Exhibit
10.4


 


AMENDED AND RESTATED 

EMPLOYMENT AGREEMENT


 


This AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (the “Agreement”) is entered into this 6th day
of January, 2009, and amends, restates and integrates in its entirety the
Employment Agreement entered into on July 21, 2008 (the “Effective Date”),
between Anthony S. Marucci (the “Executive”) and CELLDEX
THERAPEUTICS, INC. (f/k/a AVANT IMMUNOTHERAPEUTICS, INC.), a
Delaware corporation (the “Company”) (collectively, the Executive and the
Company shall be referred to as the “Parties”). 
In consideration of the mutual promises and agreements contained herein,
the Parties agree as follows:


 


1.                                      PURPOSE.  The Company desires to avail itself of the
services of the Executive as Chief Executive Officer, and the Executive desires
to provide such services in accordance with the terms of this Agreement.  The Parties agree that the duties and
obligations expected of the Executive and of the Company are as set forth in
this Agreement.


 


2.                                      EFFECTIVE
DATE AND TERM.  This Agreement shall
be effective, and its term (the “Term”) shall commence as of the Effective
Date.  The Term shall continue through
and until December 31, 2011 (the “Initial Term”), unless terminated sooner
as provided by this Agreement or extended by the Parties.  The Term shall be automatically renewed for
successive periods of one year each (each, a “Renewal Term”), unless either
Party gives to the other written notice of intent not to renew at least ninety
(90) days prior to the expiration of the Initial Term or any Renewal Term (a “Notice
of Non-Renewal”).


 


3.                                      COMPENSATION.


 


A.            Salary. 
During the Term, the Company shall pay or cause to be paid to the
Executive, in installments pursuant to the Company’s payroll practices as in
effect from time to time, a base salary of $458,000.00 per annum or such
greater amount as may from time to time be determined by the Board of Directors
or the Compensation Committee thereof (the “Board”) of the Company (the “Base
Salary”).  The Base Salary shall be
reviewed annually in accordance with the Company’s compensation and review
policies and, in the sole discretion of the Board, may be increased.


 


B.            Annual Bonus. 
With respect to each fiscal year of the Company that ends during the
Term, the Executive shall be eligible to receive an annual bonus (the “Discretionary
Bonus”) based upon the Executive’s overall performance of the Services on
behalf of the Company during such fiscal year, and/or based upon the Company’s
attainment of pre-established goals relating to such fiscal year (which if
applicable, will be determined by the Board and communicated to the Executive
within 30 days following the beginning of the applicable fiscal year).  Commencing with fiscal year 2009, the Board
shall determine a target amount for the Discretionary Bonus and communicate
that to the Executive prior to February 1 of the bonus year.  The attainment of any applicable performance
goals and the amount to be paid in respect of the Discretionary Bonus shall be
determined by the Board in good faith and in accordance with such written goals
and policies as may be agreed upon from time to time by the 


 

















 


Board and the
Executive.  The Discretionary Bonus, if
any, shall be payable as a lump-sum payment within sixty (60) days immediately
following the last day of the applicable fiscal year.


 


C.            Expenses.  The Company shall reimburse the Executive for
any travel, hotel, entertainment and other expenses reasonably incurred by the
Executive in furtherance of the Executive’s duties under this Agreement subject
to and in accordance with the Company’s applicable travel and expense
reimbursement policies.


 


D.            Employee Benefits. 
The Executive shall be entitled to participate in any
and all employee benefit plans in effect from time to time that are provided
generally to employees of the Company, and in any executive perquisite programs
in effect from time to time that provide benefits to other executives of the
Company of comparable stature and with comparable duties and responsibilities.  During
the Term, the Company shall acquire and pay for, or reimburse the Executive
for, hospitalization, dental, major medical, or other health insurance for the
benefit of the Executive and his dependents at least equal to that generally
provided other executive employees under the Company’s group health insurance
plan(s).  The Executive shall,
during the Term, be entitled to paid time off in accordance with applicable
Company policies in effect from time to time, in addition to public holidays
observed by the Company.  The Executive shall be entitled to twenty
(20) business days of vacation each year. 
The Executive shall be entitled to carry any unused vacation days over
to the next calendar year.  However, in
no event will Executive’s accrued but unused vacation exceed 40 days.


 


E.             Directors’ and Officers’ Liability
Insurance; Life Insurance. 
The Company shall indemnify the Executive to the fullest extent
permitted under its by-laws.  The Company
shall purchase directors’ and officers’ liability coverage for its senior
executive officers, and the Executive shall be named as a covered officer under
such policy during the term.  The Company
shall also provide US$1,000,000 of term life insurance coverage, for the
benefit of the Executive’s estate or family.


 


4.                                      DUTIES
OF THE EXECUTIVE.


 


A.            Duties. 
During the Term, the Executive shall hold the title of Chief Executive Officer, shall report
directly to the Board and shall perform such duties as the Board may reasonably
require and shall use his best efforts to carry into effect the directions of
the Board.


 


B.            Representation.  During the Term, the Executive shall well and
faithfully serve the Company and use the Executive’s best efforts to promote
the interests of the Company.  The
Executive shall at all times give the Company the full benefit of his
knowledge, expertise, technical skill and ingenuity in the performance of his
duties and exercise of his powers and authority in the capacity or capacities
described in Section 4(A) hereof, as the case may be.


 


C.            Time Devoted by Executive.  The Executive agrees to devote substantially
all of the Executive’s time and attention during business hours and such
additional time and attention as may reasonably be required to perform his
duties hereunder.  It shall not be a
violation of this Agreement for the Executive to (a) serve on a maximum of
two (2) corporate, civic or charitable boards or committees, (b) deliver
lectures, fulfill speaking engagements or 


 


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teach at educational institutions, (c) manage
personal investments, or (d) engage in activities permitted by the
policies of the Company or as specifically permitted by the Company, so long as
such activities do not significantly interfere with the full time performance
of the Executive’s responsibilities in accordance with this Agreement.


 


5.                                      RESTRICTIONS
ON THE EXECUTIVE.


 


A.            Non-Disclosure of Confidential Information.  All information learned or developed by the
Executive during the course of the Executive’s employment by the Company or any
subsidiary thereof will be deemed “Confidential Information” under the terms of
this Agreement.  Examples of Confidential
Information include, but are not limited to, business, scientific and technical
information owned or controlled by the Company, including the Company’s
business plans and strategies; business operations and systems; information
concerning employees, customers, partners and/or licensees; patent
applications; trade secrets; inventions; ideas; procedures; formulations;
processes; formulae; data and all other information of any nature whatsoever
which relate to the Company’s business, science, technology and/or
products.  In addition, Confidential
Information shall include, but not be limited to, all information which the
Company may receive from third parties. 
The Executive will not disclose to any person at any time or use in any
way, except as directed by the Company, either during or after the employment
of the Executive by the Company, any Confidential Information.  The foregoing restrictions shall not apply to
information which is or becomes part of the public domain though no act or
failure to act by the Executive.  In
addition to the foregoing, in the process of the Executive’s employment with
the Company, or thereafter, under no condition is the Executive to use or
disclose to the Company, or incorporate or use in any of his work for the
Company, any confidential information imparted to the Executive or with which
he may have come into contact while in the employ of his former employer(s).


 


B.            Inventions.  The term “Invention” means any invention,
discovery, improvement, apparatus, implement, process, compound, composition or
formula, whether or not patentable, conceived or reduced to practice, in whole
or in part, by the Executive (alone, or jointly with others) during any term of
his employment by the Company and twelve (12) months thereafter which directly
or indirectly relates to the business, science, technology or products of the
Company and /or any Confidential Information. 
The Executive will keep, on behalf of the Company, complete, accurate,
and authentic accounts, notes, data, and records (“Records”) of each and every
Invention, which Records will, at all times, be the property of the
Company.  The Executive will comply with
the directions of the Company with respect to the manner and form of keeping or
surrendering Records and will surrender to the Company all Records at the end
of the Executive’s term of employment by the Company.


 


Each Invention will be the sole and exclusive property
of the Company. The Executive will, at the request of the Company, make
application in due form for United States letters patent and foreign letters
patent (each, a “Patent”) on any Invention and execute any necessary documents
in connection with the Patents.  The
Executive will assign and transfer to the Company all right, title, and
interest of the Executive in any Patents or Patent applications.  The Executive agrees to cooperate with any
actions necessary to continue, renew or retain the Patents.  The Company will bear the entire expense of
applying for and obtaining the Patents.


 


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For one year after the termination of the term of the
Executive’s employment by the Company, the Executive will not file any
applications for Patents on any Invention other than those filed at the request
of and on behalf of the Company.


 


The Executive, as a condition of his employment,
hereby represents that, to the best of his knowledge, there is not as of the
date of this Agreement any agreement or obligation outstanding with or to any
of his former employers or other party, which would restrict, limit or in any
way prohibit all or any portion of his work or employment, nor is there in his
possession any confidential information used by any of his former employers or
any other party (except as may have been revealed in generally available
publications or otherwise made publicly available).


 


C.                                    Non-Competition;
Non-Solicitation.


 


(1)  Non-Competition.  During the Term, without the consent of the
Board, and thereafter as specifically provided in Subsection 6.A.(2) or
6.D.(2), the Executive may not directly or indirectly engage in, or have any
interest in, any business (whether as employee, officer, director, agent, security
holder, creditor, consultant, or otherwise) that competes with the vaccine
and/or antibody business of the Company or any subsidiary thereof (as such
business may exist during the Term).


 


(2)  Non-Solicitation
of Employees.  During
the Term, and thereafter as specifically provided in Subsection 6.A.(2) or
6.D.(2), the Executive shall not, directly or indirectly induce or solicit any
employee or independent contractor of the Company or any subsidiary thereof to
terminate his or her employment with the Company for the purpose of  joining another company in which the
Executive has an interest (whether as an employee, officer, director, agent,
security holder, creditor, consultant, or otherwise).


 


D.                                    Breach.  The Executive acknowledges that there may be
circumstances in which his breach of any covenant set forth in this Section 5
could cause substantial harm to the Company which may not be compensable by
monetary damages alone, and which could potentially entitle the Company to
injunctive relief.  However, by acknowledging
this possibility, the Executive is not agreeing to waive his right to require
the Company to meet its evidentiary burdens as required by law in any cause of
action brought by the Company seeking such injunctive relief.  The
restrictions contained in Subsection 5(c) above shall not prohibit
Executive from owning (beneficially or of record) less than 5% of any class of
equity or debt security issued by a publicly-held company, regardless of
whether that publicly-held company is otherwise a competitor of the Company.


 


6.                                      TERMINATION.


 


A.                                    Termination
for Cause by the Company.


 


(1)  This Agreement and the Term
may be terminated “for cause” by the Company pursuant to the provisions of this
Subsection 6.A.  If the Board determines
that “cause” exists for termination of the Executive’s employment, written
notice thereof must be given to the Executive describing the state of affairs
or facts deemed by the Board to constitute such cause. 


 


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Unless the Board
determines that the conduct constituting cause is not curable, the Executive
shall have thirty (30) days after receipt of such notice to cure the reason
constituting cause and if the Executive does so to the reasonable satisfaction
of the Board, the Term shall not be terminated for the cause specified in the
notice.  During such thirty (30) day
period, the Term shall continue and the Executive shall continue to receive his
full Base Salary, expenses and benefits pursuant to this Agreement. 
If such cause is not cured to the Board’s reasonable satisfaction within
such thirty (30) day period, the Executive may then be immediately terminated
by a majority vote of the Board.  For
purposes of this Agreement, the words “for cause” or “cause” means (i) dishonest
statements or acts of the Executive with respect to the Company or any
subsidiary or other affiliate of the Company; (ii) the commission by or
indictment of the Executive for (A) a felony or (B) any misdemeanor
involving moral turpitude, deceit, dishonesty or fraud (indictment, for these
purposes, meaning an indictment, probable cause hearing or any other procedure
pursuant to which an initial determination of probable or reasonable cause with
respect to such offense is made); or (iii) gross negligence, willful
misconduct or insubordination of the Executive with respect to the Company or
any subsidiary or other affiliate of the Company.


 


(2)  In the event the Term is
terminated by the Company for cause, the provisions of Subsections 5.C.(1) and
5.C.(2) shall continue to apply for one year after the conclusion of the
Term.


 


(3)  In the event the Term is
terminated by the Company for cause, the Executive’s entire right to salary and
benefits hereunder (with the exception of Base Salary and Discretionary Bonus
earned and accrued prior to termination) shall cease upon such termination.


 


B.                                    Termination
Without Cause by the Company or for Good Reason by the Executive.


 


(1)  The Company shall have the
right to terminate the Term, at any time, without cause upon ninety (90) days’
written notice to the Executive.


 


(2)  The Executive shall have the
right to terminate the Term for good reason on thirty (30) days written notice
to the Company.  For purposes of this
Agreement, the words “for good reason” or “good reason” shall be limited to the
following actions by the Company without the Executive’s consent:  (a) the assignment to the Executive of
any duties or responsibilities that results in a material diminution in the
Executive’s position or function; provided, however,
that a change in the Executive’s title or reporting relationships shall not
provide the basis for a termination with good reason unless he no longer
reports directly to the Board; (b) a relocation of the Executive’s
business office to a location more than fifty (50) miles from the location at
which the Executive performs duties as of the Effective Date (which includes
both the Company’s offices in Needham, Massachusetts, and Phillipsburg, New
Jersey), except for required travel by the Executive on the Company’s business
to an extent substantially consistent with the Executive’s business travel
obligations as of the Effective Date; or (c) a material breach by the
Company of any provision of this Agreement or any other material agreement
between the Executive and the Company concerning the terms and conditions of
the Executive’s employment.  Such a
termination by the Executive for good reason shall not be considered a
resignation pursuant to Subsection 6.C.(1).


 


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(3)  In the event the Term is
terminated pursuant to Subsection 6.B.(1) or 6.B.(2), or in the event that
the Company provides the Executive with a Notice of Non-Renewal that would be
effective in connection with the expiration of the Initial Term, and the Executive’s
employment with the Company terminates for any reason within 60 days following
the expiration of the Initial Term, the Company shall pay the Executive as a
severance benefit a lump sum cash severance payment in an amount equal to 200%
of the Executive’s then existing annual Base Salary (i.e.,
twenty four (24) months of Base Salary) and, if and to the extent the Executive
timely elects to continue his health insurance employee benefits pursuant to
COBRA, then, as determined by the Company, either (i) the cost to the
Executive for such COBRA coverage will be no greater than the cost of such
coverage applicable to active employees of the Company or (ii) the
Executive will pay the applicable COBRA costs and the Company will reimburse
the Executive for such costs, subject to applicable tax withholdings (the “Severance
Benefits”).  The foregoing lump sum cash
payment shall be paid within 10 days following the effectiveness of the Release
(as defined below); provided, however, that if necessary to comply with the restriction in Section 409A(a)(2)(B) of
the Internal Revenue Code of 1986, as amended (the “Code”) concerning payments
to “specified employees,” such payment shall be delayed until the first
business day of the seventh month following the Executive’s termination of
employment and “separation from service” (within the meaning of Section 409A
of the Code).  Further, in the
event that the Term is terminated pursuant to Subsection 6.B.(1) or 6.B.(2) only,
25% of the Executive’s outstanding, unvested options, restricted stock and/or
equity awards shall become fully and immediately vested.  Notwithstanding
any provisions of the stock option plan or stock option agreement pursuant to
which any stock options subject to the preceding sentence were granted, the
Executive shall be entitled to exercise such vested equity awards until one
year from the date of termination of employment or the expiration of the stated
period of the vested equity award, whichever period is the shorter.


 


(4)  In the event the Term is terminated
or the Executive’s employment with the Company terminates in a manner described
in this Section 6.B., the provisions of Subsections 5.C.(1) and 5.C.(2) shall
continue to apply for one year after the conclusion of the Term.


 


(5)  Notwithstanding any
provision to the contrary contained herein, the Executive shall not be eligible
or entitled to receive the Severance Benefits unless he executes (and does not
revoke during any applicable revocation period) and deliver to the Company a
separation agreement and release of claims, in such form prepared in good faith
by the Company and provided to the Executive to review no later than 10 days
following the last day of his employment with the Company, within 60 days
following his last day of employment with the Company (the “Release”).


 


C.                                    Resignation
by the Executive.


 


(1)  The Executive shall have the
right to terminate the Term, by way of resignation, upon ninety (90) days’
written notice to the Company.  A
termination by the Executive for good reason pursuant to Subsection 6.B.(2) shall
not be considered a resignation pursuant to this Subsection 6.C.(1).


 


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(2)  In the event the Term is
terminated pursuant to Subsection 6.C.(1), the provisions of Subsections 5.C.(1) and
5.C.(2) shall continue to apply for one year after the conclusion of the
Term.


 


(3)  In the event the Term is
terminated pursuant to Subsection 6.C.(1), the Executive’s entire right to
salary and benefits hereunder (with the exception of Base Salary and
Discretionary Bonus earned and accrued prior to termination) shall cease upon
such termination.


 


D.                                    Termination Upon Change in
Control.


 


(1)  For the purposes of this Agreement, a “Change
in Control” shall mean any of the following events that occurs following the
Effective Date:


 


(a)           An acquisition (other than directly from the
Company) of any voting securities of the Company (the “Voting Securities”)
other than in a “Non-Control Acquisition” (as defined below) by any “Person”
(as the term “person” is used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended, (the “1934 Act”)) which
results in such Person first attaining “Beneficial Ownership” (within the
meaning of Rule 13d-3 promulgated under the 1934 Act) of fifty-one percent
(51%) or more of the combined voting power of the Company’s then outstanding
Voting Securities.  For purposes of the
foregoing, a “Non-Control Acquisition” shall mean an acquisition by (i) an
employee benefit plan (or a trust forming a part thereof) maintained by (x) the
Company or (y) any corporation or other Person of which a majority of its
voting power or its equity securities or equity interest is owned directly or
indirectly by the Company (a “Subsidiary”), or (ii) the Company or any
Subsidiary.


 


(b)           The individuals who, as of the date of this
Agreement, were members of the Board (the “Incumbent Board”) cease for any
reason to constitute at least 66 2/3% of the Board; provided,
however, that if the election, or a nomination for election by the
Company’s shareholders, of any new director was approved by a vote of at least
66 2/3% of the Incumbent Board, such new director shall be considered as a
member of the Incumbent Board; provided further, however,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened “Election Contest” (as described in Rule 14a-11 promulgated
under the 1934 Act) or other actual or threatened solicitation of the proxies
or consents by or on behalf of a Person other than the Board (a “Proxy Contest”)
including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or


 


(c)           The consummation of a transaction approved by
the Company’s shareholders and involving: 
(1) a merger, consolidation or reorganization in which the Company
is a constituent corporation, unless (i) the shareholders of the Company,
immediately  before such merger,
consolidation or reorganization, own, directly or indirectly immediately
following such merger, consolidation or reorganization, at least a majority of
the combined voting power of the outstanding voting securities of the
corporation resulting from such merger, consolidation or reorganization (the “Surviving
Corporation”) in substantially  the same
proportion as their ownership of the voting securities immediately before such
merger, consolidation or reorganization, (ii) the individuals who were
members of the Incumbent Board 


 


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immediately prior to the
execution of the agreement providing for such merger, consolidation or
reorganization constitute at least a majority of the members of the board of
directors of the Surviving Corporation, and (iii) no Person other than (w) the
Company, (x) any Subsidiary, (y) any employee benefit plan (or any
trust forming a part thereof) maintained by the Company, the Surviving
Corporation or any Subsidiary, or (z) any Person who, immediately prior to
such merger, consolidation or reorganization had Beneficial Ownership of
fifty-one percent (51%) or more of the then outstanding Voting Securities, has
Beneficial Ownership of fifty-one percent (51%) or more of the combined voting
power of the Surviving Corporation’s then outstanding voting securities (a
transaction described in clauses (i) and (ii) shall herein be
referred to as a “Non-Control Transaction”); (2) a complete liquidation or
dissolution of the Company; or (3) an agreement for the sale or other
disposition of all or substantially all of the assets of the Company to any
Person (other than a transfer to a Subsidiary).


 


(d)           Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur solely because the level of Beneficial
Ownership held by any Person (the “Subject Person”) exceeds the designated
percentage threshold of the outstanding Voting Securities as a result of a
repurchase or other acquisition of Voting Securities by the Company reducing
the number of shares outstanding, provided that if a Change in Control would
occur (but for the operation of this sentence) as a result of the acquisition
of Voting Securities by the Company, and after such share acquisition, the
Subject Person becomes the Beneficial Owner of any additional Voting Securities
which, assuming the repurchase or other acquisition had not occurred, increases
the percentage of the then outstanding Voting Securities Beneficially Owned by
the Subject Person over the designated percentage threshold, then a Change in
Control shall occur.


 


(2)  In the event of a termination of the Term
pursuant to an event described in Section 6.B. above, that occurs within a
period of one year immediately following a Change in Control, then this Section 6.D.
shall apply instead of Section 6.B., and the Company shall provide the
Executive the following benefits:


 


(a)           Amount:  In
addition to all compensation for services rendered by Executive to the Company up
to the date of termination, the Company shall pay to Executive, no later than
10 days immediately following the date of such termination, a single lump-sum
payment in an amount equal to (i) twenty four (24) times Executive’s
highest monthly base compensation paid hereunder during the preceding
twenty-four month period, plus (ii) the average of the Discretionary
Bonuses received by the Executive during the preceding two full fiscal years
prior to the date of termination (i.e., (x) the
sum of the Discretionary Bonus earned and paid for each of the preceding two
full fiscal years, divided by (y) 2).


 


(b)           Benefits:  In
addition to the payment described above, the Company shall provide the
Executive with the Severance Benefits.


 


(c)           Acceleration of Options:  One
hundred (100%) percent of the Executive’s outstanding, unvested options,
restricted stock and/or equity awards (“Equity Awards”) shall, immediately
prior to the consummation of the Change in Control, become fully and
immediately vested to the extent not already so provided under the terms of
such Equity Awards; provided, however, that if the acquirer in a Change in
Control grants Equity Awards 


 


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having (in the reasonable
opinion of the Board) a value at least equal to the value of Executive’s
then-unvested Company Equity Awards, then 50% of the Executive’s outstanding,
unvested Company Equity Awards shall become fully and immediately vested
immediately prior to the consummation of the Change in Control (and the
remaining 50% shall terminate upon the consummation of the Change in
Control).  Notwithstanding any provisions
of the stock option plan or stock option agreement pursuant to which any stock
options subject to the preceding sentence were granted, the Executive shall be
entitled to exercise such Equity Awards until three years from the date of
termination of employment or the expiration of the stated period of the Equity
Award, whichever period is the shorter.


 


(d)                                  Golden Parachute Payment
Provisions:  If any payment or benefit the Executive would
receive pursuant to a Change in Control from the Company or otherwise
(including, without limitation, the acceleration of any Company Equity Awards)
(“Payment”) would (i) constitute a “parachute payment” within the meaning
of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”),
and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999
of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced
Amount.  The “Reduced Amount” shall be
either (x) the largest portion of the Payment that would result in no
portion of the Payment being subject to the Excise Tax or (y) the largest
portion, up to and including the total, of the Payment, whichever amount, after
taking into account all applicable federal, state and local employment taxes,
income taxes, and the Excise Tax (all computed at the highest applicable
marginal rate), results in the Executive’s receipt, on an after-tax basis, of
the greater amount of the Payment notwithstanding that all or some portion of
the Payment may be subject to the Excise Tax. If a reduction in payments or
benefits constituting “parachute payments” is necessary so that the Payment
equals the Reduced Amount, reduction shall occur in the following order unless
the Executive elects in writing a different order (provided,
however, that such election shall be subject to Company approval if
made on or after the effective date of the event that triggers the Payment):
reduction of cash payments; cancellation of accelerated vesting of stock
options or equity awards; reduction of employee benefits.  In the event that acceleration of vesting of
stock option or equity award compensation is to be reduced, such acceleration
of vesting shall be cancelled in the reverse order of the date of grant of the
Executive’s stock options or equity awards unless the Executive elects in
writing a different order for cancellation.


 


The accounting firm engaged
by the Company for general audit purposes as of the day prior to the effective
date of the Change in Control shall perform the foregoing calculations and
shall make all determinations relating to the reduction of parachute payments
described in the foregoing paragraph.  If
the accounting firm so engaged by the Company is also serving as accountant or
auditor for the individual, entity or group effecting the Change in Control,
the Company shall appoint a nationally recognized accounting firm to make the
determinations required hereunder.  The
Company shall bear all expenses with respect to the determinations by such
accounting firm required to be made hereunder.


 


The accounting firm engaged
to make the determinations hereunder shall provide its calculations,
together with detailed supporting documentation, to the Company and the
Executive within fifteen (15) calendar days after the date on which the
Executive’s right to a Payment is triggered (if requested at that time by the
Company or the Executive) or such other time as requested by the Company or the
Executive.  If the accounting 


 


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firm determines
that no Excise Tax is payable with respect to a Payment, either before or after
the application of the Reduced Amount, it shall furnish the Company and the
Executive with an opinion reasonably acceptable to the Executive that no Excise
Tax will be imposed with respect to such Payment.  Any good faith determinations of the
accounting firm made hereunder shall be final, binding and conclusive upon the
Company and the Executive.


 


E.                                      Termination
for Disability.


 


(1)  Should the Executive be
absent from work as a result of personal injury, sickness or other disability
for any continuous period of time exceeding one hundred eighty (180) days, the
Term may be terminated by the Company, upon written notice given to the
Executive, because of the Executive’s disability.


 


(2)  In the event the Term is
terminated pursuant to Subsection 6.E.(1), the Company shall have no further
obligation to the Executive except to pay to the Executive any Base Salary or
Discretionary Bonus accrued but remaining unpaid prior to termination of the
Term (and to provide the Executive with the benefits under any disability
insurance or disability benefits plan then maintained by the Company for the
Executive’s benefit, in accordance with the terms and conditions of such
plan).  In addition, notwithstanding any
provisions of the stock option plan or stock option agreement pursuant to which
any stock options were granted, the Executive shall be entitled to exercise any
of Executive’s stock options vested as of the final day of the Term until
eighteen months from the final day of the Term or the expiration of the stated
period of the option, whichever period is the shorter.


 


F.                                      Termination
Upon Death.  The Term shall terminate
upon the death of the Executive and the Company shall have no further
obligation to the Executive or his estate except to pay the Executive’s estate
any Base Salary or Discretionary Bonus earned and accrued but remaining unpaid prior
to his death.  In addition,
notwithstanding any provisions of the stock option plan or stock option
agreement pursuant to which any stock options were granted, the Executive’s
estate shall be entitled to exercise any of Executive’s stock options vested as
of the final day of the Term until eighteen months from the final day of the
Term or the expiration of the stated period of the option, whichever period is
the shorter.


 


7.                                      MISCELLANEOUS.


 


A.                                    Notice.  Any notice to be given hereunder shall either
be delivered personally and/or sent by first class certified mail and regular
mail.  The address for service on the
Company shall be its registered office, and the address for service on the
Executive shall be his last known place of residence.  A notice shall be deemed to have been served
as follows:


 


(1)  if personally delivered, at
the time of delivery; and/or


 


(2)  if posted, at the expiration
of 48 hours (10 days if international) after the envelope containing the same
was delivered into the custody of the postal authorities.


 


B.                                    Taxes.  Any payments made pursuant to this
Agreement shall be subject to any tax or similar withholding requirements under
applicable federal, state or local employment or income tax laws or similar
statutes or other provisions of law then in effect.  This 


 


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Agreement is intended to comply with the requirements
of Section 409A (“Section 409A”) of the Code and the regulations
thereunder.  To the extent that any
provision in this Agreement is ambiguous as to its compliance with Section 409A,
the provision shall be interpreted in a manner so that no payment due to the
Executive shall be deemed subject to an “additional tax” within the meaning of Section 409A(a)(1)(B) of
the Code.  For purposes of Section 409A,
each payment made under this Agreement shall be treated as a separate payment.
Notwithstanding anything contained herein to the contrary, the Executive shall
not be considered to have terminated employment with the Company for purposes
of Section 6 hereof unless the Executive has incurred a “termination of
employment” from the Company within the meaning of Treasury Regulation
§1.409A-1(h)(1)(ii) promulgated under Section 409A of the Code.
Notwithstanding the foregoing, if necessary to comply with the restriction in Section 409A(a)(2)(B) of
the Code concerning payments to “specified employees,” any payment made to the
Executive pursuant to this Agreement on account of the Executive’s separation
from service that would otherwise be due hereunder within six months after such
separation from service shall nonetheless be delayed until the first business
day of the seventh month following the Executive’s separation from
service.  In no event may the Executive,
directly or indirectly, designate the calendar year of any payment.  All reimbursements provided under this
Agreement shall be made or provided in accordance with the requirements of Section 409A,
including, where applicable, the requirement that (i) any reimbursement is
for expenses incurred during the Executive’s lifetime (or during a shorter
period of time specified in this Agreement), (ii) the amount of expenses
eligible for reimbursement during a calendar year may not affect the expenses
eligible for reimbursement in any other calendar year, (iii) the
reimbursement of an eligible expense will be made on or before the last day of
the calendar year following the year in which the expense is incurred, and (iv) the
right to reimbursement is not subject to liquidation or exchange for another
benefit.  The Executive further
acknowledges that, while this Agreement is intended to comply with Section 409A,
any tax liability incurred by the Executive under Section 409A is solely
the responsibility of the Executive.


 


C.            Binding Effect.  This Agreement shall be binding upon and
inure to the benefit of the Parties hereto and their respective heirs, personal
representatives, successors and assigns, provided that neither Party shall
assign any of its rights or privileges hereunder without the prior written
consent of the other Party except that the Company may assign its rights
hereunder to a successor in ownership of all or substantially all the assets of
the Company.


 


D.            Severability.  Should any part or provision of this
Agreement be held unenforceable by a court of competent jurisdiction, the
validity of the remaining parts or provisions shall not be affected by such
holding, unless such enforceability substantially impairs the benefit of the
remaining portions of the Agreement.


 


E.             Waiver.  No failure or delay on the part of either
Party in the exercise of any right or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
privilege preclude other or further exercise thereof or of any other right of
privilege.


 


F.             Captions.  The captions used in this Agreement are for
convenience only and are not to be used in interpreting the obligations of the
Parties under this Agreement.


 


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G.            Choice of Law.  The validity, construction and performance of
this Agreement and all matters directly or indirectly arising hereunder shall
be governed by the laws of the State of Delaware, without regard to choice of
laws provisions, and the Company and the Executive irrevocably consent to the
exclusive jurisdiction and venue of the federal and state courts located within
Delaware, and courts with appellate jurisdiction therefrom, in connection with
any matter based upon or arising out of this Agreement.


 


H.            Entire Agreement.  This Agreement embodies the entire
understanding of the Parties as it relates to the subject matter contained
herein and as such, supersedes any prior agreement or understanding between the
Parties relating to the terms of employment of the Executive (but not any
option grant agreement issued by the Company to the Executive), including
without limitation any agreement between the Executive and any other company
acquired by the Company or with respect to which the Company is a successor in
interest.  No amendment or modification
of this Agreement shall be valid or binding upon the Parties unless in writing
executed by the Parties.


 


IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed as of the day and year
first written above.


 


 


	
   

  	
  CELLDEX
  THERAPEUTICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles R.
  Schaller

  
	
   

  	
  Title: Chairman
  of the Board

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Anthony S.
  Marucci, Executive

  
	
   

  	
  ANTHONY
  S. MARUCCI, EXECUTIVE

  



 


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