REGISTRATION RIGHTS
AGREEMENT
This
REGISTRATION RIGHTS AGREEMENT (this “ Agreement
”), dated as of March 31, 2009, by and between Novavax,
Inc., a Delaware corporation with its headquarters located at 9920
Belward Campus Drive, Rockville, Maryland 20850 (the “
Company ”), and Satellite Overseas (Holdings) Limited
(together with its affiliates and any assignee or transferee of all
of its rights hereunder, the “ Investor
”).
In
connection with the Stock Purchase Agreement by and between the
parties hereto of even date herewith (the “ Stock Purchase
Agreement ”), the Company has agreed, upon the terms and
subject to the conditions contained therein, to issue and sell to
the Investor 12,500,000 shares (the “ Shares ”)
of the Company’s common stock, $0.01 par value per share (the
“ Common Stock ”); and
To
induce the Investor to execute and deliver the Stock Purchase
Agreement, the Company has agreed to provide certain registration
rights under the Securities Act and applicable state securities
laws.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Investor hereby agree as
follows:
1.
Definitions . As used in this Agreement, the following terms
shall have the following meanings:
(a) “
Affiliate ” means, with respect to any individual,
corporation, limited liability company, partnership, association,
trust, or any other entity (in each case, a “ Person
”), any other Person which, directly or indirectly, controls,
is controlled by or is under common control with such
Person.
(b) “
Exchange Act ” means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder.
(c) “
Form S-3 ” means such form under the Securities
Act as in effect on the date hereof or any registration form under
the Securities Act subsequently adopted by the SEC which permits
inclusion or incorporation of substantial information by reference
to other documents filed by the Company with the SEC.
(d) “
SEC ” means the Securities and Exchange
Commission.
(e) “
SEC Rule 144 ” means Rule 144 promulgated by
the SEC under the Securities Act.
(f) “
SEC Rule 145 ” means Rule 145 promulgated by
the SEC under the Securities Act.
(g) “
Securities Act ” means the Securities Act of 1933, as
amended, and the rules and regulations promulgated
thereunder.
(a)
Demand Registration Rights .
(i) If
the Company shall receive, at any time after December 31,
2009, a written demand from the Investor that the Company file a
registration statement under the Securities Act, then the Company
shall:
(1) as
soon as practicable, but in any event within sixty (60) days
of the receipt of such request, file a registration statement under
the Securities Act covering all of the Shares which the Investor
requests to be registered; and
(2) use
its best efforts to cause such registration statement to be
declared effective by the SEC as soon as practicable.
(ii) Notwithstanding
the foregoing, if the Company shall furnish to the Investor
requesting a registration statement pursuant to this
Section 2(a) a certificate signed by the Chief
Executive Officer of the Company stating that in the good faith
judgment of the board of directors of the Company it would be
materially detrimental to the Company and its stockholders for such
registration statement to become effective or to remain effective
as long as such registration statement would otherwise be required
to remain effective because such action would (i) materially
interfere with a significant acquisition, corporate reorganization
or other similar transaction involving the Company,
(ii) require premature disclosure of material information that
the Company has a bona fide business purpose for preserving as
confidential or (iii) render the Company unable to comply with
requirements under the Securities Act or Exchange Act, the Company
shall have the right to defer taking action with respect to such
filing for a period of not more than forty-five (45) days
after receipt of the request of the Investor; provided ,
however , that the Company may not utilize this right more
than twice in any twelve-month period and provided further
that the Company shall not register any securities for the account
of itself or any other stockholder during any such forty-five
(45) day period other than a registration statement relating
either to the sale of securities to employees of the Company
pursuant to a stock option, stock purchase or similar plan or an
SEC Rule 145 transaction, a registration on any form that does
not include substantially the same information as would be required
to be included in a registration statement covering the sale of the
Shares, or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt
securities that are also being registered.
(iii) All
expenses incurred in connection with a registration requested
pursuant to this Section 2(a) shall be paid as set
forth in Section 2(f) hereof.
(iv) Notwithstanding
anything in this Section 2(a) to the contrary, the
Company shall only be required to consummate one (1) offering
pursuant to this Section 2(a) during any three
(3) year period. A registration statement shall not be counted
until such time as such registration statement has been declared
effective by the SEC (unless the Investor withdraws its request for
such registration (other than as a result of information
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concerning the
business or financial condition or prospects of the Company which
is made known to the Investor after the date on which such
registration was requested) and elects not to pay the registration
expenses therefor pursuant to Section 2(f) .
(v) If
the Investor intends to distribute the Shares covered by its
request by means of an underwriting, the Investor shall so advise
the Company as part of its request.
(b)
Piggyback Registration .
(i) If
the Company proposes to register (including for this purpose a
registration effected by the Company for stockholders other than
the Investor) any of its stock or other securities under the
Securities Act in connection with the public offering of such
securities solely for cash (other than a registration statement
relating either to the sale of securities to employees of the
Company pursuant to a stock option, stock purchase or similar plan
or an SEC Rule 145 transaction, a registration on any form
which does not include substantially the same information as would
be required to be included in a registration statement covering the
sale of the Shares or a registration in which the only Common Stock
being registered is Common Stock issuable upon conversion of debt
securities which are also being registered) (a “ Piggyback
Registration ”), the Company shall, at such time,
promptly give the Investor written notice of such registration.
Upon the written request of the Investor given within twenty
(20) days after mailing of such notice by the Company, the
Company shall, subject to the provisions of
Section 2(e) , cause to be registered under the
Securities Act all of the Shares that the Investor has requested to
be included in such Piggyback Registration. The Company shall pay
the expenses of any such Piggyback Registration as set forth in
Section 2(g) hereof. The Company shall have the right
to terminate or withdraw any registration initiated by it under
this Section 2(b) prior to the effectiveness of such
registration whether or not the Investor has elected to include
Shares in such registration. The expenses of such withdrawn
registration shall be borne by the Company.
(ii) In
the event that the Investor elects to participate in a Piggyback
Registration that is effected by the Company for a stockholder of
the Company other than the Investor, the Investor agrees to
consider in good faith waiving its rights to participate in such
Piggyback Registration if the Company informs the Investor of its
good faith opinion that the inclusion of the Shares in such
offering would be detrimental to the offering.
(c)
Obligations of the Company . Whenever required under this
Section 2 to effect the registration of any of the
Shares, the Company shall, as expeditiously as reasonably
possible:
(i) prepare
and file with the SEC a registration statement with respect to such
Shares and use its reasonable best efforts to cause such
registration statement to become effective, and, upon the request
of the Investor, keep such registration statement effective for a
period of up to one hundred twenty (120) days or, if earlier,
until the distribution contemplated in the registration statement
has been completed; provided , however , that
(i) such 120-day period shall be extended for a period of time
equal to the period the Investor refrains from selling any
securities included in such registration at the request of an
underwriter of
3
Common Stock
(or other securities) of the Company and (ii) in the case of
any registration of the Shares on Form S-3 which are intended to be
offered on a continuous or delayed basis, subject to compliance
with applicable SEC rules, such 120-day period shall be extended,
if necessary, to keep the registration statement effective until
all such Shares are sold;
(ii) prepare
and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement;
(iii) furnish
to the Investor (a) a draft copy of the registration statement
and (b) such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the Investor may
reasonably request in order to facilitate the disposition of Shares
owned by it;
(iv) use
its reasonable best efforts to register and qualify the securities
covered by such registration statement under such other securities
or blue sky laws of such jurisdictions as shall be reasonably
requested by the Investor; provided that the Company shall
not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service
of process in any such states or jurisdictions, unless the Company
is already subject to service in such jurisdiction and except as
may be required by the Securities Act;
(v) in
the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such
offering;
(vi) provide
a transfer agent and registrar for all Shares registered pursuant
hereunder and a CUSIP number for all such Shares, in each case not
later than the effective date of such registration;
(vii) notify
the Investor, promptly after the Company receives notice thereof,
of the time when such registration statement has been declared
effective or a supplement to any prospectus forming a part of such
registration statement has been filed;
(viii) after
such registration statement becomes effective, notify the Investor
of any request by the SEC that the Company amend or supplement such
registration statement or prospectus.
(ix) notify
the Investor, at any time when a prospectus relating such
registration statement is required to be delivered under the Act,
of (i) the issuance of any stop order by the SEC in respect of
such registration statement, or (ii) the happening of any
event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing;
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(x) to
the extent not already listed, cause all Shares registered
hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed; and
(xi) use
its reasonable best efforts to furnish, at the request of the
Investor, on the date that Shares are delivered to the underwriters
for sale in connection with an underwritten registration pursuant
to Section 2(b) , if such securities are being sold
through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement
with respect to such Shares becomes effective, (i) an opinion,
dated as of such date, of the counsel representing the Company for
the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to the Investor, addressed to
the underwriters and to the Investor, and (ii) a
“comfort” letter dated as of such date from the
independent certified public accountants of the Company, in form
and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public
offering and reasonably satisfactory to the Investor, addressed to
the Investor, provided , however , that such
“comfort” letter shal
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