Exhibit 10.76
ANESIVA, INC.
AMENDED AND RESTATED EXECUTIVE
CHANGE IN CONTROL AND
SEVERANCE BENEFIT
PLAN
SECTION 1. I
NTRODUCTION
.
The Anesiva, Inc. Amended and
Restated Executive Change in Control and Severance Benefit Plan
(the “ Plan ”) has been established
effective July 29, 2005 (the “ Effective
Date ”) and amended March 31, 2008 and
January 20, 2009. The purpose of the Plan is to provide for
the payment to certain eligible executive employees of Anesiva,
Inc. (the “ Company ”) of certain
benefits in the event of a Change in Control (as such term is
defined below) as well as severance benefits in the event that such
employees are subject to qualifying employment terminations in
connection with a Change in Control. This Plan shall supersede any
change in control or severance benefit plan, policy, or practice
previously maintained by the Company, other than an individually
negotiated contract or agreement with the Company relating to
change in control or severance benefits that is in effect on the
effective date of a Change in Control or an employee’s
termination date which provides benefits that the Plan
Administrator (as such term is defined below), in its sole
discretion, determines to be of greater value than the benefits
provided for in this Plan, in which case such employee’s
change in control benefit or severance benefit, if any, shall be
governed by the terms of such individually negotiated employment
contract or agreement and shall be governed by this Plan only to
the extent that the reduction pursuant to Section 5(b) below
does not entirely eliminate benefits under this Plan. This Plan
shall not supersede any benefit provided pursuant to an equity
compensation plan or program maintained by the Company. This
document also constitutes the Summary Plan Description for the
Plan.
SECTION 2. D
EFINITIONS
.
For purposes of the Plan, the
following terms are defined as follows:
(a) “ Base Salary ” means
the Eligible Employee’s annual base pay (excluding incentive
pay, premium pay, commissions, overtime, bonuses and other forms of
variable compensation), at the rate in effect during the last
regularly scheduled payroll period immediately preceding the date
of the Eligible Employee’s Covered Termination.
(b) “ Board ” means the
Board of Directors of Anesiva, Inc.
(c) “ Change in Control ”
means the occurrence of any one or more of the following
events:
(i) any transaction or series of related
transactions resulting in the sale or issuance of securities or any
rights to securities of the Company representing in the aggregate
more than fifty percent (50%) of the Company’s issued
and outstanding voting securities, on a fully diluted basis, or any
transaction or series of related transactions resulting in the
sale, transfer, assignment or other conveyance or disposition of
any securities or any rights to securities of the Company by any
holder or holders thereof representing in the aggregate more than
fifty percent (50%) of the issued and outstanding voting
securities of the Company;
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(ii) a merger, consolidation, reorganization,
recapitalization or share exchange (whether or not the Company is
the surviving and continuing entity) in which the stockholders or
equityholders of the Company immediately prior to such transaction
receive, in exchange for securities of the Company owned by them
(whether alone or together with cash, property or other
securities), cash, property or securities of the resulting or
surviving entity and as a result thereof persons who were holders
of voting securities of the Company immediately prior to such
transaction hold less than fifty percent (50%) of the issued
and outstanding capital stock of the resulting or surviving entity
entitled to vote in the election of directors, managers or similar
governing body or otherwise;
(iii) a sale, transfer, exclusive license, exclusive
partnering arrangement or other disposition in a single transaction
or series of related transactions of fifty percent (50%) or
more of the assets of the Company and its subsidiaries, on a
consolidated basis, other than sales of inventory in good faith to
customers for fair value in the ordinary course of business and
dispositions of obsolete equipment not used or useful in the
business of the Company and its subsidiaries; and
(iv) a sale, transfer, exclusive license, exclusive
partnering arrangement or other disposition in a single transaction
or series of related transactions of the Company’s Adlea
assets.
The term Change in Control shall not
include a sale of assets, merger or other transaction effected
exclusively for the purpose of changing the domicile of the
Company. Once a Change in Control has occurred, no future events
shall constitute a Change in Control for purposes of the
Plan.
(d) “ Change in Control Proceeds
” means, with respect to any Change in Control and without
duplication, all cash and the fair market value on the effective
date of the Change in Control, as determined in good faith by the
Board, of all other property paid or payable directly or indirectly
by a third party or the Company to the Company’s stockholders
(or to the Company in the case of a Change in Control structured as
an asset sale, exclusive license or similar transaction) in
consideration for their shares or any debt or equity-linked
securities (e.g., warrants and options) held by the Company’s
stockholders or any third party debt holders or holders of
equity-linked securities (or in consideration of the assets of the
Company in the case of a Change in Control structured as an asset
sale, exclusive license or similar transaction), including, without
limitation, amounts paid into escrow or subject to earn-outs or
other contingencies, but expressly excluding (i) amounts
payable to financial brokers or advisors in connection with any
Change in Control or any other legal, accounting, investment
banking, advisory or other third party fees or costs incurred by
the Company or its affiliates in connection with the Change in
Control, or (ii) the payment of principal and interest (but
specifically not including any amount that may be due pursuant to
Section 8.2 of the Securities Purchase Agreement, dated
January 20, 2009 (the “ Purchase Agreement
”)) to the holders of those certain Securities issued
pursuant to the Purchase Agreement (the “
Securities ”), or (iii) amounts payable
under this Plan. For avoidance of doubt, Change in Control Proceeds
shall not include (x) any amounts payable in cash or other
consideration under consulting, employment or other arrangements
between any acquirer and any employee, former employee, director or
consultant of the Company or any of its affiliates for services
rendered or to be rendered after the Change in Control or
(y) the value of any Company debt repaid or assumed by the
acquirer in connection with the Change in Control, other than any
amount due pursuant to Section 8.2 of the Purchase Agreement
to holders of the Securities.
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(e) “ COBRA ” means the
Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended.
(f) “ Code ” means the
Internal Revenue Code of 1986, as amended.
(g) “ Company ” means
Anesiva, Inc. or, following a Change in Control, the surviving
entity resulting from such transaction.
(h) “ Constructive Termination
” means a voluntary termination of employment by an Eligible
Employee after one of the following is undertaken without the
Eligible Employee’s express written consent:
(i) the assignment to the Eligible Employee of any
duties or responsibilities which results in a significant
diminution in the Eligible Employee’s function as in effect
immediately prior to the effective date of the Change in Control;
provided, however, that a mere change in the Eligible
Employee’s title shall not constitute a Constructive
Termination;
(ii) a five percent (5%) or greater reduction by
the Company in an Eligible Employee’s annual base salary, as
in effect on the effective date of the Change in
Control;
(iii) any failure by the Company to continue in effect
any benefit plan or program, including fringe benefits, incentive
plans and plans with respect to the receipt of securities of the
Company, in which an Eligible Employee is participating immediately
prior to the effective date of the Change in Control (hereinafter
referred to as “ Benefit Plans ”); or the
taking of any action by the Company that would adversely affect an
Eligible Employee’s participation in or reduce the Eligible
Employee’s benefits under the Benefit Plans; provided,
however, that a “Constructive Termination” shall
not exist under this paragraph following a Change in Control if the
Company offers a range of benefit plans and programs which, taken
as a whole, are comparable to the Benefit Plans; or
(iv) a relocation of an Eligible Employee’s
business office to a location more than thirty-five (35) miles
from the location at which the Eligible Employee performs duties as
of the effective date of the Change in Control, except for required
travel by the Eligible Employee on the Company’s business to
an extent substantially consistent with the Eligible
Employee’s business travel obligations prior to the Change in
Control.
(i) “ Covered Termination
” means either (A) an Involuntary Termination Without
Cause which occurs within three (3) months prior to or twelve
(12) months following the effective date of a Change in
Control, or (B) a Constructive Termination which occurs within
twelve (12) months following the effective date of a Change in
Control. Termination of employment of an Eligible Employee due to
death or disability shall not constitute a Covered Termination
unless a voluntary termination of employment by the Eligible
Employee immediately prior to the Eligible Employee’s death
or disability would have qualified as a Constructive
Termination.
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(j) “ Eligible Employee ”
means an individual (A) who is employed by the Company as an
officer; and (B) who is designated by the Board as an Eligible
Employee.
(k) “ Entity ” means a
corporation, partnership or other entity.
(l) “ ERISA ” means the
Employee Retirement Income Security Act of 1974, as
amended.
(m) “ Involuntary Termination Without
Cause ” means an involuntary termination by the
Company of an Eligible Employee’s employment relationship
with the Company for any reason other than the
following:
(i) the Eligible Employee has committed an act that
materially injures the business of the Company;
(ii) the Eligible Employee has refused or failed to
follow lawful and reasonable directions of the Board or the
appropriate individual to whom the Eligible Employee reports,
without cure within fifteen (15) days following receipt by the
Eligible Employee of written notice from the Company or the Board
specifying the particulars of the Eligible Employee’s
conduct;
(iii) the Eligible Employee has willfully or
habitually neglected the Eligible Employee’s duties with the
Company, without cure within fifteen (15) days following
receipt by the Eligible Employee of written notice from the Company
or the Board specifying the particulars of the Eligible
Employee’s conduct;
(iv) the Eligible Employee has been convicted of a
felony; or
(v) the Eligible Employee has committed a fraud,
misappropriation, embezzlement or other act of gross dishonesty
that resulted in loss, damage or injury to the Company.
(n) “ Own, ” “
Owned, ” “ Owner, ”
“ Ownership ” A person or Entity shall be
deemed to “Own,” to have “Owned,” to be the
“Owner” of, or to have acquired “Ownership”
of securities if such person or Entity, directly or indirectly,
through any contract, arrangement, understanding, relationship or
otherwise, has or shares voting power, which includes the power to
vote or to direct the voting, with respect to such
securities.
(o) “ Plan Administrator ”
means the Board or any committee duly authorized by the Board to
administer the Plan. The Plan Administrator may, but is not
required to be, the Compensation Committee of the Board. The Board
may at any time administer the Plan, in whole or in part,
notwithstanding that the Board has previously appointed a committee
to act as the Plan Administrator.
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(p) “ Pro Rata Amount ”
means the percentage of Change in Control Proceeds for each
Eligible Employee designated by the Board.
(q) “ Subsidiary ” means,
with respect to the Company, (A) any corporation of which more
than fifty percent (50%) of the outstanding capital stock
having ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether, at the
time, stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of any
contingency) is at the time, directly or indirectly, Owned by the
Company, and (B) any partnership in which the Company has a
direct or indirect interest (whether in the form of voting or
participation in profits or capital contribution) of more than
fifty percent (50%).
SECTION 3. E
LIGIBILITY
F OR B ENEFITS .
(a) General Rules.
Subject to the limitations set forth
in this Section 3 and Section 5, in the event of a
Covered Termination, the Company shall provide the severance
benefits described in Section 4 to each effected Eligible
Employee.
(b) Exceptions to Benefit
Entitlement. An employee,
including an employee who otherwise is an Eligible Employee, will
not receive benefits under the Plan (or will receive reduced
benefits under the Plan) in the following circumstances, as
determined by the Plan Administrator in its sole
discretion:
(i) With respect to the benefits provided pursuant
to Section 4(a)(i):
(1) The employee has executed an individually
negotiated employment contract or agreement with the Company
relating to change in control benefits (except those provided
pursuant to an equity compensation plan or program maintained by
the Company) that is in effect on the effective date of a Change in
Control and which provides benefits that the Plan Administrator, in
its sole discretion, determines to be of greater value than the
benefits provided for in this Plan, in which case such
employee’s change in control benefit, if any, shall be
governed by the terms of such individually negotiated employment
contract or agreement and shall be governed by this Plan only to
the extent that the reduction pursuant to Section 5(b) below
does not entirely eliminate benefits under this Plan.
(ii) With respect to the benefits provided pursuant
to Section 4(a)(ii):
(1) The employee has executed an individually
negotiated employment contract or agreement with the Company
relating to severance or change in control benefits (except those
provided pursuant to an equity compensation plan or program
maintained by the Company) that is in effect on his or her
termination date and which provides benefits that the Plan
Administrator, in its sole discretion, determines to be of greater
value than the benefits provided for in this Plan, in which case
such employee’s severance or change in control benefit, if
any, shall be governed by the terms of such individually negotiated
employment contract or agreement and shall be governed by this Plan
only to the extent that the reduction pursuant to Section 5(b)
below does not entirely eliminate benefits under this
Plan.
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(2) The employee is entitled to receive benefits
under another severance benefit plan maintained by the Company (
e.g. , the Anesiva, Inc. Severance Benefit Plan).
(3) The employee’s employment terminates or is
terminated for any reason other than a Covered
Termination.
(4) The employee voluntarily terminates employment
with the Company in order to accept employment with another entity
that is controlled (directly or indirectly) by the Company or is
otherwise an affiliate of the Company.
(5) The employee does not confirm in writing that he
or she shall be subject to the Company’s proprietary
information or confidentiality agreement with the
Company.
(6) The employee is rehired by the Company prior to
the date benefits under the Plan are scheduled to
commence.
(7) The employee is offered an identical or
substantially equivalent or comparable position with the Company or
a successor pursuant to a Change in Control. For purposes of the
foregoing, a “substantially equivalent or comparable
position” is one that offers the employee substantially the
same level of responsibility and compensation; provided,
however , that an employee shall not be considered to be
offered a “substantially equivalent or comparable
position” if a voluntary termination by the employee would
constitute Constructive Termination.
(c) Termination of
Benefits. An Eligible
Employee’s right to receive benefits under this Plan shall
terminate immediately if, at any time prior to or during the period
for which the Eligible Employee is receiving benefits hereunder,
the Eligible Employee, without the prior written approval of the
Plan Administrator:
(i) With respect to the benefits provided pursuant
to Section 4(a)(i):
(1) willfully breaches a material provision of the
Eligible Employee’s proprietary information or
confidentiality agreement with the Company.
(ii) With respect to the benefits provided pursuant
to Section 4(a)(ii):
(1) willfully breaches a material provision of the
Eligible Employee’s proprietary information or
confidentiality agreement with the Company, as referenced in
Section 3(b)(v);
(2) encourages or solicits any of the
Company’s then current employees to leave the Company’s
employ for any reason or interferes in any other manner with
employment relationships at the time existing between the Company
and its then current employees; or
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(3) induces any of the Company’s then current
clients, customers, suppliers, vendors, distributors, licensors,
licensees or other third party to terminate their existing business
relationship with the Company or interferes in any other manner
with any existing business relationship between the Company and any
then current client, customer, supplier, vendor, distributor,
licensor, licensee or other third party.
SECTION 4. A
MOUNT OF B ENEFITS .
(a) Benefits.
The Company shall provide benefits
to each Eligible Employee in an amount equal to the greater of the
amounts set forth in Section 4(a)(i) or 4(a)(ii) set forth
below, as applicable.
(i) Cash Payment in a Change in
Control. In the event a
Change in Control occurs, the Company shall provide the benefits in
this Section 4(a)(i).
(1) In the event Change in Control Proceeds are less
than or equal to $30,000,000, such Eligible Employee’s Pro
Rata Amount of an aggregate of 9.0% of the Change in Control
Proceeds;
(2) In the event Change in Control Proceeds are
greater than $30,000,000 but less than or equal to $50,000,000,
such Eligible Employee’s Pro Rata Amount of an aggregate of
10.0% of the Change in Control Proceeds;
(3) In the event Change in Control Proceeds are
greater than $50,000,000 but less than or equal to $100,000,000,
such Eligible Employee’s Pro Rata Amount of an aggregate of
11.0% of the Change in Control Proceeds; or
(4) In the event Change in Control Proceeds are
greater than $100,000,000, such Eligible Employee’s Pro Rata
Amount of an aggregate of 12.0% of the Change in Control
Proceeds.
(ii) Benefits in Connection with
a Covered Termination. In
the event an Eligible Employee’s employment with the Company
terminates due to a Covered Termination, the Company shall provide
the benefits in this Section 4(a)(ii).
(1) Cash Severance
Benefits. The Company
shall make cash severance payments to each Eligible Employee in an
amount equal to the following:
a. For the CEO (i) two times the Eligible
Employee’s Base Salary, as in effect on the date of a Covered
Termination, or, if higher, as in effect immediately prior to the
Change in Control, plus (ii) the Eligible Employee’s
maximum annual target cash bonus, as in effect on the date of a
Covered Termination, or, if higher, as in effect immediately prior
to the Change in Control (the “Target
Bonus”).
b. For officers other than the CEO (i) one
times the Eligible Employee’s Base Salary, as in effect on
the date of a Covered Termination, or, if higher, as in effect
immediately prior to the Change in Control, plus (ii) the
Eligible Employee’s Target Bonus, as defined above
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(2) Health Continuation
Coverage.
a. Provided that the Eligible Employee is eligible
for, and has made an election at the time of the Covered
Termination pursuant to COBRA under a health, dental, or vision
plan sponsored by the Company, each such Eligible Employee shall be
entitled to payment by the Company of all of the applicable
premiums (inclusive of premiums for the Eligible Employee’s
dependents for such health, dental, or vision plan coverage as in
effect immediately prior to the date of the Covered Termination)
for such health, dental, or vision plan coverage for a period of
six (6) months following the date of the Covered Termination,
with such coverage counted as coverage pursuant to
COBRA.
b. No such premium payments (or any other payments
for health, dental, or vision coverage by the Company) shall be
made following the effective date of the Eligible Employee’s
coverage by a health, dental, or vision insurance plan of a
subsequent employer. Each Eligible Employee shall be required to
notify the Plan Administrator immediately if the Eligible Employee
becomes covered by a health, dental, or vision insurance plan of a
subsequent employer. Upon the conclusion of such period of
insurance premium payments made by the Company, the Eligible
Employee will be responsible for the entire payment of premiums
required under COBRA for the duration of the COBRA
period.
c. For purposes of this Section 4(a)(ii)(2),
(A) references to COBRA shall be deemed to refer also to
analogous provisions of state law, and (B) any applicable
insurance premiums that are paid by the Company shall not include
any amounts payable by the Eligible Employee under an Internal
Revenue Code Section 125 health care reimbursement plan, which
amounts, if any, are the sole responsibility of the Eligible
Employee.
(3) Outplacement
Assistance. Each Eligible
Employee shall receive outplacement services for a period of three
months to assist the Eligible Employee in finding new employment.
Such services shall commence not later than three months after the
Eligible Employee’s termination date.
(4) Other Employee
Benefits. All other
benefits (such as life insurance, disability coverage, and 401(k)
plan coverage) shall terminate as of the Eligible Employee’s
termination date (except to the extent that a conversion privilege
may be available thereunder).
(5) Additional
Benefits. Notwithstanding
the foregoing, the Plan Administrator may, in its sole discretion,
provide benefits in addition to those pursuant to Sections
4(a)(ii)(1), 4(a)(ii)(2), and 4(a)(ii)(3) to Eligible Employees or
employees who are not Eligible Employees (“
Non-Eligible Employees ”) chosen by the Plan
Administrator, in its sole discretion, and the provision of any
such benefits to an Eligible Employee or a Non-Eligible Employee
shall in no way obligate the Company to provide such benefits to
any other Eligible Employee or to any other Non-Eligible Employee,
even if similarly situated. If benefits under the Plan are provided
to a Non-Eligible Employee, references in the Plan to
“Eligible Employee” (with the exception of Sections
4(a)(ii)(1), 4(a)(ii)(2), and 4(a)(ii)(3)) shall be deemed to refer
to such Non-Eligible Employee.
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SECTION 5. L IMITATIONS ON B ENEFITS .
(a) Release.
In order to be eligible to receive
benefits under Section 4 of the Plan, an Eligible Employee
must execute a general waiver and release in substantially the form
attached hereto as Exhibit A , Exhibit B , or
Exhibit C , as appropriate, and such release must become
effective in accordance with
