exv10w7







Exhibit 10.7





THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A

CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED

WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION.




AMENDED AND RESTATED TECHNICAL SERVICES AGREEMENT




     This Technical Services Agreement (the “Agreement”) is made as of June 29, 2009 (the
“Execution Date”), by and between Novavax, Inc., a Delaware corporation having an address
at 9920 Belward Campus Drive, Rockville, Maryland 20850, United States of America (“Novavax”)
and CPL Biologicals Private Limited, a limited company incorporated under the laws of India having
an address at “Cadila Corporate Campus”, Sarkhej-Dholka Road, Bhat, Ahmedabad — 382210, Gujarat,
India (“Company”). Novavax and Company are sometimes referred to herein each individually
as a “Party” and collectively as the “Parties.”



RECITALS




          Whereas, the Company, a joint venture formed pursuant to an Amended and Restated  Joint Venture Agreement
dated as of the date hereof, as amended from time to time (the “Joint Venture Agreement”) between Novavax and Cadila
Pharmaceuticals Limited, organized under the laws of India (“Cadila”), was formed for developing,
manufacturing, marketing and selling certain pharmaceutical and medicinal products to cater the
needs of the market in India;




          Whereas, Novavax and Cadila intend that Company will establish U.S. and India cGMP
acceptable manufacturing facilities (the “Manufacturing Facilities”) in India and the structure for
developing, producing, marketing and selling pharmaceutical products either directly or through
partners / contractors as further described in the Joint Venture Agreement;




          Whereas, Novavax has granted the Company a license to certain of Novavax’s Patents
and Know-How for the Company to develop and commercialize Novavax Products under the Novavax
Licenses (as each such term is defined in the Joint Venture Agreement); and




          Whereas, Novavax has significant subject matter expertise in biologics, preclinical
development, clinical development, process development and manufacturing scale up and general
manufacturing related services.




          Now, Therefore, in consideration of the foregoing premises and the mutual covenants
set forth below, and for other good and valuable consideration, the receipt of which is hereby
acknowledged, Novavax and Company hereby agree as follows:




ARTICLE 1

DEFINITIONS




     Section 1.1. References in the body of this Agreement to “Sections” will refer to the sections
of this Agreement. In addition, as used herein, the following initially capitalized terms will
have the following meanings:



               (a) “Affiliate” means any corporation or other business entity controlled by, controlling, or
under common control with a Party, with “control” (for purposes of this Section 1.1) meaning (a)
direct or indirect beneficial ownership of fifty percent (50%) or



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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A

CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED

WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION.



more of the voting stock (or, in the case of a non-corporate entity, of the equity interests
with the power to direct the management and policies) of such corporation or other business entity,
or (b) possession, directly or indirectly, of the power to direct, or cause the direction of, the
management and policies of such corporation or other business entity, whether through the ownership
of voting securities, by contract, or otherwise; provided that for purposes of this Agreement,
Novavax and Cadila shall not be deemed to be an Affiliate of Company.




               (b) “Bankruptcy Event” means, with respect to a specified Person, (i) the filing by such
Person in any court or agency, pursuant to any statute or regulation of any state or country, a
petition in bankruptcy or insolvency or for reorganization or for an the appointment of a receiver
or trustee of such other Party or of its assets, (ii) the filing against such Person of an
involuntary petition for any bankruptcy or insolvency proceeding which petition is not dismissed
within sixty (60) days after filing, (iii) the making by such Person of an assignment for the
benefit of its creditors, (iv) the taking of possession of a substantial part of the assets of such
Person by a lien holder or other encumbrancer, or (v) the levy or enforcement of any distress,
execution or other process upon or against a substantial part of the assets of such Person.



               (c) “Business Day” means any day other than a Saturday, Sunday or other day on which the
principal commercial banks located in Mumbai, India are not open for business during normal
business hours.



               (d) “Company Indemnitee” has the meaning set forth in Section 6.2.



               (e) “Consulting Services” shall mean the services set forth in Section 2.3.



               (f) “Development and Regulatory Services” shall mean the services set forth in Section 2.2.



               (g) “Effective Date” means the date on which the condition precedent set forth in Article 7 is
first satisfied.



               (h) “Governmental Authority” means any court, agency, department or other instrumentality of
any foreign, federal, state, county, city or other political subdivision.



               (i) “Improvements” means any enhancements or modifications in the production process
concerning Novavax Products.



               (j) “Indeminitee” means a Company Indemnitee or Novavax Indemnitee, as applicable.



               (k) “Indemnitor” means the Company or Novavax, as applicable.



               (l) “Joint Venture Agreement” has the meaning set forth in the Recitals.



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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A

CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED

WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION.




               (m) “Know-How” means any tangible and intangible (a) techniques, technology, practices, trade
secrets, inventions (whether patentable or not), methods, protocols, processes, formulas,
knowledge, know-how, skill, experience, records, documents, data and results (including
pharmacological, toxicological, non-clinical and clinical test data and results), analytical and
quality control data, results or descriptions, software and algorithms and (b) compositions of
matter, cells, cell lines, assays, animal models and physical, biological or chemical material.



               (n) “Laws” means applicable laws, statutes, rules, regulations, ordinances and other
pronouncements having the effect of law of the United States and India.



               (o) “Losses” has the meaning set forth in Section 6.1.



               (p) “Manufacturing Facilities” has the meaning set forth in the Recitals.



               (q) “Manufacturing Services” shall mean the services set forth in Section 2.1.



               (r) “Novavax Indemnitee” has the meaning set forth in Section 6.1.



               (s) “Novavax Licenses” has the meaning set forth in the Recitals.



               (t) “Novavax Product” has the meaning set forth in the Joint Venture Agreement.



               (u) “Patents” mean any and all (a) issued patents and inventors’ certificates in the Territory
and re-examinations, reissues, renewals, extensions, registrations, substitutions, supplementary
protection certificates and term restorations with respect to any of the foregoing, and (b) pending
applications for patents and inventors’ certificates in the Territory and patents that issue
therefrom, including, without limitation, provisional applications, continuations,
continuations-in-part, divisional and substitute applications with respect to any of the foregoing.



               (v) “Regulatory Approval” means any and all approvals (including supplements, amendments, pre-
and post-approvals, pricing and reimbursement approvals), licenses, registrations or authorizations
of any national, supra-national, regional, state or local regulatory agency, department, bureau,
commission, council or other governmental entity, that are necessary for the manufacture,
distribution, use or sale of a Novavax Product in a regulatory jurisdiction in the Territory.



               (w) “Services” means Consulting Services, Development and Regulatory Services and Technology
Transfer Services.



               (x) “Technology Transfer Services” means the Manufacturing Services and other technology
transfer services described in Section 2.1:



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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A

CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED

WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION.




               (y) “Territory” means India.



               (z) “Third Party” means a person or entity other than (a) Novavax, (b) Company, (c) an
Affiliate of Novavax or (d) an Affiliate of Company.



ARTICLE 2

SERVICES




     Section 2.1. Technology Transfer Services.



               (a) Promptly after the Effective Date (but in any event within ninety (90) days thereof),
Novavax shall disclose and provide to the Company the Know-How set forth on Exhibit 1 (the
“Manufacturing Know-How”) and any other relevant manufacturing-related Know How licensed to the
Company by Novavax to allow the Company to establish a Manufacturing Facility for Novavax Products.
As reasonably requested by the Company, Novavax shall disclose and provide to the Company any
Improvements to the Manufacturing Know-How made by Novavax.



               (b) To effectuate the transfer and implementation of the Manufacturing Know-How and the
establishment of the Manufacturing Facility for Novavax Products, Novavax shall provide the
Manufacturing Services set forth on Exhibit 2. As soon as practicable after the date of
this Agreement, the Representative and the Company shall develop a reasonable schedule pursuant to
which the Manufacturing Services will be provided.



               (c) Promptly after the Effective Date (but in any event within sixty (60) days thereof), and
thereafter as reasonably requested by the Company, Novavax shall disclose and provide to the
Company any Know-How licensed to the Company by Novavax under the Novavax Licenses (which is not
addressed in Section 2.1(a) above), and shall provide reasonable assistance and cooperation to the
Company for the purpose of effectively transferring such Know-How and enabling the Company to use
such Know-How within the scope of the Novavax Licenses.



     Section 2.2. Development and Regulatory Services.



               (a) To assist the Company in developing and obtaining Regulatory Approval for Novavax Products
in the Territory, Novavax shall provide the Development and Regulatory Services set forth on
Exhibit 3.



               (b) The Company and the Representative shall coordinate the execution and delivery of the
Development and Regulatory Services. The Development and Regulatory Services shall be provided at
reasonable times as shall be mutually agreed to by the Company and the Representative.



     Section 2.3. Consulting Services.



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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A

CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED

WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION.




               (a) At the Company’s request, Novavax may provide consulting services to Company in the areas
of biologics, preclinical development, clinical development, process development, manufacturing
scale up and general manufacturing related services and any other areas in which Novavax has
subject matter expertise.



               (b) Upon the Company’s request for and upon Novavax’s agreement to provide such Consulting
Services, the Company and the Representative shall develop a description of the desired Consulting
Services and a plan for completing the requested Consulting Services, including an outline of the
level of staffing required and an estimated timeline for completion.



     Section 2.4. Novavax Representative. Novavax designates James Robinson (the
“Representative”) as the Company’s primary contact for all Services provided under this Agreement
and Novavax shall make such Representative reasonably available to the Company. The Company shall
direct all high-level communications regarding the Services and this Agreement to the
Representative. Novavax may substitute the Representative at any time upon notice to the Company.



     Section 2.5. Impracticability. Novavax shall not be obligated to provide any Service
to the extent the performance of such Service becomes commercially impracticable as a result of
events or circumstances outside of the control of Novavax, including, to the extent the performance
of such Services would require Novavax to breach any applicable Law or could reasonably be expected
to result in the breach of any applicable contract, license, or other agreement; provided however,
that Novavax represents and warrants to Company that, as of the date of this Agreement, Novavax has
no knowledge of any event or circumstance that would cause the performance of Services to violate
any applicable Law or could reasonably be expected to result in the breach of any applicable
contract, license or other agreement. Novavax shall provide Company with reasonable notice of the
occurrence of any event which would cause Novavax to curtail or cease any Service pursuant to this
Section 2.5.



     Section 2.6. Rights to Know-How. Novavax shall retain all of its right, title and
interest in any Know-How provided to the Company hereunder, subject to the Novavax Licenses.
Company shall use such Know-How solely in accordance with the terms and conditions of such Novavax
Licenses. New developments derived by the Company from the Know-How provided by Novavax hereunder
shall be subject to the terms and conditions of the Novavax License with respect thereto, if and to
the extent applicable.



ARTICLE 3

EXPENSES




     Section 3.1. Expenses. The Company shall reimburse Novavax for its reasonable
out-of-pocket expenses incurred in connection with the performance of the Services hereunder,
including travel.



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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A

CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED

WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION.




     Section 3.2. Invoices. By the tenth business day of each month, Novavax shall submit
to the Company a report (the “Invoice”) showing a list of all out-of-pocket expenses
incurred in performance of the Services during the preceding month.



     Section 3.3. Payment Dates. The Company shall pay all Invoices within thirty (30)
days of receipt. Late payments shall bear interest at the lesser of [* * *] per annum or the
maximum rate allowed by applicable Law. All payments due under this Agreement will be made in U.S.
dollars by wire transfer to a bank account designated by Novavax.



ARTICLE 4

REPRESENTATIONS AND WARRANTIES




     Section 4.1. Mutual Warranties. Each of Novavax and Company hereby represents,
warrants and covenants to the other as of the Execution Date that:



               (a) it has full corporate power and authority to enter into this Agreement and to carry out
the provisions hereof, and this Agreement is legally binding upon it and enforceable in accordance
with its terms.



               (b) the execution, delivery and performance of this Agreement by it does not conflict with any
agreement, instrument or understanding, oral or written, to which it is a party or by which it may
be bound, nor violate any Law of any governmental authority having jurisdiction over it;



               (c) all necessary consents, approvals and authorizations of all governmental authorities and
other persons required to be obtained by such Party to enter into, or perform its obligations
under, this Agreement have been obtained.



     Section 4.2. DISCLAIMER OF WARRANTIES. Novavax represents that it will use
commercially reasonable efforts to provide a high standard of professional service. However,
Novavax, as a provider of such services, cannot guarantee success, thus, except as expressly set
forth herein, THE SERVICES AND KNOW-HOW PROVIDED BY NOVAVAX HEREUNDER, AND THE IMPROVEMENTS
KNOW-HOW PROVIDED BY THE COMPANY HEREUNDER, ARE PROVIDED “AS IS.” EACH PARTY EXPRESSLY DISCLAIMS
ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES
OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING,
USAGE OR TRADE PRACTICES, IN ALL CASES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.



ARTICLE 5

CONFIDENTIALITY




     The Parties anticipate that under this Agreement each Party will provide confidential and/or
proprietary information to the other Party and that the use and disclosure of such



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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A

CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED

WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION.



information shall be governed by Article 18 of the Joint Venture Agreement which is hereby
incorporated by reference.




ARTICLE 6

INDEMNIFICATION




     Section 6.1. Indemnification by Company. Company will indemnify, defend and hold
harmless Novavax, its affiliates, directors, officers, and employees (each a “Novavax Indemnitee”)
from and against any and all liability, loss, damage or expense (including without limitation
reasonable attorneys fees) it may suffer as the result of Third Party claims, demands, actions and
proceedings brought against it (collectively, “Losses”) to the extent such Losses result from the
use of the Products by Company or any human subject in a clinical trial, or which arise out of
Company’s making, testing, using or selling products or processes incorporating the Products;
except to the extent that Novavax is obligated to indemnify Company as provided below.



     Section 6.2. Indemnification by Novavax. Novavax will indemnify, defend and hold
harmless Company, its affiliates, directors, officers, and employees (each a “Company Indemnitee”)
from and against any and all Losses which arise out of the gross negligence, willful misconduct or
breach of a covenant, representation or warranty in this Agreement by Novavax, its affiliates or
employees.



     Section 6.3. Procedures. Indemnitor’s agreement to indemnify, defend and hold
harmless an Indemnitee is conditioned on Indemnitee (a) providing prompt written notice of any
claim giving rise to an indemnification obligation hereunder but only if a failure to so notify
causes prejudicial harm to the Indemnitor’s ability to defend, (b) permitting Indemnitor to assume
full responsibility to investigate, prepare for and defend against any such claim, (c) providing
reasonable assistance in the defense of such claim at Indemnitor’s reasonable expense, and (d) not
compromising or settling such claim without Indemnitor’s advance written consent



     Section 6.4. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT (A) SUCH PARTY MAY BE
REQUIRED TO INDEMNIFY THE OTHER PARTY UNDER THIS ARTICLE 6, OR (B) OF A BREACH OF A PARTY’S
RESPONSIBILITIES PURSUANT TO ARTICLE 5, NEITHER PARTY NOR ITS RESPECTIVE AFFILIATES WILL BE LIABLE
TO THE OTHER PARTY FOR ANY SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER THIS
AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE.



ARTICLE 7

CONDITION PRECEDENT




     This Agreement, including the obligations and benefits herein, shall only become effective if,
and shall automatically become effective upon, satisfaction of the following condition precedent;
provided that such condition is satisfied before [* * *]:



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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A

CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED

WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION.




     Obtain any required  approval of the Foreign Investment Promotion Board of India and the Reserve Bank of India  for the issuance to Novavax of [* * *] shares of Company, or such other amount as set forth in the Joint Venture Agreement.



     If the foregoing occurs before [* * *], the first Party receiving documented evidence thereof
shall notify the other and include in such notice the date thereof which date shall thereupon be
the Effective Date hereunder.



ARTICLE 8

TERM




     Section 8.1. Term. The initial term of this Agreement is four years commencing on
March 31, 2009, and unless terminated earlier pursuant to Section 8.2 or 8.3, shall continue until
March 31, 2013 (the “Initial Term”). This Agreement shall automatically renew for successive
additional one-year periods (each a “Renewal Term”) unless either party gives the other party
written notice of their intention to terminate the Agreement at least thirty (30) days prior to the
end of any such term (each Renewal Term and the Initial Term shall collectively be referred to
herein as the “Term”).



     Section 8.2. Termination by Novavax. Novavax shall have the right to terminate this
Agreement upon the happening of any of the following events:



               (a) Company fails to pay or cause to be paid any material sum which has become due to Novavax
under this Agreement and has not cured such failure to pay within thirty (30) days after written
notice from Novavax to Company identifying such payment failure;



               (b) Company is in material breach of or default under this Agreement other than any payment
obligation referred to in clause (a) above and has not cured such breach or default within ninety
(90) days after written notice from Novavax to Company specifying the nature of such breach or
default; and



               (c) Immediately upon notice to Company if a Bankruptcy Event occurs with respect to Company.



     Section 8.3. Termination by Company. Company may terminate this Agreement if Novavax
is in material breach of or default under this Agreement and has not cured such breach or default
within ninety (90) days after written notice from Company to Novavax specifying the nature of such
breach or default.



     Section 8.4. Termination Upon Dissolution of Company. This Agreement will terminate
automatically upon the dissolution, winding up, or liquidation of the Company.



     Section 8.5. Termination Upon Termination of the Joint Venture Agreement. This
Agreement will terminate automatically if Novavax terminates the Joint Venture Agreement by
providing a Notice of Termination under and pursuant to Section 11.2 of the Joint Venture Agreement



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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A

CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED

WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION.




     Section 8.6. Consequences of Termination. Upon termination of this Agreement by
Company pursuant to Section 8.3, Company will remain liable for the payment of any outstanding
Invoices pursuant to Section 3.5, but may offset such payment obligations by any contract damages
that are determined to be due to Company pursuant to Section 9.2. Upon termination of this
Agreement by Novavax pursuant to Section 8.2, all outstanding Invoices shall be due and payable
immediately and shall bear interest at a rate of the lesser of [* * *] per annum and the maximum
rate permitted by applicable Law. Termination of this Agreement shall be without prejudice to or
limitation on any other remedies or any accrued obligations of either Party. In addition, Articles
5, 6, 8.6 and 9 and any necessary definitions in Article 1 will survive any termination or
expiration of this Agreement.



ARTICLE 9

MISCELLANEOUS




     Section 9.1. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of India.



     Section 9.2. Dispute Resolution. Any dispute arising between the Parties out of or in
connection with the implementation or interpretation of this Agreement shall, if not settled
amicably within ninety (90) days from the date that the dispute arose, be finally settled by three
(3) arbitrators. Each Party shall be entitled to appoint one (1) arbitrator and the two (2) so
appointed shall appoint the third arbitrator in accordance with the Indian Arbitration and
Conciliation Act, 1996. It is hereby agreed that Part I of the Indian Arbitration and Conciliation
Act, 1996 shall not apply to the arbitration under this Agreement. The language of the arbitration
proceedings shall be English and its place shall be Singapore. The arbitral award or determination
shall be final and subject to no appeal and shall deal with the question of costs of arbitration
and all matters related thereto.


The Parties agree that it would be impossible or inadequate to measure and calculate their damages
from any breach of the Agreement though great and irreparable. Accordingly, each Party agrees that
if the other Party breaches this Agreement, the non-breaching party will have available, in
addition to any other right or remedy available, the right to obtain an injunction from a court of
competent jurisdiction restraining such breach or threatened breach and specific performance of any
provision of this Agreement.




     Section 9.3. Force Majeure. Neither party will be responsible for delays or failures
in performance resulting from causes beyond the reasonable control of such party (except for any
delay or failure to pay amounts due hereunder), including without limitation fire, explosion,
flood, war, strike, or riot, provided that the nonperforming party uses commercially reasonable
efforts to avoid or remove such causes of nonperformance and continues performance under this
Agreement with reasonable dispatch whenever such causes are removed. Either party shall have the
right to immediately terminate this Agreement should such force majeure event continue for more
than ninety (90) days.



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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A

CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED

WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION.




     Section 9.4. Notices. Any notice, request, demand, waiver, consent, approval or other
communication permitted or required under this Agreement ("Notice") will be in writing, will refer
specifically to this Agreement and will be deemed given only if sent by electronic mail (with
receipt confirmed), facsimile transmission (with transmission confirmed) or by an internationally
recognized delivery service that maintains records of delivery, addressed to the Parties at their
respective addresses specified in this Section 9.4 or to such other address as the Party to whom
notice is to be given may have provided to the other Party in accordance with this Section 9.4.
Any notice delivered by electronic mail or facsimile will be confirmed by a hard copy delivered as
soon as practicable thereafter by an internationally recognized overnight delivery service. Such
Notice will be deemed to have been given on the second Business Day (at the place of delivery)
after deposit with an internationally recognized delivery service. This Section 9.4 is not
intended to govern the day-to-day business communications necessary between the Parties in
performing their obligations under the terms of this Agreement.



	 	 	 
	If to Novavax:

	 	Novavax, Inc.
	 

	 	9920 Belward Campus Drive
	 

	 	Rockville, Maryland 20850
	 

	 	Attn: Ray Hage, Senior Vice President
	 

	 	Email: Rhage@Novavax.com
	 

	 	Facsimile No.: 240-268-2122
	 
	 	 
	If to Company:

	 	CPL Biologicals Private Limited
	 

	 	Cadila Corporate Campus
	 

	 	Sarkhej-Dholka Road
	 

	 	Bhat, Ahmedabad — 382210
	 

	 	Gujarat, India
	 

	 	Attn: Dr. Rajiv I. Modi, Managing Director
	 

	 	Email: rimodi@cadilapharma.co.in
	 

	 	Facsimile No.: +91 (02718) 225031






     Section 9.5. Third Party Contractors. The Parties will perform their obligations
under this Agreement as Third Party contractors and nothing contained in this Agreement will be
construed to be inconsistent with such relationship or status. This Agreement will not constitute,
create or in any way be interpreted as a joint venture or partnership of any kind.



     Section 9.6. Headings. The headings for each article and section in this Agreement
have been inserted for convenience of reference only and are not intended to limit or expand on the
meaning of the language contained in the particular article or section.



     Section 9.7. No Strict Construction. This Agreement has been prepared jointly and
will not be strictly construed against either Party.



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WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION.




     Section 9.8. Ambiguities. Ambiguities and uncertainties in this Agreement, if any,
will not be interpreted against either Party, irrespective of which Party may be deemed to have
caused the ambiguity or uncertainty to exist.



     Section 9.9. English Language. All notices required or permitted to be given
hereunder, and all written, electronic, oral or other communications between the Parties regarding
this Agreement will be in the English language. This Agreement is in the English language only,
which language will be controlling in all respects, and all versions hereof in any other language
will be for accommodation only and will not be binding upon the Parties.



     Section 9.10. Amendment and Waiver. No amendment or waiver of any provision of this
Agreement, and no consent to any departure therefrom, shall be effective unless the same shall be
in writing and signed by an authorized representative of each Party, and such waiver or consent
shall be effective only for the specific purpose for which it is given. No failure on the part of
a Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies provided for in this
Agreement are cumulative and are not exclusive of any remedies provided for by law.



     Section 9.11. Severability. If any of the provisions of this Agreement are found to be
inconsistent with, or void under, applicable laws, the validity of the remaining provisions shall
not thereby be affected. In such a case the Parties shall re-negotiate the ineffective provision
in good faith in order to replace it with a provision affording the same rights, obligations and
economic benefits to the Parties as the ineffective provision.



     Section 9.12. Entire Agreement. This Agreement and the documents executed and
delivered on the date hereof pursuant hereto or in connection herewith, contain the entire
agreement among the Parties with respect to the matters addressed herein and therein and supersede
all prior representations, inducements, promises or agreements, oral or otherwise, which are not
embodied herein or therein.



     Section 9.13. Assignment.



               (a) Novavax may not assign this Agreement, in whole or in part, without the advance written
consent of the Company; provided, however, that this Agreement shall be automatically assigned to
Novavax’s successor in connection with the acquisition, merger or sale of Novavax or the sale,
transfer, lease, assignment or disposal of all or substantially all of the property or assets of
Novavax, whether by way of a single transaction or a series of related transactions, and such
successor shall be fully bound by the terms and conditions hereof.



               (b) The Company may not assign this Agreement, in whole or in part, without the advance
written consent of Novavax; provided, however, that this Agreement shall be automatically assigned
to the Company’s successor in connection with the sale, transfer, lease, assignment or disposal of
all or substantially all of the property or assets of the Company ,



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WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION.



whether by way of a single transaction or a series of related transactions, including a Change
in Control of the Company (as that term is defined in Schedule II of the Joint Venture Agreement),
and such successor shall be fully bound by the terms and conditions hereof; provided that any such
automatic assignment by Company within the scope of Schedule II of the Joint Venture Agreement
shall only be effective if such transaction was approved by Novavax under and pursuant to the Joint
Venture Agreement for so long as such approval rights of Novavax under the Joint Venture Agreement
have not been terminated.




               (c) Any assignment or purported assignment by either Party in violation of this Section 9.13
will be null and void..



     Section 9.14. Counterparts. This Agreement may be executed in one or more identical
counterparts, each of which will be deemed to be an original, and which collectively will be deemed
to be one and the same instrument.



[Signature Page to Follow]



12









 







THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A

CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED

WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION.




     In Witness Whereof, the Parties have by duly authorized persons executed this
 Agreement as of the Execution Date.



	 	 	 	 	 	 	 	 	 	 	 
	Novavax, Inc.	 	 	 	CPL Biologicals Private Limited	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Rahul Singhvi
 

Rahul Singhvi
	 	 	 	By:
	 	/s/ Rajiv I. Modi
 

Rajiv I. Modi
	 	 
	 

	 	President and CEO
	 	 	 	 	 	Managing Director	 	 






[Signature Page to Amended and Restated Technical Services Agreement]