AZN AstraZeneca PLC

 

Exhibit (a)(1)(E)

 

This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares (as defined below). The Offer (as defined below) is made only by the Offer to Purchase dated December 27, 2023, and the related Letter of Transmittal (as defined below) and any amendments, supplements or other modifications thereto, and is being made to all holders of Shares. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. In those jurisdictions where applicable laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Merger Sub (as defined below) by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Merger Sub.

 

Notice of Offer to Purchase
All Outstanding Shares of Common Stock
of

 

ICOSAVAX, INC.

 

at
$15.00 per share in cash, plus one non-transferable contingent value right per share representing the right to receive a contingent payment of up to $5.00 in cash on the achievement of specified milestones
by

 

ISOCHRONE MERGER SUB INC.

 

a wholly owned subsidiary of

 

ASTRAZENECA FINANCE AND HOLDINGS INC.

 

a wholly owned subsidiary of

 

ASTRAZENECA PLC

 

Isochrone Merger Sub Inc., a Delaware corporation (“Merger Sub”) and a wholly owned subsidiary of AstraZeneca Finance and Holdings Inc., a Delaware corporation (“Parent”), is offering to purchase all of the outstanding shares of common stock, par value $0.0001 per share (the “Shares”), of Icosavax, Inc., a Delaware corporation (the “Company”), in exchange for (i) $15.00 per Share in cash, subject to applicable withholding taxes and without interest (the “Closing Amount”), plus (ii) one non-transferable contingent value right (each, a “CVR”) per Share representing the right to receive a contingent payment of up to $5.00 in cash, subject to applicable withholding taxes and without interest, on the achievement of specified milestones on or prior to the applicable deadline, on the terms and subject to the other conditions set forth in the Contingent Value Rights Agreement (the “CVR Agreement”) (the Closing Amount plus one CVR, collectively, or any greater amount per Share that may be paid pursuant to the Offer (as defined below), the “Offer Price”), on the terms and subject to the conditions set forth in the Offer to Purchase (as it may be amended, supplemented or otherwise modified from time to time, the “Offer to Purchase”) and in the related Letter of Transmittal (as it may be amended, supplemented or otherwise modified from time to time, the “Letter of Transmittal,” which, together with the Offer to Purchase, as they may be amended, supplemented or otherwise modified from time to time, collectively constitute the “Offer”).

 

Tendering stockholders who are record owners of their Shares and who tender directly to Equiniti Trust Company, LLC (the “Depositary”) will not be obligated to pay brokerage fees or commissions or, except as otherwise provided in the Letter of Transmittal, stock transfer taxes with respect to the purchase of Shares by Merger Sub pursuant to the Offer. Stockholders who hold their Shares through a broker, banker, or other nominee should consult such institution as to whether it charges any service fees or commissions.

 

THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M., NEW YORK CITY TIME, ON JANUARY 26, 2024, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.

 

 

The Offer is being made pursuant to an Agreement and Plan of Merger, dated as of December 11, 2023 (as it may be amended, supplemented or otherwise modified from time to time, the “Merger Agreement”), by and among the Company, Parent and Merger Sub, pursuant to which, as soon as practicable following the consummation of the Offer, and in any event no later than one business day thereafter, subject to the satisfaction or waiver of certain conditions, Merger Sub will merge with and into the Company (the “Merger”), and the Company will survive the Merger (the “Surviving Corporation”) as a wholly owned subsidiary of Parent, on the terms and subject to the conditions set forth in the Merger Agreement. The Merger will be effected without a vote of the stockholders of the Company in accordance with Section 251(h) of the DGCL, subject to the satisfaction or waiver of certain conditions.

 

At the effective time of the Merger (being the time and day of the filing of the certificate of merger with the Secretary of State of the State of Delaware or at such later time and day as may be agreed in writing by Parent and the Company and specified in the certificate of merger in accordance with the DGCL, the “Effective Time”), each Share issued and outstanding immediately prior to the Effective Time (excluding Shares owned by Parent, Merger Sub or the Company, or by any direct or indirect wholly owned subsidiary of Parent or Merger Sub, any Shares irrevocably accepted for payment pursuant to the Offer, and any Shares held by stockholders who are entitled to demand, and who shall have properly and validly demanded their statutory rights of appraisal in respect of such Shares in compliance with Section 262 of the DGCL) shall be canceled and extinguished and automatically converted into the right to receive the Offer Price (including the CVR), without interest thereon and subject to any applicable withholding tax. As a result of the Merger, the Company will cease to be a publicly traded company and will become a wholly owned subsidiary of Parent.

 

Pursuant to the terms of the Merger Agreement, immediately prior to the Effective Time, (1) each stock option to purchase Shares (each, a “Company Option”) with a per Share exercise price less than $15.00 (each, an “In the Money Option”) that is outstanding as of immediately prior to the Effective Time will accelerate and become fully vested and will be automatically canceled and terminated and converted into the right to receive, subject to the terms of the Merger Agreement, (a) an amount in cash (without interest) equal to (i) the aggregate number of Shares underlying such In the Money Option immediately prior to the Effective Time multiplied by (ii) (A) the Closing Amount less (B) the per Share exercise price of such In the Money Option, plus (b) one CVR with respect to each Share subject to such In the Money Option immediately prior to the Effective Time, (2) each Company Option with a per Share exercise price equal to or greater than $15.00 but less than $20.00 (each, an “Out of the Money Option”) that is outstanding as of immediately prior to the Effective Time will accelerate and become fully vested and will be automatically canceled and terminated and converted into the right to receive, subject to the terms of the Merger Agreement, an amount in cash (without interest), if any, from Parent, if and when (and only if and when) payments in respect of CVRs are required to be made (and in all events within such period of time after achievement of the milestone specified in the CVR Agreement) equal to (a) the aggregate number of Shares underlying such Out of the Money Option immediately prior to the Effective Time multiplied by (b) the amount by which (i) the Closing Amount plus the aggregate amount paid per CVR exceeds (ii) the per Share exercise price of such Out of the Money Option and (3) each Company Option with a per Share exercise price equal to or greater than $20.00 (each, an “Over $20 Out of the Money Option”) that is outstanding as of immediately prior to the Effective Time will be automatically canceled and terminated with no consideration payable therefor. The amounts described in this paragraph are referred to as the “Option Consideration.”

 

Pursuant to the terms of the Merger Agreement, immediately prior to the Effective Time, each restricted stock unit that is not subject to performance-based vesting conditions (each, a “Company RSU”) and each restricted stock unit that is subject to performance-based vesting conditions (each, a “Company PSU”), in each case that is outstanding as of immediately prior to the Effective Time, shall accelerate and become fully vested immediately prior to the Effective Time, and be canceled and converted into the right to receive, subject to the terms of the Merger Agreement (assuming all performance objectives contained in the Company PSUs have been fully achieved), both (1) an amount in cash (without interest) equal to the Closing Amount and (2) one CVR (with any performance conditions deemed achieved at maximum levels with respect to the Company PSUs), immediately prior to the Effective Time. The amounts described in this paragraph are referred to as the “RSU/PSU Consideration.”

 

The Offer is subject to the conditions set forth in Section 15 of the Offer to Purchase (collectively, the “Offer Conditions”), including (1) the expiration or termination of any waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (and any extension thereof) applicable to the transactions contemplated by the Merger Agreement, including any voluntary agreements with a governmental authority not to consummate the Offer or the Merger for any period of time (the “Antitrust Condition”), (2) there having been validly tendered and not validly withdrawn in accordance with the terms of the Offer, and “received” by the “depository” for the Offer (as such terms are defined in Section 251(h) of the DGCL), a number of Shares that, together with the other Shares then owned by Parent, Merger Sub and any of their direct or indirect wholly owned subsidiaries (excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” by the “depository” for the Offer (as such terms are defined in Section 251(h) of the DGCL)) represents at least one more Share than 50% of the total number of outstanding Shares as of immediately prior to the expiration of the Offer (the “Minimum Condition”) and (3) no governmental authority of competent and applicable jurisdiction having (a enacted, issued or promulgated any law that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the Offer, the acquisition of Shares by Parent or Merger Sub, or the Merger illegal or having the effect of prohibiting or otherwise preventing the consummation of the Offer, the acquisition of Shares by Parent or Merger Sub, or the Merger or (b) issued or granted any order that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the Offer or the Merger illegal or that has the effect of prohibiting or otherwise preventing the consummation of the Merger (the “No Injunction Condition”). The Offer is not subject to any financing condition.

 

 

The term “Expiration Time” means one minute after 11:59 p.m., New York City time, on January 26, 2024, unless the Offer is extended pursuant to and in accordance with the Merger Agreement. In the event that the Offer is extended pursuant to and in accordance with the Merger Agreement, then the term “Expiration Time” means such subsequent time.

 

The board of directors of the Company has unanimously (1) determined that the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, are advisable, fair to and in the best interests of the Company and its stockholders, and declared it advisable for the Company to enter into the Merger Agreement, (2) approved and declared advisable the execution and delivery by the Company of the Merger Agreement, the performance by the Company of its covenants and agreements contained therein and the consummation of the Offer and the Merger and the other transactions contemplated by the Merger Agreement upon the terms and subject to the conditions contained therein and (3) resolved, subject to the terms and conditions set forth in the Merger Agreement, to recommend that the holders of the Shares accept the Offer and tender their Shares to Merger Sub pursuant to the Offer.

 

The Merger Agreement contains provisions that govern the circumstances under which Merger Sub is required or permitted to extend the Offer. Specifically, the Merger Agreement provides that:

 

·

Merger Sub must (and Parent must cause Merger Sub to) extend the Offer for the minimum period required by any applicable law or order or any rule, regulation, interpretation or position of the SEC or its staff or Nasdaq or as may be necessary to resolve any comments of the SEC or Nasdaq or the staff of the SEC or Nasdaq, in each case, as applicable to the Offer, the Schedule 14D-9 or the other tender offer documents;

 

·

if, as of any then-scheduled Expiration Time, any Offer Condition is not satisfied and has not been waived by Parent and Merger Sub (if permitted by the Merger Agreement), Merger Sub may (and, if requested by the Company, Merger Sub must and Parent must cause Merger Sub to) extend the Offer for one or more successive extension periods of up to ten business days each (or any longer period as may be agreed in writing by Parent and the Company) in order to permit the satisfaction of all of the conditions to the Offer, except that if the sole then-unsatisfied condition to the Offer is the Minimum Condition, Merger Sub will not be required to extend the Offer for more than three occasions in consecutive periods of up to ten business days each; and

 

·

neither Parent nor Merger Sub may terminate or withdraw the Offer prior to the then scheduled expiration of the Offer unless the Merger Agreement is validly terminated, in which case Merger Sub must (and Parent must cause Merger Sub to) irrevocably and unconditionally terminate the Offer promptly (but in no event more than one business day) after termination of the Merger Agreement.

 

The Merger Agreement provides that Parent and Merger Sub may not extend the Offer beyond the Termination Date without the prior written consent of the Company in its sole and absolute discretion. The “Termination Date” means June 11, 2024, unless otherwise extended to September 11, 2024 or December 11, 2024, in each case, pursuant to the terms of the Merger Agreement.

 

If the Offer is consummated, Parent and Merger Sub are not required to and will not seek the approval of the Company’s remaining stockholders before effecting the Merger.

 

 

Parent and Merger Sub expressly reserve the right, at any time and from time to time, to waive, in whole or in part, any of the conditions to the Offer, to make any change in the terms of or conditions to the Offer in a manner consistent with the terms of the Merger Agreement or to increase the Offer Price, except that, without the prior written consent of the Company, Parent and Merger Sub may not: (1) waive or modify certain conditions to the offer, including the Minimum Condition, the Antitrust Condition or the No Injunction Condition; (2) change the form of consideration to be paid in the Offer; (3) decrease the Offer Price or the number of Shares sought in the Offer; (4) extend the Offer or the Expiration Time (except as permitted or required the Merger Agreement); (5) impose conditions or requirements on the Offer other than the Offer Conditions; (6) amend or modify any term or condition of the Offer in any manner that is (or would reasonably be expected to be) materially adverse to the Company stockholders; or (7) make any change in the terms of or conditions to the Offer that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other transactions contemplated by the Merger Agreement.

 

Any extension, delay, termination or amendment of the Offer will be followed as promptly as practicable by a public announcement thereof, and such announcement in the case of an extension will be made no later than 9:00 a.m., New York City time, on the business day after the previously scheduled expiration date of the Offer.

 

Merger Sub is not providing for guaranteed delivery procedures. Therefore, Company stockholders must allow sufficient time for the necessary tender procedures to be completed prior to the Expiration Time. In addition, for Company stockholders who are registered holders, the Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees and any other documents required by the Letter of Transmittal (or, in the case of a book-entry transfer, an “agent’s message” in lieu of the Letter of Transmittal and such other documents) must be received by the Depositary prior to the Expiration Time.

 

For purposes of the Offer, Merger Sub will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered to Merger Sub and not validly withdrawn as, if and when Merger Sub gives oral or written notice to the Depositary of its acceptance for payment of such Shares pursuant to the Offer. On the terms and subject to the conditions of the Offer, payment for the Shares accepted for payment pursuant to the Offer will be made by deposit of the Offer Price for such Shares with the Depositary, which will act as agent for tendering stockholders for the purpose of receiving payments from Merger Sub and transmitting such payments to tendering stockholders whose Shares have been accepted for payment. If Merger Sub extends the Offer, is delayed in its acceptance for payment of Shares or is unable to accept Shares for payment pursuant to the Offer for any reason, then, without prejudice to Merger Sub’s rights under the Offer and the Merger Agreement, the Depositary may retain tendered Shares on Merger Sub’s behalf, and such Shares may not be withdrawn except to the extent that tendering stockholders are entitled to withdrawal rights as described in Section 4 of the Offer to Purchase and as otherwise required by Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Under no circumstances will Merger Sub pay interest on the Offer Price for Shares, including by reason of any extension of the Offer or any delay in making such payment.

 

In all cases, Merger Sub will pay for Shares validly tendered and accepted for payment pursuant to the Offer only after timely receipt by the Depositary of (1) the certificates evidencing such Shares (the “Share Certificates”) (2) confirmation of a book-entry transfer of such Shares into the Depositary’s account at The Depository Trust Company (“DTC”) pursuant to the procedures set forth in Section 3 of the Offer to Purchase with respect to Shares held in “street” name, (3) in the case of Share Certificates, the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees and (4) any other documents required by the Letter of Transmittal or, in the case of a book-entry transfer of Shares held in “street” name, an “agent’s message” in lieu of the Letter of Transmittal and such other documents.

 

Shares tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Time. Thereafter, tenders are irrevocable, except that if Merger Sub has not accepted your Shares for payment within 60 days after commencement of the Offer, you may withdraw them at any time after February 25, 2024, the 60th day after commencement of the Offer, until such time as Merger Sub accepts your Shares for payment.

 

For a withdrawal of Shares to be effective, the Depositary must timely receive a written or facsimile transmission notice of withdrawal at one of its addresses set forth on the back cover of the Offer to Purchase. Any notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the names in which the Share Certificates are registered, if different from that of the person who tendered such Shares. The signature(s) on the notice of withdrawal must be guaranteed by a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a member in good standing of the Security Transfer Agents Medallion Program or any other “eligible guarantor institution,” as such term is defined in Rule 17Ad-15 under the Exchange Act (each an “Eligible Institution” and collectively “Eligible Institutions”) unless such Shares have been tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedures for book-entry transfer as set forth in Section 3 of the Offer to Purchase any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn Shares. If Share Certificates representing the Shares to be withdrawn have been delivered or otherwise identified to the Depositary, then, prior to the physical release of such Share Certificates, the name of the registered owners and the serial numbers shown on such Share Certificates must also be furnished to the Depositary.

 

 

Withdrawals of tenders of Shares may not be rescinded and any Shares validly withdrawn will be deemed not validly tendered for purposes of the Offer. Withdrawn Shares may, however, be retendered by following one of the procedures for tendering Shares described in Section 3 of the Offer to Purchase at any time prior to the Expiration Time.

 

The information required to be disclosed by Rule 14d-6(d)(1) under the Exchange Act is contained in the Offer to Purchase and is incorporated herein by reference.

 

The Company has provided Merger Sub with the Company’s stockholder list and security position listings for the purpose of disseminating the Offer to holders of Shares. The Offer to Purchase and related Letter of Transmittal, as well as the Schedule 14D-9, will be mailed to record holders of Shares whose names appear on the Company’s stockholder list and will be furnished for subsequent transmittal to beneficial owners of Shares to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing.

 

The receipt of cash and CVRs in exchange for Shares in the Offer or the Merger will be a taxable transaction for U.S. federal income tax purposes. See Section 5 of the Offer to Purchase for a more detailed discussion of the material U.S. federal income tax consequences of the Offer and the Merger. You are urged to consult with your own tax advisors to determine the tax consequences to you of tendering your Shares in the Offer or having your Shares exchanged for cash and CVRs pursuant to the Merger in light of your particular circumstances (including the application and effect of any U.S. federal, state, local or non-U.S. income and other tax laws).

 

The Offer to Purchase and the related Letter of Transmittal contain important information. Stockholders should carefully read both documents in their entirety before any decision is made with respect to the Offer.

 

Questions or requests for assistance may be directed to Innisfree M&A Incorporated (the “Information Agent”) at the address and telephone numbers set forth below. Requests for copies of the Offer to Purchase and the related Letter of Transmittal may be directed to the Information Agent or to brokers, dealers, commercial banks or trust companies. Such copies will be furnished promptly at Merger Sub’s expense. Merger Sub will not pay any fees or commissions to any broker or dealer or any other person (other than the Information Agent or the Depositary) for soliciting tenders of Shares pursuant to the Offer.

 

The Information Agent for the Offer is:

 

 

 

Innisfree M&A Incorporated
501 Madison Avenue, 20th floor
New York, New York 10022
Stockholders may call toll free: (888) 750-5835
Banks and Brokers may call collect: (212) 750-5833

 

December 27, 2023

 

 

 

Exhibit (d)(4)

 

MUTUAL NON-DISCLOSURE AGREEMENT

 

This Mutual Non-Disclosure Agreement (this “Agreement”) is entered into between Icosavax, Inc., a Delaware corporation (“Company”), and the other party named on the signature page hereto (“Other Party”) as of 21-July-2022 (the “Effective Date”), to protect the confidentiality of certain confidential information of Company or of Other Party to be disclosed under this Agreement solely for use in evaluating or pursuing a business relationship between the parties (the “Permitted Use”). Company and Other Party may be referred to herein individually as a “Party” and collectively as the “Parties.”

 

1.             As used herein, the “Confidential Information” of a Party will mean any and all technical and non-technical information disclosed by such Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), which may include without limitation: (a) patent and patent applications; (b) trade secrets; (c) proprietary and confidential information, ideas, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, methods of manufacture, apparatuses, equipment, algorithms, software programs and source documents, compositions, and formulae related to the current, future, and proposed products and services of each of the Parties, such as information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, compounds, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, and marketing plans; and (d) all other information that the Receiving Party knew, or reasonably should have known, was the Confidential Information of the Disclosing Party. For clarity, Confidential Information of the Disclosing Party shall include all non-public or proprietary information of any third party disclosed by such Disclosing Party pursuant to this Agreement.

 

2.             Subject to Section 3, the Receiving Party agrees that at all times and notwithstanding any termination or expiration of this Agreement the Receiving Party and its Affiliates will hold in strict confidence and not disclose to any third party any Confidential Information of the Disclosing Party, except as approved in writing by the Disclosing Party, and will use the Confidential Information of the Disclosing Party for no purpose other than the Permitted Use. The Receiving Party will also protect such Confidential Information with at least the same degree of care that the Receiving Party uses to protect its own Confidential Information, but in no case, less than reasonable care. The Receiving Party will limit access to the Confidential Information of the Disclosing Party to only those of the Receiving Party’s affiliates, directors, officers, employees, agents or authorized representatives having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party shall be jointly and severally liable for any breach by any of its Representatives of the restrictions set forth in this Agreement.

 

3.             The Receiving Party will not have any obligations under this Agreement with respect to a specific portion of the Confidential Information of the Disclosing Party if such Receiving Party can demonstrate that such portion of Confidential Information:

 

(a)             was in the public domain at the time it was disclosed to the Receiving Party;

 

(b)            entered the public domain subsequent to the time it was disclosed to the Receiving Party, through no fault of the Receiving Party;

 

(c)            was in the Receiving Party’s possession free of any obligation of confidence at the time it was disclosed to the Receiving Party;

 

(d)            was rightfully communicated to the Receiving Party free of any obligation of confidence subsequent to the time it was disclosed to the Receiving Party; or

 

 

(e)            was developed by affiliates, employees or agents of the Receiving Party who had no access to any Confidential Information.

 

(f)            was received from a third party, other than a Representative of the Disclosing Party, that is lawfully in possession of such information and was not in violation of any contractual or legal obligation of confidentiality between such third party and the Disclosing Party or any of its Representatives with respect to such information.

 

4.            Notwithstanding the above, the Receiving Party may disclose certain Confidential Information of the Disclosing Party, without violating the obligations of this Agreement, to the extent such disclosure is required by a subpoena, interrogatories, valid order of a court, securities regulations, securities regulators or another governmental body having jurisdiction, provided that the Receiving Party provides the Disclosing Party, to the extent legally permissible, with reasonable prior notice of such disclosure and makes a reasonable effort to assist the Disclosing Party in obtaining, at no cost to Receiving Party, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued.

 

5.            The Receiving Party will immediately notify the Disclosing Party upon discovery of any loss or unauthorized disclosure of the Confidential Information of the Disclosing Party or use of Confidential Information of the Disclosing Party by the Receiving Party or any of its Representatives in breach of the terms hereof, and the Receiving Party, at its expense, shall cooperate with the Disclosing Party at the Disclosing Party’s reasonable request to mitigate such breach and prevent any further breach hereof.

 

6.            Upon termination or expiration of this Agreement, each party shall immediately cease, and cause its Representatives to cease, use of the Disclosing Party’s Confidential Information. Upon written request of either Party, each Party will promptly return to the Disclosing Party or destroy all documents and other tangible materials representing the Disclosing Party’s Confidential Information and all copies thereof. Notwithstanding the destruction or return of Confidential Information, the Receiving Party will continue to be bound by its obligations under this Agreement. Notwithstanding the foregoing, Receiving Party may retain one copy of the Confidential Information to the extent necessary to comply with internal document retention policies, or legal and regulatory compliance obligations and any obligation to return the Confidential Information or destroy same does not extend to automatically generated computer back-up or archival copies generated in the ordinary course of Receiving Party’s information systems procedures, provided that such copies continue to be subject to the terms hereof.

 

7.            Confidential Information is and shall remain the sole property of the Disclosing Party. The Receiving Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the Disclosing Party, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Neither Receiving Party will make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the Disclosing Party. Neither this Agreement nor the disclosure of any Confidential Information hereunder shall result in any obligation on the part of either Party to enter into any further agreement with the other, license any products or services to the other, or to require either Party to disclose any particular Confidential Information. Nothing in this Agreement creates or shall be deemed to create any employment, joint venture, or agency between the Parties.

 

8.            The Receiving Party will not reproduce the Confidential Information of the Disclosing Party in any form except as required to accomplish the intent of this Agreement. Any reproduction by a Receiving Party of any Confidential Information of the Disclosing Party will remain the property of the Disclosing Party and will contain any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the Disclosing Party.

 

 

9.             In performing its obligations and exercising its rights under this Agreement, the Company warrants and represents that it will maintain adequate administrative, technical, and physical measures, controls, tools, systems, policies and procedures in accordance with good cyber security industry practice appropriate to the Company’s current stage of development. The Company will notify AstraZeneca, in writing, about any security incident affecting or which may affect any IT Infrastructure or data or facilities owned, leased or used by and/or provided for use by Company, which may affect the Confidential Information disclosed under this Agreement, without undue delay and in any event within 48 hours after the Company becomes aware that a security incident has occurred. Such notification will be, in the first instance, sent by e-mail to the following e-mail address: SOCITSecurity@astrazeneca.com and immediately followed up by telephone to 0044 1625 513080.

 

10.             This Agreement will terminate five (5) years after the Effective Date or may be terminated by either Party at any time upon thirty (30) days written notice to the other Party. Each Party’s obligations under this Agreement, including without limitation each party’s confidentiality and non-use obligations, will survive termination of this Agreement for a period of seven (7) years and will be binding upon such Party’s heirs, successors, and assigns.

 

11.            THE DISCLOSING PARTY IS PROVIDING CONFIDENTIAL INFORMATION ON AN “AS IS” BASIS FOR USE BY THE RECEIVING PARTY AT ITS OWN RISK. THE DISCLOSING PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

 

12.            This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Any disputes under this Agreement may be brought in the state courts and the Federal courts for the state of Delaware, and the parties hereby consent to the personal jurisdiction and exclusive venue of these courts. This Agreement may not be amended except by a writing signed by both parties.

 

13.            Each Party acknowledges that its breach of this Agreement may cause irreparable damage to the other Party and hereby agrees that the other Party will be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.

 

14.            If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

 

15.            Neither Party will communicate any information to the other Party in violation of the proprietary rights of any third party.

 

16.            Neither Party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void, except that a Party may assign this Agreement without such consent to its successor in interest by way of merger, acquisition or sale of all or substantially all of its assets. The terms of this Agreement shall be binding upon assignees.

 

 

17.            The Receiving Party will not export, directly or indirectly, any U.S. technical data acquired pursuant to this Agreement, or any products utilizing such data, in violation of the United States export laws or regulations.

 

18.            All notices or reports permitted or required under this Agreement will be in writing, shall refer specifically to this Agreement and will be delivered by personal delivery, electronic mail, facsimile transmission or by certified or registered mail, return receipt requested, and will be deemed given only if hand delivered or sent by an internationally recognized overnight delivery service, costs prepaid, addressed to the applicable Party at its address set forth below and sent to the attention of John Taylor, Head of Search and Evaluation, Business Development, john.d.taylor@astrazeneca.com (with respect to AstraZeneca), or to Elizabeth Bekiroglu, General Counsel, elizabeth.bekiroglu@icosavax.com (with respect to the Company). A copy of the communication shall also be emailed to AstraZeneca at legalnotices@astrazeneca.com. Such notice shall be deemed to have been given as of the date delivered by hand, or on the second business day (at the place of delivery) after deposit with an internationally recognized overnight delivery service, whichever is the earlier. Notices will be sent to the addresses set forth at the end of this Agreement or such other address as either Party may specify in writing.

 

19.            Each Party agrees that the software programs of the other Party contain valuable confidential information and each Party agrees that it will not modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information of the other Party without the prior written consent of the other Party.

 

20.            This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such matters. No modification of or amendment to this Agreement will be effective unless in writing and signed by the Party to be charged.

 

[Remainder of page intentionally left blank]

 

 

The parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.

 

	COMPANY:
	ICOSAVAX, INC.
	By:	/s/ Cassia Cearley
	Name:	Cassia Cearley
	Title:	Chief Business Officer
	Address:	1616 Eastlake Ave E
		Suite 208
		Seattle WA 98102

 

	OTHER PARTY: AstraZeneca UK Limited
	John Taylor
	Name of Other Party (Please Print)
	/s/ John Taylor
	Signature
	Global Search & Evaluation. RIA. BDL
	Title (if applicable)
	Address:	1 Francis Crick Avenue,
		Cambridge Biomedical Campus,
		Cambridge, England CB2 0AA

 

 

 

Exhibit (d)(5)

 

MUTUAL NON-DISCLOSURE AGREEMENT 

 

This Mutual Non-Disclosure Agreement (this “Agreement”) is entered into as of August 22, 2023 (the “Effective Date”), between Icosavax, Inc., a Delaware corporation (“Icosavax”), and ASTRAZENECA UK LIMITED, a company incorporated in England under No. 3674842 whose registered office is at 1 Francis Crick Avenue, Cambridge Biomedical Campus, Cambridge CB2 0AA, England on its behalf and on behalf of its Affiliates as defined herein (“Company”), on behalf of itself and its Affiliates, to protect the confidentiality of certain confidential information of Icosavax and Company to be disclosed under this Agreement solely for use in evaluating or pursuing a business relationship between the parties related to Icosavax’s VLP technology platform and it’s RSV/hMPV and RSV programs known as IVX-A12 and IVX-121, respectively (the “Permitted Use”). Icosavax and Company may be referred to herein individually as a “Party” and collectively as the “Parties.”

 

1.            As used herein, the “Confidential Information” of a Party will mean any and all technical and non-technical information disclosed by such Party or its Affiliates (each, a “Disclosing Party”) to the other Party or its Affiliates (each, a “Receiving Party”), which may include without limitation: (a) patent and patent applications, including unpublished patent applications; (b) trade secrets; (c) ideas, techniques, drawings, inventions, know-how, processes, methods of manufacture, research, experimental designs, development plans, protocols, data, procedures, investigator brochures, regulatory filings, regulatory documentation, design details, specifications, financial information, procurement requirements, investor information, employee information, information regarding business and contractual relationships, business forecasts, and sales and marketing plans; and (d) all other information that the Receiving Party knew, or reasonably should have known, was the Confidential Information of the Disclosing Party, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential”. For clarity, Confidential Information of the Disclosing Party shall include all non-public or proprietary information of any third party disclosed by such Disclosing Party pursuant to this Agreement. Confidential Information of the Disclosing Party, in whole or in part, contained or incorporated in any copies, summaries, notes or other documents whether written or recorded in electronic or other format shall also constitute Confidential Information of the Disclosing Party. For purposes of this Agreement, “Affiliate” shall mean any entity controlling, controlled by, or in common control with a Party and “control” means ownership, directly or indirectly, of at least fifty percent (50%) of voting rights in an entity, or rights or powers to control the management of such entity. For the avoidance of doubt, each Party signing this Agreement covenants that it has the power and authority to cause such Party’s Affiliates to comply with the obligations set forth herein.

 

2.            Subject to Section 3, each Receiving Party will hold in strict confidence and not disclose to any third party any Confidential Information of the Disclosing Party, except as approved in writing by the Disclosing Party, and will use the Confidential Information of the Disclosing Party for no purpose whatsoever other than the Permitted Use. The Receiving Party will also protect such Confidential Information with at least the same degree of care that the Receiving Party uses to protect its own most highly Confidential Information. Each Party will limit access to the Confidential Information of the Disclosing Party to only the directors, officers, employees or agents of the Receiving Party having a need to know such Confidential Information for the Permitted Use and who are bound by confidentiality and non-use obligations with respect to such Confidential Information at least as restrictive as those contained herein (the “Authorized Representatives”). The Authorized Representatives are prohibited from transcribing or reproducing the Confidential Information of the Disclosing Party in any way including image capture sharing via photography, screen grab and any other means. Each Receiving Party shall be liable for any breach by any of its Authorized Representatives. The Receiving Party shall be jointly and severally liable for any breach by any of its Authorized Representatives of the restrictions set forth in this Agreement.

 

 

3.            The Receiving Party will not have any obligations under this Agreement with respect to a specific portion of the Confidential Information of the Disclosing Party if such Receiving Party can establish by documentary evidence that such portion of Confidential Information:

 

(a)            was at the date of disclosure, or has subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party;

 

(b)            was in the Receiving Party’s possession free of any obligation of confidence at the time it was disclosed to the Receiving Party;

 

(c)            was received from a third party that is lawfully in possession of such information and was not in violation of any contractual, legal or fiduciary obligation of confidentiality between such third party and the Disclosing Party; or

 

(d)            was developed by affiliates, employees or agents of the Receiving Party without use of, reliance on or access to the Confidential Information of the Disclosing Party; or

 

(e)            is received from a third party, other than an Authorized Representative of, or any other Person that disclosed Confidential Information on behalf of, the Disclosing Party, that is lawfully in possession of such information and is not in violation of any contractual or legal obligation of confidentiality between such third party and the Disclosing Party or any of its Authorized Representatives with respect to such information,

 

4.            Notwithstanding the above, the Receiving Party may disclose certain Confidential Information of the Disclosing Party, without violating the obligations of this Agreement, to the extent such disclosure is required by a subpoena, interrogatories, valid order of a court, securities regulations or another governmental body having jurisdiction, provided that the Receiving Party provides the Disclosing Party, to the extent legally permissible, with reasonable prior notice of such disclosure and makes a reasonable effort to assist the Disclosing Party in obtaining, at no cost to Receiving Party, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued.

 

5.            The Receiving Party will immediately notify the Disclosing Party upon discovery of any loss or unauthorized disclosure or use of the Confidential Information of the Disclosing Party or use of Confidential Information of the Disclosing Party by the Receiving Party or any of its Authorized Representatives in breach of the terms hereof and the Receiving Party at its expense shall cooperate with the Disclosing Party at the Disclosing Party’s reasonable request to mitigate such breach and prevent any further breach hereof.

 

 

6.            Upon termination or expiration of this Agreement each Receiving Party shall immediately cease, and cause its Authorized Representatives to cease use of the Disclosing Party’s Confidential Information. Upon written request of either Party, each Party will promptly return to the Disclosing Party or destroy all documents and other tangible materials representing the Disclosing Party’s Confidential Information and all copies thereof and certify in writing that such Confidential Information has been returned or destroyed. Notwithstanding the destruction or return of Confidential Information, each Receiving Party will continue to be bound by its obligations under this Agreement.

 

7.            Confidential Information is and shall remain the sole property of the Disclosing Party. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting the Receiving Party any property rights, by license or otherwise, to any Confidential Information of the Disclosing Party, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Neither this Agreement nor the disclosure of any Confidential Information hereunder shall result in any obligation on the part of either Party to enter into any further agreement with the other, license any products or services to the other, or to require either Party to disclose any particular Confidential Information. Nothing in this Agreement creates or shall be deemed to create any employment, joint venture, or agency between the Parties.

 

8.            In performing its obligations and exercising its rights under this Agreement, each Party warrants and represents that it will maintain adequate administrative, technical, and physical measures, controls, tools, systems, policies and procedures in accordance with good cyber security industry practice appropriate to each Party’s current stage of development. Each Party will notify the other Party, in writing, about any security incident affecting or which may affect any IT Infrastructure or data or facilities owned, leased or used by and/or provided for use by such Party, which may affect the Confidential Information disclosed under this Agreement, without undue delay and in any event within 24 hours after either Party becomes aware of or suspects that a security incident has occurred. Such notification will be, in the first instance, sent by e-mail and immediately followed up by telephone to the following:

 

If to Company:	SOCITSecurity@astrazeneca.com
	0044 1625 513080

 

If to Icosavax:	Elizabeth.Bekiroglu@icosavax.com
	206-746-5915

 

9.            This Agreement will terminate one (1) year after the Effective Date or may be terminated by either Party at any time upon thirty (30) days written notice to the other Party. Each Party’s obligations under this Agreement, including without limitation obligations of confidentiality and non-use, will survive termination or expiration of this Agreement for a period of seven (7) years, with the exception of obligations with respect to the protection of Confidential Information that is a trade secret, which shall survive this Agreement indefinitely.

 

 

10.            The DISCLOSING PARTY is providing Confidential Information on an “AS IS” basis for use by the RECEIVING PARTY at its own risk. The DISCLOSING PARTY disclaims all WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

 

11.            This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles thereof. Any disputes under this Agreement may be brought in the state courts and the Federal courts for the state of Delaware, and the parties hereby consent to the personal jurisdiction and exclusive venue of these courts. This Agreement may not be amended except by a writing signed by both parties.

 

12.            Each Party acknowledges that its breach of this Agreement may cause irreparable damage to the other Party and hereby agrees that the other Party will be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.

 

13.            If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

 

14.            Neither Party will communicate any information to the other Party in violation of the proprietary rights of any third party.

 

15.            Neither Party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void, except that a Party may assign this Agreement without such consent to its successor in interest by way of merger, acquisition or sale of all or substantially all of its assets. The terms of this Agreement shall be binding upon any successors or assignees.

 

16.            All notices or reports permitted or required under this Agreement will be in writing, shall refer specifically to this Agreement and will be delivered by personal delivery or by certified or registered mail, return receipt requested, and will be deemed given only if hand delivered or sent by an internationally recognized overnight delivery service, costs prepaid, addressed to the applicable Party. Notices will be sent to the addresses set forth at the end of this Agreement or such other address as either Party may specify in writing.

 

 

17.            Each Party agrees that it will not modify, reverse engineer, decompile, create other works from, or disassemble any proprietary technology of the other Party without the prior written consent of the other Party.

 

18.            This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such matters. No modification of or amendment to this Agreement will be effective unless in writing and signed by the Party to be charged.

 

[Remainder of page intentionally left blank]

 

 

The Parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.

 

	ICOSAVAX, INC.
	By:	/s/ Cassia Cearley
	Name:	Cassia Cearley
	Title:	Chief Business Officer
	Address:	1930 Boren Ave. Suite 1000 Seattle, WA 98101 U.S.A.

 

	ASTRAZENECA UK LIMITED
	By:	/s/ Shaun Grady
	Name:	Shaun Grady
	Title:	SVP Business Development Operations
	Address:	A company incorporated in England under No. 3674842 whose registered office is at 1 Francis Crick Avenue, Cambridge Biomedical Campus, Cambridge CB2 0AA, England

 

 

 

Exhibit (d)(6)

 

FIRST AMENDMENT to

MUTUAL NON-DISCLOSURE AGREEMENT

 

This First Amendment to Mutual Non-Disclosure Agreement (this “Amendment”) is entered into as of November 14, 2023, by and between Icosavax, Inc., a Delaware corporation (“Icosavax”), and AstraZeneca UK Limited, a company incorporated in England under No. 3674842 whose registered office is at 1 Francis Crick Avenue, Cambridge Biomedical Campus, Cambridge CB2 0AA, England on its behalf and on behalf of its Affiliates (as defined in the Agreement) (“Company”).

 

RECITALS

 

WHEREAS, Icosavax and the Company are parties to that certain Mutual Non-Disclosure Agreement, dated as of August 22, 2023 (the “Agreement”);

 

WHEREAS, Section 11 of the Agreement provides that the Agreement may not be amended except by a writing signed by both parties thereto; and

 

WHEREAS, pursuant to Section 11 of the Agreement, Icosavax and the Company desire to amend the Agreement as described herein.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the mutual agreements contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, Icosavax and the Company hereby agree as follows:

 

ARTICLE 1. Definitions; Effect of Amendment

 

1.1            Definitions. Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to them in the Agreement.

 

1.2            Effect of Amendment. The Agreement is amended as set forth in this Amendment. Except as specifically provided for in this Amendment, all of the terms and conditions of the Agreement shall remain in full force and effect. Each reference in the Agreement to “hereof,” “hereunder” and “this Agreement” shall, from and after the date of this Amendment, refer to the Agreement, as amended by this Amendment. No reference to this Amendment need be made in any instrument or document making reference to the Agreement. The provisions of Sections 11, 12, 13, 14, 15, 16 and 18 of the Agreement (as amended by this Amendment) shall apply mutatis mutandis to this Amendment and to the Agreement as modified by this Amendment. The captions and headings in this Amendment are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Amendment. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

 

 

ARTICLE 2. Amendment

 

2.1            Standstill. Section 19 is hereby added to the Agreement as follows:

 

“Standstill. As of the date hereof, the Company hereby represents and warrants to Icosavax that neither the Company nor any of its Authorized Representatives acting on the Company’s behalf or Affiliates owns or has beneficial ownership of any securities of Icosavax. The Company agrees that, until the termination of the Standstill Period (as hereinafter defined), unless specifically invited in writing by the Board of Directors of Icosavax, neither the Company nor any of its Affiliates, subsidiaries or Authorized Representatives will in any manner, directly or indirectly, effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or participate in:

 

a)            any acquisition of (i) any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or beneficial ownership thereof) of Icosavax, or (ii) any assets (other than in the ordinary course of business), indebtedness or businesses of, Icosavax;

 

b)            any tender or exchange offer, merger or other business combination involving Icosavax;

 

c)            any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Icosavax;

 

d)            any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Icosavax;

 

e)            any action, whether alone or in concert with others, to seek or obtain representation on or to control or influence the management, the Board of Directors or the policies of Icosavax or to obtain representation on the Board of Directors of Icosavax;

 

f)            the entry into any arrangements with, or any action to advise, assist or knowingly encourage any third party, or any action to form, join or participate in a group or otherwise act in concert with any person, in each case, with respect to any of the foregoing; or

 

g)            any action which would or would reasonably be expected to require Icosavax to make a public announcement regarding any of the types of matters set forth in the foregoing.

 

The Company also agrees during such period not to request (in any manner that would reasonably be likely to cause Icosavax to be required to disclose publicly) that Icosavax or any of its Authorized Representatives, directly or indirectly, amend or waive any provision of this Section 19 (including this sentence).

 

 

The restrictions contained in this Section 19 shall not apply to (i) bona fide private negotiations between the Company, its Affiliates or its Authorized Representatives, on the one hand, and Icosavax, its Affiliates and its Authorized Representatives, on the other hand, with respect to a potential transaction between the parties hereto (including, for the avoidance of doubt, the submission of confidential proposals), or (ii) transactions in securities of Icosavax by a broker-dealer in its capacity as underwriter or market-maker or in connection with its proprietary trading or arbitrage activities or other similar activities in the ordinary course of business, provided that such activities are not in connection with any plan, arrangement, understanding or intention to influence, or affect control over, the management, Board of Directors or policies of Icosavax.

 

For purposes of this Section 19, the “Standstill Period” shall mean the earliest of (i) twelve months from the date of this Amendment; (ii) the execution of a final definitive agreement with respect to a transaction or series of transactions by the Company or its Affiliates and Icosavax; (iii) the execution of a final definitive agreement between Icosavax and any person or group other than the Company or its Affiliates, providing for any merger, acquisition, or other business combination, tender or exchange offer or any recapitalization, restructuring, or other extraordinary transaction of at least a majority of the (a) voting securities (or beneficial ownership thereof) of Icosavax or (b) consolidated assets of Icosavax; or (iv) the commencement of any tender or exchange offer, pursuant to which such person or group would beneficially own at least a majority of the outstanding voting power of Icosavax or the surviving parent entity and, within 10 business days after the commencement of such tender or exchange offer, the Board of Directors of Icosavax either (a) recommends in favor of such proposed tender or exchange offer or approves such tender or exchange offer or (b) has not recommended against such tender or exchange offer.”

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the parties have executed or caused this Amendment to be executed as of the date first written above.

 

	Icosavax, Inc.
	By:	/s/ Adam Simpson
	Name:	Adam Simpson
	Title:	Chief Executive Officer
	AstraZeneca UK Limited
	By:	/s/ Shaun Grady
	Name:	Shaun Grady
	Title:	SVP Business Development Operations

 

[Signature Page to First Amendment to Mutual Non-Disclosure Agreement]

 

 

 

Exhibit (d)(7)

 

Second AMENDMENT to

MUTUAL NON-DISCLOSURE AGREEMENT

 

This Second Amendment to Mutual Non-Disclosure Agreement (this “Amendment”) is entered into as of November 26, 2023, by and between Icosavax, Inc., a Delaware corporation (“Icosavax”), and AstraZeneca UK Limited, a company incorporated in England under No. 3674842 whose registered office is at 1 Francis Crick Avenue, Cambridge Biomedical Campus, Cambridge CB2 0AA, England on its behalf and on behalf of its Affiliates (as defined in the Agreement) (“Company”).

 

RECITALS

 

WHEREAS, Icosavax and the Company are parties to that certain Mutual Non-Disclosure Agreement, dated as of August 22, 2023, as amended by that certain First Amendment to Mutual Non-Disclosure Agreement, dated as of November 14, 2023 (as amended prior to the date hereof, the “Agreement”);

 

WHEREAS, Section 11 of the Agreement provides that the Agreement may not be amended except by a writing signed by both parties thereto; and

 

WHEREAS, pursuant to Section 11 of the Agreement, Icosavax and the Company desire to amend the Agreement as described herein.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the mutual agreements contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, Icosavax and the Company hereby agree as follows:

 

ARTICLE 1. Definitions; Effect of Amendment

 

1.1            Definitions. Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to them in the Agreement.

 

1.2            Effect of Amendment. The Agreement is amended as set forth in this Amendment. Except as specifically provided for in this Amendment, all of the terms and conditions of the Agreement shall remain in full force and effect. Each reference in the Agreement to “hereof,” “hereunder” and “this Agreement” shall, from and after the date of this Amendment, refer to the Agreement, as amended by this Amendment. No reference to this Amendment need be made in any instrument or document making reference to the Agreement. The provisions of Sections 11, 12, 13, 14, 15, 16 and 18 of the Agreement (as amended by this Amendment) shall apply mutatis mutandis to this Amendment and to the Agreement as modified by this Amendment. The captions and headings in this Amendment are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Amendment. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

 

 

ARTICLE 2. Amendment

 

2.1            Permitted Use. The definition of “Permitted Use” contained in the preamble of the Agreement is hereby amended in its entirety and restated to be defined as:

 

“use in evaluating or pursuing a business relationship between the Parties”

 

2.2            Entire Agreement. Section 18 is hereby amended in its entirety and restated as follows:

 

“This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such matters. For the avoidance of doubt, each Party hereby acknowledges and agrees (i) that all discussions and information shared by the parties since August 22, 2023 shall be governed by this Agreement and (ii) that to the extent any provision of this Agreement is inconsistent or conflicts with that certain Mutual Non-Disclosure Agreement, dated July 21, 2022, by and between the Parties (the “2022 NDA”), the terms of this Agreement shall govern and be controlling. The 2022 NDA shall otherwise remain in full force and effect.”

 

2.3            Data Protection Acknowledgement. Section 20 is hereby added to the Agreement as follows:

 

“Where a Party shares “Personal Data” (as that term, as well as “process”/“processing”, “Controller”, “Data Subject” are defined in all applicable laws and regulations relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time, including, but not limited to the EU General Data Protection Regulation (“GDPR”), as well as the UK Data Protection Act and the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (such laws and regulations, “Data Protection Laws”)) with the other Party, then the following shall apply: the Parties agree that the sharing and processing of Personal Data are necessary to support the purposes permitted pursuant to this Agreement. The Parties will comply with their respective obligations under all applicable Data Protection Laws in connection with this Agreement and each act as separate Controllers with regards to the processing of Personal Data they each undertake subject to this Agreement. Each Party represents and warrants that, in respect of any Personal Data it will share with the other Party, it has the authority to grant the rights contained in this Agreement between the Parties and to perform fully and completely its obligations thereunder and that the execution of this Agreement does not and will not violate any agreements which it has with third parties or any relevant laws, including but not limited to any Data Protection Laws.

 

Without prejudice to any other obligations or restrictions in this Agreement, where any Personal Data is shared with the Company, the Company will limit access to such Personal Data to those of its representatives and personnel who strictly need to access such Personal Data for the Permitted Use.

 

 

Icosavax may share certain information with the Company in a pseudonymized (key-coded) or de-identified form. The Company agrees that it shall maintain such information in such pseudonymized (key-coded) or de-identified form solely for the Permitted Use and shall not attempt to re-identify any individual to whom such information relates, including by using other information that the Company may lawfully possess and shall not seek to acquire further information for the purpose of re-identifying or which could reasonably be used to re-identify an individual to whom the any information disclosed by Icosavax relates.”

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the parties have executed or caused this Amendment to be executed as of the date first written above.

 

	Icosavax, Inc.
	By:	/s/ Cassia Cearley
	Name:	Cassia Cearley
	Title:	Chief Business Officer
	AstraZeneca UK Limited
	By:	/s/ Shaun Grady
	Name:	Shaun Grady
	Title:	SVP, Business Development Operations

 

[Signature Page to Second Amendment to Mutual Non-Disclosure Agreement]

 

 

 

Exhibit 107

 

Calculation of Filing Fee Table

 

Schedule TO-T

 

(Rule 14d-100)

 

ICOSAVAX, INC.

 

(Name of Subject Company (Issuer))

 

ISOCHRONE MERGER SUB INC.

 

ASTRAZENECA FINANCE AND HOLDINGS INC.

 

ASTRAZENECA PLC

 

(Names of Filing Persons — Offerors)

 

Table 1 - Transaction Valuation

 

		Transaction Valuation*				Fee Rate				Amount of Filing Fee**
Fees to be Paid		$	886,910,583.41				0.00014760			$	130,909.00
Fees Previously Paid		$	—							$	—
Total Transaction Valuation		$	886,910,583.41
Total Fees Due for Filing										$	130,909.00
Total Fees Previously Paid										$	—
Total Fee Offsets										$	—
Net Fee Due										$	130,909.00

 

*Estimated solely for purposes of calculating the filing fee. The transaction valuation was calculated as the sum of: (i) 50,599,032 issued and outstanding shares of common stock, par value $0.0001 per share, of Icosavax, Inc. (the “Company”), multiplied by $15.56, which is the average of the high and low prices reported by the Nasdaq Global Market on December 19, 2023; (ii) (a) 8,851,559 shares of Company common stock subject to outstanding Company stock options with a per-share exercise price less than $15.56, multiplied by (b) the excess of $15.56 over $6.93 (the weighted average exercise price of such Company stock options); (iii) 518,673 shares of Company common stock subject to outstanding Company restricted stock unit awards, multiplied by $15.56; (iv) 24,000 shares of Company common stock subject to outstanding Company performance stock unit awards, multiplied by $15.56; and (v) 948,374 shares of Company common stock reserved and purchasable by employees pursuant to the Company’s 2021 Employee Stock Purchase Plan, multiplied by $15.56.

 

**The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory for Fiscal Year 2024, effective October 1, 2023, issued August 25, 2023, by multiplying the transaction value by 0.00014760.

 

 

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