EXHIBIT 10(d)
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of March 14, 2002, between CEL-SCI Corporation, a
Colorado corporation (the "Company"), and Maximilian de Xxxxx (the "Employee").
WHEREAS, the Company desires to employ the Employee, and the Employee
desires to accept such employment upon the terms and subject to the conditions
contained herein.
NOW, THEREFORE, in consideration of the foregoing, and for the mutual
promises of the parties hereinafter contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby expressly
acknowledged, the parties hereto agree as follows:
1. Employment, Duties and Acceptance.
1.1 Subject to the terms and conditions of this Agreement, the
Company hereby employs the Employee for a period of three years (see "Term", as
hereafter defined) to render full-time services to the Company as President. The
Employee shall report to the Board of Directors.
1.2 The Employee hereby accepts such employment and agrees to render
the services described above.
2. Term of Employment.
2.1 The Term of the Employee's employment under this Agreement (the
"Term") shall commence on the Effective Date hereof, which is defined to be
March 14, 2002, and shall end on March 31, 2005, unless sooner terminated
pursuant to Article 4 of this Agreement. After March 31, 2005, this Agreement
shall thereafter be continued on a month-to-month basis unless and until either
party gives notice ninety (90) days in writing to the other of its intention to
terminate this Agreement.
3. Compensation.
3.1 As full compensation for all services to be rendered pursuant to
this Agreement, the Company agrees to pay the Employee, in equal quarterly
payments in advance less such deductions or amounts to be withheld as shall be
required by applicable law and regulations, a salary at the fixed rate of
$363,000 per annum.
3.2 The Company shall pay or reimburse the Employee for all
reasonable expenses actually incurred or paid by the Employee, during the Term,
in the performance of the Employee's services under this Agreement, upon
presentation of expense statements or vouchers or such other supporting
information as the Company may require.
3.3 Nothing herein contained shall be construed to prevent the
Company from increasing the Employee's salary hereunder during the Term, or from
paying bonuses to the Employee in the discretion of the Board of Directors of
the Company or the Compensation Committee, if any, thereof.
3.4 The Employee shall be entitled to paid vacation, paid holidays
and other benefits in accordance with the policies of the Company. In addition,
the Employee shall be entitled to participate in any pension plan, medical or
dental reimbursement plan, group term or other life insurance plan, disability
insurance plan and any other group employee benefit plan which may be
established by the Company for the benefit of its employees generally. Such
participation shall be in accordance with the terms of any such plan.
3.5 The Company may obtain for its own benefit such amount of key
executive term life insurance on the life of the Employee as it may deem
necessary or advisable.
4. Termination.
4.1 If the Employee should die during the Term, this Agreement shall
terminate as of the date of the Employee's death, 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 Employee's death
occurs and all rights and entitlements pertaining to the Options described in
Section 3.3 hereof.
4.2 If, during the Term, the Employee shall become physically or
mentally disabled, whether totally or partially, so that the Employee is unable
substantially to perform his services hereunder for (i) a period of three (3)
consecutive months, or (ii) for shorter periods aggregating four (4) months
during any twelve-month period, the Company may, at any time after the last day
of the third (3rd) consecutive month of disability or the day on which the
shorter periods of disability shall have equaled an aggregate of four (4)
months, by written notice to the Employee (but before the Employee has recovered
from such disability), terminate the Term of the Employee's employment
hereunder. Notwithstanding such disability, the Company shall continue to pay
the Employee his full salary up to and including the date of such termination.
4.3 In the event of (i) conviction of the Employee of any crime or
offense involving the property of the Company, or any of its subsidiaries or
affiliates, fraud or moral turpitude, or (ii) the refusal of Employee to follow
the lawful directions of the Board of Directors within a reasonable period after
delivery to Employee of written notice of such directions from the Board of
Directors, or (iii) a breach of this Agreement by Employee which Employee fails
to cure within twenty (20) days after notice from the Board of Directors, the
Company may terminate Employee's employment hereunder by written notice to
Employee in which event Employee shall be compensated as set forth herein
through the date of termination and shall retain the full benefit of his
Options.
4.4 Termination by Employee. Any other provision of the Agreement to
the contrary notwithstanding, the Employee shall have the right, in his sole
discretion, exercisable by providing written notice to the Company as set forth
below, to terminate this Agreement upon the occurrence of the following events:
(a) A material diminution in the authority, duties, and/or
activities of the Employee hereunder.
(b) A change in control of the Company. Such change in control
shall be conclusively determined to have occurred whenever more than fifty
percent (50%) of the stock of the Company has been sold, or whenever a change in
the membership of a majority of the Board of Directors of the Company (as such
membership is constituted in the Effective Date) shall have occurred for any
reason whatsoever. In such event Employee shall, in his sole discretion, provide
Company with his written notice of resignation to be effective immediately upon
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. 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"). 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. Employee's Option shall remain in full force and effect;
provided, however, that upon such termination any portion of the Option that is
not vested at the time of such termination shall immediately become fully vested
upon such termination.
4.5 Termination Without Cause. In the event the Company terminates
Employee other than pursuant to Section 4.3 hereof, the Employee shall be
immediately entitled to the Payment as aforesaid, including those options that
had not yet vested at the time of such termination.
5. Protection of Confidential Information.
5.1 In view of the fact that the Employee's work for the Company
will bring him into close contact with many confidential affairs of the Company
not readily available to the public, the Employee agrees:
5.1.1 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 him 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
5.1.2 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.
5.2 If the Employee commits a breach, or threatens to commit a
breach, of any of the provisions of Section 5.1 hereof, the Company shall have
the following rights and remedies:
5.2.1 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 an adequate
remedy to the Company;
5.2.2 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.
6. Indemnification.
The Company shall indemnify the Employee to the maximum extent
permitted by applicable law against all costs, charges and expenses including
attorney's fees, incurred or sustained by him in connection with any action,
suit or proceeding to which he may be made a party by reason of his being an
officer, director or employee of the Company or of any subsidiary or affiliate
of the Company. The Company agrees to indemnify the Employee whenever any costs,
charges and expenses have been presented to the Employee. This Section 6 shall
be construed in conjunction with, and supplemented by, any indemnity provision
contained in the Articles of Incorporation or By-laws of the Company in respect
of officers of the Company.
7. 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), as follows (or to such other address as either party shall designate
by notice in writing to the other in accordance herewith):
If to the Company:
CEL-SCI Corporation
0000 Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
If to the Employee:
Maximilian de Xxxxx
Xxxxxxxxxxx Xxxxxxx 00
00000 Xxxxxx
Xxxxxxx
8. General.
8.1 This Agreement shall be governed by, and enforced in accordance
with, the laws of the State of Virginia.
8.2 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.
8.3 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.
8.4 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 4.4 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.
8.5 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.
9. 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.
10. Survival.
Section 5 of this Agreement shall survive termination of this
Agreement for any reason.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CEL-SCI CORPORATION
/s/ Geert X. Xxxxxxx
------------------------------------
By: Xxxxx Xxxxxxx
Chief Executive Officer
EMPLOYEE
/s/ Maximilian de Xxxxx
Xxxxxxxxxx de Xxxxx
