EXHIBIT 10.1
CORIXA CORPORATION
[FORM OF] AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Pursuant to this Amended and Restated Employment Agreement (the
"Agreement"), dated as of January 6, 2005, [______________________]
("Executive") and Corixa Corporation, a Delaware corporation ("Company"), hereby
amend and restate Executive's Employment Agreement with Company, dated
[_________________________, 2001], to read in its entirety as follows:
1. DUTIES.
(a) POSITION. Executive is employed as [______________________] of
the Company, reporting to the Company's chairman and chief executive officer.
The duties and responsibilities of Executive shall include the duties and
responsibilities for the direct supervision, direction and control of the
Company's [______________________]. Executive shall perform such duties as from
time to time may be prescribed for him or her by the Company's chief executive
officer or the Company's Board of Directors (the "Board"), in all cases to be
consistent with Executive's corporate offices and positions.
(b) OBLIGATIONS TO THE COMPANY. Executive agrees to the best of his
or her ability and experience that she will at all times loyally and
conscientiously perform all of the duties and obligations required of and from
Executive pursuant to the express and implicit terms hereof, and to the
reasonable satisfaction of the Company. During the term of Executive's
employment relationship with the Company, Executive further agrees that he or
she will devote all of his or her business time and attention to the business of
the Company, the Company will be entitled to all of the benefits and profits
arising from or incident to all such work services and advice, and Executive
will not render commercial or professional services of any nature to any person
or organization, whether or not for compensation, without the prior written
consent of the Board, and will not directly or indirectly engage or participate
in any business that is competitive in any manner with the business of the
Company. Nothing in this Agreement will prevent Executive from accepting
speaking or presentation engagements in exchange for honoraria, from serving on
boards of charitable organizations, or from owning no more than 3% of the
outstanding equity securities of a corporation whose stock is listed on a
national stock exchange or the Nasdaq National Market, provided that such
activities do not materially interfere with Executive's obligations to the
Company as described above. Executive will comply with and be bound by the
Company's operating policies, procedures and practices from time to time in
effect during the term of Executive's employment.
2. AT-WILL EMPLOYMENT. The employment of Executive under this Agreement
shall be for an unspecified term. The Company and Executive acknowledge and
agree that Executive's employment is and shall continue to be at-will, as
defined under applicable law, and that notwithstanding any other obligation
under this Agreement, Executive's employment with the Company may be terminated
by either party at any time for any or no reason, and with or without notice.
3. COMPENSATION. For the duties and services to be performed by
Executive hereunder, the Company shall pay Executive, and Executive agrees to
accept, the salary, stock options, bonuses and other benefits described below in
this Section 3.
(a) SALARY. During calendar year 2005, Executive shall receive a
monthly base salary of $[_________________], which is equivalent to
$[______________________] on an annualized basis. Executive's monthly base
salary will be payable pursuant to the Company's normal payroll practices for
payment of salary to executive employees. Executive's base salary will be
reviewed as part of the Company's normal salary review process.
(b) EQUITY COMPENSATION.
(i) STOCK OPTION GRANTS. In addition to new hire option
grants and any other outstanding options that Executive may currently hold,
Executive is eligible to participate in the Stock Incentive Program (the
"Program") whereby each year Executive may receive an option for up to
[________] shares of Company common stock (the "Option"). The number of shares
awarded will be based solely on the Company's achievement of scientific and
business goals solely determined by the Board prior to the start of each fiscal
year. Options earned under this Program will be granted no later than February
following the close of the applicable fiscal year. Any Option granted pursuant
to this Program will have a purchase price equal to the fair market value on the
grant date, and shall be subject to the terms of a Stock Option Agreement, the
form of which is attached hereto as Exhibit A. The Option will vest and become
exercisable over a four (4) year vesting period such that 1/48 of the total
number of Option shares will vest and become exercisable on each monthly
anniversary. Subject to Sections 3(b)(iii), 4(b)(iv), 4(c)(iv) and 4(d)(i)(D),
vesting is contingent upon Executive's continued employment with the Company.
Executive acknowledges and agrees that the compensation provided in Section
3(b)(ii) is intended to be in lieu of any annual discretionary stock options
Executive may have been eligible to receive pursuant to this Section 3(b)(i)
with respect to the 2004 calendar year and that Executive will not be eligible
to receive an annual discretionary stock option grant under this Section 3(b)(i)
with respect to the 2004 calendar year.
(ii) 2005 STOCK OPTION GRANT. On December 15, 2004, Executive
was granted an additional compensatory stock option to purchase up to 150,000
shares of the Company's common stock under the Company's 2001 Stock Incentive
Plan (the "2005 Stock Options"). Thirty-three percent (33%) of the shares
subject to the 2005 Options shall vest on June 30, 2005; the remaining
sixty-seven percent (67%) of the shares subject to the 2005 Options will vest in
equal monthly installments on the last day of the month over the 18-month period
commencing on July 1, 2005 and ending on December 31, 2006. The 2005 Options
have an exercise price per share equal to one hundred percent (100%) of the fair
market value per share of the Company's common stock on the date(s) of grant.
All other terms of the 2005 Options will be in accordance with the terms and
requirements of the 2001 Stock Incentive Plan and the Company's form of stock
option agreement. Subject to Sections 3(b)(iii), 4(b)(iv) and 4(c)(iv), vesting
is contingent upon Executive's continued employment with the Company. There
shall be no accelerated vesting of the 2005 Options that remain unvested as of
the date of the Executive's voluntary termination in the event the Executive
chooses to voluntarily terminate his or her employment with the Company in
accordance with Section 4(d) below.
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(iii) ACCELERATION. In the event of a Change of Control (as
defined in Section 5(a) of this Agreement), (i) if any of Executive's
outstanding options (the "Awards") are assumed or an equivalent option is
substituted by such successor corporation or a parent or subsidiary of such
successor corporation (the "Successor Corporation"), one half of the then
unvested portion of the Awards shall be deemed to have vested immediately prior
to the transaction, (ii) if the Awards are not assumed or an equivalent option
is not substituted by the Successor Corporation, all of the then unvested
portion of the Awards shall be deemed to have vested immediately prior to such
transaction and (iii) if Executive is terminated without Cause (as defined below
in Section 5(b)) or if Executive Resigns For Good Reason (as defined in Section
5(c)) within twelve (12) months following the consummation of the transaction
where the Successor Corporation assumed the Awards or substituted an equivalent
option, the entire unvested portion of the Awards held by Executive shall be
deemed to have vested and become fully exercisable immediately prior to any such
termination or resignation. If the vesting of the Awards is accelerated pursuant
to this Section 3(b)(iii), the Company shall notify Executive that the vesting
of the Awards has been accelerated and Executive shall have the right to
exercise the Awards prior to the transaction, termination or resignation, as
applicable.
(c) CASH BONUSES.
(i) DISCRETIONARY BONUSES. Except as otherwise provided in
Sections 3(c)(ii) below, Executive is eligible for an annual discretionary cash
bonus equal to up to [__]% of Executive's then current base salary. This
discretionary bonus will be based upon (i) the Company's achievement of
scientific and business goals solely determined by the Board in November of the
previous fiscal year and (ii) Executive's achievement of personal performance
objectives established and approved by the Company no later than February each
fiscal year. Payment of any earned bonus shall be made no later than February
following the close of the applicable fiscal year. In addition, Executive may be
entitled to other incentive bonuses as solely determined by the Board or the
Company's Compensation Committee from time to time. Executive acknowledges and
agrees that the compensation provided in Section 3(c)(ii) is intended to be in
lieu of any annual discretionary cash bonus Executive may have been eligible to
receive pursuant to this Section 3(c)(i) with respect to the 2004 calendar year
and that Executive will not be eligible to receive an annual discretionary cash
bonus under this Section 3(c)(i) with respect to the 2004 calendar year.
(ii) QUALIFYING STRATEGIC TRANSACTION BONUS. Only during
2005, Executive is eligible to receive a cash bonus equal to the Total Incentive
Payment (as defined in Section 5(d) below). Twenty-five percent (25%) of the
Total Incentive Payment will be paid to Executive on June 30, 2005; provided,
that Executive is then employed by the Company. Executive shall receive the
remaining seventy-five percent (75%) of the Total Incentive Payment if and only
if the Company completes a Qualifying Strategic Transaction (as defined in
Section 5(e) below); provided, however, that the Board reserves the right to pay
Executive, prior to December 31, 2005, an amount equal to or less than the
remaining seventy-five percent (75%) of the Total Incentive Payment if the
Company fails to complete a Qualifying Strategic Transaction, based solely on
the Board's discretion and opinion as to the Company's achievement of scientific
and business goals and Executive's achievement of personal performance
objectives. The remaining seventy-five percent (75%) of the Total Incentive
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Payment will be paid to Executive, if eligible, as soon as practicable following
the date the Company completes a Qualifying Strategic Transaction. In the event
Executive's employment is terminated by the Company (or a successor entity)
without Cause or by Executive's Resignation For Good Reason, the entire
Qualified Strategic Transaction Bonus shall be paid to Executive, regardless of
whether a Qualified Strategic Transaction has been completed. Such payment shall
be in addition to payments further due to Executive pursuant to Section 4(b)
below.
(d) ADDITIONAL BENEFITS. Executive is eligible to participate in
the Company's employee benefit plans of general application in accordance with
the rules established for individual participation in any such plan and under
applicable law.
(e) INDEMNIFICATION. Executive has previously entered into the
Company's standard form of Indemnification Agreement, attached hereto as Exhibit
B, providing indemnification to Executive to the maximum extent permitted by
law, and in accordance therewith, the Company has agreed to advance any expenses
for which indemnification is available to the extent allowed by applicable law.
(f) VACATION. Executive is eligible to accrue up to 20 days of
paid vacation per year, which vacation may be used in the year in which accrued
or in a subsequent year, subject to the Company's policies with respect to
maximum accrual of unused vacation.
4. SEVERANCE BENEFITS. Executive shall be entitled to receive severance
benefits upon termination of employment only as set forth in this Section 4.
Executive's entitlement to such severance benefits shall be conditioned upon
Executive's execution and delivery to the Company of (i) a general release of
all claims, (ii) a resignation from all of Executive's positions with the
Company and (iii) an agreement not to directly or indirectly be employed or
involved with any business developing or exploiting any products or services
that are competitive with products or services (a) being commercially developed
or exploited by the Company during Executive's employment and (b) on which
Executive worked or about which Executive learned proprietary information or
trade secrets of the Company during Executive's employment with the Company. Any
payment of severance benefits under the terms of this Agreement will be subject
to all applicable tax withholding
(a) VOLUNTARY TERMINATION OR TERMINATION FOR CAUSE. Except as
otherwise provided in Section 4(d), if Executive voluntarily elects to terminate
his or her employment with the Company other than by Executive's Resignation For
Good Reason, as defined in Section 5(c) below, or if the Company or a successor
entity terminates Executive's employment for Cause, as defined in Section 5(b)
below, or Executive dies or becomes incapacitated or otherwise disabled in such
a manner that, in the sole determination of the Board, Executive cannot perform
reasonably the duties specified in Section 1 above, then Executive shall not be
entitled to receive payment of any severance benefits. Executive will receive
payment for all salary and unpaid vacation accrued as of the date of Executive's
termination of employment and Executive's benefits will be continued solely to
the extent of 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.
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(b) INVOLUNTARY TERMINATION APART FROM A CHANGE OF CONTROL. If
Executive's employment is terminated by the Company or a successor entity
without Cause or by Executive's Resignation For Good Reason prior to or more
than twelve (12) months after, a Change of Control (as defined below), Executive
will receive payment for all salary and unpaid vacation accrued as of the date
of Executive's termination of employment, and, in addition, Executive will be
entitled to receive the following severance benefits:
(i) continued payment of his or her base salary for a period
of twelve (12) months following the date of termination, in accordance with the
Company's normal payroll practices;
(ii) reimbursement of his or her premium cost for
continuation coverage under the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended, or the California Continuation of Benefits Replacement Act
of 1997, as amended, whichever is applicable, for the lesser of the first twelve
(12) months of continuation coverage or that number of months until Executive
becomes eligible for reasonably comparable benefits under any future employer's
health insurance plan, provided Executive makes a timely election for such
continuation coverage and presents reasonably requested documentation of payment
of such premiums;
(iii) payment of 100% of Executive's current year
discretionary cash bonus regardless of the Company's or Executive's achievement
of the goals referred to in Section 3(c) of this Agreement;
(iv) accelerated vesting as to 50% of Executive's then
unvested option shares; and
(v) reimbursement for up to $20,000 of expenses incurred in
obtaining new employment, provided Executive submits evidence that is
satisfactory to the Company that the amount involved was expended and related to
obtaining new employment.
(c) INVOLUNTARY TERMINATION FOLLOWING A CHANGE OF CONTROL. If
Executive's employment is terminated by the Company or a successor entity
without Cause or by Executive's Resignation For Good Reason in either case
within twelve (12) months following a Change of Control, Executive will receive
payment for all salary and unpaid vacation accrued as of the date of Executive's
termination of employment, and, in addition, Executive will be entitled to
receive the following severance benefits:
(i) continued payment of his or her base salary for a period
of eighteen (18) months following the date of termination, in accordance with
the Company's normal payroll practices;
(ii) reimbursement of his or her premium cost for
continuation coverage under the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended, or the California Continuation of Benefits Replacement Act
of 1997, as amended, whichever is applicable, for the lesser of the first
eighteen (18) months of continuation coverage or that
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number of months until Executive becomes eligible for reasonably comparable
benefits under any future employer's health insurance plan, provided Executive
makes a timely election for such continuation coverage and presents reasonably
requested documentation of payment of such premiums;
(iii) payment of one hundred and fifty percent (150%) of
Executive's current year discretionary cash bonus regardless of the Company's or
Executive's achievement of the goals referred to in Section 3(c) of this
Agreement;
(iv) accelerated vesting of one hundred percent (100%) of all
the unvested option shares pursuant to the terms of Section 3(b)(ii) of this
Agreement; and
(v) reimbursement for up to $20,000 of expenses incurred in
obtaining new employment, provided Executive submits evidence that is
satisfactory to the Company that the amount involved was expended and related to
obtaining new employment.
(d) VOLUNTARY TERMINATION IN 2005.
(i) Notwithstanding Section 4(a), subject to Board approval
as described in 4(d)(ii) below, if Executive voluntarily elects to terminate his
or her employment with the Company, whether or not such termination constitutes
a Resignation For Good Reason (as defined in 5(c) below), during the period of
time beginning on, and including, July 1, 2005 and ending on, and including,
December 31, 2005, Executive will receive payment for all salary and unpaid
vacation accrued as of the date of Executive's termination of employment, and,
in addition, Executive will be entitled to receive the following benefits:
(A) continued payment of his or her base salary for a
period of twelve (12) months following the date of termination, in accordance
with the Company's normal payroll practices;
(B) reimbursement of his or her premium cost for
continuation coverage under the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended, or the California Continuation of Benefits Replacement Act
of 1997, as amended, whichever is applicable, for the lesser of the first twelve
(12) months of continuation coverage or that number of months until Executive
becomes eligible for reasonably comparable benefits under any future employer's
health insurance plan, provided Executive makes a timely election for such
continuation coverage and presents reasonably requested documentation of payment
of such premiums;
(C) payment of 100% of Executive's 2005 discretionary
cash bonus, regardless of the Company's or Executive's achievement of the goals
referred to in Section 3(c) of this Agreement; and
(D) accelerated vesting as to 50% of Executive's then
unvested option shares (other than shares subject to the 2005 Options).
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(ii) In the event Executive elects to voluntarily terminate
employment pursuant to Section 4(d)(i) above, the Board may withhold its consent
to such termination if the Board is of the opinion that the continued employment
of Executive is essential to the successful completion of a pending Qualifying
Strategic Transaction. Upon the Board's determination that Executive's continued
employment is no longer essential to the successful completion of the pending
Qualifying Strategic Transaction, the period of time described in Section
4(d)(i) shall be extended by 30 days beyond the date of such Board
determination.
5. DEFINITIONS. For purposes of this Agreement, the following
definitions shall apply:
(a) "CHANGE OF CONTROL" means a sale of all or substantially all
of the Company's assets, or any merger or consolidation of the Company with or
into another corporation other than a merger or consolidation in which the
holders of more than 50% of the shares of capital stock of the Company
outstanding immediately prior to such transaction continue to hold (either by
the voting securities remaining outstanding or by their being converted into
voting securities of the surviving entity) more than 50% of the total voting
power represented by the voting securities of the Company, or such surviving
entity, outstanding immediately after such transaction.
(b) "CAUSE" means the determination by the Board of any of the
following: (i) Executive's failure to perform Executive's duties and
responsibilities to the Company in a manner satisfactory to the Board; (ii)
Executive's violation of a Company policy; (iii) Executive's violation of any
state or federal law, including but not limited to any act of fraud,
embezzlement or dishonesty, or any other willful misconduct that has caused or
is reasonably expected to result in injury to the Company, including the
Company's reputation; (iv) Executive's unauthorized use or disclosure of any
proprietary information or trade secrets of the Company or any other party to
whom Executive owes an obligation of nondisclosure as a result of his or her
relationship with the Company; or (v) Executive's breach of any of his or her or
her obligations under any written agreement or covenant with the Company.
(c) "RESIGNATION FOR GOOD REASON" means, subject to the right of
either party to arbitrate a dispute with respect thereto in accordance with
Section 13 below, Executive's resignation as a result of, and within 30 days
following: (i) a change in Executive's position such that he or she is not a
corporate officer of the Company (or a successor company, in the event of a
Change of Control); (ii) a significant and substantial reduction in Executive's
job, duties, or responsibilities in a manner that is substantially and
materially inconsistent with the position, duties, or responsibilities held by
Executive immediately before such reduction; (iii) any reduction in Executive's
base salary other than in connection with and consistent with a general
reduction of all officer base salaries; or (iv) a relocation of the Company's
executive offices to a location more than 50 miles away from their current
location provided such change increases Executive's commute by 25 miles or 45
minutes.
(d) "TOTAL INCENTIVE PAYMENT" means $[___________].
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(e) "QUALIFYING STRATEGIC TRANSACTION" means (i) any Change of
Control and (ii) any acquisition by the Company of another company (or all or
substantially all of its assets), whether by means of a merger, stock purchase,
asset purchase, reorganization or otherwise, which transaction is consummated on
or before December 31, 2005.
6. LIMITATION ON PAYMENTS. In the event that the stock option grant in
3(b)(ii) or any of the benefits provided for in Sections 3(b)(iii), 3(c)(ii) and
4 above (i) constitute "parachute payments" within the meaning of Section 280G
of the Code , and (ii) but for this Section 6 would be subject to the excise tax
imposed by Section 4999 of the Code (or any corresponding provisions of state
income tax law), then such benefits shall be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no
portion of such benefits being subject to excise tax under Code Section 4999,
whichever amount, taking into account the applicable federal, state and local
income taxes and the excise tax imposed by Section 4999 of the Code, results in
the receipt by Executive on an after-tax basis of the greater amount of
benefits, notwithstanding that all or some portion of such benefits may be
taxable under Section 4999 of the Code.
Any determination required under this Section 6 shall be made in writing
by the Company's independent accountants, whose determination shall be
conclusive and binding for all purposes on the Company and any affected
Executive. In the event that (a) above applies, then Executive shall be
responsible for any excise taxes imposed with respect to such benefits. In the
event that (b) above applies, then each benefit provided hereunder shall be
proportionately reduced to the extent necessary to avoid imposition of such
excise taxes.
7. CONFIDENTIALITY AGREEMENT. Executive has signed a Proprietary
Information and Inventions Agreement (the "Proprietary Agreement") that is
incorporated by reference and made a part of this Agreement and the form of
which is attached hereto as Exhibit C. Executive hereby represents and warrants
to the Company that Executive has complied with all obligations under the
Proprietary Agreement and agrees to continue to abide by the terms of the
Proprietary Agreement and further agrees that the provisions of the Proprietary
Agreement shall survive any termination of this Agreement or of Executive's
employment relationship with the Company in accordance with the terms of the
Proprietary Agreement.
8. CONFIDENTIALITY OF TERMS. Executive agrees to follow the Company's
strict policy that employees must not disclose, either directly or indirectly,
any information, including any of the terms of this Agreement, regarding salary
or stock purchase allocations to any person, including other employees of the
Company (other than such employees who have a need to know such information);
provided, however, that Executive may discuss such terms with members of his or
her immediate family and any legal, tax or accounting specialists who provide
Executive with individual legal, tax or accounting advice.
9. COVENANTS. In addition to the obligations to which Executive agreed
by executing the Proprietary Agreement, Executive understands and agrees that
during the term of
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Executive's employment with the Company, and for the greater of (i) the duration
of any payments to Executive of severance benefits pursuant to Section 4 of this
Agreement or (ii) one (1) year after the termination of Executive's employment
with the Company, Executive will not do any of the following:
(a) COMPETE. Without the Company's prior written consent,
Executive will not directly or indirectly be employed or involved with any
business developing or exploiting any products or services that are competitive
with products or services (i) being commercially developed or exploited by the
Company during Executive's employment and (ii) on which Executive worked or
about which Executive learned proprietary information or trade secrets of the
Company during Executive's employment with the Company.
(b) SOLICIT BUSINESS. Solicit or influence or attempt to influence
any client, customer or other person either directly or indirectly, to direct
his or her, her or its purchase of the Company's products and/or services to any
person, firm, corporation, institution or other entity in competition with the
business of the Company.
(c) SOLICIT PERSONNEL. Solicit or influence or attempt to
influence any of the Company's employees, consultants or other service providers
to terminate or otherwise cease his or her, her or its employment, consulting or
service relationships with the Company or to become an employee, consultant or
service provider of any competitor of the Company.
10. BREACH OF THE AGREEMENT. Executive acknowledges that upon his or her
breach of this Agreement or the Proprietary Agreement, the Company would sustain
irreparable harm from such breach, and, therefore, Executive agrees that in
addition to any other remedies which the Company may have under this Agreement
or otherwise, the Company shall be entitled to obtain equitable relief,
including specific performance and injunctions, restraining Executive from
committing or continuing any such violation of the Agreement or the Proprietary
Agreement. Executive acknowledges and agrees that upon Executive's material or
intentional breach of any of the provisions of the Agreement (including Section
9) or the Proprietary Agreement, in addition to any other remedies the Company
may have under this Agreement or otherwise, the Company's obligations to provide
benefits to Executive as described in this Agreement, including without
limitation those benefits provided in Section 4, shall immediately terminate.
11. ENTIRE AGREEMENT. This Agreement, including the Proprietary
Agreement that Executive has signed, sets forth the entire agreement and
understanding of the parties relating to the subject matter herein, supercedes
any prior agreement, and merges all prior discussions between them.
12. CONFLICTS. Executive represents and warrants that his or her
performance of all the terms of this Agreement will not breach any other
agreement or understanding to which Executive is a party. Executive 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.
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13. DISPUTE RESOLUTION. In the event of any dispute, controversy or
claim arising under or in connection with this Agreement, or the breach hereof
(including a dispute as to whether Cause or Resignation For Good Reason exists),
the parties hereto shall first submit their dispute to formal mediation. The
Company shall select a mediator reasonably acceptable to both parties. In the
event that the parties cannot reach resolution through formal mediation, the
dispute shall be settled by arbitration in Seattle, Washington, in accordance
with the Rules of the American Arbitration Association then in effect. Each
party shall pay his or her, her or its own costs (including attorneys' fees) in
connection with such mediation or arbitration. To the extent such mediation or
arbitration requires the submission of any information that either party claims
is confidential information, the parties agree that such mediation or
arbitration shall be confidential proceeding. Judgment upon the award rendered
by the mediator or arbitrator may be entered in any court of competent
jurisdiction. If any proceeding is necessary to enforce the mediation or
arbitration award, the prevailing party shall be entitled to reasonable
attorneys fees and costs and disbursements, in addition to any other relief to
which such party may be entitled. Notwithstanding the foregoing, the Company
shall be entitled to seek equitable relief directly from a court of competent
jurisdiction (without prior arbitration) with respect to any alleged breach of
the Proprietary Agreement or Section 9, including specific performance and
injunctions, restraining Executive from committing or continuing to commit such
alleged breach.
14. 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 agrees 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 Executive's rights hereunder
shall inure to the benefit of, and be enforceable by, Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
15. MISCELLANEOUS PROVISIONS.
(a) AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived only with the written consent of the parties. The failure by
either party to enforce any rights under this Agreement shall not be construed
as a waiver of any rights of such party.
(b) NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by a nationally-recognized delivery service (such as Federal
Express or UPS), or 48 hours after being deposited in the U.S. mail as certified
or registered mail with postage prepaid, if such notice is addressed to the
party to be notified at such party's address as set forth below or as
subsequently modified by written notice.
(c) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Washington, without giving effect to its or any other jurisdiction's principles
of conflict of laws.
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(d) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(e) 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.
(f) ADVICE OF COUNSEL. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES
THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK
THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE
TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED
AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
(g) SECTION 409A OF THE CODE. This Agreement is intended to
constitute an enforceable contract for the payment of compensation, severance
and certain other benefits. The Agreement is not intended to constitute a
"nonqualified deferred compensation plan" within the meaning of Section 409A of
the Code. Notwithstanding the foregoing, in the event this Agreement or any
benefit paid to Executive hereunder is deemed to be subject to Section 409A of
the Code, Executive consents to the Company adopting such conforming amendments
as the Company deems necessary, in its sole discretion, to comply with Section
409A of the Code, without reducing the amounts of any benefits due to Executive
hereunder.
[Signature Page Follows]
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The parties have executed this Amended and Restated Employment Agreement
as of the date first written above.
CORIXA CORPORATION
By:_________________________________
____________
____________
Address: 0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
[EXECUTIVE NAME]
____________________________________
Address:
__________________________
__________________________
__________________________
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SCHEDULE OF EXECUTIVES WHO ARE PARTIES TO CORIXA CORPORATION
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
NAME OF ANNUAL ANNUAL STOCK ANNUAL DISCRETIONARY TOTAL INCENTIVE
EXECUTIVE SALARY OPTION GRANT BONUSES PAYMENT
----------------- -------- ------------ -------------------- ---------------
Xxxxxx Xxxxxx $500,000 100,000 45% of then current $745,000
Annual Salary
Xxxxxxxx Xxxxxx $294,000 45,000 30% of then current $378,000
Annual Salary
Xxxxx Xxxxxxx $320,250 45,000 30% of then current $405,000
Annual Salary
Xxxxxxxx 30% of then current
McKereghan $244,125 45,000 Annual Salary $310,000
