EMPLOYMENT AGREEMENT
Exhibit 10.7
This
Employment Agreement ("AGREEMENT") is made by and between Geert X.
Xxxxxxx ("EMPLOYEE") and CEL-SCI Corporation ("CEL-SCI" or
“the Company”) as of August 31, 2019 (the "Effective
Date").
RECITALS
EMPLOYEE has been
an EMPLOYEE of CEL-SCI since February 1987. 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 Chief Executive Officer of CEL-SCI
commencing on the Effective Date of this AGREEMENT and ending on
August 31, 2023, 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 his employment
with or without cause. EMPLOYEE hereby accepts such employment and
agrees to devote his 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 him by 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 he 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 annual salary of
$559,052, less applicable withholding taxes. EMPLOYEE will receive
at least the same salary increases per year as do other senior
executives of CEL-SCI. Increases beyond those, 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.
2.2
Salary
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 him of this AGREEMENT, his employment by CEL-SCI and
his 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.
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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 his 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
his death will be extended to a date which is four years after the
effective date of the EMPLOYEE’s death, unless the expiration
date is after such four-year period, in which case the original
expiration date will
control.
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 incapacitated or disabled 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. 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 Constructive
Termination.
If (i)
during the period ending on the date that is 48 months following a
Change in Control the EMPLOYEE terminates his employment with the
Company; (ii) the Company terminates EMPLOYEE’s employment,
other than pursuant to Sections 5.1 or 5.2 of this Agreement; or
(iii) the EMPLOYEE terminates his employment for Good Reason (all
of the above a “Constructive Termination”),
then;
●
all stock options
which EMPLOYEE holds at the time of such Constructive Termination
shall become fully vested;
●
the Company will
extend the expiration date of the stock options referred to above
to a date which is four years after the effective date of the
EMPLOYEE’s resignation or termination, unless the expiration
date is after such four-year period, in which case the original
expiration date will control;
●
all outstanding
restricted stock, which is the subject of an Award Agreement
pursuant to the Company’s 2014 Incentive Stock Bonus Plan;
shall vest;
●
all restrictions
pertaining to any award made pursuant to the Company’s 2014
Incentive Stock Bonus Plan shall lapse and have no further force or
effect, including the failure to meet the Performance Criteria set
forth in the Award Agreement pursuant to the Company’s 2014
Incentive Stock Bonus Plan; and
●
all other shares of
restricted stock then held by the EMPLOYEE shall immediately vest
and all restrictions pertaining to any such shares of restricted
stock will lapse and have no further force or effect.
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For
purposes of the above:
“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 by any individual, entity or group of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended) of 20% or more of the
Company’s either (1) the then outstanding shares of common
stock of the Company or (2) the combined voting power of the then
outstanding voting securities of the Company entitled to vote in
the election of directors, 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.
Good
Reason means: (a) a breach of any provisions of this Agreement by
the Company; a reduction in the EMPLOYEE’s benefits; or (b)
the EMPLOYEE being assigned any duties which are materially
inconsistent with the duties of the EMPLOYEE immediately prior to
the date of such new assignment; or (c) the office at which the
EMPLOYEE is required to perform his duties is more than 10 miles
from the office at which the EMPLOYEE was then performing his
duties.
In the
event a Constructive Termination has occurred (other than the
EMPLOYEE’s employment being terminated by the Company),
EMPLOYEE may, in his sole discretion, provide Company with his
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, or in the event the Company
terminates the employment of EMPLOYEE other than pursuant to
Section 5.1 or 5.2 of this Agreement, 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 24 month’s 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.
5.4 In
the event of a Constructive Termination, the Company 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 his 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,
his eligible dependents) will be provided with a COBRA election
form and notice which describe his 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, his eligible dependents) may continue coverage at his
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. The Company will
make available to EMPLOYEE, upon his 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 his 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 his heretofore or hereafter;
and not to disclose them to anyone outside the Company, except in
the course of performing his duties hereunder or with the Company's
express written consent; and
6.1.2
To promptly deliver to the Company upon the termination of his
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 he may then
possess or have under his 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;
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 his employment is terminated,
then, for the period of time described below, he 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 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 the Company in the field of natural cytokine mixtures for the
treatment of any cancer indication the Company 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 the Company is required by the terms of paragraphs 5.2
or 5.3 of this Agreement to make salary payments to EMPLOYEE
following his termination (i.e., twenty four (24) 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.
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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).
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 the Company 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 the Company
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 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 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 Company; 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 31, 2019.
| CEL-SCI CORPORATION |
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By:
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/s/ Xxxxxxxx X.
Xxxxxxx
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Xxxxxxxx X.
Xxxxxxx
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Senior
Vice President of Operations
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| EMPLOYEE |
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By:
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/s/ Geert X.
Xxxxxxx
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Geert X.
Xxxxxxx
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