EXHIBIT 99.1
Separation and Release Agreement
SEPARATION AND RELEASE AGREEMENT
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THIS SEPARATION AND RELEASE AGREEMENT (this "Agreement"),
effective as of February 17, 2004, is executed by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
("▇▇▇▇▇"), and CELSION CORPORATION, a Delaware corporation (the "Company").
Preliminary Statement
1. ▇▇▇▇▇ served initially as the Executive Vice President and
President of the BPH Division of the Company and subsequently as the Executive
Vice President and President of the Oncology Division of the Company, pursuant
to an Executive Employment Agreement with the Company dated as of April 9, 2001
(the "Employment Agreement").
2. ▇▇▇▇▇ desires to resign from his positions as Executive
Vice President and President of the Oncology Division of the Company, and the
Company desires to accept such resignation from said positions, in accordance
with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. Recitals. The foregoing recitals are hereby incorporated by
reference and made a part of this Agreement.
2. Separation Date. ▇▇▇▇▇'▇ separation from the Company
("Separation Date") shall be effective on the earlier of (i) the 72-hour
anniversary of the issuance of the final pre-marketing approval of the Company's
Microwave BPH 800 System by the United States Food and Drug Administration (the
"FDA") for marketing and sale in the United States (the "PMA") or (ii) March 15,
2004 (the "Effective Date").
3. Status and Payments Until Separation Date. As of February
1, 2004, ▇▇▇▇▇ has been relieved of all of his duties set forth in the
Employment Agreement. From February 2, 2004 until February 27, 2004, ▇▇▇▇▇ will
be on paid vacation leave. On and after February 27, 2004 until the Separation
Date, ▇▇▇▇▇ will take a leave of absence from the Company and during that period
shall continue to receive his current salary paid bi-weekly in accordance with
the terms set forth in the Employment Agreement.
4. Severance. In lieu of all amounts payable as a salary or
cash bonus pursuant to the Employment Agreement, the Company agrees to pay ▇▇▇▇▇
a ▇▇▇▇▇▇▇▇▇ payment of Eight Hundred Twenty Two Thousand Two Hundred Fifty
Dollars ($822,250) (the "Severance Payment"), less such amounts as are required
to be withheld pursuant to applicable law. Two Hundred Seventy Five Thousand
Dollars ($275,000) of the Severance Payment shall be payable over one year in
bi-weekly installments pursuant to the Company's standard payroll policies
applicable to its executives commencing on the Separation Date. The balance of
the Severance Payment ($547,250, less such amounts as are required to be
withheld pursuant to applicable law) shall be paid to ▇▇▇▇▇ in a lump sum in
immediately available funds on the earlier of thirty (30) days from the issuance
of the PMA or thirty days of the Effective Date. In addition to the foregoing,
the Company shall pay ▇▇▇▇▇ a bonus payment of One Hundred Thousand Dollars
($100,000) (the "Bonus") in immediately available funds within thirty (30) days
of the PMA, provided, however, if the PMA is ultimately not ever issued by the
FDA, the Bonus shall not be due or payable by the Company and shall be forfeited
by ▇▇▇▇▇.
5. Stock Options.
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5.1 Vesting of Granted Options. In addition to the
Severance Payment and Bonus, and the stock options that have previously vested
as set forth in Section 5.3, the Company has agreed that the stock options
granted to ▇▇▇▇▇ by the Company prior to the date hereof which have not yet
vested, shall vest in accordance with the following vesting schedule: (i) ▇▇▇▇▇
may exercise his option to acquire Three Hundred Thirty-Five Thousand (335,000)
(the "PMA Options") shares of fully paid and non-assessable shares of common
stock, par value $0.01 per share (the "Common Stock") of the Company on or after
the issuance of the PMA, provided that, the PMA Options shall vest at the
discretion of the Board of Directors of the Company in the same manner (both in
time and amount) as those granted to other executives generally; and (ii) ▇▇▇▇▇
may exercise his option to acquire Two Hundred Twenty-One Thousand Six Hundred
Sixty-Six (221,666) (the "March Options") shares of Common Stock on March 31,
2004. Except as set forth above, ▇▇▇▇▇ and the Company acknowledge and agree
that ▇▇▇▇▇ has not been granted any other options to acquire Common Stock of the
Company which have not already vested, and that ▇▇▇▇▇ is not entitled to any
other stock options or equity incentives pursuant to the Employment Agreement or
otherwise.
5.2 Exercise. (i) With respect to those stock options which
vested prior to the date hereof, ▇▇▇▇▇ may exercise those stock options at any
time prior to 5:00 p.m. on the 90th day following the Separation Date, (B) with
respect to the March Options, ▇▇▇▇▇ may exercise the March Options at any time
prior to 5:00 p.m. on June 29, 2004, and (C) with respect to the PMA Options,
▇▇▇▇▇ may exercise the PMA Options at any time prior to 5:00 p.m. on the 90th
day following the later of (x) the Separation Date or (y) the vesting date of
the PMA Options (to the extent vested), upon written notice to the Company at
its principal office at ▇▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, after which time all unexercised
options shall expire and be of no further legal force or effect. The notice
shall be executed and delivered with the Purchase Form attached hereto as
Exhibit A duly completed and
signed and shall be accompanied by payment in cash or cashier's check of the
aggregate purchase price for the number of shares, which ▇▇▇▇▇ is acquiring
pursuant to the provisions hereof.
5.3 Exercise Price. The exercise price for the stock
options to acquire Common Stock noted above shall be as follows:
Option Vesting Date # of Stock Options Exercise Price/Share
------------------- ------------------ --------------------
5/14/02 221,667 $ .64
12/06/02 120,000 $ .40
3/31/03 221,667 $ .64
March Options 221,666 $ .64
PMA Options 335,000 $ .76
Except as outlined above, ▇▇▇▇▇ and the Company acknowledge and agree
that ▇▇▇▇▇ has not been granted any other stock options to acquire Common Stock
of the Company.
6. Benefits.
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6.1 Participation in Employee Benefit Programs. Subject to
▇▇▇▇▇'▇ meeting the respective eligibility requirements of each plan, until the
first anniversary of the Separation Date, ▇▇▇▇▇ shall be entitled to participate
in, and be covered by, each health insurance and hospitalization plan of the
Company, as the case may be, made available to its executives generally, on the
same terms as offered to all executives from and after the date hereof.
Thereafter, ▇▇▇▇▇ shall have the same opportunity to continue group health
benefits at ▇▇▇▇▇'▇ expense in accordance with the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA") as is available generally to other
executives separating from employment with the Company.
6.2 Laptop. ▇▇▇▇▇ shall be entitled to retain, for his own
personal use, the laptop and docking station previously provided to him by the
Company and described on Schedule A, provided that ▇▇▇▇▇ will provide the
Company reasonable access to the laptop at the Company on or before February 29,
2004, to enable the Company to remove all confidential and proprietary
information and software belonging to the Company, and that ▇▇▇▇▇ further
certifies that he has kept no copies in any medium of such information and
software.
6.3 No Other Benefits. Except as expressly set forth
herein, ▇▇▇▇▇ shall not be entitled to any other benefit provided by the Company
to its executives generally, including, but not limited to, any employee benefit
program in which ▇▇▇▇▇ had a right to participate under the Employment
Agreement.
6.4 Expenses. ▇▇▇▇▇ acknowledges and agrees that he has not
incurred, and is not entitled to reimbursement for any out-of-pocket expenses
paid or incurred by him from and after February 1, 2004 and that he has
submitted all expense
reports or requests for reimbursement for out-of-pocket expenses incurred prior
to February 1, 2004. ▇▇▇▇▇ has or shall immediately return to the Company for
cancellation the American Express charge card to which he has been provided
access.
7. Restrictive Covenants.
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7.1 Until the first anniversary of the Separation Date,
▇▇▇▇▇ agrees that he shall not, without the Company's prior written consent
(which may be withheld for any reason or for no reason in the Company's sole
discretion), do anything in any way inconsistent with his prior duties to, or
adverse to the interests of, the Company, nor shall ▇▇▇▇▇, 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 the
Company or be engaged in or connected with any other business competitive with
that of the Company or any of its affiliates, except that ▇▇▇▇▇ 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 the Company or any of its affiliates.
7.2 In view of the fact that ▇▇▇▇▇ was brought into close
contact with many confidential affairs of the Company and its affiliates not
readily available to the public, ▇▇▇▇▇ agrees that he shall continue to:
(a) 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, know-how, financial condition and
other financial affairs (such as costs, pricing, profits and plans for future
development, methods of operation, business and marketing plans) of the 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 the Company or any of its affiliates is operating, ▇▇▇▇▇ shall not
disclose the Confidential Information to anyone not then an officer, director or
authorized employee of the Company or its affiliates, at any time after the date
hereof, except with the 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 ▇▇▇▇▇; and
(b) to deliver to the Company within ten days after the
Separation Date, all memoranda, notes, records, reports and other documents
relating to the Company or its affiliates, businesses, financial affairs or
operations and all property associated therewith, which he may then possess or
have under his control.
7.3 ▇▇▇▇▇ shall not at any time during the three-year
period following the Separation Date, (i) employ any individual who was employed
by the Company or any of its affiliates at any time during the such period or
during the twelve
(12) calendar months immediately preceding the Separation Date, or (ii) in any
way cause, solicit, induce, influence or participate in the employment of any
such individual by anyone else in any business that is competitive with any of
the businesses engaged in by the Company or any of its affiliates.
7.4 ▇▇▇▇▇ shall not at any time during the three-year
period following the Separation Date, 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 the Company or with any
affiliate, or to reduce the amount of business it does with the Company or with
any of its affiliates, (ii) solicit for himself or any person other than the
Company or any of its affiliates, the business of any individual or business
which was a customer or client of the Company or any of its affiliates at any
time during the eighteen month period immediately preceding the Separation Date.
7.5 ▇▇▇▇▇ acknowledges that the execution and delivery by
him of the promises set forth in this Section 7 is an essential inducement to
the Company to enter into this Agreement, and that the Company would not have
entered into this Agreement but for such promises. ▇▇▇▇▇ further acknowledges
that his services to the Company were unique and that any breach or threatened
breach by Executive of any of the foregoing provisions of this Section 7 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 7, the Company shall be
entitled to injunctive relief restraining ▇▇▇▇▇ 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 the Company from pursuing any other remedies available at law or in
equity for such breach or threatened breach, including the recovery of damages.
7.6 If any of the provisions of, or promises contained in,
this Section 7 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 7 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 7
in any other jurisdiction.
8. Releases. The parties shall execute the releases in the
form attached hereto as Exhibit B simultaneously with the execution of this
Agreement.
9. Employment Agreement of No Further Force or Effect. This
Agreement supercedes all prior agreements between the parties including all
provisions of the Employment Agreement, which is terminated in its entirety and
is of no further legal force or effect effective as of the date of this
Agreement.
10. Non-Disparagement. From and after the date hereof,
regardless of any dispute that may arise between the parties, each party agrees
that he or it shall not disparage, criticize or make statements to any person
(other than on a confidential basis to attorneys, accountants, and family
members) that are negative, detrimental or injurious to the other.
11. Recovery of Personal Effects. On a date mutually agreed
upon by ▇▇▇▇▇ and the Company (which shall be a Saturday or Sunday), and in no
event later than February 29, 2004, ▇▇▇▇▇ shall be given access to the Company's
premises, accompanied by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or his designate, to retrieve any
personal effects of ▇▇▇▇▇ which remain at the Company.
12. Notices.
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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 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 the Company: Celsion Corporation
▇▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
With a copy to: ▇▇▇▇▇▇▇ LLP
Mercantile Bank and Trust Building
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
If to ▇▇▇▇▇: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Prince, Lobel, Glovsky & Tye
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The foregoing addresses may be changed by either party from time to time by
notice given in the manner set forth in this Section 12.
13. Jurisdiction. Any suit involving any dispute or matter
arising under this Agreement may only be brought in any United States federal
district court located in the State of Maryland or in any state court located in
▇▇▇▇▇▇ County, Maryland. Each of the parties hereto consents to the venue and
the exercise of personal jurisdiction by such court with respect to all such
proceedings.
14. Review Period; Waiver. ▇▇▇▇▇ understands that he has
twenty-one (21) days from the date of his receipt of this Agreement, which was
February ___, 2004, to consider his decision to sign it, and that he may
unilaterally waive this period at his election. Employee's signature on this
Agreement constitutes an express waiver of the twenty-one (21) day period if
affixed prior to the expiration of that period. By signing this Agreement,
Employee expressly acknowledges that his decision to sign this Agreement was
knowing and voluntary and of his own free will.
15. ADEA Claim Revocation Rights. ▇▇▇▇▇ acknowledges that he
may revoke this Agreement only as it pertains to claims under the Age
Discrimination In Employment Act (29 U.S.C. ▇▇.▇▇. 626 et seq., "ADEA") for up
to and including seven (7) days after his execution of this Agreement, and that
the aspects of this Agreement regarding his release of claims under the ADEA
shall not become effective until the expiration of seven (7) days from the date
of his execution of this Agreement. This provision regarding revocation shall
have no effect on the validity and enforceability of any other term, condition
or provision of this Agreement, which becomes effective when signed. In the
event that ▇▇▇▇▇ revokes this Agreement as it pertains to claims under the ADEA,
▇▇▇▇▇ agrees that all other provisions of this Agreement (and the releases
described in Section 8) are independently supported by adequate consideration
and are fully enforceable. ▇▇▇▇▇ expressly agrees that, in order to be
effective, his revocation pursuant to this Section must be in writing and must
actually be received by the Company before 5:00 p.m. on the seventh day
following his execution of this Agreement.
16. OWBPA Violations. To the extent that any provision of this
Agreement is determined to be in violation of the Older Workers Benefit
Protection Act ("OWBPA"), it should be severed from the Agreement or modified to
comply with the OWBPA, without affecting the validity or enforceability any of
the other terms or provisions of the Agreement.
17. ▇▇▇▇▇'▇ ACKNOWLEDGMENTS. ▇▇▇▇▇ ACKNOWLEDGES AND AGREES
THAT: (A) ▇▇▇▇▇ IS SPECIFICALLY ADVISED TO CONSULT WITH AN ATTORNEY BEFORE
EXECUTING THIS AGREEMENT AND ▇▇▇▇▇ HAS HAD ADEQUATE TIME AND OPPORTUNITY TO DO
SO AND ANY DECISION NOT TO DO SO WAS HIS ALONE, IN HIS SOLE DISCRETION; (B)
▇▇▇▇▇'▇ DECISION TO EXECUTE THIS AGREEMENT IS OF ▇▇▇▇▇'▇ OWN FREE WILL; (C) NO
INDUCEMENTS, REPRESENTATIONS OR AGREEMENTS HAVE BEEN MADE OR RELIED UPON TO MAKE
THIS AGREEMENT EXCEPT
AS STATED IN THIS AGREEMENT; AND (D) ▇▇▇▇▇ HAS IN FACT READ THIS AGREEMENT AND
UNDERSTANDS ALL OF ITS TERMS.
18. Miscellaneous.
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18.1 Entire Agreement; Amendment; Waiver. This Agreement
and the releases executed by the parties in connection herewith, contain the
entire understanding of the parties hereto with respect to the subject matter
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 (including, without limitation the Employment
Agreement), understandings and arrangements between ▇▇▇▇▇ and the Company
pertaining to the terms of the employment of ▇▇▇▇▇. 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.
18.2 Severability. Subject to the provisions of Section
7.6 as they affect the provisions of Section 7 hereof, 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.
18.3 Governing Law. 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.
18.4 Headings. 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.
18.5 Binding Nature. This Agreement shall be binding upon
and inure to the benefit of ▇▇▇▇▇ and his personal representatives, executors
and administrators and to the successors or assigns of the Company.
18.6 Construction. The parties and their respective legal
counsel actively participated in the negotiation and drafting of this Agreement,
and in the event of any ambiguity or mistake herein, or any dispute among the
parties with respect to the provisions hereto, no provision of this Agreement
shall be construed unfavorably against any of the parties on the ground that he,
it, or his or its counsel was the drafter thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the date first above written.
WITNESS/ATTEST: CELSION CORPORATION
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-------------------------------- By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL)
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice
President and Chief Financial Officer
-------------------------------- /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
EXHIBIT A
OPTION EXERCISE FORM
Celsion Corporation
▇▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Gentlemen:
1. Exercise of Stock Option. I hereby exercise the [Insert Type]
______________Stock Option (the "Stock Option") granted to me on
____________________, 200___, by Celsion Corporation (the "Corporation"),
subject to all the terms and provisions thereof and of the Celsion Corporation
2001 Stock Option Plan (the "Plan"), and notify you of my desire to purchase
____________ shares (the "Shares") of Common Stock of the Corporation at a price
of $___________ per share pursuant to the exercise of said Stock Option.
2. Information about the Corporation. I am aware of the Corporation's
business affairs and financial condition and have acquired sufficient
information about the Corporation to reach an informed and knowledgeable
decision to acquire the Shares.
3. Tax Consequences. I am not relying upon the Corporation for any tax
advice in connection with this option exercise, but rather am relying on my own
personal tax advisors in connection with the exercise of the Stock Option and
any subsequent disposition of the Shares.
4. Tax Withholding. I understand that, in the case of a nonqualified
stock option, I must submit upon demand from the Corporation an amount in cash
or cash equivalents sufficient to satisfy any federal, state or local tax
withholding applicable to this Stock Option exercise, in addition to the
purchase price enclosed, or make such other arrangements for such tax
withholding that are satisfactory to the Corporation, in its sole discretion, in
order for this exercise to be effective.
5. Unregistered Shares. The following shall apply in the event the
Shares purchased herein are not registered under the Securities Act of 1933, as
amended:
(a) I am acquiring the Shares for my own account for investment with
no present intention of dividing my interest with others or of reselling or
otherwise disposing of any of the Shares.
(b) The Shares are being issued without registration under the
Securities Act of 1933, as amended (the "Act"), in reliance upon the exemption
provided by Section 3(b) of the Act for employee benefit plans, contained in
Rule 701 promulgated thereunder, or in lieu thereof upon the private offering
exemption contained in Section 4(2) of the Act, and such reliance is based in
part on the above representation.
(c) Since the Shares have not been registered under the Act, they
must be held indefinitely until an exemption from the registration requirements
of the Act is available or they are subsequently registered, in which event the
representation in Paragraph (a) hereof shall terminate. As a condition to any
transfer of the Shares, I understand that the Corporation will require an
opinion of counsel satisfactory to the Corporation to the effect that such
transfer does not require registration under the Act or any state securities
law.
(d) The issuer is not obligated to comply with the registration
requirements of the Act, with the requirements for an exemption under Regulation
A under the Act, or with the public information requirements necessary for
reliance on Rule 144 under the Act, for my benefit.
(e) The certificates for the shares to be issued to me shall contain
appropriate legends to reflect the restrictions on transferability imposed by
the Act.
Total Amount Enclosed: $__________
Date:________________________ ____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Received by Celsion Corporation
On:_________________________, 200__
By:_________________________________
EXHIBIT B
RELEASE
1. CELSION CORPORATION, a Delaware corporation (the "Company"), for and in
consideration of the execution by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") of the Agreement
executed by and between the parties simultaneously herewith (the "Agreement"),
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, for itself and each of its directors, officers,
employees, stockholders, agents, successors, assigns, attorneys and trustees
(collectively the "Celsion Releasors"), does hereby irrevocably and
unconditionally remise, release, acquit, exonerate and forever discharge ▇▇▇▇▇,
and his heirs, personal representatives, executors, administrators, successors
and assigns, of and from any or all actions, causes of action, suits, debts,
dues, sums of money, accounts, claims, demands, covenants, contracts,
controversies, promises, agreements, damages, attorneys' fees, costs and
expenses of suit, obligations, liabilities and judgments, of whatever kind or
nature, known or unknown, now existing or which may develop in the future, in
law or in equity, which any of the Celsion Releasors ever had against ▇▇▇▇▇, now
has or which any of the Celsion Releasors hereafter can, shall or may have, upon
or by reason of any act, omission, matter, cause or thing whatsoever, from the
beginning of time through the date of this Release, except for those arising
under or with respect to the Agreement.
2. WAIVER AND RELEASE.
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(a) ▇▇▇▇▇, for and in consideration of the execution by the Company of the
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, for himself and his past, present
and future heirs, executors, personal representatives, administrators,
successors and assigns (separately and collectively, the "▇▇▇▇▇ Releasors") does
hereby irrevocably and unconditionally remise, release, acquit, exonerate and
forever discharge the Company and each of the Company Releasors, of and from any
or all actions, causes of action, suits, debts, dues, sums of money, accounts,
claims, demands, covenants, contracts, controversies, promises, agreements,
damages, attorneys' fees, costs and expenses of suit, obligations, liabilities
and judgments, of whatever kind or nature, known or unknown, now existing or
which may develop in the future, in law or in equity, which any of the ▇▇▇▇▇
Releasors ever had against the Company, now has or which any of the ▇▇▇▇▇
Releasors hereafter can, shall or may have, upon or by reason of any act,
omission, matter, cause or thing whatsoever, from the beginning of time through
the date of this Release, including without limitation ▇▇▇▇▇'▇ employment and
termination of employment from the Company, but excepting those arising under or
with respect to the Agreement. This is a general release. This release includes,
but is not limited to, all actions, causes of action, suits, claims, debts,
liabilities, obligations, covenants, contracts and demands arising from or
related to, directly or indirectly, ▇▇▇▇▇'▇ employment with the Company, or the
termination thereof, or any other relationship with any of the Celsion
Releasors, whether the same are brought under any federal, state or local law or
regulation, including, but not limited to: (i) any claim of discrimination or
harassment based on age, race, color, sex, religion, handicap, disability,
national origin, ancestry, citizenship, marital status or sexual orientation, or
any other claim of employment discrimination,
retaliation or harassment under the Age Discrimination In Employment Act (29
U.S.C. ▇▇.▇▇. 626 et seq., "ADEA"), Title VII of the Civil Rights Acts of 1964
and 1991 as amended (42 U.S.C. ▇▇.▇▇. 2000e et seq.), the Employee Retirement
Income Security Act of 1974 as amended (29 U.S.C. ▇▇.▇▇. 1001 et seq.), the
Consolidated Omnibus Budget Reconciliation Act of 1985 as amended (29 U.S.C.
▇▇.▇▇. 1161 et seq. "COBRA"), the Americans With Disabilities Act (42 U.S.C.
▇▇.▇▇. 12101 et seq.), the Rehabilitation Act of 1973 (29 U.S.C. ▇▇.▇▇. 701 et
seq.), the Family and Medical Leave Act (29 U.S.C. ▇▇.▇▇. 2601 et seq.), the
Fair Labor Standards Act (29 U.S.C. ▇▇.▇▇. 201 et seq.), the Annotated Code of
Maryland, and any other law, statute, regulation or ordinance prohibiting
employment discrimination or relating to the employment relationship, or any
other alleged violation of local, state or federal law, constitution, regulation
or ordinance, and/or public policy; and (ii) any rights or claims for alleged
breach of contract, wrongful discharge, arbitration, statutory claims,
compensation, violation of any state, local or federal law regarding wages,
benefits or employment practices; and (iii) any rights or claims for any tort
(including, without limitation, defamation) that ▇▇▇▇▇ may allege has been
committed against him; and (iv) any rights or interest ▇▇▇▇▇ may now have or
ever have under any agreement with the Company (other than the Agreement),
including, without limitation, the Employment Agreement.
(b) ▇▇▇▇▇ also agrees not to make or file any lawsuits, complaints, or other
proceedings against the Company or to join in any such lawsuits, complaints, or
other proceedings against the Company or the Celsion Releasors concerning any
matter that arose prior to the date of this Agreement, provided that, this
Agreement and covenant not to ▇▇▇ does not restrict ▇▇▇▇▇'▇ right to initiate an
action against the Celsion Releasors under the Older Workers Benefit Protection
Act ("OWBPA") challenging the release of his claims or his covenant not to file
a claim or lawsuit under the ADEA. ▇▇▇▇▇ further agrees that, as to any such
lawsuits, complaints, or other proceedings that have already been made or filed
by or on behalf of ▇▇▇▇▇, ▇▇▇▇▇ agrees to immediately dismiss with prejudice all
such lawsuits. ▇▇▇▇▇ further agrees and covenants not to assist or encourage
others in making or filing any lawsuits, complaints, or other proceedings
against the Company, or any other Celsion Releasor.
IN WITNESS WHEREOF, the parties have hereunto set their
respective hands and seals as of the date and year set forth below.
ATTEST/WITNESS: CELSION CORPORATION
________________________________ By:__________________________(SEAL)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice
President and Chief Financial Officer
February _____, 2004
________________________________ _____________________________(SEAL)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
February ____, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, to wit:
I hereby certify that on this _____ day of February, 2004,
before me the subscriber, a Notary Public of the State of Maryland, in and for
the County aforesaid, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, in his capacity as
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President and Chief Financial Officer of
Celsion Corporation, and he acknowledged that he executed the foregoing Release
for the purposes therein contained.
IN WITNESS WHEREOF, I hereto set my hand and official seal.
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Notary Public
My Commission Expires:
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STATE OF
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COUNTY OF , to wit:
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I hereby certify that on this _____ day of February, 2004,
before me the subscriber, a Notary Public of the State of _______________, in
and for ______________ County, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and he
acknowledged that he executed the foregoing Release for the purposes therein
contained.
IN WITNESS WHEREOF, I hereto set my hand and official seal.
------------------------------------
Notary Public
My Commission Expires:
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