CONSULTING AGREEMENT
Exhibit
10.50
THIS
CONSULTING AGREEMENT (this “Agreement”) is made as of April 1, 2010, by and
between Novavax, Inc. (“Novavax”), having a place of business at 0000 Xxxxxxx
Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, and Xxxx Xxxxxxx, residing at Box
Cottage, Church Lane, Great Xxxxxx, Aylesbury, Bucks UK HP17 9TH (the
“Consultant”).
Consultant
and Novavax, intending to be legally bound, hereby agree as
follows:
1.
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Engagement. Upon the
terms and subject to the conditions set forth in this Agreement, Novavax
hereby agrees to engage Consultant as an independent contractor, to render
services to and on behalf of Novavax and Consultant hereby agrees to
render such services to and on behalf of
Novavax.
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2.
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Consultant
Services. The
Consultant shall provide the services described in Exhibit A (the
“Services”).
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3.
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Provisions
of Services – Prior
Approval.
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3.1
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Production of
Deliverables. Consultant’s performance of Services shall
only include the completion and delivery of deliverables that may be set
forth on Exhibit
A (“Deliverables”). Novavax shall not be liable to
Consultant for the cost of any Deliverables not performed pursuant to
Novavax’s request for or assent to the production of such Deliverables in
writing.
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3.2
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Meetings. Consultant
shall attend meetings at Novavax or elsewhere pursuant to the written
agreement of Novavax and Consultant, identifying the location and timing
of the meeting. Novavax shall be liable for Consultant’s fees
and related expenses only for attendance at meetings mutually agreed to in
writing by both parties.
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4.
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Fees and
Invoicing.
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4.1
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Fees. In full
consideration of the provision of the Services and the obligations
undertaken pursuant to this Agreement, Novavax agrees to pay Consultant at
the rate of $375 per hour up to the initial 8 hours in a particular day
and capped at $3000 per day for any work in excess of 8
hours.
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4.2
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Expenses.
Novavax shall reimburse Consultant for the reasonable transportation costs
and related expenses incurred by Consultant in connection with the
Services that are approved in advance by Novavax, payable upon receipt of
invoice with copies of receipts for such expenses. Novavax will provide
reimbursement for legitimate, approved business related expenses. These
include business class travel (via British Airways or other similar
airlines), meals, hotel, rental car, use of own car, telephone, and other
items. Consultant shall submit itemized documentation and receipts to
Novavax at the time reimbursement is requested. Such documentation will be
audited to ensure that charges are reasonable and customary. Consultant
shall bear the cost of all other expenses incurred by Consultant in
connection with the performance of the Services, unless otherwise agreed
in writing.
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4.3
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Invoicing. No
later than thirty (30) days after the end of each calendar quarter,
Consultant shall provide Novavax with an invoice detailing all time spent
by Consultant in performing the Services, the expenses incurred by
Consultant in connection therewith that were approved by Novavax, and the
total amount due to Consultant. The invoices shall provide a narrative
description of the activity performed, the time spent by Consultant
performing such activities, and shall contain such other information in
such detail as Novavax may reasonably request. Subject to the terms and
conditions set forth herein, Novavax shall pay all amounts due hereunder,
and not disputed in good faith, within thirty (30) days after its receipt
of such invoice.
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4.4
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Relationship of the
Parties. The relationship of the Consultant to the Company
hereunder is that of independent contractor. Nothing herein shall be
deemed to create any partnership, association or joint venture between the
parties. Consultant shall not be construed for any purpose to be an
employee subject to the control and direction of the Company or any of its
affiliates. Consultant shall not be entitled to any of the benefits,
coverages or privileges, including, without limitation, social security,
unemployment, medical or pension payments, made available to employees of
the Company. The Consultant shall have sole responsibility, subject to
rules promulgated by the U.S. Internal Revenue Service (the “IRS”), for
the proper reporting and payment of any and all applicable U. S. taxes due
on payments made to the Consultant by the Company
hereunder.
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5.
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Term
and Termination.
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5.1
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Term and
Termination. This Agreement shall commence on the date
set forth above and expire twelve (12) months thereafter, unless
terminated earlier as set forth in this Paragraph 5.1. Upon
mutual written agreement no later than thirty (30) days before the
anniversary of the Effective Date, this agreement may be renewed for
additional twelve (12) month
periods.
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(a)
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Novavax
may terminate this Agreement before its expiration or any specific
Services for any reason upon thirty (30) days advance written notice to
Consultant.
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(b)
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Consultant
may terminate this Agreement and/or any specific Services if Novavax is in
default of any of its material obligations set forth herein, and such
breach is not cured within thirty (30) days after Novavax’s receipt of a
written notice from Consultant that describes such breach in reasonable
detail.
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5.2
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Duties Upon
Termination. Upon termination of this Agreement for any
reason, the Consultant shall promptly deliver to Novavax all Confidential
Information and all copies thereof and immediately cease all use of
Confidential Information and the Intellectual Work
Product.
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6.
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Confidential
Information.
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6.1
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Without
the express prior written consent of Novavax, Consultant shall only use
for the purpose of rendering the Services and shall not disclose or use
any Confidential Information (as defined below) of Novavax for
Consultant’s direct or indirect benefit or the direct or indirect benefit
of any third party, and Consultant shall maintain, both during and for
seven years after Consultant’s engagement, the confidentiality of all
Confidential Information of Novavax. The term "Confidential Information"
shall include all information disclosed to Consultant by Novavax including
without limitation: trade secrets, know-how, patent applications or
patentable improvements thereto, biomedical technology, inventions,
writings, blueprints, computer programs, documents, engineering
specifications, diagrams, charts, models, research studies, assays,
marketing studies, process descriptions, manufacturing processes,
projections, information relating to customers, suppliers, distributors,
licensees, profits, costs, pricing or tooling, and all other materials or
information relating to or dealing with the business operations,
technologies or activities of Novavax, whether written, oral, electronic
or visual, tangible or intangible, whether machine readable or otherwise
and shall also include the existence of any relationship between Novavax
and Consultant, including but not limited to the terms of this Agreement
and the terms of the engagement by Novavax of Consultant; and all information and
materials prepared by Consultant in the course of, relating to or arising
out of his engagement by Novavax, or prepared by any other Novavax
employee or contractor for Novavax or its customers. Failure to xxxx any
of the Confidential Information as confidential or proprietary shall not
affect its status as Confidential Information under the terms of this
Agreement.
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6.2
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At
Novavax’s request, Consultant shall immediately: (i) discontinue all use
of all Confidential Information; (ii) return to Novavax all materials then
in Consultant’s possession or subject to its control that contain
Confidential Information, including all copies thereof and all summaries,
analyses and notes thereon; (iii) erase or destroy all Confidential
Information contained in computer memory or data storage apparatus under
the ownership or control of Consultant; and (iv) warrant in writing to
Novavax that Consultant has taken all actions described in the foregoing
Subparagraphs 6.2(i)-(iii).
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6.3
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The
restrictions set forth in this Section 6 shall not apply to Confidential
Information that:
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(a)
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is
rightfully in the possession of the receiving party prior to the date of
the disclosure of such information to the receiving party by the
disclosing party;
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(b)
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is
in the public domain prior to the date of the disclosure of such
information to the receiving party by the disclosing
party;
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(c)
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becomes
part of the public domain by publication or by any other means except an
unauthorized act or omission on the part of the receiving party or its
employees, consultants or advisors;
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(d)
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is
or was supplied to the receiving party on a non-confidential basis by a
third party who is under no obligation to the disclosing party to maintain
such information in confidence. Specific information disclosed
as part of the Confidential Information shall not be deemed to be in the
public domain or in the prior possession of Consultant merely because it
is embraced by more general information in the public domain or in the
prior possession of Consultant.
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6.4
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Securities
Trading. Consultant further agrees that it will conform
in all respects to the securities and trading policies of Company and with
the laws and regulations governing activities including, buying, selling
or otherwise trading securities of the Company. Consultant
shall consult with the Chief Financial Officer of Company as to when such
trading shall be permitted.
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7.
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Property
Rights. All work produced hereunder, including, without limitation,
all inventions, ideas, creations, designs, discoveries, developments,
techniques, expressions, improvements, computer programs, specifications,
operating instructions and all other documentation, data or other work
product related to the Services provided by the Consultant under this
Agreement (whether patentable or subject to copyright, or not), which are
first conceived, made or otherwise originated or acquired or first
actually constructively reduced to practice during the Term or within six
(6) months following the expiration or termination of the Term, whether
preliminary or final, and on whatever media rendered (collectively, the
“Work Product”), shall be deemed work made for hire and made in the course
of services rendered for the Company and shall be the sole and exclusive
property of the Company. The Company shall have the sole, absolute and
unlimited right throughout the world to protect by patent or copyright,
and to make, have made, use, reconstruct, repair, modify reproduce,
publish, distribute and sell the Work Product, in whole or in part, or
combine the Work Product with other matter, or not use the Work Product at
all, as it sees fit. To the extent that title to the Work Product may not
be considered work for hire, the Consultant irrevocably agrees to transfer
and assign to the Company in perpetuity all worldwide right, title and
interest in and to the patent rights, copyrights, trade secrets and other
proprietary rights (including, without limitation, applications for
registrations thereof) in, and ownership of, the Work Product that the
Consultant may have, as and when such rights arise. The Consultant further
agrees that it will execute, and will cause its applicable employees to
execute, all documents necessary to enable the Company to protect and
record its ownership of the Work
Product.
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8.
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Authority
to Contract. The Company represents
and warrants to Consultant that the execution and delivery of this
Agreement and the performance of the provisions hereof have been duly
authorized by all necessary action on its part, that this Agreement has
been duly and validly executed and delivered by it, that this Agreement
constitutes a valid and legally binding agreement enforceable against it
in accordance with its terms. Consultant represents and warrants to the
Company that this Agreement has been duly and validly executed and
delivered by him or her, that this Agreement constitutes a valid and
legally binding agreement enforceable against him or her in accordance
with its terms, and that neither the execution and delivery of this
Agreement nor the performance of the provisions hereof constitute or will
constitute a violation of any contract, or other agreement or relationship
to which he or she is a party or by which he or she is
bound.
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9.
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Debarment.
Consultant has not been debarred under the provisions of the Generic Drug
Enforcement Act of 1992, including without limitation, 21 U.S.C. Section
335a. If at any time during the term of this Agreement Consultant (a)
becomes debarred, or (b) receives notice of action or threat of action
with respect to its debarment, Consultant shall notify Novavax
immediately. In the event that Consultant becomes debarred as set forth
above, this Agreement shall automatically terminate upon receipt of such
notice without any further action or notice. In the event that Consultant
receives notice of action as set forth above, Novavax shall have the right
to terminate this Agreement
immediately.
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10.
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11.
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Equitable
Relief. In the event that any provision of Section 6 or
7 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. Consultant recognizes and agrees
that the Company’s remedy at law for any breach of the provisions of
Sections 6 or 7 hereof would be inadequate, and Consultant 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.
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12.
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Miscellaneous.
This Agreement and the Exhibit attached hereto (which is incorporated
herein by reference) contains the entire agreement and understanding of
the parties relating to the subject matter hereof and merges and
supersedes all prior discussions, agreements and understandings of every
nature between them. This Agreement may not be changed or modified, except
by an agreement in writing signed by both of the parties hereto. The
waiver of the breach of any term or provision of this Agreement shall not
operate as or be construed to be a waiver of any other or subsequent
breach of this Agreement. The obligations of Consultant as set forth
herein, other than Consultant’s obligations to perform the Services, shall
survive the termination of Consultant’s engagement with Novavax. Novavax
may assign this Agreement to, and this Agreement shall bind and inure to
the benefit of, any parent, subsidiary, affiliate or successor of Novavax.
This Agreement shall not be assignable by Consultant. This Agreement may
be executed in any number of counterparts, and each such counterpart shall
be deemed to be an original instrument, but all such counterparts together
shall constitute but one agreement.
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IN WITNESS WHEREOF, the parties have
caused this Consulting Agreement to be executed the day and year first above
written.
NOVAVAX,
INC.
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By:
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/s/ Xxxxxxxxx X.
Xxxxxxxx
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Name:
Xxxxxxxxx X. Xxxxxxxx
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Title:
Vice President, Chief Financial Officer and Treasurer
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Xxxx
Xxxxxxx:
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/s/ Xxxx Xxxxxxx
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Exhibit
A
Services:
Consultant
has agreed to use his best efforts to, in good faith, fairly and accurately
represent the Company’s fiduciary interest in the joint venture known as CPL
Biologicals Pvt. Ltd. (“CPL-B”), as a Company appointed director to the CPL-B
board of directors. Consultant shall reasonably attend any such board
meetings whether in person or by telephone or video conferencing, or if
unavailable to participate, shall work with Company to provide reasonable notice
of such unavailability and work to insure that a Company representative is
serving in this capacity. Consultant shall be expected to travel to
the CPL-B facility in India at reasonable intervals. In addition, as
directed by the Company’s CEO, Executive Chairman, or the Board of Directors,
Consultant shall provide such other services based on his experience and
expertise to fairly and accurately represent the Company’s fiduciary interest
and responsibilities to CPL-B.
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