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Exhibit
10.67
NUVELO,
INC.
EXECUTIVE CHANGE IN
CONTROL AND SEVERANCE BENEFIT PLAN
As Amended August 1,
2007 (the “Amendment Date”).
The Nuvelo, Inc. Executive
Change in Control and Severance Benefit Plan (the
“Plan”), as established effective December 14,
2004 (the “Effective Date”) and amended from time to
time, is intended to provide for the payment of severance benefits
and/or change in control benefits to certain eligible employees of
Nuvelo, Inc. and its wholly owned subsidiaries (collectively,
“Nuvelo”). The Plan supersedes and replaces in its
entirety any change in control and/or severance arrangement adopted
by Nuvelo. This Plan also is intended to supersede any unwritten
severance plan, policy, or practice of Nuvelo and any unwritten
change of control plan, policy or practice of Nuvelo. However,
except as provided herein, this Plan does not supersede any written
agreement between Nuvelo and any employee that provides for
payments or benefits in the event of termination of employment or a
change in control of Nuvelo. This Plan may, however, provide for
certain offsets or reduction of benefits under this Plan on account
of such other benefits. This document also is the Summary Plan
Description for the Plan.
For purposes of the Plan, the
following terms are defined as follows:
(a) “Alternative
Benefits” means Covered Benefits that are provided by a
program, plan, agreement, or arrangement other than this Plan.
Accordingly, for example, an “Alternative Cash Severance
Benefit” means a Cash Severance Benefit that is an
Alternative Benefit and an “Alternative Continued Medical
Benefit” means a Continued Medical Benefit that is an
Alternative Benefit. Notwithstanding the foregoing, a benefit that
is designated an Alternative Benefit in a Participant’s
Participation Notice shall be deemed to be an Alternative Benefit
with respect to such Participant, and a benefit that is designated
as not an Alternative Benefit in a Participant’s
Participation Notice shall not be deemed to be an Alternative
Benefit with respect to such Participant. Any benefit provided to a
Participant other than by this Plan which is not addressed in the
Participant’s Participation Notice shall be deemed to be an
Alternative Benefit if such benefit is described in the first
sentence of this Section 2(a).
(b) “Base Salary
Amount” means the greater of (i) the
Participant’s base salary as determined on a monthly basis at
the time of the Covered Termination multiplied by twelve (12), or
(ii) the greatest amount of base salary received by the
Participant in any consecutive twelve (12) month period that
occurred within the thirty-six (36) month period immediately
preceding the Covered Termination. For clarity purposes, any amount
that a Participant elects to have withheld from the
Participant’s base salary, for example, contributions to any
current or future plan qualified under Section 401(k) of the
Code or any nonqualified deferred compensation plan (collectively
“Elective Deferral Plans”) shall not reduce the
Participant’s Base Salary Amount.
(c) “Base Severance
Benefit” means the Participant’s Base Salary
Amount. Except as may be set forth in the Participant’s
Participation Notice, in the event the Participant has received, or
is entitled to and has not waived, an Alternative Cash Severance
Benefit, the Base Severance Benefit shall be reduced (but not below
zero) by the amount of the Alternative Cash Severance
Benefit.
(d)
“Board” means the Board of Directors of
Nuvelo.
(e) “Bonus
Amount” means the highest level of Bonuses Received by
the Participant in any consecutive eleven (11) month period
that occurred within the thirty-six (36) month period
immediately preceding the Covered Termination. “Bonuses
Received” means any cash bonuses paid to a Participant
pursuant to a cash bonus plan or program and shall not include, for
example, amounts received pursuant to restricted stock, restricted
stock units, or stock appreciation rights whether or not such
awards are paid or settled in cash.
(f) “Bonus Severance
Benefit ” means the Participant’s Bonus Amount.
Except as may be set forth in the Participant’s Participation
Notice, in the event the Participant has received, or is entitled
to and has not waived, an Alternative Cash Severance Benefit, the
Bonus Severance Benefit shall be reduced (but not below zero) by
the amount of the excess, if any, of Alternative Cash Severance
Benefit over the Base Severance Benefit.
(g) “Change in
Control” is defined as one or more of the following
events:
(i) there is
consummated a sale or other disposition of all or substantially all
of the assets of Nuvelo, as determined on a consolidated basis
(other than a sale to an entity where at least fifty percent
(50%) of the combined voting power of the voting securities of
such entity are owned by the stockholders of Nuvelo immediately
after such sale or other disposition in substantially the same
proportions as their ownership of Nuvelo immediately prior to such
sale or other disposition); or
(ii) there is
consummated a merger, consolidation or similar transaction
involving (directly or indirectly) Nuvelo, and, immediately after
the consummation of such transaction, the stockholders of Nuvelo
immediately prior to the consummation of such transaction do not
directly or indirectly own, immediately after the consummation of
such transaction, outstanding voting securities representing at
least fifty percent (50%) of the combined outstanding voting
power of the surviving entity in such transaction or at least fifty
percent (50%) of the combined outstanding voting power of the
parent of the surviving entity in such transaction, in each case in
substantially the same proportions as their ownership of Nuvelo
immediately prior to such transaction; or
(iii) any person,
entity or group (other than Nuvelo, a subsidiary or affiliate of
Nuvelo, or a Nuvelo employee benefit plan, including any trustee of
such plan acting as trustee) becomes the beneficial owner, directly
or indirectly, of securities of Nuvelo representing at least fifty
percent (50%) of the combined voting power of Nuvelo’s
then-outstanding securities, other than by virtue of a merger,
consolidation or similar transaction; or
(iv) the individuals
who, at the beginning of any period of twelve (12) months or
less, constituted the Board of Directors of Nuvelo cease, for any
reason, to constitute at least a majority thereof, unless the
election or nomination for election of each new director was
approved by the vote of at least a majority of the directors then
still in office who were directors at the beginning of such
period.
(h) “Change in
Control Severance” means any Covered Termination of a
Participant that occurs during the one (1) month prior to or
during the twelve (12) months after a Change in
Control.
(i) “Code”
means the Internal Revenue Code of 1986, as amended.
(j) “Constructive
Termination” means the Participant’s resignation
from all positions he or she then holds with Nuvelo if one or more
of the following events occur without the Participant’s
express written consent:
(i) the assignment to
the Participant of duties or responsibilities that results in a
material diminution in the Participant’s authority, duties,
position, status, or responsibilities with Nuvelo as in effect at
any time during the twelve (12) month period preceding such
assignment;
(ii) a material
reduction in the Participant’s base salary;
(iii) a change in the
Participant’s business location that results in a round trip
increase in the Participant’s daily commute of more than 35
miles, except for required travel for Nuvelo’s business to an
extent substantially consistent with Participant’s prior
business travel obligations;
(iv) a material breach
by Nuvelo of any provisions of the Plan or any enforceable written
agreement between Nuvelo and the Participant; or
(v) any failure by
Nuvelo to obtain assumption of the Plan by any successor to, or
assignee of, Nuvelo.
Notwithstanding the
foregoing, a voluntary termination shall not be deemed a
Constructive Termination unless (x) the Participant provides
Nuvelo with written notice (the “Constructive Termination
Notice”) that the Participant believes that an event
described in this Section 2(j) has occurred, (y) the
Constructive Termination Notice is given within thirty
(30) days after the date the event occurred, and
(z) Nuvelo does not rescind or cure the conduct giving rise to
the event described in this Section 2(j) within thirty
(30) days of receipt by Nuvelo of the Constructive Termination
Notice, in which case the date of Constructive Termination shall be
deemed the date on which that thirty (30) day period
expires.
(k) “Continuation
Period” means the twelve (12) month period running
from the date of the Covered Termination.
(l) “Continued
Medical Benefits” means the Nuvelo’s contributions
toward the cost of continuation coverage under COBRA as provided
under Sections 5(c) and 6(d).
(m) “Covered
Benefits” means the following benefits: (i) Base
Severance Benefit, (ii) Bonus Severance Benefit,
(iii) Continued Medical Benefits and (iv) accelerated
vesting of Nuvelo Stock Awards.
(n) “Covered
Termination” means an Involuntary Termination Without
Cause or a Constructive Termination. Termination of employment of a
Participant due to death or disability shall not constitute a
Covered Termination unless a voluntary termination of employment by
the Participant immediately prior to the Participant’s death
or disability would have qualified as a Constructive
Termination.
(o) “Eligible
Employee” means all executive employees at the level of
Vice President of Nuvelo or above. In addition to the foregoing,
“Eligible Employee” means any other current or former
employee of Nuvelo (x) who has been designated by the Board as
eligible for benefits under the Plan and (y) whose highest
seniority level was at least the equivalent of a Vice President;
provided, however , that the Board shall not designate more
than ninety-nine (99) persons as Eligible Employees at any one
time.
(p)
“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended.
(q) “Involuntary
Termination Without Cause” means an involuntary
termination of employment by Nuvelo other than for one of the
following reasons:
(i) a refusal or
failure to follow the lawful and reasonable directions of the Board
or individual to whom the Participant reports, which refusal or
failure is not cured within 30 days following delivery of written
notice of such conduct to the Participant;
(ii) a material
failure by the Participant to perform his or her duties in a manner
reasonably satisfactory to the Board that is not cured within 30
days following delivery of written notice of such failure to the
Participant; or
(iii) participation
in, a conviction of, or a plea of guilty or nolo contendere
to a felony or any crime involving moral turpitude, fraud, or
dishonesty that is likely to have or has had a material adverse
effect on Nuvelo.
Termination of employment of
a Participant due to death or disability shall not constitute an
Involuntary Termination.
(r)
“Option” means any and all options granted to a
Participant by Nuvelo, in exchange for the performance of services,
to acquire common stock of Nuvelo, other than any options granted
to a Participant which expressly provide that this Plan shall not
apply to such option.
(s)
“Participant” means an Eligible Employee who has
received a Participation Notice that the employee is eligible to
receive benefits pursuant to this Plan.
(t) “Participation
Notice” means the latest notice delivered by Nuvelo to an
Eligible Employee informing the employee that the employee is
eligible for Covered Benefits. A Participation Notice shall be in
such form as may be determined by Nuvelo. Notwithstanding
the
foregoing, neither Nuvelo nor any
successor may amend a Participation Notice in any way that is
adverse to a Participant, without the written consent of the
Participant, unless (x) the amendment is made more than six
(6) months prior to an applicable Covered Termination or
Change in Control and (y) the amendment does not reduce any
benefits the Participant would receive under the Plan to an amount
that is less than the benefits the Participant would receive if the
amended Participation Notice did not address such
benefit.
(u) “Plan
Administrator” means the Board or any committee duly
authorized by the Board to administer the Plan. The Plan
Administrator may be, 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.
(v) “Regular
Severance” means any Covered Termination that is not a
Change in Control Severance.
(w) “Stock
Award” means any and all compensatory stock awards
(including Options) and stock rights (including, without
limitation, restricted stock, restricted stock units and stock
appreciation rights) granted to a Participant with respect to
Nuvelo stock in exchange for services rendered or to be rendered to
Nuvelo and which entitle the Participant to receive either common
stock of Nuvelo or some other pecuniary benefit determined by
reference to Nuvelo common stock, other than any stock awards
granted to a Participant which expressly provide that this Plan
shall not apply to such Stock Awards.
(x)
“Vested” means that the Stock Award is, in the case
of an Option, exercisable in full and, in the case of all other
Stock Awards, that the Stock Award is not subject to Nuvelo’s
right (whether conditional or unconditional) to reacquire the Stock
Award due to forfeiture or repurchase at less than the fair market
value of the stock or Stock Award.
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E LIGIBILITY F OR B
ENEFITS . |
(a) General Rules.
Subject to the provisions set forth in this Section and
Section 7, in the event of a Change in Control, Nuvelo will
provide the Change in Control benefits described in Sections 4 and
5 of the Plan to the affected Participants. Subject to the
provisions set forth in this Section and Section 7, in the
event of a Regular Severance, Nuvelo will provide the severance
benefits described in Section 6 of the Plan to the affected
Participant.
(b) Exceptions to Benefit
Entitlement. An employee who otherwise is a Participant will
not receive benefits under the Plan in any of the following
circumstances, as determined by Nuvelo in its sole
discretion:
(i) The employee
voluntarily terminates employment with Nuvelo in order to accept
employment with another entity that is controlled (directly or
indirectly) by Nuvelo or is otherwise an affiliate of
Nuvelo.
(ii) The Participant
does not confirm in writing that Participant shall be subject to
Nuvelo’s Confidential Information Agreement (and any other
proprietary information or confidentiality agreement of similar
effect).
(iii) Except as may be
set forth in a Participant’s Participation Notice, the
Participant shall not be entitled to receive the benefits set forth
in Sections 5(c) or 6(d) if the Participant has either
(i) previously received an Alternative Continued Medical
Benefit or (ii) is eligible for and has not waived an
Alternative Continued Medical Benefit.
(iv) The Participant
refuses to execute and let become effective, within the time period
provided by Nuvelo, the release of claims described in
Section 7 below.
(v) The Participant
has not returned all Nuvelo property which he or she has had in his
or her possession at any time, including but not limited to any
materials which contain or embody any Nuvelo proprietary or
confidential information and any computers, mobile telephones and
other physical property.
(c) Termination of
Benefits. A Participant’s right to receive the payment of
benefits under this Plan shall terminate immediately if, at any
time prior to, or during, the Continuation Period, the Participant,
without the prior written approval of Nuvelo:
(i) willfully breaches
a material provision of the Participant’s Confidential
Information Agreement (or any other proprietary information or
confidentiality agreement of similar effect);
(ii) encourages or
solicits any of Nuvelo’s then-current employees to leave
Nuvelo’s employ for any reason or interferes in any other
manner with employment relationships at the time existing between
Nuvelo and its then-current employees;
(iii) induces any of
Nuvelo’s then-current clients, customers, suppliers, vendors,
distributors, licensors, licensees, or other third parties to
terminate their existing business relationship with Nuvelo or
interferes in any other manner with any existing business
relationship between Nuvelo and any then-current client, customer,
supplier, vendor, distributor, licensor, licensee or other third
party.
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C HANGE I N C
ONTROL S TOCK A WARD V
ESTING B ENEFITS |
In the event of a Change in
Control, a Participant shall receive the following benefits in
respect of any Stock Awards which remain outstanding as of
immediately prior to the effective time of the Change in Control
(the “Effective Time”):
(a) Change in Control
Vesting Benefit. If the Participant is still employed as of the
Effective Time, to the extent the Participant holds any Stock Award
that is not fully Vested, one hundred percent (100%) of each
Stock Award shall become Vested as of immediately prior to the
Effective Time.
(b) Vesting Benefit for
Covered Termination Preceding Change in Control. If the
Participant is not employed as of the Effective Time but the
Participant’s employment terminated pursuant to a Covered
Termination during the one (1) month period ending on the
Effective Time, the Stock Awards held by the Participant that were
not Vested on the date of the Participant’s Covered
Termination shall become Vested as of immediately prior to the
Effective Time.
(c) Coordination with
Outstanding Stock Awards. In the event the provisions of this
Section 4 would adversely affect a Stock Award outstanding on
the Amendment Date, this Section 4 shall not apply to such
Stock Award without the consent of the Participant.
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C HANGE IN C
ONTROL S EVERANCE B
ENEFITS |
(a) Change in Control
Severance Benefits. Upon a Change in Control Severance, and
subject to the conditions described in Section 3, such
Participant shall receive the benefits described in Sections 5(b)
and 5(c). Any amounts paid pursuant to this Section 5 shall be
subject to all income tax and employment tax withholding
requirements as well as any other applicable withholding
requirements.
(b) Cash Severance
Benefits. The Participant who incurred such Change in Control
Severance shall receive the Base Severance Benefit and the Bonus
Severance Benefit.
(c) Continued Medical
Benefits. Provided that the Participant timely elects continued
coverage under the Consolidated Omnibus Budget Reconciliation Act
of 1985 (together with any state laws of similar effect,
“COBRA”), Nuvelo shall pay for the Continuation Period
(or such earlier date as the Participant and his or her dependents
are no longer eligible for COBRA coverage) the portion of premiums
of the Participant’s group medical, dental, and vision
coverage, including coverage for the Participant’s eligible
dependents, that Nuvelo paid prior to the Change in Control
Severance; provided, however, that no such premium payments
(or any other payments for medical, dental or vision coverage by
Nuvelo) shall be made following the effective date of the
Participant’s coverage by a medical, dental or vision
insurance plan of a subsequent employer or after the date the
Participant or his or her eligible dependents otherwise cease to be
eligible for COBRA coverage. Each Participant shall be required to
notify Nuvelo immediately if the Participant becomes covered by a
medical, dental or vision insurance plan of a subsequent employer.
No provision of this Plan will affect the continuation coverage
rules under COBRA, except that Nuvelo’s payment of any
applicable insurance premiums during the Continuation Period will
be credited as payment by the Participant for purposes of the
Participant’s payment required under COBRA. Therefore, the
period during which a Participant may elect whether or not to
continue Nuvelo’s group medical, dental or vision coverage
under COBRA, the length of time during which COBRA continuation
coverage will be made available to the Participant, and all other
rights and obligations of the Participant under COBRA will be
applied in the same manner that such rules would apply in the
absence of this Plan. At the conclusion of the Continuation Period,
the Participant will be responsible for the entire payment of
premiums required under COBRA for the remainder, if any, of the
COBRA continuation period. For purposes of this Section 5(c),
applicable premiums paid by Nuvelo duri
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