
effect on the financial condition or business of the Company and its
subsidiaries taken as a whole.
4.2 Changes. Except as set forth in the Company Disclosure
Documents, since September 30, 1996, neither the Company nor any of its
subsidiaries has, to the extent material to the Company and its subsidiaries,
taken as a whole, (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. Other than as may be set forth in the Company
Disclosure Documents, there has been no material adverse change or, to the
knowledge of the Company, any development involving a prospective material
adverse change in or affecting the financial condition or business, assets,
properties, or business prospects of the Company and its subsidiaries, taken as
a whole, since the date of the financial statements contained in the Company
Disclosure Documents other than normal recurring operating losses.
4.3 Litigation. Other than as described in the Company Disclosure
Documents, 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 any of its subsidiaries
or their respective properties, assets or business, and neither the Company nor
any of its officers is 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 and its
subsidiaries taken as a whole. Neither the Company nor any of its subsidiaries
is in default
with respect to any judgment, order or decree of any court or any governmental
agency or instrumentality which default would have a material adverse effect on
the financial condition or business of the Company and its subsidiaries taken
as a whole.
4.4 Compliance with Other Instruments. The business and
operations of the Company and its subsidiaries have been and are being
conducted in accordance with all applicable laws, rules and regulations of all
governmental authorities, except for such violations of applicable laws, rules
and regulations which would not, individually or in the aggregate, have a
material adverse effect on the financial condition or business of the Company
and its subsidiaries taken as a whole. 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 and its subsidiaries, taken
as a whole, 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
or any
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subsidiary pursuant to any agreement or other instrument to which the Company
or any subsidiary is a party or by which it or any of its properties, assets or
rights is bound or affected, (ii) violate
the Certificate or Bylaws of the Company or any subsidiary, 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, 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 and the Warrants by the Purchasers,
require any consent, approval, authorization or order of or filing with any
court or governmental agency or body. Neither the Company nor any subsidiary is
in violation of its Certificate or Bylaws nor in violation of, or in default
under, any lien, indenture, mortgage, lease, agreement, instrument, commitment
or arrangement, except for such defaults which would not, individually or in
the aggregate, have a material adverse effect on the financial condition or
business of the Company and its subsidiaries, taken as a whole. Neither the
Company nor any subsidiary is subject to any restriction which would prohibit
the Company or any subsidiary from entering into or performing its obligations
under this Agreement or the Warrants, except for such restrictions which would
not, individually or in the aggregate, have a material adverse effect on the
ability of the Company and its subsidiaries, taken as a whole, to perform their
obligations under this Agreement and the Warrants.
4.5 Reports and Financial Statements. The Company has furnished
the Purchasers with true and complete copies of its Company SEC Reports
(without exhibits thereto). 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 Commission 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 comply as to form in all material respects
with applicable accounting requirements and the published rules and regulations
of the Commission with respect thereto, and the financial statements 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 the
financial position of the Company and its consolidated subsidiaries 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, nonmaterial year-end adjustments and any other adjustments described
in such financial statements.
4.6 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).
4.7 Securities Laws. Based in part upon the representations and
warranties of the Purchasers contained in Article 5 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.
4.8 Capital Stock. At December 31, 1996, 10,660,710 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 3,672,861
shares of the Company's Common Stock were issued and outstanding and warrants
to purchase 100,000 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 and were issued in compliance with
all applicable federal and state securities laws. Except as set forth in this
Section 4.8 or the Company Disclosure
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Documents, 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.
4.9 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, 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.
4.10 No Brokers or Finders. To the knowledge of the Company in
connection with this transaction, no person, firm or corporation has or will
have, as a result of any act or omission of the Company, any right, interest or
valid claim against the Purchasers for any commission, fee or other
compensation as a finder or broker in connection with the transactions
contemplated by this Agreement.
4.11 Compliance with Environmental Laws. Except as disclosed in
the Company Disclosure Documents, neither the Company nor any subsidiary of the
Company is in violation in any material respect of any applicable statute, law
or regulation relating to the environment or occupational health and safety,
and to the best of the Company's knowledge, no expenditures material to the
Company and its subsidiaries, taken as a whole, are or will be required to
comply with any such existing statute, law or regulation. To the best knowledge
of the Company and its
subsidiaries, neither the Company nor any subsidiary of the Company has any
liability to any governmental authority or other third party arising under or
as a result of any such past or existing statute, law or regulation, which
liability would be material to the Company and its subsidiaries, taken as a
whole.
4.12 Proprietary Rights. The Company and its subsidiaries own
or are licensed to use all patents, patent applications, inventions,
trademarks, trade names, applications for registration of trademarks, service
marks, service xxxx applications, copyrights, know-how, manufacturing
processes, formulae, trade secrets, licenses and rights in any thereof and any
other intangible property and assets (herein called the "Proprietary Rights")
which are material to the businesses of the Company and its subsidiaries,
taken as a whole, as now conducted and as proposed to be conducted. Except as
disclosed in the Company Disclosure Documents, the Company does not have any
knowledge of, and the Company has not given or received any notice of, any
pending conflicts with or infringement of the rights of others with respect to
any Proprietary Rights or with respect to any license of Proprietary Rights.
Except as disclosed on the Company Disclosure Documents, no action, suit,
arbitration, or legal, administrative or other proceeding, or investigation is
pending, or, to the best knowledge of the Company, threatened, which involves
any Proprietary Rights. Neither the Company nor any subsidiary of the Company
is subject to any judgment, order, writ, injunction or decree of any court or
any Federal, state, local, foreign or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, or
any arbitrator, or has entered into or is a party to any contract which
restricts or
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impairs the use of any such Proprietary Rights in a manner which would have a
material adverse effect on the use of any of the Proprietary Rights. To the
best knowledge of the Company, no Proprietary Rights used by the Company or any
of its subsidiaries, and no services or products sold by the Company or any of
its subsidiaries, conflict with or infringe upon any proprietary rights owned
or licensed by any third party. Neither the Company nor any subsidiary of the
Company has received written notice of any pending conflict with or
infringement upon such third-party proprietary rights. Neither the Company nor
any subsidiary of the Company has entered into any consent, indemnification,
forbearance to xxx or settlement agreement with respect to Proprietary Rights
other than in the ordinary course of business. No claims have been asserted by
any person with respect to the validity of the Company's or any of its
subsidiaries' ownership or right to use the Proprietary Rights and, to the best
knowledge of the Company, there is no reasonable basis for any such claim to be
successful. To the knowledge of the Company, the Proprietary Rights are valid
and enforceable. Except as disclosed on the Company Disclosure Documents, no
registration relating to the Proprietary Rights has lapsed, expired or been
abandoned or cancelled or is the subject of cancellation or other adversarial
proceedings, and all applications therefore are pending and are in good
standing. The Company and its subsidiaries have complied, in all material
respects, with their respective contractual obligations relating to the
protection of the Proprietary Rights used pursuant to licenses. To the best
knowledge of the Company, no person is infringing on or violating the
Proprietary Rights owned or used by the Company or any of its subsidiaries.
4.13 Minimum Proceeds. The gross proceeds to the Company from
the sale of Shares and the Warrants hereunder, before all fees and expenses, is
at least $5,100,000.
4.14 Company Disclosure Documents. The Company Disclosure
Documents, when read as a whole, as updated by the press releases and the
Disclosure Schedule included therein and as of the date hereof, do not contain
any untrue statements of a material fact and do not omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
4.15 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.
4.16 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.
5. Representations and Warranties by the Purchasers; Restrictions on
Transfer.
Each Purchaser hereby severally represents and warrants to, and
covenants and agrees with, the Company, as of the Closing Date, as follows:
5.1 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.
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5.2 Investment Experience. Purchaser is an "institutional
accredited investor" as defined in Rule 501(a)(1), (a)(2), (a)(3) or (a)(7) or
a "Qualified Institutional Buyer" as defined in Rule 144A under the Securities
Act. Purchaser or its representative has reviewed the Company Disclosure
Documents. 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 and is not an
"affiliate" of the Company as defined in the Securities Act.
5.3 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 Company Disclosure
Documents 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.
5.4 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 the certificates evidencing the Shares and each
Warrant will be imprinted with a legend that prohibits the transfer of the
Shares or Warrants unless (a) such transaction is registered or such
registration is not required, and (b) if the transfer is pursuant to an
exemption from registration other than Rule 144 under the Securities Act, and
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.
5.5 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 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.
5.6 No Legal, Tax Or Investment Advice. Purchaser understands
that nothing in the Company Disclosure Documents, 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.
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6. Conditions to Closing.
6.1 Registration Statement Effective. The Company shall have
prepared and filed with and have declared effective by, the Commission, a
Registration Statement which registers the offer and resale of the Shares and
the Warrant Shares.
6.2 Opinion of Counsel. The Purchasers shall have received an
opinion of White & XxXxxxxxx, P.C., dated the Closing Date, substantially in
the form attached hereto as Exhibit A.
6.3 Secretary's Certificate. The Purchasers shall have received a
Secretary's Certificate, dated the Closing Date, certifying the Certificate and
Bylaws of the Company, the resolutions of the Board of Directors of the Company
and the signatures of the officers of the Company to execute this Agreement and
the other certificates and documents to be delivered by the Company in
connection with the transactions contemplated hereby.
6.4 Transaction Fee. The Company shall have paid to Anaconda
Capital Management, L.L.C. a transaction fee in the amount of $51,000.
6.5 Expenses. The Company shall have paid to counsel to the
Purchasers their fees and disbursements, if invoiced, and subject to the
limitations set forth in Section 9.6 hereof.
6.6 No Material Adverse Change. There shall not have been any
Material Adverse Change between the date hereof and the Closing Date that has
not been cured to the reasonable satisfaction of the Purchasers. For purposes
of this Agreement, "Material Adverse Change" shall mean any event, condition,
development or occurrence causing or resulting in a material adverse effect on
the financial condition, product development or business of the Company, other
than (a) events, conditions, developments or occurrences of a general economic
or political nature (b) those related to financial markets or the trading price
of the Company's Common Stock or (c) those which generally affect biotechnology
or pharmaceutical companies and are not specifically related to the Company
alone.
7. Covenants
7.1 Registration Requirements.
(a) Promptly after the date of this Agreement, the Company shall
prepare and file a registration statement (the "Registration Statement") with
the Commission under the Securities Act to register the offer and resale of the
Shares and the Warrant Shares (the "Registrable Securities"), and shall use its
commercially 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.
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(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 until the earliest of (A) the
third anniversary of the date such Registration Statement is declared effective
(or, in the case of Warrant Shares, the third anniversary of the date of
issuance of such Warrant Shares, but in any event not later than the sixth
anniversary of the date such Registration Statement is declared effective);
provided, however, if Rule 144 is 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 three years, then the period required by this clause (A)
shall be reduced to such shorter period, (B) such date as all of the
Registrable Securities have been resold and (C) such date as all Registrable
Securities may be sold pursuant to Rule 144 (or any successor rule); (ii)
except as provided in Section 7.1(f), prepare and file with the Commission 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
(X) all U.S. jurisdictions in which any of the Shares or the Warrant Shares are
originally sold and (Y) all other states specified in writing by Purchaser,
provided, however, that, as to clause (Y), 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) With a view to making available to Purchasers the benefits of
Rule 144 and any other rule or regulation of the Commission that may at any
time permit Purchaser to sell Registrable Securities to the public without
registration or pursuant to a registration statement on Form S-3, the Company
covenants and agrees to use its best efforts to: (i) make and keep public
information available as those terms are understood and defined in Rule 144
until the earlier of (A) the date on which the Shares may be sold pursuant to
Rule 144(k) (or any successor rule) or (B) such date as all of the Registrable
Securities shall have been resold; (ii) file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and Exchange Act; and (iii) furnish to any Purchaser upon
request, as long as the Purchaser owns any Registrable Securities, (A) a
written statement by the Company that it has complied with the reporting
requirements of the Securities Act and 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 any Purchaser of
any rule or regulation of the Commission that permits the selling of any such
Registrable Securities without registration or pursuant to such registration
statement on Form S-3.
(f) At any time after the effectiveness 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
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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 (1)
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 7.1(f).
7.2 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 7.2, 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
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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 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 7.2 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 7.2 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.
8. Restrictions on Transferability of Shares and Warrants;
Compliance with Securities Act.
8.1 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.
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8.2 Restrictive Legend. Each certificate representing the 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. THE SECURITIES MAY NOT BE SOLD
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM.
8.3 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 8.2 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.
9. Miscellaneous.
9.1 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.
9.2 Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successor and assigns of the parties hereto. Each successive
transferee of the Purchasers shall be deemed to be a Purchaser for the purposes
of Section 7 of this Agreement.
9.3 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.
9.4 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.
9.5 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.
9.6 Expenses. The Company agrees to pay the fees and
disbursements of counsel to the Purchasers, if invoiced, in an amount not to
exceed $10,000.
[Remainder of page 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.
Dated: February 10, 1997 NOVAVAX, INC.
By:
------------------------
Title:
-----------------------
Number of Shares ANACONDA OPPORTUNITY FUND, L.P.
Purchased: 1,200,000
---------
By: Anaconda Capital, L.P., General Partner
Number of A Warrants
Purchased: 600,000
-------
Number of B Warrants By:
Purchased: 600,000 -----------------------------
------- General Partner
Aggregate Purchase Price: Address: 000 Xxxxx Xxxxxx
$5,100,000 ----------------
---------- Xxx Xxxx, XX 00000
-------------------
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EXHIBIT A
The Purchasers shall have received on the Closing Date an opinion,
dated the Closing Date, of White & XxXxxxxxx, P.C., counsel for the Company, to
the effect that:
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 described in the
Registration Statement and to enter into and perform its obligations under this
Agreement and the Warrants.
The Shares and the Warrant Shares have been duly authorized for
issuance and sale to the Purchasers pursuant to this Agreement 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; and the issuance of the Shares and the Warrant Shares
is not subject to preemptive or other rights to subscribe for or purchase
securities.
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 and its subsidiaries, taken as a whole, the
execution, delivery and performance of this Agreement and the Warrants and the
consummation of the transactions in the manner contemplated herein and therein
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 or any of its subsidiaries pursuant to,
any contract, indenture, mortgage, loan agreement, note, deed, trust, lease,
sublease, voting trust, voting agreement or other instrument or agreement to
which the Company or any of its subsidiaries 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
or any of its subsidiaries is subject, (ii) result in any violation of the
provisions of the charter or bylaws of the Company or any of its subsidiaries,
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. (which has been
done) 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 or the Warrants by the Company and
the consummation of the transactions contemplated by the Agreement or the
Warrants.
The Registration Statement has become effective under the Act, no
stop order suspending its effectiveness has been issued and no proceedings for
that purpose are pending before or, to the knowledge of such counsel,
contemplated by the Commission.
The Registration Statement, the prospectus included therein, the
documents incorporated by reference and any supplement or amendment thereto
(except for financial statements as to which no opinion need be expressed)
comply as to form in all material respects with the Act, and nothing has come
to such counsel's attention that would lead it to believe that (except for
financial
15
statements, as aforesaid) the Registration Statement and the prospectus
included therein at the time the Registration Statement became effective
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as amended or supplemented if
applicable (except for financial statements, as aforesaid), contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In giving such opinion and making such statement with respect to the
matters covered by the preceding paragraph such counsel may state that their
opinion and statement are based upon their participation in the preparation of
the Registration Statement and the prospectus included therein and any
amendments or supplements thereto and review and discussion of the contents
thereof, but are without independent check or verification of facts.
