EXHIBIT 10(j)
EMPLOYMENT AGREEMENT
This Employment Agreement ("AGREEMENT") is made by and between Patricia B.
Prichep ("EMPLOYEE") and CEL-SCI Corporation ("CEL-SCI" or "the Company") as of
August 30, 2013 (the "Effective Date").
RECITALS
EMPLOYEE has been an EMPLOYEE of CEL-SCI since December 1, 1992. CEL-SCI
and EMPLOYEE wish to set forth in this AGREEMENT the terms and conditions under
which EMPLOYEE is to be employed by CEL-SCI from the date of execution forward.
In consideration of EMPLOYEE's agreement to continue providing services to
CEL-SCI, CEL-SCI's agreement to employ EMPLOYEE on the terms and conditions set
forth herein and the mutual agreements set forth herein, the parties hereto
agree as follows:
1. Term And Nature Of Employment
CEL-SCI hereby employs EMPLOYEE as Senior Vice President of Operations of
CEL-SCI commencing on the Effective Date of this AGREEMENT and ending on August
30, 2016, unless said period of employment (the "Employment Period") is
terminated earlier in accordance with the terms of this AGREEMENT. Thereafter,
EMPLOYEE shall be employed on an at-will basis and may terminate and may be
terminated from her employment with or without cause. EMPLOYEE hereby accepts
such employment and agrees to devote her full business time and attention, best
efforts, energy and skills to the business and affairs of CEL-SCI. EMPLOYEE
agrees to perform such other duties as may from time to time be assigned to her
by the Chief Executive Officer, the President or the Board of Directors of
CEL-SCI and shall act at all times in accordance with the best interests of
CEL-SCI. EMPLOYEE agrees that she shall comply with all applicable governmental
laws, rules and regulations and with all of CEL-SCI's policies, rules and/or
regulations applicable to the employees of CEL-SCI.
2. Wage Compensation
2.1 EMPLOYEE shall be compensated on the basis of an annualized salary of
Two hundred twenty thousand six hundred forty00/100 Dollars ($220,640), less
applicable withholding taxes. Increases in salary, if any, shall be made at the
sole discretion of the Board of Directors of CEL-SCI. Nothing in this paragraph
2.1 shall be construed to limit CEL-SCI's right to terminate this AGREEMENT in
accordance with the terms hereof.
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2.2 Payment.
Salary payments will normally be made to EMPLOYEE semi-monthly or otherwise
in accordance with CEL-SCI's pay period practices applicable to executive
officers.
3. Other Benefits.
3.1 During the Employment Period, EMPLOYEE shall be entitled to receive any
other benefits which are provided to CEL-SCI's executive officers or other full
time Employees, in accordance with CEL-SCI's policies and practices and subject
to EMPLOYEE's satisfaction of any applicable condition of eligibility.
3.2 Reimbursement of Expenses. CEL-SCI shall reimburse EMPLOYEE for all
reasonable business expenses incurred by EMPLOYEE on behalf of CEL-SCI provided
that: (i) such reasonable expenses are ordinary and necessary business expenses
incurred on behalf of CEL-SCI, and (ii) EMPLOYEE provides CEL-SCI with itemized
accounts, receipts and other documentation for such reasonable expenses as are
reasonably required by CEL-SCI. Any expenses found not to be reasonable business
expenses by the auditors or the IRS will be reimbursed to the Company by the
EMPLOYEE.
4. Former Employment
No Conflict. EMPLOYEE represents and warrants that the execution and
delivery by her of this AGREEMENT, her employment by CEL-SCI and her performance
of duties under this AGREEMENT will not conflict with and will not be
constrained by any prior employment or consulting agreement or relationship, or
any other contractual obligations.
5. Termination
5.1.a Termination of AGREEMENT Due to Death or Disability. EMPLOYEE's
employment and this AGREEMENT shall terminate upon EMPLOYEE's death. In the
event that EMPLOYEE's employment ends due to her death, CEL-SCI's obligations
under this AGREEMENT shall immediately cease, except that the EMPLOYEE's legal
representatives shall be entitled to receive all compensation otherwise payable
to EMPLOYEE through the last day of the month in which the EMPLOYEE's death
occurred. If EMPLOYEE dies while employed by CEL-SCI, any options or stock of
the Company then owned by EMPLOYEE shall automatically accelerate and become
fully vested. This provision shall not otherwise limit any benefits available
under CEL-SCI's benefit plans. The exercise period of any stock options held by
EMPLOYEE at her death will be extended pursuant to the provisions of any stock
option plan or agreement pursuant to which the options were granted.
5.1.b. If EMPLOYEE becomes mentally or physically incapacitated or disabled
so as to be unable to perform EMPLOYEE's duties under this agreement, the
AGREEMENT shall terminate as well. Employee's inability to adequately perform
services under this AGREEMENT for a period of ninety (90) consecutive days will
be conclusive evidence of such mental or physical incapacity or disability,
unless such inability to adequately perform such services under this AGREEMENT
is pursuant to a mental or physical incapacity or disability covered by the
Family Medical Leave Act ("FMLA"). If EMPLOYEE becomes disabled while employed
by CEL-SCI, any options or stock of the Company then owned by EMPLOYEE shall
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automatically accelerate and become fully vested. This provision shall not
otherwise limit any benefits available under CEL-SCI's benefit plans. CEL-SCI
shall also extend the period of exercisability of those stock options to four
years, or the natural expiration of the stock options, whichever is later.
5.2 "Termination for Cause". Notwithstanding anything to the contrary
herein, EMPLOYEE's employment and this AGREEMENT may be terminated by CEL-SCI
upon written notification upon the occurrence of any of the following:
a. Willful misconduct that has a material adverse effect on CEL-SCI's
operations, prospects, and business.
b. Acts of fraud against CEL-SCI.
c. EMPLOYEE breaches any of the terms or conditions set forth in this
AGREEMENT and EMPLOYEE fails to cure such breach within 30 days after EMPLOYEE's
receipt from CEL-SCI of written notice of such breach, which notice shall
describe in reasonable detail CEL-SCI's belief that EMPLOYEE is in breach hereof
(notwithstanding the following, no cure period shall be applicable to breaches
by EMPLOYEE of paragraphs 6 and 7 or to the extent CEL-SCI has provided EMPLOYEE
more than 2 notices of substantially the same breach within any 12 month
period).
In the event that EMPLOYEE's employment is terminated with cause by CEL-SCI
pursuant to this paragraph 5.2 of this AGREEMENT, CEL-SCI obligations under this
AGREEMENT shall immediately cease.
Termination of EMPLOYEE pursuant to this section 5.2 shall be in addition
to and without prejudice to any other right or remedy to which CEL-SCI may be
entitled at law, in equity, or under this AGREEMENT.
5.3 Involuntary Termination For Other Than Cause ("Constructive
Termination").
"Constructive Termination" shall occur if EMPLOYEE resigns her employment
within ninety (90) days of the occurrence of any of the following events: (i)
any reduction in the salary of the EMPLOYEE, (ii) a relocation (or demand for
relocation) of EMPLOYEE's place of employment to a location more than
thirty-five (35) miles from EMPLOYEE's current place of employment, (iii) a
significant and material reduction in EMPLOYEE's authority, job duties or level
of responsibility or the imposition of significant and material limitations on
EMPLOYEE's autonomy in her position, or (iv) if a Change of Control event has
occurred.
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"Change of Control" shall mean a change in ownership or control of the
Company affected through any of the following transactions:
a. a merger, consolidation or reorganization approved by the Company's
stockholders, unless securities representing more than 50% of the total combined
voting power of the voting securities of the successor corporation are
immediately thereafter beneficially owned, directly or indirectly, and in
substantially the same proportion, by the persons who beneficially owned the
company's outstanding voting securities immediately prior to such transaction,
or
b. any stockholder-approved transfer or other disposition of all or
substantially all of the Company's assets, or
c. the acquisition, directly or indirectly by any person or related group
of persons (other than the Company or a person that directly or indirectly
controls, is controlled by, or is under common control with, the Company), of
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission) of securities possessing more than fifty percent (50%) of
the total voting power of the Company's outstanding securities pursuant to a
tender or exchange offer made directly to the Company's shareholders, or
d. a change in the composition of the Board over a period of thirty-six
(36) months or less such that a majority of the Board members ceases, by reason
of one or more contested elections for Board membership, to be comprised of
individuals who either (A) have been Board members continuously since the
beginning of such period or (B) have been elected or nominated for election as
Board members during such period by at least a majority of Board members
described in clause (A) who were still in office at the time the Board approved
such election or nomination.
In the event a Constructive Termination has occurred EMPLOYEE shall, in her
sole discretion, provide Company with her written notice of resignation to be
effective not less than 30 days after receipt by Company, whereupon EMPLOYEE
shall cease to be employed by the Company and both parties shall be relieved of
further responsibility or liability to the other under this Agreement, other
than as provided in this AGREEMENT. Upon receipt of such notice of resignation,
Company shall promptly pay to EMPLOYEE by certified check, wire transfer funds,
or other form of payment reasonably acceptable to EMPLOYEE, a lump sum amount
equal to eighteen (18) months' salary of the EMPLOYEE at such compensation rate
as is then in effect under the terms of this Agreement and any extension or
renewal thereof (the "Payment"), or the value of the remaining employment
contract, whichever is greater. The Payment shall not have deducted from it any
charges, expenses, debts, set-offs or other deductions of any kind whatsoever
except for required taxes.
In the event EMPLOYEE resigns due to an event constituting a Constructive
Termination, all stock options under any Company Stock Option Plan which
EMPLOYEE holds at the time of such Change of Control, shall become fully vested.
The Company shall also extend the expiration date of those stock options to a
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date which is four years after the effective date of the EMPLOYEE's resignation,
unless the expiration date is after such four-year period, in which case the
original expiration date will control.
In the event of a Constructive Termination, CEL-SCI shall also provide the
following benefits to EMPLOYEE:
a. The EMPLOYEE's existing coverage under the Company's group health plan
(and, if applicable, the existing group health coverage for eligible dependents)
will end on the last day of the month in which the eligible EMPLOYEE's
employment terminates. The eligible EMPLOYEE and her eligible dependents may
then be eligible to elect temporary continuation coverage under the Company's
group health plan in accordance with the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA"). The eligible EMPLOYEE (and, if
applicable, her eligible dependents) will be provided with a COBRA election form
and notice which describe her rights to continuation coverage under COBRA. If an
eligible EMPLOYEE elects COBRA continuation coverage, then the Company will pay
for COBRA coverage (such payments shall not include COBRA coverage with respect
to the Company's Section 125 health care reimbursement plan) for (i) eighteen
(18) months, or (ii) the maximum period permitted under COBRA. If EMPLOYEE does
exhaust the applicable COBRA period, the Company will reimburse EMPLOYEE for the
cost of an individual health insurance policy in an amount not to exceed the
amount of the monthly COBRA premium previously paid by the Company pursuant to
this paragraph for the remainder of the two year period following EMPLOYEE's
termination of employment. After such period of Company-paid coverage, the
eligible EMPLOYEE (and, if applicable, her eligible dependents) may continue
coverage at her own expense in accordance with COBRA or other applicable laws.
No provision of this agreement will affect the continuation coverage rules under
COBRA. Therefore, the period during which the eligible EMPLOYEE must elect to
continue the Company's health plan coverage under COBRA, the length of time
during which COBRA coverage will be made available to the eligible EMPLOYEE, and
all the eligible EMPLOYEE's other rights and obligation under COBRA will be
applied in the same manner that such rules would apply in the absence of the
Plan. In the event, however, an EMPLOYEE becomes eligible for benefits under
another plan prior to the expiration of the period in which the Company is
paying benefit premiums, the Company shall no longer be obligated to pay such
benefit premiums. The EMPLOYEE is required to notify the Company of eligibility
for benefits under another plan and is expected to enroll in the new group plan
at the first eligible opportunity unless EMPLOYEE chooses, at EMPLOYEE's sole
expense, to continue COBRA benefits through the Company. If EMPLOYEE fails to
notify the Company of EMPLOYEE's eligibility for alterative benefits, the
Company shall have the right to discontinue payment of COBRA premiums upon
thirty (30) days' notice to EMPLOYEE. In no event shall a cash payment be made
to EMPLOYEE in lieu of the payment of COBRA premiums. The payment of COBRA
premiums by the Company shall not extend the maximum eligible COBRA coverage
period.
b. Outplacement Services. The Company will make available to EMPLOYEE, upon
her request, outplacement services provided by a reputable outplacement
counselor selected by the Company for a period of nine months following
termination. The Company will assume the cost of all such outplacement services.
In no event will a cash payment be made in lieu of outplacement benefits.
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6. Confidentiality
6.1 In view of the fact that the EMPLOYEE's work for the Company will bring
her into close contact with many confidential affairs of the Company not readily
available to the public, the EMPLOYEE agrees:
6.1.1 To keep secret and retain in the strictest confidence, all
confidential matters of the Company, including, without limitation, inventions
and related proprietary information, trade secrets, patents, customer lists,
methods, scientific results and related documentation in connection with any
research and development undertaken by, or at the direction of, the Company,
confidential pricing policies, confidential utilization review protocols and
screens, confidential and proprietary operational methods and other confidential
and proprietary business affairs and plans of the Company and its affiliates,
learned by her heretofore or hereafter; and not to disclose them to anyone
outside the Company, except in the course of performing her duties hereunder or
with the Company's express written consent; and
6.1.2 To promptly deliver to the Company upon the termination of her
employment with the Company, or at any time the Company may so request, all
memoranda, notes, records, reports, manuals, and other documents (and all copies
thereof) relating to the Company's business and all property associated
therewith, which she may then possess or have under her control.
6.2 If the EMPLOYEE commits a breach, or threatens to commit a breach, of
any of the provisions of Section 6.1 hereof, the Company shall have the
following rights and remedies:
6.2.1 The rights and remedy to have the provisions of this Agreement
specifically enforced by any court of competent jurisdiction, it being
acknowledged that any such breach or threatened breach shall cause irreparable
injury to the Company, and that money damages shall not provide a complete and
adequate remedy to the Company;
6.2.2 The right and remedy to require the EMPLOYEE to reimburse the Company
for all money damages, direct, consequential, or incidental, suffered by the
Company as a result of any transactions constituting a breach of any of the
provisions of the preceding paragraph.
Each of the rights and remedies enumerated above shall be independent of
the other and shall be severally enforceable, and all of such rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity.
7. Non-Competition and Non-Solicitation of Employees/Inventions, Patents
and Copyrights
7.1 EMPLOYEE agrees and promises that if her employment is terminated,
then, for the period of time described below, she will not be engaged in any
other business or as a consultant to or general partner, employee, officer or
director of any partnership, firm, corporation, or other entity, or as an agent
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for any person, or otherwise, if: (1) such other business, partnership, firm,
corporation, entity or person is engaged in for-profit activity in the
pharmaceutical industry within the United States and competes with CEL-SCI in
the field of natural cytokine mixtures for the treatment of any cancer
indication CEL-SCI is pursuing in clinical trials; and (2) EMPLOYEE either (a)
is a senior officer of such other business, partnership, firm, corporation,
entity or person; or (b) participates in or directs the development of drugs for
the treatment of cancer for such other business, partnership, firm, corporation,
entity or person. This agreement to refrain from engaging in competitive
activities shall continue for the period during which CEL-SCI is required by the
terms of paragraphs 5.2 or 5.3 of this AGREEMENT to make salary payments to
EMPLOYEE following her termination (i.e., eighteen (18) months in the case of
Constructive Termination under paragraph 5.3), or for 2 years in the case of the
EMPLOYEE's resignation or termination pursuant to Section 5.2.
7.2 The EMPLOYEE further agrees and represents that during the EMPLOYEE's
employment by the Company and during the period in which EMPLOYEE is subject to
the Non-Competition provisions of this AGREEMENT, the EMPLOYEE will not,
directly or indirectly, on the EMPLOYEE's own behalf or in the service of, or on
behalf of any other individual or entity, divert, or attempt to divert, solicit
or hire away, to or for any individual or entity which is engaged in providing
business services, any person employed by the Company, whether or not such
EMPLOYEE is employed pursuant to a written agreement and whether or not such
EMPLOYEE is employed for a determined period or at-will.
7.3 All inventions made by the EMPLOYEE during the employment term, which
inventions apply to the Company's business, including any improvements to any
invention in existence as of the date of this Agreement, will be assigned to the
Company. In the event any of such inventions are of a patentable nature,
EMPLOYEE agrees to apply for a patent on the invention and assign any patent
rights relating to the invention to the Company. The Company will bear the costs
of any such patent applications.
7.4 EMPLOYEE understands that the Company's duties may involve writing or
drafting various documents, for the Company. EMPLOYEE hereby assigns any and all
rights to such documents to the Company, together with the right to secure
copyright therefor and all extensions and renewals of copyright throughout the
entire world. The Company shall have the right to make any and all versions,
omissions, additions, changes, specifications and adaptions, in whole or in
part, with respect to such documents, brochures or publications.
8. Notices.
All notices, requests, consents and other communications, required or
permitted to be given hereunder, shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by prepaid electronic
transmission or mailed first-class, postage prepaid, by registered or certified
mail or delivered by an overnight courier service (notices sent by electronic
transmission, mail or courier service shall be deemed to have been given on the
date sent, or to such other address as either party shall designate by notice in
writing to the other in accordance herewith).
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9. Arbitration
The parties agree that any and all disputes that they have with one another
which arise out of EMPLOYEE's employment or under the terms of this AGREEMENT
shall be resolved through final and binding arbitration, as specified herein.
This shall include, without limitation, disputes relating to this AGREEMENT,
EMPLOYEE's employment by CEL-SCI or the termination thereof, claims for breach
of contract or breach of the covenant of good faith and fair dealing, and any
claims of discrimination or other claims under any federal, state or local law
or regulation now in existence or hereinafter enacted and as amended from time
to time concerning in any way the subject of EMPLOYEE's employment with CEL-SCI
or its termination. The only claims not covered by this paragraph 9 are claims
for benefits under the workers' compensation laws or claims for unemployment
insurance benefits, which will be resolved pursuant to those laws, or the
Company's rights pursuant to Section 6.2.1, which may be enforced by any court
of competent jurisdiction. Binding arbitration will be conducted in the
Washington, D.C. metropolitan area, in accordance with the rules and regulations
of the American Arbitration Association. Each party will bear one half of the
cost of the arbitration filing and hearing fees, and the cost of the arbitrator.
Each party will bear its own attorneys' fees, unless otherwise decided by the
arbitrator. EMPLOYEE understands and agrees that the arbitration shall be
instead of any civil litigation and that the arbitrator's decision shall be
final and binding to the fullest extent permitted by law and enforceable by any
court having jurisdiction thereof.
10. General.
10.1 This Agreement shall be governed by, and enforced in accordance with,
the laws of the Commonwealth of Virginia.
10.2 The article and section headings in this Agreement are for reference
only and shall not in any way affect the interpretation of this Employment
Agreement.
10.3 This Agreement sets forth the entire agreement and understanding of
the parties relating to the subject matter hereof and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof.
10.4 This Agreement, and the EMPLOYEE'S rights and obligations hereunder,
may not be assigned by the EMPLOYEE. The Company may assign this Agreement and
its rights, together with its obligations, hereunder in connection with any
sale, transfer or other disposition of all or substantially all of its business
or assets subject to Section 5.3 hereof; in any event, the obligations of the
Company hereunder shall be binding on its successors or assigns, whether by
merger, consolidation of acquisition of all or substantially all of its business
or assets.
10.5 This Agreement may be amended, modified, superseded, cancelled,
renewed or extended, and the terms hereof may be waived, only by a written
instrument executed by both of the parties hereto or, in the case of a waiver,
by the party waiving compliance. The failure of either party at any time or
times to require performance of any provision hereof shall in no manner affect
the right at a later time to enforce the same. No waiver by either party of the
breach of any term or covenant contained in this Agreement, whether by conduct
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or otherwise, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such breach, or a waiver of the breach
of any other term or covenant in this Agreement.
11. Subsidiaries and Affiliates.
As used herein, the term "subsidiary" shall mean any corporation or other
business entity controlled by the corporation in question; and the term
"affiliate" shall mean and include any corporation or other business entity
controlling, controlled by, or under common control with the corporation in
question.
12. Survival.
Sections 6 and 7 of this Agreement shall survive termination of this
Agreement for any reason.
IN WITNESS WHEREOF, the parties have executed this Agreement as of August
21, 2013.
CEL-SCI CORPORATION
/s/ Geert Kersten
----------------------------
By: Geert Kersten,
Chief Executive Officer
EMPLOYEE
/s/ Patricia B. Prichep
----------------------------
Patricia B. Prichep