exv10w33






Exhibit 10.33




AMENDED AND RESTATED PROMISSORY NOTE




			
	 	 	 
	$578,848.22
	 	Date: May 7, 2008






     FOR VALUE RECEIVED, Mitchell J. Kelly (the “Maker”) hereby promises to pay to the order of
Novavax, Inc. (the “Company”) the principal sum of Five Hundred Thousand Eight Hundred Forty Eight
Dollars and Twenty Two Cents ($578,848.22), payable as provided below, upon the terms hereinafter
set forth.



Interest




     Interest shall accrue from the date of this Note on the unpaid principal amount at a rate
equal to 8.0% per annum, computed on the basis of the actual number of days elapsed and a year of
365 days from the date of this Note until the principal amount and all interest accrued thereon are
paid in full.



Payments




     Subject to earlier payments, including Prepayments, payments hereunder will be made by the
Maker to the Company in quarterly installments of principal and interest at the rate of 8.0% per
annum on the unpaid balance, as set forth in Exhibit A hereto (the “Quarterly Payments”). Maker has
reserved the right at any time to make payments before they are due without penalty or premium. Any
payment made by Maker before it is due, other then the application of proceeds from a Sale as
described below, for any reason is known as a Prepayment. Whenever the Collateral (as hereinafter
defined) is delivered in payment of all or any portion of the outstanding principal or accrued
interest due hereunder, such Collateral shall be valued at the price at which the Sale is effected.



     Pursuant to an Amended and Restated Pledge Agreement between Maker and the Company of even
date herewith (the “Pledge Agreement”), to secure the prompt payment when due of all of the
obligations of Maker hereunder, Maker hereby pledged, assigned, hypothecated, transferred, and
delivered to the Company a lien on and security interest in Ninety-Five Thousand (95,000) shares of
common stock of the Company owned by Maker (the “Collateral”). At any time during the relevant
periods set forth on Exhibit B 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 B, or as directed by Maker in accordance with the terms of the Pledge Agreement,
and the program for the Sale of Collateral by the Agent is not otherwise suspended as per the terms
of Section 2. (d) of the Pledge Agreement, the Agent (as defined in the Pledge Agreement) 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 this Note and then return any excess amount, if any, to Maker. The
proceeds of any Sale shall not be used to offset or otherwise reduce a Quarterly Payment, except to
the extent that the proceeds of the Sale(s) are sufficient to pay the Note in full and satisfy the
Obligations.



     Absent an Event of Default, the outstanding principal balance and accrued interest shall be
paid in full on June 30, 2009 (the “Maturity Date”).



Events of Default




     Maker shall be in default hereunder upon the occurrence of any of the following events (each,
an “Event of

Default”):




     (a) The nonpayment of principal or interest under this Note on the date the same shall
become due and payable, whether at maturity, on a Quarterly Payment due date, by
acceleration or
otherwise, and such amount has not been fully paid within fifteen (15) days after such
payment was due;




     (b) Maker files a petition under any provision of the Bankruptcy Code;




     (c) Maker is adjudged bankrupt or makes any general assignment for the benefit of its
creditors; or




     (d) The commencement of a case under or any action by Maker or any guarantor under any



 









 







insolvency, readjustment of debt, dissolution or liquidation law, statute or proceeding, or
the commencement of such action against Maker or any guarantor or for any of its property,
provided that such case is not dismissed within ninety (90) days after it is commenced.



     Maker shall notify Company in writing within five (5) days of the occurrence of an Event of
Default.



Acceleration




     Whenever there is an Event of Default, the entire unpaid amount of this Note shall be
immediately due and payable and the Company may exercise all of its rights and remedies set forth in the Pledge
Agreement.



Costs




     If an event of default occurs hereunder, Maker agrees to pay, upon demand, reasonable
attorneys’ fees and costs incurred by the Company with respect to the collection of amounts due hereunder.



Amendment and Restatement




     This Note amends and restates, and is in substitution for, that certain Note in the principal
amount of $447,600 payable to the order of the Company and dated March 21, 2002 (the “Existing
Note”). However, without duplication, this Note shall in no way extinguish, cancel or satisfy
Borrower’s unconditional obligation to repay all indebtedness evidenced by the Existing Note or
constitute a novation of the Existing Note. Nothing herein is intended to extinguish, cancel or
impair the lien priority or effect of any security agreement, pledge agreement or mortgage with
respect to Maker’s obligations hereunder and under any other document relating hereto.



Miscellaneous




     All payments under this Note shall be made at 9920 Belward Campus Drive, Rockville, Maryland
20850, in lawful currency of the United States, and without setoff, withholding or counterclaim.



     The Maker hereby waives presentment, demand, protest and notice of dishonor.



     This Note shall be governed as to validity, interpretation, construction and in all other
respects by the laws of the State of Maryland.



     IN WITNESS WHEREOF, the undersigned has caused this Note to be executed as of the date first
above written.



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Mitchell J. Kelly
 	 
	 	 	Mitchell J. Kelly 	 
	 	 	 	 



 









 






	 	 	 	 	 



Exhibit A




Quarterly Payments




	 	 	 	 	 
	Payment Date	 	Amount of Payment
	 
	June 30, 2008
	 	$	50,000	 
	September 30, 2008
	 	$	25,000	 
	December 31, 2009
	 	$	25,000	 
	March 31, 2009
	 	$	25,000	 
	June 30, 2009
	 	$	25,000	 






 









 






Exhibit B




	 	 	 	 	 
	Period	 	Sale Price Per Share
	 
	4/1/2008 to 6/30/2008
	 	$	6.22	 
	7/1/2008 to 9/30/2008
	 	$	5.81	 
	10/1/2008 to 12/31/2008
	 	$	5.67	 
	1/1/2009 to 3/31/2009
	 	$	5.52	 
	4/1/2009 to 6/30/2009
	 	$	5.36