<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 17, 1996
REGISTRATION NO.
----------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------
NOVAVAX, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 22-2816046
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
12111 PARKLAWN DRIVE, ROCKVILLE, MD 20852
(301) 231-9250
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
JOHN O. MARSH, JR., CHAIRMAN OF THE BOARD
NOVAVAX, INC.
12111 PARKLAWN DRIVE
ROCKVILLE, MD 20852
(301) 231-9250
(Address, including zip code, and telephone number, including area code, of
agent for service of process)
With a copy to:
DAVID A. WHITE, ESQ.
WHITE & MCDERMOTT, P.C.
65 WILLIAM STREET, SUITE 209
WELLESLEY, MA 02181
(617) 431-1700
Approximate date of commencement of proposed sale to the public: As
soon as practicable and from time to time after the effective date of this
Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
<PAGE> 2
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Aggregate Offering Amount of
to be Registered be Registered Per Share(1) Price Registration Fee
=========================================================================================================================
<S> <C> <C> <C> <C>
Common Stock 505,000
($.01 par value) shares $3.97 $2,004,219 $607.34
Total Fee .......................................................................... $607.34
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee and
computed pursuant to Rule 457(c), based upon the average of the high and low
sale prices on October 11, 1996, as reported by the American Stock Exchange.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE> 3
NOVAVAX, INC.
CROSS REFERENCE SHEET PURSUANT TO ITEM 501(B)
OF REGULATION S-K SHOWING LOCATION IN PROSPECTUS OF
INFORMATION REQUIRED BY ITEMS OF FORM S-3
<TABLE>
<CAPTION>
FORM S-3 REGISTRATION
STATEMENT ITEM AND HEADING LOCATION IN PROSPECTUS
- -------------------------- ----------------------
<S> <C>
1. Forepart of Registration Statement
and Outside Front Cover Page of
Prospectus . . . . . . . . . . . . . . . . . . . . . . Facing Page of Registration Statement; Cross-Reference Sheet;
Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back
Cover Pages of Prospectus . . . . . . . . . . . . . . . Inside Front Cover and Outside Back Cover of Prospectus;
Available Information; Incorporation by Reference
3. Summary Information, Risk Factors and
Ratio of Earnings to Fixed Charges . . . . . . . . . . Risk Factors; Available Information
4. Use of Proceeds . . . . . . . . . . . . . . . . . . . . Use of Proceeds
5. Determination of Offering Price . . . . . . . . . . . . *
6. Dilution . . . . . . . . . . . . . . . . . . . . . . . *
7. Selling Security Holders . . . . . . . . . . . . . . . Selling Stockholders
8. Plan of Distribution . . . . . . . . . . . . . . . . . Plan of Distribution
9. Description of Securities to be Registered . . . . . . *
10. Interests of Named Experts and Counsel . . . . . . . . Legality of Common Stock; Experts
11. Material Changes . . . . . . . . . . . . . . . . . . . *
12. Incorporation of Certain Documents
by Reference . . . . . . . . . . . . . . . . . . . . . Incorporation of Certain Documents by Reference
13. Disclosure of Commission Position on
Indemnification for Securities Act Liabilities . . . . Indemnification
</TABLE>
- -----------------------------
* Item is omitted because it is either not required or inapplicable.
<PAGE> 4
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED OCTOBER 17, 1996
PROSPECTUS
NOVAVAX, INC.
505,000 SHARES OF COMMON STOCK ($.01 PAR VALUE)
----------------------------
This Prospectus relates to the offer and sale of up to 505,000 shares
(the "Shares") of Common Stock, $.01 par value (the "Common Stock"), of
Novavax, Inc. ("Novavax" or the "Company") by certain stockholders of the
Company (the "Selling Stockholders"). The Shares may be offered and sold by
the Selling Stockholders from time to time in open market or privately
negotiated transactions at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. The
Selling Stockholders may effect such transactions by selling the Shares to or
through broker-dealers and such broker-dealers may receive compensation in the
form of discounts, concessions or commissions from the Selling Stockholders or
the purchasers of the Shares for whom such broker-dealers may act as agent or
to whom they sell as principal or both (which compensation to a particular
broker-dealer might be in excess of customary commissions). See "Selling
Stockholders" and "Plan of Distribution."
None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by the Company. The Company has agreed to bear
certain expenses (other than selling commissions) in connection with the
registration and sale of the Shares being offered by the Selling Stockholders,
estimated at $23,000. The Company has agreed to indemnify the Selling
Stockholders against certain liabilities, including certain liabilities under
the Securities Act of 1933, as amended (the "Securities Act").
The Common Stock of the Company is listed for quotation on the
American Stock Exchange under the symbol NOX. On October 15, 1996, the closing
sale price of the Common Stock, as reported by the American Stock Exchange, was
$4.00 per share.
The Selling Stockholders and any broker-dealers or agents that
participate with the Selling Stockholders in the distribution of the Shares may
be deemed to be "underwriters" within the meaning of the Securities Act, and
any commissions received by them and any profit on the resale of the Shares
purchased by them may be deemed to be underwriting commission or discounts
under the Securities Act.
--------------------------------------------------------
AN INVESTMENT IN THE SECURITIES REGISTERED HEREBY INVOLVES A HIGH DEGREE OF
RISK. SEE "RISK FACTORS."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE
<PAGE> 5
HAS BEEN NO CHANGE IN THE INFORMATION SET FORTH IN THIS PROSPECTUS OR IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. NO PERSON IS AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS, AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY
SECURITIES IN ANY JURISDICTION OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION.
--------------------------------------------------------
The date of this Prospectus is October , 1996.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference;
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995;
2. The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1996;
3. The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1996;
4. The Company's definitive Proxy Statement, dated April 5, 1996
relating to the Annual Meeting of Stockholders held on May 9,
1996; and
5. The description of the Common Stock contained in the Company's
Registration Statement on Form 10, File No. 0-26770 filed on
September 14, 1995, filed pursuant to Section 12(b) of the
Exchange Act.
All reports and other documents filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities covered by this Prospectus have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered upon written or oral request of any such
person, a copy of any or all of the documents which are incorporated herein by
reference, except for certain exhibits to such documents. Requests should be
directed to the principal executive offices of the Company, 12111 Parklawn
Drive, Rockville, MD 20852, Attention: Elaine T. Bennett, telephone: (301)
231-9250.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Exchange Act, and in accordance therewith, files reports and other information
with the Commission. Reports, proxy statements and other information filed by
the Company with the Commission pursuant to the informational requirements of
the Exchange Act may be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549
and at the Commission's regional offices located at 7 World Trade Center, Suite
1300, New York, New York 10048, and at Northwest Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
materials also may be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. In addition, the Commission maintains a World Wide Web site that
contains reports, proxy and information statements and other information filed
electronically by the
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Company since May 1996 at the following address: http://www.sec.gov. The
Company has filed with the Commission in Washington, D.C. a registration
statement (herein, together with all amendments and exhibits, referred to as
the "Registration Statement") under the Securities Act with respect to the
securities offered hereby. This Prospectus does not contain all the
information included in the Registration Statement, certain items of which are
omitted in accordance with the rules and regulations of the Commission. For
further information pertaining to the Company and the Common Stock offered
hereby, reference is made to such Registration Statement and the exhibits
thereto.
The Company's Common Stock is listed on the American Stock Exchange.
Reports, proxy statements, and other information concerning the Company can be
examined at the American Stock Exchange Inc., 86 Trinity Place, New York, New
York 10006.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements under the captions "The Company," "Recent
Developments" and "Risk Factors" contained in this Prospectus or as may
otherwise be incorporated by reference herein constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995 (the "Reform Act"). Such forward-looking statements involve known and
unknown risks, uncertainties and other factors which may cause the actual
results, performance or achievements of the Company, or industry results, to be
materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements. Such factors include,
among other things, the following: general economic and business conditions;
competition; technological advances; ability to obtain rights to technology;
ability to obtain and enforce patents; ability to commercialize and manufacture
products; results of preclinical studies; results of research and development
activities; business abilities and judgment of personnel; availability of
qualified personnel; changes in, or failure to comply with, governmental
regulations; ability to obtain adequate financing in the future; and other
factors referenced in this Prospectus. See "Risk Factors."
THE COMPANY
Novavax, Inc. ("Novavax" or the "Company") is a biopharmaceutical
company focusing on the research and development of proprietary topical and
oral drug delivery technologies. The Company's technology platforms involve
the use of proprietary microscopic organized lipid structures made as vehicles
for the delivery of a wide variety of drugs and other therapeutic products,
including certain hormones, microbicidal (anti-bacterial and anti-viral)
products and vaccine adjuvants. The Company's two lead product candidates,
ESTRASORB(TM), a topical estrogen replacement cream, and Helicore(TM), an oral
anti-bacterial preparation for the treatment of Helicobacter pylori infection,
are currently in Phase I human clinical trials.
THE NOVAVAX TECHNOLOGY PLATFORMS
Novavax has developed proprietary topical and oral drug delivery
technologies using organized lipid structures (collectively, the "Novavax
Technologies"). To date, the Company has utilized its technology in the
development of Novasomes and micellar nanoparticles ("MNPs"), which are
sub-micron size lipid structures that possess targeted, controlled release
encapsulation capabilities. The Company believes its technologies may allow
for the more cost-effective delivery of a wide variety of drugs and other
therapeutics than phospholipid liposomes and other delivery vehicles.
Most commercial liposomes are composed of delicate phospholipids. Due
to their inherent lack of stability and carrying capacity limitations, a
limited number of drugs may be used with phospholipid liposomes. While capable
of encapsulating certain (principally water soluble) drugs, phospholipid
liposomes have a number of significant disadvantages including their expense
and the need to use potentially hazardous organic solvents in their
manufacture. In addition, the standard, multi-step phospholipid manufacturing
process yields relatively small quantities of liposomes.
Novasomes(R)
Novasomes are proprietary organized lipid structures in which drugs or
other materials can be encapsulated for delivery into the body topically or
orally. Novasomes are made using the Company's patented manufacturing process
from a variety of readily available chemicals called amphiphiles, which include
fatty alcohols and acids, ethoxylated fatty alcohols and acids, glycol esters
of fatty acids, glycerol fatty acid mono and diesters, ethoxylated glycerol
fatty acid esters, glyceryl ethers, fatty acid diethanolamides and dimethyl
amides, fatty acyl sarcosinates, "alkyds" as well as phospholipids. IGI, Inc.
("IGI"), the Company's former parent, currently uses Novasomes in a wide
variety of cosmetic applications, including products sold by Estee Lauder and
Revlon under such labels as Prescriptives and Almay. To date, IGI has sold
hundreds of tons of products that incorporate Novasome technologies.
4
<PAGE> 8
The Company believes Novasomes have a number of proprietary features
that may be applicable in the delivery of human therapeutics. Because
Novasomes consist primarily of inexpensive chemicals and the manufacturing
process is a simple one, the Company believes that the manufacturing cost of
Novasomes is less than phospholipid liposomes and other drug delivery vehicles.
Novasomes also have a large, stable central core that allows them to entrap and
deliver a wide variety of substances that may be too large or chemically
disruptive for phospholipid liposomes. In addition, the Company is able to
manipulate the structure and size of Novasomes in order to vary the amount and
rate of drug delivery into the body. This may enable Novasomes to be utilized
for the continuous delivery of therapeutics over extended periods of time.
The Company has 36 U.S. patents and 13 pending applications covering
the composition, manufacture and use of its organized lipid structures and
related technologies.
Micellar Nanoparticles
Micellar nanoparticles ("MNPs") are submicron-sized, water miscible
lipid structures that have different structural characteristics and are
generally smaller than Novasomes. MNPs like Novasomes, are derived from
amphiphile chemicals.
Novavax scientists have demonstrated the ability to incorporate
alcohol soluble drugs and pesticides, vaccine adjuvants, proteins, whole
viruses, flavors, fragrances and colors into MNPs. MNPs have the ability to
entrap ethanol or methanol soluble drugs and to deliver certain of these drugs
through intact skin. The MNP formulations used for the transdermal delivery of
drugs have cosmetic properties like creams and lotions.
NOVAVAX PRODUCT CANDIDATES
ESTRASORB
The Company is using its micellar nanoparticle technology in the
development of ESTRASORB, a cream designed for the delivery of estradiol
(natural estrogen) through the skin. Estrogen replacement is currently used
worldwide by menopausal and post-menopausal women to prevent osteoporosis,
cardiovascular disease and other menopausal symptoms (e.g. "hot flashes").
Current estrogen replacement products include oral tablets or, more recently,
transdermal patches. Oral estrogen tablets, however, have been associated with
side effects primarily resulting from fluctuating blood hormone levels.
Because of these side effects, transdermal patches for estrogen replacement
were developed. While these patches help reduce blood hormone fluctuations,
they may cause skin irritation and patient inconvenience associated with
wearing and changing an external patch.
The Company believes that ESTRASORB may offer several advantages over
existing therapies used for estrogen replacement. ESTRASORB is a lotion that
may be applied to the skin much like a typical cosmetic cream. The Company
believes ESTRASORB will be able to deliver a continuous amount of estrogen to
the patient without the fluctuations in blood hormone levels associated with
oral tablets. In addition, ESTRASORB does not contain materials that may cause
the skin irritation associated with transdermal patches.
In 1995, the Company, completed preclinical testing of ESTRASORB in a
primate model. Results of this study demonstrated that ESTRASORB can be
utilized to deliver estradiol through intact skin with maintenance of
therapeutic serum estradiol levels for six days after a single topical
application. Based on these results, the Company initiated a Phase I human
clinical trial of ESTRASORB directed to 10 symptomatic menopausal women. In
this study, each woman will receive a single topical application of ESTRASORB.
The Company believes that this study will be completed in the fourth quarter of
this year. The Company plans to submit Phase II clinical study
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<PAGE> 9
plans for ESTRASORB to the federal Food and Drug Administration (the "FDA") in
the fourth quarter of 1996.
The Company believes its MNP and other technologies are suitable for
the delivery of additional alcohol soluble as well as other drugs through the
skin.
Helicore Microbicidal Preparations
The Company has developed proprietary lipid structure formulations
that it is using in the development of a non-antibiotic microbicidal
preparation for the treatment of Helicobacter pylori ("H. pylori") infection in
humans. H. pylori was recognized in 1994 by the National Institutes of Health
as a causative agent of peptic ulcer disease, antral gastritis and certain
types of gastric cancer. It is estimated that 30-80 million adults in the U.S.
are infected with H. pylori. Each year the treatment of complications of H.
pylori infections (i.e. peptic ulcer disease) cost in excess of five billion
dollars. Current therapies for the treatment of H. pylori include the use of
antibiotics alone or antibiotics in combination with drugs that inhibit acid
production in the stomach. Problems associated with such therapies include,
but are not limited to, cost, toxicity and failure to sufficiently eradicate
all the bacteria due to resistance.
In the fourth quarter of 1995, the Company completed a single-dose
Phase I human clinical study involving 20 subjects in which no clinically
significant side effects were found. Based on the results of this study, in
March 1996 the Company commenced a multiple-dose Phase I human trial directed
to 20 patients diagnosed with H. pylori infection. The Company plans to
submit Phase II clinical study plans for Helicore to the FDA in the fourth
quarter of 1996.
Vaccine Adjuvants
Adjuvants are substances that make vaccines more effective. The
Company believes that certain of its organized lipid structures (e.g. Novasomes
and MNPs) may provide effective and safe adjuvant carrier systems for a variety
of vaccines. The Company believes both Novasomes and MNPs may be used as
vaccine adjuvants and protective carriers in a variety of circumstances,
including: (i) encapsulation and protection of delicate antigenic materials
from destruction by the body's normal enzymatic processes; (ii) encapsulation
of toxic materials, such as endotoxins and other potent toxins, for gradual
releases, thereby providing protection of the body from the toxin while
generating an immune response to the toxic antigen; (iii) presentation of small
peptide antigens to elicit a heightened cellular immune response; and (iv)
delivery of genes and other molecules into targeted cells.
Incorporation and Spin-off
The Company was incorporated in Delaware in 1987. Its principal
executive offices are currently located at 12111 Parklawn Drive, Rockville,
Maryland. On December 12, 1995, the Company's former parent, IGI, Inc.,
distributed its majority interest in Novavax to the IGI stockholders (the
"Distribution").
RECENT DEVELOPMENTS
The primary focus of Novavax is the development of human
pharmaceuticals and drug delivery technologies. Historically, the focus of the
Company was on the development of human vaccines, vaccine adjuvants, drug
delivery technologies (such as ESTRASORB) and anti-infective pharmaceuticals
(such as Helicore). Novavax has developed several oral vaccines, two of which
(ECOVAX 0157(TM) and Shigella flexneri 2a) were granted Investigational New
Drug Application approvals and completed Phase I human clinical studies. Both
vaccine studies were multiple dose Phase I safety trials in which no
significant toxicity was noted. The Company's lead
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pharmaceutical product candidates, ESTRASORB and Helicore, are completing Phase
I human clinical studies.
Although the Company began development of its pharmaceutical product
candidates later than, and as byproducts of, its vaccine development, its
primary emphasis is now on these pharmaceutical product candidates for the
following reasons:
- Much larger potential markets
- Lower estimated clinical development costs
- Measurements of clinical efficacy are more easily defined
- Current financial resources do not permit concurrent
development of both multiple vaccine and pharmaceutical
programs
Consistent with prudent use of the Company's limited cash resources,
the clinical development programs for both oral active vaccine immunization
programs have been presently suspended in favor of the development of its two
lead pharmaceutical product candidates. The Company plans to submit Phase II
clinical study plans for both ESTRASORB and Helicore to the federal Food and
Drug Administration (the "FDA") in the fourth quarter of 1996. The Company has
the potential to develop other human pharmaceutical products utilizing its
proprietary drug delivery platform technologies dependent upon additional
future capital.
In a related development, the Company was notified by SmithKline
Beecham Biologicals, s.a. of Belgium ("SmithKline") that effective July 14,
1996, it was terminating its Research and License Agreement and Option
Agreement with the Company, relating to Novavax's Novasome vaccine adjuvant
technology. The Research and License Agreement had allowed SmithKline to
utilize the Company's Novasome technology to adjuvant certain SmithKline
vaccines.
At the time of Novavax's spin-off, Dr. Edward B. Hager and Mr. John P.
Gallo announced that they would remain and Chief Executive Officer and Chief
Operating Officer, respectively, of the Company during a transition period
until not later than June 30, 1996. Accordingly, on July 1, 1996 the Hon. John
O. Marsh, Jr. succeeded Dr. Hager as Chairman and Chief Executive Officer.
Subsequently, Mr. Marsh appointed Denis M. O'Donnell, M.D., the President of
Novavax, to the additional position of Chief Operating Officer to succeed Mr.
Gallo in that role. Dr. Hager and Mr. Gallo will remain Directors of the
Company. In addition, in May Ms. Elaine T. Bennett was appointed Vice
President, Treasurer and Chief Financial Officer of the Company.
In September, Novavax signed a lease and anticipates that in October
it will move its operations from its present site in Rockville, Maryland to
more suitable leased research, development, pilot production and administrative
facilities in nearby Columbia, Maryland. This move was prompted by the
Company's rapid evolution from a research phase to a development stage
biopharmaceutical company with several products in human clinical trials. The
move is both economically efficient and necessary from an operations
standpoint.
RISK FACTORS
In evaluating the Company and its business, prospective investors
should carefully consider the following risk factors in addition to the other
information appearing in or incorporated by reference in this Prospectus.
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<PAGE> 11
Early Stage of Product Development. Novavax has not yet completed
the development of any products and has not begun to generate any revenue from
the commercialization of products. All of Novavax's potential products are in
research, development or early-stage clinical trials. The development of
products, if any, will require significant additional research, development,
preclinical and clinical testing, regulatory approval and investment prior to
commercialization, which may never occur. None of Novavax's pharmaceuticals or
other products is expected to be commercially available for at least several
years.
Success in the pharmaceuticals market is dependent on Novavax's
ability to complete satisfactorily the development of pharmaceuticals based on
the Novavax Technologies that will be safe and efficacious and will have
benefits not available in competitive products; and no assurance can be given
that it will be successful in doing so. Novavax's potential products are
subject to the risks of failure inherent in the development of pharmaceutical
products based on new technologies. These risks include the possibilities that
Novavax's approach will not be successful; that any or all of Novavax's
potential products will be found to be unsafe, ineffective or otherwise fail to
meet applicable regulatory standards or receive necessary regulatory
clearances; that the potential products, if safe and effective, will be
difficult to develop into commercially viable products or manufacture on a
large scale, be uneconomical to market, or fail to obtain acceptance by the
medical community; that proprietary rights of third parties will preclude
Novavax from marketing such products; or that third parties will market
superior or equivalent products. There can be no assurance that any of these
products will be successfully developed and, whether produced by Novavax or by
its licensees or partners, will meet applicable regulatory standards, obtain
required regulatory approvals, be capable of being produced in commercial
quantities at reasonable costs or be successfully marketed.
Absence of Revenue from Products. Novavax's future growth will depend
on its ability to commercialize its Novavax Technologies for human
pharmaceutical applications. To date, Novavax has not generated any revenue
from the sale of pharmaceuticals or other products, although it has received
insignificant development funds from potential collaborators or partners.
During the years ended December 31, 1993, 1994 and 1995, Novavax incurred net
losses of $4,790,033, $5,690,036 and $8,494,358, respectively. The losses have
resulted from expenses incurred in the Company's research and development
programs, protection of intellectual property and, to a lesser extent, from
other general, administrative and operating expenses. Novavax expects
cumulative losses will increase in the near-term as it conducts additional
clinical trials and seeks regulatory approval for its product candidates.
Payments from collaborative partners, if any, and investment income are
expected to be the only sources of revenue for the foreseeable future and
revenues from commercial sales of products are not expected for a number of
years, if at all. There can be no assurance that the Company will be
successful in entering into strategic alliances or collaborative arrangements
that will result in significant revenues. Novavax expects to continue to incur
substantial operating losses unless and until such time, if ever, as product
sales, licensing fees and royalty payments generate sufficient revenue to fund
its continuing operations. The time required to reach profitability is highly
uncertain. There can be no assurance that the Company will be able to achieve
profitability on a sustained basis, if at all.
Additional Financing Requirements and Access to Capital. Novavax will
require substantial funds to continue its research and development, future
preclinical and clinical trials, regulatory approvals, establishment of
commercial-scale manufacturing capabilities, and marketing its products.
Novavax's capital requirements depend on numerous factors, including but not
limited to the progress of its research and development programs, the progress
of preclinical and clinical testing, the time and costs involved in obtaining
regulatory approvals, the cost of filing, prosecuting, defending and enforcing
any patent claims and other intellectual property rights, competing
technological and market developments, changes in Novavax's existing research
relationships, the ability of Novavax to establish collaborative arrangements,
the development of commercialization activities and arrangements, and the
purchase of additional facilities and capital
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<PAGE> 12
equipment. Novavax estimates that its existing cash resources, together with
the net proceeds of the Private Placement (as hereinafter defined), will only
be sufficient to finance its operations at its current level for approximately
12 months. There can be no assurance, however, that such estimate will be
correct. Novavax will seek to obtain additional funds for these purposes
through public or private equity or debt financings, collaborative arrangements
with pharmaceutical companies or from other sources. If additional funds are
raised by issuing equity securities of Novavax, dilution to then existing
stockholders may result. There can be no assurance that additional funding or
bank financing will be available at all or on acceptable terms to permit
successful commercialization of the Novavax Technologies and products. If
adequate funds are not available, Novavax may be required to significantly
delay, reduce the scope of or eliminate one or more of its research or
development programs, or seek other alternatives to avoid insolvency, including
arrangements with collaborative partners or others that may require Novavax to
relinquish rights to certain of its technologies, product candidates or
products.
Uncertainty of Patents and Proprietary Rights. Although Novavax has
36 issued and 13 pending United States patents, its success will depend, in
large part, on its ability to maintain its existing patents, obtain new
patents, maintain trade secret protection and operate without infringing on the
proprietary rights of third parties or having third parties circumvent
Novavax's rights. Novavax has U.S. and foreign patent rights covering its
Novavax Technologies, including its Novamix production equipment. The patent
positions of pharmaceutical companies can be highly uncertain and involve
complex legal, scientific and factual questions. To date, no consistent policy
has emerged regarding the breadth of biotechnology patent claims that are
granted by the United States Patent and Trademark Office or enforced by the
Federal courts. Thus, there can be no assurance that any of Novavax's existing
patents will not be challenged or future patent applications will result in the
issuance of patents, that Novavax will develop additional proprietary products
that are patentable, that any patents issued to Novavax will provide Novavax
with any competitive advantages or will not be challenged by any third parties,
that the patents of others will not impede the ability of Novavax to do
business or that third parties will not be able to circumvent Novavax's
patents. Furthermore, there can be no assurance that others will not
independently develop or duplicate similar technology or products, or, if
patents are issued to Novavax, design around the patents issued to Novavax.
The failure of the Company or its licensors to obtain or maintain patent
protection for the Company's products could have a material adverse effect on
the Company.
Novavax may be required to obtain licenses from third parties to avoid
infringing patents or other proprietary rights. No assurance can be given that
any licenses required under any such patents or proprietary rights would be
made available, if at all, on terms acceptable to Novavax. If Novavax does not
obtain such licenses, it could encounter delays in product introductions, or
could find that the development, manufacture or sale of products requiring such
licenses could be prohibited. In addition, Novavax could incur substantial
costs in defending itself in suits brought against Novavax on patents it might
infringe or in filing suits against others to have such patents declared
invalid.
On February 6, 1996, Johnson & Johnson and its wholly-owned
subsidiary, Ortho-McNeil, Inc. (collectively, "J&J"), filed a lawsuit against
the Company's subsidiary Micro-Pak, Inc. and the Company's former parent, IGI,
Inc. ("IGI"), and its subsidiaries alleging trademark infringement and
trademark dilution. J&J alleges that IGI's use of the names Nova Skin, Nova
Skincare and Nova-Aesthetics infringes on rights associated with J&J's
trademark Renova for a prescription drug. IGI and the Company are vigorously
defending the lawsuit and the Company believes that the outcome of the
proceedings will not have a material adverse affect on its financial position
or results of operations.
Some of Novavax's know-how and technology may not be patentable. To
protect its rights, Novavax requires employees, consultants, advisors and
collaborators to enter into
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<PAGE> 13
confidentiality agreements. There can be no assurance, however, that these
agreement will provide meaningful protection for Novavax's trade secrets,
know-how or other proprietary information in the event of any unauthorized use
or disclosure. Further, Novavax's business may be adversely affected by
competitors who independently develop competing technologies, especially if
Novavax obtains no, or only narrow, patent protection.
Technological Change and Competition. The pharmaceutical industry is
subject to rapid and substantial technological change and intense competition.
Competitors of Novavax in the United States and abroad are numerous and
include, among others, both large and small pharmaceutical companies,
biotechnology firms, universities and other research institutions. There can
be no assurance that Novavax's competitors will not succeed in developing
technologies and products that are more effective than any which are being
developed by Novavax or which would render Novavax's technologies and products
obsolete or noncompetitive. Most of these competitors have substantially
greater financial and technical resources and production and marketing
capabilities than Novavax. In addition, many of Novavax's competitors have
significantly greater experience than Novavax in conducting preclinical testing
and clinical trials of human pharmaceuticals and obtaining United States Food
and Drug Administration ("FDA") and other regulatory approvals of products for
use in health care. Accordingly, Novavax's competitors may succeed in
obtaining FDA approval for products more rapidly than Novavax. If Novavax
commences significant commercial sales of any products, it will also be
competing with respect to manufacturing efficiency and marketing capabilities,
areas in which it has limited or no experience.
Need to Establish Collaborative Commercial Relationships; Dependence
on Partners. Novavax's business strategy for its products is to enter into
strategic alliances or licensing arrangements with corporate partners,
primarily pharmaceutical companies, relating to the development and
commercialization of certain products incorporating the Novavax Technologies
for commercialization outside the United States. There can be no assurance
that Novavax will be able to negotiate acceptable collaborative arrangements,
that such collaborations will be available to Novavax on acceptable terms, that
any such relationships, if established, will be scientifically or commercially
successful or that any collaborative partner will have economic motivation to
continue funding provided for under any such agreements or that such
collaboration will be successful. Novavax expects that under certain of these
arrangements, the collaborative partner will have the responsibility for
conducting human clinical trials and the submission for regulatory approval of
the product candidate with the appropriate regulatory agencies. Should the
collaborative partner fail to develop a marketable product, Novavax's business
may be adversely affected. There can be no assurance that Novavax's
collaborative partners will not be pursuing alternative technologies either on
their own or in collaboration with others, including Novavax's competitors, as
a means for developing treatments for the diseases targeted by these
collaborative programs. Novavax's business also will be affected by the
success of its corporate partners in marketing any successfully developed
products within the geographic areas in which such partners are granted
marketing rights. Novavax may retain manufacturing rights for some of the
products that it develops and licenses pursuant to arrangements with corporate
partners. However, there can be no assurance that Novavax will be able to
retain such rights on acceptable terms, if at all, or that Novavax will have
the ability to produce the quantities of product required under the terms of
such arrangements. Novavax's royalties from sales of products licensed to
collaborators, if any, may be less than the revenues Novavax could have
generated had it commercialized and marketed products itself.
Attraction and Retention of Key Employees and Scientific
Collaborators. Novavax is highly dependent on the principal members of its
scientific and managerial staff, the loss of whose services could have a
material adverse effect on Novavax. Furthermore, recruiting and retaining
qualified scientific personnel to perform research and development work in the
future will also be critical to Novavax's success. There can be no assurance
that Novavax will be able to attract and retain such personnel on acceptable
terms given the competition among numerous pharmaceutical
10
<PAGE> 14
companies, universities and non-profit research institutions for experienced
scientists. Novavax's anticipated growth and expansion into areas and
activities requiring additional expertise such as clinical testing,
governmental approvals, production and marketing, are expected to place
increased demands on Novavax's resources. These demands are expected to
require the addition of new management personnel and the development of
additional expertise by existing management personnel. The failure to acquire
such services or to develop such expertise could materially adversely affect
Novavax's business.
Limited Manufacturing Capability. The development and manufacture of
Novavax's products are subject to current good laboratory practices ("GLP") and
good manufacturing practices ("GMP") requirements prescribed by the FDA or
other standards prescribed by the appropriate regulatory agency in the country
of use. Novavax currently has the ability to produce quantities of Novasomes
sufficient to support its current needs. Novavax also has the ability to
produce quantities of its products sufficient to support its current research
and development and early-stage clinical trial needs. However, Novavax will
need to acquire additional manufacturing facilities and improve its
manufacturing technology in order to meet the volume and cost requirements for
later clinical trials and commercial production of its own pharmaceuticals if
it elects to do so. If Novavax decides to establish additional manufacturing
facilities, doing so will require substantial additional funds, the hiring and
retention of significant additional personnel and compliance with extensive
regulations applicable to such a facility. There can be no assurance that
Novavax will be able to obtain or manufacture such products in a timely fashion
at acceptable quality and prices, that it or its suppliers can comply with GLP
or GMP, as applicable, or that it or its suppliers will be able to manufacture
an adequate supply of product. If Novavax relies on collaborators, licensees
or contract manufacturers for the commercial manufacture of its products, the
Company will have only limited control over the commercial manufacturing of its
products. There can be no assurance that Novavax will be able to enter into
any such manufacturing arrangements on acceptable terms, if at all. If the
Company is not able to enter into commercial manufacturing agreements or
develop its own commercial manufacturing capacity, it could encounter delays in
introducing its products into certain markets, or find that the manufacture of
its products in these markets is adversely affected. There can be no assurance
that the parties to the Company's future commercial manufacturing agreements
will perform their obligations as expected, or that any revenue will be derived
from these commercial manufacturing agreements.
Absence of Sales and Marketing Experience. Novavax expects to
commercialize and sell certain of its products through co-marketing
arrangements with third parties. In addition, Novavax may build a small
targeted direct sales group for products in markets that can be accessed with a
small to medium size sales force, if and when such products approach FDA
marketing approval. To date, though, Novavax has had no experience in sales,
marketing or distribution of its products. In order to market its products
directly, Novavax would need to develop a marketing staff and sales force with
technical expertise. There can be no assurance that Novavax will be able to
build such a marketing staff or sales force, that the cost of establishing such
a marketing staff or sales force will not exceed any product revenue or that
Novavax's direct sales and marketing efforts will be successful. In addition,
if Novavax succeeds in bringing one or more products to market, it may compete
with other companies that currently have extensive and well-funded marketing
and sales operations. There can be no assurance that Novavax's marketing and
sales efforts would compete successfully against such other companies. To the
extent Novavax enters into co-marketing arrangements, any revenue received by
Novavax will be dependent on the efforts of third parties and there can be no
assurance that such efforts will be successful.
Government Regulation; Uncertainty of Clinical Trials. The production
and marketing of Novavax's products and ongoing research and development
activities are subject to regulation by numerous governmental authorities in
the United States and other countries. Prior to marketing, any human
pharmaceuticals developed by Novavax must undergo rigorous preclinical testing
and clinical trials, as well as an extensive regulatory approval process
mandated by the FDA and
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<PAGE> 15
foreign regulatory agencies. These processes can take many years and require
the expenditure of substantial resources. The rate of completion of clinical
trials is dependent upon, among other factors, the rate of patient enrollment.
Patient enrollment is a function of many factors, including the size of the
patient population, the nature of the protocol, the company's ability to manage
the clinical trial, the proximity of patients to clinical sites and the
eligibility criteria for the study. Several factors, such as delays in planned
patient enrollment, may result in increased costs and delays or termination of
clinical trials prior to completion, which could have a material adverse effect
on Novavax. Clinical trials generally must meet requirements for institutional
review board oversight and informed consent, as well as regulatory agency prior
review, oversight and good clinical practice requirements. Data obtained from
preclinical and clinical activities are susceptible to varying interpretations
which could delay, limit or prevent regulatory approval. In addition, delays
or rejections may be encountered based upon changes in the policies of
regulatory authorities for drug approval during the period of product
development and regulatory review of each submitted new drug application or
product license application. Novavax may be required to demonstrate that the
proposed product represents an improved form of treatment over existing
therapies. Novavax has limited experience in conducting and managing the
preclinical and clinical trials necessary to obtain government approvals.
There can be no assurance that the results of such clinical trials will be
consistent with the results obtained in preclinical studies or that the results
obtained in later phases of clinical trials will be consistent with those
obtained in earlier phases. A number of companies in the biopharmaceutical
industry have suffered significant setbacks in advanced clinical trials, even
after experiencing promising results in early animal and human testing. There
also can be no assurance that any human pharmaceutical products will be shown
to be safe and efficacious or that regulatory approval for any such product
will be obtained on a timely basis, if at all. Delays in obtaining regulatory
approvals would adversely affect the marketing of products developed by Novavax
and Novavax's ability to receive product revenue or royalties. Moreover, if
regulatory approval of a drug is granted, such approval is likely to entail
limitations on the indicated uses for which it may be marketed. Further, even
if such regulatory approval is obtained, a marketed drug and its manufacturer
are subject to continual review, and discovery of previously unknown problems
with a product or manufacturer may result in restrictions on such product or
manufacturer, including withdrawal of the product from the market. Although
Novavax intends to make use of fast-track regulatory approval programs when
possible, there can be no assurance that Novavax will be able to obtain the
clearances and approvals necessary for clinical testing or for manufacturing
and marketing its products. Existing or additional government regulation could
prevent or delay regulatory approval of Novavax's products or affect the
pricing or marketing of such products.
Quarterly Fluctuations of Operating Results. Novavax's quarterly
operating results are likely to vary significantly depending on factors such as
the timing of new license agreements, the results of preclinical or clinical
trials, the timing of collaborative agreements for the development of products,
the timing of significant orders and the introduction of products by Novavax.
Novavax's expense levels are based in part on its expectations as to future
revenue. If revenue levels are below expectations, operating results will be
adversely affected. Novavax believes that period-to-period comparisons of its
operating results are not necessarily meaningful and should not be relied upon
as indications of future performance. As a result of the foregoing factors, it
is likely that in some future quarters, Novavax's revenue or operating results
will be below the expectations of public market analysts and investors. In
such event, the price of Novavax's Common Stock could be materially adversely
affected.
Product Liability. Although Novavax is not currently a party to any
product liability litigation, the testing, manufacturing, marketing and sale of
human medical products entail potential product liability risks, including
claims made directly by consumers, health care providers, pharmaceutical
companies or others selling such products. There can be no assurance that
substantial product liability claims will not be asserted against Novavax.
Novavax currently has limited product liability coverage for the clinical
research use of its product candidates. Novavax
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<PAGE> 16
does not have product liability insurance for the commercial sale of its
potential product candidates but intends to obtain such coverage if and when
its products are commercialized. Such insurance, however, is expensive,
difficult to obtain and may not be available in the future on acceptable terms,
or at all. No assurance can be given that product liability insurance can be
maintained in the future at a reasonable cost or in sufficient amounts to
protect Novavax against losses due to liability. An inability to maintain
insurance at an acceptable cost or to otherwise protect against potential
product liability could prevent or inhibit the continued commercialization of
Novavax's products. In addition, a product liability claim in excess of
relevant insurance coverage, if any, or a product recall could have a material
adverse effect on Novavax's business, financial condition and results of
operations.
Hazardous Materials. Novavax's development and commercial activities
may involve the controlled use of hazardous materials, chemicals, viruses,
bacteria and other pathogens. Although Novavax believes that its safety
procedures for handling and disposing of such materials comply with the
standards prescribed by state, federal and local regulations, the risk of
accidental contamination or injury from these materials cannot be completely
eliminated. In the event of such an accident, Novavax could be held liable for
any damages that result and any such liability could exceed the resources of
Novavax. The Company may be required to incur significant costs to comply with
environmental laws and regulations in the future.
Uncertainty of Third-Party Reimbursement. In both domestic and
foreign markets, the ability of Novavax to commercialize its product candidates
will depend, in part, on the availability of reimbursement from third-party
payors, such as government health administration authorities, private health
insurers and other organizations. Third-party payors are increasingly
challenging the price and cost-effectiveness of medical products. There can be
no assurance that Novavax-developed products will be considered cost effective.
Significant uncertainty exists as to the reimbursement status of newly-approved
healthcare products. There can be no assurance that adequate third-party
insurance coverage will be available for Novavax to establish and maintain
price levels sufficient for realization of an appropriate return on its
investment in developing new therapies. Government and other third-party
payors are increasingly attempting to contain medical costs by limiting both
coverage and the level of reimbursement of new therapeutic products approved
for marketing by the FDA and by refusing, in some cases, to provide coverage
for uses of approved products for disease indications for which the FDA has not
granted marketing approval. If adequate coverage and reimbursement levels are
not provided by government or third-party payors for uses of Novavax's
products, the market acceptance of these products would be adversely affected,
which could have a material adverse effect on Novavax's business, financial
condition and results of operations.
Uncertainty Related to Medical Reform Measures. There have been a
number of federal and state proposals during the last few years to subject the
pricing of pharmaceuticals to government control and to make other changes to
the medical care system of the United States. It is uncertain what legislative
proposals will be adopted or what actions federal, state or private payors for
medical goods and services may take in response to any medical reform proposals
or legislation. Novavax cannot predict the effect these reforms may have on
its business, and no assurance can be given that any such reforms will not have
a material adverse effect on Novavax.
Volatility of Stock Price; Possible Delisting; Absence of Dividends.
The market prices for securities of biotechnology and pharmaceutical companies,
including Novavax, have historically been highly volatile, and it is likely
that the market price of Novavax Common Stock will continue to be highly
volatile. Since its listing on the American Stock Exchange (the "AMEX"), the
closing price of the Novavax Common Stock on the AMEX has ranged between a low
of $3.00 per share and a high of $8.25 per share. Announcements of
technological innovations or new commercial products by Novavax or its
competitors, regulatory developments, disputes concerning patent or proprietary
rights, publicity regarding actual or potential medical results relating to
products under
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<PAGE> 17
development by Novavax or its competitors, public concern as to the safety of
Novavax's products, and economic and other external factors unrelated to
Novavax's business or operations, as well as period-to-period fluctuations in
financial results, may have a significant impact on the market price of Novavax
Common Stock.
Novavax Common Stock is currently traded on the AMEX. A failure to
continue to meet the AMEX's maintenance requirements may result in a delisting
of the Novavax Common Stock. In particular, Novavax may have difficulty
maintaining the minimum market capitalization requirements of the AMEX because
such capitalization is dependent on the price at which the shares of Novavax
Common Stock trade from time to time. The liquidity of delisted securities,
which would probably trade in the over-the-counter markets, may be impaired,
not only in the number of shares that could be bought or sold, but also through
delays in the timing of transactions, reductions in security analysts' and the
news media's coverage of Novavax, and lower prices than might otherwise be
attained.
Novavax has never paid cash dividends on the Novavax Common Stock and
does not anticipate paying any cash dividends in the foreseeable future.
Dilution. As of September 30, 1996, there were outstanding stock
options for an aggregate of 3,511,588 shares of Novavax Common Stock at a
weighted average exercise price of $3.10 per share. Investors purchasing
shares of Novavax Common Stock in this offering may incur dilution to the
extent that the outstanding options are exercised.
Potential Conflicts of Interest. Mr. Marsh, a director and the
Chairman of the Board and Chief Executive Officer of Novavax, also serves as a
director of IGI. Dr. Hager serves as a director and Chairman of the Board and
Chief Executive Officer of IGI and as a director and Chairman of the Executive
Committee of the Board of Directors of Novavax. Mr. Gallo serves as a
director, President and Chief Operating Officer of IGI and as a director and
Vice Chairman of the Executive Committee of the Board of Directors of Novavax.
Mr. Marsh, Dr. Hager and Mr. Gallo constitute three out of the seven members of
the Novavax Board of Directors. The presence of individuals serving in
decision-making roles in both companies may affect the ability of each company
to receive the best arms' length result in transactions between the two
companies as well as the ability of the officers and directors to act in the
best interests of both companies.
Novavax and IGI have entered into a variety of intercompany agreements,
the terms of which were unilaterally established by IGI. Under a Transition
Services Agreement, IGI provided certain administrative services to Novavax
prior to June 30, 1996. In connection with the Distribution, IGI paid Novavax
$5,000,000 in return for a fully paid-up ten-year license entitling it to the
exclusive use of the Novavax Technologies in certain fields. IGI has the
option, exercisable in the last year of the ten-year term, to extend the
License Agreement for an additional ten-year period for $1,000,000. Novavax
retains the right to use its Novavax Technologies for all other applications,
including most human pharmaceuticals. Novavax has agreed in a Tax Matters
Agreement to use its best efforts not to engage in certain actions
("Post-Distribution Acts") which could render the Distribution taxable. Any of
the following activities within one year following the Distribution could
render the Distribution and Restructuring taxable: (i) the transfer by Novavax
of a material portion of its assets (other than a transfer of assets in the
ordinary course of business); (ii) the merger of Novavax with or into another
corporation in a transaction that does not qualify as a tax-free reorganization
under Section 368 of the Internal Revenue Code of 1986, as amended, (the
"Code"); (iii) the discontinuance by Novavax of a material portion of its
historical business activities; (iv) the conversion (or redemption or exchange)
of the Novavax Common Stock distributed in the Distribution into or for any
other stock, security, property or cash; and (v) the issuance of additional
shares of stock by Novavax that causes the stockholders who receive their
shares of Novavax Common Stock in the Distribution to no longer have control of
Novavax within Section 368(c) of the Code. If the Distribution is rendered
taxable as a result of a Post-Distribution Act, then (x) the corporate level
taxable gain would be recognized
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by the consolidated group of which IGI is the parent, (y) both IGI, as parent
of that group, and Novavax as a former member of that group, would be severally
liable for the corporate level tax on such gain and (z) each holder of IGI
Common Stock who received shares of Novavax Common Stock in the Distribution
would be treated as having received a taxable dividend.
Antitakeover Provisions. Novavax's Amended and Restated Certificate
of Incorporation (the "Certificate of Incorporation"), requires that any action
required or permitted to be taken by stockholders of Novavax must be effected
at a duly called annual or special meeting of stockholders and may not be
effected by any consent in writing, and will require reasonable advance notice
by a stockholder of a proposal or director nomination which such stockholder
desires to present at any annual or special meeting of stockholders. Special
meetings of stockholders may be called only by the Chief Executive Officer or,
if none, the President of Novavax or the Board of Directors. The Certificate
of Incorporation provides for a classified Board of Directors, and members of
the Board of Directors may be removed only for cause upon the affirmative vote
of holders of at least two-thirds of the shares of capital stock of Novavax
entitled to vote. Novavax's By-Laws provide that, during any time in which the
directors of Novavax who are affiliated with IGI shall constitute at least half
of the membership of the Novavax Board of Directors, any matter requiring
approval of the Novavax Board of Directors shall be subject to the approval of
not less than two-thirds of the directors.
The Board of Directors also has the authority, without further action
by the stockholders, to fix the rights and preferences of, and issue shares of,
Preferred Stock. These provisions, and other provisions of Novavax's
Certificate of Incorporation and By-Laws, may have the effect of deterring
hostile takeovers or delaying or preventing changes in control or management of
Novavax, including transactions in which stockholders might otherwise receive a
premium for their shares over then current market prices. In addition, these
provisions may limit the ability of stockholders to approve transactions that
they may deem to be in their best interests.
SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
Selling Stockholders, including (i) the names of the Selling Stockholders, (ii)
the number of shares of Common Stock owned by the Selling Stockholders prior to
the offering and (iii) the maximum number of shares of such Common Stock to be
offered hereby. Because the Selling Stockholders may offer all or a portion or
none of the Common Stock offered pursuant to this Prospectus, no estimate can
be given as to the amount of Common Stock that will be held by the Selling
Stockholders upon termination of the offering. See "Plan of Distribution."
The shares covered by this Prospectus, are being acquired from the
Company by the Selling Stockholders pursuant to a Stock Purchase Agreement
dated as of October 9, 1996 (the "Purchase Agreement") for an aggregate
purchase price of $1,893,750 ($3.75 per share) (the "Private Placement"), the
only condition to which is the effectiveness of the Registration Statement of
which this Prospectus forms a part. The offer and sale by the Company of the
Common Stock pursuant to the Purchase Agreement were made pursuant to an
exemption from registration under the Securities Act. The placement agent in
connection with the sale of Common Stock pursuant to the Purchase Agreement
will be paid a fee of $132,562.50 and will be issued a warrant to purchase
50,000 shares of the Company's Common Stock at a price of $3.75 per share. In
addition, the Company has agreed to reimburse such placement agent for its
travel and out-of-pocket expenses incurred in connection with the sale of
Common Stock pursuant to the Purchase Agreement up to a maximum of $60,000.
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<TABLE>
<CAPTION>
Number of Shares Beneficially Maximum Number of
Name of Selling Stockholders Owned Prior to Offering Shares Being Offered
- ---------------------------- --------------------------- --------------------
<S> <C> <C>
Aries Domestic Fund, L.P. 37,500 37,500
Aries Trust 87,500 87,500
Concorde Special Situations 30,000 30,000
Davin Capital, L.P. 25,000 25,000
Dominion Income Management, Inc. 25,000 25,000
GIP Investments, Ltd. 50,000 50,000
Pequot Scout Fund, L.P. 100,000 100,000
Strome, Susskind Hedgecap Fund, L.P. 50,000 50,000
Windsor Partners, L.P. 100,000 100,000
</TABLE>
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares
by the Selling Stockholders
PLAN OF DISTRIBUTION
The Company has filed with the Commission the Registration Statement,
of which this Prospectus forms a part, with respect to the resale of the Shares
from time to time by the Selling Stockholders in open market or privately
negotiated transactions. The Company has agreed to keep the Registration
Statement effective until the earlier of (i) the date on which no Selling
Stockholder holds any of the shares of Common Stock offered hereby, (ii) the
date upon which all of the Shares are eligible for sale pursuant to Rule 144,
and (iii) three years from the effective date of the Registration Statement.
The Company intends to deregister any of the Shares not sold by the Selling
Stockholders at the end of such period.
The Company has been advised that the Selling Stockholders may sell
the Shares at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices. The Selling
Stockholders may effect such transactions by selling the Shares to or through
broker-dealers and such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Stockholders or the
purchasers of the Shares for whom such broker-dealers may act as agent or to
whom they sell as principal, or both (which compensation to a particular
broker-dealer might be in excess of customary commissions). Each Selling
Stockholder will be responsible for all brokerage commissions and other amounts
payable with respect to any sale of Shares with respect to such Selling
Stockholder and any legal, accounting or other expenses incurred.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in ceratin states the
Shares may not be sold unless they have been registered or qualified for sale
in the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The Selling Stockholders and any broker-dealers who act in connection
with the sale of Shares hereunder may be deemed to be "underwriters," as such
term is defined in the Securities Act, and any commissions received by them or
profit on any resale of the Shares as principal might be deemed to be
underwriting discounts and commissions under the Securities Act.
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<PAGE> 20
To the extent required, the type and number of Shares to be sold, the
purchase price and public offering price, the name or names of any agent,
dealer or underwriter, and any applicable commissions or discounts with respect
to a particular offering will be set forth in an accompanying Prospectus
Supplement to this Prospectus.
Pursuant to the Purchase Agreement, the Company agreed to register the
shares under the Securities Act and to indemnify and hold the Selling
Stockholders harmless against certain liabilities, including certain
liabilities under the Securities Act, that could arise in connection with the
sale by the Selling Stockholders of the Shares. The Company has agreed to bear
certain expenses (other than selling commissions) in connection with the
registration and sale of the Shares being offered by the Selling Stockholders,
estimated to be $23,000.
LEGAL MATTERS
Certain legal matters with respect to the shares of Common Stock
offered hereby have been passed upon by White & McDermott, P.C., 65 William
Street, Suite 209, Wellesley, Massachusetts 02181. David A. White, a
shareholder of such firm, owns 100 shares of the Common Stock and is the
Secretary of the Company.
EXPERTS
The consolidated balance sheets as at December 31, 1995 and 1994 and
the related consolidated statements of operations, stockholders' equity
(deficit) and cash flows for each of the three years in the period ended
December 31, 1995, incorporated by reference into this Prospectus, have been
incorporated herein in reliance on the report of Coopers & Lybrand L.L.P.,
independent certified public accountants, contained in the Company's Annual
Report on Form 10-K for the year ended December 31, 1995 given on the authority
of that firm as experts in accounting and auditing.
INDEMNIFICATION
Article NINTH of the Company's Restated Certificate of Incorporation
provides that a director or officer of the Company (a) shall be indemnified by
the Company against all expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement incurred in connection with any litigation or
other legal proceeding (other than an action by or in the right of the Company)
brought against him by virtue of his position as a director or officer of the
Company if he acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful and (b) shall be indemnified by the Company against all
expenses (including attorneys' fees) and amounts paid in settlement incurred in
connection with any action by or in the right of the Company brought against
him by virtue of his position as a director or officer of the Company if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Company, except that no indemnification
shall be made with respect to any matter as to which such person shall have
been adjudged to be liable to the Company, unless a court determines that,
despite such adjudication but in view of all of the circumstances, he is
entitled to indemnification of such expenses. Notwithstanding the foregoing,
to the extent that a director or officer has been successful, on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, he is required to be indemnified by the Company against all expenses
(including attorneys' fees) incurred in connection therewith. Expenses shall
be advanced to a director or officer at his request, provided that he
undertakes to repay the amount advanced if it is ultimately determined that he
is not entitled to indemnification for such expenses.
Indemnification is required to be made unless the Company determines
that the applicable standard of conduct required for indemnification has not
been met. In the event of a determination
17
<PAGE> 21
by the Company that the director or officer did not meet the applicable
standard of conduct required for indemnification, or if the Company fails to
make an indemnification payment within 60 days after such payment is claimed by
such person, such person is permitted to petition the court to make an
independent determination as to whether such person is entitled to
indemnification. As a condition precedent to the right of indemnification, the
director or officer must give the Company notice of the action for which
indemnity is sought and the Company has the right to participate in such action
or assume the defense thereof.
Article NINTH of the Company's Restated Certificate of Incorporation
further provides that the indemnification prided therein is not exclusive, and
provides that in the event that the Delaware General Corporation Law is amended
to expand the indemnification permitted to directors or officers the Company
must indemnify those persons to the fullest extent permitted by such law as so
amended.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent
of the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, in any criminal proceeding, if such
person had no reasonable cause to believe his conduct was unlawful, provided
that, in the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such
person shall have been adjudged to be liable to the corporation unless and only
to the extent that the adjudicating court determines that such indemnification
is proper under the circumstances.
The Company maintains insurance under which the insurers will
reimburse the Company for amounts which it has paid to its directors and
officers as indemnification for claims against such persons in their official
capacities. The insurance also covers claims against them in their official
capacities that are not reimbursed by the Company. The insurance is subject to
certain limitations and exclusions.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
18
<PAGE> 22
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE SUCH DATE.
--------------------------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Incorporation of Certain
Documents by Reference . . . . . . . . . . . . . . . . . . . . . 3
Available Information . . . . . . . . . . . . . . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . 6
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Selling Stockholders . . . . . . . . . . . . . . . . . . . . . . . . 15
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . 16
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
--------------------------------------------------
NOVAVAX, INC.
505,000 SHARES OF COMMON STOCK
PROSPECTUS
<PAGE> 23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS - FORM S-3
Item 14. Other Expenses of Issuance and Distribution.
The expenses to be borne by the Company in connection with this
offering are as follows:
<TABLE>
<S> <C>
SEC Registration Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 607.34
AMEX Listing Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,100.00
Legal Services and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,500.00*
Accounting Services and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,500.00*
Miscellaneous expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292.66*
-----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 23,000.00*
</TABLE>
- ------------------------
*Estimated
All of the above expenses have been or will be paid by the Registrant.
Any further expenses incurred in connection with the sale of such Shares by the
Selling Stockholders will be paid by such Selling Stockholders. It is
impracticable to estimate such expenses.
Item 15. Indemnification of Directors and Officers.
Article NINTH of the Company's Restated Certificate of Incorporation
provides that a director or officer of the Company (a) shall be indemnified by
the Company against all expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement incurred in connection with any litigation or
other legal proceeding (other than an action by or in the right of the Company)
brought against him by virtue of his position as a director or officer of the
Company if he acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful and (b) shall be indemnified by the Company against all
expenses (including attorneys' fees) and amounts paid in settlement incurred in
connection with any action by or in the right of the Company brought against
him by virtue of his position as a director or officer of the Company if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Company, except that no indemnification
shall be made with respect to any matter as to which such person shall have
been adjudged to be liable to the Company, unless a court determines that,
despite such adjudication but in view of all of the circumstances, he is
entitled to indemnification of such expenses. Notwithstanding the foregoing,
to the extent that a director or officer has been successful, on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, he is required to be indemnified by the Company against all expenses
(including attorneys' fees) incurred in connection therewith. Expenses shall
be advanced to a director or officer at his request, provided that he
undertakes to repay the amount advanced if it is ultimately determined that he
is not entitled to indemnification for such expenses.
Indemnification is required to be made unless the Company determines
that the applicable standard of conduct required for indemnification has not
been met. In the event of a determination by the Company that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the Company fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition the court to
<PAGE> 24
make an independent determination as to whether such person is entitled to
indemnification. As a condition precedent to the right of indemnification, the
director or officer must give the Company notice of the action for which
indemnity is sought and the Company has the right to participate in such action
or assume the defense thereof.
Article NINTH of the Company's Restated Certificate of Incorporation
further provides that the indemnification prided therein is not exclusive, and
provides that in the event that the Delaware General Corporation Law is amended
to expand the indemnification permitted to directors or officers the Company
must indemnify those persons to the fullest extent permitted by such law as so
amended.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent
of the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, in any criminal proceeding, if such
person had no reasonable cause to believe his conduct was unlawful, provided
that, in the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such
person shall have been adjudged to be liable to the corporation unless and only
to the extent that the adjudicating court determines that such indemnification
is proper under the circumstances.
The Company maintains insurance under which the insurers will
reimburse the Company for amounts that it has paid to its directors and
officers as indemnification for claims against such persons in their official
capacities. The insurance also covers such persons as to amounts paid by them
as a result of claims against them in their official capacities that are not
reimbursed by the Company. The insurance is subject to certain limitations and
exclusions.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is therefore unenforceable.
Item 16. Exhibits.
See Exhibit Index, incorporated herein by reference.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation form the low or high
end of the estimated maximum offering range may be
<PAGE> 25
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement.
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Company
pursuant to Sections 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X are not set forth in the prospectus,
to deliver, or cause to be delivered to each person to whom the prospectus is
sent or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
<PAGE> 26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Baltimore, Maryland, on October 11, 1996.
NOVAVAX, INC.
By: /s/ John O. Marsh, Jr.
----------------------------
John O. Marsh, Jr.,
Chairman of the Board
POWER OF ATTORNEY
We, the undersigned officers and directors of Novavax, Inc., hereby
severally constitute and appoint John O. Marsh, Jr., Denis M. O'Donnell, and
David A. White, and each of them singly, our true and lawful attorneys-in-fact,
with full power to them in any and all capacities, to sign any amendments to
this Registration Statement on Form S-3 (including Pre- and Post-Effective
Amendments), and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ John O. Marsh, Jr. Chairman of the Board and October 11, 1996
- ------------------------------ Chief Executive Officer
John O. Marsh, Jr.
/s/ Elaine T. Bennett Vice President (Principal Financial October 11, 1996
- ------------------------------ and Accounting Officer)
Elaine T. Bennett
/s/ Wayne A. Downing Director October 11, 1996
- ----------------------------
Wayne A. Downing
/s/ John P. Gallo Director October 11, 1996
- -----------------------------
John P. Gallo
/s/ Edward B. Hager Director October 11, 1996
- ----------------------------
Edward B. Hager
</TABLE>
<PAGE> 27
<TABLE>
<S> <C> <C>
/s/ J. Michael Lazarus Director October 11, 1996
- ------------------------------
J. Michael Lazarus
/s/ Ronald A. Schiavone Director October 11, 1996
- -----------------------------
Ronald A. Schiavone
/s/ Ronald H. Walker Director October 11, 1996
- ----------------------------
Ronald H. Walker
</TABLE>
<PAGE> 28
EXHIBIT INDEX
The exhibits marked with an asterisk are filed herewith. The
remainder of the exhibits have heretofore been filed with the Commission and
are incorporated herein by reference.
4.1 Restated Certificate of Incorporation of the Registrant.
(Incorporated by reference to Exhibit 3.1 to the Registrant's Registration
Statement File No. 0-26770 filed September 14, 1995 on Form 10 (the
"Registration Statement").)
4.2 Restated By-laws of Registrant. (Incorporated by reference to Exhibit
3.2 to the Registration Statement.)
4.3 Specimen stock certificate for shares of Common Stock, par value $.01
per share. (Incorporated by reference to Exhibit 4.1 to the Registration
Statement.)
4.4* Stock Purchase Agreement dated October 9, 1996 by and among Novavax,
Inc. and the Purchasers named therein.
5.1* Opinion and Consent of White & McDermott, P.C.
23.1* Consent of Coopers & Lybrand L.L.P., Independent Auditors.
23.2* Consent of White & McDermott, P.C. (Contained in its opinion filed as
Exhibit 5.1 to this Registration Statement.)
24.1* Power of Attorney. (Included in the signature pages hereto.)
<PAGE> 1
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 & McDermott, P.C., 65 William Street, Suite 209, Wellesley, MA, 02181, 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 &
<PAGE> 2
McDermott, 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 & McDermott, 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
2
<PAGE> 3
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-
3
<PAGE> 4
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-
4
<PAGE> 5
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
5
<PAGE> 6
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 mark 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 sue 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 & McDermott, 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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<PAGE> 16
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 & McDermott, 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)
<PAGE> 23
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.
2
<PAGE> 24
EXHIBIT B
The Purchasers shall have received on the Closing Date an opinion,
dated the Closing Date, of White & McDermott, 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.
<PAGE> 1
EXHIBIT 5.1
WHITE & McDERMOTT, P.C.
COUNSELLORS AT LAW
65 WILLIAM STREET, SUITE 209
WELLESLEY, MASSACHUSETTS 02181
October 15, 1996
Novavax, Inc.
12111 Parklawn Drive
Rockville, MD 20852
Gentlemen:
We have assisted with the preparation of a Registration Statement on
Form S-3 (the "Registration Statement"), filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
registration of 505,000 shares of common stock, $.01 par value ("Common
Stock"), of Novavax, Inc. (the "Company") held by certain stockholders of the
Company.
We have examined the most recent Amendment to the Certificate of
Incorporation and the Restated Certificate of Incorporation, the By-laws of the
Company and all amendments thereto and have examined and relied on originals,
or copies certified to our satisfaction, of such records of meetings, written
actions in lieu of meetings, or resolutions adopted at meetings, of the
directors of the Company, and such other documents and instruments as in our
judgment are necessary or appropriate to enable us to render the opinions
expressed below.
In our examination of the foregoing documents, we have assumed (i) the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals, (ii) the conformity to original documents of all documents
submitted to us as certified or photostatic copies and (iii) the authenticity
of the originals of the latter documents.
Based upon and subject to the foregoing, we are of the opinion that
the Shares have been duly and validly authorized and issued and are fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the prospectus forming a part of the Registration Statement.
Very truly yours,
White & McDermott, P.C.
By:/s/ DAVID A. WHITE
----------------------
David A. White
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 29, 1996 on our audits of the
financial statements of Novavax, Inc. and subsidiaries as of December 31, 1995
and 1994 and the related consolidated statements of operations, stockholders'
equity (deficit) and cash flows for each of the three years in the period ended
December 31, 1995. We also consent to the reference to our Firm under the
caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
Coopers & Lybrand L.L.P.
Rockville, Maryland
October 15, 1996
