AMENDMENT NUMBER ___ TO [AMENDED AND RESTATED] EXECUTIVE EMPLOYMENT AGREEMENT DATED ______________
Exhibit 10.1
THIS AMENDMENT NUMBER ___(the “Amendment”) to the [Amended and Restated] Executive Employment
Agreement dated [___] (the “Employment Agreement”) is entered into by and between
___(“Executive”) and VaxGen, Inc. (“VaxGen” or the “Company”) as of ___, 2008
(the “Effective Date”).
RECITALS
A. In 2007 the Internal Revenue Service published final regulations with respect to Section
409A of the Internal Revenue Code of 1986, as amended (the “Code”) and provided certain transition
periods in which agreements such as the Employment Agreement could be brought into compliance with
certain safe harbor and other provisions set forth in the final regulations.
B. VaxGen and Executive wish to amend the Employment Agreement to be in compliance with such
safe harbor provisions.
C. Pursuant to Section 11(b) of the Employment Agreement VaxGen and Executive can amend the
Employment Agreement in the manner set forth herein.
D. Executive has been informed that VaxGen is not providing tax or other advice to Executive,
and Executive has been advised that Executive should obtain professional legal, tax and financial
advice as to the effect to Executive of signing the Amendment.
AMENDMENT
IN CONSIDERATION of the mutual promises made herein, VaxGen and Executive agree as follows:
1. Section 10(b) of the Employment Agreement regarding “Severance Benefits Eligibility” is
amended and restated in its entirety as follows:
(b) Severance Benefits Eligibility. In the event that Executive’s employment is terminated
without Cause by the Company, or if Executive resigns for Good Reason pursuant to Section 10(c)
hereof and such termination or resignation, as the case may be, constitutes a “separation from
service” under Treasury Regulation Section 1.409A-1(h), Executive shall be eligible to receive the
following as Executive’s sole severance benefits (collectively, the “Severance Benefits”): (i) a
lump sum payment in an amount equal to ninety-nine percent (99%) times twelve (12) months of
Executive’s base salary in effect as of the date of such separation from service (such amount being
computed strictly with respect to base cash salary and will not include any amount paid or payable
as a bonus or stock option grant), less standard withholdings and deductions, and payable, subject
to the provisions of Section 10(i), within ten (10) business days after the later of (x) the
effective date of such separation from service, or (y) the date on which the Release (as defined
below) becomes effective; (ii) health insurance continuation coverage (pursuant to the federal
COBRA law or applicable state law) at Executive’s own expense; (iii) all stock option grants or
other equity awards then held by Executive shall be subject to accelerated vesting such that all
unvested shares will become fully vested and exercisable effective as of the date of the separation
from service (the “Accelerated Vesting”); and (iv) payment of all accrued salary and all accrued
and unused vacation, as well as benefits under any written ERISA-qualified benefit plan (e.g.,
401(k) plan), or written insurance policy, to which Executive has a vested right as of the
termination date. If, within thirteen (13) months
after a Change in Control (defined in Section 10(d)), Executive’s employment is terminated without
Cause by the Company or Executive resigns for Good Reason pursuant to Section 10(c) hereof and such
termination or resignation, as the case may be, constitutes a “separation from service” under
Treasury Regulation Section 1.409A-1(h), then in addition to receiving the Severance Benefits,
Executive will be eligible to receive a bonus payment for the compensation year in which the
separation from service occurs, such payment to be prorated based on the date of such separation
from service and calculated based on 100% of the target bonus amount for which Executive is
eligible for the compensation year in which the separation from service occurs provided that
Executive will not be entitled to such bonus payment if Executive otherwise received a bonus
payment for the compensation year in which the separation from service occurs (the “Prorated
Bonus”). As a condition of and prior to the receipt of all or any of the Severance Benefits,
Accelerated Vesting, or Prorated Bonus, Executive shall provide the Company with an effective
general release of all known and unknown claims in the form attached as Exhibit C (the “Release”).
2. Section 10(c) of the Employment Agreement regarding the definition of “Good Reason” is
amended and restated in its entirety as follows:
(c) Good Reason Resignation. Executive may resign for Good Reason due to the occurrence of
any of the following without Executive’s consent: (i) material breach by the Company of any of the
terms and provisions of this Agreement resulting in material harm to Executive; (ii) a material
reduction of Executive’s authority, duties or responsibilities; (iii) relocation of Executive’s
place of work that would increase Executive’s one-way commuting distance by more than fifty (50)
miles over Executive’s commute immediately prior thereto; or (iv) a material reduction by VaxGen of
Executive’s then-current base salary (except where such reduction is imposed uniformly on other
senior executives of the Company). Notwithstanding the foregoing, a resignation of employment by
Executive shall not constitute a resignation for Good Reason based on the conduct described above
unless (A) within thirty (30) days following the occurrence of such conduct, Executive provides
VaxGen’s Chief Executive Officer (or the Board in the case Executive is then serving as the Chief
Executive Officer or there is no one serving as the Chief Executive Officer) with written notice
specifying (x) the particulars of such conduct and (y) that Executive deems such conduct to be
described in (i), (ii), (iii) or (iv) of this Section 10(c), (B) such conduct has not been cured
within thirty (30) days following receipt by VaxGen’s Chief Executive Officer (or the Board in the
case of Executive is then serving as the Chief Executive Officer or there is no one serving as the
Chief Executive Officer) of such notice and (C) the resignation occurs within one hundred and
twenty (120) days of the occurrence of such conduct. Executive’s resignation shall be effective on
the date specified in the notice given hereunder, which date shall not be earlier than the earliest
date permitted by the preceding sentence, nor later than the latest date permitted by the preceding
sentence (unless such earlier or later resignation date is permitted by the Company).
3. Section 10(i) of the Employment Agreement regarding the application of Section 409A of the
Code to the payment of certain severance benefits is amended and restated in its entirety as
follows:
(i) Deferred Compensation. In the event that the Company determines that any payments
hereunder (including but not limited to the Severance Benefits or the Prorated Bonus provided under
Section 10(b) (Severance Benefits Eligibility)), fail to satisfy the distribution requirement of
Section 409A(a)(2)(A) of the Code as a result of Section 409A(a)(2)(B)(i) of the Code, the payment
of such benefit shall be accelerated to the minimum extent necessary so that the benefit is not
subject to the provisions of Section 409A(a)(1) of the Code. (It is the intention of the preceding
sentence to apply the short-term deferral provisions of Section 409A of the Code, and the
regulations and other guidance thereunder, to such payments and
benefits. The payment schedule as revised after the application of such preceding sentence shall
be referred to as the “Revised Payment Schedule.”) However, if there is no Revised Payment
Schedule that would avoid the application of Section 409A(a)(1) of the Code, the payment of such
benefits shall not be paid pursuant to the original payment schedule or a Revised Payment Schedule
and instead the payment of such benefits shall be delayed until the earlier to occur of (i) the
date that is six (6) months after the date after the applicable separation from service or (ii) the
date of Executive’s death. All payments hereunder are intended to constitute separate payments for
purposes of Treasury Regulations Section 1.409A-2(b)(2).
4. Except as specifically amended by this Amendment, the terms and conditions of the
Employment Agreement remain in full force and effect.
5. THE FOLLOWING DISCLAIMER IS PROVIDED IN ACCORDANCE WITH THE INTERNAL REVENUE SERVICE’S
CIRCULAR 230 (21 CFR PART 10). ANY ADVICE IN THIS AMENDMENT IS NOT INTENDED OR WRITTEN TO BE USED,
AND IT CANNOT BE USED BY ANY PERSON FOR THE PURPOSE OF AVOIDING ANY PENALTIES THAT MAY BE IMPOSED
ON EXECUTIVE. ANY ADVICE IN THIS AMENDMENT WAS WRITTEN TO SUPPORT THE PROMOTION OR MARKETING OF
PARTICIPATION IN THE COMPANY’S EMPLOYMENT AGREEMENTS. EXECUTIVE SHOULD SEEK ADVICE BASED ON
EXECUTIVE’S PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
6. Executive acknowledges that Executive is not relying on VaxGen for any legal, tax or
financial advice.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective Date.
| VaxGen, Inc. | ||||
| By: | ||||
| Date: | ||||
Accepted and agreed: |
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Date |
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