UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): January 6, 2010
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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001-15911
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52-1256615
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(State
or other jurisdiction
of
incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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10220-L Old
Columbia Road, Columbia, Maryland
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21046-2364
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(Address of
principal executive office)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (410) 290-5390
N/A
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligations of the registrant under any of the following
provisions (see General Instruction A.2. below):
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Written
communication pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.135-4(c))
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On
January 8, 2010, Celsion Corporation (the “Company”) announced the departure of
Sean F. Moran, Chief Financial Officer, effective January 8,
2010. Mr. Moran leaves the Company to pursue other professional
opportunities. Timothy J. Tumminello, CPA, the Company’s Controller,
will assume the position of Interim Chief Accounting Officer and the
responsibilities of the Company’s financial officer until a new Chief Financial
Officer is appointed.
In
connection with Mr. Moran’s departure, the Company and Mr. Moran entered into a
Separation Agreement
and General Release, a copy of which is filed as Exhibit 10.1 to this Current
Report on Form 8-K and is incorporated by reference herein.
Mr.
Tumminello, 52, has served as the Company's Assistant Controller since April,
2009 and was appointed as the Company's Controller and Interim Chief Accounting
Officer on January 6, 2010. Prior to Mr. Tumminello’s employment with the
Company, he was employed by IC Isaacs & Company, Inc., from May 1997 to
January 2009 and held various positions during his tenure that included serving
as Vice President, Controller and Principal Financial Officer at the time of his
departure in 2009. Mr. Tumminello was employed in the Baltimore,
Maryland office of Deloitte & Touche LLP from January 1991 until May
1997. Mr. Tumminello is a certified public accountant.
In
connection with his appointment, Mr. Tumminello will be paid a base salary of
$148,400, be eligible for a bonus (targeted at up to 15% of base salary with an
18.5% maximum) and, subject to the approval of the Board of Directors of the
Company, will be granted an option to purchase 5,000 shares of common stock of
the Company.
Item
9.01 Financial Statement and Exhibits.
(d) Exhibits.
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Exhibit Number
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Description
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10.1
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Separation
Agreement and General Release, dated January 6, 2010, between Celsion
Corporation and Sean Moran
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99.1
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Press
Release of the Company, dated January 8,
2010
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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CELSION
CORPORATION
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Date: January
8, 2010
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By:
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/s/ Timothy J.
Tumminello
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Timothy
J. Tumminello
Interim
Chief Accounting Officer and Corporate
Controller
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Exhibit
Index
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Exhibit Number
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Description
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10.1
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Separation
Agreement and General Release, dated January 6, 2010, between Celsion
Corporation and Sean Moran
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99.1
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Press
Release of the Company, dated January 8,
2010
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Exhibit
10.1
SEPARATION AGREEMENT AND
GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL
RELEASE (the “Agreement”) is hereby executed and effective as of January
6, 2010, by and between CELSION
CORPORATION (“Celsion”) and SEAN MORAN (“Moran”), who are
collectively referred to herein as the “Parties.”
WHEREAS the Parties desire and agree to
fully and finally resolve any and all existing or potential issues, claims,
causes of action, grievances and disputes that do, or could relate thereto or
arise out of their employment relationship or severance thereof, without any
admission of liability or finding or admission that any of Celsion’s or Moran’s
rights, under any statute, claim or otherwise, were in any way violated.
In consideration of the mutual promises contained herein, and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties, intending to be legally bound, agree as
follows:
1. The
Parties agree that Moran’s employment with Celsion will voluntarily terminate
effective as of January 8, 2010 (the “Termination Date”). Celsion and
Moran agree that for a sixty (60) day transition period after the Termination
Date, Moran will make himself generally available to provide transition services
upon request as mutually agreed with Michael Tardugno, Celsion’s CEO,
including the development of a transition plan for redistributing the tasks and
responsibilities of his position among other members of Celsion management
team.
2. The
Parties further agree that they will cooperate regarding all announcements of
Moran’s departure from Celsion and that neither party will issue any release
without consulting with and obtaining the consent of the other Party regarding
the statements to be contained therein. The Parties agree that they
will not unreasonably withhold consent to any such announcements.
3. The
parties agree not to make disparaging remarks or comments with respect to each
other.
4. Celsion
agrees that Moran’s termination of employment shall be treated as “involuntary”
and without “just cause” and that Celsion shall abide by the terms of the last
bulleted subparagraph of the Celsion offer letter to Moran dated November 21,
2008.
5. Moran
and Celsion acknowledge and agree that, with the exception of the fourth quarter
2009 3% matching contribution, which will be made in January 2010, all matching
contributions relative to the 401(k) Plan with respect to Moran’s 2009
compensation have been paid in full, and that no corporate matching
contributions with respect to 2010 compensation or severance payments shall be
due or payable. Moran and Celsion further acknowledge and agree that
all stock options or stock grants that have not vested are hereby forfeited, and
that any vested but unexercised stock options shall be exercisable in accordance
with Celsion’s standard corporate policies, or as extended by the consent of the
Board, for the exercise of stock options held by employees whose employment with
Celsion has terminated.
6. Moran
acknowledges and agrees that, except for 6 unpaid vacation days, Celsion owes
him no additional wages, bonuses, benefits, property, stock or compensation of
any kind or nature relating to his employment with Celsion, except as expressly
provided herein.
7. Celsion
agrees that Moran has fully performed all of his obligations under the terms of
his employment to date, and except as provided in Section 1 hereof, he does
not owe Celsion further performance thereunder. Notwithstanding any
language to the contrary contained herein, the Parties agree that the provisions
of the Employee Proprietary Information Agreement between the Parties dated
August 25, 2009 (the “EPI Agreement”) shall remain in full force and
effect.
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8. Moran
agrees that effective as of the Termination Date, he will surrender to Celsion
every item and every document that is Celsion’s property (including but not
limited to keys, records, vehicles, computers, peripherals, computer files and
disks, notes, memoranda, software, data, inventory and equipment) or contains
Company information, in whatever form. All of these materials are the sole
and absolute property of Celsion.
9. Moran
hereby agrees that he will, and hereby does, forever and irrevocably release and
discharge Celsion, its officers, directors, employees, agents, stockholders,
affiliates, parents, subsidiaries, divisions, predecessors, purchasers, assigns,
representatives, successors, successors in interest, and customers from any and
all grievances, claims, actions or causes of action, obligations, contracts,
promises, damages, judgments, expenses, and liabilities, known or unknown,
whatsoever which he now has, has had, or may have, whether the same be at law,
in equity, or mixed, in any way arising from or relating to any act, occurrence,
or transaction before the date of this Agreement, including without limitation
his employment with and separation of employment with Celsion, but excluding any
claims arising under or with respect to this Agreement or the EPI
Agreement. This is a General Release. Moran expressly
acknowledges that this General Release includes, but is not limited to, Moran’s
intent to release Celsion from any claim relating to his employment at Celsion,
including, but not limited to, tort and contract claims, arbitration claims,
statutory claims, claims under any state or federal wage and hour law or wage
collection law, and claims of age, race, color, sex, religion, handicap,
disability, national origin, ancestry, citizenship, marital status, retaliation,
or any other claim of employment discrimination 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 (29 U.S.C. §§ 1001 et seq.), the
Consolidated Omnibus Budget Reconciliation Act of 1985 (29 U.S.C. §§ 1161 et
seq.), 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.), any and all employment discrimination or
employment standards statutes contained in the Annotated Codes of Maryland, and
any other law relating to employment.
Moran does not waive and release any
claim for indemnity under the company’s bylaws and/or under applicable state law
with respect to claims for indemnification of officers and directors for acts
taken in their capacity as such. In addition, Moran does not waive
any claim for coverage under the company’s directors and officer’s liability
insurance policy or any other form of insurance that might provide protection to
Moran for any claim lodged against him, arising out of his acts or omissions
during his employment with Celsion.
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10. Moran
agrees not to sue Celsion or to join in any lawsuit against Celsion or any other
person or entity specified in Section 8 concerning any matter which arose
prior to the date of this Agreement. Moran further agrees and covenants
not to make, file, assist or encourage others in making or filing any lawsuits,
complaints, or other proceedings, including but not limited to any suits in the
local or state courts, the United States Federal District Courts or any other
court, against Celsion, or any other person or entity specified in
Section 8, provided however, that this agreement not to file any suits
shall not limit Moran’s right to make indemnity claims or claims related to
D&O insurance coverage as expressly permitted by the last paragraph of
Section 8.
11. Celsion
hereby forever releases and irrevocably discharges Moran, and his heirs and
personal representatives from any and all claims, demands, debts, actions,
causes of action, obligations, damages and liabilities which it has ever had,
now has or could have with respect to him, arising from or relating in any way,
directly or indirectly, to his employment with or separation from Celsion;
provided, however, that this release does not include (i) actions arising
out of willful malfeasance, fraud, or any illegal activities by Moran in
connection with the performance of his duties at Celsion, or (ii) claims
arising under or with respect to this Agreement or the EPI Agreement.
Celsion expressly acknowledges that this constitutes a General Release in tort,
contract and under any federal, state or local law with respect to the matters
being released.
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12. Moran
agrees that neither this Agreement nor the negotiations in pursuance thereof
shall be construed or interpreted to render him a prevailing party for any
reason, including but not limited to an award of attorney’s fees or costs under
any statute or otherwise.
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13. Moran
represents that he has not heretofore assigned or transferred, or purported to
assign or transfer, to any person or entity, any claim against Celsion or
portion thereof or interest therein, and that any such claim is not assignable
or transferable.
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14. The
Parties further agree that this Agreement shall be binding upon and inure to the
benefit of the assigns, personal representatives, heirs, executors, and
administrators of Moran and the assigns, personal representatives, heirs,
executors, administrators, affiliates, successors, predecessors, subsidiaries,
divisions, officers, purchasers, agents, representatives, directors and
employees of Celsion, that this Agreement contains and comprises the entire
agreement and understanding of the Parties, that there are no additional
promises or terms among the Parties other than those contained herein, and that
this Agreement shall not be modified except in writing signed by each of the
Parties hereto.
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15. The
Parties further agree that this Agreement and the rights and obligations
hereunder shall be governed by, and construed in accordance with, the laws of
the State of Maryland regardless of any principles of conflicts of laws or
choice of laws of any jurisdiction. The state courts of Maryland and, if
the jurisdictional prerequisites exist at the time, the United States District
Court for Baltimore, Maryland, shall have sole and exclusive jurisdiction to
hear and determine any dispute or controversy arising under or concerning this
Agreement.
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16. If
any terms of the above provisions of this Agreement are found null, void or
inoperative, for any reason, the remaining provisions will remain in full force
and effect. The language of all parts of this Agreement shall in all cases
be construed as a whole, according to its fair meaning, and not strictly for or
against either of the Parties.
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17. Moran
represents that he has read this Agreement, that he understands all of its
terms, that he had a reasonable amount of time to consider his decision to sign
it, that he had the opportunity to discuss the terms of this Agreement with an
attorney of his choice, that in executing this Agreement he does not rely and
has not relied upon any representation or statements made by any of Celsion’s
agents, representatives, or attorneys with regard to the subject matter, basis,
or effect of the Agreement, and that he enters into this Agreement voluntarily,
of his own free will and with knowledge of its meaning and effect.
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18. Moran
understands that he has had twenty-one (21) days from the date of his receipt of
this Agreement, to consider his decision to sign it with respect to claims
arising under the ADEA. Moran expressly agrees that any changes made will
not restart the twenty-one (21) day period for considering whether to sign this
Agreement as to such claims. By signing this Agreement, Moran expressly
acknowledges that his decision to sign this Agreement was knowing and voluntary,
not induced by fraud, misrepresentation, or improper means, and of his own free
will.
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19. Moran
acknowledges that he may revoke this Agreement only as it pertains to claims
under the 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.
20. This
Agreement is the exclusive severance arrangement provided by Celsion for
Moran. Moran shall not be entitled to receive any severance or other
similar benefits under any other severance arrangement or policies maintained or
sponsored by Celsion for employees.
21. This
Agreement may be executed by the Parties in multiple counterparts, each of which
will be deemed an original.
22. Each
Party is responsible for all costs and expenses incurred by it in the
preparation and negotiation of this Agreement, including the costs and expenses
of legal counsel, accountants, financial advisors or other consultants or
experts.
IN WITNESS WHEREOF, the parties have
executed this Agreement effective as of the day and year first above
written.
WITNESS: EMPLOYEE
/s/ Marnie
Masotti /s/ Sean
F. Moran
Sean F. Moran
CELSION
CORPORATION
/s/ Marnie
Masotti By:_/s/
Michael H. Tardugno
Michael
H. Tardugno, President
Exhibit 99.1
Celsion
Announces CFO Departure
COLUMBIA,
MD (PR Newswire) January 08, 2010 – CELSION CORPORATION (NASDAQ: CLSN) today
announced the departure of Sean F. Moran, Chief Financial Officer, effective
January 8, 2010. Mr. Moran leaves Celsion to pursue other
professional opportunities. Timothy J. Tumminello, CPA, the Company’s
controller, will assume the position of Interim Chief Accounting Officer and the
responsibilities of the Company’s financial officer. Celsion has retained
CTPartners to lead its search for a new CFO.
“Celsion
has great respect for Sean’s work and expertise,” commented Michael H. Tardugno,
Celsion’s President and CEO. “We wish him well in his future
endeavors.”
About
Celsion
Celsion
is dedicated to the development and commercialization of innovative oncology
drugs including tumor-targeting treatments using focused heat energy in
combination with heat-activated drug delivery systems. Celsion has licensed
ThermoDox® to Yakult-Honsha for the Japanese market and has a partnership
agreement with Phillips Medical to jointly develop its heat activated liposomal
technology in combination with high intensity focused ultrasound to treat
difficult cancers. Celsion has research, license, or commercialization
agreements with leading institutions such as the National Institutes of Health,
Duke University Medical Center, University of Hong Kong, Cleveland Clinic, and
the North Shore Long Island Jewish Health System.
For more
information on Celsion, visit our website: http://www.celsion.com
Celsion
wishes to inform readers that forward-looking statements in this release are
made pursuant to the "safe harbor" provisions of the Private Securities
Litigation Reform Act of 1995. Readers are cautioned that such forward-looking
statements involve risks and uncertainties including, without limitation,
unforeseen changes in the course of research and development activities and in
clinical trials by others; possible acquisitions of other technologies, assets
or businesses; possible actions by customers, suppliers, competitors, regulatory
authorities; and other risks detailed from time to time in the Company's
periodic reports filed with the Securities and Exchange Commission.
Contact:
Marcy
Nanus
The Trout
Group, LLC
646-378-2927
or mnanus@troutgroup.com