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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
AGREEMENT (the "Employment Agreement" or this "Agreement") dated as of
the 24 day of July, 1997, between Novavax, Inc., a Delaware corporation having
its principal office at 8320 Guilford Road, Columbia, Maryland 21046 (the
"Company") and Brenda Fugagli ("Employee") residing at 988 Stonington Drive,
Arnold, Maryland 21012.
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 she 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 her performance under this Agreement.
2. Duties. Employee shall devote her full business time to the
performance of services as Vice President, Treasurer and Chief Financial Officer
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 she shall devote her entire business time, attention and energies to
the business of the Company and the duties to which the Company shall assign her
from time to time. Employee agrees to perform her services faithfully and to the
best of her 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 her employment hereunder. Employee shall be
based in Columbia, Maryland but she 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 July 21, 1997 and
shall end on July 20, 1998 (the "Term"). Employee's performance will be reviewed
by the Chief Executive Officer and the Compensation Committee of the Board of
Directors after six months of employment for the purposes of evaluation and
possible extension.
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
$135,000, 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 100,000 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 (and, to the extent required by the Internal Revenue Code, a
Non-Statutory 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 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.
(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 on performance criteria mutually
determined by the Employee and the Company.
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5. Expenses. Employee shall be entitled to reimbursement for
reasonable expenses incurred by Employee in connection with the performance of
her duties hereunder upon receipt of vouchers therefor in accordance with such
procedures as the Company has heretofore or may hereafter establish.
6. 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) 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 her 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 Board of
Directors, her 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 her hereunder or the manner of rendering such
services, her willful misconduct in the performance of her duties hereunder or
her commission of a felony involving moral turpitude;
(b) By the Company, upon 30 days' notice to Employee, if she should
be prevented by illness, accident or other disability (mental or physical) from
discharging her 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
her salary, but not a performance bonus, for one month from the date of
termination, payable in a lump sum together with any accrued vacation pay and in
the amounts set forth in Section 4(a) above. The Employee shall be entitled to
terminate her employment for "Good Reason" if her responsibilities and authority
are reduced or diluted in any material way (other than for cause) without her
consent or if she is relocated to another Company office or facility more than
50 miles from Columbia, Maryland without her consent.
(d) In the event of Employee's death during the term of her
employment, the Company's obligation to pay further compensation hereunder shall
cease forthwith, except that Employee's legal representative shall be entitled
to receive her 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 her or any other employee of the
Company including without limitation all
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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 her from time to time
in the course of her employment) her 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 her solely or jointly with others during the period
of her 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 her employment with the Company or thereafter,
use for her 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 her 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 her
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, she 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 one month 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
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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
she 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, 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: Richard F. Maradie, with a copy to David A. White, Esq., White &
McDermott, P.C., 65 William Street, Suite 209, Wellesley, Massachusetts 02181,
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, her 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 she 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, she 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.
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
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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, by the
Employee or upon the expiration of the Term).
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/ RICHARD F. MARADIE
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Richard F. Maradie, Chief Executive Officer
/s/ BRENDA FUGAGLI
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Brenda Fugagli
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