Executive Employment Agreement - Celsion Corp. and Daniel S. Reale
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, made as of the 9th day of April 2001
between DANIEL S. REALE (the "Executive"), an individual residing at 16
Goodnough Road, Brookline, MA 02467, and CELSION CORPORATION (the "Company"), a
Maryland corporation with offices at 10220-1 Old Columbia Road, Columbia,
Maryland 21046-1705.
WITNESSETH:
WHEREAS, the Executive desires to be employed by the Company,
and the Company desires that the Executive shall be employed by it and render
services to it, and the Executive is willing to be so employed and to render
services, all upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 The Company hereby employs Executive, and the
Executive hereby accepts employment for the term ("Term") set forth in Section 2
hereof, to render services to Company as Executive Vice President and President
of the BPH Division. The Executive represents and warrants to the Company that
he has full power and authority to enter into this Agreement and that he is not
under any obligation of a contractual or other nature to any person, firm or
corporation which is inconsistent or in conflict with this Agreement, or which
would prevent, limit or impair in any way the performance by Executive of his
obligations hereunder.
1.2 The Executive will have general supervision over
the BPH Business and such other duties and responsibilities consistent with his
position, as may reasonably be assigned to him by the Board of Directors. In
addition, the Executive will serve as a senior officer of each of the Company's
Affiliates. The Executive will report to the President and CEO of the Company.
1.3 The Executive shall devote all of his business
time and effort to the business and affairs of the Company, and shall use his
best efforts, skills, and abilities to promote the interests of the Company,
except for reasonable vacations and during periods of illness or incapacity, but
nothing contained in this Agreement shall prevent the Executive from engaging in
charitable, community or other business activities
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provided they do not interfere with the regular performance of the Executive's
duties and responsibilities under this Agreement.
1.4 Unless the Executive and the Company shall
otherwise agree, the Executive's principal place of employment shall be in
Boston, Massachusetts, but the duties of the Executive shall include such
periodic visits to the Company's headquarters in Columbia, Maryland and the
Company's Affiliates, research and development partners, product and clinical
trial test sites, customers, investment and other bankers, in each case at the
expense of the Company, as the Executive and the Company mutually determine is
reasonably required in the performance of the Executive's responsibilities.
2. TERM.
2.1 The term of this Agreement will commence as of
April 9, 2001 and will terminate at the close of business on April 8, 2004,
unless sooner terminated in accordance with the provisions of this Agreement
("Initial Term"). Thereafter, the employment of the Executive shall continue for
successive one-year periods (each such one year period being hereinafter
referred to as a "Renewal Term") unless the Corporation or Executive shall give
notice to the other at least three months prior to the end of the Initial Term
or any Renewal Term of the election of the Corporation or Executive to terminate
the employment of the Executive at the end of the Initial Term or the then
current Renewal Term.
3. BASE SALARY.
3.1 For all services performed by the Executive
under this Agreement, the Executive shall be paid a base salary ("Base Salary")
for the first twelve months of the Initial Term at the annual rate of $200,000.
The Base Salary for subsequent years shall be the greatest of (i) one hundred
five percent (105%) of the Base Salary for the prior calendar year; (ii) the
product of the multiplication of the Base Salary during the calendar year
immediately preceding by the sum of (y) one hundred percent plus (z) the amount
(expressed as a percent) by which the most recently reported Consumer Price
Index ("CPI") applicable to the Washington-Baltimore Metropolitan region is
greater than the CPI for that same region for the prior twelve months; or (iii)
the sum offered by the Board of Directors after a review taking into account
corporate and individual performance, the Company's prospects and general
business conditions.
3.2 Base Salary shall be paid in bi-weekly
installments in keeping with the Company's standard payroll policies applicable
to its senior executives.
4. ANNUAL PERFORMANCE BASED BONUS
4.1 The Executive will be eligible for an
annual bonus payment in the range of 0 -100% of Base Salary, for the previous
financial year.
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Payment of the bonus is contingent on meeting or exceeding agreed upon
objectives, as determined by the Board of Directors, in its sole discretion. For
the calendar year 2001 the Executive will be paid a minimum annual bonus of
$50,000 prorated for the partial year from the date of commencement of
employment. This bonus will be paid in equal installments with the Executive's
bi-weekly salary payment.
4. OPTION TO ACQUIRE COMMON STOCK.
4.1 The Company hereby grants to Executive as a
bonus (the "Bonus Option"), a non-qualified stock option to acquire five hundred
thousand (500,000) (fully paid and non-assessable shares of common stock, par
value $0.01 per share (the "Common Stock") of the Company. The purchase price
for each share of Common Stock acquired upon exercise of the stock options
constituting the Bonus shall be $1.03/share. The options to acquire the 500,000
shares of Common Stock shall vest in accordance with the following vesting
schedule: Executive may exercise his option to acquire one hundred sixty seven
thousand (167,000) shares on or after April 9, 2001, his option to acquire one
hundred sixty-seven thousand (167,000) shares on or after April 9 2002, and his
option to acquire one hundred sixty-six thousand (166,000) shares after April 9,
2003. If the Executive is not employed by the Company on any of the three
vesting dates, he shall no longer be entitled to exercise his option(s) to
acquire Common Stock vesting on or after such date. Subject to the limitations
set forth in this Agreement, the Executive may exercise the stock options
constituting the Bonus, at any time prior to 5:00 PM (New York time) on April
9,2011 (the "Expiration Date"), upon notice to the Company at its principal
office at 10220-1 Old Columbia Road, Columbia, MD 21046-1705, Attention: Spencer
J. Volk, President and Chief Executive Officer (or at such other location as the
Company may advise the Executive in writing), after which time all unexercised
options shall expire and be of no further legal force or effect.
4.2 The Company shall at all times reserve for
issuance and/or delivery such number of shares of its Common Stock as shall be
required for issuance or delivery upon exercise of the Bonus Option. No
fractional shares or scrip representing fractional shares shall be issued when
the option is exercised. Common Stock issued on exercise of the Bonus Option may
not be sold or offered for sale in the absence of effective registration under
such securities laws, or an opinion of counsel satisfactory to the Company that
such registration is not required. Common Stock issued on exercise of the Bonus
Option may be sold by the Executive in transactions permitted by the provisions
of Rule 144 of the Securities Act of 1933. Common Stock issued upon exercise of
the Bonus Option shall bear an appropriate restrictive legend referring to the
provisions hereof.
5. ADDITIONAL PERFORMANCE BASED OPTIONS.
5.1 As a form of incentive compensation to
Executive, the Executive, the Company hereby grants to Executive a non-qualified
stock option to acquire from the Company, on an original issue basis, an
aggregate of four hundred thousand (400,000) fully paid and non-assessable
shares of Common Stock at the several
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purchase prices designated below, upon the achievement by the Company of the
several corporate accomplishments (the "Milestones") listed below (the
"Performance Option").
5.2 For purpose of this Section 5:
A. Corporate Milestones. The Performance
Option to acquire Common Stock shall
vest and thereafter be available for
exercise in tranches as indicated herein
if, and at any time after, the Company
has achieved the following Milestones:
- Satisfactory completion of enrollment
for the BPH clinical trials no later
than October 31, 2001. (Tranche:
80,000 shares).
- Obtain pre-marketing approval from
the United States Food and Drug
Administration for commercialization
of the Company's BPH treatment system
(Tranche: 80,000 shares).
- Place 50 machines within the first
year of commercialization (Tranche:
80,000 shares).
- Achieve profitability goals for year
I (Tranche: 80,000 shares).
- Achieve profitability goals for year
II (Tranche: 80,000 shares).
B. Exercise Price. The exercise price
payable per share for each stock option
exercised after the occurrence of a
Milestone shall be as follows:
Upon achieving the first Milestone,
$1.12 per share;
Upon achieving the second Milestone,
$1.23 per share;
Upon achieving the third Milestone,
$1.32 per share;
Upon achieving the fourth Milestone,
$1.43 per share;
Upon achieving the fifth Milestone,
$1.52 per share.
C. Exercise of Performance Option. Subject
to the limitations set forth in this
Agreement, the Executive may exercise
the Performance Option at any time on or
after the date on which the applicable
Milestone is achieved and so long as he
is employed by the Company, but not
later than the Expiration Date, upon
notice to the Company at its
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principal office at 10220-1 Old Columbia
Road, Columbia, MD 21046-1705,
Attention: Spencer J. Volk, President
and Chief Executive Officer (or at such
other location as the Company may advise
the Executive in writing). The notice
shall be executed and delivered with the
Purchase Form attached hereto duly
filled in and signed and upon payment in
cash or cashier's check of the aggregate
Purchase Price for the number of shares
which Executive is acquiring determined
in accordance with the provisions
hereof. If such date is a day on which
banking institutions are authorized by
law to close, then the Expiration Date
shall be on the next succeeding day
which shall not be such a day. The
Performance Option may be exercised
without regard to the sequence in which
the Milestones have been achieved. A
Notice of Exercise of the Performance
Option shall be submitted by the
Executive to the Company's Board of
Directors, identifying the Milestone
achieved and the number of shares
covered by the relevant tranche. The
Board of Directors shall be deemed to
have approved the exercise of the
Performance Option unless, within
seventy-two (72) hours of the submission
of the Notice of Exercise, the Board
adopts a resolution determining that
exercise of the Performance Option is
not agreed as to the Milestone
identified in the Notice of Exercise. In
the absence of such a disaffirming
resolution, Executive may acquire Common
Stock thereafter by presentation of the
Notice of Exercise either to the Company
or at the office of its stock transfer
agent, if any, and accompanied by
payment in cash or cash equivalent of
the exercise price for the number of
shares of Common Stock specified in such
Notice of Exercise, together with all
federal and state taxes applicable upon
such exercise.
D. Reservation of Shares. The Company
hereby agrees that at all times there
shall be reserved for issuance such
number of shares of its Common Stock as
shall be required for issuance or
delivery to the Executive upon
achievement of the Milestones set forth
herein.
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E. Anti-Dilution Provisions.
(1) Adjustment of Number of Shares of
Common Stock. Notwithstanding anything
in this Section 5.2E to the contrary, in
case the Company shall at any time issue
Common Stock by way of dividend or other
distribution on any stock of the Company
or subdivide or combine the outstanding
shares of Common Stock, the exercise
price shall be proportionately decreased
in the case of such issuance (on the day
following the date fixed for determining
shareholders entitled to receive such
dividend or other distribution) or
either decreased in the case of such
subdivision or increased in the case of
such combination (on the date that such
subdivision or combination shall become
effective).
(2) No Adjustment for Small Amounts.
Anything in this Section 5.2E to the
contrary, the Company shall not be
required to give effect to any
adjustment in the exercise price unless
and until the net effect of one or more
adjustments, determined as above
provided, shall have require a change of
the exercise price by at least one cent,
but when the cumulative net effect of
more than one adjustment so determined
shall be to change the actual exercise
price by at least one cent, such change
in the exercise price shall thereupon be
given effect.
(3) Number of Shares of Common Stock
Adjusted. Upon any adjustment of the
exercise price other than pursuant to
Section 5.2E(1) hereof, the Executive
shall thereafter (until another such
adjustment) be entitled to purchase, at
the new exercise price, the number of
shares, calculated to the nearest full
share, obtained by multiplying the
number of shares of Common Stock
initially issuable upon achieving any
Milestone by the exercise price in
effect on the date hereof and dividing
the product so obtained by the new
exercise price.
G. Adjustments in the Event of a
Recapitalization or Similar Transaction.
In the event of a reclassification,
recapitalization, stock split, reverse
stock split, stock dividend or
combination of shares,
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or other similar event, the number and
class of shares issuable to the
Executive upon exercise of either the
Bonus Option or Performance Option shall
be adjusted to reflect such event.
H. Acceleration Upon Change of Control.
Notwith- standing any language to the
contrary contained herein, if this
Agreement is in effect at the time of
the occurrence of a "Change of Control"
event, the Bonus Option and Performance
Option shall automatically vest 100% and
immediately become exercisable upon the
occurrence of the Change of Control
event. For purposes of this Agreement,
"Change of Control" event has the
meaning set forth in Section 11.1
hereof.
6. REIMBURSEMENT FOR EXPENSES.
6.1 Company shall reimburse Executive for all
reasonable out-of-pocket expenses paid or incurred by him in the course of his
employment, upon presentation by Executive of valid receipts or invoices
therefore, utilizing procedures and forms for that purpose as established by
Company from time to time. In the event, at some time in the future, the Company
requests and the Executive agrees to relocate to the Baltimore/Washington area,
the Company will reimburse in full of the actual amount of all relocation
expenses incurred by the Executive in moving from his present residence to the
area in and around the headquarters of the Company. The reimbursement of
relocation expenses will be "grossed up" by such amount as is necessary to cover
the Executive's federal, state and local income tax liability arising from such
payments.
7. VACATIONS.
7.1 Executive shall be entitled to reasonable
vacations (which shall aggregate no less than four (4) weeks vacation with pay)
during each consecutive twelve (12) month period commencing on the date hereof
Executive may not accumulate any vacation days which remain unused at the end of
any year during the term hereof without the prior consent of the Company.
8. EMPLOYEE BENEFIT PROGRAMS, ETC.
8.1 The Company shall provide the Executive with a
cash allowance in the amount of $450.00 per month to cover use of the
Executive's personal automobile in the performance of Executive's duties. The
Company will also either provide or pay or reimburse the Executive for the costs
of a cellular telephone.
8.2 Subject to the Executive's meeting the
eligibility requirements of each respective plan, Executive shall participate in
and be covered by
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each pension, life insurance, accident insurance, health insurance,
hospitalization, disability insurance and any other employee benefit plan of
Company, as the case may be, made available generally from and after the date
hereof to its respective senior executives, on the same basis as shall be
available to such other executives without restriction or limitation by reason
of this Agreement.
8.3 Nothing contained herein shall prevent the
Company from at any time increasing the compensation provided to be paid to
Executive herein, either permanently or for a limited period, or from paying
bonuses and other additional compensation to Executive, whether or not based
upon the earnings of the business of Company, or from increasing or expanding
any employee benefit program applicable to the Executive, in the event the
Company, in its sole discretion, shall deem it advisable so to do in order to
recognize and compensate fairly Executive for the value of his services.
9. DEATH OR DISABILITY.
9.1 If Executive shall die during the term hereof,
this Agreement shall immediately terminate, except that Executive's legal
representatives or designated beneficiaries shall be entitled to receive (i) the
Base Salary due to Executive hereunder to the last day of the month following
the month in which his death occurs, payable in accordance with the Company's
regular payroll practices, (ii) all other benefits payable upon death under any
employee benefit program or other insurance covering the Executive as of the
date of death, and (iii) any stock option issued as part of the Bonus Option or
Performance Option that was exercisable at the date of death may be exercised by
the legal representative of the Executive's estate at any time or times during
the period beginning on the date of death and ending one year after the date of
death, or until the expiration of the stated term of such stock option,
whichever period is shorter, and any stock option not exercisable at the date of
death shall be forfeited.
9.2 In the event of the Disability of the Executive,
as hereinafter defined, the Executive shall be entitled to continue to receive
payment of his Base Salary (prorated as may be necessary) in accordance with the
terms of Section 3 hereof through the last day of the sixth month following the
month in which Executive's employment hereunder is terminated as a result of
such Disability. At any time after the date of the Notice (as hereinafter
defined) and during the continuance of the Executive's Disability, the Company
may at any time thereafter terminate Executive's employment hereunder by written
notice to the Executive. The term "Disability" shall mean physical or mental
illness or injury which prevents the Executive from performing his customary
duties for the Company for a period of thirty (30) consecutive days or an
aggregate period of ninety (90) days out of any consecutive twelve (12) months.
The date of commencement of Disability shall be the date set forth in the notice
(the "Notice") given by Company to the Executive at any time following a
determination of Disability, which date shall not be earlier than the date the
Notice is given by Company. A determination of Disability by Company shall be
solely for the purposes of this Section 9 and shall in no way affect the
Executive's status under any other benefit plan applicable to the Executive.
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9.3 Upon the occurrence of a Disability, and unless
the Executive's employment shall have been terminated as provided in Section
9.2, the Executive shall, during such time as he is continuing to receive Base
Salary payment as set forth in Section 9.2, perform such services for Company,
consistent with his duties under Section 1 hereof, as he is reasonably capable
of performing in light of the condition giving rise to a Disability. All
payments due under Section 9.2 shall be payable in accordance with Company's
regular payroll practices. Any amount paid to Executive pursuant to this
Agreement by reason of his Disability, shall be reduced by the aggregate amount
of all monthly disability payments which the Executive is entitled to receive
under all workers compensation plans, disability plans and accident, health or
other insurance plans or programs maintained for the Executive by Company, by
any company controlling, controlled by, or under common control with, Company.
9.4 In the event the Executive's employment is
terminated due to Disability, in addition to receipt of the Base Salary payments
described in Section 9.2, any stock option issued as part of the Bonus or
Performance Option that was exercisable at the date of Disability may be
exercised by the Executive or his legal representative at any time or times
during the period beginning on the date of Disability and ending one year after
the date of Disability, or until the expiration of the stated term of such stock
option, whichever period is shorter, and any stock option not exercisable at the
date of Disability shall be forfeited.
10. TERMINATION FOR CAUSE.
10.1 The employment of the Executive may be
terminated by the Company for Cause. For this purpose, "Cause" shall mean:
(i) an act constituting a felony and
resulting or intended to result, directly or indirectly, in his gain or personal
enrichment at the expense of the Company and its shareholders;
(ii) dishonest acts against the Company;
(iii) illegal drug use; or
(iv) grossly or willfully neglecting to carry
out his duties under this Agreement resulting in material harm to the Company.
The Executive's employment shall not be terminated for Cause under clauses (ii)
or (iv) unless:
(a) the Executive has received at least fifteen (15) days notice of
a meeting of the Board of Directors at which meeting the Board
shall consider the existence of Cause, shall provide the
Executive with an opportunity to be heard before the Board, and,
following such consideration and hearing, the
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Board has determined, based upon credible evidence, that grounds
for Cause exist; and
(b) the misconduct or breaches on which an assertion of Cause is
based are not cured within thirty (30) days thereafter if such
misconduct or breaches are capable of being cured.
10.2 In the event of a termination for Cause, the
Executive shall (a) be entitled to any unpaid Base Salary pro rated up to the
date of termination, and (b) any stock options not exercised prior to the date
of termination shall automatically be forfeited by the Executive, and the
Executive shall have no further rights under this Agreement. Furthermore, the
Executive shall be and remain subject to all provisions of Section 13 below for
the period indicated therein.
11. TERMINATION UPON CHANGE OF CONTROL OR BY COMPANY WITHOUT
CAUSE.
11.1 A "Change in Control" shall occur: (A) if any
Person, or combination of Persons (as hereinafter defined), or any affiliate of
any of the above, is or becomes the "beneficial owner" (as defined in Rule l3d-3
promulgated under the Securities Exchange Act of 1934) directly or indirectly,
of securities of the Company representing twenty-five percent (25%) or more of
the total number of outstanding shares of common stock of the Company; (B) if
individuals who, at the date of this Agreement, constitute the Board (the
"Incumbent Directors") cease, for any reason, to constitute at least a majority
thereof, provided that any new director whose election was approved by a vote of
at least 75% of the Incumbent Directors shall be treated as an Incumbent
Director; or (C) the Company sells substantially all of its assets to a
purchaser other than a subsidiary. For purposes hereof, "person" shall mean any
individual, partnership, joint venture, association, trust, or other entity,
including a "group" as referred to in section 13(d)(3) of the Securities
Exchange Act of 1934.
11.2 If there occurs a Change in Control, and if
there subsequently occurs a material adverse change, without the Executive's
written consent, in the Executive's working conditions or status, including but
not limited to a significant change in the nature or scope of the Executive's
authority, powers, duties or responsibilities, or a reduction in the level of
support services or staff, then, whether or not such change would otherwise
constitute a breach of this Agreement by the Company, this Agreement may be
terminated by notice given by the Executive, specifying the Change of Control
and significant adverse change or changes.
11.3 Upon the termination of this Agreement in
accordance with Section 11.2 above, the Executive shall be entitled, without any
duty to mitigate damages, to:
(a) All unpaid Base Salary pro-rated up to the date
of termination; and
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(b) The opportunity to exercise any stock option
issued as part of the Bonus Option or
Performance Option that was exercisable at the
date of termination may be exercised by the
Executive at any time or times during the period
beginning on the effective date of termination
and ending one year after the date of
termination, or until the expiration of the
stated term of such stock option, whichever
period is shorter, and any stock option not
exercisable upon the effective date of
termination shall be forfeited;
(c) A severance payment equal to 2.99 times the Base
Salary in effect on the date of termination,
payable at the election of the Executive, in
either a lump sum payment payable immediately
upon termination or over the course of the year
immediately following the termination date; and
(d) All benefits available under the Company's
employee benefit programs, to the extent
applicable to senior executives voluntarily and
amicably retiring from employment with the
Company.
11.4 The payments and any other compensation and
benefits to which the Executive is entitled under this Section 11 shall be made
available to the Executive no later than thirty (30) days after the date of any
termination referred to herein.
11.5 In the event that the Company shall actually or
constructively terminate this Agreement during the Initial Term or any Renewal
Term without cause (and with or without a Change of Control), the Executive
shall be entitled to the same payments, compensation and rights as provided in
the case of a termination by the Executive under Section 11.3.
11.6 In the event that Executive receives the
payments and any other compensation and benefits referred to in this Section 11,
he will be bound by the restrictive provisions of Section 13 for the period
therein provided.
12. TERMINATION BY EXECUTIVE.
12.1 If the Executive shall terminate his employment
under this Agreement during the Initial Term without the express written consent
of the Company, then, for purposes of establishing the rights of the Executive
upon such termination, such termination shall be deemed the equivalent of a
termination for Cause under Section 10.1,
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and the Executive shall have only those rights with regard to compensation as
are set forth in Section 12.2, and the restrictive provisions of Section 13
below shall fully apply.
12.2 If the Executive shall terminate his employment
under this Agreement during any Renewal Term without the express written consent
of the Company, then, for purposes of establishing the rights of the Executive
upon such termination, the Executive shall be entitled (i) to receive all unpaid
Base Salary pro-rated up to the date of termination, and (ii) for a period of
thirty (30) days following the date of termination, to exercise any unexercised
option to acquire Common Stock under either Section 4 or Section 5 hereof that
was exercisable by the Executive on the date preceding the date of termination.
12.3 In the case of a termination pursuant to Section
12.2, the restrictions set forth in Section 13 shall apply to Executive for the
period therein stated.
13. RESTRICTIVE COVENANTS; COMPENSATION.
13.1 During such time as this Agreement shall be in
effect, and as otherwise explicitly stated herein, for a period of three (3)
years following the termination of Executive's employment with Cause, or one (1)
year after voluntary termination of this Agreement by the Executive, and without
the Company's prior written consent (which may be withheld for any reason or for
no reason in Company's sole discretion), Executive shall not do anything in any
way inconsistent with his duties to, or adverse to the interests of, the
Company, nor shall Executive, directly or indirectly, himself or by or through a
family member or otherwise, alone or as a member of a partnership or joint
venture, or as a principal, officer, director, consultant, employee or
stockholder of any other entity, compete with Company or be engaged in or
connected with any other business competitive with that of Company or any of its
Affiliates, except that Executive may own as a passive investment not more than
five percent (5%) of the securities of any publicly held corporation that may
engage in such a business competitive with that of Company or any of its
Affiliates.
13.2 In view of the fact that Executive will be
brought into close contact with many confidential affairs of Company and its
Affiliates not readily available to the public, Executive agrees during the Term
of this Agreement and thereafter:
(a) to keep secret and retain in the
strictest confidence all non-public information about (i) research and
development, test results, suppliers, venture or strategic partners, licenses
and patents or patent applications, planned or existing products, know-how,
financial condition and other financial affairs (such as costs, pricing, profits
and plans for future development, methods of operation and marketing concepts)
of Company and its Affiliates; (ii) the employment policies and plans of the
Company and its Affiliates; and (iii) any other proprietary information relating
to the Company and its Affiliates, their operations, businesses, financial
condition and financial affairs (collectively, the "Confidential Information")
and, for such
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time as Company or any of its Affiliates is operating, Executive shall not
disclose the Confidential Information to anyone not then an officer, director or
authorized employee of Company or its Affiliates, either during or after the
term of this Agreement, except in the course of performing his duties hereunder
or with Company' express written consent or except to the extent that such
confidential information can be shown to have been in the public domain through
no fault of Executive; and
(b) to deliver to Company within ten days
after termination of his services, or at any time Company may so request, all
memoranda, notes, records, reports and other documents relating to Company or
its Affiliates, businesses, financial affairs or operations and all property
associated therewith, which he may then possess or have under his control.
13.3 Executive shall not at any time during the
three-year period following the termination of his employment for any reason
whatsoever, including termination resulting from the natural expiration of the
term of this Agreement, (i) employ any individual who was employed by Company or
any of its Affiliates at any time during the such period or during the twelve
(12) calendar months immediately preceding such termination, or (ii) in any way
cause, influence or participate in the employment of any such individual by
anyone else in any business that is competitive with any of the businesses
engaged in by Company or any of its Affiliates.
13.4 Executive shall not at any time during the
three-year period following the termination of his employment for any reason
whatsoever, including termination resulting from the natural expiration of the
term of this Agreement, directly or indirectly, either (i) persuade or attempt
to persuade any customer or client of the Company or of any of its Affiliates to
cease doing business with Company or with any Affiliate, or to reduce the amount
of business it does with Company or with any of its Affiliates, (ii) solicit for
himself or any person other than Company or any of its Affiliates, the business
of any individual or business which was a customer or client of Company or any
of its Affiliates at any time during the eighteen month period immediately
preceding such termination.
13.5 Executive acknowledges that the execution and
delivery by him of the promises set forth in this Section 13 is an essential
inducement to Company to enter into this Agreement, and that Company would not
have entered into this Agreement but for such promises. Executive further
acknowledges that his services are unique and that any breach or threatened
breach by Executive of any of the foregoing provisions of this Section 13 cannot
be remedied solely by damages. In the event of a breach or a threatened breach
by Executive of any of the provisions of this Section 13, Company shall be
entitled to injunctive relief restraining Executive and any business, firm,
partnership, individual, corporation or other entity participating in such
breach or attempted breach. Nothing herein, however, shall be construed as
prohibiting Company from pursuing any other remedies available at law or in
equity for such breach or threatened breach, including the recover of damages
and the immediate termination of the employment of Executive hereunder.
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13.6 If any of the provisions of, or promises
contained in, this Section 13 are hereafter construed to be invalid or
unenforceable in any jurisdiction, the same shall not affect the remainder of
the provisions or the enforceability thereof in any other jurisdiction, which
shall be given full effect, without regard to the invalid portions or the
unenforceability in such other jurisdiction. If any provisions contained in this
Section 13 are held to be unenforceable in any jurisdiction because of the
duration or scope thereof, the parties hereto agree that the court making such
determination shall have the power to reduce the duration and/or scope (if such
provision, in its reduced form, shall be enforceable); provided, however, that
the determination of such court shall not affect the enforceability, duration or
scope of this Section 13 in any other jurisdiction.
14. RELATIONSHIP OF PARTIES.
Nothing herein contained shall be deemed to constitute a
partnership between or a joint venture by the parties, nor shall anything herein
contained be deemed to constitute the Executive, the Company or any Affiliates
the agent of the other except as is expressly provided herein. Neither Executive
nor Company shall be or become liable or bound by any representation, act or
omission whatsoever of the other party made contrary to the provisions of this
Agreement.
15. NOTICES.
All notices and communications hereunder shall be in
writing and delivered by hand or sent by registered or certified mail, postage
and registration or certification fees prepaid, return receipt requested, or by
overnight delivery such as Federal Express, and shall be deemed given when hand
delivered or upon three (3) business days after the date when mailed, or upon
one (1) business day after delivery to an agent for overnight delivery, if sent
in such manner, as follows:
If to Company Celsion Corporation
10220-1 Old Columbia Road
Columbia, Maryland 21046-1705
Attention: Board of Directors
With a copy to: Venable, Baetjer and Howard, LLP
Mercantile Bank and Trust Building
Two Hopkins Plaza Suite 1800
Baltimore, Maryland 21201
Attention: Greg Cross
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If to Executive: Mr. Daniel S. Reale
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With a copy to:
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The foregoing address may be changed by notice given in the manner set forth in
this Section 15.
16. DISPUTES. The parties shall attempt in good faith to
resolve all claims, disputes and other disagreements arising hereunder by
negotiation. In the event that a dispute between the parties cannot be resolved
within thirty (30) days of written notice from one party to the other party,
such dispute shall, at the request of either party, after providing written
notice to the other party, be submitted to arbitration in Columbia, Maryland in
accordance with the arbitration rules of the American Arbitration Association
then in effect. The notice of arbitration shall specifically describe the
claims, disputes or other matters in issue to be submitted to arbitration. The
parties shall jointly select a single arbitrator who shall have the authority to
hold hearings and to render a decision in accordance with the arbitration rules
of the American Arbitration Association. If the parties are unable to agree
within ten (10) days, the arbitrator shall be selected by the Chief Judge of the
Circuit Court for Howard County. The discovery rights and procedures provided by
the Federal Rules of Civil Procedure shall be available and enforceable in the
arbitration proceeding. The written decision of the arbitrator so appointed
shall be conclusive and binding on the parties and enforceable by a court of
competent jurisdiction. The expenses of the arbitration shall be borne equally
by the parties to the arbitration, and each party shall pay for and bear the
cost of its own experts, evidence and legal counsel, unless the arbitrator rules
otherwise in the arbitration. Both parties agree to use their best efforts to
cause a final decision to be rendered with respect to the matter submitted to
arbitration within sixty (60) days after its submission.
17. MISCELLANEOUS.
17.1 This Agreement contains the entire understanding
of the parties hereto with respect to the employment of Executive by Company
during the term hereof, and the provisions hereof may not be altered, amended,
waived, terminated or discharged in any way whatsoever except by subsequent
written agreement executed by the party charged therewith. This Agreement
supersedes all prior employment agreements, understandings and arrangements
between Executive and Company pertaining to the terms of the employment of
Executive. A waiver by either of the parties of any of the terms or conditions
of this Agreement, or of any breach hereof, shall not be deemed a waiver of such
terms or conditions for the future or of any other term or condition hereof, or
of any subsequent breach hereof.
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17.2 The provisions of this Agreement are severable,
and if any provision of this Agreement is invalid, void, inoperative or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any circumstances, it shall nevertheless remain
applicable to all other circumstances.
17.3 Company shall have the right to deduct and
withhold from Executive's compensation the amounts required to be deducted and
withheld pursuant to any present or future law concerning the withholding of
income taxes. In the event that Company makes any payments or incurs any charges
for Executive's account or Executive incurs any personal charges with Company,
Company shall have the right and Executive hereby authorizes Company to recoup
such payments or charges by deducting and withholding the aggregate amount
thereof from any compensation otherwise payable to Executive hereunder.
17.4 This Agreement shall be construed and
interpreted under the laws of the State of Maryland applicable to contracts
executed and to be performed entirely therein.
17.5 The captions and section headings in this
Agreement are not part of the provisions hereof, are merely for the purpose of
reference and shall have no force or effect for any purpose whatsoever,
including the construction of the provisions of this Agreement.
17.6 To the extent any provision of this Agreement
contemplates action after termination hereof or creates a cause of action or
claim on which action may be brought by either party, such provision, cause of
action or claims shall survive termination of Executive's employment or
termination of this Agreement.
17.7 Executive may not assign nor delegate his duties
under this Agreement; provided, however, that notwithstanding the foregoing this
Agreement shall inure to the benefit of Executive's legal representatives,
executors, administrators or successors and to the successors or assigns of
Company.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
CELSION CORPORATION
By:
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Spencer J. Volk, President
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Daniel S. Reale
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RE: Executive Employment Agreement
Dear :
In connection with your proposed Executive Employment Agreement
with the Company, we agree that, if, during the course of your employment, and,
at any time after you are entitled to exercise options granted under either
Paragraph 4 or Paragraph 5 of your Agreement, you ask the Company for assistance
in assembling resources to fund the exercise of those options, the Company will
seek to assist you in negotiating a loan from one or more of the principal
financial institutions with which the Company is then doing business (or from
another source reasonably acceptable to you) to permit you to exercise your
options to acquire either Bonus Option shares or Performance Option shares. If,
in connection with such borrowing, you are requested by the lending institution
to pledge the Bonus Option shares or the Performance Option shares that you will
be acquiring on exercise of the option as collateral security for the benefit of
the lender, your signature below confirms that you will pledge such shares to
support your borrowing.
Very truly yours,
Spencer J. Volk
President & C.E.O.
Agreed to:
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