EXHIBIT 10.9
AMENDED AND RESTATED
EXECUTIVE CHANGE IN CONTROL AGREEMENT
This Amended and
Restated Executive Change in Control Agreement (this
“Agreement”) is dated as of July 23, 2008 by and
between GTC Biotherapeutics, Inc. (the “Company”), a
Massachusetts corporation with its principal executive offices at
175 Crossing Boulevard, 4 th Floor, Suite 410, Framingham,
MA 01702-9322; and Richard A. Scotland (“Executive”)
hereby amends and restates in its entirety that Executive Change in
Control Agreement dated August 1, 2006 between the Company and
the Executive.
Executive is employed by the Company
and the Company and Executive desire to arrange for certain
provisions applicable in the event of termination of
Executive’s employment after a Change in Control of the
Company, as provided herein.
Accordingly, the parties hereto
agree as follows:
ARTICLE 1
TERMINATION FOLLOWING CHANGE IN
CONTROL
1.1 Termination of Employment
Following Change in Control . If a Change in Control of the
Company shall have occurred, Executive shall be entitled to the
benefits provided in Section 1.2 hereof upon the subsequent
termination of Executive’s employment within twelve
(12) months after the effective date of such Change in
Control, unless such termination is (a) because of
Executive’s death or Retirement, (b) by the Company for
Cause or (c) by Executive other than for Good Reason. For
purposes of this Agreement:
(a) “Cause” shall mean
(i) Executive’s breach of any material duty or
obligation hereunder after written notice of such breach has been
given to the Executive by the Board of Directors or Chief Executive
Officer of the Company and such breach shall have continued for
thirty (30) days after receipt of such notice, or intentional
or grossly negligent conduct that is materially injurious to GTC,
as determined in good faith by GTC’s Board of Directors, or
(ii) willful failure to follow the reasonable directions of
GTC’s Board of Directors or Chief Executive Officer after
written notice of such failure has been given to the Executive and
such failure shall have continued for thirty (30) days after
receipt of such notice.
(b) “Change in Control of the
Company” shall mean:
(i) the acquisition by any
“person” (as such term is defined in
Section 3(a)(9) of the Securities Exchange Act of 1934) from
any party of an amount of the Company’s Common Stock so that
it holds or controls 50% or more of the Company’s Common
Stock;
(ii) a merger or similar combination
after which 50% or more of the voting stock of the surviving
corporation is held by persons who were not stockholders of the
Company immediately prior to such merger or combination;
(iii) the election by the
stockholders of the Company of 50% or more of the directors of the
Company other than pursuant to nomination by the Company’s
independent directors or any committee thereof; or
(iv) the sale by the Company of all
or substantially all of its assets or business.
(c) “Good Reason” shall
mean any of the following:
(i) any change in the duties
assigned to Executive, without Executive’s express written
consent, that represents a material diminution of Executive’s
duties and responsibilities with the Company in effect immediately
prior to the Change in Control; provided, however, that a mere
change in Executive’s title or reporting relationships shall
not constitute “Good Reason”;
(ii) a reduction by the Company in
Executive’s Base Salary as in effect on the date hereof or as
the same may be increased from time to time, except as otherwise
agreed by Executive;
(iii) the Company requiring
Executive to be based anywhere other than within sixty
(60) miles of Executive’s office location immediately
prior to the Change in Control, except for required travel on the
Company’s business to an extent substantially consistent with
Executive’s business travel obligations in the twelve
(12) months immediately prior to the Change in Control,
without Executive’s express written consent; or
(iv) the failure by the Company to
obtain the assumption of and agreement to perform this Agreement by
any successor as contemplated in Section 4.8
hereof;
provided , however , that upon the occurrence of
any event giving rise to any of the foregoing conditions, the
Executive must provide written notice to the Company of the
existence of the good reason condition within ninety (90) days
of its initial existence, and the Company shall have a period of
thirty (30) days to cure the condition giving rise to such
notice. In the event the Company cures or corrects the specific
Good Reason condition within the time period specified above, Good
Reason termination shall not be deemed to exist with respect to the
specific condition set forth in the written notice.
(d) “Retirement” shall
mean termination of Executive’s employment in accordance with
the Company’s retirement policy, including early retirement,
generally applicable to its salaried employees.
1.2 Payments Upon Termination
Without Cause, For Good Reason, Following Change in Control .
If, within twelve (12) months after a Change in Control of the
Company, Executive’s employment is terminated (a) by the
Company or its successor in interest other than for Cause or
Retirement or (b) by Executive for a Good Reason, then
Executive shall be entitled to the benefits provided
below:
(a) Back Salary Payment . The
Company shall pay Executive any unpaid Base Salary accrued through
the date of termination at the rate in effect at the time notice of
termination is given, plus credit for any vacation earned but not
taken and the amount, if any, and any bonus awarded for the past
fiscal year which has not yet been paid to Executive;
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(b) Severance Payment . The
Company shall pay Executive an aggregate severance amount (the
“Severance Amount”) equal to (i) twelve
(12) months of Base Salary in effect on the date of
termination and (ii) an amount equal to Executive’s
incentive bonus most recently paid to him, pro rated on the basis
of the number of days that have elapsed between the beginning of
the bonus period in which such termination occurs and the date of
termination, which Severance Amount shall be payable in
substantially equal monthly installments, over the twelve
(12)-month period following the date of termination, with the first
installment being paid within thirty (30) days following the
date of termination and continuing for the full period provided
herein notwithstanding the death of Executive during such
period;
(c) Continuation
of Benefits . The Company shall maintain in full force and
effect, for Executive’s continued benefit until the earlier
of (a) the end of the 12 th calendar month following the
date of termination of employment or (b) Executive’s
commencement of full time employment with a new employer, all life
insurance, medical, health and accident insurance, and disability
plans, programs or arrangements in which Executive was entitled to
participate immediately prior to the date of termination, provided
that Executive’s continued participation is possible under
the general terms and provisions of such plans and programs. In the
event that Executive’s participation in any such plan or
program is barred, the Company shall arrange to provide Executive
with benefits substantially similar to those which Executive was
entitled to receive under such plans and programs at its expense.
If the Company provides the Executive with any health, dental or
other benefits under or outside of its plans and such benefits are
taxable to the Executive, the Company’s payment for any such
benefit shall be equal to the cost of such benefit and shall be
paid on a monthly basis; and
(d) Accelerated Vesting of Stock
Options . Any stock options to purchase Common Stock of the
Company then held by Executive on the date of termination which are
then subject to vesting shall, notwithstanding any contrary
provision in this Agreement or the Plan pursuant to which such
options had been granted, become fully vested and exercisable on
the date of termination.
1.3 Limitation on Benefit
Payments . In the event that any payment or
