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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
AGREEMENT (the "Employment Agreement" or this "Agreement") dated as of
the 15 day of May, 1997, between Novavax, Inc., a Delaware corporation having
its principal office at 0000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (the
"Company") and Xxxxxxx X. Xxxxxxx ("Employee") residing at 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000.
The Company and Employee hereby agree as follows:
1. Employment. The Company hereby employs Employee and Employee hereby
accepts employment upon the terms and conditions hereinafter set forth. (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.)
Employee warrants 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 would restrict his performance under this Agreement.
2. Duties. Employee shall devote his full business time to the
performance of services as Chief Executive Officer or such other senior
management services as may from time to time be designated by the Company's
Chairman of the Board or the Board of Directors. During the term of this
Agreement, Employee'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 to which the Company shall assign him from time to
time. Employee agrees to perform his services faithfully and to the best of his
ability and to carry out the policies and directives of the Company. Employee
agrees to take no action which is in bad faith and prejudicial to the interests
of the Company during his employment hereunder. Employee shall be based in
Columbia, Maryland but he may be required from time to time to perform duties
hereunder for reasonably short periods of time outside said area.
3. Term. The term of this Agreement shall begin on March 4, 1997 and
shall end on December 31, 1999 (the "Term").
4. Compensation.
(a) Base Compensation. For all Employee's services and covenants under
this Agreement, the Company shall pay Employee a base annual salary of $220,000,
payable in accordance with the Company's payroll policy as constituted from time
to time.
(b) Performance Bonus. In addition to the base compensation payable to
Employee, the Employee shall be eligible to receive an annual cash performance
bonus in such amount, if any, as the Compensation and Stock Option Committee of
the Company's Board of Directors (or any committee of the Board of Directors
which shall replace such committee, or in the absence of any such committee, the
Board of Directors) shall, in its sole discretion, deem appropriate. Such
determination will be based, in part, upon the achievement of certain specified
goals, which shall be determined in consultation with the Employee. The bonus
for fiscal year 1997 is targeted to be approximately $25,000. Payment of the
performance bonus, if any, will be made within 60 days following the end of the
Company's fiscal year.
(c) Stock Options. Employee shall be entitled to receive stock options
to purchase 200,000 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
date of grant. The options will be subject to a Incentive Stock Option Agreement
which shall include an option vesting schedule as follows: one-third of the
shares on the six month anniversary of the date of grant, one-third of the
shares on the eighteen-month anniversary of the date of grant and one-third of
the shares on the thirty-month anniversary of the date of grant. Employee will
also be eligible to receive additional stock options
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annually, based on job performance, in an amount to be determined by the
Compensation and Stock Option Committee of the Board of Directors at the
December Board meetings.
5. Relocation. Employee is expected to relocate to the Columbia,
Maryland area within six months of the date hereof, for which the Company will
reimburse Employee for actual moving expenses in an amount not to exceed
$50,000.
6. Expenses. Employee shall be entitled to reimbursement for reasonable
expenses incurred by Employee in connection with the performance of his duties
hereunder upon receipt of vouchers therefor in accordance with such procedures
as the Company has heretofore or may hereafter establish.
7. Employee Benefits.
(a) Employee shall be entitled to two weeks of vacation time during
the first year, calculated on a calendar year basis in accordance with Company
policies in effect from time to time. Thereafter, Employee shall be entitled to
two weeks of vacation plus one day for each year of Employee's employment after
the first year, up to a maximum of four weeks per year.
(b) Employee shall be entitled to the use of a Company automobile during
the Term in accordance with Company policies in effect from time to time.
(c) Nothing herein contained shall preclude Employee, to the extent he
is otherwise eligible, from participation in all group insurance programs, stock
option plans or other fringe benefit plans which the Company may now or
hereafter in its sole and absolute discretion make available generally to its
employees, but the Company shall not be required to establish any such program
or plan.
8. Termination of Employment. Notwithstanding any other provision of
this Agreement, Employee's employment may be terminated:
(a) By the Company, in the event of Employee's willful failure or
refusal to perform in all material respects the services required of him hereby,
after a specific warning with regard thereto has been given to Employee by the
Board of Directors, his willful failure or refusal to carry out any proper
direction by the Board of Directors with respect to the services to be rendered
by him hereunder or the manner of rendering such services, his willful
misconduct in the performance of his duties hereunder or his commission of a
felony involving moral turpitude;
(b) By the Company, upon 30 days' notice to Employee, if he should be
prevented by illness, accident or other disability (mental or physical) from
discharging his duties hereunder for one or more periods totalling three months
during any twelve-month period;
(c) By the Company, without cause, provided that if Employee's
employment is terminated pursuant to this Section 8(c), Employee shall be
entitled to receive his salary, but not a performance bonus, for the three
months from the date of termination, payable in accordance with the Company's
payroll policy and in the amounts set forth in Section 4(a) above, excluding any
performance bonus.
(d) In the event of Employee's death during the term of his
employment, the Company's obligation to pay further compensation hereunder shall
cease forthwith, except that Employee'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.
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9. All Business to be Property of the Company; Assignment of
Intellectual Property.
(a) Employee 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 Employee for the
Company is and shall be the exclusive property of the Company, and (where
applicable) shall be payable directly to the Company.
(b) Employee 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 research, information, procedures, developments, all
inventions and improvements whether patentable or nonpatentable, patents and
applications therefor, trademarks and applications therefor, copyrights and
applications therefor, programs, trade secrets, plans, methods, and all other
data and know-how (herein sometimes "Intellectual Property") made, conceived,
developed and/or acquired by him solely or jointly with others during the period
of his employment with the Company, whether or not made, conceived, developed or
acquired during regular business hours or on the premises of, or using
properties of, the Company or in the regular scope of Employee's employment by
the Company.
10. Confidentiality. Except as necessary in performance of services for
the Company, Employee shall not, either during the period of his employment with
the Company or thereafter, use for his own benefit or disclose to or use for the
benefit of any person outside the Company, any information concerning any
Intellectual Property, or other confidential or proprietary information of the
Company, including without limitation, any of the materials listed in Section
9(a), whether Employee has such information in his memory or embodied in writing
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, not to
be removed from the premises or custody of the Company without in each instance
first obtaining authorization of the Company, which authorization may be revoked
by the Company at any time. Upon the termination of Employee's employment in any
manner or for any reason, Employee shall promptly surrender to the Company all
copies of any of the foregoing, together with any documents, materials, data,
information and equipment belonging to or relating to the Company's business and
in his possession, custody or control, and Employee shall not thereafter retain
or deliver to any other person any of the foregoing or any summary or
memorandum thereof.
11. Non-Competition Covenant. As the Employee is being 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 Employee recognizes that the
Company would be substantially injured by Employee competing with the Company,
Employee 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. The "Non-Competition
Period" shall be a period of 24 months following termination pursuant to Section
8(a) or the period during which Employee is receiving compensation pursuant to
Section 8(c) and for 24 months thereafter.
Employee 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 Employee'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
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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.
12. Non-Solicitation Agreement. Employee 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 for a period of 24 months
thereafter solicit, entice away or interfere with the Company's contractual
relationships with any customer, client, officer or employee of the Company.
13. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given upon the earlier of actual
receipt or three days after having been mailed by first class mail, postage
prepaid, or twenty-four hours after having been sent by Federal Express or
similar overnight delivery services, as follows: (a) if to Employee, at the
address shown at the head of this Agreement, or to such other person(s) or
addresses as Employee shall have furnished to the Company in writing; and (b) if
to the Company, at the address shown at the head of this Agreement, Attention:
Xxxxxx X. Xxxxx, M.D., with a copy to Xxxxx X. Xxxxx, Esq., White & XxXxxxxxx,
P.C., 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, or to such
other person(s) or addresses as the Company shall have furnished to the Employee
in writing.
14. Assignability. In the event that the Company shall be merged
with, or consolidated into, any other corporation, or in the event that it shall
sell and transfer substantially all of its assets to another corporation, the
terms of this Agreement shall inure to the benefit of, and be assumed by, the
corporation resulting from such merger or consolidation, or to which the
Company's assets shall be sold and transferred. This Agreement shall not be
assignable by Employee, 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.
15. Entire Agreement. This Agreement contains the entire agreement
between the Company and Employee 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.
16. Equitable Relief. Employee recognizes and agrees that the
Company's remedy at law for any breach of the provisions of Sections 9, 10, 11
or 12 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 Employee 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 Employee which such parties may have under this
Agreement or applicable law.
17. 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 Employee.
18. 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.
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19. 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.
20. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the law of the State of Delaware, without regard
to principles of conflict of law.
IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Agreement as of the date first above written.
NOVAVAX, INC.
[SEAL]
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx,
Chairman of the Board
/s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx 5/15/97
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