<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH__, 2000
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)
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. [ ]
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to Offering Price Aggregate Registration
to be Registered be Registered Per Share Offering Price Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 3,903,619 shares (1) $10.125 (2) $39,524,142. $ 10,434.
($.01 par value)
</TABLE>
(1) The shares being registered by this registration statement include (i)
2,813,850 shares of common stock sold by the Company in January, 2000 to various
purchasers in a private placement under the terms of a Stock and Warrant
Purchase Agreement dated January 28, 2000, (ii) 703,460 shares of common stock
that may be issued by the Company under warrants issued to the purchasers in the
private placement, (iii) 281,385 shares of common stock that may be issued by
the Company under warrants issued to the placement agents in connection with the
private placement, (iv) 50,000 shares of common stock that may be issued by the
Company under warrants issued to The Research Works, Inc. pursuant to a warrant
issued in November, 1996, (v) 54,924 shares of common stock that may be issued
by the Company under warrants issued to Vector Securities International, Inc.
pursuant to a warrant issued in October, 1996, and (vi) 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 March 3, 2000, 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
<PAGE> 3
PROSPECTUS
================================================================================
NOVAVAX, INC.
3,903,619 SHARES OF COMMON STOCK ($.01 PAR VALUE)
MARCH __, 2000
================================================================================
Novavax is registering the sale of up to 3,903,619 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.
Novavax will not receive any of the proceeds from the sale of the
shares by the selling stockholders.
The Company's common stock is listed for quotation on the American
Stock Exchange under the symbol NOX. On March 3, 2000 the closing sale price of
the common stock, as reported by the American Stock Exchange, was $10.00 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.
<PAGE> 4
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.
------------------------------------
TABLE OF CONTENTS
Page
About Novavax............................................................. 3
Risk Factors.............................................................. 4
Available Information......................................................9
Incorporation of Certain Documents by Reference........................... 9
Special Note Regarding Forward Looking Statements........................ 10
Selling Stockholders......................................................10
Use of Proceeds...........................................................12
Plan of Distribution......................................................12
Legal Matters.............................................................13
Experts...................................................................13
Indemnification...........................................................13
------------------------------------
NOVAVAX, INC.
3,903,619 SHARES OF COMMON STOCK
PROSPECTUS
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ABOUT NOVAVAX
Novavax is a biopharmaceutical company focused on the research,
development and commercialization of products utilizing its drug delivery and
vaccine technologies for large and growing markets, including women's health,
infectious and autoimmune diseases and cancer. The company holds 50 US patents
for its drugs and has 3 patents pending. 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, which are
substances added to vaccines to enhance their effectiveness. These technologies
support three product development programs: hormone replacement therapies, third
party drug delivery and vaccine adjuvant applications and anti-microbial agents.
We are applying our proprietary lipid vesical encapsulation technologies
including Novasome(R) lipid vesicles and micellar nanoparticles to develop
product candidates for the topical and oral and injectable delivery of generic
and non-generic drugs, peptides, proteins and oligonucleotides. Our Novasome
technology is also being developed as an adjuvant delivery system for enhanced
vaccine efficacy. We have several product candidates in pre-clinical and
clinical trials, including ESTRASORB(R), a topical cream for estrogen
replacement therapy which entered a US multi-center Phase III clinical testing
in September, 1999.
In August, 1999, Novavax acquired substantially all of the assets of
DynCorp's vaccine manufacturing and development division, which is now Novavax's
Biomedical Service Division ("BSD"). BSD is engaged in contract research and
development and Phase I and Phase II manufacturing of human vaccines for its own
use, government laboratories and other vaccine companies. In the past 12 months,
BSD has been involved in the manufacturing and development of several vaccines
including: Hepatitis, influenza, vaccina, attenuated Dengue, HPV, rotavirus,
malaria, and anti-cancer vaccines. BSD has several issued and patents pending in
the areas of therapeutic and preventative vaccines that may be used
commercially.
Our diverse product portfolio and multiple technologies reduce our
dependence on a limited number of compounds and enhance our ability to introduce
novel products in a broad range of substantial markets. Moreover, through our
proprietary drug delivery technology, we can deliver a wide range of
pharmaceuticals topically, mucosally, orally, intravaginally and by injection.
We are currently in various stages, ranging from preclinical to Phase III
trials, of developing 12 products, which are funded by Novavax, the United
States government and corporate partners.
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 licensing agreements. Therefore, we expect that the
annual operating losses and accumulated deficit will continue for the
foreseeable future. We estimate that the current funds will be sufficient to
finance company operations at presently planned levels for another 18 to 24
months.
Novavax was incorporated in Delaware in 1987. The principal executive
offices are currently located at 8320 Guilford Road, Columbia, Maryland 21046.
The 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:
- Our potential products may be found to be unsafe, to have
harmful side effects on humans, to be ineffective or otherwise
fail to meet regulatory standards or receive necessary
regulatory approvals.
- Our potential products may be too difficult or costly to
manufacture on a large scale, to develop into commercially
viable products or to market.
- Our potential products may not be accepted by the medical
community.
- Other companies may market superior or equivalent products.
- Other parties may claim proprietary rights to our product
technology that prevent us from marketing our products.
- We may be unable to raise enough money to finance our
continued product development.
We are currently in Phase III clinical trials for estrogen replacement
therapy, ESTRASORB. Although the successful completion of Phase III testing of
this drug appears likely, there is no guarantee that this will occur. The
failure of ESTRASORB to successfully pass Phase III testing is likely to have a
negative effect on the company's projected future earnings. In addition, we are
in various phases of testing other products, which we cannot guarantee will ever
successfully pass such testing phases, and if so, will result in commercially
successful products. Clinical trial results are frequently susceptible to
varying interpretations by scientists, medical personnel, regulatory personnel,
statisticians and others which may delay, limit or prevent further clinical
development or regulatory approvals of a product candidate. Also, the length of
time that it takes for us to complete clinical trials and obtain regulatory
approval for product marketing can vary by product and by the indicated use
of a product. We are unable to predict the length of time to complete the
necessary clinical trials and obtain regulatory approval.
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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 1987, and our accumulated deficit at the end of 1999 was $42,891,000.
We have received a very limited amount of product-related revenue from research
contracts, licenses and agreements to provide vaccine products, services and
adjuvant technologies. Our net losses for the last three years were $4,547,000
in 1997, $4,817,000 in 1998 and $4,503,000 in 1999. Our revenues for the last
three years were $520,000 in 1997, $681,000 in 1998 and $1,181,000 in 1999. 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 or technology 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 January, 2000 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 18 to 24 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
Our success will depend in large part on our ability to maintain the
proprietary nature of our technology and other trade secrets. To do so, 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 50 United States 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
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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 our existing patents or
may claim that we is are 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 or claim
infringement. 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
We compete 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
We have no significant marketing or manufacturing capability and our
drug development capability is limited in large part by our finances. 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
strategic alliances or licensing arrangements with collaborative partners,
primarily pharmaceutical companies. We expect that these partners will assume
various responsibilities for product 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. 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 in which case
our business may be adversely affected. We also face the risk that our
collaborative partners may develop competing
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technologies for treating the diseases and conditions targeted by our products,
either on their own or in collaboration with others.
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 we will be able to retain such rights
on acceptable terms, if at all, or that we will have the ability to produce the
quantities of product required under the terms of such arrangements. Our
reliance on collaborative arrangements for product development and
commercialization may result in lower revenues from royalties and other payments
than we could have generated had we commercialized and marketed products
ourselves.
If we manufacture our own products, we will need to acquire additional
manufacturing facilities and to improve our manufacturing technology.
Establishing additional manufacturing facilities 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 and good manufacturing
practices required by the FDA. If we elect to or need to manufacture our own
products, we risk the possibility that we may not be able to do so in a timely
fashion at acceptable quality and prices or in compliance with good laboratory
practices and good manufacturing practices. 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.
We expect to commercialize and sell certain products through
co-marketing arrangements with third parties. However, we may not be able to
attract such marketing partners on acceptable terms, if at all. To the extent we
do establish such marketing arrangements, our revenues will largely depend on
the efforts of those third parties whose efforts may not be successful or
profitable. We may also elect to 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. In order to
market our products directly, we would need to develop a marketing staff and
sales force with technical expertise. To date, however, Novavax has had no
experience in sales, marketing or distribution of its products. Therefore, we
may not be able to successfully build a marketing or sales team. 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 and therefore may
not be successful in competing with other companies that currently have
extensive and well-funded marketing and sales operations.
WE MAY NOT SUCCEED IN OBTAINING THE FDA APPROVAL NECESSARY TO SELL OUR PRODUCTS
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. Three of our product candidates,
ANDROSORB (TM), Helicore (TM) and a spermicide, are now in or have recently
completed Phase I human clinical studies. ESTRASORB (TM), is currently in Phase
III clinical trials for estrogen replacement therapy. 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 safety
and efficicay of our procucts to the satisfaction of the FDA or other regulatory
authorities. 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. We may not be able to
demonstrate the safety and efficacy of our products to the satisfiaction of the
FDA or other regulatory authorities. Novavax may also be required to demonstrate
that its proposed product represents an improved
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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 opportunties 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:
- 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;
- institutional review board approval of the protocol and the
informed consent form;
- prior regulatory agency review and approval;
- analysis of data obtained from preclinical and clinical
activities which are susceptible to varying interpretations
which interpretations could delay, limit or prevent regulatory
approval;
- changes in the policies of regulatory authorities for drug
approval during the period of product development; and
- the availability of skilled and experienced staff to conduct
and monitor clinical studies and to prepare the appropriate
regulatory applications.
We have limited experience in conducting and managing the preclinical
and clinical trials necessary to obtain regulatory marketing approvals. We 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 manufacturer of the product will be subject to continuing
regulatory review. We may be restricted or prohibited from marketing or
manufacturing a product, even after obtaining product approval, if previously
unknown problems with the product or its manufacture are subsequently
discovered.
INVESTORS MAY EXPERIENCE DIFFICULTY TRADING OUR STOCK IF THE VOLATILITY OF OUR
STOCK PRICE RESULTS IN IT BEING DELISTED FROM THE AMEX
Our common stock is currently traded on the American Stock Exchange. A
failure to continue to meet the AMEX's maintenance requirements may result in a
delisting of the common stock. In particular, 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. During calendar year 1999, the closing price of our
common stock on the American Stock Exchange ranged between a low of $1 15/16 per
share and a high of $5 15/16 per share. 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.
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OUR BYLAWS CONTAIN ANTI-TAKEOVER PROVISIONS THAT MAY DETER AN ACQUISITION OF
NOVAVAX, A CHANGE OF MANAGEMENT OR OTHER EVENTS THAT MIGHT BENEFIT STOCKHOLDERS
Our Amended and Restated 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
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 our Restated Certificate of
Incorporation and By-Laws, may deter hostile takeovers or delay or prevent
changes in control or management of the company, 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 believe to be beneficial.
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.
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
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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, 1999;
2. 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.
SELLING STOCKHOLDERS
In January, 2000, Novavax closed on a private placement of 2,813,850
shares of its common stock and the issuance of warrants to the purchasers for
the purchase of an additional 703,460 shares of common stock (the "Private
Placement"). The issuance price of the common stock was $4.00 per share. Each
share was sold together with a non-transferable warrant for the purchase of .25
additional shares at an exercise price of $6.75. The warrants have a three-year
term. Gross proceeds from the Private Placement were $11,255,400.00. The
placement agents were paid $675,324 and issued non-transferable warrants for the
purchase of 281,385 shares of Novavax common stock exercisable at a price of
$6.75 for a three-year term.
The shares being offered hereby by the selling stockholders consist of:
(a) 2,813,850 shares of common stock sold by the Company in January, 2000 to
various purchasers in a private placement under the terms of a Stock and Warrant
Purchase Agreement dated January 28, 2000, (b) 703,460 shares of common stock
that may be issued by the Company under warrants issued to the purchasers in the
private placement, (c) 281,385 shares of common stock that may be issued by the
Company under warrants issued to the placement agents in connection with the
private placement, (d) 50,000 shares of common stock that may be issued by the
Company under warrants issued to The Research Works, Inc. pursuant to a warrant
issued in November, 1996 and (e) 54,924 shares of common stock that may be
issued by the Company under warrants issued to Vector Securities International,
Inc. pursuant to a warrant issued in October, 1996, This Prospectus covers the
resale by the selling stockholders of these 3,903,619 shares plus, 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. 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.
10
<PAGE> 13
The following table sets forth certain information with respect to the
selling stockholders, including (a) the name of the selling stockholders, (b)
the number of issued and outstanding shares of common stock owned by each
selling stockholder, (c) the number of shares of common stock that each selling
stockholder may acquire within 60 days hereof pursuant to warrants, (d) the
total number of shares of common stock owned by the selling stockholders prior
to the offering and (e) 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
Owned Prior to Offering Maximum Number
----------------------- of Shares
Name of Selling Stockholder Shares Warrants Total Being Offered
- --------------------------- ------ -------- ----- --------------
<S> <C> <C> <C> <C>
Coralbasin & Co. 700,000 175,000 875,000 875,000
Coralrock & Co. 300,000 75,000 375,000 375,000
Deutsche Bank Securities, Inc. 280,000 62,500 342,500 312,500
Strong River Investments, Inc. 250,000 62,500 312,500 312,500
Jesup & Lamont Securities Corp. 0 281,385 281,385 281,385
Pequot Scout Fund, L.P. 187,500 46,875 234,375 234,375
The Paisley Fund, L.P. 499,700 22,500 522,200 112,500
Athena Family Partners 80,000 20,000 100,000 100,000
James R. Willing 97,000 18,000 115,000 90,000
Univest Management, Inc. 70,000 17,500 87,500 87,500
AMRO International, S.A. 62,500 15,625 78,125 78,125
The Paisley Pacific Fund 469,700 15,000 484,700 75,000
John C. Iverson Family Ltd 153,500 12,500 166,000 62,500
William J. Ritger 200,800 12,500 213,300 62,500
Mark Alsentzer 80,000 12,500 92,500 62,500
Vector Securities International, Inc. 0 54,924 54,924 54,924
The Research Works, Inc. 0 50,000 50,000 50,000
Wayne Saker 40,000 10,000 50,000 50,000
Paine Webber, Inc.
c/f William A. Lamb 147,200 6,250 153,450 31,250
Paine Webber, Inc.
c/f John A. Lamb 67,000 6,250 73,250 31,250
John Lamb 67,000 6,250 73,250 31,250
Rick B. Leverich 25,000 6,250 31,250 31,250
Michael Ned Mathias 25,000 6,250 31,250 31,250
Boro Durakovic 25,000 6,250 31,250 31,250
Milton H. Dresner Revocable
Living Trust 25,000 6,250 31,250 31,250
Joel M. Meyers 25,000 6,250 31,250 31,250
Lawrence Goldberg 25,000 6,250 31,250 31,250
Gary B. Davis 25,000 6,250 31,250 31,250
Robert Rogoff 65,000 5,000 70,000 25,000
Robert Zelinka 160,000 4,750 164,750 23,750
Winchester Hosp. Inv. Fund 35,400 4,000 39,400 20,000
</TABLE>
11
<PAGE> 14
<TABLE>
<S> <C> <C> <C> <C>
Rona Zelinka 23,000 3,250 26,250 16,250
Howard R. Curd 12,500 3,125 15,625 15,625
Howard F. Curd 12,500 3,125 15,625 15,625
Rahman Family Trust dated
1996, Muhit Rahman, Trustee 12,500 3,125 15,625 15,625
Jonathan R. Furer 12,500 3,125 15,625 15,625
Evans 1997 Trust
Gary Evans, Trustee 12,500 3,125 15,625 15,625
Ben W. Hasten
Stifel Nicolaus & Company, Inc. 12,500 3,125 15,625 15,625
John H. Buck III 12,000 3,000 15,000 15,000
James R. Willing Profit Sharing 36,600 2,900 39,500 14,500
Ryan Osborne 10,000 2,500 12,500 12,500
Mark K. Menzel 88,000 2,000 90,000 10,000
Peter Stern 6,250 1,562 7,812 7,812
David A. Rozinov 6,250 1,562 7,812 7,812
Stifel Nicolaus & Company, Inc.
Custodian for Barry Ollman, IRA 18,750 1,562 20,312 7,812
Stifel Nicolaus & Company, Inc.
Custodian for John D. Kucera, IRA 6,250 1,562 7,812 7,812
Brian Reichberg 6,250 1,562 7,812 7,812
Barry Blank 14,000 1,500 15,500 7,500
Herman Blank 9,000 1,500 10,500 7,500
Shirley Blank 9,000 1,500 10,500 7,500
James R. Brown 5,000 1,250 6,250 6,250
Jason Baldwin Jones 5,000 1,250 6,250 6,250
Jacqueline Waterman 3,000 750 3,750 3,750
Joan L. Morgen 2,500 625 3,125 3,125
Ran Furman 2,500 625 3,125 3,125
----- --- ----- -----
Total 4,525,650 1,089,769 5,615,419 3,903,619
</TABLE>
Assuming the Selling Shareholders sell all of their shares as offered
above, The Paisley Pacific Fund and The Paisley Fund will each own approximately
2% of the outstanding shares of common stock of the company after such sale.
USE OF PROCEEDS
Novavax will not receive any proceeds from the sale of the shares by
the selling stockholders.
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 January 28, 2000, 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
12
<PAGE> 15
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.
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 and without limiting the foregoing, each selling
stockholder will be subject to applicable provisions of the Exchange Act and the
rules and regulations thereunder, including without limitation, Regulation M,
which provisions may limit the timing of purchases and sales of shares of
Novavax common stock by such 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 such 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 $48,500.
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 shareholder of such
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,
1999, have been so incorporated in 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
13
<PAGE> 16
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.
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.
14
<PAGE> 17
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, or otherwise, the Company 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.
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 NOVAVAX 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 NOVAVAX
SINCE SUCH DATE.
15
<PAGE> 18
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................................................................... $10,434.
AMEX Listing Fee....................................................................... 17,500.
Legal Services and Expenses............................................................ 15,000.
Accounting Services and Expenses....................................................... 5,500.
Miscellaneous expenses................................................................. 66.
-----------
Total ..................................................................... $48,500.
</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 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.
16
<PAGE> 19
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
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.
17
<PAGE> 20
(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.
18
<PAGE> 21
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 Alexandria, Virginia on March 7, 2000.
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 March 7, 2000
- --------------------------------- Chief Executive Officer
John A. Spears and Director
/s/ Donald J. MacPhee Vice President and March 7, 2000
- --------------------------------- Chief Financial Officer
Donald J. MacPhee (Principal Financial and
Accounting Officer)
/s/ Gary C. Evans Director March 7, 2000
- ---------------------------------
Gary C. Evans
/s/ Mitchell J. Kelly Director March 7, 2000
- ---------------------------------
Mitchell J. Kelly
/s/ J. Michael Lazarus Director March 7, 2000
- ---------------------------------
J. Michael Lazarus
/s/ John O. Marsh, Jr. Director March 7, 2000
- ---------------------------------
John O. Marsh, Jr.
/s/ Michael A. McManus Director March 7, 2000
- ---------------------------------
Michael A. McManus
</TABLE>
<PAGE> 22
<TABLE>
<S> <C> <C>
/s/ Denis M. ODonnell Director March 7, 2000
- ---------------------------------
Denis M. O'Donnell
/s/ Ronald H. Walker Director March 7, 2000
- ---------------------------------
Ronald H. Walker
</TABLE>
<PAGE> 23
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>
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 January 28, 2000 between the
Company and the purchasers identified therein. (Incorporated by reference to
Exhibit 10.15 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999, filed March 9, 2000). ---
5.1* Opinion and Consent of White & McDermott, P.C. 24
23.1* Consent of PricewaterhouseCoopers LLP, independent accountants. 25
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.) ---
</TABLE>
<PAGE> 1
EXHIBIT 5.1
WHITE & MCDERMOTT, P.C.
65 William Street
Wellesley, MA 02481
March 9, 2000
Novavax, Inc.
8320 Guilford Road
Columbia, MD 21046
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 3,903,619 shares of common stock, $.01 par value (the "Common
Stock"), of Novavax, Inc. (the "Company") of which 2,813,850 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 January 28, 2000 between the Company and those purchasers
identified therein (the "Purchased Shares"), 987,845 of which may be acquired by
those purchasers and placement agents upon the exercise of warrants issued in
connection with the private placement, 50,000 of which may be acquired by The
Research Works, Inc. pursuant to a warrant issued in November, 1996 and 54,924
of which may be acquired by Vector Securities International, Inc. pursuant to a
warrant issued in October, 1996 (the "Warrant Shares").
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 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) 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 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 February 26, 2000, relating to
the consolidated financial statements which appears in Novavax Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1999. We also consent to the
reference to us under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
McLean, Virginia
March 9, 2000
