EXHIBIT 10.24
This Employment Agreement (the "Agreement") is made as of November 15, 2001
Between:
GENETRONICS, INC., a California corporation having its principal
place of business at 11199 Sorrento Valley Road, San Diego, CA
92121 (the "Company")
And:
James L. Heppell, an individual whose address is 1400-1055 W.
Hastings Street, Vancouver, British Columbia (the "Employee").
WHEREAS:
A. the Employee is the Executive Chairman of the Company;
B. the Employee is considered by the Board of Directors of the Company (the
"Board") to be of great value to the Company and has acquired
outstanding and special skills and abilities and an extensive background
in and knowledge of the Company's business and the industry in which it
is engaged;
C. the Company recognizes that it is essential and in the best interests of
the Company that the Company retain the continuing dedication of the
Employee to the Company;
D. the Company wishes to continue to retain and the Employee has agreed to
supply his service in the capacity of Executive Chairman on the terms
and conditions set out in this Agreement, which shall supersede and
replace all prior agreements, if any, between the parties;
THEREFORE, in consideration of the recitals, the following covenants and the
payment of one dollar made by each party to the other, the receipt and
sufficiency of which is acknowledged by each party, the parties agree on the
following terms:
ARTICLE 1: EMPLOYMENT
1.1 EMPLOYMENT: The Company hereby employs the Employee as Executive
Chairman or in such other capacity as may be requested by the Board,
and the Employee accepts such employment, upon the terms and subject to
the conditions set forth in this Agreement.
1.2 DUTIES: The Employee shall perform such duties as are customarily
associated with his then current title or titles, consistent with the
Bylaws of the Company and as required by the Board. Said duties shall be
performed at such place or places as the Company shall reasonably
designate or as shall be reasonably appropriate and necessary to the
discharge of the Employee's duties in connection with his employment.
1.3 HOURS: During the hours the Employee is working for the Company, the
Employee will devote his best efforts and business time and attention,
as necessary, to the performance of his duties hereunder and to the
business and affairs of the Company. The Employee will duly, punctually
and faithfully observe the Company's general employment policies and
practices, including, without limitation, any and all rules,
regulations, policies and/or procedures which the Company may now or
hereafter establish governing the conduct of its business.
ARTICLE 2: COMPENSATION
2.1 SALARY AND STOCK OPTIONS: For his services hereunder, the Employee shall
receive $250.00 per hour for work performed and shall receive $125.00
per hour for travel time. Additionally, the Employee shall receive a
grant of 40,000 options of the Company's stock upon execution of this
Agreement. Such options shall vest immediately upon grant.
2.2 SALARY INCREASES AND BONUS: From time to time, the Company, in its
unfettered discretion may decide to increase the salary for Employee and
additionally may offer a discretionary bonus which could include cash,
Company stock or stock options. The Company is under no obligation to
provide salary increases or bonuses to Employee.
2.3 WITHHOLDING: All payments of salary, bonuses and other compensation
pursuant to this Agreement shall be subject to the customary withholding
taxes as required by law.
ARTICLE 3: FRINGE BENEFITS
3.1 PARTICIPATION IN PLANS: The Employee shall be entitled to all additional
fringe benefits, including, but not limited to, life and health
insurance programs that may be generally available to other employees of
the Company. All matters of eligibility for coverage of benefits under
any plan or plans of health, hospitalization, life or other insurance
provided by the Company shall be determined in accordance with the
provisions of the insurance policies. The Company shall not be liable to
the Employee, or his beneficiaries or successors, for any amount payable
or claimed to be payable under any plan of insurance, which is not paid
to any of the Company's other employees.
3.2 BUSINESS EXPENSES: The parties acknowledge that the Employee shall
incur, from time to time, for the benefit of the Company and in
furtherance of the Company's business, various business expenses. The
Company agrees that it shall either pay such expenses directly, advance
sums to the Employee to be used for payment of such expenses, or
reimburse the Employee for such expenses incurred by him. The Employee
agrees to submit to the Company such documentation as may be reasonably
necessary to substantiate that all expenses paid or reimbursed hereunder
were reasonably related to the performance of his duties.
ARTICLE 4: TERM AND TERMINATION OF EMPLOYMENT
4.1 INITIAL TERM: The term of this Agreement shall be from the date of this
Agreement, until the Executive Chairman is no longer the Chairman of the
Board of the Company unless terminated prior to such date in accordance
with the terms of this Agreement.
4.2 TERMINATION:
(a) THE EMPLOYEE'S RIGHT TO TERMINATE - The Employee may terminate his
obligations under this Agreement:
(i) at any time upon providing three weeks notice in writing
to the Company;
(ii) upon a material breach of default of any term of this
Agreement by the Company if such material breach or
default has not been remedied within 30 days after written
notice of the material breach or default has been
delivered by the Employee to the Company; or
(iii) at any time within 180 days of the date on which there is
a Change of Control.
(b) COMPANY'S RIGHT TO TERMINATE - The Company may terminate the
Employee's employment under this Agreement at any time upon the
occurrence of any of the following events:
(i) the Employee acting unlawfully, dishonestly, in bad faith
or negligently with respect to the business of the Company
to the extent that it has a material and adverse effect on
the Company;
(ii) the conviction of Employee of any crime or fraud against
the Company or its property or any felony offense or crime
reasonably likely to bring discredit upon the Employee or
the Company;
(iii) a material breach or default of any term of this Agreement
by the Employee if such material breach or default has not
been remedied within 30 days after written notice of the
material breach or default has been delivered by the
Company to the Employee;
(iv) the Employee dying or becoming permanently disabled or
disabled for a period exceeding 180 consecutive days
calculated on a cumulative basis over any two year period
during the term of this Agreement; or
(v) at the discretion of the Board of Directors of the
Company.
(A) MITIGATION: The Employee shall not be required to mitigate any payments
received under the provisions of this Agreement when another company or
employer employs the Employee.
ARTICLE 5: NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
5.1 CONFIDENTIAL INFORMATION DEFINED: "Confidential Information" shall mean
information disclosed to the Employee, known by the Employee, or
developed by the Employee (alone or with others) as a consequence of or
through his employment by the Company or his relationship with the
Company's subsidiaries, which information is not generally known in the
industry in which the Company or of any of its subsidiaries are or may
become engaged, about the business of the Company or of any of its
subsidiaries, including but not limited to information relating to trade
secrets of the Company or its subsidiaries, existing or potential
customers, business plans and strategies, research methods and products,
pricing and billing methods and marketing methods. Without regard to
whether any of such matters would be deemed confidential, proprietary or
material as a matter of law, the parties hereto stipulate that, as
between them, such matters are confidential, proprietary, and material
and unauthorized disclosure, use, or dissemination would seriously
affect the effective and successful conduct of the business and
interests of the Company or its subsidiaries, and its goodwill, and that
any breach of the terms of this paragraph is a material breach of this
Agreement.
5.2 PROHIBITION ON DISCLOSURE: Except as required in his duties to the
Company, the Employee shall not, directly or indirectly use, disseminate
or disclose any Confidential Information.
5.3 RETURN OF CONFIDENTIAL INFORMATION UPON TERMINATION: Upon termination of
his employment with the Company, the Employee shall return to the
Company all documents, records, notebooks and electronic media
containing Confidential Information, including all copies thereof,
whether prepared by the Employee or others.
5.4 COOPERATION IN PROTECTING CONFIDENTIALITY: The Employee shall provide
all reasonable assistance to the Company and its subsidiaries to protect
the confidentiality of any such Confidential Information that Employee
may have
directly or indirectly disclosed, published or made available to third
parties in breach of this Agreement. The Employee shall take all
reasonable steps requested by the Company to prevent the recurrence of
such unauthorized access, use, possession or knowledge. If, at any time,
the Employee becomes aware of any unauthorized access, use, possession,
or knowledge of any Confidential Information by any third party, the
Employee shall immediately notify the Company.
5.5 SURVIVAL: The parties agree that the obligations imposed by this
paragraph shall survive termination or expiration of this Agreement, and
shall bind the Employee for a period of 15 years after such termination
or expiration.
ARTICLE 6: MISCELLANEOUS
6.1 IRREPARABLE INJURY: The Employee expressly recognizes and agrees that
his obligations under Article 5 of this Agreement are important and
material and seriously affect the effective and successful conduct of
the business and interests of the Company and its goodwill, and
therefore the breach of any obligations under such Articles will
constitute an irreparable injury to the Company, for which damages,
although available, will not be an adequate remedy at law. Accordingly,
the Employee expressly consents to the issuance of injunctive relief to
enforce the obligations of this Agreement. The parties agree that
service of process may be made by certified mail at the address first
listed above. The provisions of this Article are not intended to limit
the remedies and relief otherwise available to the Company for breaches
by the Employee of Articles of this Agreement other than Article 5.
6.2 ASSIGNMENT PROHIBITED: This Agreement is personal to the Employee hereto
and he may not assign or delegate any of his rights or obligations
hereunder without first obtaining the written consent of the Company.
The Company may not assign this Agreement without the written consent of
the Employee except in connection with (i) a merger of consolidation of
the Company (in which case the merged or consolidated entity shall
remain fully liable for its obligations as the Company under this
Agreement as specified above) or (ii) a transfer of this Agreement.
6.3 AMENDMENTS: No amendments or additions to this Agreement shall be
binding unless in writing and signed by the party against whom
enforcement of such amendment or addition is sought.
6.4 PARAGRAPH HEADINGS: The paragraph headings used in this Agreement are
included solely for convenience and shall not affect of be used in
connection with the interpretation of this Agreement.
6.5 LEGAL EXPENSES OF ENFORCEMENT: If either party commences a legal action
or other proceeding for enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with
any of the provisions of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees and other costs incurred in
connection with the action or proceeding, in addition to any other
relief to which it may be entitled.
6.6 SEVERABILITY: If any provision of this Agreement is declared invalid by
any tribunal, then such provision shall be deemed automatically modified
to conform to the requirements for validity as declared at such time,
and as so modified, shall be deemed a provision of this Agreement as
though originally included herein. In the event that the provision
invalidated is of such a nature that it cannot be so modified, the
provision shall be deemed deleted from this Agreement as though the
provision had never been included herein. In either case, the remaining
provisions of this Agreement shall remain in effect.
6.7 ARBITRATION: Any controversy, claim or dispute arising out of or
relating to this Agreement or its construction and interpretation shall
be settled by arbitration in accordance with the rules of the American
Arbitration Association, and judgment upon the award rendered in such
arbitration may be entered in any court having jurisdiction thereof. In
addition, any controversy, claim or dispute concerning the scope of this
arbitration clause or whether a particular dispute falls within this
arbitration clause shall also be settled by arbitration in accordance
with the rules of the American Arbitration Association.
6.8 CHOICE OF LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of California, as applied to
agreements executed and performed entirely in California by California
residents.
6.9 ENTIRE AGREEMENT: This Agreement constitutes the entire, final and
complete and exclusive agreement between the parties and supersedes all
previous agreements or representations, written or oral, with respect to
employment.
6.10 CHANGE, MODIFICATION, WAIVER: No change or modification of this
Agreement shall be valid unless it is in writing and signed by each of
the parties hereto. No waiver of any provision of this Agreement shall
be valid unless it is in writing and signed by the party against whom
the waiver is sought to be enforced. The failure of a party of insist
upon strict performance of any provision of this Agreement in any one or
more instances shall not be construed as a waiver or relinquishment of
the right to insist upon strict compliance with such provision in the
future.
6.11 NOTICES: All notices required or permitted hereunder shall be in writing
and shall be delivered in person or sent by certified or registered
mail, return
receipt requested, postage prepaid to each party at the address first
written above or at such other address as provided in writing.
6.12 BINDING EFFECT: This Agreement shall be binding upon, and inure to the
benefit of, the parties, their heirs, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Genetronics, Inc.,
/s/ Tazdin Esmail
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Employee
/s/ James L. Heppell
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