Cleveland BioLabs, Inc.
Cleveland
BioLabs, Inc.
00
Xxxx Xxxxxx
Xxxxxxx,
Xxx Xxxx 00000
December
31, 2008
Xxxxx
Xxxxx
c/o
Cleveland BioLabs, Inc.
00 Xxxx
Xxxxxx
Xxxxxxx,
Xxx Xxxx 00000
Re: Amendment
to Employment Agreement dated August 1, 2004
Dear
Xxxxx:
Pursuant
to Section 14.11 of the Employment Agreement dated August 1, 2004, (the
“Employment Agreement”) by and between you (“Executive”) and Cleveland BioLabs,
Inc. (the “Company”) and in order to maintain compliance with Section 409A of
the Internal Revenue Code of 1986, as amended, the Employment Agreement shall be
amended and modified to incorporate the following as Section 14.12:
“Section
14.12 Section 409
A.
(a) This
Agreement is intended to comply with Section 409A of the Internal Revenue Code
of 1986, as amended ("Section 409A") and shall, to the extent practicable, be
construed in accordance therewith. Accordingly, notwithstanding anything in this
Agreement to the contrary, if the Company determines that Executive is a
"specified employee" (as defined in Code Section 409A(a)(2)(B)(i)) at the time
of his or her Separation from Service (as defined under Section 409A) and any
amount payable to Executive under this Agreement is a deferral of compensation
subject to the additional tax described in Code Section 409A(a)(1)(B) and would
be considered a payment upon Executive’s Separation from Service, then
notwithstanding anything in this Agreement to the contrary, such amount shall
not be paid before the date that is the earlier of (i) six (6) months and one
(1) day after Executive’s Separation from Service or (ii) Executive’s death (the
"Delay Period"). Upon the expiration of the Delay Period, the initial payment
following the Delay Period shall include a lump sum payment equal to those
payments that otherwise would have been paid if the delay had not applied, and
any remaining payments due shall be payable in accordance with their original
payment schedule.
(b) If
either party to this Agreement reasonably determines that any amount payable
pursuant to this Agreement would result in adverse tax consequences under
Section 409A (including, but not limited to, the additional tax described in
Code Section 409A(a)(1)(B)), then such party shall deliver written notice of
such determination to the other party, and the parties hereby agree to work in
good faith to amend this Agreement so it (i) is exempt from, or compliant with,
the requirements of Section 409A and (ii) preserves as nearly as possible the
original intent and economic effect of the affected provisions.”
Please
indicate your agreement to the foregoing amendment and modification by
countersigning below where indicated.
CLEVELAND
BIOLABS, INC.
/s/ Xxxx X. Xxxxxxxx,
Xx.
By: Xxxx
X. Xxxxxxxx, Xx.
Title:
Chief Financial Officer
Acknowledged
and agreed to as of
December
31, 2008
/s/ Xxxxx
Xxxxx
Xxxxx
Xxxxx
