Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This Amended and Restated Employment
Agreement (the “Agreement”) is made this 6th day
of October, 2009, by and between Inovio Biomedical Corporation, a
Delaware corporation (the “Company”) and Avtar Dhillon,
M.D. (the “Employee”), currently residing at 5820
Sagebrush Road, La Jolla, CA, 92037. The Company or Employee
are sometimes referred to herein as “party” or
collectively the “parties”.
RECITALS
WHEREAS, Employee and Company
entered into that certain Employment Agreement dated
December 5, 2008 (the “Prior Agreement”) pursuant
to which the Employee has served as President of the Company;
and
WHEREAS, the parties desire to amend
and restate the Prior Agreement to, among other things, provide
that the Employee will serve as the Company’s Executive
Chairman and lengthen the term of Employee’s service to the
Company.
NOW, THEREFORE, in consideration of
the mutual promises and covenants contained herein, and the
continued employment of Employee by the Company under this
Agreement, the parties agree as follows:
ARTICLE 1
EMPLOYMENT
1.1
Employment
: The Company hereby employs
the Employee to serve as Executive Chairman, or in such other
capacity as may be mutually agreed to by the parties, and the
Employee accepts such employment, upon the terms and subject to the
conditions set forth in this Agreement.
1.2
Duties : The Employee shall perform such duties
as are customarily associated with his then current title or
titles, consistent with the Bylaws of the Company and as required
by the Board of Directors of the Company. Said duties shall
be performed at the Company’s place of business located at
11494 Sorrento Valley Road, San Diego, California, or at such place
or places as the Company shall reasonably designate or as shall be
reasonably appropriate and necessary to the discharge of the
Employee’s duties in connection with his employment, but
subject to the provisions of Section 4.3.6 of this
Agreement. The Company and the Employee agree that the duties
may be replaced, superseded or supplemented from time to time by
the Board of Directors, but subject to the provisions of
Section 4.3.1.3 of this Agreement.
1.3
Hours : During the term of the Employee’s
employment with Company, the Employee will devote his best efforts
and substantially all of his business time and attention to the
performance of his duties hereunder and to the business and affairs
of the Company, except for vacation periods as set forth herein, or
for such reasonable time periods to voluntarily perform charitable
or civic duties by Employee. The Employee will duly,
punctually and faithfully observe the Company’s general
employment policies and practices, including, without
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limitation, any and all rules, regulations,
policies and/or procedures which the Company may now or hereafter
establish governing the conduct of its business. In addition,
the Employee will carry out his duties honestly, in good faith and
in the best interest of the Company.
1.4
Previous Agreements
: Subject to the following
sentence, the parties hereby agree that all previous employment,
consulting or other similar agreements covering the same subject
matter of this Agreement, whether written, verbal or implied
between the Company and the Employee are hereby cancelled,
superseded and replaced by this Agreement, and shall be of no
further force or effect provided, however, the Employee shall
remain bound by any confidentiality, invention assignment,
non-solicit and non-compete agreement(s) previously executed
in favor of the Company, to the extent such ancillary agreements
exist. Notwithstanding the foregoing and the amendment and
restatement of the Prior Agreement, Section 2.6 of the Prior
Agreement shall survive the execution of this Agreement.
ARTICLE 2
COMPENSATION
2.1
Salary : Subject to subsection 2.2, for his
services hereunder, the Employee shall receive a salary, payable in
such regular intervals as shall be determined by the Company, which
shall be at the rate of not less than U.S. $378,000 per year (the
“Salary”).
2.2
Salary Increases
: The rate of Salary provided
for in Section 2.1 shall be reviewed by the Board not less
often than annually and shall be increased from time to time and in
such amount as the Board, in its sole discretion, may
determine.
2.3
Discretionary Bonus
: The Company will, within
120 days of the end of each fiscal year, determine the annual
bonus (the “Bonus”), if any, earned by the Employee for
that fiscal year, based on the Employee’s achievement of
milestones agreed to by the Compensation Committee of the Board of
Directors and the Employee. Within 60 days of the
beginning of each fiscal year, the Compensation Committee of the
Board of Directors and the Employee shall agree to the
Employee’s milestones and the amount of bonus, which will be
awarded to the Employee if one or more milestones are
achieved. In the Company’s sole discretion it may pay
the Bonus in cash, shares of the Company or stock options of the
Company, or any combination thereof, and it may pay the Bonus in a
lump sum or installments, equal or otherwise, over the course of
the fiscal year immediately following the year for which the bonus
was earned.
2.4
Withholding
: All payments of Salary,
Bonuses and other compensation pursuant to this Agreement shall be
subject to withholding taxes and statutory deductions as required
by law. The Company shall be entitled to deduct from the
Salary, Bonus and any other compensation due to the Employee, and
to remit to the required governmental authority, any amount that it
may be required by law or regulation to deduct, retain and remit,
and may deduct other amounts as authorized by the
Employee.
2.5
Stock Options
: In addition to the
compensation provided for in Section 2.1 of this Agreement,
the Employee shall be entitled to such stock options as may be
approved by the Board of Directors of the Company in its sole
discretion from time to time, subject to regulatory
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approval and subject to the terms and conditions
set out in the Inovio Biomedical Corporation Amended and Restated
2007 Omnibus Incentive Plan, or any other stock option plans
subsequently adopted by the Company applicable to the
Employee’s position, including all terms and conditions
regarding vesting and exercise of options upon termination or other
events.
ARTICLE 3
FRINGE BENEFITS
3.1
Participation in Plans
: The Employee shall be
entitled to all additional fringe benefits, including, but not
limited to, life and health insurance programs that may be
generally available to other employees of the Company. All
matters of eligibility for coverage of benefits under any plan or
plans of health, hospitalization, life or other insurance provided
by the Company shall be determined in accordance with the
provisions of the insurance policies and/or applicable benefit
plans. The Company shall not be liable to the Employee, or
his beneficiaries or successors, for any amount payable or claimed
to be payable under any plan or policy of insurance, which is not
paid to any of the Company’s other employees.
3.2
Vacation : The Employee shall be entitled to five
weeks paid vacation during each calendar year in accordance with
the vacation accrual schedules and applicable vacation policies and
procedures of the Company, including the maximum cap on accrual, as
applied to other employees of the Company and which may be changed
from time to time by the Company.
3.3
Business Expenses
: The parties acknowledge that
the Employee may incur, from time to time, for the benefit of the
Company and in furtherance of the Company’s business, various
business expenses. The Company agrees that it shall either
pay such reasonable expenses directly, or reimburse the Employee
for such reasonable expenses incurred by the Employee. The
Employee agrees to submit to the Company original receipts of all
expenses paid by Employee and such other documentation as may be
reasonably necessary to substantiate that all expenses paid or
reimbursed hereunder were reasonably related to the performance of
his or her duties, pursuant to the provisions of any applicable
expense reimbursement policies and procedures that the Company may
implement for time to time.
3.4
Travel Policy
: The Employee shall be
entitled to travel reimbursement consistent with the travel policy
of the Company.
ARTICLE 4
TERM AND TERMINATION OF EMPLOYMENT
4.1
RESERVED .
4.2
Term : The term of this Agreement shall be for
a period of two (2) years commencing on the date of this
Agr
