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Exhibit 2
NOTE PURCHASE AGREEMENT
BY AND BETWEEN
NOVAVAX, INC.
AND
KING PHARMACEUTICALS, INC.
DATED AS OF DECEMBER 19, 2000
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TABLE OF CONTENTS
PAGE
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SECTION 1. PURCHASE AND SALE OF THE NOTES........................................................................2
1.1 Sale and Issuance of the First Note.............................................................2
1.2 Sale and Issuance of the Second Note............................................................2
1.3 Closings........................................................................................2
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................................................3
2.1 Organization, Good Standing and Qualification...................................................3
2.2 Authorization...................................................................................3
2.3 Valid Issuance of the Note Shares and Listing...................................................4
2.4 Capitalization; Indebtedness....................................................................4
2.5 SEC Reports and Certain Changes.................................................................6
2.6 Financial Statements and Title to Assets........................................................6
2.7 Contracts.......................................................................................7
2.8 Compliance and Permits..........................................................................7
2.9 Compliance with Other Instruments...............................................................8
2.10 Governmental Consents...........................................................................8
2.11 Litigation......................................................................................9
2.12 Taxes...........................................................................................9
2.13 Intellectual Property...........................................................................9
2.14 Brokerage.......................................................................................9
2.15 Fielding Acquisition Agreement.................................................................10
SECTION 3. REPRESENTATIONS AND WARRANTIES OF KING...............................................................10
3.1 Organization, Good Standing and Qualification..................................................10
3.2 Authorization..................................................................................11
3.3 Governmental Consents..........................................................................11
3.4 Accredited Investor............................................................................11
SECTION 4. FILINGS AND AUTHORIZATIONS...........................................................................11
SECTION 5. COMPANY COVENANTS....................................................................................12
SECTION 6. CONDITIONS TO OBLIGATION OF EACH PARTY TO EFFECT THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT........................................................13
SECTION 7. CONDITIONS OF KING'S OBLIGATIONS
AT EACH CLOSING....................................................................................13
SECTION 8. CONDITIONS OF THE COMPANY'S OBLIGATIONS
AT EACH CLOSING....................................................................................15
SECTION 9. TERMINATION..........................................................................................16
9.1 Termination....................................................................................16
9.2 Effect of Termination..........................................................................17
SECTION 10. MISCELLANEOUS........................................................................................17
10.1 Survival.......................................................................................17
10.2 Assignment; Successors and Assigns.............................................................17
10.3 Governing Law..................................................................................18
10.4 Counterparts...................................................................................18
10.5 Titles and Subtitles...........................................................................18
10.6 Notices........................................................................................18
10.7 Expenses.......................................................................................19
10.8 Publicity......................................................................................20
10.9 Amendments and Waivers.........................................................................20
10.10 Severability...................................................................................20
10.11 Entire Agreement...............................................................................20
10.12 Jurisdiction; Venue............................................................................20
10.13 Specific Performance...........................................................................22
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SCHEDULES
Schedule 2.4(c)........................ Registration Rights
Schedule 2.4(d)........................ Preemptive and Antidilution Rights
Schedule 2.14.......................... Brokerage Fees
Schedule 5(a)(iii)..................... Efficacy Confirmation
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EXHIBITS
Exhibit A.............................. Form of Note
Exhibit B.............................. Investor Rights Agreement
Exhibit C.............................. Registration Rights Agreement
Exhibit D.............................. Form of Legal Opinion
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SECTION
INDEX OF DEFINED TERMS
Section
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1995 Plan..................................................... 2.4(a)
1999 10-K..................................................... 2.5(a)
Accredited Investor........................................... 3.4
Agreement..................................................... PREAMBLE
Closing....................................................... 1.3(b)
Closing Location.............................................. 1.3(a)
Common Stock.................................................. RECITALS
Company....................................................... PREAMBLE
Company Stock Option Plans.................................... 2.4(a)
Convertible Note.............................................. RECITALS
Consultant Opinion Letters.................................... 5(a)(ii)
Director Plan................................................. 2.4(a)
Exchange...................................................... 2.3
Exchange Act.................................................. 2.4(c)
Existing Warrants............................................. 2.4(a)
FDA........................................................... 5(a)(i)
FDA Written Notice............................................ 5(a)(i)
Fielding...................................................... 1.3(a)
Fielding Acquisition Agreement................................ 1.3(a)
First Closing................................................. 1.3(a)
First Note.................................................... 1.1
HPV License Agreement......................................... RECITALS
HSR Act....................................................... 2.10
Investor Rights Agreement..................................... RECITALS
King.......................................................... PREAMBLE
Maryland Process Agent........................................ 10.12(c)
Material Adverse Effect....................................... 2.1
Material Contracts............................................ 2.7
Nasdaq........................................................ 2.3
Note Shares................................................... 2.2
Notes......................................................... 1.2
Parkedale..................................................... RECITALS
Preferred Stock............................................... 2.4(a)
Quintiles..................................................... 5(a)(ii)
Quintiles Efficacy Confirmation............................... 5(a)(iii)
Registration Rights Agreement................................. RECITALS
Related Agreements............................................ RECITALS
SEC........................................................... 2.5(a)
SEC Filings................................................... 2.5(a)
Second Closing................................................ 1.3(b)
Second Note................................................... 1.2
Securities Act................................................ 2.4(c)
Tennessee Process Agent....................................... 10.12(b)
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NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT (this "AGREEMENT") is made as of the 19th
day of December, 2000 by and between NOVAVAX, INC., a Delaware corporation (the
"COMPANY"), and KING PHARMACEUTICALS, INC., a Tennessee corporation ("KING").
WHEREAS, King wishes to purchase from the Company, and the Company
wishes to sell to King, 4% Convertible Senior Notes in the form of EXHIBIT A
attached hereto (each a "CONVERTIBLE NOTE") in the aggregate principal amount of
Twenty-Five Million Dollars ($25,000,000), all subject to and in accordance with
the terms and conditions of this Agreement;
WHEREAS, shares of common stock, par value $0.01 per share, of the
Company (the "COMMON STOCK") shall be issuable upon the conversion of, and as
interest payments on, the Convertible Notes;
WHEREAS, as a condition to the consummation of the First Closing of
this Agreement, King and the Company have agreed to enter into an Investor
Rights Agreement in the form of EXHIBIT B attached hereto (the "INVESTOR RIGHTS
AGREEMENT");
WHEREAS, as a condition to the consummation of the First Closing of
this Agreement, King and the Company have agreed to enter into a Registration
Rights Agreement in the form of EXHIBIT C attached hereto (the "REGISTRATION
RIGHTS AGREEMENT"); and
WHEREAS, as a condition to King entering into this Agreement, the
Company and Parkedale Pharmaceuticals, Inc., a subsidiary of King ("PARKEDALE")
have entered into a License Agreement dated as of the date hereof (the "HPV
LICENSE AGREEMENT" and together with the Registration Rights Agreement and the
Investor Rights Agreement, collectively, the "RELATED AGREEMENTS") pursuant to
which the Company will supply certain proprietary manufacturing cell banks to
Parkedale so that Parkedale can develop products to treat or prevent human
papillomavirus and/or cervical cancer.
NOW THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein contained, the
parties hereto, intending to be legally bound, agree as follows:
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SECTION 1. PURCHASE AND SALE OF THE NOTES.
1.1 SALE AND ISSUANCE OF THE FIRST NOTE.
Subject to the terms and conditions of this Agreement, the
Company agrees to sell and issue to King, and King agrees to purchase from the
Company, at the First Closing (as defined below) a Convertible Note in the
principal amount of Twenty Million Dollars ($20,000,000) (the "FIRST NOTE").
1.2 SALE AND ISSUANCE OF THE SECOND NOTE.
Subject to the terms and conditions of this Agreement, the
Company agrees to sell and issue to King, and King agrees to purchase from the
Company, at the Second Closing (as defined below) a Convertible Note in the
principal amount of Five Million Dollars ($5,000,000) (the "SECOND NOTE" and
together with the First Note, the "NOTES").
1.3 CLOSINGS.
(a) The closing for the purchase and sale of the First Note
(the "FIRST CLOSING"), shall take place at the offices of Xxxxx & Xxxxxxx
L.L.P., 0000 Xxxxxxxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000 (the "CLOSING LOCATION"),
subject to the satisfaction or waiver of the applicable conditions set forth in
SECTIONS 6, 7 AND 8 hereof, simultaneously with the closing of the Company's
acquisition of The Fielding Pharmaceutical Company ("FIELDING") pursuant to the
terms and conditions of that certain Agreement and Plan of Merger dated as of
October 4, 2000, by and among the Company, Fielding and the other parties
thereto (the "FIELDING ACQUISITION AGREEMENT"), or at such other time and place
as the Company and King mutually agree upon in writing.
(b) The closing for the purchase and sale of the Second Note
(the "SECOND Closing", with each of the First Closing and Second Closing being
referred to herein individually as a "CLOSING") shall take place at the Closing
Location as promptly as practicable after the satisfaction or waiver of the
applicable conditions set forth in SECTIONS 6, 7 AND 8 hereof, or at such other
time and place as the Company and King mutually agree upon in writing. Assuming
satisfaction of all the conditions precedent to the Company's obligation to
consummate the Second Closing set forth in SECTIONS 6 AND 8, the parties
acknowledge and agree that notwithstanding any provision to the contrary
contained in this Agreement or any Related Agreement, the Second Closing shall
take place on a date specified by King in a written notice to the Company;
PROVIDED that such date shall not be earlier than the twentieth (20th) day
following the date of the Company's receipt of such written notice from King.
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(c) At the First Closing, among other things, the Company
shall deliver to King the fully executed First Note. In consideration of such
delivery, King shall deliver to the Company the amount of the principal of the
First Note in immediately available funds by wire transfer of funds to the
Company's designated bank account.
(d) At the Second Closing, among other things, the Company
shall deliver to King the fully executed Second Note. In consideration of such
delivery, King shall deliver to the Company the amount of the principal of the
Second Note in immediately available funds by wire transfer of funds to the
Company's designated bank account.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to King that:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION.
The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to carry on its business as now
conducted and as proposed to be conducted. The Company is duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure so to qualify would have a material adverse effect on the business,
operations, properties, assets, prospects or condition (financial or otherwise)
of the Company and its subsidiaries taken as a whole (a "MATERIAL ADVERSE
EFFECT"). Except as disclosed in the 1999 10-K (as defined below) and except for
Fielding Acquisition Corp., the Company has no subsidiaries.
2.2 AUTHORIZATION.
The Company has all requisite corporate power and authority
(a) to execute, deliver and perform its obligations under this Agreement, the
Notes and the Related Agreements, (b) to issue the Notes and the shares of
Common Stock issuable upon the conversion of, and as interest payments on, the
Notes (the "NOTE SHARES"), in the manner and for the purpose contemplated by
this Agreement, the Notes and the Related Agreements, and (c) to execute,
deliver and perform its obligations under all other agreements and instruments
executed and delivered by it pursuant to or in connection with this Agreement
and the Related Agreements. All corporate action on the part of the Company, its
officers, directors and stockholders for the authorization, execution and
delivery of this Agreement, and the Related Agreements and the performance of
all obligations of the Company hereunder and thereunder and the authorization,
issuance (or reservation for issuance) and delivery of the Notes and the Note
Shares (when issued) has been taken or will be taken prior to the First Closing
or the Second Closing, as the case may be. This Agreement
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and the HPV License Agreement constitute, and each Note and other Related
Agreement when executed by the Company will constitute, valid and legally
binding obligations of the Company, enforceable in accordance with their
respective terms, except (x) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally and (y) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
2.3 VALID ISSUANCE OF THE NOTE SHARES AND LISTING.
The Note Shares will be duly and validly issued, fully paid
and nonassessable and not subject to preemptive or similar rights, and such Note
Shares will be issued in compliance with all applicable federal and state
securities laws, when issued, sold and delivered in accordance with the terms of
the Notes and the Investor Rights Agreement for the consideration expressed
therein. The Note Shares will be listed on the principal U.S. national
securities exchange on which the Common Stock is listed or, if the Common Stock
is listed on the Nasdaq National Market ("NASDAQ"), then the Note Shares will be
listed on Nasdaq (such place of listing of the Note Shares, the "EXCHANGE"),
subject only to official notice of issuance. No approval of the stockholders of
the Company is required to issue the Notes or the Note Shares under the rules
and regulations of the Exchange, including, without limitation, Sections 712 and
713 of the Listing Standards, Policies and Requirements of the American Stock
Exchange.
2.4 CAPITALIZATION; INDEBTEDNESS.
(a) The authorized capital stock of the Company consists of
fifty million (50,000,000) shares of Common Stock and two million (2,000,000)
shares of preferred stock, $.01 par value per share (the "PREFERRED STOCK"). As
of December 12, 2000: (i) nineteen million five hundred ninety thousand seven
hundred ninety-three (19,590,793) shares of Common Stock were issued and
outstanding; (ii) three million five hundred fifty-five thousand one hundred
eighty-five (3,555,185) shares of Common Stock were reserved for issuance upon
the exercise of outstanding stock options or other rights to purchase or receive
the Common Stock granted under the Company's 1995 Stock Option Plan (the "1995
PLAN"); (iii) four hundred twenty thousand (420,000) shares of Common Stock were
reserved for issuance upon the exercise of outstanding stock options or other
rights to receive the Common Stock granted under the Company's Director Stock
Option Plan (the "DIRECTOR PLAN" and together with the 1995 Plan, the "COMPANY
STOCK OPTION PLANS"); (iv) four hundred seventy-nine thousand four hundred
eighty-three (479,483) shares of Common Stock were held by the Company in the
Company's treasury; (v) no shares of Preferred Stock were issued or outstanding;
and (vi) warrants to purchase one million four hundred seventy-eight thousand
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eight hundred twenty-six (1,478,826) shares of Common Stock were issued and
outstanding (the "EXISTING WARRANTS").
(b) The maximum number of shares of Common Stock issuable at
the Closing of the Fielding Acquisition Agreement is Three Million Three Hundred
Sixty Three Thousand Six Hundred Thirty Six (3,363,636) shares of Common Stock.
(c) All outstanding shares of capital stock of the Company are
duly authorized, validly issued, fully paid and nonassessable and not subject to
preemptive or similar rights. Except as set forth in this SECTION 2.4 and except
for changes resulting from the issuance of shares of Common Stock pursuant to
the Company Stock Option Plans, the Existing Warrants and the Fielding
Acquisition Agreement, or as expressly permitted by this Agreement, (i) there
are not issued, reserved for issuance or outstanding (A) any shares of capital
stock or other voting securities of the Company, (B) any securities of the
Company or any Company subsidiary convertible into or exchangeable or
exercisable for shares of capital stock or voting securities of or ownership
interests in the Company or any Company subsidiary, (C) any warrants, calls,
options or other rights to acquire from the Company or any Company subsidiary,
or any obligation of the Company or any Company subsidiary to issue, any capital
stock, voting securities or other ownership interests in, or securities
convertible into or exchangeable or exercisable for capital stock or voting
securities of or other ownership interests in, the Company or any Company
subsidiary, (ii) there are no outstanding obligations of the Company or any
Company subsidiary to repurchase, redeem or otherwise acquire any such
securities or to issue, deliver or sell, or cause to be issued, delivered or
sold, any such securities, and (iii) except as contemplated in this Agreement or
as set forth on SCHEDULE 2.4(c), the Company is not presently under any
obligation, has not agreed or committed, and has not granted rights, to register
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), or the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), or otherwise
file any registration statement under the Securities Act or the Exchange Act
covering, any of its currently outstanding capital stock or other securities or
any of its capital stock or other securities that may be subsequently issued.
(d) Except as provided for in this Agreement and the Related
Agreements, and except as set forth on SCHEDULE 2.4(d), neither the Company nor
any Company subsidiary is a party to any agreement granting any preemptive or
antidilutive rights with respect to any securities of the Company or any Company
subsidiary that are outstanding as of the date hereof, or with respect to any
securities of the Company or any Company subsidiary that may be subsequently
issued upon the conversion or exercise of any instrument outstanding as of the
date hereof. The execution, delivery and performance of this Agreement and the
Related Agreements and the issuance of
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the Notes and the Note Shares will not trigger any of the preemptive or
antidilutive rights under any of the agreements set forth on SCHEDULE 2.4(d)
hereto. Other than the Company subsidiaries, the Company does not directly or
indirectly beneficially own any securities or other beneficial ownership
interests in any other person. A list of all of the Company subsidiaries, other
than Fielding Acquisition Corp., is set forth in an exhibit to the 1999 10-K.
(e) Except for the Notes to be issued hereunder, the Company
has no Indebtedness (as defined in the Investor Rights Agreement).
2.5 SEC REPORTS AND CERTAIN CHANGES.
(a) The Company has heretofore filed with the United States
Securities and Exchange Commission (the "SEC") all forms, statements, reports
and documents (together with all exhibits, amendments and supplements thereto,
the "SEC FILINGS") required to be filed by the Company under each of the
Securities Act and the Exchange Act and the SEC rules and regulations
thereunder, including an Annual Report on Form 10-K for the year ended December
31, 1999 (the "1999 10-K"). As of their respective filing dates, none of the SEC
Filings, at the time they were filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements made, in the light of the
circumstances under which they were made, not misleading. Since December 31,
1999, the Company has timely filed with the SEC all SEC Filings required to be
filed since such date, and all such SEC Filings complied with all applicable
requirements of the Securities Act and the Exchange Act, as applicable, and the
rules and regulations thereunder. The Company has previously made available or
delivered to King copies of the SEC Filings.
(b) Since December 31, 1999, and except as set forth in SEC
Filings or otherwise previously disclosed to King in writing, there has been no
change in the business, assets, liabilities, financial condition or operating
results of the Company from that reflected in the 1999 10-K, except changes in
the ordinary course of business that have not, individually or in the aggregate,
resulted in and are not reasonably expected to result in a Material Adverse
Effect.
2.6 FINANCIAL STATEMENTS AND TITLE TO ASSETS.
The audited consolidated financial statements of the Company
included or incorporated by reference in the 1999 10-K and the unaudited interim
financial statements contained in the quarterly reports on Form 10-Q for the
first three quarters in the year ending December 31, 2000 have been prepared in
accordance with the published rules and regulations of the SEC and with U.S.
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated therein and with each other,
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except as may be indicated therein or in the notes thereto, and fairly present
in all material respects the financial condition of the Company and its
subsidiaries as of the respective dates thereof and the results of their
operations and statements of cash flows for the respective periods then ended,
subject, in the case of unaudited interim financial statements, to usual
year-end adjustments. Except as reflected in such financial statements, the
Company and its subsidiaries have no material liabilities, absolute or
contingent, other than ordinary course liabilities incurred since the date of
the last such financial statements in connection with the conduct of the
business of the Company and its subsidiaries. Except as otherwise set forth in
the SEC Filings, the Company and its subsidiaries have (a) good and marketable
title to all material property and assets reflected as owned by the Company or
its subsidiaries in the financial statements to the 1999 10-K (or as disclosed
in the SEC Filings), and (b) valid and enforceable leasehold interests in all
material property and assets reflected as leased by the Company or its
subsidiaries in the financial statements to the 1999 10-K (or as disclosed in
the SEC Filings).
2.7 CONTRACTS.
With respect to each of the material contracts, commitments
and agreements of the Company and its subsidiaries ("MATERIAL CONTRACTS"),
neither the Company nor any of its subsidiaries is, or has actual knowledge that
any other party is, in default under or in respect of any Material Contract, the
result of which default would have a Material Adverse Effect.
2.8 COMPLIANCE AND PERMITS.
(a) Except as disclosed in the SEC Filings, each of the
Company and its subsidiaries has complied with, and is not in default under or
in violation of, (i) its Certificate of Incorporation, By-laws or other
organizational document or (ii) any laws, ordinances and regulations or other
governmental restrictions, orders, judgments or decrees applicable to each of
the Company and its subsidiaries, except, in the case of clause (ii), for any
such default or violation which would not have a Material Adverse Effect. Except
as disclosed in the SEC Filings, neither the Company nor any of its subsidiaries
has received notice of any possible or actual violation of any applicable law,
ordinance, regulation, or order, the result of which violation would be
reasonably expected to have a Material Adverse Effect. Neither the execution and
delivery of this Agreement, the Notes or any of the Related Agreements, nor the
consummation of the transactions contemplated hereby or thereby will violate,
conflict with or result in a breach or result in the acceleration or termination
of, or the creation in any third party of the right to accelerate, terminate,
modify or cancel, any material indenture, contract, lease, sublease, loan
agreement, note or other material obligation or liability to which the Company
or any of its subsidiaries is a party or is bound or to which any of its assets
are subject.
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(b) Except as disclosed in SEC Filings, each of the Company
and its subsidiaries has, and is not in default in any material respect under,
all governmental franchises, permits, licenses, and any similar authority
necessary for the conduct of its business as now being conducted by it, the lack
of which would be reasonably expected to have a Material Adverse Effect.
2.9 COMPLIANCE WITH OTHER INSTRUMENTS.
The execution, delivery and performance of this Agreement or
any of the Related Agreements and the transactions contemplated hereby and
thereby will not result in any violation of or constitute, with or without the
passage of time and the giving of notice, a default under any provision of (a)
the Certificate of Incorporation, By-laws or other organizational document of
the Company or any of its subsidiaries or (b) any material provision of any
material indenture, agreement or other instrument by which the Company or any of
its subsidiaries or any of their properties or assets are bound, or result in
the creation or imposition of any lien, or encumbrance upon any of the material
properties or assets of the Company or any of its subsidiaries, except, in the
case of clause (b), for any such default or violation which would not have in
any such event a Material Adverse Effect.
2.10 GOVERNMENTAL CONSENTS.
Except for (a) any notification required to be filed or
supplied pursuant to the Xxxx-Xxxxx Xxxxxx Antitrust Improvements Act of 1976,
as amended, and the rules promulgated thereunder (the "HSR ACT") in connection
with the conversion of the Notes, (b) registration of the Note Shares under the
Securities Act pursuant to the Registration Rights Agreement, (c) listing of the
Note Shares on the Exchange, (d) any filings required under federal and state
securities laws in connection with the issuance of the Notes or the Note Shares,
and (e) any consents, approvals, orders or authorizations of, or registrations,
qualifications, designations, declarations or filings with, any federal, state
or local governmental authority as provided for in the HPV License Agreement, no
consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or local
governmental authority is required on the part of the Company in connection with
the Company's valid execution, delivery and performance of this Agreement, the
Notes or any of the Related Agreements. The filings under federal and state
securities laws, if any, will be effected by the Company at its cost within the
applicable stipulated statutory period.
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2.11 LITIGATION.
There is no action, suit, proceeding or investigation pending
or, to the knowledge of the Company, currently threatened against the Company or
any of its subsidiaries which questions the validity of this Agreement, the
Notes or any of the Related Agreements, or the right of the Company to enter
into such agreements and instruments or to consummate the transactions
contemplated hereby or thereby. Except as disclosed in SEC Filings, there is no
action, suit, proceeding or investigation pending or, to the knowledge of the
Company, currently threatened against the Company, which singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have or would reasonably be expected to have a Material Adverse Effect.
2.12 TAXES.
Each of the Company and its subsidiaries has filed all
federal, state, foreign and other tax returns which are required to be filed and
has heretofore paid all taxes which have become due and payable, except where
the failure to file or pay would not be reasonably expected to have a Material
Adverse Effect.
2.13 INTELLECTUAL PROPERTY.
Except as disclosed in the SEC Filings, to the knowledge of
the Company, each of the Company and its subsidiaries owns, or possesses
adequate rights to use, all of the patents, patent rights, trade secrets,
know-how, proprietary techniques, including processes and substances,
trademarks, service marks, trade names and copyrights described or referred to
in the SEC Filings or owned or used by it or which is necessary for the conduct
of its business as presently conducted, except where the failure to own or
possess such patents, patent rights, trade secrets, know-how, proprietary
techniques, including processes and substances, trademarks, service marks, trade
names and copyrights would not have a Material Adverse Effect. Except as
disclosed in the SEC Filings, neither the Company nor any of its subsidiaries
has received any notice of infringement of or conflict with asserted rights of
others with respect to any patents, patent rights, trade secrets, know-how,
proprietary techniques, including processes and substances, trademarks, service
marks, trade names and copyrights which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would be reasonably
expected to have a Material Adverse Effect.
2.14 BROKERAGE.
Except as set forth on SCHEDULE 2.14, there are no claims,
agreements, or commitments for brokerage commissions or finder's fees or
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similar compensation in connection with the transactions contemplated by this
Agreement, the Related Agreements, the acquisition of Fielding or otherwise,
based on any arrangement made by or on behalf of the Company or any of its
subsidiaries, and the Company agrees to indemnify and hold King harmless against
any damages incurred as a result of any such claim, agreement, or commitment.
2.15 FIELDING ACQUISITION AGREEMENT.
The Company and its subsidiaries have not waived any of their
rights under, or any of the conditions to the obligation of the Company to
consummate any transaction contemplated by, the Fielding Acquisition Agreement.
Neither the Company nor any other party to the Fielding Acquisition Agreement is
in material breach of, or has defaulted under, any of the terms of the Fielding
Acquisition Agreement. The Fielding Acquisition Agreement constitutes a legal,
valid and binding obligation of the Company, Fielding and the other parties
thereto enforceable in accordance with its terms, except (x) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally and (y)
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies. The Company is not and, to
Company's knowledge, no other party to the Fielding Acquisition Agreement is,
subject to any judgment, award, order, writ, injunction, arbitration decision or
decree which prohibits the performance of the Fielding Acquisition Agreement or
the consummation of any transaction contemplated under the Fielding Acquisition
Agreement. There is no action (a) pending or, to the Company's knowledge,
threatened against or affecting the Company or (b) to the Company's knowledge,
pending or threatened against or affecting any other party to the Fielding
Acquisition Agreement in any federal, state or local court, or before any
governmental authority or arbitrator that would adversely affect the ability of
the Company or any other party to the Fielding Acquisition Agreement to
consummate, or that would prohibit, the transactions contemplated under the
Fielding Acquisition Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF KING.
King hereby represents and warrants that:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION.
King is a corporation duly organized, validly existing and in
good standing under the laws of the State of Tennessee and has all requisite
corporate power and authority to carry on its business as now conducted and as
proposed to be conducted.
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3.2 AUTHORIZATION.
All corporate action on the part of King, its officers and
directors necessary for the authorization, execution and delivery of this
Agreement and each of the Related Agreements and the performance of all
obligations of King hereunder and thereunder has been taken or will be taken
prior to each Closing, and this Agreement and the Related Agreements constitute
valid and legally binding obligations of King enforceable in accordance with
their respective terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting the enforcement of creditors' rights generally, or (b) as limited by
laws relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
3.3 GOVERNMENTAL CONSENTS.
Other than matters contemplated by this Agreement and the
Related Agreements, and any filings required to be made or supplied pursuant to
Section 13 or 16 of the Exchange Act or the HSR Act, in connection with the
issuance or conversion of the Notes, or the issuance of Note Shares in payment
of interest on the Notes, no consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority is required on the part of King
in connection with King's valid execution, delivery and performance of this
Agreement and the Related Agreements.
3.4 ACCREDITED INVESTOR.
King is an "accredited investor" as such term is defined in
Rule 501(a) of the Securities Act and is purchasing the Notes and the underlying
Note Shares for its own account for investment purpose. King has sufficient
knowledge and experience in financial and business matters so as to be capable
of evaluating the merits and risks of its investment in the Notes (and the
underlying Note Shares) and is capable of bearing the economic risks of such
investment.
SECTION 4. FILINGS AND AUTHORIZATIONS.
The Company and King, as promptly as practicable, (a) will
make, or cause to be made, all such other filings and submissions under laws,
rules and regulations applicable to them as may be required for them to
consummate the transactions contemplated hereby in accordance with the terms of
this Agreement and the Related Agreements, and (b) will use reasonable efforts
to obtain, or cause to be obtained, all authorizations, approvals, consents and
waivers from all governmental authorities necessary to be obtained by them in
order for them to consummate such transactions.
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SECTION 5. COMPANY COVENANTS.
The Company hereby covenants and agrees as follows:
(a) The Company shall use its best efforts to obtain and
deliver to King as promptly as practicable each of the following, each in a form
reasonably acceptable to King:
(i) written notice from the U.S. Food and Drug
Administration (the "FDA") stating that the FDA has accepted the Company's New
Drug Application for Estrasorb(TM) (the "FDA WRITTEN NOTICE");
(ii) an opinion letter from Quintiles Transnational
Corp. ("QUINTILES") stating that the Company's New Drug Application for
Estrasorb(TM) exceeds the minimum filing standards required by the FDA, and, if
not covered by such opinion letter from Quintiles, an additional opinion letter
from a nationally recognized consulting firm reasonably acceptable to King
stating that the CMC section of the Company's New Drug Application for
Estrasorb(TM) exceeds the minimum filing standards required by the FDA (opinion
letters described in this clause (ii), the "CONSULTANT OPINION LETTERS"); and
(iii) written confirmation from Quintiles regarding
the efficacy results for the E98-2 study, all as is more fully described in
SCHEDULE 5(a)(iii) attached hereto (the "QUINTILES EFFICACY CONFIRMATION").
(b) FIELDING ACQUISITION AGREEMENT. The Company shall not
terminate, amend, modify or change the Fielding Acquisition Agreement or take
any action, or refrain from taking any action, that would constitute a material
breach of, constitute a default (or event which with the giving of notice, or
lapse of time or both, would become a default) under, or give to others any
rights of termination, amendment, acceleration, suspension, revocation or
cancellation of the Fielding Acquisition Agreement. Within two (2) Business Days
after the First Closing, the Secretary of the Company shall deliver to King a
certificate dated as of the First Closing, certifying that attached thereto is a
true and complete copy of all documents and agreements executed in connection
with the consummation of the Fielding Acquisition Agreement.
(c) USE OF PROCEEDS. Up to Six Million Dollars ($6,000,000) of
the proceeds from the First Note shall be used by the Company to complete the
acquisition of Fielding and the remainder of the proceeds from the First Note
shall be used by the Company for the promotion of Estrasorb(TM), for general
working capital purposes and in the operation of the Company's business. The
proceeds from the Second Note shall be used to fulfill the Company's obligations
in connections with the promotion of Estrasorb(TM), for general working capital
purposes and in the operation of the Company's business.
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SECTION 6. CONDITIONS TO OBLIGATION OF EACH PARTY TO EFFECT THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
The obligation of each party to effect the transactions contemplated by
this Agreement shall be subject to the fulfillment at or prior to the date of
each of the First Closing and the Second Closing of the following conditions:
(a) all governmental and other consents and approvals, if any,
necessary to permit the consummation of the transactions contemplated by this
Agreement shall have been obtained; and
(b) no stop order or other order enjoining the sale of the
First Note at the First Closing or the Second Note at the Second Closing shall
have been issued and no proceedings for such purpose shall be pending or, to the
knowledge of the Company, threatened by the SEC or any commissioner of
corporations or similar officer of any state having jurisdiction over the
transactions contemplated by this Agreement and no preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission nor any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority shall be in effect that would restrain or
otherwise prevent the consummation of the transactions contemplated by this
Agreement.
SECTION 7. CONDITIONS OF KING'S OBLIGATIONS AT EACH CLOSING.
The obligations of King to consummate each Closing under this Agreement
are subject to the fulfillment on or before each Closing of the following
conditions, the waiver of which shall not be effective without the consent of
King thereto:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in SECTION 2 shall be true in all material
respects on and as of each Closing with the same effect as though such
representations and warranties had been made on and as of the date of such
Closing (except for representations and warranties that speak as of a specific
time, which need only be true and correct in all material respects as of such
date or time).
(b) PERFORMANCE. The Company shall have performed and complied
in all material respects with all agreements, obligations and conditions
contained in this Agreement that are required to be performed or complied with
by it on or before each Closing.
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(c) COMPLIANCE CERTIFICATE. An authorized executive officer of
the Company shall have delivered to King a certificate certifying that the
conditions specified in SECTION 6(a) and SECTION 6(b) have been fulfilled.
(d) PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at each Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to King, and King shall have received all such counterpart original
and certified or other copies of such documents as King may reasonably request.
(e) RELATED AGREEMENTS. At the First Closing, the Company
shall have entered into the Related Agreements, and such Related Agreements
shall be in full force and effect.
(f) CERTIFICATE. At each Closing, the Company shall have
furnished to King a certificate, signed by an authorized executive officer of
the Company, certifying: (i) the due organization and good standing of the
Company; (ii) the corporate resolutions of the Company authorizing the
transactions contemplated by this Agreement; and (iii) the incumbency of
officers of the Company executing this Agreement and the other instruments or
certificates delivered at each Closing.
(g) OPINION OF COUNSEL. At each Closing, the Company shall
have furnished to King an opinion of White & XxXxxxxxx. P.C. in the form
attached hereto as EXHIBIT D.
(h) DELIVERY OF THE NOTES. At the First Closing, the Company
shall have delivered the fully executed First Note and at the Second Closing,
the Company shall have delivered the fully executed Second Note.
(i) LISTING. The Note Shares shall have been approved for
listing on the Exchange.
(j) FIELDING ACQUISITION AGREEMENT. The closing of the
Company's acquisition of Fielding shall have occurred or occur simultaneously
with the First Closing, in accordance with the terms and conditions of the
Fielding Acquisition Agreement and the representations and warranties of the
Company set forth in SECTION 2.15 hereof shall be true and correct in all
respects at and as of the First Closing, as though each such representation and
warranty were made at and as of such time (except for representations and
warranties that speak of a specific date or time other than the First Closing,
which need only be true and correct as of such date or time). An authorized
executive officer of the Company shall have delivered to King a certificate
dated as of the First Closing, certifying (i) that the matters set forth in the
preceding sentence are true and correct and (ii) that attached thereto is a true
and complete copy of the Certificate of Merger accepted by and filed with the
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Secretary of State of the State of Delaware in connection with the consummation
of the Company's acquisition of Fielding pursuant to the Fielding Acquisition
Agreement.
(k) BROKER RELEASES. At the First Closing, the Company shall
have delivered to King (i) evidence reasonably satisfactory to King that all
amounts due to the Persons identified in SCHEDULE 2.14 will be paid in full at
the First Closing and (ii) releases (conditioned only upon receipt of agreed
upon consideration set forth on SCHEDULE 2.14) from such Persons with respect to
any claims relating thereto, each in a form reasonably acceptable to King.
(l) FDA WRITTEN NOTICE. Prior to the Second Closing, the
Company shall have delivered the FDA Written Notice to King.
(m) CONSULTANT OPINION LETTERS. Prior to the Second Closing,
the Company shall have delivered the Consultant Opinion Letters to King.
(n) QUINTILES EFFICACY CONFIRMATION. Prior to the Second
Closing, the Company shall have delivered the Quintiles Efficacy Confirmation to
King.
(o) PACKAGING REQUIREMENTS. Prior to the Second Closing, the
Company shall have delivered to King (i) a certificate from an authorized
executive officer certifying that Fielding's noncompliance disclosed in Schedule
2.19 to the Fielding Acquisition Agreement shall have been remedied and that
Fielding and the Company are in compliance with 21 CFR 310.518 and (ii) any
correspondence the Company or Fielding has had with the FDA regarding 21 CFR
310.518 since the date of the Fielding Acquisition Agreement.
(p) OTHER DOCUMENTATION. The Company shall have furnished to
King such other instruments and documents, in form and substance reasonably
acceptable to King, as may be necessary to effect each Closing.
SECTION 8. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT EACH CLOSING.
The obligations of the Company to consummate each Closing
under this Agreement are subject to the fulfillment on or before each Closing of
the following conditions, the waiver of which shall not be effective without the
consent of the Company thereto:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of King contained in SECTION 3 shall be true in all material respects
on and as of each Closing with the same effect as though such representations
and warranties had been made on and as of such Closing (except for
representations and warranties that speak as of a specific time, which need only
be true and correct in all material respects as of such date or time).
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(b) PERFORMANCE. King shall have performed and complied in all
material respects with all agreements, obligations and conditions contained in
this Agreement that are required to be performed or complied with by it on or
before each Closing, and all corporate or other proceedings in connection with
the transactions contemplated at each such Closing and all documents incident
thereto shall be reasonably satisfactory in form and in substance to the
Company.
(c) COMPLIANCE CERTIFICATE. An officer of King shall have
delivered to the Company a certificate certifying that the conditions specified
in SECTION 7(a) and SECTION 7(b) have been fulfilled.
(d) PAYMENT OF PURCHASE PRICE. At the First Closing, King
shall have delivered to the Company the amount of the principal of the First
Note in immediately available funds by wire transfer of funds to the Company's
designated bank account, and at the Second Closing King shall have delivered to
the Company the amount of the principal of the Second Note in immediately
available funds by wire transfer of funds to the Company's designated bank
account.
(e) RELATED AGREEMENTS. At the First Closing, King (or
Parkedale in the case of the HPV License Agreement) shall have entered into each
of the Related Agreements and such Related Agreements shall be in full force and
effect.
(f) OTHER DOCUMENTATION. King shall have furnished to the
Company such other instruments and documents, in form and substance reasonably
acceptable to the Company, as may be necessary to effect each Closing.
SECTION 9. TERMINATION.
9.1 TERMINATION.
This Agreement may be terminated at any time prior to the
closing:
(a) by mutual written agreement of the Company and King; or
(b) by either King or the Company if the First Closing shall
not have been consummated on or before January 2, 2001 (provided that the right
to terminate this Agreement under this SECTION 9.1(b) shall not be available to
any party whose failure to fulfill any obligation under this Agreement has been
the cause of or resulted in the failure of the First Closing to occur on or
before such date); or
(c) by either King or the Company if a court of competent
jurisdiction or governmental, regulatory, or administrative agency or commission
shall have issued a nonappealable final order, decree or ruling or taken any
other action having the effect of permanently reshaping, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement; or
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(d) by King if the Second Closing shall not have been
consummated on or before March 1, 2002.
9.2 EFFECT OF TERMINATION.
In the event of the termination of this Agreement pursuant to
SECTION 9.1, this Agreement shall forthwith become void and there shall be no
liability on the part of any party hereto (or any stockholder director, officer,
partner, employee, agent, consultant or representative of such party) except as
set forth in this SECTION 9.2; PROVIDED, that nothing contained in this
Agreement shall relieve any party from liability of any breach of this
Agreement; PROVIDED, FURTHER, that this SECTION 9.2 and SECTION 10 shall survive
such termination and the parties hereto shall have any and all remedies to
enforce such obligations provided at law or in equity or otherwise (including,
without limitation, specific performance); PROVIDED, FURTHER, that termination
of this Agreement pursuant to SECTION 9.1 after the First Closing shall render
inapplicable only those provisions of this Agreement obligating the parties to
consummate the Second Closing.
SECTION 10. MISCELLANEOUS.
10.1 SURVIVAL.
All representations, warranties and covenants contained herein
or made in writing by or on behalf of the Company in connection herewith shall
survive the execution and delivery of this Agreement and the Notes, the transfer
by King of any Note or Note Shares or portion thereof or interest therein and
the payment or conversion of any Note, and may be relied upon by any transferee
of any Note or Note Shares, regardless of any investigation made at any time by
or on behalf of King or any transferee. All representations, warranties and
covenants contained herein made by King or any holder of the Notes shall survive
the execution and delivery of this Agreement and the Notes, and may be relied
upon by the Company and its successors and assigns.
10.2 ASSIGNMENT; SUCCESSORS AND ASSIGNS.
Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by the parties hereto without the prior
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written consent of the other party. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
10.3 GOVERNING LAW.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to any
choice of law or conflict of law rules or provisions (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.
10.4 COUNTERPARTS.
This Agreement may be executed 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.
10.5 TITLES AND SUBTITLES.
The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
10.6 NOTICES.
All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when (a) delivered personally to
the recipient, (b) telecopied to the recipient (with hard copy sent to the
recipient by reputable overnight courier service (charges prepaid) that same
day) if telecopied before 5:00 p.m. Eastern time on a business day, and
otherwise on the next business day, or (c) one business day after being sent to
the recipient by reputable overnight courier service (charges prepaid). Such
notices, demands and other communications shall be sent to the following Persons
at the following addresses:
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To the Company:
Novavax, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
White & XxXxxxxxx, P.C.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
To King:
King Pharmaceuticals, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn: Executive Vice President
and General Counsel
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Xx.
Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
10.7 EXPENSES.
Irrespective of whether the Closings are effected, each party
shall pay all costs and expenses that it incurs with respect to the negotiation,
execution, delivery and performance of this Agreement. Notwithstanding the
foregoing, the Company shall pay any and all stamp, transfer and other similar
taxes payable or determined to be payable in connection with the execution and
delivery of this Agreement or any securities purchased from the Company
hereunder, and shall save and hold King harmless from and against any and
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all liabilities with respect to or resulting from any delay in paying, or
omission to pay, such taxes.
10.8 PUBLICITY.
Except for information which is required to be disclosed by
applicable law, neither party hereto shall issue any press releases or public
statements with regard to this Agreement, the Notes or the Related Agreements
without first seeking the approval of the other party, which shall not be
unreasonably withheld or delayed.
10.9 AMENDMENTS AND WAIVERS.
Any term of this Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and King. Any amendment or waiver effected in accordance
with this SECTION 10.9 shall be binding upon each holder of any securities
purchased under this Agreement at the time outstanding, each future holder of
all such securities, and the Company.
10.10 SEVERABILITY.
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
10.11 ENTIRE AGREEMENT.
This Agreement and the documents referred to herein constitute
the entire agreement among the parties and no party shall be liable or bound to
any other party in any manner by any warranties, representations, or covenants
except as specifically set forth herein or therein.
10.12 JURISDICTION; VENUE.
(a) Each of the Company and King hereby waives personal
service of any process upon it in connection with any suit, action or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby, and hereby covenants and agrees that all such service of process may be
made in the manner set forth in SECTION 10.6 with the same effect as though
served on it personally.
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(b) The Company hereby covenants and agrees that any suit,
action or proceeding initiated by the Company against King, its affiliates,
subsidiaries, successors and/or assigns arising out of or relating to this
Agreement or the transactions contemplated hereby shall be brought exclusively
in the federal courts located in and/or state courts of the State of Tennessee.
In the event of any such suit, action or proceeding initiated by the Company,
each of the Company and King hereby submits to the exclusive jurisdiction and
venue of the federal courts located in and state courts of the State of
Tennessee and hereby waives any and all objections based on jurisdiction or
venue that such party may have under applicable law or the Federal Rules of
Civil Procedure. Each of the parties hereby irrevocably designates CT
Corporation in the State of Tennessee (the "TENNESSEE PROCESS AGENT") as its
designee, appointee and agent to receive, for and on its behalf, service of
process in the State of Tennessee in any such suit, action or proceedings.
Service on the Tennessee Process Agent shall be deemed complete upon delivery
thereof to the Tennessee Process Agent, provided that, in the case of any such
service upon the Tennessee Process Agent, the party effecting such service shall
also deliver a copy thereof to the other parties in accordance with the notice
provision set forth in SECTION 10.6. Each such party shall take all such action
as may be necessary to continue the appointment of the Tennessee Process Agent
in full force and effect or to appoint another agent, who shall thereafter be
referred to herein as the "Tennessee Process Agent", so that each such party
shall at all times have an agent for service for the foregoing purposes in the
State of Tennessee.
(c) King hereby covenants and agrees that any suit, action or
proceeding initiated by King against the Company, its affiliates, subsidiaries,
successors and/or assigns arising out of or relating to this Agreement or the
transactions contemplated hereby shall be brought exclusively in the federal
courts located in and/or state courts of the State of Maryland. In the event of
any such suit, action or proceeding initiated by King, each of the Company and
King hereby submit to the exclusive jurisdiction and venue of the federal courts
located in and state courts of the State of Maryland and hereby waive any and
all objections based on jurisdiction or venue that such party may have under
applicable law or the, Federal Rules of Civil Procedure. Each of the foregoing
parties hereby irrevocably designates CT Corporation in the State of Maryland
(the "MARYLAND PROCESS AGENT"), as its designee, appointee and agent to receive,
for and on its behalf, service of process in the State of Maryland in any such
suit, action or proceedings with respect to this Agreement and the transactions
contemplated hereby. Service on the Maryland Process Agent shall be deemed
complete upon delivery thereof to the Maryland Process Agent, provided that in
the case of any such service upon the Maryland Process Agent, the party
effecting such service shall also deliver a copy thereof to the other parties in
accordance with the notice provision set forth in SECTION 10.6. Each such party
shall take all such action as may be necessary to continue the appointment of
the Maryland Process Agent in full force and effect or to appoint another agent,
who shall thereafter be referred to herein as the "Maryland
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Process Agent", so that each such party shall at all times have an agent for
service for the foregoing purposes in the State of Maryland.
10.13 SPECIFIC PERFORMANCE.
The parties agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled, in addition to any other
remedy provided by this Agreement or in law or at equity, to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have executed this Note Purchase
Agreement as of the date first above written.
NOVAVAX, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: President and CEO
---------------------------------
KING PHARMACEUTICALS, INC.
By: /s/ X. X. Xxxxxxxx
------------------------------------
Name: X. X. Xxxxxxxx
----------------------------------
Title: Vice Chairman-Strategic Planning
---------------------------------
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