EXHIBIT 10.21
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, made as of the 8th day of June, 2000, by and between
John Mon (the "Executive"), an individual residing at c/o Celsion Corporation,
10220-1 Old Columbia Road, Columbia, Maryland 21046-1705, and Celsion
Corporation (the "Company"), a Maryland corporation with offices at 10220-1 Old
Columbia Road, Columbia, Maryland 21046-1705.
WITNESSETH:
WHEREAS, the Executive is currently employed by the company as Treasurer, as
Secretary, and as General Manager, and the Company desires that the Executive
shall continue to be employed by it and render services to it, and the Executive
is willing to continue 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 one of its senior executive officers. 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 serve as Vice President, New Business Development of
the Company and as a member of its Board of Directors when elected as such, will
have general supervision over investigation into new business opportunities for
the Company and its subsidiaries or affiliates (referred to collectively as
"Affiliates") and will have such other duties and responsibilities, consistent
with his position as Vice President, New Business Development, as may reasonably
be assigned to him by the President. The Executive may be also be elected to
another executive position such as Secretary of the Company. In addition, the
Executive will serve as a senior officer and a director (when elected as such)
of each of the Company's Affiliates. The Executive will report to the President
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 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 and around the Columbia,
Maryland area, but the duties of the Executive shall include such visits to 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 determines is reasonably required in
the performance of the Executive's responsibilities.
2. TERM.
2.1. The Term of this Agreement will commence as of June 8th, 200 and will
terminate at the close of business on June 7, 2003, 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 Term or any Renewal Term of the election of
the Corporation or the Executive to terminate the employment of the Executive at
the end of the Term or the then current Renewal Term.
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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 $100,000. 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 equal monthly or semi-monthly installments
in keeping with the Company's standard payroll policies applicable to its senior
executives.
4. OPTION TO ACQUIRE BONUS SHARES.
4.1. The Company hereby agrees to grant to Executive as a bonus an option to
acquire fifty (50,000) thousand (the "Bonus Shares") 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 Bonus Share shall be $2.75
per share. The option granted hereby shall expire on June 7, 2005, but may be
exercised only while the Executive is employed by the Company, and, in the event
of the termination of his service for any reason other than as provided either
in Section 10 or in Section 12 of this Agreement, then this option may be
exercised for a period of not more than nine months following the date of
terminations of service with the Company. 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 as Bonus Shares. No fractional shares or
scrip representing fractional shares shall be issued as Bonus Share. Bonus
Shares will not be registered under federal or state securities laws, and will
have the status of restricted securities. bonus Shares 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. The Company will not include any Bonus Shares in
any registration statement. Bonus Shares may be sold by the Executive in
transactions permitted by the provisions of Rule 144 of the Securities Act of
1933. In case the Company shall at any time subdivide or combine the outstanding
shares of Common Stock, the number of Bonus Shares the Executive shall have the
right to acquire shall be proportionately increased in the case of such
subdivision or decreased in the case of such combination (on the date that such
subdivision or combination shall become effective). Bonus Shares shall bear an
appropriate restrictive legend, referring to the provisions hereof.
5.1 For purposes of this paragraph:
A. Corporate Milestones. The right to acquire Incentive Shares shall be
available in tranches as indicated herein if, as and when the Company has
achieved the first two of the following Class X Milestones
- Execution and delivery of an agreement with one or more strategic partners
to the Company providing for the marketing and distribution of any one of the
Company's products related to its breast cancer treatment system. (Tranche:
50,000 shares)
- Execution and delivery of an agreement with one or more strategic partners
to the Company providing for the marketing and distribution of any one of the
Company's products related to treating chronic prostate enlargement condition,
common in older males, known as benign prostatic hyperplasia ("BPH") (Tranche:
50,000 shares).
- Execution and delivery of an agreement with one or more strategic partners
to the Company providing for the marketing and distribution of any one of the
Company's products related to liposome compounds that can carry chemotherapy
drugs to a tumor site and release their payload quickly when triggered by
targeted hear. (Tranche: 50,000 shares).
Only 150,000 shares may be issued with respect to Class X Milestones. The
right to acquire Incentive Shares shall be available in tranches as indicated
herein if, as and when the Company has achieved any of the following Class Y
Milestones:
- Obtaining pre-marketing approval from the United States Food and Drug
Administration for commercialization of the Company's BPH treatment system.
(Tranche: 50,000 shares).
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- Obtaining pre-marketing approval from the United States Food and Drug
Administration for commercialization of the Company's breast cancer treatment
system. (Tranche: 50,000 shares).
As a Class Z Milestone, the right to acquire Incentive Shares shall be
available as to a tranche of 100,000 shares if, as and when the Company has
achieved net income of $1,000,000 or more for any fiscal year prior to the
Expiration Date.
Nothing in this paragraph shall be read to mean that the Executive shall
have the right hereunder to acquire, in the aggregate, more than two hundred
fifty (250,000) thousand Incentive Shares.
B. Purchase Price. The Purchase Price per Incentive Share shall be as follows:
On achieving the first Milestone, $2.75 per share;
On achieving the second Milestone, $2.95 per share;
On achieving the third Milestone, $3.15 per share;
On achieving the fourth Milestone, $3.35 per share, and
On achieving the fifth Milestone, $3.55 per share.
C. Acquisition of Incentive Shares. Executive may acquire Incentive Shares
in tranches as set forth as each Milestone is achieved at any time or from time
to time on or after the date hereof and so long as he is employed by the
Company, but not later than 5:00 p.m. New York time, on the Expiration Date. 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. Incentive Shares may be acquired without regard to the sequence in
which the Milestones have been achieved. A Notice of Intention to acquire
Incentive Shares 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 relevant acquisition of Incentives Shares unless, within seventy two (72)
hours of the submission of the Notice of Intention , the Board adopts a
resolution determining that Incentive Shares may not be issued as to the
Milestone identified in the Notice of Intention. In the absence of such a
disaffirming resolution, Executive may acquire Incentive Shares thereafter by
presentation of the Notice of Intention 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 Purchase Price for the number of Incentive Shares specified in
such Notice of Intention, 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 as Incentive Shares upon achievement
of the Milestones set forth herein.
E. Vesting. Incentive Shares shall vest in the Executive upon issuance.
F. Anti-Dilution Provisions.
(1) Adjustment of Number of Incentive Shares. Anything in this paragraph (F)
to the contrary notwithstanding, 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
Purchase 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 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).
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(2) No Adjustment for Small Amounts. Anything in this Paragraph (F) to the
contrary notwithstanding, the Company shall not be required to give effect to
any adjustment in the Purchase Price unless and until the net effect of one or
more adjustments, determined as above provided, shall have required 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 Purchase
Price by at least one cent, such change in the Purchase Price shall thereupon be
given effect.
(3) Number of Incentive Shares Adjusted. Upon any adjustment of the Purchase
Price other than pursuant to Paragraph (F)(1) hereof, the Executive shall
thereafter (until another such adjustment) be entitled to purchase, at the new
Purchase 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 Purchase in effect on the date hereof, and
dividing the products so obtained by the new Purchase Price.
G. Reclassification, Reorganization or Merger. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Company (other than a change in par value, or from par
value to no par value or from no par value to par value, or as a result of an
issuance of Common Stock by way of dividend or other distribution or of a
subdivision or combination) or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger in which the
Company is the continuing corporation and which does not result in any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock) or in case of any sale or conveyance to another corporation of
the property of the Company as an entirety or substantially as an entirety, the
Company shall cause effective provision to be made so that the Executive shall
have the right thereafter as he has hereunder to purchase the kind and amount of
shares of stock and other securities and property receivable upon such
reclassification, capital reorganization or other change, consolidation, merger,
sale or conveyance. The foregoing provisions of this Paragraph (G) shall
similarly apply to successive reclassifications, capital reorganizations and
changes of shares of Common Stock and to successive consolidations, mergers,
sale or conveyances. In the event that in any such capital reorganization or
reclassification, consolidation, merger, sale or conveyance, additional shares
of Common Stock shall be issued in exchange, conversion, substitution or
payment, in whole or in part, for or of a security of the Company other than
Common Stock, any such issue shall be treated as an issue of Common Stock
covered by the provisions hereof with the amount of the consideration received
upon the issue thereof being determined by the Board of Directors of the
Company, such determination to be final and binding on the Executive.
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 therefor, utilizing
procedures and forms for that purpose as established by Company from time to
time.
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
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 Company.
8. EMPLOYEE BENEFIT PROGRAM, ETC.
8.1. The Company will either provide or pay or reimburse the Executive for
the costs of wireless telephone service and related equipment.
8.2 The Company may provide the Executive at the Company's expense
disability insurance providing for disability payments to the Executive, in a
sum at least equal to 70% of his Base Salary then in effect, following a
termination of Executive's employment hereunder as a result of Disability (as
defined in Section 9.2 below). In the event such policy is not obtained,
Executive shall be entitled to participate in such disability plan(s) as are
available to Company executives generally.
8.3. Subject to the Executive meeting the eligibility requirements of each
respective plan, Executive shall participate in and be covered by each pension,
life insurance, accident insurance, health insurance, hospitalization 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.
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8.4. Nothing herein contained shall prevent the Company from at any time
increasing the compensation herein provided to be paid to Executive, 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, and (ii) all other benefits payable upon death under any employee
benefit program or other insurance covering the Executive as of the date of
death.
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 third month following the month in
which Executive's employment hereunder is terminated as a result of such
Disability. At any time after he 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 sixty (60) consecutive days or an aggregate period of
one hundred twenty (120) 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 9.2 and shall in no way affect the
Executive's status under any other benefit plan applicable to the Executive.
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 payments 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.
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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;
(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 (b)
or (d) unless: (a) the Executive has received at least 5 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 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 10 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) 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, but shall not receive any of the compensation set
forth herein.
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 13d-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; or (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. 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" 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 of changes.
11.3 Upon the termination of this Agreement in accordance with Section 11.2
above, the Executive will be entitled, without any duty to mitigate damages, to:
(a) All unpaid Base Salary pro-rated up to the date of termination; and
(b) A severance payment equal to 2.99 times the Base Salary in effect for
the prior fiscal year; and
(c) 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. 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.
11.5. 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 in Section 11.2, 11.3 or 11.4.
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,
subject to the right to receive the compensation therein set forth.
12. TERMINATION BY EXECUTIVE.
12.1. If the Executive shall terminate his employment under this Agreement
during the Initial Term without either (i) a Change of Control or (ii) 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 12.1, 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 (but the Executive shall not have any right to the compensation set forth
therein).
12.2. If the Executive shall terminate his employment under this Agreement
during any Renewal term without either (i) a Change of Control or (ii) the
express written consent of the Company, them, for purposes of establishing the
rights of the Executive upon such termination, the Executive shall be entitled
to receive all unpaid Base Salary pro-rated up to the date of termination.
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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, and the Executive shall receive the compensation set forth
therein.
13. RESTRICTIVE COVENANTS: COMPENSATION.
13.1 During such time as this Agreement shall be in effect and, except as
otherwise explicitly stated herein, for a period of three (3) years following
the termination of Executive's employment, 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, knowhow, 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 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's
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 such period or during the 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 business 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 this 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, or (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 recovery 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.
13.7. As separate and additional compensation to be paid to the Executive in
consideration of the observance and performance of the promises contained in
this Section 13, the Company agrees that, during the period of restrictions set
forth in this Section 13, the Executive will be entitled to be paid an amount
equal to 100% of the Base Salary computed at the annual rate prevailing
immediately prior to the termination of his employment (such amount to be paid
in the same manner as the Company's regular payroll practices), except that, (i)
in the case of termination of the Executive's employment for Cause, or in case
the Executive shall terminate this Agreement under Section 12.1 during the
Initial Term, the Executive will receive no such compensation.
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 either 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: Bresler Goodman & Unterman LLP
521 Fifth Avenue
New York, NY 10175
Attention: Andrew J. Goodman
If to Executive: John Mon
c/o Celsion Corporation
10220-1 Old Columbia Road
Columbia, Maryland 21046-1705
The foregoing addresses may be changed by notice given in the manner set forth
in this Section 15.
16. DISPUTES. Any dispute arising under this Agreement shall be settled in
accordance with the following provisions. If the parties are deadlocked on any
issue arising under the terms of this Agreement, a tiebreaker shall be chosen by
the Dean of the School of Business Administration at the University of Maryland.
Each party may present its proposal to the designated tiebreaker in written form
and may, on a date established by the tiebreaker within fifteen calendar days of
the day the tiebreaker is chosen, make an oral presentation not to exceed two
hours in length, accompanied by exhibits and written arguments not to exceed 50
pages in length. The designated tiebreaker shall then select one of the
submitted proposals, without any change or adjustment, and shall announce to the
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parties his or her selection within five calendar days of the day of submission.
The party offering the proposal that is not selected by the tiebreaker shall
bear all costs and expenses (including legal, expert and other fees and
expenses), and the expenses and fees charged by the tiebreaker. Any award by the
tiebreaker may be enforced on application of either party by the order or
judgment of any Federal or state court in the State of Maryland as the party
making such application shall elect, having jurisdiction of any such court and
agree that service of process on it in any action, suit or proceeding to enforce
any such award may be effected by the means by which notices are to be given to
it under this Agreement.
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.
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 circumstance, 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 provisions, cause of action or claim shall
survive termination of Executive's employment or termination of this Agreement.
17.7. Executive may not assign his rights nor delegate his duties under this
Agreement; provided, however, that notwithstanding the foregoing this Agreement
shall inure to the benefit of Executive's legal representative, 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:______________________________
Spencer J. Volk, President
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John Mon
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