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EXHIBIT 4.4
NOVAVAX, INC.
FORM OF STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made as of October 9, 1996, between
Novavax, Inc., a Delaware corporation (the "Company"), and the purchasers who
are signatories hereto (the "Purchasers").
WHEREAS, the Company wishes to sell and the Purchasers desire to
purchase shares of the Company's Common Stock;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. SALE AND PURCHASE OF SHARES. Subject to the terms and conditions
hereof, the Company will issue and sell to the Purchasers, and each Purchaser
will purchase from the Company, the number of shares of Common Stock set
opposite such Purchaser's name on the signature page hereto at the price of
$3.75 per share. The obligations of each Purchaser hereunder are several and
not joint and no Purchaser shall be obligated to purchase any number of shares
in excess of the number set forth opposite its name.
The total amount of Common Stock sold to the Purchasers pursuant to
this Agreement is hereinafter referred to as the "Shares." The maximum number
of Shares sold to Purchasers will be 505,000.
2. CLOSING DATE; DELIVERY.
2.1 Closing Date. The closing of the purchase and sale
of the Shares hereunder (the "Closing") will be held at the offices of
White & XxXxxxxxx, P.C., 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX, 00000, on
the day which is one (1) business day after the last of the conditions to
Closing described in Section 6 have been satisfied or waived (the "Closing
Date") or at such other time and place as the Company and the Purchasers may
mutually agree upon.
2.2 Delivery. On the date hereof, the Company will
deliver to each Purchaser (i) an opinion of White &
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XxXxxxxxx, P.C., counsel for the Company, dated the date hereof and
substantially in the form attached hereto as Exhibit A. At the Closing, the
Company will deliver to each Purchaser (a) a certificate registered in such
Purchaser's name, representing the shares of Common Stock purchased by the
Purchaser, and (b) an opinion of White & XxXxxxxxx, P.C., dated the Closing
Date and substantially in the form attached hereto as Exhibit B. At the
Closing, each Purchaser will pay to the Company by certified check or wire
transfer the amount of the purchase price set forth opposite the name of such
Purchaser on the signature page of such Purchaser attached hereto.
3. DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Section 3 shall have the meanings herein specified for all
purposes of this Agreement.
"Affiliate" shall have the meaning set forth in Rule 405 under the
Securities Act.
"Agreement" means this agreement, including the exhibits hereto.
"Certificate" means the Certificate of Incorporation of the Company as
filed with the Delaware Secretary of State as amended to the date hereof.
"Closing" is defined in Section 2.1.
"Closing Date" is defined in Section 2.1.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the shares of Common Stock, $.01 par value,
authorized by the Certificate, any additional shares of Common Stock which may
be authorized in the future by the Company, and any stock into which such
Common Stock may hereafter be changed, and shall also include capital stock of
any other class of the Company which is not preferred as to dividends or assets
over any other class of stock of the Company and which is not subject to
redemption.
"Company Disclosure Documents" shall mean the Company SEC Reports, the
Company's press releases provided to
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the Purchasers prior to the execution of this Agreement and the Schedule
attached hereto.
"Company SEC Reports" shall mean the Company's (i) Annual Report on
Form 10-K for the fiscal year ended December 31, 1995, as filed with the
Commission, (ii) Quarterly Reports on Form 10-Q for the fiscal quarter ended
March 31, 1996, as filed with the Commission, (iii) Forms 8-K filed with the
Commission since January 1, 1996; and (iv) the Company Proxy Statement dated
April 5, 1996.
"Engagement Letter" means the letter of Vector Securities
International, Inc., dated June 6, 1996, addressed to the Company pursuant to
which the Company retained Vector Securities International, Inc. in connection
with the sale of securities contemplated herein.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Proprietary Rights" shall have the meaning set forth in Section 4.12
of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Shares" is defined in Section 1.
4. REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to the Purchasers as of the date hereof that:
4.1 Organization and Standing. The Company is a
corporation duly organized and validly existing, and is in good
standing, under the laws of the State of Delaware, and has the requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted. Other than as disclosed in the
Company Disclosure Documents, the Company has no subsidiaries or direct or
indirect ownership interest in any firm, corporation, association or business
which either, individually or in the aggregate, are material to the business of
the Company. Each Subsidiary of the Company is a corporation duly organized
and validly existing, and is in good standing, under the laws of the
jurisdiction of its incorporation, and has the requi-
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site corporate power and authority to own, lease and operate its properties and
to carry on its business as now being conducted; all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, charge, encumbrance, claim or equity. The Company and
each Subsidiary are qualified to do business and in good standing as a foreign
corporation in every jurisdiction in which its ownership of property or conduct
of business requires it so to be qualified and in which the failure to so
qualify would have a material adverse effect on the financial condition or
business of the Company and its subsidiaries taken as a whole.
4.2 Changes. Except as set forth in the Company
Disclosure Documents, since June 30, 1996, neither the Company nor any of its
subsidiaries has, to the extent material to the Company and its subsidiaries,
taken as a whole, (i) incurred any debts, obligations or liabilities, absolute,
accrued or contingent, whether due or to become due, other than in the ordinary
course of business, (ii) mortgaged, pledged or subjected to lien, charge,
security interest or other encumbrance any of its assets, tangible or
intangible, (iii) waived any debt owed to the Company or its subsidiaries, (iv)
satisfied or discharged any lien, claim or encumbrance or paid any obligation
other than in the ordinary course of business, (v) declared or paid any
dividends, or (vi) entered into any transaction other than in the usual and
ordinary course of business. Other than as may be set forth in the Company
Disclosure Documents, there has been no material adverse change or, to the
knowledge of the Company, any development involving a prospective material
adverse change in or affecting the financial condition or business, assets,
properties, or business prospects of the Company and its subsidiaries, taken as
a whole, since the date of the financial statements contained in the Company
Disclosure Documents other than normal recurring operating losses.
4.3 Litigation. Other than as described in the Company
Disclosure Documents, there are no legal actions, suits, arbitrations or other
legal, administrative or governmental proceedings pending or, to the best of
the Company's knowledge, threatened against the Compa-
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ny or any of its subsidiaries or their respective properties, assets or
business, and neither the Company nor any of its officers is aware of any facts
which might result in or form the basis for any such action, suit or other
proceeding, in each case which, if adversely determined, would, individually or
in the aggregate, have a material adverse effect on the financial condition or
business of the Company and its subsidiaries taken as a whole. Neither the
Company nor any of its subsidiaries is in default with respect to any judgment,
order or decree of any court or any governmental agency or instrumentality
which default would have a material adverse effect on the financial condition
or business of the Company and its subsidiaries taken as a whole.
4.4 Compliance with Other Instruments. The business and
operations of the Company and its subsidiaries have been and are being
conducted in accordance with all applicable laws, rules and regulations of all
governmental authorities, except for such violations of applicable laws, rules
and regulations which would not, individually or in the aggregate, have a
material adverse effect on the financial condition or business of the Company
and its subsidiaries taken as a whole. Except for such matters which, either
individually or in the aggregate, would not have a material adverse effect on
the financial condition or business of the Company and its subsidiaries, taken
as a whole, the execution and delivery of, and the performance and compliance
with, this Agreement and the transactions contemplated hereby, with or without
the giving of notice or passage of time, will not (i) result in any breach of,
or constitute a default under, or result in the imposition of any lien or
encumbrance upon any asset or property of the Company or any subsidiary
pursuant to any agreement or other instrument to which the Company or any
subsidiary is a party or by which it or any of its properties, assets or rights
is bound or affected, (ii) violate the Certificate or Bylaws of the Company or
any subsidiary, or any law, rule, regulation, judgment, order or decree or
(iii) except for the registration of the Shares under the Securities Act, the
listing of the Shares on the American Stock Exchange, Inc. and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection with
the purchase of the Shares by the Purchasers, require any consent, approval,
authorization or
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order of or filing with any court or governmental agency or body. Neither the
Company nor any subsidiary is in violation of its Certificate or Bylaws nor in
violation of, or in default under, any lien, indenture, mortgage, lease,
agreement, instrument, commitment or arrangement, except for such defaults
which would not, individually or in the aggregate, have a material adverse
effect on the financial condition or business of the Company and its
subsidiaries, taken as a whole. Neither the Company nor any subsidiary is
subject to any restriction which would prohibit the Company or any subsidiary
from entering into or performing its obligations under the Agreement, except
for such restrictions which would not, individually or in the aggregate, have a
material adverse effect on the ability of the Company and its subsidiaries,
taken as a whole, to perform their obligations under the Agreement.
4.5 Reports and Financial Statements. The Company has
furnished the Purchasers with true and complete copies of its Company SEC
Reports (without exhibits thereto). As of their respective filing dates the
Company SEC Reports were prepared in all material respects in accordance with
the requirements of the Securities Act or the Exchange Act, as the case may be,
and the rules and regulations of the Commission thereunder applicable to such
Company SEC Reports. The audited consolidated financial statements and
unaudited interim financial statements of the Company included in the Company
SEC Reports comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
Commission with respect thereto, and the financial statements included in the
Company SEC Reports have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis (except
as may be indicated therein or in the notes thereto) and fairly present the
financial position of the Company and its consolidated subsidiaries as at the
dates thereof and the results of its operations and cash flows for the periods
then ended subject, in the case of the unaudited interim financial statements,
to normal, nonmaterial year-end adjustments and any other adjustments described
in such financial statements.
4.6 Shares. The Shares, when issued and paid for
pursuant to the terms of the Agreement, will be duly and validly authorized,
issued and outstanding, fully
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paid, nonassessable and free and clear of all pledges, liens, encumbrances and
restrictions (other than those arising from the private placement of the
Shares).
4.7 Securities Laws. Based in part upon the
representations and warranties of the Purchasers contained in Article 5 of the
Agreement, the offer, sale and issuance of the Shares as contemplated by this
Agreement are exempt from the registration requirements of the Securities Act,
and from the registration or qualifications requirements of the laws of any
applicable state or other U.S. jurisdiction.
4.8 Capital Stock. At March 31, 1996, 9,962,936 shares
of the Company's Common Stock are issued and outstanding, no shares of the
Company's Preferred Stock are issued and outstanding, and options to purchase
3,472,588 shares of the Company's Common Stock are issued and outstanding. All
of the outstanding shares of the Company's capital stock are validly issued,
fully paid and nonassessable and were issued in compliance with all applicable
federal and state securities laws. Except as set forth in the Company
Disclosure Documents, there are no outstanding subscriptions, options,
warrants, calls, contracts, demands, commitments, conversion rights or other
agreements or arrangements of any character or nature whatever under which the
Company is or may be obligated to issue its Common Stock, preferred stock or
warrants or options to purchase Common Stock or preferred stock. No holder of
any security of the Company is entitled to any preemptive or similar rights to
purchase any securities of the Company.
4.9 Corporate Acts and Proceedings. This Agreement has
been duly authorized by the requisite corporate action and has been duly
executed and delivered by an authorized officer of the Company, and is a valid
and binding obligation of the Company, enforceable in accordance with its terms
except as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and as to limitations on the enforcement of the
remedy of specific performance and other equitable remedies. The requisite
corporate action necessary to the authorization, issuance and delivery of the
Shares has been taken by the Company.
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4.10 No Brokers or Finders. To the knowledge of the
Company and except for claims of Vector Securities International, Inc. in
connection with this transaction, no person, firm or corporation has or will
have, as a result of any act or omission of the Company, any right, interest or
valid claim against the Purchasers for any commission, fee or other
compensation as a finder or broker in connection with the transactions
contemplated by this Agreement. The fees and commissions payable to Vector
Securities International, Inc. shall be paid by the Company, as set forth in
the Engagement Letter.
4.11 Compliance with Environmental Laws. Except as
disclosed in the Company Disclosure Documents, neither the Company nor any
subsidiary is in violation in any material respect of any applicable statute,
law or regulation relating to the environment or occupational health and
safety, and to the best of the Company's knowledge, no expenditures material to
the Company and its subsidiaries, taken as a whole, are or will be required to
comply with any such existing statute, law or regulation. To the best
knowledge of the Company and its subsidiaries, neither the Company nor any
subsidiary has any liability to any governmental authority or other third party
arising under or as a result of any such past or existing statute, law or
regulation, which liability would be material to the Company and its
subsidiaries, taken as a whole.
4.12 Proprietary Rights. The Company and its
subsidiaries own or are licensed to use all patents, patent applications,
inventions, trademarks, trade names, applications for registration of
trademarks, service marks, service xxxx applications, copyrights, know-how,
manufacturing processes, formulae, trade secrets, licenses and rights in any
thereof and any other intangible property and assets (herein called the
"Proprietary Rights") which are material to the businesses of the Company and
its subsidiaries, taken as a whole, as now conducted and as proposed to be
conducted, in each case as described in the Prospectus. Except as disclosed in
the Company Disclosure Documents, the Company does not have any knowledge of,
and the Company has not given or received any notice of, any pending conflicts
with or infringement of the rights of others with respect to any Proprietary
Rights or with respect to any license of Proprietary Rights. Except as
disclosed on the Company
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Disclosure Documents, no action, suit, arbitration, or legal, administrative or
other proceeding, or investigation is pending, or, to the best knowledge of the
Company, threatened, which involves any Proprietary Rights. Neither the
Company nor any subsidiary is subject to any judgment, order, writ, injunction
or decree of any court or any Federal, state, local, foreign or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or any arbitrator, or has entered into or is a party to
any contract which restricts or impairs the use of any such Proprietary Rights
in a manner which would have a material adverse effect on the use of any of the
Proprietary Rights. To the best knowledge of the Company, no Proprietary
Rights used by the Company or any of its subsidiaries, and no services or
products sold by the Company or any of its subsidiaries, conflict with or
infringe upon any proprietary rights owned or licensed by any third party.
Neither the Company nor any subsidiary has received written notice of any
pending conflict with or infringement upon such third-party proprietary rights.
Neither the Company nor any subsidiary has entered into any consent,
indemnification, forbearance to xxx or settlement agreement with respect to
Proprietary Rights other than in the ordinary course of business. No claims
have been asserted by any person with respect to the validity of the Company's
or any of its subsidiaries' ownership or right to use the Proprietary Rights
and, to the best knowledge of the Company, there is no reasonable basis for any
such claim to be successful. To the knowledge of the Company, the Proprietary
Rights are valid and enforceable. Except as disclosed on the Company
Disclosure Documents, no registration relating to the Proprietary Rights has
lapsed, expired or been abandoned or cancelled or is the subject of
cancellation or other adversarial proceedings, and all applications therefore
are pending and are in good standing. The Company and its subsidiaries have
complied, in all material respects, with their respective contractual
obligations relating to the protection of the Proprietary Rights used pursuant
to licenses. To the best knowledge of the Company, no person is infringing on
or violating the Proprietary Rights owned or used by the Company or any of its
subsidiaries.
4.13 Minimum Proceeds. The gross proceeds to the
Company from the sale of Shares hereunder, before all selling expenses and
commissions, is at least $1,800,000.
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4.14 Company Disclosure Documents. The Company
Disclosure Documents, when read as a whole, as updated by the press
releases and the Schedule included therein and as of the date hereof, do not
contain any untrue statements of a material fact and do not omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4.15 No Implied Representations. All of the Company's
representations and warranties are contained in this Agreement, and no other
representations or warranties by the Company shall be implied.
4.16 Filing of Reports. Since the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995, the
Company has filed with the Commission all reports and other material required
to be filed by it therewith pursuant to Section 13, 14 or 15(d) of the Exchange
Act and the Company is eligible to register the offer and resale of the Shares
on a Registration Statement on Form S-3, or a successor form.
5. REPRESENTATIONS AND WARRANTIES BY THE PURCHASERS; RESTRICTIONS ON
TRANSFER.
Each Purchaser hereby severally represents and warrants to, and
covenants and agrees with, the Company, as of the Closing Date, as follows:
5.1 Authorization. Purchaser has all requisite legal
and corporate or other power and capacity and has taken all requisite
corporate or other action to execute and deliver the Agreement, to purchase the
Shares to be purchased by it and to carry out and perform all of its
obligations under the Agreement. The Agreement constitutes the legal, valid
and binding obligation of Purchaser, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and as to limitations on the enforcement of the
remedy of specific performance and other equitable remedies.
5.2 Investment Experience. Purchaser is an
"institutional accredited investor" as defined in Rule
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501(a)(1), (a)(2), (a)(3) or (a)(7) or a "Qualified Institutional Buyer" as
defined in Rule 144A under the Securities Act. Purchaser or its representative
has reviewed the Company Disclosure Documents. Purchaser is aware of the
Company's business affairs and financial condition and has had access to and
has acquired sufficient information about the Company to reach an informed and
knowledgeable decision to acquire the Shares. Purchaser has such business and
financial experience as is required to give it the capacity to protect its own
interests in connection with the purchase of the Shares and is able to bear the
risks of an investment in the Shares. Purchaser is not itself a "broker" or a
"dealer" as defined in the Exchange Act and is not an "affiliate" of the
Company as defined in the Securities Act, [provided, however, that Paramount
Capital Inc., an affiliate of Purchaser, is a broker/dealer registered with the
NASD Inc.] (for certain investors only).
5.3 Investment Intent. Purchaser is purchasing the
Shares for its own account as principal, for investment purposes only, and not
with a present view to or for resale, distribution or fractionalization
thereof, in whole or in part, within the meaning of the Securities Act.
Purchaser understands that its acquisition of the Shares has not been
registered under the Securities Act or registered or qualified under any state
securities law in reliance on specific exemptions therefrom, which exemptions
may depend upon, among other things, the bona fide nature of Purchaser's
investment intent as expressed herein. Purchaser has, in connection with its
decision to purchase the number of Shares set forth in the Agreement, relied
solely upon the Company Disclosure Documents and the representations and
warranties of the Company contained herein. Purchaser will not, directly or
indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge of) any of
the Shares except in compliance with the Securities Act and the rules and
regulations promulgated thereunder.
5.4 Registration or Exemption Requirements. Purchaser
further acknowledges and understands that the Shares may not be resold or
otherwise transferred except in a transaction registered under the Securities
Act or unless an exemption from such registration is available. Purchaser
understands that the certificates evidencing
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the Shares will be imprinted with a legend that prohibits the transfer of the
Shares unless (a) such transaction is registered or such registration is not
required, and (b) if the transfer is pursuant to an exemption from registration
other than Rule 144 under the Securities Act, and an opinion reasonably
satisfactory to the Company of counsel reasonably satisfactory to the Company
is obtained to the effect that the transaction is not required to be registered
or is so exempt.
5.5 Restriction on Sales, Short Sales and Hedging
Transactions. Purchaser represents and agrees that during the period from the
date Purchaser was first contacted with respect to the potential purchase of
Shares through the date of the execution of the Agreement by Purchaser,
Purchaser did not, and from such date through the effectiveness of the
Registration Statement (as defined below), Purchaser will not, directly or
indirectly, execute or effect or cause to be executed or effected any short
sale, option or equity swap transactions in or with respect to the Common Stock
or any other derivative security transaction the purpose or effect of which is
to hedge or transfer to a third party all or any part of the risk of loss
associated with the ownership of the Shares by the Purchaser.
5.6 No Legal, Tax Or Investment Advice. Purchaser
understands that nothing in the Company Disclosure Documents, the Agreement or
any other materials presented to Purchaser in connection with the purchase and
sale of the Shares constitutes legal, tax or investment advice. Purchaser has
consulted such legal, tax and investment advisors as it, in its sole
discretion, has deemed necessary or appropriate in connection with its purchase
of the Shares.
6. CONDITION TO CLOSING.
6.1 Registration Statement Effective. The Company shall
have prepared and filed with and have declared effective by, the Commission, a
Registration Statement which registers the offer and resale of the Shares.
6.2 Opinion of Counsel. The Purchasers shall have
received an opinion of White & XxXxxxxxx, P.C.,
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dated the Closing Date, substantially in the form attached hereto as Exhibit B.
6.3 Secretary's Certificate. The Purchasers shall have
received a Secretary's Certificate, dated the Closing Date, certifying the
Certificate and Bylaws of the Company, the resolutions of the Board of
Directors of the Company and the signatures of the officers of the Company to
execute this Agreement and the other certificates and documents to be delivered
by the Company in connection with the transactions contemplated hereby.
7. COVENANTS
7.1 Registration Requirements.
(a) Promptly after the date of this Agreement, the
Company shall prepare and file a registration statement (the "Registration
Statement") with the Commission under the Securities Act to register the offer
and resale of the Shares (the "Registrable Securities"), and shall use its
commercially reasonable efforts to secure the effectiveness of such
registration statement as soon as reasonably practicable thereafter.
(b) The Company shall pay all Registration Expenses (as
defined below) in connection with any registration, qualification or compliance
hereunder and each Purchaser shall pay all Selling Expenses (as defined below)
and other expenses that are not Registration Expenses relating to the
Registrable Securities resold by such Purchaser. "Registration Expenses" shall
mean all expenses, except for Selling Expenses, incurred by the Company in
complying with the registration provisions herein described, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses and the expense of any special audits incident to or required by
any such registration. "Selling Expenses" shall mean all selling commissions,
underwriting fees and stock transfer taxes applicable to the Registrable
Securities and all fees and disbursements of counsel for any Purchaser.
(c) In the case of the registration effected by the
Company pursuant to these registration provisions, the Company will use its
best efforts to: (i) keep such
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registration effective until the earlier of (A) the third anniversary of the
date such Registration Statement is declared effective; provided, however, if
Rule 144 is amended so that the longest period that Rule 144 restricts the
manner in which privately placed securities may be sold is a period shorter
than three years, then the period required by this clause (A) shall be reduced
to such shorter period, (B) such date as all of the Registrable Securities have
been resold and (C) all Registrable Securities may be sold pursuant to Rule 144
(or any successor rule); (ii) except as provided in Section 7.1(f), prepare and
file with the Commission such amendments and supplements to the Registration
Statement and the prospectus used in connection with the Registration Statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by the Registration
Statement; (iii) furnish such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the prospectus,
as Purchaser from time to time may reasonably request; (iv) cause the Shares to
be listed on the American Stock Exchange or any securities exchange or quoted
on each quotation service on which the Common Stock of the Company is then
listed or quoted; (v) provide a transfer agent and registrar for all securities
registered pursuant to the Registration Statement and a CUSIP number for all
such securities; and (vi) file the documents required of the Company and
otherwise use its best efforts to maintain requisite blue sky clearance in (X)
all U.S. jurisdictions in which any of the Shares are originally sold and (Y)
all other states specified in writing by Purchaser, provided, however, that, as
to clause (Y), the Company shall not be required to qualify to do business in
any state in which it is not now so qualified or has not so consented.
(d) The Company shall furnish to each Purchaser upon
request a reasonable number of copies of a supplement to or an amendment of the
prospectus used in connection with the Registration Statement as may be
necessary to facilitate the public sale or other disposition of all or any of
the Registrable Securities held by Purchaser.
(e) With a view to making available to Purchasers the
benefits of Rule 144 and any other rule or regulation of the Commission that
may at any time permit
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Purchaser to sell Registrable Securities to the public without registration or
pursuant to a registration statement on Form S-3, the Company covenants and
agrees to use its best efforts to: (i) make and keep public information
available as those terms are understood and defined in Rule 144 until the
earlier of (A) the date on which the Shares may be sold pursuant to Rule 144(k)
(or any successor rule) or (B) such date as all of the Registrable Securities
shall have been resold; (ii) file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act
and Exchange Act; and (iii) furnish to any Purchaser upon request, as long as
the Purchaser owns any Registrable Securities, (A) a written statement by the
Company that it has complied with the reporting requirements of the Securities
Act and the Exchange Act, (B) a copy of the most recent annual or quarterly
report of the Company, and (C) such other information as may be reasonably
requested in order to avail any Purchaser of any rule or regulation of the
Commission that permits the selling of any such Registrable Securities without
registration or pursuant to such registration statement on Form S-3.
(f) At any time after the effectiveness of the
Registration Statement, the Company may refuse to permit the Purchaser to
resell any Registrable Securities pursuant to the Registration Statement for a
period not to exceed thirty (30) days; provided, however, that to exercise this
right, the Company must deliver a certificate in writing to Purchaser to the
effect that a delay in such sale is necessary because a sale pursuant to such
Registration Statement in its then-current form would not be in the best
interests of the Company and its shareholders due to disclosure obligations of
the Company. Notwithstanding the foregoing, the Company shall not be entitled
to exercise its right to block such sales more than three (3) times during the
effectiveness of the Registration Statement nor more than one (1) time in any
four month period. Each Purchaser hereby covenants and agrees that it will not
sell any Registrable Securities pursuant to the Registration Statement during
such blockage periods as set forth in this Section 7.1(f).
7.2 Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Purchaser from and against any losses,
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claims, damages or liabilities (or actions or proceedings in respect thereof)
to which such Purchaser may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact or omission to state a
material fact in the Registration Statement on the effective date thereof, or
arise out of any failure by the Company to fulfill any undertaking
included in the Registration Statement, and the Company will, as incurred,
reimburse such Purchaser for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim; provided, however, that the Company shall not be liable in any such case
to the extent that such loss, claim, damage or liability arises out of, or is
based upon (i) an untrue statement or omission in such Registration Statement
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Purchaser specifically for use in preparation
of the Registration Statement or (ii) an untrue statement or omission in any
prospectus that is corrected in any subsequent prospectus, or supplement or
amendment thereto, that was delivered to Purchaser prior to the pertinent sale
or sales by Purchaser.
(b) Each Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company from and against any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) to which
the Company may become subject (under the Securities Act or otherwise) insofar
as such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon (i) an untrue statement or
alleged untrue statement of a material fact or omission to state a material
fact in the Registration Statement in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such Purchaser
specifically for use in preparation of the Registration Statement (provided,
however, that no Purchaser shall be liable in any such case for any untrue
statement or omission in any prospectus which statement has been corrected, in
writing, by such Purchaser and delivered to the Company at least 14 days before
the sale from which such loss occurred), or (ii) an untrue statement or
omission in any prospectus that is corrected in
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any subsequent prospectus or supplement or amendment thereto, that was
delivered to Purchaser prior to the pertinent sale or sales by Purchaser, and
each Purchaser, severally and not jointly, will, as incurred, reimburse the
Company for any legal or other expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or claim.
Notwithstanding the foregoing, no Purchaser shall be liable, or required to
indemnify the Company, in the aggregate, for any amount in excess of the net
proceeds received by the Purchaser from the sale of the Shares to which such
loss, claim, damage or liability relates.
(c) Promptly after receipt by any indemnified person of
a notice of a claim or the beginning of any action in respect of which
indemnity is to be sought against an indemnifying person pursuant to this
Section 7.2, such indemnified person shall notify the indemnifying person in
writing of such claim or of the commencement of such action and, subject to the
provisions hereinafter stated, in case any such action shall be brought against
an indemnified person, the indemnifying person shall be entitled to participate
therein, and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to the indemnified person. After notice
from the indemnifying person to such indemnified person of the indemnifying
person's election to assume the defense thereof, the indemnifying person shall
not be liable to such indemnified person for any legal expenses subsequently
incurred by such indemnified person in connection with the defense thereof;
provided, however, that if there exists or shall exist a conflict of interest
that would make it inappropriate in the reasonable judgment of the indemnified
person for the same counsel to represent both the indemnified person and such
indemnifying person or any affiliate or associate thereof, the indemnified
person shall be entitled to retain its own counsel at the expense of such
indemnifying person; provided, further, that the indemnifying person shall not
be obligated to assume the expenses of more than one counsel to represent all
indemnified persons.
(d) If the indemnification provided for in this Section
7.2 is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims, damages or
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liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and
the Purchasers on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company on the one hand or a Purchaser on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Purchasers agree that
it would not be just and equitable if contribution pursuant to this subjection
(d), were determined by pro rata allocation (even if the Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Purchaser shall be
required to contribute in the aggregate any amount in excess of the net
proceeds received by the Purchaser from the sale of the Shares to which such
loss, claim, damage or liability relates. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Purchaser's obligations in this subsection
(d) to contribute are several in proportion to their sales of Shares to which
such loss relates and not joint.
(e) The obligations of the Company and the Purchasers
under this Section 7.2 shall be in addition to
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any liability which the Company and the respective Purchasers may otherwise
have and shall extend, upon the same terms and conditions, to directors,
officers, employees and agents of the Company and the Purchasers and to each
person, if any, who controls the Company or any Purchaser within the meaning of
the Securities Act and the Exchange Act.
8. RESTRICTIONS ON TRANSFERABILITY OF SHARES; COMPLIANCE
WITH SECURITIES ACT
8.1 Restrictions on Transferability. The Shares shall
not be transferable in the absence of registration under the Securities Act or
an exemption therefrom or in the absence of compliance with any term of the
Agreement.
8.2 Restrictive Legend. Each certificate representing
the Shares shall bear substantially the following legend (in addition to any
legends required under applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM.
8.3 Transfer of Shares. Each Purchaser hereby
covenants with the Company not to make any sale of the Shares except either (a)
a sale of Shares in accordance with the Registration Statement, in which case
the Purchaser covenants to comply with the requirement of delivering a current
prospectus, (b) a sale of Shares in accordance with Rule 144, in which case the
Purchaser covenants to comply with Rule 144 and to deliver such additional
certificates and documents as the Company may reasonably request, or (c)
subject to such conditions as the Company in its sole discretion shall impose,
in accordance with another exemption from the registration requirements of the
Securities Act. The legend set forth in Section 8.2 will be removed from a
certificate representing Shares following and in connection with any sale of
Shares pursuant to subsection (a) or (b) hereof but not in connection with any
sale of Shares pursuant to subsection (c) hereof.
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9. MISCELLANEOUS.
9.1 Survival of Representations and Warranties. All
representations and warranties contained herein shall survive the execution and
delivery of this Agreement, any investigation at any time made by or on behalf
of the Purchaser, and the sale and purchase of the Shares and payment therefor.
9.2 Parties in Interest. All the terms and provisions
of this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successor and assigns of the parties hereto.
9.3 Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
9.4 Choice of Law. It is the intention of the parties
that the internal laws of the State of Delaware, without regard to the body of
law controlling conflicts of law, shall govern the validity of this Agreement,
the construction of its terms and the interpretation of the rights and duties
of the parties set forth herein.
9.5 Counterparts. This Agreement may be executed
concurrently in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized representatives as
of the day and year first above written.
Dated: October 9, 1996 NOVAVAX, INC.
By:
----------------------
Title:
-------------------
Number of Shares PURCHASER
Purchased: 505,000
By:
----------------------
Title:
-------------------
Address:
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EXHIBIT A
The Purchasers shall have received on the Closing Date an opinion,
dated the date hereof, of White & XxXxxxxxx, P.C., counsel for the Company, to
the effect that:
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus and to enter into and perform its
obligations under this Agreement.
The Shares have been duly authorized for issuance and sale to the
Purchasers pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued and fully paid and non-assessable; and the
issuance of the Securities is not subject to preemptive or other rights to
subscribe for or purchase securities.
This Agreement has been duly authorized, executed and delivered by the
Company.
Except for such matters which, either individually or in the
aggregate, would not have a material adverse effect on the financial condition
or business of the Company and its subsidiaries, taken as a whole, the
execution, delivery and performance of this Agreement and the consummation of
the transactions in the manner contemplated herein and the compliance by the
Company with its obligations hereunder will not (i) conflict with or constitute
a breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, deed, trust, lease, sublease, voting trust, voting agreement
or other instrument or agreement to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, (ii)
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result in any violation of the provisions of the charter or bylaws of the
Company or any of its subsidiaries, or any applicable statute, law, rule,
regulation, ordinance, code, or any applicable decision or order of any court
or regulatory agency exercising appropriate jurisdiction; and (iii) except for
the registration of the Shares under the Securities Act, the listing of the
Shares on the American Stock Exchange, Inc. and such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection with the
purchase of the Shares by the Purchasers, no consents, approval, authorization
or order of or filing with any court or governmental agency or body is required
for the execution, delivery and performance of the Agreement by the Company and
the consummation of the transactions contemplated by the Agreement.
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EXHIBIT B
The Purchasers shall have received on the Closing Date an opinion,
dated the Closing Date, of White & XxXxxxxxx, P.C., counsel for the Company, to
the effect that:
The Registration Statement has become effective under the Act, no stop
order suspending its effectiveness has been issued and no proceedings for that
purpose are pending before or, to the knowledge of such counsel, contemplated
by the Commission;
The Registration Statement (including any Registration Statement filed
under Rule 462(b) of the Act, if any), the Prospectus, the documents
incorporated by reference and any supplement or amendment thereto (except for
financial statements as to which no opinion need be expressed) comply as to
form in all material respects with the Act, and nothing has come to such
counsel's attention that would lead it to believe that (except for financial
statements, as aforesaid) the Registration Statement and the Prospectus
included therein at the time the Registration Statement became effective
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as amended or supplemented if
applicable (except for financial statements, as aforesaid), contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In giving such opinion and making such statement with respect to the
matters covered by the preceding paragraph such counsel may state that their
opinion and statement are based upon their participation in the preparation of
the Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but are without
independent check or verification of facts.
