STOCK PURCHASE AGREEMENT
Exhibit 10.10
This Stock Purchase Agreement (this “Agreement”) is dated June 30, 2009, by and
between Laboratorios Farmaceuticos ROVI S.A., a public limited company organized and existing under
the laws of Spain (the “Investor”), and Novavax, Inc., a Delaware corporation (the
“Company” and, together with the Investor, the “Parties”), whereby the parties
agree as set forth herein. Certain terms are defined in Section 9 of this Agreement.
WHEREAS, the Parties have entered into an Amended and Restated Head of Terms dated as of June
30, 2009 (the “Head of Terms”) providing the terms and conditions pursuant to which the
Parties intend to negotiate definitive agreements for a collaboration to develop and commercialize
certain vaccines; and
WHEREAS, in connection with the collaboration, the Investor has also agreed to make an equity
investment in the Company, in accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in
consideration of the representations, warranties, and covenants herein contained, the Parties agree
as follows:
1. Subscription.
(a) Investor agrees to buy and the Company agrees to sell and issue to Investor 1,094,891
shares (the “Shares”) of the Company’s common stock, $0.01 par value per share (the
“Common Stock”), at a per share price of $2.74 for an aggregate purchase price of
$3,000,001.34 (the “Purchase Price”).
(b) The Shares have been registered on a Registration Statement on Form S-3, Registration No.
333-138893 (the “Registration Statement”), which registration statement has been declared
effective by the Securities and Exchange Commission (the “Commission”) and is effective on
the date hereof (together with any registration statement filed by the Company pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the “Securities Act”)). A final
prospectus supplement will be delivered to the Investor as required by law.
(c) On the closing date, which, in accordance with Rule 15c6-1 promulgated under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), is expected to occur on
or about July 1, 2009 (the “Closing Date”), upon satisfaction or waiver of all the
conditions to closing set forth in this Agreement, (i) the Purchase Price for the Shares purchased
by the Investor will be delivered by or on behalf of the Investor to the Company against delivery
of the Shares, and (ii) the Company shall cause its transfer agent to release to the Investor the
number of Shares being purchased by the Investor (such release shall be made through the facilities
of The Depository Trust Company’s DWAC system). The provisions set forth in Exhibit A
hereto shall be incorporated herein by reference as if set forth fully herein.
2. Representations, Warranties and Agreements of the Company. The Company represents
and warrants to and agrees with Investor as of the date hereof and as of the Closing Date and any
other date specified below, that:
(a) The Company has been duly incorporated and has a valid existence and the authorization to
transact business as a corporation under the laws of the State of Delaware, with corporate power
and authority to own its properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except for such jurisdictions wherein
the failure to be so qualified and in good standing would not individually or in the aggregate have
a Material Adverse Effect.
(b) The subsidiary of the Company, Fielding Pharmaceutical Company, has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification, except for such
jurisdictions wherein the failure to be so qualified and in good standing would not individually or
in the aggregate have a Material Adverse Effect. All of the outstanding capital stock or other
voting securities of the subsidiary is owned by the Company, directly or indirectly, free and clear
of any lien and free of any other limitation or restriction (including any restriction on the right
to vote, sell or otherwise dispose of such capital stock or other voting securities). Other than
the Company’s 4.75% senior convertible notes (the “Convertible Notes”) and warrants to
purchase 3,343,325 of Company Common Stock (the “2008 Warrants”), there are no outstanding
(i) securities of the Company or its subsidiary which are convertible into or exchangeable for
shares of capital stock or voting securities of the subsidiary or (ii) options or other rights to
acquire from the Company or its subsidiary, or other obligation of the Company or its subsidiary to
issue, any capital stock, voting securities or securities convertible into or exchangeable for
capital stock or voting securities of the subsidiary (collectively, the “Subsidiary
Securities”). There are no outstanding obligations of the Company or its subsidiary to
repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities.
(c) The execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby are within the corporate powers of the Company
and have been duly authorized by all necessary corporate action on the part of the Company, and
this Agreement, when duly executed and delivered by the Company, will constitute a valid and
legally binding instrument of the Company enforceable in accordance with its terms, except as
enforcement hereof may be limited by the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws or court decisions affecting enforcement of creditors’ rights
generally and except as enforcement hereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(d) The Shares have been duly authorized by the Company, and when issued and delivered by the
Company against payment therefor as contemplated by this Agreement, the Shares will (i) be validly
issued, fully paid and nonassessable, (ii) not be subject to any statutory or contractual
preemptive rights or other rights to subscribe for or purchase or acquire any shares of Common
Stock, which have not been waived or complied with, and (iii) conform to the description of the
Common Stock contained in the Prospectus. The capital stock of the Company, including the Common
Stock, conforms as to the legal matters to the description thereof, if any, contained in the
Registration Statement and the Prospectus, and as of the date thereof, the Company had authorized
capital stock as set forth therein. The Shares are in due and
proper form and the holders of Shares will not be subject to personal liability by reason of
being such holders.
(e) The execution and delivery of the Agreement does not, and the compliance by the Company
with the terms hereof will not, (i) violate the Certificate of Incorporation (as amended to date)
of the Company or the By-Laws (as amended to date) of the Company, (ii) result in a breach or
violation of any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
its subsidiary is bound, or (iii) result in a violation of, or failure to be in compliance with,
any applicable statute or any order, judgment, decree, rule or regulation of any court or
governmental, regulatory or self-regulatory agency or body having jurisdiction over the Company or
its subsidiary, except in the case of (ii) and (iii) where such breach, violation, default or the
failure to be in compliance would not have a Material Adverse Effect; and no consent, approval,
authorization, order, registration, filing or qualification of or with any such court or
governmental, regulatory or self-regulatory agency or body is required for the valid authorization,
execution, delivery and performance by the Company of the Agreement or the issuance of the Shares,
except for such consents, approvals, authorizations, registrations, filings or qualifications as
may be required under the Securities Act or state securities or “blue sky” laws and have been or
will be obtained and which have been or will be made in connection with the listing of the Shares
on the NASDAQ Global Market.
(f) The Company meets the requirements for the use of Form S-3 under the Securities Act for
the primary issuance of securities. The Registration Statement has been declared effective by the
Commission and at the time it became effective, and as of the date hereof, the Registration
Statement complied and complies with Rule 415 under the Securities Act. No stop order suspending
the effectiveness of the Registration Statement has been issued and no proceeding for that purpose
has been initiated or, to the Company’s knowledge, threatened by the Commission. On the effective
date of the Registration Statement, the Registration Statement complied, on the date of the
Prospectus, the Prospectus will comply, and at the date of the Closing, the Registration Statement
and the Prospectus will comply, in all material respects with the applicable provisions of the
Securities Act and the applicable rules and regulations of the Commission thereunder; on the
effective date of the Registration Statement, the Registration Statement did not, on the date of
the Prospectus, the Prospectus did not, and at the date of the Closing, the Registration Statement
and the Prospectus will not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made (with respect to the Prospectus), not
misleading; and when filed with the Commission, the documents incorporated by reference in the
Registration Statement and the Prospectus, complied or will comply in all material respects with
the applicable provisions of the Exchange Act and the applicable rules and regulations of the
Commission thereunder. There is no material document of a character required to be described in
the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement that is not described or filed as required.
(g) The consolidated financial statements of the Company included or incorporated by reference
in the Registration Statement and the Prospectus comply as to form with the applicable accounting
requirements of the Securities Act and have been prepared in conformity with generally accepted
accounting principles (except, with respect to the unaudited consolidated financial statements and
the accompanying footnotes which are subject to customary audit adjustments) applied on a
consistent basis, are consistent in all material respects with the books and records of the
Company, and accurately present in all material respects the consolidated financial position,
results of operations and cash flow of the Company and its
subsidiary as of and for the periods covered thereby. There are no other financial statements
(historical or pro forma) that are required to be included in the Registration Statement and the
Prospectus.
(h) There are no material liabilities of the Company or its subsidiary of any kind whatsoever,
whether accrued, contingent, absolute, determined, determinable or otherwise, and there is no
existing condition, situation or set of circumstances which could reasonably be expected to result
in such a liability, other than liabilities disclosed in the consolidated financial statements and
financial schedules of the Company included or incorporated by reference in the Registration
Statement and the Prospectus, and other undisclosed liabilities which, individually or in the
aggregate, are not material to the Company and its subsidiary, taken as a whole.
(i) Neither the Company nor its subsidiary has sustained, since the date of the latest audited
consolidated financial statements included or incorporated by reference in the Registration
Statement and Prospectus, any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as disclosed in or contemplated by the
Registration Statement and Prospectus; and, since the date as of which information is given in the
Prospectus, there has not been any material change in the capital stock or long-term debt of the
Company or its subsidiary, the Company and its subsidiary have not incurred any material
liabilities or obligations, direct or contingent, nor entered into any material transactions,
except for entering into purchase orders in the ordinary course of business, and there has not been
any material adverse change in or affecting the general affairs, assets, business, management,
financial position or condition, stockholders’ equity or results of operations of the Company and
its subsidiary considered as a whole, otherwise than as disclosed in the Registration Statement and
Prospectus.
(j) Other than as disclosed or incorporated by reference in the Prospectus, there are no
legal, governmental or regulatory proceedings pending to which the Company or its subsidiary is a
party or of which any material property of the Company or its subsidiary is the subject which,
taking into account the likelihood of the outcome, the damages or other relief sought and other
relevant factors, would individually or in the aggregate reasonably be expected to have a Material
Adverse Effect or adversely affect the ability of the Company to issue and sell the Shares; to the
best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental
or regulatory authorities or threatened by others.
(k) The Company and its subsidiary have good and marketable title to all the real property and
own all other properties and assets, reflected as owned in the financial statements included or
incorporated by reference in the Registration Statement and the Prospectus, subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except those, if any, reflected in such
financial statements or which are not material to the Company and its subsidiary taken as a whole.
The Company and its subsidiary hold their respective leased real and personal properties under
valid and binding leases, except where the failure to do so would not reasonably be expected to
individually or in the aggregate have a Material Adverse Effect.
(l) The Company has filed all necessary federal and state income and franchise tax returns and
has paid all taxes shown as due thereon or has filed all necessary extensions, and there is no tax
deficiency that has been, or to the knowledge of the Company might be, asserted against the Company
or any of its properties or assets that would in the aggregate or individually reasonably be
expected to have a Material Adverse Affect.
(m) There are no authorized options, warrants, preemptive rights, rights of first refusal or
other rights to purchase, or equity or debt securities convertible into or exchangeable or
exercisable for, any capital stock of the Company or its subsidiary other than those described in
the Registration Statement and the Prospectus or in documents incorporated by reference therein.
There are no holders or beneficial owners of securities of the Company having rights to
registration thereof whose securities have not been previously registered or who have not waived
such rights with respect to the registration of the Company’s securities on the Registration
Statement, except where the failure to obtain such waiver would not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect.
(n) Other than as disclosed in the Prospectus, the Company together with its subsidiary owns
and possesses all right, title and interest in and to, or, to the Company’s knowledge, has duly
licensed from third parties, all patents, patent rights, trade secrets, inventions, know-how,
trademarks, trade names, copyrights, service marks and other proprietary rights (“Intellectual
Property”) material to the business of the Company and its subsidiary taken as a whole as
currently conducted and as described in the Prospectus. To the Company’s knowledge and except as
would not individually or in the aggregate have a Material Adverse Effect, there is no infringement
or other violation by third parties of any of the Intellectual Property of the Company. Neither
the Company nor its subsidiary has received any notice of infringement or misappropriation from any
third party that has not been resolved or disposed of. Further, there is no pending or, to the
Company’s knowledge and except as would not individually or in the aggregate have a Material
Adverse Effect, threatened action, suit, proceeding or claim by governmental authorities or others
that the Company is infringing a patent, and there is no pending or, to the Company’s knowledge and
except as would not individually or in the aggregate have a Material Adverse Effect, threatened
legal or administrative proceeding relating to patents and patent applications of the Company,
other than proceedings initiated by the Company before the United States Patent and Trademark
Office and the patent offices of certain foreign jurisdictions which are in the ordinary course of
patent prosecution. To the Company’s knowledge, the patent applications of the Company presently
on file disclose patentable subject matter, and the Company is not aware of any inventorship
challenges, any interference which has been declared or provoked, or any other material fact that
(i) would preclude the issuance of patents with respect to such applications, or (ii) would lead
outside patent counsel for the Company to reasonably conclude that such patents, when issued, would
not be valid and enforceable in accordance with applicable regulations.
(o) The Company conducts its business in compliance in all respects with applicable laws,
rules and regulations of governmental and regulatory bodies to which it is subject, except where
the failure to be in compliance would not have a Material Adverse Effect.
(p) All offers and sales of the Company’s capital stock prior to the date hereof were at all
relevant times registered pursuant to the Securities Act or exempt from the registration
requirements of the Securities Act and were issued in compliance in all material respects with
applicable state securities or blue sky laws.
(q) The Company has filed with the NASDAQ Global Market a Notification of Listing of
Additional Shares with respect to the Shares required by the rules of the NASDAQ Global Market and
has not received a notice from the NASDAQ Global Market that such notification is insufficient.
The offer and sale of the Shares does not require stockholder approval under Rule 5635 of the
NASDAQ Listing Rules.
(r) Neither the Company nor its subsidiary nor, to the best of the Company’s knowledge, any
employee or agent of the Company or its subsidiary, has (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii)
made any unlawful payment to foreign or domestic government officials or employees or to foreign or
domestic political parties or campaigns from corporate funds, (iii) violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended, or (iv) made any other unlawful payment.
(s) There is no broker, finder or other party that is entitled to receive from the Company any
brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated
by this Agreement.
(t) The Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to permit preparation of
consolidated financial statements in conformity with generally accepted accounting principles and
to maintain accountability for assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. Except as described in the Registration Statement and the Prospectus, since
the most recent audit of the effectiveness of the Company’s internal control over financial
reporting, there has been (i) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (ii) no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting.
(u) The Company has established, maintains and evaluates “disclosure controls and procedures”
(as such term is defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act), which (i) are
designed to ensure that material information relating to the Company is made known to the Company’s
principal executive officer and its principal financial officer by others within the Company and
its subsidiary, particularly during the periods in which the periodic reports required under the
Exchange Act are being prepared, (ii) have been evaluated for effectiveness as of the end of the
last fiscal period covered by the Registration Statement; and (iii) such disclosure controls and
procedures are effective to perform the functions for which they were established. There are no
significant deficiencies and material weaknesses in the design or operation of internal controls
which could adversely affect the Company’s ability to record, process, summarize, and report
financial data to management and the board of directors of the Company. The Company is not aware of
any fraud, whether or not material, that involves management or other employees who have a role in
the Company’s internal controls; and since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no significant changes in internal controls or
in other factors that could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material weaknesses.
(v) The Company and, to its knowledge, all of the Company’s directors or officers, in their
capacities as such, are in compliance in all material respects with all applicable effective
provisions of the Xxxxxxxx-Xxxxx Act and any related rules and regulations promulgated by the
Commission.
(w) The Company is not, nor after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus, will
be, (i) required to register as an “investment company” as defined in the Investment Company
Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of
the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48)
of the Investment Company Act).
(x) The Company maintains insurance in such amounts and covering such risks as it reasonably
considers to be adequate for the conduct of its business and the value of its properties and as is
customary for companies engaged in similar businesses in similar industries. All such insurance is
fully in force on the date hereof and will be fully in force as of the Closing Date. The Company
has no reason to believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not have a Material Adverse Effect.
(y) The Company has not sold or issued any securities that would be integrated with the
offering of the Shares contemplated by this Agreement pursuant to the Securities Act, the published
rules and regulations thereunder, or the interpretations thereof by the Commission.
(z) The section entitled “Management’s Discussion and Analysis of Financial Condition and
Results of Operations—Critical Accounting Policies and Use of Estimates” and the “Summary of
Significant Accounting Policies” described in Note 2 to the audited consolidated financial
statements included in the Company’s most recent Annual Report on Form 10-K and the section
entitled “Management’s Discussion and Analysis of Financial Condition and Results of
Operations—Critical Accounting Policies and Changes to Accounting Policies” included in the
Company’s most recent Quarterly Report on Form 10-Q accurately and fully describes (A) the
accounting policies that the Company believes are the most important in the portrayal of the
Company’s financial condition and results of operations and that require management’s most
difficult, subjective or complex judgments (“Critical Accounting Policies”), and (B) the
judgments and uncertainties affecting the application of Critical Accounting Policies.
(aa) Neither the Company nor, to the Company’s knowledge, any of its officers, directors,
affiliates or controlling persons has taken or will take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might reasonably be expected to
constitute the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(bb) No relationship, direct or indirect, exists between or among the Company on the one hand
and the directors, officers, stockholders, customers or suppliers of the Company on the other hand
which is required to be described in the Registration Statement and the Prospectus which has not
been so described. There are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees or indebtedness by the Company to, or
for the benefit of, any of the current officers or directors of the Company.
(cc) The Company has filed in a timely manner all reports required to be filed pursuant to
Sections 13(a), 13(e), 14 and 15(d) of the Exchange Act during the preceding 12 months (except to
the extent that Section 15(d) requires reports to be filed pursuant to Sections 13(d) and 13(g) of
the Exchange Act, which shall be governed by the next clause of this sentence); and the Company has
filed in a timely manner all reports required to be filed pursuant to Sections 13(d) and 13(g) of
the Exchange Act during the preceding 12 months, except where
the failure to timely file could not reasonably be expected individually or in the aggregate
to have a Material Adverse Effect.
(dd) The Company and its subsidiary (a) are in compliance with any and all applicable foreign,
federal, state and local laws, orders, rules, regulations, directives, decrees and judgments
relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (b) have received
all permits, licenses or other approvals required of them under applicable Environmental Laws to
conduct their business and the same are effective and in use on the date of this Agreement and (c)
are in compliance with all terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of such permits, licenses or
approvals would not, individually or in the aggregate, result in a Material Adverse Effect. There
are no costs or liabilities associated with Environmental Laws (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which would, individually or in the
aggregate, result in a Material Adverse Effect.
(ee) Neither the Company nor its subsidiary is engaged in any unfair labor practice; except
for matters that would not, individually or in the aggregate, result in a Material Adverse Effect
and (i) there is (A) no unfair labor practice complaint pending or, to the Company’s knowledge,
threatened against the Company or its subsidiary before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under collective bargaining agreements is
pending or threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the
Company’s knowledge, threatened against the Company or its subsidiary and (C) no union
representation dispute currently existing concerning the employees of the Company or its
subsidiary, and (ii) to the Company’s knowledge (A) no union organizing activities are currently
taking place concerning the employees of the Company or its subsidiary and (B) there has been no
violation of any federal, state, local or foreign law relating to discrimination in the hiring,
promotion or pay of employees or any applicable wage or hour laws concerning the employees of the
Company or its subsidiary.
(ff) The Company and its subsidiary are in compliance in all material respects with all
applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including
the regulations thereunder (“ERISA”); no “reportable event” (as defined in ERISA) has
occurred with respect to any “pension plan” (as defined in ERISA) for which the Company or its
subsidiary would have any liability; neither the Company nor its subsidiary has incurred and does
not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations thereunder (the “Code”); and each “pension
plan” for which the Company would have any liability that is intended to be qualified under Section
401(a) of the Code is the subject of a favorable opinion or determination letter issued by the
Internal Revenue Service and nothing has occurred, whether by action or by failure to act, which is
reasonably expected to result in the revocation of such determination letter.
(gg) The clinical, pre-clinical and other studies and tests conducted by or on behalf of or
sponsored by the Company or its subsidiary or in which the Company or its subsidiary or products or
product candidates have participated that are described in the
Registration Statement and the Prospectus were and, if still pending, are being conducted in
accordance in all material respects with all statutes, laws, rules and regulations administered by
the Food and Drug Association (“FDA”) and with standard medical and scientific research
procedures. The descriptions in the Registration Statement and the Prospectus of the results of
such studies and tests are accurate and complete in all material respects and fairly present the
published data derived from such studies and tests. Neither the Company nor its subsidiary has
received any notices or other correspondence from the FDA with respect to any ongoing clinical or
pre-clinical studies or tests requiring the termination, suspension or material modification of
such studies or tests, which such termination, suspension or material modification would reasonably
be expected to result in a Material Adverse Effect. The Company and its subsidiary is in
compliance with all applicable laws, regulations, orders and decrees governing its business as
prescribed by the FDA except where noncompliance would not, singly or in the aggregate, result in a
Material Adverse Effect.
3. Investor Representations, Warranties and Acknowledgments.
(a) The Investor represents and warrants that: (i) it has full right, power and authority to
enter into this Agreement and to perform all of its obligations hereunder; (ii) this Agreement has
been duly authorized and executed by the Investor and, when delivered in accordance with the terms
hereof, will constitute a valid and binding agreement of the Investor enforceable against the
Investor in accordance with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights and remedies of
creditors generally or subject to general principles of equity; (iii) the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby do not result in a
breach of (A) the Investor’s articles of incorporation or other governing documents, or (B) any
material agreement or any law or regulation to which the Investor is a party or by which any of its
property or assets is bound; (iv) it has had full access to the base prospectus included in the
Registration Statement, the Prospectus and the Company’s periodic reports and other information
incorporated by reference therein, and was able to read, review, download and print such materials;
(v) in making its investment decision in this offering, the Investor and its advisors, if any, have
relied solely on the Company’s public filings with the Commission; (vi) it is knowledgeable,
sophisticated and experienced in making, and is qualified to make, decisions with respect to
investments in securities representing an investment decision like that involved in the purchase of
the Shares; (vii) except as set forth below, the Investor has had no position, office or other
material relationship within the past three years with the Company or persons known to it to be
affiliates of the Company and (viii), except as set forth below, the Investor is not a, and it has
no direct or indirect affiliation or association with any, Financial Industry Regulatory Authority
member as of the date hereof.
(b) The Investor also represents and warrants that, other than the transactions contemplated
hereunder, the Investor has not directly or indirectly, nor has any person acting on behalf of or
pursuant to any understanding with the Investor, executed any disposition, including “short sales”
as defined in Rule 200 of Regulation SHO under the Exchange Act (the “Short Sales”), in the
securities of the Company during the period commencing from the time that the Investor first became
aware of the proposed transactions contemplated hereunder until the date hereof (“Discussion
Time”). The Investor has maintained
the confidentiality of all disclosures made to it in connection with this transaction
(including the existence and terms of this transaction).
4. Investor Covenant Regarding Short Sales and Confidentiality. The Investor covenants
that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it
will execute any Short Sales during the period after the Discussion Time and ending on the date
that is the later of (a) the date the transactions contemplated by this Agreement are publicly
disclosed and (b) the expiration of the lock-up period set forth in Section 5 of this
Agreement. The Investor covenants that until such time as the transactions contemplated by this
Agreement are publicly disclosed by the Company through a press release, the Investor will maintain
the confidentiality of all disclosures made to it in connection with this transaction (including
the existence and terms of this transaction).
5. Lock-Up. The Investor agrees that it will not, without the prior written consent of
the Company, until the earlier of (i) the execution of the definitive agreements described in the
Head of Terms, (ii) one hundred twenty (120) days after the Closing Date if the Parties agree in
writing to terminate the negotiation of such definitive agreements and (iii) one hundred fifty
(150) days after the Closing Date, offer to sell, contract to sell or otherwise sell (including
without limitation in a short sale) or dispose of any of the shares of Common Stock of the Company,
any options or warrants to purchase any shares of Common Stock of the Company, or any other
securities convertible into or exchangeable for shares of Common Stock of the Company, now owned or
hereafter acquired by the Investor or any of its affiliates or with respect to which the Investor
has the power of disposition, including, without limitation, the Shares.
6. Public Disclosure. The Company shall (i) before the opening of trading on the
NASDAQ Global Market on the next trading day after the date hereof, issue a press release,
disclosing all material aspects of the transactions contemplated hereby, to the extent permitted by
applicable law, and (ii) make such other filings and notices in the manner and time required by the
Commission with respect to the transactions contemplated hereby. The Company shall not identify the
Investor by name in any press release or public filing, or otherwise publicly disclose the
Investor’s name, without the Investor’s prior written consent, unless required by law or the rules
and regulations of any self-regulatory organization or exchange to which the Company or its
securities are subject.
7. Conditions. The obligation of the Investor to purchase and acquire the Shares
hereunder shall be subject to the condition that all representations and warranties and other
statements of the Company shall be true and correct as of and on each of the date of this Agreement
and the Closing Date, the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Securities Act within the applicable time period prescribed for such filing, no stop order
suspending the effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or threatened by the
Commission, and the Investor shall have received the Prospectus in accordance with the federal
securities laws.
(b) Prior to the Closing Date, there shall not have occurred any change, or any development
involving a prospective change, which would constitute a Material Adverse Effect, and that makes it
impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
| 10 | Stock Purchase Agreement |
(c) No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Shares or materially and adversely affect or reasonably be
believed to materially and adversely affect the business or operations of the Company; and no
injunction, restraining order or order of any other nature by any federal or state court of
competent jurisdiction shall have been issued as of the Closing Date which would prevent the
issuance or sale of the Shares or materially and adversely affect or reasonably be believed to
materially and adversely affect the business or operations of the Company.
(d) The Investor shall have received from Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, counsel to
the Company, such counsel’s written opinion, addressed to the Investor and dated the Closing Date,
in form and substance as set forth in Exhibit B.
(e) The Shares shall have been authorized for quotation on the NASDAQ Global Market, Inc.
8. Indemnification.
(a) Indemnification of the Investor. The Company agrees to indemnify and hold harmless the
Investor and its owners, officers, directors, managers, members, agents, advisors, successors and
assigns (each, an “Indemnified Party”), against any losses, claims, damages or liabilities,
joint or several, to which such Indemnified Party may become subject, under the Securities Act or
otherwise (including in settlement of any litigation if such settlement is effected with the
written consent of the Company), insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, including the information
deemed to be a part of the Registration Statement at the time of effectiveness and at any
subsequent time pursuant to Rules 430A and 430B of the Rules and Regulations promulgated under the
Securities Act, if applicable, the Prospectus, or any amendment or supplement thereto (including
any documents filed under the Exchange Act and deemed to be incorporated by reference into the
Prospectus), any Issuer Free Writing Prospectus or in any materials or information provided to
investors by, or with the approval of, the Company in connection with the marketing of the offering
of the Common Stock (“Marketing Materials”), including any roadshow or investor
presentations made to investors by the Company (whether in person or electronically), or arise out
of or are based upon the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, and will reimburse
each Indemnified Party for any legal or other expenses reasonably incurred by it in connection with
investigating or defending against such loss, claim, damage, liability or action; or (ii) in whole
or in part upon any inaccuracy in the representations and warranties of the Company contained
herein; or (iii) in whole or in part upon any failure of the Company to perform its obligations
hereunder or under law; provided, however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission made in the Prospectus
Supplement in reliance upon and in conformity with written information furnished to the Company by
the Indemnified Party, specifically for use in the preparation thereof.
In addition to their other obligations under this Section 8(a), the Company agrees
that, as an interim measure during the pendency of any claim, action, investigation, inquiry or
other proceeding brought or threatened against the Indemnified Party and which arises out of or
based upon any statement or omission, or any alleged statement or omission, described in this
Section 8(a),
| 11 | Stock Purchase Agreement |
they will reimburse each Indemnified Party on a monthly basis for all reasonable legal fees or
other expenses incurred in connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination
as to the propriety and enforceability of the Company’s obligation to reimburse such Indemnified
Party for such expenses and the possibility that such payments might later be held to have been
improper by a court of competent jurisdiction. To the extent that any such interim reimbursement
payment is so held to have been improper or the Indemnified Party is otherwise determined not to be
entitled to indemnification under this Section 8(a), each Indemnified Party that received
such payment shall promptly return it to the party or parties that made such payment, together with
interest, determined on the basis of the prime rate (or other commercial lending rate for borrowers
of the highest credit standing) announced from time to time by The Wall Street Journal (the
“Prime Rate”). Any such interim reimbursement payments which are not made to an
Indemnified Party within 30 days of a request for reimbursement shall bear interest at the Prime
Rate from the date of such request. This indemnity agreement shall be in addition to any
liabilities which the Company may otherwise have.
(b) Notice and Procedures. Promptly after receipt by an Indemnified Party under subsection (a)
above of notice of the commencement of any action, such Indemnified Party shall, if a claim in
respect thereof is to be made against the Company under such subsection, notify the Company in
writing of the commencement thereof; but the omission so to notify the Company shall not relieve
the Company from any liability that it may have to any Indemnified Party except to the extent the
Company has been materially prejudiced by such failure. In case any such action shall be brought
against any Indemnified Party, and it shall notify the Company of the commencement thereof, the
Company shall be entitled to participate in, and, to assume the defense thereof, with counsel
satisfactory to such Indemnified Party, and after notice from the Company to such Indemnified Party
of the Company’s election so to assume the defense thereof, the Company shall not be liable to such
Indemnified Party under such subsection for any legal or other expenses subsequently incurred by
such Indemnified Party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that if, in the sole judgment of the Indemnified Party, it is
advisable for the Indemnified Party to be represented by separate counsel, the Indemnified Party
shall have the right to employ a single counsel to represent such Indemnified Party, in which event
the reasonable fees and expenses of such separate counsel shall be borne by the Company and
reimbursed to the Indemnified Party as incurred (in accordance with the provisions of the second
paragraph in subsection (a) above).
The Company under this Section 8 shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Company agrees to indemnify each Indemnified Party against
any loss, claim, damage, liability or expense by reason of such settlement or judgment to the
extent such party is entitled to indemnification pursuant to subsection (a) above. Notwithstanding
the foregoing sentence, if at any time an Indemnified Party shall have requested the Company to
reimburse such Indemnified Party for fees and expenses of counsel as contemplated by this
Section 8, the Company agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 30 days after
receipt by the Company of the aforesaid request and (ii) the Company shall not have reimbursed the
Indemnified Party in accordance with such request prior to the date of such settlement. The
Company shall not, without the prior written consent of the Indemnified Party, effect any
settlement, compromise or consent to the entry of judgment in any pending or threatened action,
suit or proceeding in respect of which any Indemnified Party is or could have been a party and
indemnity was or could have been sought hereunder by such Indemnified Party, unless such
settlement, compromise or consent (a) includes an unconditional release of such Indemnified Party
from all liability on claims that are the subject matter of such action, suit or proceeding and
| 12 | Stock Purchase Agreement |
(b) does not include a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any Indemnified Party.
(c) Contribution; Limitation on Liability. If the indemnification provided for in this
Section 8 is unavailable or insufficient to hold harmless an Indemnified Party otherwise
entitled to indemnification under subsection (a) above, then the Company shall contribute to the
amount paid or payable by such Indemnified Party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) above, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the Indemnified Party on
the other from the offering of the Shares or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of the Company on the
one hand and the Indemnified Party on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, 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 or the Indemnified
Party and the parties’ relevant intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company and the Indemnified Party agree that it
would not be just and equitable if contributions pursuant to this Section 8(c) were to be
determined by pro rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the first sentence of this Section 8(c).
The amount paid by an Indemnified Party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 8(c) shall be deemed to include any legal
or other expenses reasonably incurred by such Indemnified Party in connection with investigating or
defending against any action or claim which is the subject of this Section 8(c).
Notwithstanding the provisions of this Section 8(c), no Indemnified Party shall be required
to contribute any amount in excess of the amount received by it (net of expenses) from the public
sale of Shares purchased by it pursuant to this Agreement. 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.
(d) Non-Exclusive Remedies. The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Indemnified Party within the
meaning of the Securities Act. Each Indemnified Party shall also have all rights and remedies
available to it under the law and in equity, in addition to the rights and benefits of this
Section 8.
(e) Survival. Except in the case of fraud, gross negligence or willful misconduct, the
provisions of this Section 8 shall survive until the first anniversary of the Closing Date.
9. Miscellaneous.
(a) Definitions. As used herein, the following terms have the meanings indicated:
| 13 | Stock Purchase Agreement |
(i) “Material Adverse Effect” means a material adverse effect on the results of
operations, assets, business, or financial condition of the Company and the its subsidiary, taken
as a whole, or a material adverse effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under this Agreement or to consummate any transactions
contemplated by this Agreement.
(ii) “Prospectus” means the prospectus forming a part of the Registration Statement
and the prospectus supplement relating to the Shares in the form first filed pursuant to Rule
424(b) under the Securities Act, as amended (the “Securities Act”), as further amended or
supplemented prior to the execution of this Agreement, and shall include all information and
documents incorporated by reference in such prospectus.
(b) This Agreement constitutes the entire understanding and agreement between the parties with
respect to the subject matter hereof, and there are no agreements or understandings with respect to
the subject matter hereof which are not contained in this Agreement. Notwithstanding any
investigation made by any party to this Agreement, all covenants, agreements, representations and
warranties made by the Company and the Investor herein will survive the execution of this
Agreement, the delivery to the Investor of the Shares being purchased and the payment therefor
until the first anniversary of the Closing Date. This Agreement may be modified only in writing
signed by the parties hereto.
(c) This Agreement may be executed in any number of counterparts, all of which taken together
shall constitute one and the same instrument and shall become effective when counterparts have been
signed by each party and delivered to the other parties hereto, it being understood that all
parties need not sign the same counterpart. Execution may be made by delivery by facsimile, PDF or
other electronically transmitted means.
(d) The provisions of this Agreement are severable and, in the event that any court or
officials of any regulatory agency of competent jurisdiction shall determine that any one or more
of the provisions or part of the provisions contained in this Agreement shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of this Agreement and
this Agreement shall be reformed and construed as if such invalid or illegal or unenforceable
provision, or part of such provision, had never been contained herein, so that such provisions
would be valid, legal and enforceable to the maximum extent possible, so long as such construction
does not materially adversely effect the economic rights of either party hereto.
(e) All communications hereunder, except as may be otherwise specifically provided herein,
shall be in writing and shall be mailed, hand delivered, sent by a recognized overnight courier
service such as Federal Express, or sent via facsimile and confirmed by letter, to the party to
whom it is addressed at the following addresses or such other address as such party may advise the
other in writing:
To the Company: as set forth on the signature page hereto.
To the Investor: as set forth on the signature page hereto.
All notices hereunder shall be effective upon receipt by the party to which it is addressed.
(f) This Agreement shall be governed by and interpreted in accordance with the laws of the
State of Delaware for contracts to be wholly performed in such
| 14 | Stock Purchase Agreement |
state and without giving effect to the principles thereof regarding the conflict of laws. To
the extent determined by such court, the prevailing party shall reimburse the other party for any
reasonable legal fees and disbursements incurred in enforcement of, or protection of any of its
rights under this Agreement.
| 15 | Stock Purchase Agreement |
If the foregoing correctly sets forth our agreement, please confirm this by signing and
returning to us the duplicate copy of this Agreement.
| NOVAVAX, INC. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Xxxxx Xxxxxxx President and Chief Executive Officer |
||||
| Address for Notice: Novavax, Inc. 0000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 Facsimile: 000-000-0000 Email: xxxxxxxx@xxxxxxx.xxx Attention: Chief Executive Officer |
||||
| LABORATORIOS FARMACEUTICOS ROVI S.A. |
||||
| By: | /s/ Xxxx Xxxxx-Belronte Encina | |||
| Name: | Xxxx Xxxxx-Belronte Encina | |||
| Title: | Head of Corporate Development | |||
Address for Notice:
Facsimile:
Email:
Attention:
Email:
Attention:
