Exhibit
10.4
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This
Amended and Restated Employment Agreement (this
“Agreement”) is dated as of August 2, 2007,
originally effective November 9, 2005, between Novavax, Inc.,
a Delaware corporation having its principal office at 9920 Belward
Campus Drive, Rockville, MD 20850, and Raymond J. Hage, Jr., an
individual with a mailing address of 115 Applegate Drive, West
Chester 19355 (“Executive”). This Agreement is being
amended and restated to provide for certain required changes.
The
Company and Executive hereby agree as follows:
1.
Employment. The Company hereby employs Executive
and Executive hereby accepts employment as Senior Vice President of
Commercial Operations 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.
Executive warrants and represents 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
or his performance of this Agreement.
2.
Duties. During the Term (as hereinafter
defined), Executive shall devote his full business time to the
performance of services as Senior Vice President of Commercial
Operations of Novavax, Inc., performing such services, assuming
such responsibilities and exercising such authority as are set
forth in the Bylaws of the Company for such offices and assuming
such other duties and responsibilities as prescribed by the
President and CEO and Board of Directors. During the Term,
Executive’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 which the
Company shall assign to him from time to time. Executive agrees to
perform his services faithfully and to the best of his ability and
to carry out the policies and directives of the Company.
Notwithstanding the foregoing, it shall not be a violation of this
Agreement for the Executive to serve as a director of any company
whose products do not compete with those of the Company and to
serve as a director, trustee, officer, or consultant to a
charitable or non-profit entity; provided that such service does
not adversely affect Executive’s ability to perform his
obligations hereunder. Executive agrees to take no action which is
in bad faith and prejudicial to the interests of the Company during
his employment hereunder. Notwithstanding the location where
Executive shall be based, as set forth in this Agreement, he also
may be required from time to time to perform duties hereunder for
reasonably short periods of time outside of said area.
3.
Term. The term of this Agreement shall be for
the period beginning on August 10, 2005 and continuing until
September 1, 2008, unless earlier terminated pursuant to
Section 7 hereof (the “Term”) and shall be renewable on
the terms set forth herein upon agreement of the Company and
Executive of the term of such renewal and the initial base
compensation applicable to the renewal term. The parties
acknowledge that the employment hereunder is employment at
will.
4.
Compensation.
(a)
Base Compensation. For all Executive’s
services and covenants under this Agreement, the Company shall pay
Executive an annual salary, which is $238,392 as of this amendment
and restatement, established by the Board of Directors or an
authorized committee thereof (in accordance with the management
processes) and payable in accordance with the Company’s
payroll policy as constituted from time to time. The Company may
withhold from any amounts payable under this Agreement all required
federal, state, city or other taxes and all other deductions as may
be required pursuant to any law or government regulation or
ruling.
(b)
Bonus Program. The Company agrees to pay the
Executive a performance and incentive bonus in respect of
Executive’s employment with the Company each year in an
amount determined by the President and CEO and Board of Directors
(or any committee of the Board of Directors authorized to make that
determination) to be appropriate based upon Executive’s, and
the Company’s, achievement of certain specified goals, with a
maximum bonus of 40%, or any other percentage determined by the
Board of Directors, of Executive’s base salary during the
year to which the bonus relates. Such bonus shall be payable no
later than two and one-half months following the year for which the
bonus applies. The bonus shall be paid out partly in cash and
partly in shares of restricted stock, in the discretion of the
Board of Directors.
(c)
Stock Awards. Executive will be eligible for
additional stock awards based upon performance subject to the
approval of the President and Chief Executive Officer and the Board
of Directors.
5.
Reimbursable Expenses. Executive shall be
entitled to reimbursement for reasonable expenses incurred by him
in connection with the performance of his duties hereunder in
accordance with such procedures and policies for executive officers
as the Company has heretofore or may hereafter establish.
6.
Benefits. (a) Executive shall be
entitled to four weeks of paid vacation time per year starting from
January 1, 2006, calculated and administered in accordance with
Company policies for executive officers in effect from time to
time. The Executive shall be entitled to all other benefits
associated with normal full time employment in accordance with
Company policies.
(b) Executive
shall be entitled to participate in the Company’s Change of
Control Severance Benefit Plan adopted August 10, 2005.
7.
Termination of Employment.
(a) Notwithstanding
any other provision of this Agreement, Executive’s employment
may be terminated, without such action constituting a breach of
this Agreement:
(i) By
the Company, for “Cause,” as defined in Section 7(b)
below;
(ii) By
the Company, upon 30 days’ notice to Executive, if he should
be prevented by illness, accident or other disability (mental or
physical) from discharging his duties hereunder for one or more
periods totaling three consecutive months during any twelve-month
period;
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(iii) By
the Executive with “Good Reason”, as defined in Section
7(c) below, within 30 days of the occurrence or commencement of
such Good Reason;
(iv) By
the event of Executive’s death during the Term.
(b) “Cause”
shall mean (i) Executive’s willful failure or refusal to
perform in all material respects the services required of him
hereby, (ii) Executive’s willful failure or refusal to carry
out any proper and material direction by the President and CEO or
Board of Directors with respect to the services to be rendered by
him hereunder or the manner of rendering such services, (iii)
Executive’s willful misconduct in the performance of his
duties hereunder, (iv) Executive’s commission of an act of
fraud, embezzlement or theft or a felony involving moral turpitude,
(v) Executive’s use or disclosure of Confidential Information
(as defined in Section 10 of this Agreement), other than for the
benefit of the Company in the course of rendering services to the
Company or (vi) Executive’s engagement in any activity
prohibited by Section 11 of this Agreement. For purposes of this
Section 7, the Company shall be required to provide Executive a
specific written warning with regard to any occurrence of
subsections (b)(i), (ii) and (iii) above, which warning shall
include a statement of corrective actions and a 30 day period for
the Executive to respond to and implement such actions, prior to
any termination of employment by the Company pursuant to Section
7(a)(i) above.
(c) “Good
Reason” shall mean the Company’s material reduction or
diminution of Executive’s responsibilities and authority,
other than for Cause, without his consent.
8.
Separation Pay. (a) Subject to
Executive’s execution and delivery to the company of the
Company’s standard form of Separation and Release Agreement,
the Company shall pay Executive an amount equal to the Separation
Pay, or Change of Control Separation Pay, as applicable and as
defined in Section 8(b) below, upon the occurrence of the
applicable Separation Event, as defined in Section 8(c) below, but
in no case later than two and one-half months following the year in
which the Separation Event occurs. Separation Pay, Change of
Control Separation Pay shall each be payable in accordance with the
Company’s payroll policy as constituted from time to time,
and shall be subject to withholding of all applicable federal,
state and local taxes and any other deductions required by
applicable law. In t
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