Exhibit 10.49
June 20, 2003
Xxxxx Xxxxx, M.D.
0000 Xxx Xxxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Dear Emile:
In consideration of your continued employment, Epimmune Inc. (the "COMPANY") is
pleased to offer you the following agreement regarding your eligibility for an
incentive bonus on the terms and conditions set forth herein (the "AGREEMENT").
Upon your acceptance of the terms of this Agreement, you will be eligible to
earn the following:
You are eligible to earn a performance bonus (each an "INCENTIVE BONUS") equal
to 2% of any proceeds received by the Company from any public or private equity
financing of the Company (a "FINANCING") completed at any time between the date
of this Agreement and December 31, 2004, the amount of each such Incentive Bonus
to be calculated by the Company's independent certified public accountants in
accordance with U.S. generally accepted accounting principles; provided that,
if, at any time, the total amounts paid as Incentive Bonuses exceeds One Million
Dollars ($1,000,000), the payment of any Incentive Bonus accruing thereafter
shall be at the discretion of the Company's Board of Directors (the "BOARD").
The Incentive Bonus, less standard deductions and withholdings, payable in
connection with completion of a Financing would be paid to you in a lump sum
cash payment within 10 days after receipt by the Company of the proceeds from
such Financing. In order to receive an Incentive Bonus payment, you must be
continuously employed by the Company at all times between the date of this
Agreement and completion of the applicable Financing.
In addition, those shares of the Company's common stock that you purchased
pursuant to the Restricted Stock Purchase Agreement between you and the Company
dated January 16, 2001, shall, to the extent not otherwise vested, become fully
vested and shall no longer be subject to forfeiture or Company right of
repurchase upon the consummation of the merger between the Company and Anosys,
Inc. if you are continuously employed by the Company at all times between the
date of this Agreement and the date of consummation of such merger.
Notwithstanding the foregoing, if any payment or acceleration of vesting
provided for in this Agreement or otherwise payable to you (the "Benefits")
would (i) constitute "parachute payments" within the meaning of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code"), and (ii) but for
this subsection would be subject to the excise tax imposed by Section 4999 of
the Code (the "Excise Tax"), then, the Benefits to which you are entitled
pursuant to this Agreement shall be either:
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a) Provided to you in full, or
b) Provided to you at such lesser extent that would result in no portion of the
Benefits being subject to the Excise Tax,
whichever of the forgoing amounts, when taking into account applicable federal,
state, local and foreign income and employment taxes, the Excise Tax, and any
other applicable taxes, results in the receipt by you, on an after tax basis, of
the greatest amount of the Benefits, notwithstanding that all or some portion of
the Benefits may be taxable under the Excise Tax. Unless you and the Company
otherwise agree in writing, any determination required under this paragraph
shall be made in writing in good faith by an accountant or other adviser
selected by you. In the event of a reduction of the Benefits under this
Agreement, you shall be given the choice of which of the Benefits are reduced.
For purposes of making the calculations required by this subsection, the
accountant or advisor that you select may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of the Code, and other
applicable legal authority. You and the Company shall furnish your accountant or
advisor such information and documents as he may reasonably request in order to
make a determination under this subsection. The cost of making the determination
required by this paragraph shall be paid for by the Company.
This Agreement does not change, in any way, the at-will employment relationship
between you and the Company. You and Company may terminate your employment at
any time, with or without cause, subject to the terms and conditions of the
Offer Letter.
This Agreement constitutes the complete, final and exclusive embodiment of the
entire Agreement between you and the Company with regard to the subject matter
of this Agreement. It is entered into without reliance on any promise or
representation, written or oral, other than those expressly contained herein,
and it supercedes any other such promises, warranties or representations. This
Agreement may not be modified or amended except in writing signed by you and the
Chairman of the Board, on behalf of the Company. This Agreement is deemed to
have been entered into and will be construed and enforced in accordance with the
laws of the State of California as applied to contracts made and to be performed
entirely within California.
If this Agreement is acceptable to you, please sign below and return the
original, fully executed Agreement to me no later than June 30, 2003. If you
have any questions regarding this Agreement, you may contact me at your
convenience.
Sincerely,
Epimmune Inc.
/s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------------
Xxxxxx X. Xxxxxx, Xx.
Chairman of the Board of Directors
Agreed and Accepted:
/s/ Xxxxx Xxxxx
---------------------------
Xxxxx Xxxxx, M.D.
Date: June 25, 2003
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