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EXHIBIT 9
EXECUTION COPY
SEPTEMBER 2001 NOTE PURCHASE AGREEMENT
BY AND BETWEEN
NOVAVAX, INC.
AND
KING PHARMACEUTICALS, INC.
DATED AS OF SEPTEMBER 7, 2001
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TABLE OF CONTENTS
Page
----
SECTION 1. PURCHASE AND SALE OF THE CONVERTIBLE NOTE............................2
1.1 Sale and Issuance of the Convertible Note.....................2
1.2 Closing.......................................................2
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................2
2.1 Organization, Good Standing and Qualification.................2
2.2 Authorization.................................................3
2.3 Valid Issuance of the Note Shares and Listing.................3
2.4 Capitalization; Indebtedness..................................4
2.5 SEC Reports and Certain Changes...............................5
2.6 Financial Statements and Title to Assets......................6
2.7 Contracts.....................................................6
2.8 Compliance and Permits........................................7
2.9 Compliance with Other Instruments.............................7
2.10 Governmental Consents.........................................8
2.11 Litigation....................................................8
2.12 Taxes.........................................................8
2.13 Intellectual Property.........................................8
2.14 Brokerage.....................................................9
SECTION 3. REPRESENTATIONS AND WARRANTIES OF KING...............................9
3.1 Organization, Good Standing and Qualification.................9
3.2 Authorization.................................................9
3.3 Governmental Consents........................................10
3.4 Accredited Investor..........................................10
3.5 Brokerage....................................................10
SECTION 4. FILINGS AND AUTHORIZATIONS..........................................10
SECTION 5. CONDITIONS TO OBLIGATION OF EACH PARTY TO EFFECT THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.........................11
SECTION 6. CONDITIONS OF KING'S OBLIGATIONS AT THE CLOSING.....................11
SECTION 7. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING..............13
SECTION 8. MISCELLANEOUS.......................................................14
8.1 Survival.....................................................14
8.2 Assignment; Successors and Assigns...........................14
8.3 Governing Law................................................14
8.4 Counterparts.................................................14
8.5 Titles and Subtitles.........................................15
8.6 Notices......................................................15
8.7 Expenses.....................................................16
8.8 Publicity....................................................16
8.9 Amendments and Waivers.......................................16
8.10 Severability.................................................17
8.11 Entire Agreement.............................................17
8.12 Jurisdiction; Venue..........................................17
8.13 Specific Performance.........................................18
8.14. No Right of Setoff...........................................18
Schedules
Schedule 2.4(b)........................... Registration Rights
Schedule 2.4(c)........................... Preemptive and Antidilution Rights
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Index of Defined Terms
Section
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1995 Plan........................................................... 2.4(a)
2000 10-K........................................................... 2.5(a)
Accredited Investor................................................. 3.4
Agreement........................................................... PREAMBLE
Allonge............................................................. RECITALS
Amended and Restated Registration Rights Agreement.................. RECITALS
Closing............................................................. 1.2(a)
Closing Date........................................................ 1.2(a)
Common Stock........................................................ RECITALS
Company............................................................. PREAMBLE
Company Stock Option Plans.......................................... 2.4(a)
Convertible Note.................................................... RECITALS
December 2000 Note Purchase Agreement............................... RECITALS
Director Plan....................................................... 2.4(a)
Exchange............................................................ 2.3
Exchange Act........................................................ 2.4(b)
Existing Warrants................................................... 2.4(a)
First Amendment to Investor Rights Agreement........................ RECITALS
First December 2000 Note............................................ RECITALS
HSR Act............................................................. 2.10
Investor Rights Agreement........................................... RECITALS
King................................................................ PREAMBLE
Maryland Process Agent.............................................. 9.12(c)
Material Adverse Effect............................................. 2.1
Material Contracts.................................................. 2.7
Nasdaq.............................................................. 2.3
Note Shares......................................................... 2.2
Preferred Stock..................................................... 2.4(a)
Registration Rights Agreement....................................... RECITALS
Related Agreements.................................................. RECITALS
SEC................................................................. 2.5(a)
SEC Filings......................................................... 2.5(a)
Second December 2000 Note........................................... RECITALS
Securities Act...................................................... 2.4(b)
Tennessee Process Agent............................................. 9.12(b)
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SEPTEMBER 2001 NOTE PURCHASE AGREEMENT
THIS SEPTEMBER 2001 NOTE PURCHASE AGREEMENT (this "Agreement") is made
as of the 7th day of September, 2001 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, a 4% Convertible Senior Note in the aggregate principal
amount of Five Million Dollars ($5,000,000) (the "Convertible Note"), 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 Note;
WHEREAS, in connection with that certain Note Purchase Agreement dated
as of December 19, 2000 between King and the Company (the "December 2000 Note
Purchase Agreement"), the Company issued to King a 4% Convertible Senior Note in
the aggregate principal amount of $20,000,000 (the "First December 2000 Note");
WHEREAS, in connection with the December 2000 Note Purchase Agreement
and as a condition to the consummation of the Closing (as defined below) of this
Agreement, the Company has agreed to issue a 4% Convertible Senior Note in the
aggregate principal amount of $5,000,000 pursuant to Section 1.2 of the December
2000 Note Purchase Agreement (the "Second December 2000 Note");
WHEREAS, as a condition to the consummation of the Closing of this
Agreement, King and the Company have agreed to enter into an Allonge to the
First December 2000 Note (the "Allonge");
WHEREAS, in connection with the December 2000 Note Purchase Agreement,
the Company and King entered into that certain Investor Rights Agreement dated
as of December 19, 2000 (the "Investor Rights Agreement");
WHEREAS, as a condition to the consummation of the Closing of this
Agreement, King and the Company have agreed to enter into the First Amendment to
Investor Rights Agreement (the "First Amendment to Investor Rights Agreement");
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WHEREAS, in connection with the December 2000 Note Purchase Agreement,
the Company and King entered into that certain Registration Rights Agreement
dated as of December 19, 2000 (the "Registration Rights Agreement"); and
WHEREAS, as a condition to the consummation of the Closing of this
Agreement, King and the Company have agreed to enter into an Amended and
Restated Registration Rights Agreement (the "Amended and Restated Registration
Rights Agreement" and together with the Allonge and the First Amendment to
Investor Rights Agreement, the "Related Agreements").
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:
SECTION 1. PURCHASE AND SALE OF THE CONVERTIBLE NOTE.
1.1 SALE AND ISSUANCE OF THE CONVERTIBLE 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,
the Convertible Note.
1.2 CLOSING.
(a) The closing for the purchase and sale of the Convertible Note
pursuant to this Agreement (the "Closing"), shall, subject to the satisfaction
or waiver of the applicable conditions set forth in Sections 5, 6 and 7 hereof,
take place at the offices of Xxxxx & Xxxxxxx L.L.P., 0000 Xxxxxxxxxx Xxxxx,
XxXxxx, Xxxxxxxx 00000, on September 7, 2001, or on such other date, and at
such other place, as the parties mutually agree in writing (the date on which
the Closing shall occur, the "Closing Date").
(b) At the Closing, among other things, the Company shall deliver
to King the fully executed Convertible Note. In consideration of such delivery,
King shall deliver to the Company the amount of the principal of the Convertible
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
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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 2000 10-K (as defined below), 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
Convertible Note and the Related Agreements, (b) to issue the Convertible Note
and the shares of Common Stock issuable upon the conversion of, and as interest
payments on, the Convertible Note (the "Note Shares"), in the manner and for the
purpose contemplated by this Agreement, the Convertible Note 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 Convertible Note and the Note Shares (when issued) has been
taken or will be taken prior to the Closing. This Agreement constitutes and the
Convertible Note and the Related Agreements 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 Convertible Note and the Investor Rights Agreement, as amended, 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
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("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 Convertible Note or the Note Shares.
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
August 24, 2001: (i) Twenty Three Million Forty Nine Thousand Three Hundred
Forty (23,049,340) shares of Common Stock were issued and outstanding; (ii) Four
Million Three Hundred Seventy-Six Thousand Nine Hundred Twenty-Six (4,376,926)
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) Two Million Five Hundred Thousand (2,500,000) shares
of Common Stock were reserved for issuance upon the conversion of the First
December 2000 Note and the Second December 2000 Note and any other notes issued
in connection with the December 2000 Note Purchase Agreement; (v) Five Hundred
Seventy-Seven Thousand One Hundred Sixty-One (577,161) shares of Common Stock
were held by the Company in the Company's treasury; (vi) no shares of Preferred
Stock were issued or outstanding; and (vii) warrants to purchase One Million
Seventy-Two Thousand Fifty-Three (1,072,053) shares of Common Stock were issued
and outstanding (the "Existing Warrants").
(b) 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 and the Existing Warrants, or as expressly
permitted by this Agreement or the Related Agreements, (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
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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 the Related Agreements or as
set forth on Schedule 2.4(b), 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.
(c) Except as provided for in this Agreement or the Related
Agreements and except as set forth on Schedule 2.4(c), 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
issuance of the Convertible Note 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(c) 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 is set forth in an exhibit to the 2000 10-K.
(d) Except for the Convertible Note to be issued hereunder, the
First December 2000 Note and the Second December 2000 Note, the Company has no
Indebtedness (as defined in the Investor Rights Agreement, as amended).
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, 2000 (the "2000 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
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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
19, 2000, 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 19, 2000, 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 2000 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 2000 10-K and the unaudited interim
financial statements contained in the quarterly reports on Form 10-Q for the
first and second quarters in the year ending December 31, 2001 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, 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 2000 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 2000 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"),
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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 or the Convertible Note, 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.
(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
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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 Convertible Note, (b) registration of the Note Shares
under the Securities Act pursuant to the Amended and Restated Registration
Rights Agreement, (c) listing of the Note Shares on the Exchange, and (d) any
filings required under federal and state securities laws in connection with the
issuance of the Convertible Note or the Note Shares, 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 Convertible Note 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.
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 or the
Convertible Note, 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-
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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.
There are no claims, agreements, or commitments for brokerage
commissions or finder's fees or similar compensation in connection with the
transactions contemplated by this Agreement 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.
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.
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 the Closing, and this Agreement constitutes, and the Related Agreements
when executed by King will constitute, valid and legally binding obligation of
King enforceable in accordance with its terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other
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laws of general application affecting the enforcement of creditors' rights
generally, and (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 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 Convertible
Note, or the issuance of Note Shares in payment of interest on the Convertible
Note, 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 Convertible Note 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
Convertible Note (and the underlying Note Shares) and is capable of bearing the
economic risks of such investment.
3.5 BROKERAGE.
There are no claims, agreements, or commitments for brokerage
commissions or finder's fees or similar compensation in connection with the
transactions contemplated by this Agreement or otherwise, based on any
arrangement made by or on behalf of King or any of its subsidiaries or
affiliates, and King agrees to indemnify and hold the Company harmless against
any damages incurred as a result of any such claim, agreement, or commitment.
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. 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
the 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 Convertible
Note at the 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 6. CONDITIONS OF KING'S OBLIGATIONS AT THE CLOSING.
The obligations of King to consummate the Closing under this Agreement
are subject to the fulfillment on or before the Closing Date 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 the Closing Date 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 the Closing.
(c) Compliance Certificate. An authorized executive officer of the
Company shall have delivered to King a certificate certifying that the
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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 the 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) Allonge to December 2000 Note. At the Closing, the Company shall
have entered into the Allonge, and such Allonge shall be in full force and
effect.
(f) Certificate. At the 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 the Related Agreements; and (iii) the incumbency of
officers of the Company executing this Agreement and the other instruments or
certificates delivered at the Closing.
(g) Opinion of Counsel. At the Closing, the Company shall have
furnished to King an opinion of White & XxXxxxxxx. P.C. in a form reasonably
acceptable to King.
(h) Delivery of the Convertible Note. At the Closing, the Company shall
have delivered the fully executed Convertible Note.
(i) Delivery of the Second December 2000 Note. At the Closing, the
Company shall have delivered the fully executed Second December 2000 Note.
(j) Listing. The Note Shares shall have been approved for listing on
the Exchange.
(k) Amended and Restated Registration Rights Agreement. At the Closing,
the Company shall have entered into the Amended and Restated Registration Rights
Agreement and such Amended and Restated Registration Rights Agreement shall be
in full force and effect.
(l) First Amendment to Investor Rights Agreement. At the Closing, the
Company shall have entered into the First Amendment to Investor Rights Agreement
and such First Amendment to Investor Rights Agreement shall be in full force and
effect.
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(m) 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 the Closing.
SECTION 7. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING.
The obligations of the Company to consummate the Closing under this
Agreement are subject to the fulfillment on or before the 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 the 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).
(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
the Closing, and all corporate or other proceedings in connection with the
transactions contemplated at the 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 Closing, King shall have
delivered to the Company the amount of the principal of the Convertible Note in
immediately available funds by wire transfer of funds to the Company's
designated bank account.
(e) Allonge to December 2000 Note. At the Closing, King shall have
entered into the Allonge, and such Allonge shall be in full force and effect.
(f) Amended and Restated Registration Rights Agreement. At the Closing,
King shall have entered into the Amended and Restated Registration Rights
Agreement and such Amended and Restated Registration Rights Agreement shall be
in full force and effect.
(g) First Amendment to Investor Rights Agreement. At the Closing, King
shall have entered into the First Amendment to Investor Rights Agreement and
such First Amendment to Investor Rights Agreement shall be in full force and
effect.
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(h) 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 the Closing.
SECTION 8. MISCELLANEOUS.
8.1 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 Convertible Note,
the transfer by King of the Convertible Note or Note Shares or portion thereof
or interest therein and the payment or conversion of the Convertible Note, and
may be relied upon by any transferee of the Convertible 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 Convertible Note shall survive the execution and
delivery of this Agreement and the Convertible Note, and may be relied upon by
the Company and its successors and assigns.
8.2 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
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.
8.3 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.
8.4 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.
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8.5 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.
8.6 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:
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
Attention: Legal Affairs
Telecopy: (000) 000-0000
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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.
8.7 EXPENSES.
Irrespective of whether the Closing is 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 all
liabilities with respect to or resulting from any delay in paying, or omission
to pay, such taxes.
8.8 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 or the Convertible Note without first
seeking the approval of the other party, which shall not be unreasonably
withheld or delayed.
8.9 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 8.9 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.
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8.10 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.
8.11 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.
8.12 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 8.6 with the same effect as though served on it
personally.
(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 8.6. 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.
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(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 8.6. 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 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.
8.13 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.
8.14. NO RIGHT OF SETOFF.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE
COMPANY HEREBY EXPRESSLY WAIVES, AND SHALL BE PROHIBITED FROM ENFORCING OR
SEEKING TO ENFORCE, ANY RIGHT OR REMEDY (INCLUDING, WITHOUT LIMITATION, ANY
COMMON LAW RIGHT OR REMEDY) TO SET OFF, COUNTERCLAIM, DEDUCT OR OTHERWISE REDUCE
ANY AMOUNT TO WHICH THE COMPANY MAY BE ENTITLED TO RECEIVE FROM KING OR ITS
AFFILIATES AGAINST ANY AMOUNTS PAYABLE UNDER THE CONVERTIBLE NOTE OR THE OTHER
NOTES (AS THAT TERM IS DEFINED IN THE CONVERTIBLE NOTE).
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have executed this September 2001 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/ Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
--------------------------------------
Title: President
-------------------------------------
