SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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): March 24, 2008 (March 20, 2008)
GEOVAX LABS, INC.
(Exact name of registrant as specified in Charter)
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Illinois
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000-52091
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87-0455038
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(State or other jurisdiction of
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(Commission File No.)
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(IRS Employee Identification No.)
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incorporation or organization)
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1256 Briarcliff Road N.E.
Emtech Bio Suite 500
Atlanta, Georgia 30306
(Address of Principal Executive Offices)
(404) 727-0971
(Issuer Telephone number)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the Registrant under any of the following provisions (see General Instruction
A.2 below).
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Written communications 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 CFR240.14a-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
©
under the Exchange Act (17 CFR
240.13(e)-4(c))
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This Form 8-K and other reports filed by GeoVax Labs, Inc. (the “registrant”) from time to
time with the Securities and Exchange Commission (collectively the “Filings”) contain forward
looking statements and information that are based upon beliefs of, and information currently
available to, the registrant’s management as well as estimates and assumptions made by the
registrant’s management. When used in the Filings the words “anticipate”, “believe”, “estimate”,
“expect”, “future”, “intend”, “plan” or the negative if these terms and similar expressions as they
relate to the registrant or the registrant’s management identify forward looking statements. Such
statements reflect the current view of the registrant with respect to future events and are subject
to risks, uncertainties, assumptions and other factors relating to the registrant’s industry,
operations and results of operations and any businesses that may be acquired by the registrant.
Should one or more of these risks or uncertainties materialize, or should the underlying
assumptions prove incorrect, actual results may differ significantly from those anticipated,
believed, estimated, expected, intended or planned.
Item 1.01 Entry into a Material Definitive Agreement
Please see the discussion of the Consulting Agreement between Donald G. Hildebrand and GeoVax
Labs, Inc. as more fully described in Item 5.02 below.
Item 5.02 Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers; Departure of Directors or Certain Officers;
The following discussion provides only a brief description of the documents described below.
The discussion is qualified in its entirety by the full text of the agreements.
On March 20, 2008, GeoVax entered into an Employment Agreement with Robert T. McNally to
become our President and Chief Executive Officer effective April 1, 2008. The Employment Agreement
has no specified term. Pursuant to the Employment Agreement, we will pay Dr. McNally an annual
salary of $200,000. The Board of Directors may also recommend the payment of a discretionary bonus
annually. Dr. McNally is eligible for grants of awards from the GeoVax Labs, Inc. 2006 Equity
Incentive Plan and is entitled to participate in any and all benefits in effect from time-to-time
for executive officers generally. We may terminate the Employment Agreement, with or without
cause. If we terminate the Employment Agreement without cause, we will be required to give Dr.
McNally at least 60 days prior notice of the termination. In the event of termination not for
cause, Dr. McNally will be entitled to one week of severance pay for each full year of service.
Dr. McNally may terminate the Employment Agreement at any time by giving us 60 days notice. There
is no family relationship between Dr. McNally and any of our other officers or directors.
Dr. McNally (age 60) has been a member of the GeoVax Board of Directors since 2006 and will
continue to serve as a member of our Board of Directors subsequent to effective date of the
Employment Agreement. Dr. McNally graduated with a Ph.D. and MSE in Biomedical Engineering from
the University of Pennsylvania and has over 28 years of experience in academic and corporate
clinical investigations, management, research, business, quality and regulatory affairs. Since
2000, Dr. McNally has served as co-founder and Chief Executive Officer of Cell Dynamics LLC, a cGMP
laboratory specializing in GMP processing of human cells for pharmaceutical and therapeutic
applications. Previously, Dr. McNally was co-founder and Senior Vice President of Research for
CryoLife, Inc., a company specializing in the cryopreservation of human heart valves, vein and
ligament tissues for transplant. He has had previous experience as European Regional Manager for
Intermedics International, Inc. and European Marketing Manager for Pacesetter Systems-Europe, Ltd.
in the UK. Dr. McNally is Fellow of the American Institute of Medical and Biological Engineering,
and serves as a member of the advisory board of the Petit Institute for Bioengineering at the
Georgia Institute of Technology (Georgia Tech). He is a past Chairman of the Georgia Bio, a trade
association, and recipient of its 2004 Biomedical Industry Growth Award.
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In order to assist with the transition of certain duties to Dr. McNally, Donald G. Hildebrand,
our current President and Chief Executive Officer, entered into a Consulting Agreement with us on
March 20, 2008. Aside from his duties as a consultant, Mr. Hildebrand will also continue to serve
as Chairman of our Board of Directors. The term of the Consulting Agreement will begin on April 1,
2008 and will end on December 31, 2009. During the month of April 2008, Mr. Hildebrand will
receive $22,500 as compensation for his services. Beginning on May 1, 2008 and continuing through
December 31, 2008, Mr. Hildebrand will provide us with at least 32 hours of service per month and
will be paid at the rate of $250 per hour. Beginning on January 1, 2009 and continuing through
December 31, 2009, Mr. Hildebrand will provide us with at least 16 hours of service per month and
will be paid at the rate of $300 per hour. The Board of Directors may, in its discretion,
recommend the payment of an annual bonus. We will also pay Mr. Hildebrand’s medical and dental
coverage through the term. We may terminate the Consulting Agreement, with or without cause. If
we terminate the Consulting Agreement without cause, we must give Mr. Hildebrand at least 30 days
notice and we will be required to pay him, as a severance payment, three months compensation.
Likewise, if the Consulting Agreement is terminated due to the death of Mr. Hildebrand, we will be
required to pay his estate three months compensation. If Mr. Hildebrand wishes to terminate the
Consulting Agreement, he must provide us with 30 days notice.
The Employment Agreement with Dr. McNally, the Consulting Agreement with Mr. Hildebrand, and
the press release issued on March 24, 2008 announcing the appointment of Mr. McNally as our
President & Chief Executive Officer are all filed as exhibits to this Current Report. (See Item
9.01 below.)
Item 9.01 Financial Statements and Exhibits
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Exhibit 10.1
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Employment Agreement with Robert T. McNally
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Exhibit 10.2
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Consulting Agreement with Donald G. Hildebrand
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Exhibit 99
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Press Release
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this Current Report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: March 24, 2008
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GEOVAX LABS, INC.
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By:
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/s/ Mark W. Reynolds
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Mark W. Reynolds
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Chief Financial Officer
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Exhibit 10.1
EMPLOYMENT AGREEMENT
Between
GeoVax Labs, Inc. and Robert McNally
01 April 2008
This
EMPLOYMENT AGREEMENT
(the “Agreement”) by and between
GEOVAX LABS, INC
., a Georgia Corporation
(“GeoVax” or “Company”), and
ROBERT MCNALLY
(“Employee”; and with the Company, collectively, the
“Parties”), is entered into and effective as of: 0
1 APRIL 2008
(the “Effective Date”).
Therefore, in consideration of the mutual covenants and agreements set forth herein, the Employee
is hereby employed by the Company under the terms of this Agreement, and Employee accepts such
employment.
1.
Employee shall serve as PRESIDENT & CEO (Chief Executive Officer) of the Company and shall
perform the following duties (“Employee Duties”): such duties as are customary for someone in that
position and duties that may be reasonably assigned from time to time by the Chairman and/or the
Company’s Board of Directors (BOD).
Employee Duties include but are not limited to: overall management of the Company and related
corporate functions, business contracts and other activities that arise from time to time.
The President/CEO (“P/CEO”) has overall responsibility for the Company, plans and guides the
operations, sets specific company goals and objectives and devises strategies and formulates
policies to ensure that objectives are met. Corporate goals and policies are overseen by the
Chairman and the board of directors. P/CEO is the direct contact for all press, public relations
and fund raising activities of the company.
The P/CEO is held accountable for the accuracy of financial reporting, corporate governance,
internal controls, and financial reporting. Additional responsibilities include planning, financial
and operational budgets, purchasing, hiring, training, quality control, day-to-day activities,
overall performance inclusive of manufacturing, contracts, sales, purchasing, finance, personnel
and human resources activities, training, administrative services, computer and information
systems, property management, transportation and legal services. Raising required funds to sustain
the Company both short and long term are critical additional responsibilities.
P/CEO retains overall accountability for GeoVax as a publicly held corporation and the board of
directors ultimately is accountable for the success or failure of the enterprise. The person in
this position reports to the Chairman and to the board of directors.
2. Term of Agreement.
The term of Employee’s employment under this Agreement commences on or about
01 April 2008
and shall continue until the termination of Employee’s employment with the Company as
provided herein. The Company may terminate this Agreement upon at least 60 days prior written
notice to Employee, and such termination shall be effective on the termination date described in
such notice (or such earlier time as the Company and Employee may agree). Notwithstanding the
foregoing, the termination of this Agreement shall not terminate the Company’s obligation to make
any payments to Employee for services performed and expenses incurred prior to the date of such
termination, or as set forth below; and shall not terminate Employee’s obligations under Section
14, 15 and 16 below.
3. Base Salary
. The Company shall pay Employee
$200,000 annually
, payable at least monthly, with
annual reviews. Performance and salary reviews are at the discretion of the Chairman and/or board
of directors and may occur more often than annually in line with job responsibility changes.
4. Performance Reviews
. Performance reviews will be conducted at least annually by the Chairman
and/or the board of directors.
5. Annual Bonus Potential.
An annual fiscal year bonus will be considered and recommended, if
appropriate and approved by the Chairman and the board of directors. The actual amount shall be at
the discretion of the board of directors based on Employee’s and the Company’s performance and
achievement.
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6. Equity Stock Incentive.
The Company shall periodically (at least once per year) consider the
grant of stock options or other equity awards to Employee under the Company’s then current stock
award plan. These awards will have an expiration date and vesting schedule which will be
determined by the board of directors.
7. Moving Expenses.
N/A
8. Temporary Living Expense
. N/A
9. Travel Expenses.
The Company shall reimburse Employee for usual and customary business travel
expenses reasonably incurred in the performance of Employee’s Duties, based on receipted expense
reports, including mileage reimbursement at the IRS standard rate for such reimbursement for all
general business use of personal auto. Employee will use best efforts to minimize all travel and
travel expenses and use alternative less expensive forms of travel when possible. (Not inclusive of
home to office travel unless than more than 50 miles one way.)
10. Other Business Expenses
. N/A
11. Benefits
. Employee will be entitled to the following benefits in line with the Company’s
ongoing benefits program administered by the Company, through an HR employment agency (Administaff
Services, Inc.) or other company selected benefits administrator. Benefit details are provided in
an information packet available from the Company.
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a.
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Life Insurance Benefits: $50,000 in term life insurance. Additional insurance is
available through the HR agency at employee expense.
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b.
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Long-Term Disability Insurance: As provided
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c.
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Medical & Dental Insurance: As provided
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d.
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Vacation: Four (4) weeks paid vacation per calendar year — if not fully taken, up
to one week may be carried over to the following year.
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e.
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Holidays: Nine (9) paid holidays.
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f.
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Retirement Plan: A Company 401(k) Retirement Plan that allows Employee to
contribute up to 15% of salary on a pre-tax basis up to a maximum as prescribed under
federal law. Employer matching and/or profit contribution will be at the discretion of
the Company and approved annually by the board of directors. Company matching is
currently $0.25 for each $1.00 of employee 401(k) contribution up to a maximum. (See Plan
for details.) Waiting period is 6 months post hiring date.
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12. Termination Provision — Non Voluntary.
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a.
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For Cause.
If Employee is terminated for cause, Employee’s employment,
compensation and benefits will terminate immediately (unless otherwise provided by law),
and Employee shall not receive any severance payments.
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b.
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Without Cause
. If Employee is terminated without cause, Employee must be given 30
days notice, and his salary will continue to be paid for 1 week for each full year of
service.
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13. Termination Provision — Voluntary.
Employee may voluntarily terminate his employment on 60
day written notice to the Company, and Employee’s employment, compensation and benefits will
terminate on the effective date of termination (unless otherwise provided by law), and Employee
shall not receive any severance payments.
14. Record Keeping and Payment.
Employee shall keep and file with the Company an expense report
for all business expenses for which Employee seeks reimbursement, and Employee shall be reimbursed
for such documented business expenses, as approved by the Company’s Chief Financial Officer within
thirty (30) days of submitting a request for reimbursement.
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15. Restrictive Covenants
. Employee acknowledges that the restrictions contained herein are
reasonable and necessary to protect the legitimate business interests of the Company, and will not
impair or infringe upon his right to work or earn a living after his employment with the Company
ends. The restrictions imposed herein shall apply during Employee’s employment with the Company
and, except for the longer period specified below for the protection of Trade Secrets, thereafter
for a period of two (2) years after the termination of employment for any reason (the “Restricted
Period”).
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a.
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Trade Secrets and Confidential Information
. Employee represents and warrants that:
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(i)
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he is not subject to any agreement that would prevent him from performing
Employee’s Duties for the Company or otherwise complying with this Agreement, and
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(ii)
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he is not subject to or in breach of any non-disclosure agreement,
including any agreement concerning trade secrets or confidential information owned
by any other party.
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Employee agrees that he will not:
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(i)
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use, disclose, or reverse engineer the Trade Secrets or the Confidential
Information (as defined below), except as authorized by the Company; nor
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(ii)
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during his employment with the Company, use, disclose, or reverse
engineer (a) any confidential information or trade secrets of any former employer or
third party, or (b) any works of authorship developed in whole or in part by him
during any former employment or for any other party, unless authorized in writing by
the former employer or third party; nor
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(iii)
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upon his resignation or termination retain Trade Secrets or Confidential
Information, including any copies existing in any form (including electronic form),
which are in his possession or control, nor destroy, delete, or alter the Trade
Secrets or Confidential Information without the Company’s consent. Notwithstanding
the above, such information may be disclosed to authorized representatives of the US
government in federal grant applications and to third parties in connection with
licensing, financing and other commercial agreements, in each case to the extent the
failure to provide such information would materially prejudice the Company’s ability
to secure the grant or enter into the desired commercial relationship, and provided
that in each case Employee uses his best efforts to cause the person(s) receiving
such information to protect its confidentiality and limit its use, including
securing a written confidentiality agreement where possible.
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The obligations under this subsection 15.a shall:
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(i)
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with regard to the Trade Secrets, remain in effect as long as the
information constitutes a trade secret under applicable law, and
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(ii)
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with regard to the Confidential Information, remain in effect during the
Restricted Period.
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b.
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“
Confidential Information
” means information of the Company, to the extent not
considered a Trade Secret under applicable law, that
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(i)
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relates to the business of the Company,
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(ii)
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possesses an element of value to the Company,
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(iii)
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is not generally known to the Company’s competitors, and
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(iv)
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would damage the Company if disclosed.
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Confidential Information
includes, but is not limited to,
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(i)
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future business plans,
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(ii)
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the composition, description, schematic or design of products, future
products or equipment of the Company,
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(iii)
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communication systems, audio systems, system designs and related
documentation,
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(iv)
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advertising or marketing plans,
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(v)
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information regarding independent contractors, employees, clients and
customers of the Company, and
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(vi)
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information concerning the Company’s financial structure and methods and
procedures of operation.
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Confidential Information
shall not include any information that is or becomes generally
available to the public other than as a result of an unauthorized disclosure, has been
independently developed and disclosed by others without violating this Agreement or the
legal rights of any party, or otherwise enters the public domain through lawful means.
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c.
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“Trade Secrets”
means information of the Company, and its licensors, suppliers,
clients and customers, without regard to form, including, but not limited to, technical
or non-technical data, a formula, a pattern, a compilation, a program, a device, a
method, a technique, a drawing, a process, financial data, financial plans, product
plans, or a list of actual or potential customers or suppliers which is not commonly
known by or available to the public and which information derives economic value, actual
or potential, from not being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from its disclosure or use,
and is the subject of efforts that are reasonable under the circumstances to maintain its
secrecy.
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d.
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Non-Solicitation of Customers and Business Partners.
During the Restricted Period,
Employee will not solicit any customer of the Company, or any for-profit or
not-for-profit enterprise in a commercial or research relationship with the Company, on
his own behalf or on behalf of any other person or entity, for the purpose of providing
any goods or services competitive with the business of the Company as described in the
Company’s Business Plan or thereafter (the “Business”), or for the purpose of diverting
the benefits of any such relationship away from the Company. The restrictions set forth
in this Section apply only to the customers and enterprises with which Employee had
interaction:
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(i)
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in an effort to establish, maintain, and/or further a business
relationship on behalf of the Company, and
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(ii)
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which occurs during the last year of Employee’s employment with the
Company (or during his employment if employed less than a year)
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e.
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Non-Recruitment of Employees.
During the Restricted Period, Employee will not,
directly or indirectly, solicit, recruit or induce any employee of the Company or any
affiliate of the Company either to terminate his or her employment relationship with the
Company, or work for any other person or entity engaged in a business like the Business.
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16. Work Product.
Employee’s Duties may include creation of inventions in areas directly or
indirectly related to the business of the Company or to a line of business that the Company may
reasonably be interested in pursuing. All Work Product (as defined below) shall constitute work
made for hire. If:
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a.
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any of the Work Product may not be considered work made for hire, or
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b.
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ownership of all right, title, and interest to the legal rights in and to the Work
Product will not vest exclusively in the Company, then, without further consideration,
Employee assigns all presently-existing Work Product to the Company, and agrees to
assign, and automatically assigns, all future Work Product to the Company.
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The Company will have the right to obtain and hold in its own name copyrights, patents, design
registrations, proprietary database rights, trademarks, rights of publicity, and any other
protection available in the Work Product. At the Company’s request, Employee will perform, during
or after his employment with the Company, any acts to transfer, perfect and defend the Company’s
ownership of the Work Product, including, but not limited to:
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a.
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executing all documents (including a formal assignment to the Company) necessary
for filing an application or registration for protection of the Work Product (an
“Application”),
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b.
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explaining the nature of the Work Product to persons designated by the Company,
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c.
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reviewing Applications and other related papers, or
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d.
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providing any other assistance reasonably required for the orderly prosecution of
Applications. Employee will provide the Company with a written description of any Work
Product in which he is involved (solely or jointly with others) and the circumstances
surrounding the creation of such Work Product.
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“
Work Product”
means
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a.
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any data, databases, materials, documentation, computer programs, inventions
(whether or not patentable), designs, and/or works of authorship, including but not
limited to, discoveries, ideas, concepts, properties, formulas, compositions, methods,
programs, procedures, systems, techniques, products, improvements, innovations, writings,
pictures, and artistic works, and
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b.
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any subject matter protected under patent, copyright, proprietary database,
trademark, trade secret, rights of publicity, confidential information, or other property
rights, including all worldwide rights therein, that is or was conceived, created or
developed in whole or in part by Employee while employed by the Company and that either;
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(i)
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is created within the scope of his employment,
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(ii)
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is based on, results from, or is suggested by any work performed within
the scope of his employment,
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(iii)
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is directly or indirectly related to the business of the Company or a
line of business that the Company may reasonably be interested in pursuing,
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(iv)
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has been or will be paid for by the Company, or
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(v)
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was created or improved in whole or in part by using the Company’s time,
resources, data, facilities, or equipment
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a.
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Any controversy, claim or dispute arising from, out of or relating to this
Agreement, or any breach thereof, including but not limited to any dispute concerning the
scope of this arbitration clause, claims based in tort or contract, claims for
discrimination under federal, state or local law, and/ or claims for violation of any
federal, state or local law (any such controversy, claim or dispute being referred to
herein as a “Claim”) shall be resolved in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association then in effect.
Such arbitration shall take place in Atlanta, Georgia. The arbitrator’s award shall be
final and binding upon both parties.
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b.
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A demand for arbitration shall be made within a reasonable time after the Claim has
arisen. In no event shall the demand for arbitration be made after the date when an
institution of legal and/or equitable proceedings based on such Claim would be barred by
the applicable statute of limitations. Each party to the arbitration will be entitled to
be represented by counsel and shall have the right to subpoena witnesses and documents
for the arbitration hearing. The arbitrator shall be experienced in employment
arbitration and licensed to practice law in the state of Georgia. The arbitrator shall
have the authority to hear and grant a motion to dismiss and/ or motion for summary
judgment, applying the standards governing such motions under the Federal Rules of Civil
Procedure.
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c.
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Except as otherwise awarded by the arbitrator, each party shall pay the fees of its
respective attorneys, the expenses of its witnesses and any other expenses connected with
presenting its Claim or defense. To the extent permitted by law, the prevailing party
shall be entitled to receive, in addition to all other relief, payment of all expenses of
litigation and arbitration, including attorney’s fees.
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d.
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The parties indicate their acceptance of the foregoing arbitration requirement by
initialing below:
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/s/ Mark W. Reynolds /s/ John N. Spencer
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/s/ Robert T. McNally
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For the Company
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Employee
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18. Miscellaneous.
This Agreement constitutes the entire agreement between the Parties concerning
the subject matter of this Agreement. This Agreement supersedes any prior communications,
agreements or understandings, whether oral or written, between the Parties relating to the subject
matter of this Agreement. This Agreement may not be amended or modified except in writing signed by
both Parties. This Agreement shall be assignable to, and shall inure to the benefit of, the
Company’s successors and assigns, including, without limitation, successors through merger,
consolidation, or sale of a majority of the Company’s assets. Employee shall not have the right to
assign Employee’s rights or obligations under this Agreement, except as permitted under the laws of
descent and distribution. The laws of the State of Georgia shall govern this Agreement.
5 of 6
The Parties hereto have executed this Agreement as of the day and year first written below.
GEOVAX LABS, INC
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Name:
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Mark W. Reynolds / CFO & Secretary
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Signature:
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/s/ Mark W. Reynolds
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Date:
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March 20, 2008
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Name:
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John N. Spencer / Director — Chairman, BOD Compensation Committee
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Signature:
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/s/ John N. Spencer
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Date:
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March 20, 2008
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EMPLOYEE
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Name:
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Robert T. McNally
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Signature:
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/s/ Robert T. McNally
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Date:
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March 20, 2008
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6 of 6
Exhibit 10.2
CONSULTING AGREEMENT
Between
GeoVax Labs, Inc. and Donald G. Hildebrand
01 April 2008 through 31 Dec 2009
This CONSULTING AGREEMENT (the “Agreement”) by and between GeoVax Labs, Inc., a Georgia Corporation
(“Company”), and DONALD G. HILDEBRAND (“Consultant”; and with the Company, collectively, the
“Parties”), is entered into and effective as of: 01 April 2008 (the “Effective Date”).
Therefore, in consideration of the mutual covenants and agreements set forth herein, the Consultant
is hereby retained by the Company under the terms of this Agreement, and Consultant accepts being
retained as such.
1. a.
Consultant shall perform the following duties (“Consultant Duties”): such duties as are
customary for someone in that position and duties that may be reasonably assigned from time to time
by the President and/or Chairman and/or the Company’s Board of Directors (BOD). Consultant Duties
include but are not limited to: overall business, technical and operational guidance to the Company
and related corporate functions, business contracts and other activities that may arise from time
to time.
1. b.
Consultant agrees to continue as Chairman of the Board of Directors at the recommendation of
the Board. For services rendered in the capacity of Chairman of the Board, Consultant shall be paid
in accordance with the Director Compensation Plan as shall be determined by the Board from time to
time.
2. Term of Agreement.
The term of this Agreement commences 1 April 2008 and shall end [unless
mutually renewed] on 31 December 2009. Other than as described in paragraphs 11 through 13 below,
the Company may terminate this Agreement during the Term of this Agreement only upon insolvency of
the company, whereas the company no longer has the funds available to honor this contract as
indicated by filing for bankruptcy.
3. Consulting Fees.
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a.
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For the month of April 2008, Consultant shall continue to be paid through the
Company’s HR employment agency (Administaff Services, Inc.) at the rate of $11,250 per
each semi-monthly pay period. During this period, the Company shall continue to deduct
and remit federal, state and FICA tax withholdings as if Consultant were an employee of
the Company.
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b.
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The Company shall compensate Consultant not less than $250 per hour for a minimum
of 32 hours per month payable at least monthly, starting 1 May 2008 through 31 December
2008 and not less than $300 per hour for a minimum of 16 hours per month from 1 January
2009 through 31 December 2009.
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4. Annual Bonus Potential.
An annual fiscal year bonus will be considered and recommended, if
appropriate, by the Chairman and/or board of directors and with the approval of the board of
directors. The actual amount shall be at the discretion of the board of directors based on
Consultant’s and the Company’s performance and achievement.
5. Equity Stock Incentive.
No Stock Option incentives or other equity awards are provided.
6. Moving Expenses.
N/A
7. Temporary Living Expense
. N/A
8. Travel Expenses.
The Company shall reimburse Consultant for usual and customary business travel
expenses reasonably incurred in the performance of Consultant’s Duties and /or board services,
based on receipted expense reports, including mileage compensation in accordance with Internal
Revenue Service Guidelines for all business use of personal auto inclusive of travel to and from
GeoVax facilities and Consultant’s home/lodging. Food and lodging expenses while performing
Duties/services will be provided by the Company. Employee will use best efforts to minimize all
travel and travel expenses and use alternative less expensive forms of travel when possible.
1 of 5
9. Other Business Expenses
. N/A
10. Benefits
.
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a.
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Life Insurance Benefits: N/A
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b.
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Long-Term Disability Insurance: N/A
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c.
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Medical & Dental: Payment for personal coverage with $4,250 due Jun 08 and $8,500 due Jan
09.
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e.
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Vacation: N/A
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f.
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Holidays: N/A
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g.
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Retirement Plan: N/A
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11. Termination Provision
.
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a.
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With Cause.
If Consultant is terminated for cause, Consultant’s work will cease
and compensation and benefits will terminate immediately (unless otherwise provided by
law), and Consultant shall not receive any severance payments.
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b.
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Without Cause
. If Consultant is terminated without cause, Consultant must be given
30 days notice, and his Consulting Fees will continue to be paid for 3 months
post-termination.
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12. Termination Provision – Voluntary
. Consultant/Chairman may voluntarily terminate his
consulting arrangement and/or position as Chairman of the Board on 30 day written notice to the
Company, and Consultant’s and/or Chairman’s fees and benefits will terminate for those specific
services no longer provided on the effective date of termination (unless otherwise provided by
law), and Consultant shall not receive any severance payments.
13. Termination – Death.
If Consultant should die during the contractual period, monthly minimum
fee payments described above will continue for 3 additional months to the estate of Consultant as
if Consultant had performed such consulting services.
14. Record Keeping and Payment.
Consultant shall keep and file with the Company an expense report
for all business expenses for which Consultant seeks reimbursement, and Consultant shall be
reimbursed for such documented business expenses, as approved by the company’s Chief Financial
Officer, within thirty (30) days of submitting a request for reimbursement.
15. Restrictive Covenants
. Consultant acknowledges that the restrictions contained herein are
reasonable and necessary to protect the legitimate business interests of the Company, and will not
impair or infringe upon his right to work or earn a living after his consulting arrangement with
the Company ends. The restrictions imposed herein shall apply during Consultant’s contract period
with the Company and, except for the longer period specified below for the protection of Trade
Secrets, thereafter for a period of two (2) years after the termination of the consulting
arrangement for any reason (the “Restricted Period”).
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a.
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Trade Secrets and Confidential Information
. Consultant represents and warrants that:
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(1)
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He is not subject to any agreement that would prevent him from performing
the Consultant Duties for the Company or otherwise complying with this Agreement,
and
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(2)
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He is not subject to or in breach of any non-disclosure agreement,
including any agreement concerning trade secrets or confidential information owned
by any other party.
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(3)
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Consultant agrees that he will not:
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a)
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Use, disclose, or reverse engineer the Trade Secrets or the
Confidential Information (as defined below), except as authorized by the
Company; nor
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b)
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During his consulting contract period with the Company, use,
disclose, or reverse engineer (i) any confidential information or trade
secrets of any former employer or third party, or (ii) any works of authorship
developed in whole or in part by him during any former employment or for any
other party, unless authorized in writing by the former employer or third
party; nor
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c)
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Upon his resignation or termination retain Trade Secrets or
Confidential Information, including any copies existing in any form (including
electronic form), which are in his possession or control, nor destroy, delete,
or alter the Trade Secrets or Confidential Information without the Company’s
consent. Notwithstanding the above, such information may be disclosed to
authorized representatives of the US government in federal grant applications
and
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2 of 5
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to third parties in connection with licensing, financing and other commercial
agreements, in each case to the extent the failure to provide such information
would materially prejudice the Company’s ability to secure the grant or enter into
the desired commercial relationship, and provided that in each case Consultant uses
his best efforts to cause the person(s) receiving such information to protect its
confidentiality and limit its use, including securing a written confidentiality
agreement where possible.
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(4)
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The obligations under this subsection 15.a shall:
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a)
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With regard to the Trade Secrets, remain in effect as long as the
information constitutes a trade secret under applicable law, and
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b)
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With regard to the Confidential Information, remain in effect during
the Restricted Period.
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b.
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“Confidential Information”
means information of the Company, to the extent not
considered a Trade Secret under applicable law, that
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(1)
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Relates to the business of the Company,
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(2)
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Possesses an element of value to the Company,
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(3)
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Is not generally known to the Company’s competitors, and
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(4)
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Would damage the Company if disclosed.
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Confidential Information
includes, but is not limited to,
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(1)
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Future business plans,
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(2)
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The composition, description, schematic or design of products, future
products or equipment of the Company,
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(3)
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Communication systems, audio systems, system designs and related
documentation,
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(4)
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Advertising or marketing plans,
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(5)
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Information regarding independent contractors, employees, clients and
customers of the Company, and
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(6)
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Information concerning the Company’s financial structure and methods and
procedures of operation. Confidential Information shall not include any information
that is or becomes generally available to the public other than as a result of an
unauthorized disclosure, has been independently developed and disclosed by others
without violating this Agreement or the legal rights of any party, or otherwise
enters the public domain through lawful means.
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c.
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Trade Secrets
means information of the Company, and its licensors,
suppliers, clients and customers, without regard to form, including,
but not limited to, technical or non-technical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, or
a list of actual or potential customers or suppliers which is not
commonly known by or available to the public and which information
derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or
use, and is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
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d.
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Non-Solicitation of Customers and Business Partners.
During the
Restricted Period, Consultant will not solicit any customer of the
Company, or any for-profit or not-for-profit enterprise in a
commercial or research relationship with the Company, on his own
behalf or on behalf of any other person or entity, for the purpose of
providing any goods or services competitive with the business of the
Company as described in the Company’s Business Plan or thereafter (the
“Business”), or for the purpose of diverting the benefits of any such
relationship away from the Company. The restrictions set forth in
this Section apply only to the customers and enterprises with whom
Consultant had interaction
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(1)
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In an effort to establish, maintain, and/or further a business
relationship on behalf of the Company, and
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(2)
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Which occurs during the last year of Consultant’s consulting arrangements
with the Company (or during his consulting period if such period is for less than a
year)
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e.
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Non-Recruitment of Employees.
During the Restricted Period, Consultant will not,
directly or indirectly, solicit, recruit or induce any employee of the Company or any
affiliate of the Company
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3 of 5
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either to terminate his or her employment relationship with the Company, or work for any
other person or entity engaged in a business like the Business.
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16. Work Product.
Consultant Duties may include creation of inventions in areas directly or
indirectly related to the business of the Company or to a line of business that the Company may
reasonably be interested in pursuing. All Work Product (as defined below) shall constitute work
made for hire. If:
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a.
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Any of the Work Product may not be considered work made for hire, or
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b.
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Ownership of all right, title, and interest to the legal rights in and to the Work
Product will not vest exclusively in the Company, then, without further consideration,
Consultant assigns all presently-existing Work Product to the Company, and agrees to
assign, and automatically assigns, all future Work Product to the Company. The Company
will have the right to obtain and hold in its own name copyrights, patents, design
registrations, proprietary database rights, trademarks, rights of publicity, and any
other protection available in the Work Product. At the Company’s request, Consultant
will perform, during or after his employment with the Company, any acts to transfer,
perfect and defend the Company’s ownership of the Work Product, including, but not
limited to:
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(1)
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Executing all documents (including a formal assignment to the Company)
necessary for filing an application or registration for protection of the Work
Product (an “Application”),
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(2)
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Explaining the nature of the Work Product to persons designated by the
Company,
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(3)
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Reviewing Applications and other related papers, or
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(4)
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Providing any other assistance reasonably required for the orderly
prosecution of Applications. Consultant will provide the Company with a written
description of any Work Product in which he is involved (solely or jointly with
others) and the circumstances surrounding the creation of such Work Product.
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c.
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“
Work Product”
means:
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(1)
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Any data, databases, materials, documentation, computer programs,
inventions (whether or not patentable), designs, and/or works of authorship,
including but not limited to, discoveries, ideas, concepts, properties, formulas,
compositions, methods, programs, procedures, systems, techniques, products,
improvements, innovations, writings, pictures, and artistic works, and
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(2)
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Any subject matter protected under patent, copyright, proprietary
database, trademark, trade secret, rights of publicity, confidential information, or
other property rights, including all worldwide rights therein, that is or was
conceived, created or developed in whole or in part by Consultant while retained by
the Company and that either
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a)
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Is created within the scope of his consulting arrangement,
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b)
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Is based on, results from, or is suggested by any work
performed within the scope of his consulting arrangement,
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c)
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Is directly or indirectly related to the business of the
Company or a line of business that the Company may reasonably be interested in
pursuing,
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d)
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Has been or will be paid for by the Company, or
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e)
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Was created or improved in whole or in part by using the
Company’s time, resources, data, facilities, or equipment
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17. Arbitration.
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a.
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Any controversy, claim or dispute arising from, out of or relating to this
Agreement, or any breach thereof, including but not limited to any dispute concerning the
scope of this arbitration clause, claims based in tort or contract, claims for
discrimination under federal, state or local law, and/ or claims for violation of any
federal, state or local law (any such controversy, claim or dispute being referred to
herein as a “Claim”) shall be resolved in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association then in effect.
Such arbitration shall take place in Atlanta, Georgia. The arbitrator’s award shall be
final and binding upon both parties.
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b.
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A demand for arbitration shall be made within a reasonable time after the Claim has
arisen. In no event shall the demand for arbitration be made after the date when an
institution of legal and/or equitable proceedings based on such Claim would be barred by
the applicable statute of limitations. Each party to the arbitration will be entitled to
be represented by counsel and shall have the right to subpoena witnesses and documents
for the arbitration hearing. The arbitrator shall be experienced in
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4 of 5
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employment arbitration and licensed to practice law in the state of Georgia. The
arbitrator shall have the authority to hear and grant a motion to dismiss and/ or motion
for summary judgment, applying the standards governing such motions under the Federal
Rules of Civil Procedure.
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c.
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Except as otherwise awarded by the arbitrator, each party shall pay the fees of its
respective attorneys, the expenses of its witnesses and any other expenses connected with
presenting its Claim or defense. To the extent permitted by law, the prevailing party
shall be entitled to receive, in addition to all other relief, payment of all expenses of
litigation and arbitration, including attorney’s fees.
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d.
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The parties indicate their acceptance of the foregoing arbitration requirement by
initialing below:
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/s/ Mark W. Reynolds /s/ John N. Spencer
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/s/ Donald G. Hildebrand
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For the Company
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Consultant
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18. Miscellaneous.
This Agreement constitutes the entire agreement between the Parties
concerning the subject matter of this Agreement. This Agreement supersedes any prior
communications, agreements or understandings, whether oral or written, between the Parties relating
to the subject matter of this Agreement. This Agreement may not be amended or modified except in
writing signed by both Parties. This Agreement shall be assignable to, and shall inure to the
benefit of, the Company’s successors and assigns, including, without limitation, successors through
merger, consolidation, or sale of a majority of the Company’s assets. Consultant shall not have the
right to assign Consultant’s rights or obligations under this Agreement, except as permitted under
the laws of descent and distribution. The laws of the State of Georgia shall govern this Agreement.
The Parties hereto have executed this Agreement as of the day and year first written below.
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GEOVAX LABS, INC
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Name:
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Mark W. Reynolds / CFO & Secretary
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Signature:
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/s/ Mark W. Reynolds
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Date:
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March 20, 2008
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Name:
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John N. Spencer / Director —
Chairman, BOD Compensation Committee
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Signature:
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/s/ John N. Spencer
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Date:
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March 20, 2008
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CONSULTANT
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Name:
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Donald G. Hildebrand
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Signature:
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/s/ Donald G. Hilebrand
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Date:
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March 20, 2008
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5 of 5
EXHIBIT 99
AT THE COMPANY
Donald Hildebrand / Jennifer Nelms
(404) 727-0971 /
info@geovax.com
FOR IMMEDIATE RELEASE
GeoVax Further Strengthens Management Team
ATLANTA,
Ga., 24 March 2008 — GeoVax Labs, Inc. (OTC BB: GOVX),
www.geovax.com
, an Atlanta based
AIDS vaccine development company is very pleased to announce the addition of Dr. Robert McNally as
President and CEO effective 01 April 2008. Current President/CEO and company co-founder Don
Hildebrand remains as Chairman of the GeoVax Board of Directors and will continue to be heavily
involved in company development, growth and expansion plans in the AIDS vaccine arena.
“Dr. McNally is joining our team to provide additional expertise to guide our AIDS vaccine
development into advanced Phase 2a human clinical trials which are being planned for mid 2008. His
strong bio-technical, research and managerial experience at all corporate levels provides GeoVax
with the depth of expertise required to move efficiently forward at an accelerated pace,” stated
Don Hildebrand, GeoVax Chairman/President/CEO.
Dr. Harriet Robinson, GeoVax co-founder and Senior Vice President of Research & Development stated,
“It will be great having Dr. McNally on the team. He knows our company well, having served on our
Board, and his technical and business expertise will be a very valuable asset moving forward.”
Dr. McNally has been a member of the GeoVax Board of Directors since 2006 and was previously a
co-founder and CEO of Cell Dynamics LLC and Cell Design LLC companies specializing in GMP
processing of human cells for pharmaceutical and therapeutic applications. Dr. McNally was also
co-founder and Sr. Vice President of Clinical Research for CryoLife, Inc. a pioneering company in
transplantable human tissues. He has had previous experience as European Regional Manager for
Intermedics International, Inc. and European Marketing Manager for Pacesetter Systems-Europe, Ltd.
in the UK. Dr. McNally serves as a member of the advisory boards of the Petit Institute for
Bioengineering and Dupree College of Management at the Georgia Institute of Technology. He is an
elected fellow of the American Institute for Medical and Biological Engineering, and is a past
Chairman for the Georgia Biomedical Partnership, a trade association, and is recipient of the 2004
Biomedical Industry Growth Award for the State of Georgia. Dr. McNally has a Ph.D. and MSE in
Bioengineering from University of Pennsylvania and an electrical engineering degree (B.E.E.) from
Villanova University.
“Through my years of association with GeoVax, I have become a strong advocate of the technology
developed by Dr. Robinson. During those startup years, Don Hildebrand provided the leadership
necessary to create a strong team dedicated to the development of the vaccine and entry into
clinical trials. I welcome this opportunity to join the team to oversee completion of the trials,
and if successful, see worldwide distribution of this lifesaving vaccine,” stated Dr. McNally.
GeoVax is moving forward toward Phase 2 Human Trials.
GeoVax has completed 2 Phase 1 human trials evaluating its HIV/AIDS vaccines with excellent results
and has 3 additional human trials currently underway. Due to promising results from these 5 trials
GeoVax is pushing forward with plans for critically important and larger Phase 2 human trials.
GeoVax’s HIV/AIDS vaccine is believed to be only the 5
th
HIV/AIDS vaccine moving toward
Phase 2a human trials conducted by the HVTN. It was approximately the 65
th
vaccine
protocol evaluated in earlier stage Phase 1 trials.
“We are very pleased that our HIV/AIDS vaccine continues to demonstrate the promise of not only
being safe but potentially effective at eliciting potentially protective immune responses in
humans,” stated Dr Harriet Robinson, Senior Vice President, Research & Development, for GeoVax.
1
“GeoVax AIDS vaccines have passed the significant hurdles required to move into Phase 2 trials”
stated GeoVax President, Don Hildebrand. Very few HIV/AIDS vaccines have reached this level of
evaluation. The GeoVax AIDS vaccine technology and composition are significantly different than 2
other AIDS vaccines that recently had their human trials halted due to safety and effectiveness
concerns. GeoVax is also planning additional non-human primate studies to evaluate its AIDS
vaccines for effectiveness against very highly virulent (pathogenic) isolates of the AIDS virus
which could possibly relate to how effective these vaccines might be in man.
* * * * * * * *
About GeoVax Labs, Inc.
GeoVax Labs, Inc. is a biotechnology company, established to develop, manufacture, license and
commercialize human vaccines for diseases caused by HIV-1 (Human Immunodeficiency Virus) and other
infectious agents. GeoVax’s AIDS vaccine technology is covered by 20 issued or filed patent
applications. GeoVax HIV/AIDS vaccines are designed to prevent Acquired Immunodeficiency Disease
(AIDS), caused by the virus known as HIV-1. GeoVax HIV/AIDS vaccines may be effective as
therapeutics (treatment of people already infected with AIDS virus). Studies evaluating these
vaccines in HIV/AIDS infected individuals are in the planning stage.
GeoVax’s core HIV/AIDS vaccine technologies were developed through a collaboration of colleagues at
Emory University’s Vaccine Center, the National Institutes of Health (NIH), Centers for Disease
Control and Prevention (CDC) and the GeoVax team.
GeoVax HIV/AIDS vaccines are moving forward in human clinical trials administered by the HIV
Vaccine Trials Network (HVTN]-Division of the National Institutes of Health, based in Seattle,
Washington. Two (2) human trials have been successfully completed and three (3) human trials
involving over 105 individuals are currently ongoing with excellent safety and positive anti-HIV-1
immune responses in the majority of vaccine recipients. GeoVax and the HVTN are currently preparing
for very important Phase 2 human trials which are being planned for mid 2008. The HVTN, funded and
supported by the National Institutes of Health (NIH), is the largest worldwide clinical trials
program devoted to the development and testing of HIV/AIDS vaccines. Preclinical work enabling
development of the clinical evaluation of GeoVax DNA and MVA vaccines was also funded and supported
by the NIH National Institute of Allergy and Infectious Diseases (NIAID).
GeoVax DNA & MVA Genetically Engineered HIV/AIDS vaccines:
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DNA vaccine “primes” immune responses & MVA vaccine “boosts” immune responses against
the AIDS virus
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§
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Both express over 50% of AIDS virus components in vaccine recipients—Can not cause
AIDS
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§
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Protected 22 of 23 (96%) non-human primates against AIDS for over 3
1
/
2
years
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§
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Are manufactured & tested under GMP/GLP — EMEA (EU) and FDA [USA] guidelines
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§
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Satisfactorily completed 2 earlier HIV/AIDS vaccine Phase 1 human trials
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§
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Currently have 3 ongoing Phase 1 Human Trials — 1 was initiated in 2006, 2 in summer
2007
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§
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Have been demonstrated safe to date in human trials
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§
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Demonstrate positive anti-HIV immune responses in majority of human vaccine recipients
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§
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Are in planning for mid 2008 Phase 2 trials in based on positive results in Phase 1
trials
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Safe Harbor Statement:
All statements in this news release, not statements of historical fact, are
forward-looking statements. These statements are based on expectations and assumptions on the date
of this press release and are subject to numerous risks and uncertainties which could cause actual
results to differ materially from those described in the forward-looking statements. Risks and
uncertainties include, but are not limited to, whether: GeoVax can develop and manufacture these
vaccines with the desired characteristics in a timely manner, GeoVax’s vaccines will be safe for
human use, GeoVax’s vaccines will effectively prevent AIDS in humans, vaccines will receive
regulatory approvals necessary to be licensed and marketed, GeoVax raises required capital to
complete vaccine development, there is development of competitive products that may be more
effective or easier to use than GeoVax’s products, and other factors over which GeoVax has no
control. GeoVax assumes no obligation to update these forward-looking statements, and does not
intend to do so. Certain matters discussed in
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this news release are forward-looking statements involving certain risks and uncertainties
including, without limitation, risks detailed in the Company’s Securities and Exchange Commission
filings and reports.
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