Exhibit 10.8
EXECUTIVE SEVERANCE BENEFITS
AGREEMENT
T HIS E XECUTIVE S EVERANCE B ENEFITS A GREEMENT (the “ A GREEMENT ”) is entered into this ___ day of
_____________, _____ (the “Effective Date”), between
_____________________ (“E XECUTIVE ”) and Monogram Biosciences Inc. (the
“ C OMPANY ”). This Agreement is intended to provide
Executive with the compensation and benefits described herein upon
the occurrence of specific events. Certain capitalized terms used
in this Agreement are defined in Article 5.
The Company and Executive hereby
agree as follows:
ARTICLE 1
S COPE OF AND C ONSIDERATION FOR THIS A GREEMENT
1.1 Executive is currently employed by the
Company.
1.2 The Company and Executive wish to set forth the
compensation and benefits which Executive shall be entitled to
receive in the event Executive’s employment with the Company
is terminated under the circumstances described herein following a
Change in Control.
1.3 The duties and obligations of the Company to
Executive under this Agreement shall be in consideration for
Executive’s past services to the Company, Executive’s
continued employment with the Company, and Executive’s
execution of a release in accordance with
Section 3.1.
1.4 This Agreement shall supersede any other
agreement relating to cash severance benefits, health benefits in
the event of Covered Termination following a Change in
Control.
ARTICLE 2
S EVERANCE B ENEFITS
2.1 Severance Benefits. A Covered Termination
(as defined in Article 4) entitles Executive to receive the
benefits set forth in Sections 2.2 and 2.3.
2.2 Severance Payment. In the circumstances
described in Section 2.1, Executive shall receive a severance
payment equal to (i) one times the greater of (x) the
Fixed Amount or (y) Executive’s Base Salary plus
(ii) the amount of the target bonus established for Executive
for the last completed fiscal year immediately preceding the
Covered Termination. Such amount shall be subject to all required
tax withholding and shall be paid in a lump sum upon the later of
(a) Executive’s compliance with Section 3.1 herein
or (b) the effective date of the related Change in
Control.
2.3 Health Insurance
Coverage. If the
Executive elects to continue his health insurance coverage under
the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”) following the termination of his Employment,
then the Company shall pay the Executive’s monthly premium
under COBRA until the earliest of (i) the close of the
Continuation Period or (ii) the expiration of the
Executive’s continuation coverage under COBRA.
1.
2.4 Mitigation. Except as otherwise
specifically provided herein, Executive shall not be required to
mitigate damages or the amount of any payment provided under this
Agreement by seeking other employment or otherwise, nor shall the
amount of any payment provided for under this Agreement be reduced
by any compensation earned by Executive as a result of employment
by another employer or by any retirement benefits received by
Executive after the date of the Covered Termination.
2.5 Compliance with Section 409A.
Benefits payable under this Agreement, to the extent of payments
made from the date of Executive’s termination through
March 15th of the calendar year following such termination,
are intended to constitute separate payments for purposes of
Section 1.409A-2(b)(2) of the Treasury Regulations and thus
payable pursuant to the “short-term deferral” rule set
forth in Section 1.409A-1(b)(4) of the Treasury Regulations;
to the extent such payments are made following said
March 15th, they are intended to constitute separate payments
for purposes of Section 1.409A-2(b)(2) of the Treasury
Regulations made upon an involuntary termination from service and
payable pursuant to Section 1.409A-1(b)(9)(iii) of the
Treasury Regulations, to the maximum extent permitted by said
provision, with any excess amount being regarded as subject to the
distribution requirements of Section 409A(a)(2)(A) of the
Code, including, without limitation, the requirement of
Section 409A(a)(2)(B)(i) of the Code that payment to Executive
be delayed until six (6) months after separation from service
if Executive is a “specified employee” within the
meaning of the aforesaid section of the Code at the time of such
separation from service.
ARTICLE 3
L IMITATIONS A ND C ONDITIONS O N B ENEFITS
3.1 Release Prior To Payment Of Benefits.
Upon the occurrence of a Covered Termination, and prior to the
payment of any benefits under this Agreement on account of such
Covered Termination, Executive shall execute a release (the
“Release”) in the form attached hereto and incorporated
herein as Exhibit A within the time period set forth therein
(but in no event later than forty-five (45) days after the
date of termination). Such Release shall specifically relate to all
of Executive’s rights and claims in existence at the time of
such execution and shall confirm Executive’s obligations
under the Company’s standard form of proprietary information
and inventions agreement. It is understood that, as specified in
the applicable Release, Executive has a certain number of calendar
days to consider whether to execute such Release, and Executive may
revoke such Release within seven (7) calendar days after
execution. In the event Executive does not execute such Release
within the applicable period, or if Executive revokes such Release
within the subsequent seven (7) day period, no benefits shall
be payable under this Agreement, and this Agreement shall be null
and void.
2.
3.2 Termination of Benefits. Benefits under
this Agreement shall terminate immediately if the Executive, at any
time, violates any proprietary information or confidentiality
obligation to the Company.
3.3 Non-Duplication of Benefits. Executive is
not eligible to receive benefits under this Agreement more than one
time.
ARTICLE 4
D EFINITIONS
For purposes of the Agreement, the
following terms are defined as follows:
4.1 “Base Salary” means
Executive’s annual base salary as in effect during the last
completed fiscal year immediately preceding the Covered
Termination.
4.2 “Board” means the Board of
Directors of the Company.
4.3 “Cause” means that, in the
reasonable determination of the Company or, in the case of the
Chief Executive Officer, the Board, Executive:
(a) has willfully or recklessly, and repeatedly
failed to satisfactorily perform the Executive’s job duties,
after being given written notice of the failure to perform and an
opportunity to cure such deficiency;
(b) has committed an act that materially injures the
business of the Company;
(c) has misappropriated property belonging to the
Company or has violated any of his proprietary information or
confidentiality obligations to the Company; or
(d) has been convicted of a felony involving moral
turpitude that is likely to inflict or has inflicted material
injury on the business of the Company.
4.4 “Change in Control”
means
(a) a sale or other disposition of all or
substantially all of the assets of the Company;
(b) a merger or consolidation in which the Company
is not the surviving entity and in which the stockholders of the
Company immediately prior to such consolidation or merger own less
than fifty percent (50%) of the surviving entity’s
voting power immediately after the transaction;
(c) a reverse merger in which the Company is the
surviving entity but the shares of Common Stock outstanding
immediately preceding the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash
or otherwise, and in which the stockholders of the Company
immediately prior to such reverse merger own less than fifty
percent (50%) of the Company’s voting power immediately
after the transaction;
3.
(d) after the Listing Date as defined in the
Company’s Equity Incentive Plan, an acquisition by any
person, entity or group within the meaning of Section 13(d) or
14(d) of the Exchange Act, or any comparable successor provisions
(excluding any employee benefit plan, or related trust, sponsored
or maintained by the Company or subsidiary of the Company or other
entity controlled by the Company) of the beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange
Act, or comparable successor rule) of securities of the Company
representing at least fifty percent (50%) of the voting power
entitled to vote in the election of Directors; or
(e) in the event that the individuals who, as of the
date of adoption of the Plan, are members of the Company’s
Board (the “Incumbent Board”), cease for any reason to
constitute at least fifty percent (50%) of the Board. (If the
election, or nomination for election by the Company’s
stockholders, of any new Director is approved by a vote of at least
fifty percent (50%) of the Incumbent Board, such new Director
shall be considered to be a member of the Incumbent Board in the
future.)
4.5 “Company” means Monogram
Biosciences, Inc. or, following a Change in Control, the surviving
entity resulting from such transaction.
4.6 “Constructive Termination”
means the Executive’s resignation from employment with the
Company resulting from the occurrence of any of the following
events without the Executive’s express written
consent:
(a) a change in Executive’s responsibilities
which represents material adverse change from the Executive’s
responsibilities as in effect at any time within ninety
(90) days preceding the effective date of a Change in Control
or at any time thereafter, or the assignment to Executive of any
duties or responsibilities which are materially and adversely
inconsistent with the Executive’s duties and responsibilities
in effect at any time within ninety (90) days preceding the
effective date of a Change of Control or at any time
thereafter;
(b) a material reduction by the Company in
Executive’s overall compensation package [or any failure to
pay Executive any compensation or benefits to which Executive is
entitled within fifteen (15) days of the date due;
(c) the Company’s relocation of Executive to
any place outside a fifty (50) mile radius of the
Executive’s current worksite, except for reasonably required
travel on the business of the Company and/or its affiliates which
is not materially greater than such travel requirements prior to
the effective date of the Change of Control;
(d) the failure by the Company to: (i) continue
in effect (without reduction in benefit level and/or reward
opportunities) any material compensation or employ
