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On January 26, 2022, the Maryland Court entered an order designating David Truong, Nuggehalli Balmukund Nandkumar, and Jeffrey Gabbert as co-lead plaintiffs in the Sinnathurai Action.
−Removed: The co-lead plaintiffs filed a consolidated amended complaint on March 11, 2022, alleging that the defendants made certain purportedly false and misleading statements concerning the Company’s ability to manufacture NVX-CoV2373 on a commercial scale and to secure the NVX-CoV2373’s regulatory approval.
+Added: The co-lead plaintiffs filed a consolidated amended complaint on March 11, 2022, alleging that the defendants made certain purportedly false and misleading statements concerning the Company’s ability to manufacture prototype vaccine on a commercial scale and to secure the prototype vaccine’s regulatory approval.
The amended complaint defines the purported class as those stockholders who purchased the Company’s securities between February 24, 2021 and October 19, 2021.
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On December 27, 2022, the Company filed its answer and affirmative defenses.
+Added: On March 16, 2023, the plaintiffs filed a motion for class certification and to appoint class representatives and counsel.
+Added: The Company filed its opposition to the plaintiffs’ motion on September 22, 2023.
After the Sinnathurai Action was filed, eight derivative lawsuits were filed:
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Defendants filed their reply brief in further support of their motion to dismiss on May 11, 2023.
+Added: On August 21, 2023, the court entered an order granting in part and denying in part the motion to dismiss.
+Added: On September 5, 2023, the Company filed an Answer to the consolidated amended complaint.
+Added: On September 6, 2023, the court entered an order granting the individual defendants an extension of time to file their answer until November 6, 2023.
+Added: On October 6, 2023, the Board of Directors of the Company formed a Special Litigation Committee (“SLC”) with full and exclusive power and authority of the Board to, among other things, investigate, review, and analyze the facts and circumstances surrounding the claims asserted in the pending derivative actions, including the claims that remain following the court’s order on the motion to dismiss in the Second Consolidated Derivative Action.
+Added: On November 7, 2023, the court entered an order granting the parties’ request to stay the Second Consolidated Derivative Action for up to six months from the date of entry of the order.
+Added: This includes staying the deadline for the individual defendants to respond to the consolidated amended complaint.
On July 21, 2022, the Maryland Court issued a memorandum opinion and order remanding the Kirst Action to state court.
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On March 22, 2023, the Court entered an order staying the Kirst Action pending resolution of the motion to dismiss in the Second Consolidated Derivative Action.
+Added: The parties continue to discuss next steps in the litigation following the Maryland Court’s ruling on the motion to dismiss the Second Consolidated Derivative Action.
On August 30, 2022, the Mesa Action was filed.
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On February 28, 2023, the court granted the defendants’ motion and stayed the Mesa Action pending the entry of a final, non-appealable judgment in the Second Consolidated Derivative Action.
+Added: On August 31, 2023, the Mesa plaintiffs filed a motion to lift the stay in the Mesa Action.
+Added: On October 6, 2023, the Company filed an opposition to plaintiff’s motion to lift the stay.
+Added: On October 17, 2023, the Mesa plaintiff filed his reply in further support of his motion to lift the stay.
On December 7, 2022, the Acosta Action was filed.
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On March 9, 2023, the court entered an order granting the parties’ request to stay the Acosta Action pending the entry of a final, non-appealable judgment in the Second Consolidated Derivative Action.
−Removed: On June 28, 2023 the Company, along with representatives from its insurance carriers, met with the plaintiffs and the plaintiffs of the Sinnathurai Action in mediation to engage in potential settlement discussions.
−Removed: The parties continue to discuss whether an amicable resolution is possible.
+Added: On October 13, 2023, the parties filed, and the Delaware Court entered, a stipulated order providing that (i) if the Delaware Court declines to lift the stay in the Mesa Action, the Acosta Action will also remain stayed, and (ii) if the Delaware Court lifts the stay in the Mesa Action, the stay in the Acosta Action will also be lifted.
On April 17, 2023, the Needelman Action was filed.
On July 12, 2023, the parties filed a stipulation and proposed order to stay the Needelman Action pending the Maryland Court’s decision on the motion to dismiss in the Second Consolidated Derivative Action.
+Added: The court entered that order on July 17, 2023.
+Added: The parties continue to discuss next steps in the litigation following the Maryland Court’s ruling on the motion to dismiss the Second Consolidated Derivative Action.
The financial impact of this claim, as well as the claims discussed above, is not estimable.
−Removed: On February 26, 2021, a Company stockholder named Thomas Golubinski filed a derivative complaint against members of the Company’s board of directors and members of senior management in the Delaware Court, captioned Thomas Golubinski v.
−Removed: Douglas, et al., No.
−Removed: 2021-0172-JRS.
−Removed: The Company is deemed a nominal defendant.
−Removed: Golubinski challenged equity awards made in April 2020 and in June 2020 on the ground that they were “spring-loaded,” that is, made at a time when such board members or members of senior management allegedly possessed undisclosed positive material information concerning the Company.
−Removed: The complaint asserted claims for breach of fiduciary duty, waste, and unjust enrichment.
−Removed: The plaintiff sought an award of damages to the Company, an order rescinding both awards or requiring disgorgement, and an award of attorneys’ fees incurred in connection with the litigation.
−Removed: On May 10, 2021, the defendants moved to dismiss the complaint in its entirety.
−Removed: On June 17, 2021, the Company’s stockholders voted FOR ratification of the April 2020 awards and ratification of the June 2020 awards.
−Removed: Details of the ratification proposals are set forth in the Company’s Definitive Proxy Statement filed on May 3, 2021.
−Removed: The results of the vote were disclosed in the Company’s Current Report on Form 8-K filed on June 24, 2021.
−Removed: Thereafter, the plaintiff stipulated that, as a result of the outcome of the June 17, 2021 vote, the plaintiff no longer intends to pursue the lawsuit or any claim arising from the April 2020 and June 2020 awards.
−Removed: On August 23, 2021, the plaintiff filed a motion seeking an award of attorneys’ fees and expenses, to which the defendants filed an opposition.
−Removed: On October 18, 2022, the Delaware Court denied the plaintiff’s fee application in its entirety.
−Removed: Under a prior Delaware Court order, the case was automatically dismissed with prejudice upon denial of the plaintiff’s fee application.
−Removed: On November 14, 2022, Golubinski filed a Notice of Appeal in the Supreme Court of the State of Delaware.
−Removed: The plaintiff / appellant filed his opening appellate brief on December 30, 2022.
−Removed: The Company filed its responsive brief on January 30, 2023 and the appellant filed his reply brief on February 14, 2023.
−Removed: On June 8, 2023, the Supreme Court affirmed the Court of Chancery’s denial of the plaintiff’s fee application.
−Removed: The case was closed on June 26, 2023.
−Removed: On March 29, 2022, Par Sterile Products, LLC (“Par”) submitted a demand for arbitration against the Company with the American Arbitration Association, alleging that the Company breached certain provisions of the Manufacturing and Services Agreement (the “Par MSA”) that the Company entered into with Par in September 2020 to provide fill-finish manufacturing services for NVX-CoV2373.
−Removed: On April 4, 2023 the parties entered into a Settlement Agreement and Release of Claims pursuant to which Novavax agreed to pay $27.0 million to Par, which was fully accrued for as of March 31, 2023.
−Removed: Novavax characterized the payment as a $15.0 million termination fee and a $12.0 million settlement payment.
−Removed: Because Par and its parent company, Endo International plc, are parties to Chapter 11 bankruptcy proceedings, the Settlement Agreement and Release of Claims and the payment due thereunder required, and subsequently received, approval from the bankruptcy court.
−Removed: The Company has made the payment required by the Settlement Agreement and Release of Claims, and the arbitration was dismissed with prejudice following a joint motion by Par and Novavax on August 1, 2023.
−Removed: On November 18, 2022, the Company delivered written notice to Gavi to terminate the Gavi APA based on Gavi’s failure to procure the purchase of 350 million doses of NVX-CoV2373 from the Company as required by the Gavi APA.
+Added: On November 18, 2022, the Company delivered written notice to Gavi to terminate the Gavi APA based on Gavi’s failure to procure the purchase of 350 million doses of prototype vaccine from the Company as required by the Gavi APA.
As of November 18, 2022, the Company had only received orders under the Gavi APA for approximately 2 million doses.
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Gavi also contends that, based on its purported termination of the Gavi APA, it is entitled to a refund of the Advance Payment Amount less any amounts that have been credited against the purchase price for binding orders placed by a buyer participating in the COVAX Facility.
−Removed: Since December 31, 2022, the remaining Gavi Advance Payment Amount, which is $696.4 million as of June 30, 2023, pending resolution of the dispute with Gavi related to a return of the remaining Advance Payment Amount, has been classified within Other current liabilities in the Company’s consolidated balance sheet.
+Added: Since December 31, 2022, the remaining Gavi Advance Payment Amount, which is $696.4 million as of September 30, 2023, pending resolution of the dispute with Gavi related to a return of the remaining Advance Payment Amount, has been classified within Other current liabilities in the Company’s consolidated balance sheet.
On January 24, 2023, Gavi filed a demand for arbitration with the International Court of Arbitration based on the claims described above.
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Arbitration is inherently uncertain, and while we believe that we are entitled to retain the remaining Advance Payment Amount received from Gavi, it is possible that we could be required to refund all or a portion of the remaining Advance Payment Amount from Gavi.
+Added: On September 30, 2022, the Company, FUJIFILM Diosynth Biotechnologies UK Limited (“FDBK”), FUJIFILM Diosynth Biotechnologies Texas, LLC (“FDBT”), and FUJIFILM Diosynth Biotechnologies USA, Inc.
+Added: (“FDBU” and together with FDBK and FDBT, “Fujifilm”) entered into a Confidential Settlement Agreement and Release (the “Fujifilm Settlement Agreement”) regarding amounts due to Fujifilm in connection with the termination of manufacturing activity at FDBT under the Commercial Supply Agreement (the “CSA”) dated August 20, 2021 and Master Services Agreement dated June 30, 2020 and associated statements of work (the “MSA”) by and between the Company and Fujifilm.
+Added: The MSA and CSA established the general terms and conditions applicable to Fujifilm’s manufacturing and supply activities related to the Company’s prototype vaccine under the associated statements of work.
+Added: Pursuant to the Fujifilm Settlement Agreement, the Company agreed to pay up to $185.0 million (the “Settlement Payment”) to Fujifilm in connection with cancellation of manufacturing activity at FDBT.
+Added: Under the Fujifilm Settlement Agreement, the final two quarterly installments due to Fujifilm were subject to Fujifilm’s obligation to use commercially reasonable efforts to mitigate losses associated with the vacant manufacturing capacity caused by the termination of manufacturing activities at FDBT under the CSA.
+Added: Any replacement revenue achieved by Fujifilm’s mitigation efforts between July 1, 2023 and December 31, 2023 would offset the final two settlement payments owed by the Company.
+Added: On October 2, 2023, the Company sent a notice of breach under the Fujifilm Settlement Agreement to Fujifilm setting forth the Company’s position that Fujifilm had not used commercially reasonable efforts to mitigate losses.
+Added: The Company withheld the $34.3 million installment payment due to Fujifilm on September 30, 2023, pending resolution of the issues identified in the notice of breach.
+Added: On October 30, 2023, FDBT filed a demand for arbitration with JAMS seeking payment of the withheld installment payment.
We are also involved in various other legal proceedings arising in the normal course of business.
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Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.