exv10w4






Exhibit 10.4




Employment Agreement

Between

GeoVax, Inc. and Mark Newman, Ph.D.



This EMPLOYMENT AGREEMENT (the “Agreement”) by and between GeoVax, Inc., a Georgia Corporation
(“Company”), and Mark Newman (“Employee”; and with the Company, collectively, the “Parties”), is
entered into and effective as of 04 January 2010 (the “Effective Date”).



Employee will serve as Vice President, Research and Development of the Company. The Company and
Employee desire that Employee be employed by the Company in the above capacity under the terms of
this Agreement. Therefore, in consideration of the mutual covenants and agreements set forth
herein, it is agreed:





	1.	 	Employment; Duties. Employee is hereby employed by the Company under the terms of
this Agreement, and Employee accepts such employment. Employee shall serve in the capacity as
defined above and shall perform the following duties (“Employees Duties”): such duties as are
customary for someone in that position and duties that may be reasonably assigned from time to
time by the Chief Scientific Officer and in the absence of the CSO, the President and CEO.
Primary duties include but are not limited to: working with the CSO and CEO to establish
research objectives, conceptualization and implementation programs for the development of
vaccines to fulfill corporate objectives, and evaluation of new technologies and/or business
development opportunities.
	 
	2.	 	Term of Agreement. The term of Employee’s employment under this Agreement commences
on or about 04 January 2010 and shall end upon the termination of Employee’s
employment with the Company as provided herein. The Company may terminate this Agreement upon
at least 30 days prior written notice to Employee, and such termination shall be effective on
the termination date described in such notice (or such earlier time as the Company and
Employee may agree). Notwithstanding the foregoing, the termination of this Agreement shall
not terminate the Company’s obligation to make any payments to Employee for services performed
and expenses incurred prior to the date of such termination, or as set forth below; and shall
not terminate Employee’s obligations under Section 14, 15 and 16 below.
	 
	3.	 	Base Salary. The Company shall pay Employee a base salary of $225,000 annually,
payable at least monthly, with annual reviews. Performance and salary reviews are at the
discretion of the President/CEO and/or Board of Directors.
	 
	4.	 	Performance Reviews. Subsequent to the initial performance review as discussed under
Section 2 above, performance reviews will be conducted at least annually by the President/CEO
or designee.
	 
	5.	 	Annual Bonus Potential. An annual fiscal year bonus will be considered and
recommended, if appropriate, by the supervisor and President/CEO and must be BOD approved.
The actual amount shall be at the discretion of the President/BOD based on Employee’s and the
Company’s performance and achievement.
	 
	6.	 	Equity Stock Incentive. The Company shall grant Employee a total of 1.2 million
stock options to be awarded on the effective date of this Agreement. These options will allow
employee the right to purchase shares of the Company’s common stock at an exercise price per
share equal to the closing market price of the Company’s common stock on the effective date of
this Agreement. The options will have a life of ten years and will vest over a three year
period from the date of grant. Additional option grants are performance based and at the
discretion of the President/CEO based on Employee’s and the Company’s performance and
achievement.
	 
	7.	 	Moving Expenses. Company will reimburse the Employee for reasonable expenses
incurred during the relocation of personal belongings from San Diego, California to Atlanta,
Georgia. Employee will provide an estimate of such moving costs for pre-approval by the
Company prior to incurring such costs.
	 
	8.	 	Temporary Living Expense. N/A




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	9.	 	Other Business Expenses. N/A
	 
	10.	 	Benefits. Employee will be entitled to the following benefits in line with the
company’s ongoing benefits program administered through an HR employment agency (Administaff
Services Inc.) or other company selected benefits administrator. Benefit details are provided
in an information packet available from the Company.






	 	a.	 	Life Insurance Benefits: $50,000 in term life insurance. Additional
insurance is available through the HR agency.
	 
	 	b.	 	Long-Term Disability Insurance: As provided.
	 
	 	c.	 	Medical & Dental Insurance: As provided.
	 
	 	d.	 	Vacation: Four (4) weeks paid vacation, accrued on a prorate basis,
and subject to the Company’s paid-time-off policy as documented in the Employee
Handbook
	 
	 	e.	 	Holidays: Nine (9) paid holidays.
	 
	 	f.	 	Retirement Plan: a Company 401(k) Retirement Plan that allows Employee
to contribute up to 15% of salary on a pre-tax basis up to a maximum as prescribed
under federal law. Employer matching and/or profit contribution will be at the
discretion of the Company and approved annually by the Board. Employees are eligible
after six months full time employment. See current plan for details.






	11.	 	Termination Provision—Non Voluntary






	 	a.	 	With Cause. If Employee is terminated with cause, Employee’s
employment, compensation and benefits will terminate immediately (unless otherwise
provided by law), and Employee shall not receive any severance payments.
	 
	 	b.	 	Without Cause. If Employee is terminated without cause,
Employee must be given 30 days notice, and his salary will continue to be paid for 1
week for each full year of service.






	12.	 	Termination Provision—Voluntary. Employee may voluntarily terminate his employment
on 60 day written notice to the Company, and Employee’s employment, compensation and benefits
will terminate on the effective date of termination (unless otherwise provided by law), and
Employee shall not receive any severance payments.
	 
	13.	 	Record Keeping and Payment. Employee shall keep and file with the Company an expense
report for all business expenses for which Employee seeks reimbursement, and Employee shall be
reimbursed for such documented business expenses within thirty (30) days of submitting a
request for reimbursement.
	 
	14.	 	Restrictive Covenants. Employee acknowledges that the restrictions contained
herein are reasonable and necessary to protect the legitimate business interests of the
Company, and will not impair or infringe upon his right to work or earn a living after his
employment with the Company ends. The restrictions imposed herein shall apply during
Employee’s employment with the Company and, except for the longer period specified below for
the protection of Trade Secrets, thereafter for a period of two (2) years after the
termination of employment for any reason (the “Restricted Period”).






	 	a.	 	Trade Secrets and Confidential Information. Employee represents and
warrants that: (i) he is not subject to any agreement that would prevent him from
performing Employee’s Duties for the Company or otherwise complying with this
Agreement, and (ii) he is not subject to or in breach of any non-disclosure agreement,
including any agreement concerning trade secrets or confidential information owned by
any other party.




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	 	 	 	Employee agrees that he will not: (i) use, disclose, or reverse engineer the
Trade Secrets or the Confidential Information (as defined below),
except as authorized by the Company; (ii) or during his employment with the Company,
use, disclose, or reverse engineer (a) any confidential information or trade secrets
of any former employer or third party, or (b) any works of authorship developed in
whole or in part by him during any former employment or for any other party, unless
authorized in writing by the former employer or third party; or (iii) upon his
resignation or termination (a) retain Trade Secrets or Confidential
Information, including any copies existing in any form (including electronic
form), which are in his possession or control, or (b) destroy, delete, or alter the
Trade Secrets or Confidential Information without the Company’s consent.
Notwithstanding the above, such information may be disclosed to authorized
representatives of the US government in federal grant applications and to third
parties in connection with licensing, financing and other commercial agreements, in
each case to the extent the failure to provide such information would materially
prejudice the Company’s ability to secure the grant or enter into the desired
commercial relationship, and provided that in each case Employee uses his best
efforts to cause the person(s) receiving such information to protect its
confidentiality and limit its use, including securing a written confidentiality
agreement where possible.
	 
	 	 	 	The obligations under this subsection 15.a shall: (i) with regard to the Trade
Secrets, remain in effect as long as the information constitutes a trade secret
under applicable law, and (ii) with regard to the Confidential Information,
remain in effect during the Restricted Period.
	 
	 	b.	 	“Confidential Information” means information of the Company, to the
extent not considered a Trade Secret under applicable law, that (i) relates to
the business of the Company, (ii) possesses an element of value to the Company, (iii)
is not generally known to the Company’s competitors, and (iv) would damage the Company
if disclosed. Confidential Information includes, but is not limited to, (i)
future business plans, (ii) the composition, description, schematic or design of
products, future products or equipment of the Company, (iii) communication systems,
audio systems, system designs and related documentation, (iv) advertising or marketing
plans, (v) information regarding independent contractors, employees, clients and
customers of the Company, and (vi) information concerning the Company’s financial
structure and methods and procedures of operation. Confidential Information shall not
include any information that (i) is or becomes generally available to the public other
than as a result of an unauthorized disclosure, (ii) has been independently developed
and disclosed by others without violating this Agreement or the legal rights of any
party, or (iii) otherwise enters the public domain through lawful means.
	 
	 	c.	 	“Trade Secrets” means information of the Company, and its licensors,
suppliers, clients and customers, without regard to form, including, but not limited
to, technical or non-technical data, a formula, a pattern, a compilation, a program, a
device, a method, a technique, a drawing, a process, financial data, financial plans,
product plans, or a list of actual or potential customers or suppliers which is not
commonly known by or available to the public and which information (i) derives
economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and (ii) is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy.
	 
	 	d.	 	Non-Solicitation of Customers and Business Partners. During the
Restricted Period, Employee will not solicit any customer of the Company, or
any for-profit or not-for-profit enterprise in a commercial or research relationship
with the Company, on his own behalf or on behalf of any other person or entity, for
the purpose of providing any goods or services competitive with the business of the
Company as described in the Company’s Business Plan or thereafter (the “Business”), or
for the purpose of diverting the benefits of any such relationship away from the
Company. The restrictions set forth in this Section apply only to the customers and
enterprises with whom Employee had interaction (i) in an effort to establish,
maintain, and/or further a business relationship on behalf of the Company, and (ii)
which occurs during the last year of Employee’s employment with the Company (or during
his employment if employed less than a year).




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	 	e.	 	Non-Recruitment of Employees. During the Restricted Period,
Employee will not, directly or indirectly, solicit, recruit or induce any employee of
the Company or any affiliate of the Company either to terminate his or her employment
relationship with the Company, or work for any other person or entity engaged in a
business like the Business.






	15.	 	Work Product. Employee’s Duties may include creation of inventions in areas directly
or indirectly related to the business of the Company or to a line of business that the Company
may reasonably be interested in pursuing. All Work Product (as defined below) shall
constitute work made for hire. If (i) any of the Work Product may not be considered work made
for hire, or (ii) ownership of all right, title, and interest to the legal rights in and to
the Work Product will not vest exclusively in the Company, then, without further
consideration, Employee assigns all presently-existing Work Product to the Company, and agrees
to assign, and automatically assigns, all future Work Product to the Company.
	 
	 	 	The Company will have the right to obtain and hold in its own name
copyrights, patents, design registrations, proprietary database
rights, trademarks, rights of publicity, and any other protection
available in the Work Product. At the Company’s request, Employee
will perform, during or after his employment with the Company, any
acts to transfer, perfect and defend the Company’s ownership of the
Work Product, including, but not limited to: (i) executing all
documents (including a formal assignment to the Company) necessary for
filing an application or registration for protection of the Work
Product (an “Application”), (ii) explaining the nature of the Work
Product to persons designated by the Company, (iii) reviewing
Applications and other related papers, or (iv) providing any other
assistance reasonably required for the orderly prosecution of
Applications. Employee will provide the Company with a written
description of any Work Product in which he is involved (solely or
jointly with others) and the circumstances surrounding the creation of
such Work Product.
	 
	 	 	“Work Product” means (a) any data, databases, materials,
documentation, computer programs, inventions (whether or not
patentable), designs, and/or works of authorship, including but not
limited to, discoveries, ideas, concepts, properties, formulas,
compositions, methods, programs, procedures, systems, techniques,
products, improvements, innovations, writings, pictures, and artistic
works, and (b) any subject matter protected under patent, copyright,
proprietary database, trademark, trade secret, rights of publicity,
confidential information, or other property rights, including all
worldwide rights therein, that is or was conceived, created or
developed in whole or in part by Employee while employed by the
Company and that either (i) is created within the scope of his
employment, (ii) is based on, results from, or is suggested by any
work performed within the scope of his employment, (iii) is directly
or indirectly related to the business of the Company or a line of
business that the Company may reasonably be interested in pursuing,
(iv) has been or will be paid for by the Company, or (iv) was created
or improved in whole or in part by using the Company’s time,
resources, data, facilities, or equipment.
	 
	16.	 	Arbitration.






	 	a.	 	Any controversy, claim or dispute arising from, out of or relating to this
Agreement, or any breach thereof, including but not limited to any dispute concerning
the scope of this arbitration clause, claims based in tort or contract, claims for
discrimination under federal, state or local law, and/ or claims for violation of any
federal, state or local law (any such controversy, claim or dispute being referred to
herein as a “Claim”) shall be resolved in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association then in
effect. Such arbitration shall take place in Atlanta, Georgia. The arbitrator’s award
shall be final and binding upon both parties.
	 
	 	b.	 	A demand for arbitration shall be made within a reasonable time after the Claim
has arisen. In no event shall the demand for arbitration be made after the date when an
institution of legal and/or equitable proceedings based on such Claim would be barred
by the applicable statute of limitations. Each party to the arbitration will be
entitled to be represented by counsel and shall have the right to subpoena witnesses
and documents for the arbitration hearing. The arbitrator shall be experienced in
employment arbitration and licensed to practice law in the state of Georgia. The
arbitrator shall have the authority to hear and grant a motion to dismiss and/ or
motion for summary judgment, applying the standards governing such motions under the
Federal Rules of Civil Procedure.




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	 	c.	 	Except as otherwise awarded by the arbitrator, each party shall pay the fees of
its respective attorneys, the expenses of its witnesses and any other expenses
connected with presenting its Claim or defense. To the extent permitted by law, the
prevailing party shall be entitled to receive, in addition to all other relief, payment
of all expenses of litigation and arbitration, including attorney’s fees.
	 
	 	d.	 	The parties indicate their acceptance of the foregoing arbitration requirement
by initialing below:





	 	 	 	 	 	 	 	 	 
	 
	  

	 	 

For the Company
	 	 
	 	 

Employee
	 	 







	17.	 	Miscellaneous. This Agreement constitutes the entire agreement between the
Parties concerning the subject matter of this Agreement. This Agreement supersedes any prior
communications, agreements or understandings, whether oral or written, between the Parties
relating to the subject matter of this Agreement. This Agreement may not be amended or
modified except in writing signed by both Parties. This Agreement shall be assignable to, and
shall inure to the benefit of, the Company’s successors and assigns, including, without
limitation, successors through merger, consolidation, or sale of a majority of the Company’s
assets. Employee shall not have the right to assign Employee’s rights or obligations under
this Agreement, except as permitted under the laws of descent and distribution. The laws of
the State of Georgia shall govern this Agreement.




The Parties hereto have executed this Agreement as of the day and year first written below.




	 	 	 	 	 	 	 	 	 	 	 
	GEOVAX, INC.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	Date:	 	 	 	 
	 

	 	 

Robert T. McNally Ph. D. / President & CEO
	 	 
	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	EMPLOYEE	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	Date:	 	 	 	 
	 

	 	 

Mark Newman, Ph.D.
	 	 
	 	 	 	 

	 	 







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