Investor
Rights Agreement
THIS
INVESTORS’ RIGHTS AGREEMENT (this “ Agreement
”) is made as of July 29, 2008, by and among Novavax, Inc., a
Delaware corporation (the “ Corporation ”),
Abingworth Bioventures V LP, and Abingworth Bioequities Master Fund
Limited (each an “ Investor ” and, collectively,
the “ Investors ” ).
WHEREAS, the
Corporation and the Investors are parties to that certain
Subscription Agreement of even date herewith (the “
Subscription Agreement ”); and
WHEREAS, the
Corporation and the Investors desire that the Investors have
certain rights in addition to those provided for in the
Subscription Agreement, namely a participation right with respect
to future securities offerings and the right to designate a person
to serve on the Corporation’s Board of Directors (the “
Board ”), all as more particularly set forth herein;
and
WHEREAS, the
Investors’ obligations under the Subscription Agreement are
conditioned upon the execution and delivery of this Agreement by
the Investors and the Corporation.
NOW, THEREFORE, in
consideration of the promises, covenants, and conditions set forth
herein and the Subscription Agreement, the parties hereto hereby
agree as follows:
1.1
Notice of Proposed Issuance . Except with respect to
Exempt Issuances (as defined below), in the event that the
Corporation proposes to offer, sell or issue any Corporation
Securities, the Corporation will deliver to the Investors a written
notice (an “ Offer Notice ”) prior to effecting
any such issuance (a “ New Issuance ”), offering
to the Investors the right, for a period of fifteen
(15) business days, to collectively purchase for cash at an
amount equal to the price or other consideration for which such
Corporation Securities are to be offered, sold or issued, an
aggregate number of such Corporation Securities, as determined by
the Investors in their sole discretion, up to 30% of the aggregate
amount of such Corporation Securities subject to such New Issuance
(the “ Investors’ Pro Rata Share ”);
provided , however , that, if the New Issuance is a
fully underwritten, firm commitment public offering under the
Securities Act of 1933, as amended, whereby the Corporation will
receive net proceeds in excess of $35,000,000, the Investors’
Pro Rata Share shall not exceed ten percent (10%) of the aggregate
amount of Corporation Securities subject to such New Issuance;
provided , further , however , that the
Investors shall have a collective right of oversubscription such
that if any holder of Corporation Securities fails to fully elect
any participation rights it may have with respect to such New
Issuance, the Investors shall have the right to purchase an
additional portion of such Corporation Securities up to the balance
of such New Issuance not so purchased by such non-participating
holder. The Offer Notice shall describe the Corporation Securities
proposed to be offered, sold or issued by the Corporation and
specify the number, price and payment terms thereof. The
Corporation
shall not offer, sell or issue any Corporation Securities, other
than Exempt Issuances, without first complying with this
Section 1 . For the avoidance of doubt, each of the
Investors shall have the right to allocate, in their sole
discretion, the amount of Corporation Securities it elects to
purchase pursuant to this Section 1 among them and
their respective affiliates.
1.2
Right to Purchase Corporation Securitie s
.
(a) The
Investors may accept the Corporation’s offer as to the full
number of securities offered to them in the Offer Notice or any
lesser number, by written notice thereof (an “ Exercise
Notice ”) given by it to the Corporation prior to the
expiration of the aforesaid fifteen (15) business day period.
An Exercise Notice shall specify the number (or amount) of
Corporation Securities to be purchased by the Investor as permitted
under this Section 1 .
(b) The
Corporation shall have ninety (90) days from the date of the
Offer Notice to consummate the proposed New Issuance at the price
and upon the same terms specified in the Offer Notice, provided
that, if such issuance is subject to regulatory approval, such
ninety (90) day period shall be extended until the expiration
of five (5) business days after all such approvals have been
received, but in no event later than one hundred eighty
(180) days from the date of the Offer Notice. At the
consummation of such New Issuance, the Corporation shall:
(x) have taken all necessary steps, including without
limitation, made all regulatory filings and obtained all
governmental, regulatory, shareholder and third party approvals and
consents, and otherwise complied with all applicable laws, rules
and regulations, with respect to the New Issuance; (y) execute and
deliver to each Investor such transaction documents as are
customary for the sale of securities, which shall contain, among
other customary provisions, substantially the same representations,
warranties, covenants and conditions as are contained in the
Subscription Agreement; and (z) issue certificates
representing the Corporation Securities to be purchased by each
Investor registered in the name of such Investor, against payment
by such Investor of the purchase price for such Corporation
Securities specified in the Exercise Notice. Notwithstanding
anything herein to the contrary, if the New Issuance is an
underwritten offering, the Investors shall not be obligated as a
condition to the exercise and consummation of its rights under this
Section 1 to enter into any lock-up, indemnity or other
agreement with the underwriters of such offering, unless and until
all of the Corporation’s directors and principal executive
officers, and other investors who own as much as or a greater
percentage of Corporation Securities as the Investors, enter into
substantially similar agreements with such underwriters; provided,
that, in any event, any such agreement shall be in form and
substance as is customary for such offerings.
(c) If
the Corporation proposed to issue any class of Corporation
Securities after the time period in Section 1.2(b)
above, it shall again comply with the procedures set forth in this
Section 1 . Any proposed offer, sale or issuance of
Corporation Securities on terms more favorable than those described
in the Offer Notice, as well as any subsequent proposed offer, sale
or issue of any Corporation Securities by the Corporation, shall
again be subject to the participating rights of the Investors set
forth in this Section 1 . Without the prior written
consent of each Investor, except with respect to Exempt Issuances,
the Corporation shall
-2-
|
