[DYNAVAX LOGO]
Exhibit 10.13
DYNAVAX TECHNOLOGIES CORPORATION
MANAGEMENT CONTINUITY AND SEVERANCE AGREEMENT
This Management Continuity and Severance Agreement (the "Agreement") is
dated as of August 1, 2003 by and between Xxxxxxx X. Xxxxxx, Vice President,
Finance & Operations, and Chief Financial Officer, Dynavax Technologies
Corporation ("Employee") and Dynavax Technologies Corporation., a California
corporation (the "Company" or "Dynavax").
RECITALS
A. It is expected that another company may from time to time consider the
possibility of acquiring the Company or that a change in control may otherwise
occur, with or without the approval of the Company's Board of Directors. The
Board of Directors recognizes that such consideration can be a distraction to
Employee and can cause Employee to consider alternative employment
opportunities. The Board of Directors has determined that it is in the best
interests of the Company to assure that the Company will have the continued
dedication and objectivity of the Employee, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company.
B. The Company's Board of Directors believes it is in the best interests
of the Company to retain Employee and provide incentives to Employee to continue
in the service of the Company.
C. The Board of Directors further believes that it is imperative to
provide Employee with certain benefits upon a Change of Control and, under
certain circumstances, upon termination of Employee's employment in connection
with a Change of Control and independent of a Change of Control, which benefits
are intended to provide Employee with encouragement to Employee to remain with
the Company, notwithstanding the possibility of a Change of Control or an
employment termination.
D. To accomplish the foregoing objectives, the Board of Directors has
directed the Company, upon execution of this Agreement by Employee, to agree to
the terms provided in this Agreement.
Now therefore, in consideration of the mutual promises, covenants and
agreements contained herein, and in consideration of the continuing employment
of Employee by the Company, the parties hereto agree as follows:
1. AT-WILL EMPLOYMENT. The Company and Employee acknowledge that
Employee's employment is and shall continue to be at-will, as defined under
applicable law, and that Employee's employment with the Company may be
terminated by either party at any time for any or no reason. If Employee's
employment terminates for any reason, Employee shall not be entitled to any
payments, benefits, damages, award or compensation other than as provided in
this Agreement, and as may otherwise be available in accordance with the terms
of the Company's established employee plans and written policies at the time of
termination. The terms of this Agreement shall terminate upon the earlier of (i)
the date on which Employee ceases to be employed as an executive corporate
officer of the Company, other than as a result of an Involuntary Termination by
the Company without Cause or (ii) the date that all obligations of the parties
hereunder have been satisfied. A termination of the terms of this Agreement
pursuant to the preceding sentence shall be effective for all purposes, except
that such termination shall not affect the payment or provision of compensation
or benefits on account of a termination of employment occurring prior to the
termination of the terms of this Agreement. The rights and duties created by
this Section 1 may not be modified in any way except by a written agreement
executed by an officer of the Company upon direction from the Board of
Directors.
2. BENEFITS UPON TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOR CAUSE. If Employee's employment is terminated
for Cause at any time, then Employee shall not be entitled to receive payment of
any severance benefits. Employee will receive payment for all salary as of the
date of Employee's termination of employment and Employee's benefits will be
continued under the Company's then existing benefit plans and policies in
accordance with such plans and policies in effect on the date of termination and
in accordance with applicable law.
(b) VOLUNTARY RESIGNATION. If Employee voluntarily resigns from the
Company (the Employee's employment does not end by reason of Involuntary
Termination), then Employee shall not be entitled to receive payment of any
severance benefits. Employee will receive payment for all salary as of the date
of Employee's termination of employment and Employee's benefits will be
continued under the Company's then existing benefit plans and policies in
accordance with such plans and policies in effect on the date of termination and
in accordance with applicable law.
(c) INVOLUNTARY TERMINATION. If Employee's employment is terminated
for Involuntary Termination, then the Employee shall be entitled to: (1) a lump
sum cash severance payment equal to six (6) months of Employee's then current
annual base salary (less appropriate withholding deductions); (2) six months of
COBRA Continuation paid by the Company if COBRA Continuation is elected; (3) an
additional six months vesting of employee's stock option to purchase the
Company's Common Stock; and (4) as per the Dynavax Technologies 1997 Stock
Option Plan, ninety days to exercise vested options.
(d) TERMINATION FOR DEATH OR DISABILITY. If Employee's employment
terminates due to Employee's death, then Employee will receive any salary earned
(less appropriate withholding deductions) through the date of termination of
employment. If Employee's employment terminates due to becoming disabled, all
salaries due to Employee will have been paid through the date of inception of
Employee's disability.
In the event of either termination for death or disability,
the exercise period of all vested options granted to Employee by the Company is
extended to twelve (12) months from the date of termination of employment.
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3. BENEFITS UPON A CHANGE OF CONTROL.
(a) TREATMENT OF STOCK OPTIONS. In the event of a Change of Control
and the Employee (i) is offered and accepts a position with the New Company , or
(ii) is not offered a position as an executive officer with the New Company,
then immediately prior to the time of effectiveness of the Change of Control an
additional two years vesting of employees stock option to purchase the Company's
Common Stock granted to Employee over the course of his employment with the
Company and held by Employee on the effective date of a Change of Control shall
immediately vest on such date as to that number of shares that would have vested
in accordance with the terms of the 1997 Incentive Plan, as amended. "New
Company", as used in this section shall mean: (a) in the case of a Change of
Ownership (as defined in Section 4(a)(i) below), the Company; (b) in the case of
a Merger (as defined in Section 4(a)(ii) below), the surviving entity; or (c) in
the case of a Sale of Assets (as described in section 4(a)(ii) below), the
purchaser of all or substantially all of the Company's assets.
(b) SEVERANCE. In the event that Employee's employment is terminated
within twenty-four (24) months of a Change of Control, the Employee shall be
entitled to: (1) a lump sum cash severance payment equal to twelve (12) months
of Employee's then current annual base salary (less applicable withholding
deductions); (2) a lump sum cash payment equal to the Employee's target
incentive bonus of 40% (less applicable withholding deductions) {or such higher
percentage then in effect under the management incentive program or other
similar bonus program} of the Employee's then current annual base salary; and
(3) twelve (12) months Company-paid COBRA continuation coverage upon Employee's
election of COBRA Continuation Coverage.
4. DEFINITION OF TERMS. The following terms referred to in this Agreement
shall have the following meanings:
(a) CHANGE OF CONTROL. "Change of Control" shall mean the occurrence
of any of the following events:
(i) CHANGE OF OWNERSHIP. Any "Person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) is
or becomes the "Beneficial Owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing 50% or more of
the total voting power represented by the Company's then outstanding voting
securities; or
(ii) MERGER/SALE OF ASSETS. A merger or consolidation of the
Company whether or not approved by the Board, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 50% of the total voting power represented by the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or substantially all of the
Company's assets.
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(b) CAUSE. "Cause" shall mean (i) gross negligence or willful
misconduct in the performance of Employee's duties to the Company where such
gross negligence or willful misconduct has resulted or is likely to result in
substantial and material damage to the Company or its subsidiaries (ii) repeated
unexplained or unjustified absence from the Company, (iii) a material and
willful violation of any federal or state law; (iv) commission of any act of
fraud with respect to the Company or (v) conviction of a felony or a crime
involving moral turpitude causing material harm to the standing and reputation
of the Company, in each case as determined in good faith by the Board.
(c) INVOLUNTARY TERMINATION. "Involuntary Termination" shall mean
(i) any termination by the Company other than for Cause; (ii) Employee's
voluntary termination following a material reduction or change in job duties,
responsibilities and requirements inconsistent with the Employee's position with
the Company and the Employee's prior duties, responsibilities and requirements
or a change in the level of management to which the Employee reports; (iii) any
reduction of Employee's base compensation (other than in connection with a
general decrease in base salaries for most officers of the successor
corporation); or (iv) Employee's refusal to relocate to a facility or location
more than 15 miles from the Company's current location.
5. CONFLICTS. Employee represents that his performance of all the terms of
this Agreement will not breach any other agreement to which Employee is a party.
Employee has not, and will not during the term of this Agreement, enter into any
oral or written agreement in conflict with any of the provisions of this
Agreement. Employee further represents that he is entering into or has entered
into an employment relationship with the Company of his own free will and that
he has not been solicited as an employee in any way by the Company.
6. SUCCESSORS. Any successor to the Company (whether direct or indirect
and whether by purchase, lease, merger, consolidation, liquidation or otherwise)
to all or substantially all of the Company's business and/or assets shall assume
the obligations under this Agreement and agree expressly to perform the
obligations under this Agreement in the same manner and to the same extent as
the Company would be required to perform such obligations in the absence of a
succession. The terms of this Agreement and all of Employee's rights hereunder
and thereunder shall inure to the benefit of, and be enforceable by, Employee's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
7. NOTICE. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. Mailed notices to Employee shall be
addressed to Employee at the home address that Employee most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Secretary.
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8. MISCELLANEOUS PROVISIONS.
(a) NO DUTY TO MITIGATE. Employee shall not be required to mitigate
the amount of any payment contemplated by this Agreement (whether by seeking new
employment or in any other manner), nor shall any such payment be reduced by any
earnings that Employee may receive from any other source.
(b) WAIVER. No provision of this Agreement shall be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by Employee and by an authorized officer of the Company
(other than Employee). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
(c) WHOLE AGREEMENT. No agreements, representations or
understandings (whether oral or written and whether expressed or implied) which
are not expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter hereof except as set forth in
the employment offer letter from the Company to the Employee dated June 10,
2003. This Agreement supersedes any agreement of the same title and concerning
similar subject matter dated prior to the date of this Agreement, and by
execution of this Agreement both parties agree that any such predecessor
agreement shall be deemed null and void.
(d) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California without reference to conflict of laws provisions.
(e) SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any circumstance shall, in any jurisdiction and to any
extent, be invalid or unenforceable, such term or provision shall be ineffective
as to such jurisdiction to the extent of such invalidity or unenforceability
without invalidating or rendering unenforceable the remaining terms and
provisions of this Agreement or the application of such terms and provisions to
circumstances other than those as to which it is held invalid or unenforceable,
and a suitable and equitable term or provision shall be substituted therefore to
carry out, insofar as may be valid and enforceable, the intent and purpose of
the invalid or unenforceable term or provision.
(f) ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement may be settled at the option of either party by
binding arbitration in the County of Alameda, California, in accordance with the
rules of the American Arbitration Association then in effect before a single
arbitrator. The judgment may be entered on the arbitrator's award in any court
having jurisdiction. Punitive damages shall not be awarded.
(g) LEGAL FEES AND EXPENSES. The parties shall each bear their own
expenses, legal fees and other fees incurred in connection with this Agreement.
This means the Company pays its own legal fees in connection with this Agreement
and the Employee is
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responsible for his own legal fees in connection with this Agreement. Although,
the arbitrator may award legal fees and expenses in connection with any
arbitration as deemed appropriate.
(h) NO ASSIGNMENT OF BENEFITS. The rights of any person to payments
or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this Section 11(h) shall be
void.
(i) EMPLOYMENT TAXES. All payments made pursuant to this Agreement
will be subject to withholding of applicable income and employment taxes.
(j) ASSIGNMENT BY COMPANY. The Company may assign its rights under
this Agreement to an affiliate, and an affiliate may assign its rights under
this Agreement to another affiliate of the Company or to the Company; provided,
however, that such assignee is the employer of the Employee. In the case of any
such assignment, the term "Company" when used in a section of this Agreement
shall mean the corporation that actually employs the Employee except that the
term "Company" shall continue to mean Dynavax Technologies Corporation with
regard to the definition of a Change of Control.
(k) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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The parties have executed this Agreement on the date first written above.
DYNAVAX TECHNOLOGIES CORPORATION
By: /s/ Dino Dina
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Title: President & CEO
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
XXXXXXX XXXXXX
Signature: /s/ Xxxxxxx Xxxxxx
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Address: Six Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
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