AMENDED AND RESTATED GENERAL RELEASE OF CLAIMS AND RESTRICTIVE COVENANTS AGREEMENT
Exhibit
10.11
AMENDED
AND RESTATED GENERAL RELEASE OF CLAIMS AND RESTRICTIVE COVENANTS
AGREEMENT
THIS AMENDED AND RESTATED GENERAL
RELEASE OF CLAIMS AND RESTRICTIVE COVENANTS AGREEMENT (Agreement) is made
and entered into by Xxxxx X. Xxxxxxxx (Employee), in consideration of the
promises and mutual covenants contained herein, and in the severance offer from
Novavax, Inc. (Employer) to Employee by memorandum dated January 25,
2010.
WHEREAS, Employer employs
Employee as its Vice President, Technical Quality and Operations;
and
WHEREAS, Employer and Employee
will terminate their employment relationship as of January 11,
2010.
NOW THEREFORE, in
consideration of the mutual promises set forth herein and in the January 25,
2010 memorandum, Employee agrees as follows:
1. Consideration. I am entering
into this Agreement in consideration of the offer of Employer to me severance of
$95,000 (minus all appropriate withholdings and deductions) and $10,155.64,
which represents all accrued but unused vacation time through January 11, 2010,
as well as other good and valuable consideration. The severance offer
and this General Release of Claims and Restrictive Covenants 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 Xxxxx X.
Xxxxxxxx), attorneys, representatives, consultants, associates, fiduciaries,
plan sponsors, administrators and trustees of each of the
foregoing.
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3. Restrictive
Covenants
(a) All
Business to be Property of the Employer; Assignment of Intellectual
Property.
(i) Employee
agrees that any and all presently existing business of the Employer and all
business developed by him or any other employee of the Employer 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 Employer is and shall be the
exclusive property of the Employer, and (where applicable) shall be payable
directly to the Employer.
(ii) Employee
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 Employee solely or jointly with others is the
sole and exclusive property of the Employer, as work for hire, and that he has
no personal right in any such Intellectual Property. Employee hereby
grants to the Employer his entire right, title and interest throughout the world
in and to, all Intellectual Property, which was made, conceived, created,
invested, developed, reduced to practice and/or acquired by him solely or
jointly with others during his employment.
(iii) Employee
shall cooperate fully with the Employer 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, Employee
agrees that to the extent copyrightable, any such original works of authorship
shall be deemed to be "works for hire" and that the Employer 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, Employee hereby irrevocably assigns and transfers to the Employer
all right, title and interest in such works, including but not limited to
copyrights thereof. Employee 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 Employer may deem necessary or desirable in order to protect
its rights and interests in any Intellectual Property (at the Employer’s
expense) and agrees that these obligations are binding upon his assigns,
executors, administrators and other legal representatives. To that
end, Employee shall provide current contact information to the Employer
including, but not limited to, home address, telephone number and email address,
and shall update his contact information whenever necessary.
(b) Confidentiality. Employee
acknowledges his obligation of confidentiality with respect to all proprietary,
confidential and non-public information of the Employer, 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 Employer, in each case
coming into Employee’s possession during his employment, to which Employee had
access, or which Employee discovered or developed (whether or not related to the
business of the Employer at the time this Agreement is signed or any information
Employee originatee, discovered or developed, in whole or in part) as a result
of Employee’s employment by the Employer. Employee shall not for a
period of ten (10) years, use for any purpose disclose to any person whether
Employee has such information in his memory or such information is embodied in
writing, electronic or other tangible form.
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All
originals and copies of any of the foregoing, however and whenever produced,
shall be the sole property of the Employer. 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 Employee or others, which has come into Employee’s custody or
possession, shall be and are the exclusive property of the
Employer. All electronic material containing confidential or
proprietary information or Intellectual Property supplied to Employee by the
Employer will be promptly delivered to the Employer and/or a person or entity
identified by the Employer all such materials or copies of such materials and
all tangible property of the Employer in Employee’s custody or
possession. After such delivery, Employee will not retain any such
materials or copies or any such tangible property or any summaries or memoranda
regarding same.
(c) Non-Competition
Covenant. Employee
agrees and warrants that, he will not, directly or indirectly, 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 Employer (or its successors or assigns) as such
business is now constituted or as it may be constituted at any time during the
Non-Competition Period. The “Non-Competition Period” shall be a
period of six months
following termination of employment.
Employee
and the Employer 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
Employer is engaged and proposes to engage, the state of its business
development and Employee’s knowledge of this business.
(d) Non-Solicitation
Agreement. Employee agrees and covenants that he will not,
directly or indirectly, during the Non-Competition Period (as defined in Section
c above) solicit, entice or attempt to entice away or interfere in any manner
with the Employer’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
Employer.
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 January 25, 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 February 1, 2010. I agree that
any change to this offer, whether material or immaterial, will not restart the
running of the consideration period.
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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.
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. Effect
of Amendment. For the convenience of the
parties this Amendment and Restatement uses the same language as the General
Release of Claims and Restrictive Covenants Agreement originally executed on
February 1, 2010. I understand and agree that the execution of this
Amended and Restated General Release of Claims and Restrictive Covenants
Agreement does not restart the running of the consideration period or the
revocation period as defined above in sections 4 and 5. I further
understand that there is no consideration or revocation period at the execution
of Amended and Restated General Release of Claims and Restrictive Covenants
Agreement.
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IN
WITNESS WHEREOF, and with the intention of being legally bound hereby, I have
executed this Agreement on the 11th day of March, 2010.
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/s/ Xxxxx X. Xxxxxxxx | |
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Sworn to
and Subscribed Before Me
this 11th
day of March, 2010.
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