Exhibit 10.27
FIRST AMENDMENT
TO
EMPLOYMENT
AGREEMENT
This amendment dated and effective
December 31, 2008 (this “Amendment”) hereby amends
that certain Employment Agreement dated as of June 1, 1997
(the “Original Agreement”) by and between Sangamo
BioSciences, Inc. (the “Company”), and Edward O.
Lanphier II (the “Employee”).
Capitalized terms used and not
otherwise defined herein shall have the respective meanings set
forth in the Original Agreement.
RECITALS
WHEREAS, Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”),
places certain restrictions, among other things, as to the timing
of distributions from nonqualified deferred compensation plans and
arrangements; and
WHEREAS, the Employee and the Board
of Directors of the Company desire to amend the terms and
conditions of the Original Agreement so as to bring those terms and
conditions into documentary compliance with Section 409A of
the Code and the final Treasury Regulations thereunder and to
continue Employee’s employment with the Company upon those
amended and restated terms and conditions.
NOW, THEREFORE, in consideration of
the mutual promises set forth herein, the parties hereto hereby
agree as follows:
1. The definition of “Without
Cause” in Section 1.d. of the Original Agreement is
hereby deleted, and the following new definition of “Good
Reason” is hereby inserted in its place:
“ Good Reason ”
means Employee’s resignation following any one of the
following:
(i) a material reduction in the
Employee’s duties, responsibilities and status with the
Company without Employee’s prior written consent;
(ii) a material reduction in the
Employee’s base salary without Employee’s prior written
consent (except pursuant to Company mandated pay cuts or pay
reductions which are uniformly applied to the Company’s
management);
(iii) a material change in
Employee’s place of employment without Employee’s prior
written consent, with a requirement that the Employee be based at a
location which is both more than 40 miles from the Company’s
headquarters in Richmond, California and increases the distance
between the Employee’s residence and the new location by more
than 40 miles to be material for such purpose; or
(iv) the failure of the successor
corporation (or parent thereof) in a Change in Control transaction
to assume all of the obligations of the Company under this
Agreement;
provided, however, Employee will
only be deemed to have resigned for Good Reason if
(A) Employee provides written notice to the Company of the
existence of the Good Reason event under subparagraph (i), (ii),
(iii) or (iv) within ninety (90) days after its
initial occurrence, (B) the Company is provided with thirty
(30) days in which to cure such Good Reason event, and
(C) Employee’s termination of employment is effected
within one hundred eighty (180) days following the occurrence
of the non-cured subparagraph (i) –
(iv) event.”
2. The definition of “Change
of Control” in Section 1.f. of the Original Agreement is
hereby removed in its entirety and is replaced with the following
definition:
“ Change of Control
” solely for purposes of this Agreement shall mean any
transaction or series of related transactions in which
(i) substantially all of the assets of the Company are sold;
or (ii) any merger, reorganization or acquisition in which the
stockholders of the Company immediately prior to such transaction
beneficially own securities representing less than fifty-one
percent (51%) of the total combined voting power of the
outstanding voting securities of the successor corporation (or any
parent thereof) immediately after such transaction.
3. The following definition of
“Separation from Service” is hereby added to the
Original Agreement as new Section 1.h.:
“ Separation from
Service ” shall mean Employee’s cessation of
Employee Status and shall be deemed to occur at such time as the
level of the bona fide services Employee is to perform in Employee
Status (or as a consultant or other independent contractor)
permanently decreases to a level that is not more than twenty
percent (20%) of the average level of services Employee
rendered in Employee Status during the immediately preceding
thirty-six (36) months (or such shorter period for which
Employee may have rendered such service). Any such determination as
to Separation from Service, however, shall be made in accordance
with the applicable standards of the Treasury Regulations issued
under Code Section 409A. For purposes of determining whether
Employee has incurred a Separation from Service, Employee will be
deemed to continue in “Employee Status” for so long as
he remains in the employ of one or more members of the Employer
Group, subject to the control and direction of the employer entity
as to both the work to be performed and the manner and method of
performance. “Employer Group” means the Corporation and
any other corporation or business controlled by, controlling or
under common control with, the Corporation as determined in
accordance with Sections 414(b) and (c) of the Code and the
Treasury Regulations thereunder, except that in applying Sections
1563(a)(1), (2) and (3) for purposes of determining the
controlled group of corporations under Section 414(b), the
phrase “at least 50 percent” shall be used instead of
“at least 80 percent” each place the latter phrase
appears in such sections and in applying Section 1.414(c)-2 of
the Treasury Regulations for purposes of determining trades or
businesses that are under common control for purposes of
Section 414(c), the phrase “at least 50 percent”
shall be used instead of “at least 80 percent” each
place the latter phrase appears in Section 1.414(c)-2
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of the Treasury Regulations. In
addition to the foregoing, a Separation from Service will not be
deemed to have occurred while Employee is on a sick leave or other
bona fide leave of absence if the period of such leave does not
exceed six (6) months or any longer period for which Employee
is provided with a right to reemployment with one or more members
of the Employer Group by either statute or contract;
provided, however, that in the event Employee’s
leave of absence is due to any medically determinable physical or
mental impairment that can be expected to result in death or to
last for a continuous period of not less than six (6) months
and that causes her to be unable to perform her duties as an
Employee, no Separation from Service shall be deemed to occur
during the first twenty-nine (29) months of such leave. If the
period of leave exceeds six (6) months (or twenty-nine
(29) months in the event of disability as indicated above) and
Employee is not provided with a right to reemployment either by
statute or contract, then Employee will be deemed to have a
Separation from Service on the first day immediately following the
expiration of such six (6)-month or twenty-nine (29)-month
period.”
4. A new sentence is hereby added to
the end of Section 4.b. of the Original Agreement, as
follows:
“Any bonus to which Employee
becomes entitled for a particular calendar year shall be paid in
accordance with the terms of the applicable bonus plan, but in no
event shall any such bonus be paid earlier than January 1 or
later than March 31 of the calendar year following the
calendar year for which that annual bonus is
earned.”
5. Section 4.c. is hereby
deleted in its entirety and replaced with the caption
“Reserved.”
6. 4.d.(1) and 4.d.(2) are hereby
deleted in their entirety and replaced with the caption
“Reserved.”
7. Section 5.a. of the Original
Agreement is hereby amended in its entirety to read as
follows:
“a. General Rule .
Except as otherwise provided in this Agreement, should the
employment of the Employee be terminated without Cause or should
the Employee resign for Good Reason, the Employee shall be entitled
to the Severance Benefits set forth in Section 6.
“
8. The following additional language
is hereby added at the end of Section 5.b. of the Original
Agreement:
“in accordance with the
payment provisions of Section 6.a..”
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9. Section 6.a. of the Original
Agreement is her
