As filed with the Securities and Exchange Commission
on August 8, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933
NOVAVAX, INC.
(Exact name of Registrant as specified in its charter)
| Delaware |
700 Quince Orchard Road
Gaithersburg, Maryland 20878 |
22-2816046 |
| (State of incorporation) |
(Address of principal executive offices) |
(I.R.S. Employer Identification No.) |
Novavax, Inc. Amended and Restated 2015 Stock
Incentive Plan
Novavax, Inc. Amended and Restated 2013 Employee
Stock Purchase Plan
(Full Title of the Plan)
MARK J. CASEY
Executive Vice President, Chief Legal Officer &
Corporate Secretary
Novavax, Inc.
700 Quince Orchard Road
Gaithersburg, Maryland 20878
(240) 268-2000
(Name, Address and Telephone Number, Including
Area Code, of Agent For Service)
with copies to:
PAUL M. KINSELLA
TARA FISHER
Ropes & Gray LLP
800 Boylston Street
Boston, Massachusetts 02199-3600
(617) 951-7000
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
x |
Accelerated filer |
¨ |
| Non-accelerated filer |
¨ |
Smaller reporting company |
¨ |
| |
Emerging growth company |
¨ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
EXPLANATORY NOTE
This Registration Statement
on Form S-8 (this “Registration Statement”) registers 1,810,264 additional shares of common stock, par value $0.01 per
share (the “Common Stock”), of Novavax, Inc. (the “Registrant”) that may be issued and sold pursuant to the
Registrant’s Amended and Restated 2013 Employee Stock Purchase Plan, as amended (the “2013 Plan”) and 6,500,000 additional
shares of Common Stock that may be issued pursuant to awards under the Registrant’s Amended and Restated 2015 Stock Incentive Plan,
as amended (the “2015 Plan”). This Registration Statement is submitted in accordance with General Instruction E to Form S-8
regarding registration of additional securities of the same class, and, pursuant to such instruction, the contents of the Registration
Statement on Form S-8 (File No. 333-190599) filed with the Securities and Exchange Commission on August 13, 2013, the contents
of the Registration Statement on Form S-8 (File No. 333-206354) filed with the Securities and Exchange Commission on August 13, 2015, the contents of the Registration Statement on Form S-8 (File No. 333-213069) filed with the Securities and Exchange Commission
on August 11, 2016, the contents of the Registration Statement on Form S-8 (File No. 333-219829) filed with the Securities
and Exchange Commission on August 9, 2017, the contents of the Registration Statement on Form S-8 (File No. 333-226498)
filed with the Securities and Exchange Commission on August 1, 2018, the contents of the Registration Statement on Form S-8
(File No. 333-233133) filed with the Securities and Exchange Commission on August 8, 2019, the contents of the Registration
Statement on Form S-8 (File No. 333-243758) filed with the Securities and Exchange Commission on August 10, 2020, the contents
of the Registration Statement on Form S-8 (File No. 333-258517) filed with the Securities and Exchange Commission on August 5, 2021, the contents of the Registration Statement on Form S-8 (File No. 333-266681) filed with the Securities and Exchange Commission
on August 9, 2022, and the contents of the Registration Statement on Form S-8 (File No. 333-273791) filed with the Securities
and Exchange Commission on August 8, 2023, are each incorporated herein by reference.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
As permitted by Rule 428
under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement omits the information specified
in Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants
of the Registrant’s 2013 Plan and 2015 Plan, as applicable, as required by Rule 428(b) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant
with the Securities and Exchange Commission are hereby incorporated by reference in this Registration Statement on Form S-8:
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1. |
The
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed on February 28, 2024; |
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2. |
The
Registrant’s Quarterly Reports on Form 10-Q for the fiscal quarter ended March 31, 2024, filed on May 10, 2024, and
for the fiscal quarter ended June 30, 2024, filed on August 8, 2024; |
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3. |
The
Registrant’s Current Reports on Form 8-K filed on January
31, 2024, February
22, 2024, March
26, 2024, April
26, 2024, May
13, 2024, May
23, 2024, June 6, 2024 (Item 8.01 only) and June
14, 2024 (except for portions of such reports which were furnished and not filed); |
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4. |
The Registrant’s
Definitive Proxy Statement on Schedule 14A, filed on April 29, 2024, as amended by Amendment No. 1 to the Registrant's Definitive
Proxy Statement on Schedule 14A, filed on June 5, 2024; and |
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5. |
The
description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement No. 0-26770 on Form
10 filed on September 14, 1995 pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), as updated by any amendment or report filed for the purpose of updating such description, including the description
of the Registrant’s Common Stock contained in Exhibit 4.4 to its Annual Report on Form 10-K for the fiscal year ended
December 31, 2023, filed on February 28, 2024. |
All documents filed after the date of this Registration
Statement by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment that indicates that all shares of Novavax, Inc.’s common stock offered hereunder have been sold or which deregisters
all shares of Novavax, Inc. common stock remaining unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of the filing of such documents.
Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein, or in any other subsequently filed document that also is incorporated or deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 102 of the General
Corporation Law of the State of Delaware (the “DGCL”) permits a corporation to eliminate the personal liability of
its directors or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached
his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the
payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit.
The Registrant’s second amended and restated certificate of incorporation (as amended) provides that no director shall be personally
liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any
provision of law imposing such liability, except to the extent that the DGCL prohibits the elimination or limitation of liability of directors
for breaches of fiduciary duty.
Section 145 of the DGCL
provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons
serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he
or she is party or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions brought by or in
the right of the corporation, no indemnification shall be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court
determines that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnification for such expenses which the Court of Chancery or such other court shall deem proper.
The Registrant’s second
amended and restated certificate of incorporation (as amended) provides that it will indemnify each person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Registrant) by reason of the fact that he or she is or was, or has agreed
to become, its director or officer, or is or was serving, or has agreed to serve, at the Registrant’s request as a director, officer
or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons
being referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity,
against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best interests of the Registrant, and, with respect to any criminal action
or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful.
The Registrant’s second
amended and restated certificate of incorporation (as amended) also provides that it will indemnify any Indemnitee who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Registrant to procure
a judgment in the Registrant’s favor by reason of the fact that the Indemnitee is or was, or has agreed to become, its director
or officer, or is or was serving, or has agreed to serve, at the Registrant’s request as a director, officer or trustee or, or in
a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged
to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted
in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the Registrant’s best interests, except
that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be
liable to the Registrant, unless and only to the extent that the Court of Chancery of Delaware determines that, despite such adjudication
but in view of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to
the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by the Registrant against
all expenses (including attorneys’ fees) actually and reasonably incurred by him or her or on his or her behalf in connection therewith.
If the Registrant does not assume the defense, expenses must be advanced to an Indemnitee under certain circumstances.
The Registrant has entered
into indemnification agreements with its directors and certain of its officers, in addition to the indemnification provided for in its
second amended and restated certificate of incorporation (as amended), and intends to enter into indemnification agreements with any new
directors and executive officers in the future. The Registrant has purchased and intends to maintain insurance on behalf of any person
who is or was a director or officer against any loss arising from any claim asserted against him or her and incurred by him or her in
any such capacity, subject to certain exclusions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
INDEX OF EXHIBITS
| Exhibit |
|
|
| Number |
|
Description |
| 4.1
|
|
Second
Amended and Restated Certificate of Incorporation of the Registrant (Incorporated by reference to Exhibit 3.1 to the Registrant’s
Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, filed on August 10, 2015) |
| 4.2 |
|
Certificate
of Amendment to the Second Amended and Restated Certificate of Incorporation of the Registrant (Incorporated
by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on May 9, 2019) |
| 4.3 |
|
Certificate
of Designation of Series A Convertible Preferred Stock of the Registrant (Incorporated by reference to Exhibit 3.1 to the Registrant’s
Current Report on Form 8-K filed on June 19, 2020) |
| 4.4 |
|
Amended
and Restated By-Laws of the Registrant (Incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form
8-K filed on April 26, 2024) |
| 5.1* |
|
Opinion
of Ropes & Gray LLP |
| 10.1 |
|
Novavax,
Inc. Amended and Restated 2015 Stock Incentive Plan (Incorporated by reference to Appendix A of the Registrant’s Definitive
Proxy Statement filed on April 29, 2024, in connection with the Annual Meeting held on June 13, 2024) |
| 10.2 |
|
Novavax,
Inc. Amended and Restated 2013 Employee Stock Purchase Plan (Incorporated by reference to Appendix B of the Registrant’s Definitive
Proxy Statement filed on April 29, 2024, in connection with the Annual Meeting held on June 13, 2024) |
| 23.1* |
|
Consent
of Ropes & Gray LLP (included in Exhibit 5.1) |
| 23.2* |
|
Consent
of Ernst & Young LLP, Independent Registered Public Accounting Firm |
| 24.1* |
|
Power
of Attorney to file future amendments (included on the signature page of this Registration Statement) |
| 107.1* |
|
Filing
Fee Table |
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the
prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement;
(iii) To include any
material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change
to such information in the registration statement; Provided however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section
do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the Securities and Exchange Commission by the Registrant pursuant to section 13 or section 15(d) of the Exchange
Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to section
13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant
to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Gaithersburg, state of Maryland on August 8, 2024.
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NOVAVAX, INC. |
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By: |
/s/ John C. Jacobs |
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John C. Jacobs |
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President and Chief Executive Officer |
POWER OF ATTORNEY
Each person whose signature
appears below constitutes and appoints John C. Jacobs, James P. Kelly and Mark J. Casey, and each of them singly, his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them singly, for him or her and in
his or her name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8 of Novavax, Inc., and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting to the attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as
full to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that the attorneys-in-fact
and agents or any of each of them or their substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates
indicated.
| Signature |
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Title |
|
Date |
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| /s/ John C. Jacobs |
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President and Chief Executive Officer |
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August 8, 2024 |
| John C. Jacobs |
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and Director (Principal Executive Officer) |
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| /s/ James P. Kelly |
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Executive Vice President, Chief Financial Officer |
|
August 8, 2024 |
| James P. Kelly |
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and Treasurer (Principal Financial and Accounting Officer) |
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| /s/ James F. Young |
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Chairman of the Board of Directors |
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August 8, 2024 |
| James F. Young |
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| /s/ Gregg H. Alton |
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Director |
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August 8, 2024 |
| Gregg H. Alton |
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| /s/ Richard H. Douglas |
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Director |
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August 8, 2024 |
| Richard H. Douglas |
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| /s/ Rachel K. King |
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Director |
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August 8, 2024 |
| Rachel K. King |
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| /s/ Margaret G. McGlynn |
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Director |
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August 8, 2024 |
| Margaret G. McGlynn |
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| /s/ David M. Mott |
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Director |
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August 8, 2024 |
| David M. Mott |
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| /s/ Richard J. Rodgers |
|
Director |
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August 8, 2024 |
| Richard J. Rodgers |
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