Contract
THIS GENERAL RELEASE OF CLAIMS AND
RESTRICTIVE COVENANTS AGREEMENT (Agreement) is made and entered into by
Xxxxxxx X. Xxxx, Xx. (Employee), in consideration of the promises and mutual
covenants contained herein, and of the severance offered from Novavax, Inc.
(Employer) to Employee in the amount of $128,866.
WHEREAS, Employer employs
Employee as Senior Vice President, Commercial Operations;
WHEREAS, Employer and Employee
have entered into that certain Amended and Restated Employment Agreement, dated
as of August 2, 2007, as amended (the “Employment Agreement”); and
WHEREAS, Employer and Employee
will terminate their employment relationship as of March 17, 2010 and pursuant
to a Memorandum from Xxxxx Xxxxxxx, President and Chief Executive Officer of the
Company, dated March 17, 2010 (the “Memo”).
NOW THEREFORE, in
consideration of the promises and the mutual promises set forth in the Memo and
herein, Employee agrees as follows:
1. Consideration. I am entering
into this Agreement in consideration of the Employer’s offer of severance in the
amount of $128,866, as well as other good and valuable
consideration. This General Release of Claims and Restrictive
Covenants and the Memo together constitute the “Agreement.” I hereby
accept the severance offer and agree to be bound by this Agreement.
2. General
Release of Claims. I, for myself and
my heirs, executors, administrators, assigns, agents and beneficiaries, if any,
do hereby agree to execute and be bound by this General Release of
Claims. I waive, release, and forever discharge Employer (as defined
below) of and from any and all Claims (as defined
below) arising from the beginning of time up to and including the date of this
Agreement. I agree not to file a lawsuit or arbitration to assert any
such Claim. Further, I agree that should any other person,
organization or entity file a lawsuit or arbitration to assert any such Claim, I
will not seek or accept any personal relief in such action.
Exclusions: Notwithstanding
any other provision of this release, the following are not
barred by the release: (a) Claims relating to the validity of this
Agreement; (b) Claims by either party to enforce this Agreement; (c) Claims
which legally may not be waived. In addition, this General Release of
Claims will not operate to limit or bar my right to file an administrative
charge of discrimination with the Equal Employment Opportunity Commission (EEOC)
and to participate in an investigation by the EEOC, although the General Release
of Claims does bar my right to recover any personal relief if I or anyone on my
behalf seeks to file a subsequent lawsuit or arbitration on the same basis as
the charge of discrimination.
The
following provisions further explain this General Release of Claims and promise
not to xxx:
(a) Definition
of “Claims.”
Except as stated above, “Claims” includes without limitation all actions
or demands of any kind that I now have, or may have or claim to have in the
future. More specifically, Claims include rights, causes of action,
damages, penalties, losses, attorneys’ fees, costs, expenses, obligations,
agreements, judgments and all other liabilities of any kind or description
whatsoever, either in law or in equity, whether known or unknown, suspected or
unsuspected.
The
nature of Claims covered by this General Release of Claims and promise not to
xxx includes, without limitation, all actions or demands in any way based on my
employment with Employer, the terms and conditions of such employment or my
separation from employment. More specifically, all of the following
are among the types of Claims which are waived and barred by this General
Release of Claims to the extent allowable under applicable law:
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Contract
Claims, whether express or
implied;
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Tort
Claims, such as for defamation or emotional
distress;
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Claims
under federal, state and municipal laws, regulations, ordinance or court
decisions of any kind including, but not limited to, any action under the
Maryland Wage Payment and Collection law as codified at Xxx. Code. Md.
Labor and Employment, 3-501, et
seq.;
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Claims
of discrimination, harassment or retaliation, whether based on race,
color, religion, gender, sex, age, sexual orientation, handicap and/or
disability, national origin, whistleblowing or any other legally protected
class;
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Claims
under the Age Discrimination in Employment Act, Title VII of the Civil
Rights Act of 1964, as amended, the Americans with Disabilities Act, the
Family and Medical Leave Act, and similar state and local statutes, laws
and ordinances;
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Claims
under the Employee Retirement Income Security Act, the Occupational Safety
and Health Act, the False Claims Act, and similar state and local
statutes, laws and
ordinances;
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Claims
for wrongful discharge; and
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Claims
for attorneys’ fees, including litigation expenses and/or
costs.
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The
foregoing description of claims is intended to be illustrative and is not
exhaustive.
(b) Definition
of “Employer.”
“Employer” includes without limitation Novavax, Inc. and its respective
past, present and future parents, owners, affiliates, subsidiaries, divisions,
predecessors, successors, assigns, employee benefit plans and trusts, if
any. It also includes all past, present and future managers, members,
principals, directors, officers, partners, agents, employees (except Xxxxxxx X.
Xxxx, Xx.), attorneys, representatives, consultants, associates, fiduciaries,
plan sponsors, administrators and trustees of each of the
foregoing.
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3. Restrictive
Covenants Employee acknowledges and reaffirms his obligations
under Sections 9, 10, 11and 12 of the Employment Agreement regarding business of
the Employer, Assignment of Intellectual Property, Confidentiality,
Non-Competition and Non-Solicitation.
4. Consideration
Period. I acknowledge
that I have carefully read and I understand the provisions of this
Agreement. I have been provided with a consideration period
consisting of at least twenty-one (21) calendar days to consider the
terms of this Agreement from the date this Agreement first was presented to me
on March 17, 2010. I agree to notify Employer of my acceptance of
this Agreement by delivering a signed and notarized copy to Employer, addressed
to the attention of Xxxx Xxxx, Novavax, Inc., 0000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 on or before April 7, 2010. I agree that
any change to this offer, whether material or immaterial, will not restart the
running of the consideration period.
I
understand that I may take the entire consideration period to consider this
Agreement. I acknowledge that if I sign and return this Agreement
before the end of the consideration period that I will have knowingly and
voluntarily waived my right to consider the Agreement for the full consideration
period and that I have executed this Agreement voluntarily and with full
knowledge of its significance, meaning and binding effect. I may
return this Agreement in less than the full consideration period only if my
decision to shorten it was knowing and voluntary and was not induced in any way
by Employer.
5. Revocation
Period. I have seven (7)
calendar days from the date I sign this Agreement to revoke it if I choose to do
so. If I elect to revoke, I must give written notice of such
revocation to Employer by delivering it to Xxxx Xxxx, Novavax, Inc., 0000
Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 in such a manner that it is
actually received within the seven (7) calendar day period. I
understand that if I revoke this Agreement, I will not be entitled to the
benefits offered as consideration for this Agreement.
6. Advice to
Consult Legal Representative. Employer
recommends that I consult with an attorney of my own choosing, at my own
expense, with regard to entering into this Agreement.
7. Severability. I agree that if
any provision of this Agreement is or shall be declared invalid or unenforceable
by a court of competent jurisdiction, then such provision will be modified only
to the extent necessary to cure such invalidity, with a view to enforcing the
parties’ intention as set forth in this Agreement to the extent
permissible. All remaining provisions of this Agreement shall not be
affected thereby and shall remain in full force and effect.
8. Choice of
Law. This Agreement
shall be governed by the laws of the State of Maryland, without giving effect to
choice of law principles of any state, except to the extent superseded by
federal law (e.g., ERISA).
9. Employee
Certification - Validity of Agreement. I certify that I
have carefully read this Agreement and have executed it voluntarily and with
full knowledge and understanding of its significance, meaning and binding
effect. I further declare that I am competent to understand the
content and effect of this Agreement and that my decision to enter into this
Agreement has not been influenced in any way by fraud, duress, coercion, mistake
or misleading information. I have not relied on any information
except what is set forth in this Agreement.
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10. Effective
Date. I understand that
this Agreement shall not become effective or enforceable until the expiration of
the revocation period set forth above, provided that I do not elect to revoke
it.
11. Breach of
Agreement. If Employee breaches any of the obligations set
forth in this Agreement, in addition to all of the remedies available to
Employer, Employee will reimburse Employer all amounts paid to Employee as
severance, the amount of $128,866 except salary paid to Employee through the
last date of employment and all accrued and unused vacation
time. Employee further agrees that upon any breach of this Agreement
by Employee, Employee will reimburse Employer for all expenses incurred in
connection with any legal action necessary to enforce this Agreement or as a
result of Employee’s breach of this Agreement, including attorney’s fees and
costs. (As required by the regulations issued by the EEOC, the
foregoing sentence does not apply with respect to a claim under the Age
Discrimination and Employment Act.
IN
WITNESS WHEREOF, and with the intention of being legally bound hereby, I have
executed this Agreement on the 7th day of
April, 2010.
| /s/ Xxxxxxx X. Xxxx, Xx. | |||
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Xxxxxxx
X. Xxxx, Xx.
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