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Exhibit 10.34 AMENDED AND RESTATED PLEDGE
AGREEMENT THIS AMENDED AND RESTATED PLEDGE AGREEMENT (this
"Agreement") is made and entered into as of this 7th day of May,
2008 by and among MITCHELL J. KELLY, an individual (the "Borrower")
and NOVAVAX, INC., a Delaware corporation (the "Company").
RECITALS
A. WHEREAS, in 2002, the Company
had a pre-existing plan whereby Novavax corporate officers and
directors who had received Novavax stock options were eligible to
exercise such options with payment in the form of a non-recourse
interest-bearing promissory note.
B. WHEREAS, in 2002, the
Borrower exercised his right to pay the exercise price of 95,000
options received by Borrower through the delivery of a full
recourse, interest-bearing promissory note (the "Original Note") in
the amount of $447,600, which accrued interest monthly at the rate
of 5.07%. C. WHEREAS, such
Original Note was secured by 95,000 shares of common stock of the
Company (the "Collateral") pursuant to a pledge agreement between
the Borrower and the Company, dated as of March 21, 2002 (the
"Original Pledge Agreement").
D. WHEREAS, the Original Note
was initially payable upon the earlier to occur of the following:
(a) payable in full upon the date on which the Borrower ceased
for any reason to be a director of the Company, (b) payable in
part to the extent of net proceeds, upon the date on which the
Borrower sold all or any portion of the Collateral, or
(c) payable in full on March 21, 2007.
E. WHEREAS, in May 2006,
the Borrower resigned as a director of the Company. Concurrent with
Borrower’s resignation, the Company extended the maturity of
the Original Note, to be payable upon the earlier to occur of the
following: (a) payable in part to the extent of net proceeds
upon, the date on which the Borrower sold all or any portion of the
Collateral, or (b) payable in full on December, 31, 2007.
F. WHEREAS, in
December 2007, the Borrower and the Company entered into
discussions concerning possible further amendments to the Original
Note. On December 31, 2007 Borrower did not repay the amount
due under the extended maturity date of the Original Note, which
constituted a default of the Note (a "Designated Default").
G. WHEREAS, Borrower has
requested, and the Company has agreed, to amend and restate the
Original Note to provide, among other things, that the entire
amount outstanding as of December 31, 2007, including accrued
interest, be treated as principal, to increase the interest rate to
8.0% per annum, and to permit the Company to sell the Collateral in
accordance with the terms of this Agreement.
H. WHEREAS, the Borrower had
delivered the Amended and Restated Promissory Note (the "Note") of
even date hereof, which provides for $578,848.22 as outstanding
principal (together with accrued interest at a rate of 8.0% per
annum, the "Obligations").
I. WHEREAS, the Borrower desires
to affirm his pledge of the Collateral and permit the Company to
cause the Collateral to be sold in accordance with the terms of
this Agreement.
AGREEMENT In
consideration of the Recitals and the mutual promises and covenants
contained herein and intending to be legally bound hereby, the
Company and the Borrower agree as follows:
1. Pledge. The
Borrower hereby assigns, transfers, sets over and pledges to the
Company as collateral to secure the payment and performance of any
and all Obligations of the Borrower to the Company arising under
the Note, 95,000 shares of common stock of Novavax, Inc. (the
"Collateral"), and herewith delivers to the Company the
certificates evidencing the same, endorsed in blank or with duly
executed stock powers attached.
2. Sale of
Collateral.
(a) Borrower
and the Company hereby appoint Oppenheimer as their broker (the
"Agent") to perform any of the Sales described in this Agreement.
(b) At
any time during the relevant periods set forth on
Exhibit A that the trading price of the Company’s
common stock, as reported on NASDAQ Global Market, is at or exceeds
the corresponding Sale Price set forth on Exhibit A ,
and the program for the Sale of Collateral by the Agent is not
otherwise suspended as per the terms of Section 2.
(d) below, the Agent shall sell all of the Collateral (a
"Sale"). The Agent shall apply all proceeds from the Sale(s) first
to the outstanding amount due under the Note and then return the
excess amount, if any, to Borrower. Each time Agent places a trade
to effect a Sale, the trade shall be a limit order at no less than
the Sale Price set forth on Exhibit A .
(c) Borrower
may direct Agent to place limit trades to effect a Sale of the
Collateral, provided that such Sales are at no less than the Break
Even Price set forth on Exhibit B .
(d) Borrower
may direct Agent to effect a Sale of the Collateral at any price,
and Agent’s ability to sell the Collateral at the prices set
forth on Exhibit A shall be suspended, at any time after
(i) the Company issues a press release or makes a filing with
the Securities and Exchange Commission ("SEC") announcing a
transaction with a third party, approved by the Company’s
Board of Directors, that will result in the Change in Control of
the Company (a "Change in Control Agreement"), (ii) the
Company or a third party issues a press release or makes a filing
with the SEC announcing that the Company and the third party have
entered into discussions that could lead to the Change in Control
of the Company, (iii) a third party files a Schedule TO
with the SEC for the purpose of acquiring at least a majority of
the outstanding shares of the Company’s common stock through
a tender offer (a "Tender Offer"), or (iv) a third party
issues a press release or makes a filing with the SEC announcing
that it may seek to effect the Change in Control of the Company. A
Change in Control means (1) a sale, lease, license or other
disposition of all or substantially all of the assets of the
Company, (2) a consolidation or merger of the Company with or
into any other corporation or other entity or person, or any other
corporate reorganization, in which the shareholders of the Company
immediately prior to such consolidation, merger or reorganization,
own less that fifty percent (50%) of the outstanding voting power
of the surviving entity and its parent following the consolidation,
merger or reorganization, or (3) any transaction or series of
related transactions involving a person or entity, or a group of
affiliated persons or entities (but excluding any employee benefit
plan or related trust sponsored or maintained by the Company or an
affiliate) in which such persons or entities that were not
shareholders of the Company immediately prior to their acquisition
of Company securities as part of such transaction become the
owners, directly or indirectly, of securities of the Company
representing more than fifty percent (50%) of the combined voting
power of the Company’s then outstanding securities other than
by virtue of a merger, consolidation or similar transaction and
other than as part of a private financing transaction by the
Company. Borrower’s right to direct Agent to effect a Sale
under this subsection (d) shall be suspended,
and Agent’s ability to sell the Collateral at the prices
set forth on Exhibit A shall be reinstated, if (i) the
Company issues a press release announcing the termination of the
Change in Control Agreement, (ii) the Tender Offer is
withdrawn, (iii) the Company or a third party issues a press
release or makes a filing with the SEC announcing that discussions
about a possible Change in Control of the Company have terminated,
or (iv) a third party issues a press release or makes a filing
with the SEC announcing that it is no longer interested in seeking
to effect the Change in Control of the Company.
(e) The
proceeds of any Sale, regardless of whether such Sale was initiated
by Agent or directed by Borrower, shall not be used to offset or
otherwise reduce a Quarterly Payment (as defined in the Note),
except to the extent that the proceeds of the Sale (share
sufficient to pay the Note in full and satisfy the Obligations.
(f) In
the event that the proceeds of any Sale(s) is insufficient to
satisfy the Obligations, the terms set forth in this Agreement
shall apply to the Obligations still outstanding.
(g) In
executing the Sale(s), the Company and the Agent shall comply with
the Securities Act of 1933, as amended, and all rules and
regulations thereunder. 3.
Representations and Warranties of Borrower.
(a)
Recitals. To the best of Borrower’s knowledge, the
Recitals in this Agreement are true and correct in all material
respects.
(b)
Enforceability. This Agreement is the legal, valid and
binding obligation of Borrower, enforceable against Borrower in
accordance with its terms.
(c)
No Violation. Borrower’s execution, delivery and
performance of this Agreement do not and will not (i) violate
any law, rule, regulation or court order to which Borrower is
subject; (ii) conflict with or result in a breach of any
agreement or instrument to which Borrower is party or by which it
or its properties are bound, or (iii) result in the creation
or imposition of any lien, security interest or encumbrance on any
property of Borrower, whether now owned or hereafter acquired,
other than liens in favor of the Company.
(d)
Title to Collateral. Borrower has good and marketable title
to all of the Collateral, free and clear of any mortgage, pledge,
lien, encumbrance or charge of any nature whatsoever, except the
pledge created by this Agreement in favor of the Company.
(e)
Indebtedness. There is no material breach or default of the
terms of any other agreement or instrument evidencing indebtedness
of the Borrower, except for the Designated Default.
(f)
Obligations Absolute. The obligation of the Borrower to
repay the Obligations, including all interest accrued thereon, is
absolute and unconditional, and there exists no right of set off or
recoupment, counterclaim or defense of any nature whatsoever to
payment of the Obligations.
4. Representations and Warranties of Company
(a)
Recitals. To the best of the Company’s knowledge, the
Recitals in this Agreement are true and correct in all material
respects.
(b)
Enforceability. This Agreement is the legal, valid and
binding obligation of the Company, enforceable against the Company
in accordance with its terms.
(c)
No Violation. The Company’s execution, delivery and
performance of this Agreement d
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