CHANGE IN CONTROL AGREEMENT
Exhibit
10.3
THIS
AGREEMENT dated as of September 18, 2006 is made by and between GenVec, Inc.
(the "Company"), and Xxxxxxx X. Xxxxxxx (the "Executive").
WHEREAS
the Company considers it essential to its best interests and to the best
interests of its stockholders to xxxxxx the continuous employment of its key
management personnel; and
WHEREAS
the Company recognizes that the possibility of a Change in Control (as defined
in Section 9.6 hereof) exists, as in the case of any publicly-held
corporation, and that such possibility, and the uncertainty and questions which
it may raise among management, may result in the departure or distraction of
management personnel to the detriment of the Company and its stockholders;
and
WHEREAS
the Company has determined that appropriate steps should be taken to reinforce
and encourage the continued attention and dedication of members of the Company's
management, including the Executive, to their assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change in Control;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the Company and the Executive hereby agree as
follows:
1. Defined
Terms.
Definitions of certain capitalized terms used in this Agreement are provided in
Section 9 and elsewhere in this Agreement.
2. Term
of Agreement. This
Agreement shall become effective on the date hereof and shall remain in effect
indefinitely thereafter; provided, however, that (a) except as provided in
clause (b) of this sentence, either the Company or the Executive may terminate
this Agreement by giving the other party at least one (1) year advance
written notice of such termination, and (b) if a Change in Control shall
have occurred during the term of this Agreement, this Agreement may not be
terminated until all obligations of either party hereto have been performed in
full and the Coverage Period has expired without the occurrence of a Triggering
Event. Notwithstanding the foregoing, this Agreement shall terminate upon the
Executive's Disability or death, except as to obligations of the Company
hereunder arising from a Change in Control and/or a termination of the
Executive's employment that, in either case, occurred prior to his Disability or
death.
3. Agreement
of the Company. In
order to induce the Executive to remain in the employ of the Company, the
Company agrees, under the terms and conditions set forth herein, that, upon the
occurrence of both a Change in Control and a Triggering Event during the term of
this Agreement, the Company shall provide to the Executive the benefits
described in this Section 3 (the "Severance Benefits").
3.1 Severance
Payment. In lieu
of any further salary payments to the Executive for periods subsequent to the
Date of Termination, the Company shall pay to the Executive a lump sum severance
payment, in cash, without discount, equal to the sum of (i) the product of (x)
18 months and (y) the Executive's Monthly Base Salary and (ii) the Executive’s
Average Bonus divided by 12 and multiplied by 18 months.
3.2 Continued
Benefits. For an
18 month period after the Date of Termination (the "Benefits Period"), the
Company shall provide the Executive with life insurance and health insurance
(together, “Welfare Benefits”)
substantially similar in all respects to those which the Executive was receiving
immediately prior to the Notice of Termination. During
the Benefits Period, the Executive shall be entitled to elect to change his
level of coverage and/or his choice of coverage options (such as the Executive
only or family medical coverage) with respect to the Welfare Benefits to be
provided by the Company to the Executive
to the
same extent that actively employed officers of the Company are permitted to make
such changes; provided, however, that in the event of any such changes, the
Executive shall pay the amount of any cost increase that would actually be paid
by an actively employed officer of the Company by reason of making the same
changes in his level of coverage or coverage options. In the event that the
Executive becomes employed by a new employer and is eligible to receive health
insurance and/or other welfare benefits (“New Coverage”), the Welfare Benefits
coverage provided under this Section 3.2 shall be secondary to such New
Coverage.
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3.3 Accrued
Compensation and Other Benefits.
To the
extent not theretofore paid or provided, the Company shall timely pay or provide
to Executive his Accrued Compensation and any Other Benefits to which Executive
is entitled.
3.4 Bonus.
(a)
Termination
Year Bonus. The
Company shall pay to the Executive a lump sum cash payment equal to: (x) the
product of (i) the Executive's highest annual base salary in effect during the
one (1) year period preceding the Executive's Date of Termination divided by
twelve (12) and (ii) the Executive's Target Percentage (determined as of the
Date of Termination), multiplied by (y) the number of months (including
fractions thereof) elapsed from the first day of the Termination Year to the
Date of Termination.
(b)
Preceding
Fiscal Year Bonus. To the
extent that as of the Date of Termination the Company has not yet determined and
paid to the Executive any incentive award to which the Executive is entitled
under any Company incentive plan with respect to the fiscal year preceding the
Termination Year, the Company shall also pay to the Executive a lump sum cash
payment at a minimum equal to the product of (x) the Executive's highest annual
base salary in effect during such fiscal year and (y) the Executive's highest
Target Percentage in effect during such fiscal year.
4. |
Gross-Up
Payment; Certain Limitations on Payments and
Benefits. |
In the
event that (a) the Executive becomes entitled to the Severance Benefits or
any other benefits or payments in connection with a Change in Control or the
termination of the Executive's employment, whether pursuant to the terms of this
Agreement or otherwise (collectively, but excluding the amount of any Gross-Up
Payment under this Section 4, the "Total Benefits"), and (b) any of the
Total Benefits will be subject to the Excise Tax, then the
Total Benefits shall be reduced to the extent necessary so that no portion of
the Total Benefits is subject to the Excise Tax; provided, however that if the
amount of such reduction would exceed $10,000, no such reduction shall be made
and the Company
shall instead pay to the Executive an additional amount (the "Gross-Up Payment")
equal to the Excise Tax on the Total Benefits plus an amount equal to any
federal income taxes and FICA and Medicare withholding taxes payable upon such
Gross-Up Payment. For purposes of determining the amount of such Excise Tax, the
amount of the Total Benefits that shall be treated as subject to the Excise Tax
shall be equal to (i) the Total Benefits, minus (ii) the amount of such Total
Benefits that, in the opinion of tax counsel selected by the Company and
reasonably acceptable to the Executive ("Tax Counsel"), are not excess parachute
payments (within the meaning of Section 280G(b)(1) of the
Code).
5. Timing
of Payments. The
payments provided for in Sections 3.1 and 4 shall be made on the Date of
Termination; provided, however, that if the amounts of such payments cannot be
finally determined on or before such day, the Company shall pay to the Executive
on such day an estimate, as determined in good faith by the Company, of the
minimum amount of such payments and shall pay the remainder of such payments
(together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code from the Date of Termination to the payment of such remainder) as soon as
the amount thereof can be determined but in no event later than the thirtieth
(30th) day after the Date of Termination. In the event that the amount of the
estimated payments exceeds the amount subsequently determined to have been due,
such excess shall constitute a loan by the Company to the Executive, payable on
the fifth (5th) business day after demand by the Company (together with interest
at the rate provided in Section 1274(b)(2)(B) of the Code from the Date of
Termination to the repayment of such excess).
6. Reimbursement
of Legal Costs.
The
Company shall pay to the Executive all reasonable legal fees and expenses
incurred by the Executive as a result of a bona fide dispute regarding the
application of any provision of this Agreement including all such fees and
expenses, if any, incurred (a) in disputing any Notice of Termination under
Section 7.1 hereof, (b) in seeking to obtain or enforce any right or
benefit provided by this Agreement or (c) in connection with any tax audit
or proceeding to the extent attributable to the application of Section 4999
of the Code to any payment or benefit provided hereunder. Such payments shall be
made within five (5) business days after delivery of the Executive's respective
written requests for payment accompanied with such evidence of fees and expenses
incurred as the Company reasonably may require.
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7. Termination
Procedures.
7.1 Notice
of Termination. After a
Change in Control, any termination of the Executive's employment (other than by
reason of death) must be preceded by a written Notice of Termination from the
terminating party to the other party hereto in accordance with Section 8.5
hereof. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall (a) specify the date of termination (the "Date of
Termination") which shall not be more than sixty (60) days from the date such
Notice of Termination is given, (b) indicate the notifying party's opinion
regarding the specific provisions of this Agreement that will apply upon such
termination and (c) set forth in reasonable detail the facts and
circumstances claimed to provide a basis for the application of the provisions
indicated. Termination of the Executive's employment shall occur on the
specified Date of Termination even if there is a dispute between the parties
relating to the provisions of this Agreement applicable to such
termination.
7.2 Dispute
Concerning Applicable Termination Provisions. If
within thirty (30) days of receiving the Notice of Termination the party
receiving such notice notifies the other party that a dispute exists concerning
the provisions of this Agreement that apply to such termination, the dispute
shall be resolved either by mutual written agreement of the parties or by
expedited commercial arbitration under the rules of the American Arbitration
Association. The parties shall pursue the resolution of such dispute with
reasonable diligence. Within five (5) days of such a resolution, any party owing
any payments pursuant to the provisions of this Agreement shall make all such
payments together with interest accrued thereon at the rate provided in
Section 1274(b)(2)(B) of the Code.
8. Miscellaneous.
8.1 No
Mitigation. The
Company agrees that, if the Executive's employment by the Company is terminated
in a manner that results in the payment of Severance Benefits hereunder, the
Executive shall not be required to seek other employment or to attempt in any
way to reduce any amounts payable to the Executive by the Company pursuant to
this Agreement. Further, the amount of any payment or benefit provided for under
this Agreement shall not be reduced by any compensation earned by the Executive
as the result of employment by another employer, by retirement benefits, by
offset against any amount claimed to be owed by the Executive to the Company, or
otherwise.
8.2 Successors. In
addition to any obligations imposed by law upon any successor to the Company,
the Company shall be obligated to require any successor (whether direct or
indirect, by purchase, merger, consolidation, operation of law, or otherwise) to
all or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place; in the event of such a succession, references to the
"Company" herein shall thereafter be deemed to include such successor. Failure
of the Company to obtain such assumption and agreement at or prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle the Executive to terminate his employment and thereafter to
receive Severance Benefits, except that, for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination.
8.3 Incompetency. Any
benefit payable to or for the benefit of the Executive, if legally incompetent,
or incapable of giving a receipt therefor, shall be deemed paid when paid to the
Executive's guardian or to the party providing or reasonably appearing to
provide for the care of such person, and such payment shall fully discharge the
Company.
8.4 Death. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive shall die while any amount
would still be payable to the Executive hereunder (other than amounts which, by
their terms, terminate upon the death of the Executive) if the Executive had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the executors, personal
representatives or administrators of the Executive's estate.
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8.5 Notices. For the
purpose of this Agreement, notices and all other communications provided for in
the Agreement shall be in writing and shall be deemed to have been duly given
when delivered or mailed by United States registered mail, return receipt
requested, postage prepaid, addressed to the respective addresses set forth
below, or to such other address as either party may have furnished to the other
in writing in accordance herewith, except that notice of change of address shall
be effective only upon actual receipt:
To
the Company: |
GenVec,
Inc. |
00
Xxxx Xxxxxxx Xxxx Xxxx, |
Xxxxxxxxxxxx,
XX 00000 |
Attention:
Director of Human Resources |
To
the Executive: |
Xxxxxxx
X. Xxxxxxx |
GenVec,
Inc. |
00
Xxxx Xxxxxxx Xxxx Xxxx, |
Xxxxxxxxxxxx,
XX 00000 |
8.6 Modification,
Waiver. No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by the
Executive and such officer as may be specifically designated by the Board or its
delegee. No waiver by either party hereto at any time of any breach by the other
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
8.7 Entire
Agreement. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement.
8.8 Governing
Law. The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of Maryland without regard to principles of
conflicts of laws thereof.
8.9 Statutory
Changes. All
references to sections of the Exchange Act or the Code shall be deemed also to
refer to any successor provisions to such sections.
8.10 Withholding. Any
payments provided for hereunder shall be paid net of any applicable withholding
required under federal, state or local law and any additional withholding to
which the Executive has agreed.
8.11 Validity. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
8.12 No
Right to Continued Employment. Nothing
in this Agreement shall be deemed to give any Executive the right to be retained
in the employ of the Company, or to interfere with the right of the Company to
discharge the Executive at any time and for any lawful reason, subject in all
cases to the terms of this Agreement.
8.13 No
Assignment of Benefits. Except
as otherwise provided herein or by law, no right or interest of any Executive
under the Agreement shall be assignable or transferable, in whole or in part,
either directly or by operation of law or otherwise, including without
limitation by execution, levy, garnishment, attachment, pledge or in any manner;
no attempted assignment or transfer thereof shall be effective; and no right or
interest of any Executive under this Agreement shall be liable for, or subject
to, any obligation or liability of such Executive.
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8.14 Reduction
of Benefits By Legally Required Benefits.
Notwithstanding any other provision of this Agreement to the contrary, if the
Company is obligated by law or by contract (other than under this Agreement), to
pay severance pay, a termination indemnity, notice pay, or the like, or if the
Company is obligated by law or by contract to provide advance notice of
separation ("Notice Period"), then any Severance Benefits hereunder shall be
reduced by the amount of any such severance pay, termination indemnity, notice
pay or the like, as applicable, and by the amount of any pay received with
respect to any Notice Period.
8.15 Nondisclosure. During
the Executive's employment with the Company and thereafter, the Executive shall
not disclose or use in any way any confidential business or technical
information or trade secret acquired in the course of such employment, other
than (i) information that is generally known in the Company's industry or
acquired from public sources, (ii) as required in the course of such employment,
(iii) as required by any court, supervisory authority administrative agency or
applicable law, or (iv) with the prior written consent of the
Company.
8.16 Headings. The
headings and captions herein are provided for reference and convenience only,
shall not be considered part of this Agreement, and shall not be employed in the
construction of this Agreement.
9. Definitions.
9.1 “Accrued
Compensation" means
all amounts of compensation for services rendered by Executive to the Company or
any affiliate that have been earned or accrued through the Date of Termination
but that have not been paid as of the Date of Termination, including
(i) Base Salary, (ii) reimbursement (in accordance with the Company'
expense reimbursement policy) for reasonable and necessary business expenses
incurred by Executive on behalf of the Company during the period ending on the
Date of Termination, and (iii) vacation pay.
9.2 "Average
Bonus" means
the greater of (a) the Executive's average annual bonus for the two fiscal
years (or such shorter period (which shall be annualized) during which the
Executive has been employed by the Company) immediately preceding the fiscal
year in which a Change in Control occurs and (b) the Executive's average bonus
for the two fiscal years (or such shorter period (which shall be annualized)
during which the Executive has been employed by the Company) immediately
preceding the fiscal year which includes the Executive's Date of
Termination.
9.3 "Base
Amount" shall
have the meaning ascribed to such term in Section 280G(b)(3) of the
Code.
9.4 "Board" means
the Board of Directors of the Company.
9.5 "Cause"
means:
(a) the
willful and continued failure of the Executive to substantially perform the
Executive's duties with the Company (other than any such failure resulting from
incapacity due to physical or mental illness), after a written demand for
substantial performance is delivered to the Executive by the Board of the
Company which specifically identifies the manner in which the Board believes
that the Executive has not substantially performed the Executive's
duties;
(b) the
willful engaging by the Executive in illegal conduct or gross misconduct which
is materially and demonstrably injurious to the Company;
(c) personal
dishonesty or breach of fiduciary duty to the Company that in either case
results or was intended to result in personal profit to the Executive at the
expense of the Company; or
(d) willful
violation of any law, rule or regulation (other than traffic violations,
misdemeanors or similar offenses) or cease-and-desist order, court order,
judgment or supervisory agreement, which violation is materially and
demonstrably injurious to the Company.
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For
purposes of the preceding clauses, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith and without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon prior approval given by the Board or upon the
instructions or with the approval of the Executive's superior or based upon the
advice of counsel for the Company, shall be conclusively presumed to be done, or
omitted to be done, by the Executive in good faith and in the best interests of
the Company. The cessation of employment of the Executive shall not be deemed to
be for Cause unless and until there shall have been delivered to the Executive,
as part of the Notice of Termination, a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters (3/4) of the entire membership
of the Board at a meeting of the Board called and held for the purpose of
considering such termination (after reasonable notice is provided to the
Executive and the Executive is given an opportunity, together with counsel, to
be heard before the Board) finding that, in the good faith opinion of the Board,
the Executive is guilty of the conduct described in clause (a), (b), (c), or (d)
above, and specifying the particulars thereof in detail.
9.6 A
"Change
in Control" means
the occurrence of any of the following events:
(a) any
Person or Persons acting together, excluding employee benefit plans of the
Company, is or becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act or any successor provisions thereto), directly or
indirectly, of securities of the Company representing forty percent (40%) or
more of the combined voting power of the Company's then outstanding
securities;
(b) the
Company's stockholders approve (or, in the event no approval of the Company's
stockholders is required, the Company consummates) a merger, consolidation,
share exchange, division or other reorganization or transaction of the Company
(a "Fundamental Transaction") with any other corporation, other than a
Fundamental Transaction 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 sixty percent (60%) of the combined voting power
immediately after such Fundamental Transaction of (i) the Company's outstanding
securities, (ii) the surviving entity's outstanding securities, or
(iii) in the case of a division, the outstanding securities of each entity
resulting from the division;
(c) the
stockholders of the Company approve a plan of complete liquidation or winding-up
of the Company or an agreement for the sale or disposition (in one transaction
or a series of transactions) of all or substantially all of the Company's assets
(other than a transfer to a Subsidiary); or
(d) during
any period of twenty-four consecutive months, individuals who at the beginning
of such period constituted the Board (including for this purpose any new
director whose election or nomination for election by the Company's stockholders
was approved by a vote of at least two-thirds (2/3) of the directors then still
in office who were directors at the beginning of such period) cease for any
reason to constitute at least a majority of the Board.
9.7 "Code" means
the Internal Revenue Code of 1986, as amended from time to time.
9.8 "Coverage
Period" means
the period commencing on the date on which a Change in Control occurs and ending
on the second anniversary date thereof.
9.9 "Date
of Termination" has the
meaning assigned to such term in Section 7.1 hereof.
9.10 "Disability" means
the Executive’s total and permanent disability under the Company's long-term
disability plan or policy applicable to the Executive such that the Executive
becomes eligible to receive long-term disability benefits
thereunder.
9.11 "Exchange
Act" means
the Securities Exchange Act of 1934, as amended from time to time.
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9.12 "Excise
Tax" means
any excise tax imposed under Section 4999 of the Code.
9.13 "Good
Reason"
means:
(a) the
determination by the Executive made in good faith within the first twelve (12)
months immediately following a Change in Control that the Executive cannot
effectively carry out his duties to the Company, which determination shall be
made in a writing delivered to the Company; or
(b) the
occurrence during the Coverage Period of any of the following
events:
(i) the
assignment to the Executive of any duties inconsistent in any material respect
with the Executive's position, authority, duties or responsibilities immediately
prior to a Change in Control or any other action by the Company which results in
a diminution in any material respect in such position, authority, duties or
responsibilities, excluding for this purpose an isolated and inadvertent action
not taken in bad faith that is remedied by the Company promptly after receipt of
notice thereof given by the Executive;
(ii) a
reduction by the Company in the Executive's annual base salary as in effect on
the date hereof or as the same may be increased from time to time;
(iii) the
Company's requiring the Executive to be based at any office or location that is
more than thirty-five (35) miles from the Executive's office or location
immediately prior to a Change in Control;
(iv) the
failure by the Company (a) to continue in effect any compensation plan in which
the Executive participates immediately prior to a Change in Control that is
material to the Executive's total compensation, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been made with
respect to such plan, or (b) to continue the Executive's participation therein
(or in such substitute or alternative plan) on a basis not materially less
favorable, both in terms of the amount of benefits provided and the level of the
Executive's participation relative to other participants, than existed
immediately prior to the Change in Control;
(v) the
failure by the Company to continue to provide the Executive with benefits
substantially similar to those enjoyed by the Executive under any of the
Company's pension, life insurance, medical, health and accident, disability or
other welfare plans in which the Executive was participating immediately prior
to the Change in Control; or
(vi) the
failure by the Company to pay to the Executive any deferred compensation when
due under any deferred compensation plan or agreement applicable to the
Executive; or
(vii) the
failure by the Company to honor all the terms and provisions of this
Agreement.
9.14 "Monthly
Base Salary" means
the greater of one twelfth of (a) the Executive's highest annual base
salary in effect during the one (1) year period preceding a Change in Control
and (b) the Executive's highest annual base salary in effect during the one
(1) year period preceding the Executive's Date of Termination.
9.15 "Notice
of Termination" shall
have the meaning assigned to such term in Section 6.1 hereof.
9.16 "Person" shall
have the meaning given in Section 3(a)(9) of the Exchange Act and shall also
include any syndicate or group deemed to be a "person" under Section 13(d)(3) of
the Exchange Act.
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9.17 "Severance
Benefits" has the
meaning assigned to such term in Section 3 hereof.
9.18 "Subsidiary" means
any corporation controlled by the Company, directly or indirectly.
9.19 "Target
Percentage" means
the highest percentage that the annual bonus paid to the Executive for each of
the three most recently completed fiscal years of the Company represented of the
Executive’s annual base salary for such fiscal years.
9.20 "Termination
Year" means
the Company's fiscal year during which the Executive's Date of Termination
occurs.
9.21 "Triggering
Event" means
(a) the termination of the Executive's employment by the Company at any time
during the Coverage Period, other than a termination for Cause or a termination
due to the Executive's Disability or death or (b) a termination of the
Executive's employment by the Executive at any time during the Coverage Period
for Good Reason.
10. Modification
of Option Agreements.
While
this Agreement is in effect, the definition of “Cause” and “Good Reason” herein
shall apply for purposes of all stock option agreements entered into between the
Company and the Executive on or after the date hereof and (a) the Executive’s
employment shall not be treated as having been terminated without Cause for
purposes of any such stock option agreements unless the Executive has been
terminated for Cause hereunder, and (b) the Executive shall be deemed to have
terminated employment for Good Reason for purposes of such stock option
agreements if the Executive has terminated employment hereunder for Good
Reason.
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
officer, thereunto duly authorized, and the Executive has executed this
Agreement, all as of the day and year first above written.
GENVEC,
INC.
/s/Xxxx X.
Fischer____________________________________
By: Xxxx
X. Xxxxxxx
Title:
President and Chief Executive Officer
EXECUTIVE:
/s/Xxxxxxx
X. Swirsky__________________________________
Xxxxxxx
X. Xxxxxxx
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