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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
AGREEMENT (the "Employment Agreement" or this "Agreement") effective as
of the 23rd day of February, 1998, between Novavax, Inc., a Delaware corporation
having its principal office at 0000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (the
"Company") and Xxxxxx X. Xxxxxxxxx ("Employee") residing at 00 Xxxxxxxxx
Xxxxxxx, Xxxxx Xxxxxx, 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 prohibits, restricts, or would be breached by either his
acceptance of or his performance under this Agreement.
2. Duties. Employee shall devote his full business time to the
performance of services as Vice President, Business Development or such other
senior management services as may from time to time be designated by the
Company's Chief Executive Officer 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.
3. Term. The term of this Agreement shall be one year beginning on the
date hereof and ending February 22, 1999, provided, however, that this Agreement
shall be automatically extended for periods of one year after such date, unless
and until the Company or Employee shall have delivered to the other written
notice of its or his election to terminate this Agreement as of February 22,
1999, or as of the end of any such one-year extension period, such notice to be
delivered at least 30 days prior to the date of termination (the "Term")
4. Compensation.
(a) Base Compensation. For all Employee's services and covenants under
this Agreement, the Company shall pay Employee an initial annual salary of
$130,000, subject to annual review by the Board of Directors of the Company and
payable in accordance with the Company's payroll policy as constituted from time
to time.
(b) Stock Options. Employee shall be entitled to receive stock options
to purchase 75,000 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, February 11, 1998. The options will be subject to a Incentive
Stock Option Agreement (and, to the extent required by the Internal Revenue
Code, a Non-Statutory Stock Option Agreement) which shall vest 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.
(c) Bonus Program. During the Term, the Employee shall be entitled to
participate in a bonus program, if any, maintained from time to time by the
Company for the benefit of senior executives and other employees of the Company
under which award payments, if any, are based
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on performance criteria and milestones to be mutually determined by the Employee
and the Company.
5. Reimbursable Expenses.
(a) 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.
(b) Employee shall be entitled to reimbursement for reasonable
expenses associated with commuting from his residence in Massachusetts to the
Company's office in Columbia, Maryland, including airfare, parking, tolls,
rental cars and up to $200 per month for living accommodations in the Columbia,
Maryland area, provided that Employee makes reasonable efforts to minimize all
such expenses. Employee will be reimbursed for such expenses upon receipt of
vouchers therefor in accordance with such procedures as the Company has
heretofore or may hereafter establish. Employee is responsible for all income
and other applicable taxes due and payable with respect to any reimbursement
received hereunder.
6. Employee Benefits.
(a) Employee shall be entitled to three weeks of paid 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 three 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 participate 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.
7. 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 written warning with regard thereto, which shall include a
statement of corrective actions and a 30 day period for the Employee to respond
and implement such actions, has been given to Employee by the Chief Executive
Officer of the Company or its Board of Directors, his willful failure or refusal
to carry out any proper direction by the Chief Executive Officer or 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, or by Employee with "Good Reason"
(as hereinafter defined), provided that if Employee's employment is terminated
pursuant to this Section 7(c), Employee shall be entitled to receive his then
current salary as set forth in Section 4(a) above, but not a performance bonus,
for one year from the date of termination, payable in accordance with the
Company's payroll policy as constituted from time to time, together with any
accrued vacation pay at his then current salary and in the amounts set forth in
Section 4(a) above. The Employee
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shall be entitled to terminate his employment for "Good Reason" if his
responsibilities and authority are reduced or diluted in any material way (other
than for cause) without his consent or if he is relocated to another Company
office or facility more than 50 miles from Columbia, Maryland without his
consent.
(d) By the event of Employee's death during the term of his
employment; whereupon 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.
8. 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, which are either (i)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 or (ii) if related to the Company's business, 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.
9. Confidentiality. Except as necessary in performance of services for
the Company or if required by law and except for such information that becomes
generally available to the public through no fault of Employee, 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 8(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.
10. 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
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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 Employee may own less than one percent of the equity of
a publicly traded company. The "Non-Competition Period" shall be a period of one
year following termination of employment.
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 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.
11. 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 one year
thereafter solicit, entice away or interfere with the Company's contractual
relationships with any customer, officer or employee of the Company.
12. 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
address(es) 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: Xxxxxxx X. Xxxxxxx, 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 address(es) as the Company shall have furnished to
the Employee in writing.
13. 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 7
shall inure to the benefit of, his heirs, executors, administrators and legal
representatives.
14. 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.
15. Equitable Relief. Employee recognizes and agrees that the Company's
remedy at law for any breach of the provisions of Sections 8, 9, 10 or 11 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
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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.
16. 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.
17. 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.
18. 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.
19. 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
the principles of conflict of law thereof.
20. Resolution of Disputes. With the exception of proceedings for
equitable relief brought pursuant to Section 15 of this Agreement or any stock
option agreement, any disputes arising under or in connection with this
Agreement or any stock option 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 held in Baltimore,
Maryland, in accordance with the rules and procedures of the American
Arbitration Association. All costs, fees and expenses, including reasonable
attorney fees, of any arbitration or equitable relief proceeding in connection
with this Agreement shall be borne by, and be the obligation of, the Company. In
no event shall the Employee be required to reimburse the Company for any of the
costs and expenses incurred by the Company relating to any arbitration. The
obligation of the Company under this Section 20 shall survive the termination
for any reason of the Term (whether such termination is by the Company or by the
Employee).
21. Indemnification. The Employee shall be entitled to liability and
expense indemnification to the fullest extent permitted by the Company's current
By-laws and Certificate of Incorporation, whether or not the same are
subsequently amended.
22. Survivorship. The respective rights and obligations of the parties to
this Agreement shall survive any termination of this Agreement or the Employee's
employment hereunder for any reason to the extent necessary to the intended
preservation of such rights and obligations.
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/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President and CEO
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
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