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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 21, 1999
REGISTRATION NO. 333-77609
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NOVAVAX, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-2816046
(State of incorporation) (I.R.S. Employer Identification Number)
8320 GUILFORD ROAD
COLUMBIA, MD 21046
(301) 854-3900
(Address, including zip code, and telephone number,
of registrant's principal executive offices)
JOHN A. SPEARS
NOVAVAX, INC.
8320 GUILFORD ROAD
COLUMBIA, MD 21046
(301) 854-3900
(Name, address, including zip code, and telephone number,
of agent for service of process)
With a copy to:
DAVID A. WHITE, ESQ.
WHITE & MCDERMOTT, P.C.
65 WILLIAM STREET
WELLESLEY, MA 02481
(781) 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. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to Offering Aggregate Registration
to be Registered be Registered Per Share Offering Fee
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 2,260,541 shares(1) $3.6875(2) $8,335,744.90 $2,317.34
($.01 par value)
========================================================================================
</TABLE>
(1) The shares being registered by this registration statement include (i)
1,651,100 shares of common stock sold by the company in April, 1999 to various
purchasers in a private placement under the terms of a Stock and Warrant
Purchase Agreement dated April 14, 1999, (ii) 412,775 shares of common stock
that may be issued by the company under warrants issued to the purchasers in the
private placement, (iii) an aggregate of 42,933 shares issued to two placement
agents in connection with the private placement, (iv) 153,733 shares of common
stock that may be issued by the company under warrants issued to the placement
agents in connection with the private placement, and (v) pursuant to Rule 416 of
the Securities Act, an indeterminate number of additional shares that may be
issued under the terms of the above mentioned warrants as a result of
anti-dilution provisions, stock splits, stock dividends or similar transactions.
(2) 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 April 26, 1999, 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.
ii
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PROSPECTUS
================================================================================
NOVAVAX, INC.
2,260,541 SHARES OF COMMON STOCK ($.01 PAR VALUE)
JULY __, 1999
================================================================================
Novavax is registering the sale of 2,260,541 shares of
common stock that may be sold from time to time by the selling
stockholders identified in the "Selling Stockholders" section of
this prospectus. As permitted by Rule 416 of the Securities Act,
this prospectus and the registration statement of which it is a
part also cover the offer and sale of an indeterminate number of
additional shares that may be issued to the selling stockholders
under the terms of certain warrants as a result of anti-dilution
provisions, stock splits, stock dividends or similar
transactions.
Novavax will not receive any of the proceeds from the sale
of the shares by the selling stockholders.
Novavax's common stock is listed for quotation on the
American Stock Exchange under the symbol NOX. On July 14, 1999,
the closing sale price of the common stock, as reported by the
American Stock Exchange, was $3.75 per share.
INVESTING IN NOVAVAX COMMON STOCK INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 OF THIS PROSPECTUS.
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED
THESE SECURITIES OR DETERMINED THAT THIS PROSPECTUS IS ACCURATE
OR COMPLETE. IT IS ILLEGAL FOR ANYONE TO TELL YOU OTHERWISE.
THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT
IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE
WHERE THE OFFER OR SALE IS NOT PERMITTED.
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You should rely only on the information contained or incorporated by reference
in this prospectus and in any prospectus supplement. No one has been authorized
to provide you with different information.
You should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date provided on the front
page of the documents.
------------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
About Novavax .............................................................. 3
Risk Factors ............................................................... 4
Available Information ...................................................... 9
Incorporation of Certain Documents by Reference ............................ 10
Special Note Regarding Forward-Looking Statements .......................... 10
Selling Stockholders........................................................ 11
Use of Proceeds............................................................. 12
Plan of Distribution........................................................ 13
Legal Matters............................................................... 14
Experts..................................................................... 14
Indemnification............................................................. 15
</TABLE>
------------------------------------
NOVAVAX, INC.
2,260,541 SHARES OF COMMON STOCK
PROSPECTUS
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ABOUT NOVAVAX
Novavax, Inc. is a biopharmaceutical company focused on the research and
development of proprietary topical and oral drug delivery and encapsulation
technologies and the applications of those technologies. Our technologies
involve the use of proprietary, microscopic lipid structures as vehicles for
the delivery of a wide variety of drugs and other therapeutic products,
including certain hormones, anti-bacterial and anti-viral products and vaccine
adjuvants (substances added to vaccines to enhance their effectiveness). These
technologies support three product development programs: hormone replacement
therapies, the encapsulation and delivery of other companies' drugs and
vaccines and anti-microbial agents.
Novavax's two lead product candidates are hormone replacement therapies,
ESTRASORB(TM) AND ANDROSORB(TM). We completed a Phase II dose ranging study of
ESTRASORB(TM) in January 1999 and a Phase I pharmacokinetic study (measuring
absorption, metabolism and related processes) of ANDROSORB(TM) has also been
completed. Novavax is in the preclinical research stage of developing
formulations of its lipid technologies to create applications for the
encapsulation and delivery of drugs developed by other companies and to serve
as an adjuvant substance for a variety of vaccines. We expect to license these
applications of our lipid technologies to other companies and currently are
conducting research into such applications under contracts from several other
parties. We are also developing anti-microbial agents based on our lipid
technologies that are capable of acting on viruses, bacteria, spores and sperm.
Our anti-microbial product candidates include Helicore(TM), an oral preparation
for the treatment of H. Pylori infection, agents that target Bacillus anthracis
and influenza A, and spermicides. Novavax has completed Phase I studies of
Helicore(TM) and one of its spermicide products is now in a Phase I study being
conducted by the National Institutes of Health. Our other anti-microbial agents
are currently in pre-clinical research studies, some of which are being funded
by DARPA and are being conducted by Novavax under contract from the University
of Michigan at the university's facilities.
All of our product candidates are still in a relatively early stage of
development and cannot be marketed until Phase I, Phase II and Phase III human
clinical studies have been completed and new drug applications have been
prepared, filed and approved by the FDA and other applicable regulatory
agencies. We expect that this process will take several years and will require
us to spend substantial amounts of money which we will have to raise from
additional financings or product licensing agreements. Therefore we expect our
annual operating losses and accumulated deficit to continue for the foreseeable
future. However, although we have no marketable product, we have recently begun
to receive small amounts of revenue (averaging $600,000 in each of the last two
years) from licensing our technologies to others for development and from
conducting research on our product candidates under contract from others. As a
result of our most recent financing in April 1999, we estimate that our current
funds will be sufficient to finance our operations at presently planned levels
for another 8 to 9 months.
Novavax was incorporated in Delaware in 1987. Our principal executive
offices are currently located at 8320 Guilford Road, Columbia, Maryland 21046.
Our telephone number is (301) 854-3900.
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RISK FACTORS
An investment in the Novavax shares involves a significant risk. To
determine whether to purchase the shares, prospective investors should carefully
consider the risk factors identified below, the other information presented in
this prospectus, and should obtain from Novavax any further information
necessary to their full understanding of such risk factors.
NOVAVAX HAS NOT COMPLETED THE DEVELOPMENT OF ANY PRODUCT AND OUR ABILITY TO DO
SO IS UNCERTAIN
All of our potential products are still in various stages of
pre-clinical research or clinical trials. We do not expect to have any products
available for commercial sale for at least two years. Significant further
research and development, pre-clinical and clinical testing, regulatory approval
and additional financing are all necessary before any commercial sale of any
product.
We are not certain whether we will be able to complete and sell any
product. The development of pharmaceutical products based on new technologies is
subject to a variety of inherent risks of failure. These risks include the
following:
o Our potential products may be found to be unsafe, ineffective or
otherwise fail to meet regulatory standards or receive necessary
regulatory approvals.
o Our potential products may be too difficult or costly to
manufacture on a large scale, to develop into commercially viable
products or to market.
o Our potential products may not be accepted by the medical
community.
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o Other companies may market superior or equivalent products.
o Other parties may claim proprietary rights to our product
technology that prevent us from marketing our products.
o We may be unable to raise enough money to finance our continued
product development.
NOVAVAX HAS INCURRED SUBSTANTIAL OPERATING LOSSES AND OUR FUTURE
PROFITABILITY IS UNCERTAIN
Our expenses have exceeded our revenues since the formation of the
company in 1995 and our accumulated deficit at the end of 1998 was $38,388,000.
We have received a very limited amount of product-related revenue from research
contracts and product licenses to provide vaccine products, services and
adjuvant technologies. Our net losses for the years ended December 31, 1996,
1997 and 1998 were $5,494,985, $4,546,617 and $4,817,000, respectively, while
revenues for the same periods were $56,000, $520,000 and $681,000, respectively.
Our losses have resulted from expenses related to our product research and
development programs, protection of our patents and other intellectual property
and from other general operating expenses. We expect that our annual losses will
increase in the near-term as we conduct additional and larger clinical trials
and seek regulatory approval for advanced stage product candidates. We expect
that our only sources of revenue for the foreseeable future will be from
possible collaborative partners, product licensees and investment income. We do
not expect revenues from commercial sales of products for at least two years, if
at all. We cannot be certain that we will be successful in entering into
strategic alliances or collaborative arrangements with other companies that will
result in significant revenues. Therefore, we expect our cumulative operating
loss to increase until such time, if ever, as product sales, licensing fees and
royalty payments generate sufficient revenue to fund our continuing operations.
We cannot predict when, if ever, we might achieve profitability and cannot be
certain that we will be able to sustain profitability, if achieved.
NOVAVAX WILL NEED SUBSTANTIAL ADDITIONAL CAPITAL AND IS UNCERTAIN OF
OBTAINING FUTURE FINANCING
We estimate that the net proceeds of our April, 1999 private placement,
together with our existing cash resources, will be sufficient to finance our
operations at current and projected levels of development and general corporate
activity for the next 8 to 9 months. Thereafter, we will require substantial
additional funds to continue our research and development, commence future
pre-clinical and clinical trials, seek regulatory approvals, establish
commercial-scale manufacturing capabilities and market our products. We may seek
additional funds for these purposes through public or private equity or debt
financings, collaborative arrangements with pharmaceutical companies and other
sources. We cannot be certain that adequate additional funding or bank financing
will be available to us on acceptable terms when we need it, if at all. If we
cannot raise all the additional funds we need to continue our current and
anticipated operations, we may be required to significantly delay, reduce the
scope of or eliminate one or more of our 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.
OUR SUCCESS DEPENDS ON OUR ABILITY TO MAINTAIN THE PROPRIETARY NATURE OF OUR
TECHNOLOGY
To maintain the proprietary nature of our technology, we must prosecute
and maintain existing patents, obtain new patents and pursue trade secret
protection. We also must operate without infringing the proprietary rights of
third parties or letting third parties infringe our rights. Novavax has 45
United States
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patents and 125 foreign patents covering its technologies, including its
Novamix(TM) production equipment. However, patent issues relating to
pharmaceuticals 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. Therefore, we do not know whether our
applications will result in the issuance of patents, or that any patents issued
to Novavax will provide us with any competitive advantage. We also cannot be
sure that Novavax will develop additional proprietary products that are
patentable. Furthermore, there is a risk that others will independently develop
or duplicate similar technology or products or circumvent the patents issued to
Novavax.
There is risk that third parties may challenge Novavax's existing
patents or may claim that Novavax is infringing their patents or proprietary
rights. We could incur substantial costs in defending patent infringement suits
or in filing suits against others to have their patents declared invalid. It is
also possible that we may be required to obtain licenses from third parties to
avoid infringing third party patents or other proprietary rights. We cannot be
sure that such third party licenses would be available to us on acceptable
terms, if at all. If we are unable to obtain required third party licenses, we
may be delayed in or prohibited from developing, manufacturing or selling
products requiring such licenses.
Some of our know-how and technology is not patentable. To protect our
proprietary rights in unpatentable intellectual property and trade secrets, we
require employees, consultants, advisors and collaborators to enter into
confidentiality agreements. These agreements may not provide meaningful
protection for Novavax's trade secrets, know-how or other proprietary
information in the event of any unauthorized use or disclosure.
OTHER ORGANIZATIONS HAVE GREATER RESOURCES TO DEVELOP, MANUFACTURE AND MARKET
COMPETITIVE PRODUCTS
Novavax competes with numerous other companies worldwide that have
developed or are developing novel drug delivery and encapsulation technologies.
These competitors include both large and small pharmaceutical companies,
biotechnology firms, universities and other research institutions. Novavax may
not succeed in developing technologies and products that are more effective than
those being developed by our competitors. Novavax's technologies and products
may be rendered obsolete or noncompetitive as a result of products introduced by
competitors. Most of our competitors have substantially greater financial and
technical resources, production and marketing capabilities and related
experience than Novavax. The greater resources, capabilities and experience of
our competitors may enable them to develop, manufacture and market their
products more successfully and at a lower cost 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 regulatory approvals to market such products. Accordingly, Novavax's
competitors may succeed in obtaining FDA approval for products more rapidly than
Novavax which may give them an advantage over Novavax in achieving market
acceptance of their products.
NOVAVAX NEEDS MARKETING AND MANUFACTURING PARTNERS TO
COMMERCIALIZE ITS PRODUCTS
Novavax has no significant marketing or manufacturing capability and
its drug development capability is limited in large part by its finances. To
date, Novavax has had no experience marketing, selling or distributing its
products and does not have the personnel to do so. Although we have the ability
to produce the limited quantities of products needed to support our current
research and development program and early-stage clinical trials, we will need
more production capacity for larger later-stage clinical studies and commercial
sales. Therefore, our ability to successfully develop and commercialize our
products depends in large part on our success in entering into arrangements
with collaborative partners, primarily pharmaceutical companies, who may assume
various responsibilities for product
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commercialization including conducting clinical trials, submitting applications
for regulatory approval, manufacturing product supplies and marketing approved
products. However, we may not be able to negotiate collaborative arrangements on
acceptable terms, if at all. Even if such collaborations are established, they
may not be scientifically or commercially successful. There is a risk that our
collaborative partners may fail to perform their obligations to develop,
manufacture or market our products and to comply with applicable manufacturing
standards. We also face the risk that Novavax's collaborative partners may
develop competing technologies for treating the diseases and conditions targeted
by Novavax's products, either on their own or in collaboration with others.
Our reliance on collaborative arrangements for product development and
commercialization may also result in lower revenues from royalties and other
payments than Novavax could have generated had it commercialized and marketed
products itself.
In certain circumstances, it may be advantageous for us to retain
manufacturing rights for some of the products that we license to collaborative
partners. However, we cannot be sure 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.
If we manufacture our own products, we will need to acquire additional
manufacturing facilities and improve our manufacturing technology which will
require us to spend substantial funds, hire and retain a significant number of
additional personnel and comply with extensive regulations applicable to such
facilities here and abroad, including the current good laboratory practices
("GLP") and good manufacturing practices ("GMP") required by the FDA. If we
elect to or need to manufacture our own products, we risk the possibility that
we may be unable to do so in a timely fashion at acceptable quality and prices
or in compliance with GLP and GMP.
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If we are not able to enter into commercial manufacturing agreements or
successfully develop our own commercial manufacturing capacity, sales of our
products will be delayed or reduced.
If we elect to or need to market our products directly we would need to develop
an experienced marketing and sales team which we may not be able to do. If we
can, the cost of establishing such a marketing or sales team may exceed our
product revenue or the efforts of our direct sales and marketing team may not
be successful in competing with other companies that currently have extensive
and well-funded marketing and sales operations.
NOVAVAX PRODUCTS REQUIRE FDA REGULATORY APPROVAL TO BE SOLD COMMERCIALLY
The development, manufacture and marketing of our pharmaceutical
products are subject to government regulation in the United States and other
countries. In the United States and most foreign countries, we must complete
rigorous preclinical testing and extensive human clinical trials that
demonstrate the safety and effectiveness of a product in order to apply for
regulatory approval to market the product. Four of our product candidates,
ESTRASORB(TM), ANDROSORB(TM), Helicore(TM) and a spermicide, are now in or have
recently completed Phase I human clinical studies. Our other product candidates
are in pre-clinical laboratory or animal studies. Before applying for FDA
approval to market any particular product candidate, we must conduct
larger-scale Phase II and III human clinical trials that demonstrate the
product candidate's safety and efficacy. These processes are expensive and can
take many years to complete. We may not be able to demonstrate the safety and
efficacy of our products to the satisfaction of the FDA or other regulatory
authorities. Novavax may also be required to demonstrate that its proposed
product represents an improved form of treatment over existing therapies and we
may be unable to do so without conducting further clinical studies, if at all.
We may fail to obtain regulatory approval for our products on a timely
basis, if at all. Delays in obtaining regulatory approval can be extremely
costly in terms of lost sales opportunities and increased clinical trial costs.
How quickly we complete our clinical trials and our applications for marketing
approval depends on several factors, including the following:
o the rate of patient enrollment, which is a function of many
factors, including the size of the patient population, the
proximity of patients to clinical sites, the eligibility criteria
for the study and the nature of the protocol;
o institutional review board approval of the protocol and the
informed consent form;
o prior regulatory agency review and approval;
o analysis of data obtained from preclinical and clinical activities
which are susceptible to varying interpretations which
interpretations could delay, limit or prevent regulatory approval;
o changes in the policies of regulatory authorities for drug
approval during the period of product development; and
o the availability of skilled and experienced staff to conduct and
monitor clinical studies and to prepare the appropriate regulatory
applications.
Novavax has limited experience in conducting and managing the
preclinical and clinical trials necessary to obtain regulatory marketing
approvals. Novavax may not be able to obtain the approvals necessary to conduct
clinical studies. Also, the results of our clinical trials may not be consistent
with the results obtained in preclinical studies or the results obtained in
later phases of clinical trials may not 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. If regulatory
approval of a drug is granted, such approval is likely to limit the indicated
uses for which it may be marketed. Furthermore, even if a product of ours gains
regulatory approval, the product and the manufacture of the product will be
subject to continuing regulatory review. We may be restricted or prohibited from
marketing or manufacturing a product after obtaining product approval, or may
be required to recall a product, if previously unknown problems with the product
or its manufacture are subsequently discovered.
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NOVAVAX STOCK MAY BE DELISTED FROM AMEX
Our 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
common stock. We 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 our common stock trade from time
to time. The market prices for securities of biotechnology and pharmaceutical
companies like Novavax have historically been highly volatile. If our stock
were delisted from the AMEX, it would probably be traded in over-the-counter
markets. This would be likely to impair the ability of investors to trade our
stock as a result of limitations on the number of shares they could buy or
sell, delays in the timing of transactions, reductions in news coverage of the
company by security analysts and the media, and lower prices than might
otherwise be attained.
ANTI-TAKEOVER PROVISIONS MAY AFFECT NOVAVAX STOCK PRICE AND STOCKHOLDER CONTROL
Novavax's Amended and Restated Certificate of Incorporation requires
that any action required or permitted to be taken by stockholders of Novavax
must be taken 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
Restated Certificate of Incorporation also 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. 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 Restated Certificate
of Incorporation and By-Laws, may have the effect of deterring an acquisition
of Novavax, a change in the management of Novavax, or other events or
transactions that may have been beneficial to Novavax stockholders.
AVAILABLE INFORMATION
We are a public company and file annual, quarterly and special reports,
proxy statements and other information with the Securities and Exchange
Commission. You may read and copy any document we file at the SEC's public
reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. You can
request copies of these documents by writing to the SEC and paying a copying
fee. Please call the SEC at 1-800-SEC-0330 for more information about the public
reference room operations. Our SEC filings are also available at the SEC's web
site at "http://www.sec.gov." In addition, you can read and copy our SEC filings
at the office of the National Association of Securities Dealers, Inc. at 1735 K
Street, Washington, DC, 20006.
Our common stock is listed on the American Stock Exchange. Reports,
proxy and information statements and other information concerning Novavax can be
examined at the American Stock Exchange Inc., 86 Trinity Place, New York, New
York 10006.
This prospectus is only part of a Registration Statement on Form S-3
that we have filed with the SEC under the Securities Act of 1933 and therefore
omits certain information contained in the Registration Statement. We have also
filed exhibits and schedules with the Registration Statement that are excluded
from this prospectus, and you should refer to the applicable exhibit or schedule
for a complete description of any statement referring to any contract or other
document. You may inspect a copy of the Registration Statement, including the
exhibits and schedules, without charge at the public reference room or obtain a
copy from the SEC upon payment of the fees prescribed by the SEC.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. This prospectus is part of a Registration
Statement we filed with the SEC. You should rely on the information incorporated
by reference in this prospectus and the Registration Statement. The information
incorporated by reference is considered to be part of this prospectus and
information we file later with the SEC will automatically update and supersede
this information. We incorporate by reference the documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until the selling stockholders sell all of their
shares of common stock. The documents we are incorporating by reference are:
1. Novavax's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
2. Novavax's definitive Proxy Statement dated April 23, 1999 relating
to the Annual Meeting of Stockholders held on June 8, 1999;
3. Novavax's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999; and
4. The description of the common stock contained in Novavax's
Registration Statement on Form 10, File No. 0-26770, filed on
September 14, 1995 pursuant to Section 12(b) of the Exchange Act.
You may request a copy of these filings at no cost by writing or
telephoning our chief financial officer at the following address and number:
Novavax, Inc., 8320 Guilford Road, Columbia, MD 21046; (301) 854-3900.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
We also caution you that this prospectus contains forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. These statements are based
on management's beliefs and assumptions and on information currently available
to management and use words such as "expect," "anticipate," "intend," "plan,"
"believe," "estimate," or similar expressions. Forward-looking statements
include information concerning possible or assumed future results of operations,
future product development and related clinical trials and statements regarding
future research and development. Forward-looking statements necessarily involve
risks and uncertainties and other factors which may cause the actual results,
performance or achievements of Novavax, or industry results, to be materially
different from those anticipated in the forward-looking statements. These risks
and uncertainties are discussed in the Risk Factors section and elsewhere in
this prospectus.
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SELLING STOCKHOLDERS
In April, 1999, Novavax entered into a Stock and Warrant Purchase
Agreement with 23 purchasers for the private placement of 1,651,100 shares of
its common stock and the issuance of warrants to the purchasers for the purchase
of an additional 412,775 shares of common stock (the "Private Placement"). One
of the principals of one of the investors is also a director and officer of
Novavax. The issuance price of the common stock was $2.50 per share. Each share
was sold together with a non-transferable warrant for the purchase of .25
additional shares at an exercise price of $3.75. The warrants have a three-year
term. Gross proceeds from the Private Placement were $4,128,000. The placement
agents were paid $107,000 and 42,933 shares of Novavax common stock which were
issued together with non-transferable warrants for the purchase of 10,733 shares
of Novavax common stock exercisable at a price of $3.75 for a three-year term.
Additionally, the placement agents were issued non-transferable warrants for the
purchase of 143,000 shares of Novavax common stock exercisable at a price of
$3.00 per share for a three-year term.
The shares being offered hereby by the selling stockholders consist of
the shares issued in the Private Placement or shares that may be acquired, from
time to time, upon the exercise of warrants issued to the selling stockholders
in connection with the Private Placement. This Prospectus covers the resale by
the selling stockholders of these 2,260,541 shares plus, in accordance with Rule
416 under the Securities Act, such presently indeterminate number of additional
shares as may be issuable upon exercise of the warrants by reason of
anti-dilution provisions, stock splits, stock dividends and other similar
transactions. Novavax's offer and sale of the shares to the selling stockholders
was made pursuant to an exemption from registration under Section 4(2) of the
Securities Act.
The following table sets forth certain information with respect to the
selling stockholders, including (i) the name of the selling stockholders, (ii)
the number of issued and outstanding shares of common stock beneficially owned
by each selling stockholder, (iii) the number of shares of common stock that
each selling stockholder may acquire within 60 days hereof pursuant to
warrants, (iv) the total number of shares of common stock beneficially owned by
the selling stockholders prior to the offering and (v) the maximum number of
shares of such common stock to be offered hereby. Because the selling
stockholders may offer and sell 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. The information in the table below has been obtained from the
selling stockholders by a placement agent for the Private Placement. See "Plan
of Distribution."
The shares covered by this prospectus may be offered from time to time
by the selling stockholders named below or their transferees, pledgees, donees
and other successors as described under "Plan of Distribution":
<TABLE>
<CAPTION>
Number of Shares Maximum Number
Beneficially Owned of Shares
Name of Selling Stockholder Prior to Offering Being Offered
- ------------------------------------------------------------------------------------------------------------
WARRANTS SHARES TOTAL
-------- ------ -----
<S> <C> <C> <C> <C>
1. Columbine Financial Solutions, Inc. 195,000 521,000 716,000 716,000
2. Anaconda Opportunity Fund, L.P. 1,255,000 1,442,900 2,697,900 275,000
3. W. D. Moreland 50,000 200,000 250,000 250,000
4. Robertson Stephens Investment
Management 40,000 160,000 200,000 200,000
5. William J. Ritger 75,000 112,000 187,000 125,000
6. Jon B. Kruljac and Teri E. Kruljac 83,733 51,933 135,666 105,666
7. Boston Holdings Inc. 15,000 60,000 75,000 75,000
8. Richard A. Smudz 15,000 60,000 75,000 75,000
9. Ben Bee 10,025 70,000 80,025 50,125
10. John Lathrop Stonecipher and Ingrid
Arden Stonecipher, Trustees 10,000 60,000 70,000 50,000
11. Kelly McDermott 10,000 40,000 50,000 50,000
12. Kory McGavin 7,500 30,000 37,500 37,500
13. Saul H. Bernstein and Elizabeth A. Bernstein 6,250 64,000 70,250 31,250
</TABLE>
11
<PAGE> 14
<TABLE>
<S> <C> <C> <C> <C>
14. Mark Hess 5,000 120,000 125,000 25,000
15. Stephanie L. Kenkel 5,000 108,000 113,000 25,000
16. George Resta 5,000 45,000 50,000 25,000
17. James A. Risher 5,000 45,000 50,000 25,000
18. Montgomery L. Studebaker 5,000 20,000 25,000 25,000
19. Jack A. Wilkinson, Trustee,
Wilkinson Family Trust #1 5,000 20,000 25,000 25,000
20. Ross Lyndon-James 4,000 16,000 20,000 20,000
21. Kathleen M. Walker 3,000 12,000 15,000 15,000
22. Fiserve Correspondent Services, Inc.,
Custodian f/b/o Kathleen M. Walker 2,000 8,000 10,000 10,000
23. Fiserve Correspondent Services, Inc.,
Custodian f/b/o Barry Ollman 2,500 10,000 12,500 12,500
24. Susan S. Duboc 2,500 10,000 12,500 12,500
--------- --------- --------- ---------
Total 1,816,508 3,285,833 5,102,341 2,260,541
</TABLE>
Mitchell J. Kelly, a director and officer of the company, is the sole
general partner of Anaconda Capital, L.P., the general partner of the Anaconda
Opportunity Fund, L.P., and therefore is deemed to share beneficial ownership of
the shares beneficially owned by the Anaconda Opportunity Fund by reason of
his power to vote and control those shares.
USE OF PROCEEDS
Novavax will not receive any proceeds from the sale of the shares by the
selling stockholders.
12
<PAGE> 15
PLAN OF DISTRIBUTION
The selling stockholders may sell the shares subject to this prospectus
and the Registration Statement of which it forms a part from time to time in
open market or privately negotiated transactions. Pursuant to the Stock and
Warrant Purchase Agreement dated April 14, 1999, Novavax has agreed to keep the
Registration Statement effective until the second anniversary of the date the
Registration Statement is declared effective (or, in the case of shares issued
under the selling stockholders' Private Placement warrants, the first
anniversary of the date the warrant shares are issued, but in any event not
later than the fourth anniversary of the date the Registration Statement is
declared effective); except that 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 two years, then Novavax is only obligated
to keep this Registration Statement effective for such shorter period or until
such date as all of the registered shares have been resold or may be sold
pursuant to Rule 144 or a successor rule. Novavax intends to deregister any of
the shares not sold by the selling stockholders at the end of such period.
The selling stockholders may sell the shares from time to time in
transactions on the AMEX, in the over-the-counter market, in negotiated
transactions, or a combination of such methods of sale. The shares may be sold
at fixed prices which may be changed, 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 any means
permitted by law. These means may include selling the shares to or through
broker-dealers, including block trades or cross trades, or in one or more
underwritten offerings on a firm commitment or best efforts basis. Sales of
selling stockholders' shares may also be made pursuant to Rule 144 under the
Securities Act, where applicable.
The selling stockholders may also transfer their shares by gift,
pledge or other means not involving a sale transaction. If this occurs, the
transferees will be able to offer such shares as selling stockholders under this
prospectus.
A selling stockholder may, from time to time, sell short the common
stock of Novavax, and in such instances, this prospectus may be delivered in
connection with such short sales and the shares offered hereby may be used to
cover such short sales. A selling stockholder may also (1) enter into hedging
transactions with broker-dealers and the broker-dealers may engage in short
sales of the shares in the course of hedging the position they assume with such
selling stockholder, including in connection with distributions of the shares
by such broker-dealers, (2) enter into options or other transactions with
broker-dealers that involve the delivery of the shares to the broker-dealers,
who may then resell or otherwise transfer such shares, and (3) loan or pledge
the common stock to a broker-dealer who may sell the loaned shares.
13
<PAGE> 16
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 certain 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 might be deemed to be underwriting discounts
and commissions under the Securities Act.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the shares may not bid for or purchase
shares of common stock during a period which commences one business day (5
business days, if Novavax's public float is less than $25 million or its
average daily trading volume is less than $100,000) prior to such person's
participation in the distribution, subject to exceptions for certain passive
market making activities. In addition, each selling stockholder will be subject
to provisions of the Exchange Act and the rules and regulations thereunder,
including Regulation M. These provisions may limit the timing of purchases and
sales of shares of Novavax common stock by a selling stockholder. In addition,
the selling stockholders have agreed under the terms of the Stock and Warrant
Purchase Agreement to which they are a party, that Novavax may restrict the sale
of these registered securities for periods of up to 30 days by written notice to
the selling stockholders if Novavax deems this to be necessary because a sale
pursuant to this Registration Statement in its then-current form would not be in
the best interest of the company and its shareholders due to disclosure
obligations of the company.
Pursuant to the Stock and Warrant Purchase Agreement, Novavax 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. Novavax 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 $33,500.
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,
Wellesley, Massachusetts 02481. David A. White, a director and stockholder of
the firm, owns 22,500 shares of Novavax common stock and is the Secretary of
Novavax
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K for the year ended December 31,
1998, have been so incorporated in
14
<PAGE> 17
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
INDEMNIFICATION
Article NINTH of Novavax'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 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 Novavax's Restated Certificate of Incorporation
further provides that the indemnification provided 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.
15
<PAGE> 18
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.
16
<PAGE> 19
------------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
About Novavax .............................................................. 3
Risk Factors ............................................................... 4
Available Information ...................................................... 9
Incorporation of Certain Documents by Reference ............................ 10
Special Note Regarding Forward-Looking Statements .......................... 10
Selling Stockholders........................................................ 11
Use of Proceeds............................................................. 12
Plan of Distribution........................................................ 13
Legal Matters............................................................... 14
Experts..................................................................... 14
Indemnification............................................................. 15
</TABLE>
------------------------------------
NOVAVAX, INC.
2,260,541 SHARES OF COMMON STOCK
PROSPECTUS
<PAGE> 20
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......................................... $ 2,318.
AMEX Listing Fee............................................. 17,500.
Legal Services and Expenses.................................. 8,500.*
Accounting Services and Expenses............................. 5,000.*
Miscellaneous expenses....................................... 182.*
--------
Total ............................................... $33,500.*
</TABLE>
- ------------------------
*Estimated
Item 15. Indemnification of Directors and Officers.
Article NINTH of Novavax'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 make an independent determination as to
whether such person is entitled to indemnification. As a
17
<PAGE> 21
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 Novavax'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
18
<PAGE> 22
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be 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 with or furnished to the
Commission 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.
19
<PAGE> 23
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 Columbia, Maryland, on July 19, 1999.
NOVAVAX, INC.
By: /s/ John A. Spears
-----------------------------
John A. Spears
President and Chief
Executive Officer
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 A. Spears President and July 19, 1999
- --------------------------- Chief Executive Officer
John A. Spears and Director
* Principal Financial & July 19, 1999
- --------------------------- Accounting Officer
Donald J. MacPhee
* Director July 19, 1999
- ---------------------------
Gary C. Evans
* Director July 19, 1999
- ---------------------------
J. Michael Lazarus
</TABLE>
20
<PAGE> 24
<TABLE>
<S> <C> <C>
* Director July 19, 1999
- ---------------------------
John O. Marsh, Jr.
* Director July 19, 1999
- ---------------------------
Michael A. McManus
* Director July 19, 1999
- ---------------------------
Denis M. O'Donnell
* Director July 19, 1999
- ---------------------------
Ronald A. Schiavone
* Director July 19, 1999
- ---------------------------
Ronald H. Walker
</TABLE>
* By /s/ David A. White
-----------------------
Attorney-in-fact
21
<PAGE> 25
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.
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
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 Specimen stock certificate for shares of Common Stock, par value $.01
per share. (Incorporated by reference to Exhibit 4.1 to the Registration
Statement.) --
4.3 Stock and Warrant Purchase Agreement dated April 14, 1999 between the
company and the purchasers identified therein. (Incorporated by
reference to Exhibit 10.16 to the Registrant's Annual Report on Form
10-K, File No. 0-26770 filed April 15, 1999). --
5.1* Opinion and Consent of White & McDermott, P.C. 25
23.1* Consent of PricewaterhouseCoopers LLP, independent accountants. 26
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 on signature page of Registration
Statement, File No. 333-77609, filed May 3, 1999) --
</TABLE>
<PAGE> 1
EXHIBIT 5.1
WHITE & MCDERMOTT, P.C.
65 William Street
Wellesley, MA 02481
July 19, 1999
Novavax, Inc.
8320 Guilford Road
Columbia, MD 21046
Gentlemen:
We have assisted with the preparation of a Registration Statement on
Form S-3, File No. 333-77609, and Amendment No. 1 thereto (the "Registration
Statement"), filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the registration of 2,260,541
shares of common stock, $.01 par value per share (the "Common Stock"), of
Novavax, Inc., a Delaware corporation (the "Company"), of which 1,694,033 were
acquired by various purchasers and placement agents in connection with the
closing of the Company's private placement under the terms of a Stock and
Warrant Purchase Agreement dated April 14, 1999 between the Company and those
purchasers identified therein (the "Purchased Shares"), and 566,508 of which
may be acquired by those purchasers and placement agents upon the exercise of
warrants issued in connection with the private placement (the"Warrant Shares").
We have examined the most recent Amendment to the Certificate of
Incorporation, the Restated Certificate of Incorporation and 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 and 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 (i)
the Purchased Shares have been duly and validly authorized and issued and are
fully paid and non-assessable, and (ii)
<PAGE> 2
the Warrant Shares have been duly and validly authorized for issuance and when
issued on the terms contemplated by the warrants and the Stock and Warrant
Purchase Agreement, will be fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to
Amendment No. 1 to Registration Statement and to the use of our name under the
caption "Legal Matters" in the prospectus forming a part of the Amendment No. 1
to 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 hereby consent to the incorporation by reference in this Registration
Statement, No. 333-77609, on Form S-3 of our report dated March 17, 1999,
except for the fourth paragraph of Note 1 which is as of April 14, 1999,
relating to the consolidated financial statements which appears in Novavax
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1998. We also
consent to the reference to us under the heading "Experts" in such Registration
Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
- --------------------------
PricewaterhouseCoopers LLP
McLean, Virginia
July 19, 1999
