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EXHIBIT 4.5
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.
WARRANT FOR THE PURCHASE OF COMMON STOCK
No. [A-1; B-1] 600,000 Shares
THIS CERTIFIES that, for receipt in hand of $50.00 and other value
received, ANACONDA OPPORTUNITY FUND, L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Holder"), or registered assigns, 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 March __, 2001, eastern standard time
(the "Exercise Period"), 600,000 fully paid and nonassessable shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), at a
price of $[6.00; 8.00] per share (the "Exercise Price"). This Warrant may be
sold, transferred, assigned, or hypothecated, in whole or in part, at any time
after the date hereof. 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 or transfer 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) Transfer of Warrants; Warrant Register. Any Warrants
issued upon the transfer or exercise in part of this Warrant (together with
this Warrant, the "Warrants") shall be numbered
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and shall be registered in a warrant register as they are issued. The Company
shall be entitled to treat the registered holder 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 only on the books of the Company 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, 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 of shares of Common Stock
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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 subscription price 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 minimum
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 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 (A) 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 (B) 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, 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 March __, 1997.
NOVAVAX, INC.
By:
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Name:
Title:
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant.)
FOR VALUE RECEIVED, __________________________________________________
hereby sells, assigns and transfers unto __________________________________ a
Warrant to purchase ____ Warrant Shares of Novavax, Inc. (the "Company"),
together with all right, title, and interest therein, and does hereby
irrevocably constitute and appoint attorney to transfer such Warrant on the
books of the Company, with full power of substitution.
Dated:
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Signature:
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Signature Guaranteed:
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NOTICE
The signature on the foregoing Assignment must correspond to
the name as written upon the face of this Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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To:
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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:
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(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:
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(Print)
Address:
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(Signature)
