EMPLOYMENT AGREEMENT
Exhibit
10.15
This
Employment Agreement (this “Agreement”) is dated as of July 16, 2009, between
Novavax, Inc., a Delaware corporation having its principal office at 0000
Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, XX 00000, and Xxxx X. Xxxxxxxx, an
individual with a mailing address of 00000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000 (“Executive”).
WHEREAS,
Executive will commence employment with the Company on or about July 16, 2009
pursuant to an offer letter dated July 16, 2009; and
The
Company and Executive hereby agree as follows:
1. Employment. The
Company hereby employs Executive and Executive hereby accepts employment as
Senior Vice President, International and
Government Alliances upon the terms and conditions hereinafter set
forth. Executive will report directly to the President and Chief
Executive Officer and participate as a full member of the Executive Committee as
a corporate officer. As used throughout this Agreement, “Company”
shall mean and include any and all of its present and future subsidiaries and
any and all subsidiaries of a subsidiary. Executive warrants and
represents that he is free to enter into and perform this Agreement and is not
subject to any employment, confidentiality, non-competition or other agreement
which prohibits, restricts, or would be breached by either his acceptance or his
performance of this Agreement.
2. Duties. During the
Term (as hereinafter defined), Executive shall devote his full business time to
the performance of services as Senior Vice President, International
and Government Alliances of Novavax, Inc., performing such services
related to managing the government RFP processes, managing the execution of
agreements and contracts with regional partners and assuming such
responsibilities and exercising such authority as are set forth in the Bylaws of
the Company for such offices and assuming such other duties and responsibilities
as prescribed by the President and CEO and Board of Directors. During
the Term, Executive’s services shall be completely exclusive to the Company and
he shall devote his entire business time, attention and energies to the business
of the Company and the duties which the Company shall assign to him from time to
time. Executive agrees to perform his services faithfully and to the
best of his ability and to carry out the policies and directives of the
Company. Notwithstanding the foregoing, it shall not be a violation
of this Agreement for the Executive to serve as a director of any company whose
products do not compete with those of the Company and to serve as a director,
trustee, officer, or consultant to a charitable or non-profit entity; provided
that such service does not adversely affect Executive’s ability to perform his
obligations hereunder. Executive agrees to take no action which is in
bad faith and prejudicial to the interests of the Company during his employment
hereunder. Notwithstanding the location where Executive shall be
based, as set forth in this Agreement, he also may be required from time to time
to perform duties hereunder for reasonably short periods of time outside of said
area.
3. Term. The term of
this Agreement shall be for the period beginning on July 16, 2009 and continuing
until September 1, 2010,
unless earlier terminated pursuant to Section 7 hereof (the “Term”) and shall be
renewed automatically for additional twelve-month periods on the terms set forth
herein, as they may be modified from time to time by mutual agreement, unless
one of the Company or the Executive provides notice of termination at least 30
days before the expiration of the then current term. The parties
acknowledge that the employment hereunder is employment at
will.
4. Compensation.
(a) Base
Compensation. For all Executive’s services and covenants under
this Agreement, the Company shall pay Executive an annual salary, which is
$285,000 as of this
amendment and restatement, established by the Board of Directors or an
authorized committee thereof (in accordance with the management processes) and
payable in accordance with the Company’s payroll policy as constituted from time
to time. The Company may withhold from any amounts payable under this
Agreement all required federal, state, city or other taxes and all other
deductions as may be required pursuant to any law or government regulation or
ruling.
(b) Bonus Program. The
Company agrees to pay the Executive a performance and incentive bonus in respect
of Executive’s employment with the Company each year in an amount determined by
the President and CEO and Board of Directors (or any committee of the Board of
Directors authorized to make that determination) to be appropriate based upon
Executive’s, and the Company’s, achievement of certain specified goals (to be
established at the beginning of the bonus period), with a target bonus of 40%, or any other percentage
determined by the Board of Directors, of Executive’s base salary during the year
to which the bonus relates based on performance. Such bonus shall be
payable no later than two and one-half months following the year for which the
bonus applies. The bonus shall be paid out partly in cash and partly
in shares of restricted stock, in the discretion of the Board of
Directors.
(c) Stock
Awards. Subject to approval by the Board of Directors (or any
committee of the Board of Directors authorized to make that determination), the
Company will grant Executive (a) stock options to purchase 220,000 shares of the
Company’s Common Stock ($.01 par value) at an exercise price equal to the
closing price of the Company’s Common Stock on the later date of Executive’s
date of hire or the date of such Board of Directors’ approval. Each
of these awards will vest as to one-third of the award on each of the first
three (3) anniversaries of Executive’s date of employment. Executive
will be eligible to be considered for additional stock awards based upon
performance, the amount and terms of any such award subject to the approval of
the President and Chief Executive Officer and the Board of
Directors.
5. Reimbursable
Expenses. Executive shall be entitled to reimbursement for
reasonable expenses incurred by him in connection with the performance of his
duties hereunder in accordance with such procedures and policies for executive
officers as the Company has heretofore or may hereafter
establish. The amount of expenses eligible for reimbursement during
any calendar year shall not affect the expenses eligible for reimbursement in
any other calendar year, and the reimbursement of an eligible expense shall be
made as soon as practicable after Executive submits the request for
reimbursement, but not later than December 31 following the calendar year in
which the expense was incurred.
6. Benefits. (a)
Executive shall be entitled to four weeks of paid vacation time per year
starting from July 16,
2009, calculated and administered in accordance with Company policies for
executive officers in effect from time to time. The Executive shall
be entitled to all other benefits associated with normal full time employment in
accordance with Company policies.
(b) Executive
shall be entitled to participate in the Company’s Change of Control Severance
Benefit Plan.
2
7. Termination of
Employment.
(a) Notwithstanding
any other provision of this Agreement, Executive’s employment may be terminated,
without such action constituting a breach of this Agreement:
(i) By
the Company, for “Cause,” as defined in Section 7(b) below;
(ii) By
the Company, upon 30 days’ notice to Executive, if he should be prevented by
illness, accident or other disability (mental or physical) from discharging his
duties hereunder for one or more periods totaling three consecutive months
during any twelve-month period;
(iii) By
the Executive with “Good Reason”, as defined in Section 7(c) below, within 30
days of the occurrence or commencement of such Good Reason;
(iv) By
the event of Executive’s death during the Term.
(b) “Cause”
shall mean (i) Executive’s willful failure or refusal to perform in all material
respects the services required of him hereby, (ii) Executive’s willful failure
or refusal to carry out any proper and material direction by the President and
CEO or Board of Directors with respect to the services to be rendered by him
hereunder or the manner of rendering such services, (iii) Executive’s willful
misconduct in the performance of his duties hereunder, (iv) Executive’s
commission of an act of fraud, embezzlement or theft or a felony involving moral
turpitude, (v) Executive’s use or disclosure of Confidential Information (as
defined in Section 10 of this Agreement), other than for the benefit of the
Company in the course of rendering services to the Company or (vi) Executive’s
engagement in any activity prohibited by Section 11 of this
Agreement. For purposes of this Section 7, the Company shall be
required to provide Executive a specific written warning with regard to any
occurrence of subsections (b)(i), (ii) and (iii) above, which warning shall
include a statement of corrective actions and a 30 day period for the Executive
to respond to and implement such actions, prior to any termination of employment
by the Company pursuant to Section 7(a)(i) above.
(c) “Good
Reason” shall mean the Company’s material reduction or diminution of Executive’s
responsibilities and authority, other than for Cause, without his
consent.
8. Separation
Pay. (a) Subject to Executive’s execution and delivery
to the company of the Company’s standard form of Separation and Release
Agreement, the Company shall pay Executive an amount equal to the Separation Pay
upon the occurrence of the applicable Separation Event but in no case later than
two and one-half months following the year in which the Separation Event
occurs. Separation Pay shall each be payable in accordance with the
Company’s payroll policy as constituted from time to time, and shall be subject
to withholding of all applicable federal, state and local taxes and any other
deductions required by applicable law. In the event of Executive’s
death, the Company’s obligation to pay further compensation hereunder shall
cease forthwith, except that Executive’s legal representative shall be entitled
to receive his fixed compensation for the period up to the last day of the month
in which such death shall have occurred.
(b) Section
8(a) above shall not apply should Executive receive severance benefits under the
Company’s Change in Control Severance Benefit Plan.
3
9. “Separation
Pay” shall mean a lump sum amount equal to twelve months of Executive’s
then effective salary.
(a) “Separation
Event” shall mean:
(i) the
Company’s termination of Executive’s employment by the Company without Cause,
during the Term;
(ii) the
termination of Executive’s employment by the Executive for Good Reason:
or
(iii)
if the Company terminates this agreement under Section 3
above.
10. All Business to be Property of the
Company; Assignment of Intellectual Property.
(a) Executive
agrees that any and all presently existing business of the Company and all
business developed by him or any other employee of the Company including without
limitation all contracts, fees, commissions, compensation, records, customer or
client lists, agreements and any other incident of any business developed,
earned or carried on by Executive for the Company is and shall be the exclusive
property of the Company, and (where applicable) shall be payable directly to the
Company.
(b) Executive
hereby acknowledges that any plan, method, data, know-how, research,
information, procedure, development, invention, improvement, modification,
discovery, design, process, software and work of authorship, documentation,
formula, technique, trade secret or intellectual property right whatsoever or
any interest therein whether patentable or non-patentable, patents and
applications therefor, trademarks and applications therefor or copyrights and
applications therefor (herein sometimes collectively referred to as
“Intellectual Property”) made, conceived, created, invested, developed, reduced
to practice and/or acquired by Executive solely or jointly with others during
the Term is the sole and exclusive property of the Company, as work for hire,
and that he has no personal right in any such Intellectual
Property. Executive hereby grants to the Company (without any
separate remuneration or compensation other than that received by him from time
to time in the course of his employment) his entire right, title and interest
throughout the world in and to, all Intellectual Property, which is made,
conceived, created, invested, developed, reduced to practice and/or acquired by
him solely or jointly with others during the Term.
(c) Executive
shall cooperate fully with the Company, both during and after his employment
with or engagement by the Company, with respect to the procurement, maintenance
and enforcement of copyrights, patents and other intellectual property rights
(both in the United States and foreign countries) relating to Intellectual
Property. Without limiting the foregoing, Executive agrees that to
the extent copyrightable, any such original works of authorship shall be deemed
to be "works for hire" and that the Company shall be deemed the author thereof
under the U.S. Copyright Act, provided that in the event and to the extent such
works are determined not to constitute "works for hire" as a matter of law,
Executive hereby irrevocably assigns and transfers to the Company all right,
title and interest in such works, including but not limited to copyrights
thereof. Executive shall sign all papers, including, without
limitation, copyright applications, patent applications, declarations, oaths,
formal assignments, assignments of priority rights and powers of attorney, which
the Company may deem necessary or desirable in order to protect its rights and
interests in any Intellectual Property (at the Company’s expense) and agrees
that these obligations are binding upon his assigns, executors, administrators
and other legal representatives. To that end, Executive shall provide
current contact information to the Company including, but not limited to, home
address, telephone number and email address, and shall update his contact
information whenever necessary.
4
11. Confidentiality. Executive
acknowledges his obligation of confidentiality with respect to all proprietary,
confidential and non-public information of the Company, including all
Intellectual Property. By way of illustration, but not limitation,
confidential and proprietary information shall be deemed to include any plan,
method, data, know-how, research, information, procedure, development,
invention, improvement, modification, discovery, process, work of authorship,
documentation, formula, technique, product, idea, concept, design, drawing,
specification, technique, trade secret or intellectual property right whatsoever
or any interest therein whether patentable or non-patentable, patents and
applications therefor, trademarks and applications therefor or copyrights and
applications therefor, personnel data, records, marketing techniques and
materials, marketing and development plans, customer names and other information
related to customers, including prospective customers and contacts at customers,
price lists, pricing policies and supplier lists of the Company, in each case
coming into Executive’s possession, or which Executive learns, or to which
Executive has access, or which Executive may discover or develop (whether or not
related to the business of the Company at the time this Agreement is signed or
any information Executive originates, discovers or develops, in whole or in
part) as a result of Executive’s employment by (either full-time or part-time),
or retention as a consultant of, the Company. Executive shall not,
either during the Term or for a period of ten (10) years thereafter, use for any
purpose other than the furtherance of the Company’s business, or disclose to any
person other than a person with a need to know such confidential, proprietary or
non-public information for the furtherance of the Company’s business who is
obligated to maintain the confidentiality of such information, any information
concerning any Intellectual Property, or other confidential, proprietary or
non-public information of the Company, whether Executive has such information in
his memory or such information is embodied in writing, electronic or other
tangible form.
All
originals and copies of any of the foregoing, however and whenever produced,
shall be the sole property of the Company. All files, letters,
memoranda, reports, records, data, sketches, drawings, program listings, or
other written, photographic, or other tangible or electronic material containing
confidential or proprietary information or Intellectual Property, whether
created by me or others, which shall come into Executive’s custody or
possession, shall be and are the exclusive property of the Company to be used by
Executive only in the performance of his duties for the Company. All
electronic material containing confidential or proprietary information or
Intellectual Property will be stored on a computer supplied to Executive by the
Company and, under no circumstances, will it be transferred to a personal
computer. Executive will promptly deliver to the Company and/or a
person or entity identified by the Company all such materials or copies of such
materials and all tangible property of the Company in Executive’s custody or
possession, upon the earlier of (i) a request by the Company or (ii) termination
of employment or engagement by the Company. After such delivery,
Executive will not retain any such materials or copies or any such tangible
property or any summaries or memoranda regarding same.
5
12. Non-Competition
Covenant. As the Executive has been granted options to
purchase stock in the Company and as such has a financial interest in the
success of the Company’s business and as Executive recognizes that the Company
would be substantially injured by Executive competing with the Company,
Executive agrees and warrants that within the United States, he will not, unless
acting with the Company’s express prior written consent, directly or indirectly,
while an employee of the Company and during the Non-Competition Period, as
defined below, own, operate, join, control, participate in, or be connected as
an officer, director, employee, partner, stockholder, consultant or otherwise,
with any business or entity which competes with the business of the Company (or
its successors or assigns) as such business is now constituted or as it may be
constituted at any time during the Term of this Agreement; provided, however,
that Executive may own, and exercise rights with respect to, less than one
percent of the equity of a publicly traded company. The
“Non-Competition Period” shall be a period of twelve months following
termination of employment.
Executive
and the Company are of the belief that the period of time and the area herein
specified are reasonable in view of the nature of the business in which the
Company is engaged and proposes to engage, the state of its business development
and Executive’s knowledge of this business; however, if such period or such area
should be adjudged unreasonable in any judicial proceeding, then the period of
time shall be reduced by such number of months or such area shall be reduced by
elimination of such portion of such area, or both, as are deemed unreasonable,
so that this covenant may be enforced in such area and during such period of
time as is adjudged to be reasonable.
13. Non-Solicitation
Agreement. Executive agrees and covenants that he will not,
unless acting with the Company’s express written consent, directly or
indirectly, during the Term of this Agreement or during the Non-Competition
Period (as defined in Section 12 above) solicit, entice or attempt to entice
away or interfere in any manner with the Company’s relationships or proposed
relationships with any customer, officer, employee, consultant, proposed
customer, vendor, supplier, proposed vendor or supplier or person or entity or
person providing or proposed to provide research and/or development services to,
on behalf of or with the Company.
14. Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been given on actual receipt after having been delivered by hand,
mailed by first class mail, postage prepaid, or sent by Federal Express or
similar overnight delivery services, as follows: (a) if to Executive, at the
address shown at the head of this Agreement, or to such other person(s) or
address(es) as Executive shall have furnished to the Company in writing and, if
to the Company, to it at the address set forth in the preamble hereto with a
copy to Xxxxxxxx X. Xxxxxx, Esq., Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP,
0000 Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or to such other person(s) or address(es) as
the Company shall have furnished to Executive in writing.
15. Assignability. In
the event of a change of control (as defined in the Company’s Change of Control
Severance Benefit Plan), the terms of this Agreement shall inure to the benefit
of, and be assumed by, the successor to the Company or the acquiring person in
such change in control transaction. This Agreement shall not be
assignable by Executive, but it shall be binding upon, and to the extent
provided in Section 8 shall inure to the benefit of, his heirs, executors,
administrators and legal representatives.
16. Entire
Agreement. This Agreement contains the entire agreement
between the Company and Executive with respect to the subject matter hereof and
there have been no oral or other prior agreements of any kind whatsoever as a
condition precedent or inducement to the signing of this Agreement or otherwise
concerning this Agreement or the subject matter
hereof. Notwithstanding the foregoing, Executive acknowledges that he
is required as a condition to continued employment, to comply at all times, with
the Company’s policies affecting employees, including the Company’s published
Code of Ethics, as in effect from time to time. Executive further
acknowledges that the Non-Disclosure, Proprietary Information and Invention
Assignment Agreement he signed upon becoming an employee or thereafter remains
in full force and effect despite the execution of this Agreement and any changes
in his employment status with the Company.
6
17. Equitable
Relief. Executive recognizes and agrees that the Company’s
remedy at law for any breach of the provisions of Sections 10, 11, 12 or 13
hereof would be inadequate, and he agrees that for breach of such provisions,
the Company shall, in addition to such other remedies as may be available to it
at law or in equity or as provided in this Agreement, be entitled to injunctive
relief and to enforce its rights by an action for specific
performance. Should Executive engage in any activities prohibited by
this Agreement, he agrees to pay over to the Company all compensation,
remuneration or monies or property of any sort received in connection with such
activities; such payment shall not impair any rights or remedies of the Company
or obligations or liabilities of Executive which such parties may have under
this Agreement or applicable law.
18. Amendments. This
Agreement may not be amended, nor shall any change, waiver, modification,
consent or discharge be effected except by written instrument executed by the
Company and Executive.
19. Severability. If
any part of any term or provision of this Agreement shall be held or deemed to
be invalid, inoperative or unenforceable to any extent by a court of competent
jurisdiction, such circumstances shall in no way affect any other term or
provision of this Agreement, the application of such term or provision in any
other circumstances, or the validity or enforceability of this
Agreement. Executive agrees that the restrictions set forth in
Sections 11 and 12 above (including, but not limited to, the geographical scope
and time period of restrictions) are fair and reasonable and are reasonably
required for the protection of the interests of the Company and its
affiliates. In the event that any provision of Section 12 or 13
relating to time period and/or areas of restriction shall be declared by a court
of competent jurisdiction to exceed the maximum time period or areas such court
deems reasonable and enforceable, said time period and/or areas of restriction
shall be deemed to become and thereafter be the maximum time period and/or areas
which such court deems reasonable and enforceable.
20. Paragraph
Headings. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation hereof.
21. Governing Law. This
Agreement shall be governed by and construed and enforced in accordance with the
law of the State of Maryland, without regard to the principles of conflict of
laws thereof.
7
22. Resolution of
Disputes. With the exception of proceedings for equitable
relief brought pursuant to Section 17 of this Agreement, any disputes arising
under or in connection with this Agreement including, without limitation, any
assertion by any party hereto that the other party has breached any provision of
this Agreement, shall be resolved by arbitration, to be conducted in Baltimore,
Maryland, in accordance with the rules and procedures of the American
Arbitration Association. The parties shall bear equally the cost of
such arbitration, excluding attorneys’ fees and disbursements which shall be
borne solely by the party incurring the same; provided, however, that if the
arbitrator rules in favor of the Executive on at least one material component of
the dispute, Company shall be solely responsible for the payment of all costs,
fees and expenses (including without limitation Executive’s reasonable
attorney’s fees and disbursements) of such arbitration. The Company
shall reimburse Executive for any such fees and expenses) incurred by Executive
in any calendar year within a reasonable time following Executive’s submission
of a request for such reimbursement, which in no case shall be later than the
end of the calendar year following the calendar year in which such expenses were
incurred. Executive shall submit any such reimbursement request no
later than the June 30th next
following the calendar year in which the fees and expenses are
incurred. In the event the arbitrator rules against Executive,
Executive shall repay the Company the amount of such reimbursed expenses no
later than 180 days following the date as of which such arbitrator’s decision
becomes final. The provisions of this Section 22 shall survive the
termination for any reason of the Term (whether such termination is by the
Company, by Executive or upon the expiration of the Term).
23. Indemnification;
Insurance. The Executive shall be entitled to liability and
expense indemnification, advancement of expenses and reimbursement to the
fullest extent permitted by the Company’s current By-laws and Certificate of
Incorporation, whether or not the same are subsequently
amended. During the Term, the Company will use commercially
reasonable efforts to maintain in effect directors’ and officers’ liability
insurance no less favorable to Executive than that in effect as of the date of
this Agreement.
24. Survival. Sections
8 through 23 shall survive the expiration or earlier termination of this
Agreement, for the period and to the extent specified therein.
IN
WITNESS WHEREOF, the parties have executed or caused to be executed under seal
this Agreement as of the date first above written.
|
NOVAVAX,
INC.
|
||
|
[SEAL]
|
||
| By: |
/s/ Xxxxx Xxxxxxx
|
|
|
Name: Xxxxx
Xxxxxxx
|
||
|
Title: President
& Chief Executive Officer
|
||
|
Executive:
|
||
|
/s/ Xxxx X. Xxxxxxxx
|
||
|
Xxxx
X.
Xxxxxxxx
|
||
8
