Full Press Release Details
We are pleased to confirm our
offer of employment with AmpliPhi Biosciences Corporation (the "Company"), in the position of Senior
Vice President, Chief Financial Officer on the terms set forth in this letter agreement (the "Agreement").
Position. As Senior Vice President, Chief Financial Officer, you will be responsible for managing the financial affairs
of the Company and you will report directly to the Chief Executive Officer of the Company. You agree to devote your full business
time and attention to your work for the Company. Except upon the prior written consent of the Board of Directors of the Company
(the "Board"), you will not, during your employment with the Company, (i) accept or maintain any other
employment, or (ii) engage, directly or indirectly, in any other business activity (whether or not pursued for pecuniary advantage)
that might interfere with your duties and responsibilities as a Company employee or create a conflict of interest with the Company.
Salary. Your initial base salary will be $320,000 per year, less applicable withholdings. Your salary will be reviewed
from time to time by the Board or its compensation committee, and may be adjusted in the sole discretion of the Board or its compensation
Bonus. You will be eligible to earn an annual performance bonus based on achievement of Company performance objectives
to be established by the Board or its compensation committee and provided to you. Your annual
target performance bonus will initially be equal to 35% of your base salary, although the amount of any payment will be dependent
upon actual performance as determined by the Board or its compensation committee. You must be employed by the Company through the
date on which bonuses are paid in order to be eligible to receive a bonus. Your annual target performance bonus percentage is subject
to modification from time to time in the discretion of the Board or its compensation committee.
Equity Award. Upon your commencement of employment with the Company, you will be granted an option under the Company's
2013 Stock Incentive Plan (the "Plan") to purchase 99,919 shares of Common Stock of the Company, which
you and the Company agree is equivalent to one percent (1%) of the then current fully diluted number of shares of Common Stock
(assuming conversion or exercise of all outstanding convertible or exercisable securities, and including shares available for issuance
pursuant to the Plan) (the "Option"). The Option shall vest with respect to one-fourth of the total number
of shares on the one-year anniversary of the start date of your employment with the Company and monthly thereafter for the following
three years, subject to your continued services to the Company. The Option shall be subject to the terms and conditions of the
Plan, stock option grant notice and option agreement to be entered into between you and the Company.
Benefits. You will be eligible to participate in the benefits made generally available by the Company to its senior
executives, in accordance with the benefit plans established by the Company, and as may be amended from time to time in the Company's
At-Will Employment. The Company is an "at-will" employer. Accordingly, either you or the Company may terminate
the employment relationship at any time, with or without advance notice, and with or without cause.
Termination. Upon any termination of your employment, you will be deemed to have resigned, and you hereby resign, from
all offices and directorships, if any, then held with the Company or any subsidiary. In the event of termination of your employment
with the Company, regardless of the reasons for such termination, the Company shall pay your base salary and accrued but unused
vacation up to and through the date of termination, less applicable payroll and tax withholdings (the "Accrued Obligations").
Severance. You shall be eligible for the severance benefits described in this Section 8.
In the event (i) the Company terminates your employment without Cause (as defined
below and other than due to your death or disability), or (ii) you terminate your employment
for Good Reason (as defined below), and provided in either case of (i) or (ii) such termination or resignation constitutes a "separation
from service" (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definition thereunder,
a "Separation from Service") (such termination or resignation, an "Involuntary Termination"),
then, in addition to the Accrued Obligations, subject to your obligations below, you shall be entitled to receive an amount equal
to twelve (12) months of your then current base salary (ignoring any decrease in base salary that forms the basis for Good Reason),
less all applicable withholdings and deductions, paid on the schedule described below (the "Severance Pay").
The Severance Pay is conditional upon (i) your continuing to comply with your obligations under your PIIA (as defined
in Section 11) during the period of time in which you are receiving the Severance Pay; (ii) your delivering to the Company an executed
separation agreement and general release of claims in favor of the Company, in a form attached hereto as Exhibit
A, within the time period set forth therein, which becomes effective in accordance with its terms, which shall be no later
than sixty (60) days following your Separation from Service (the "Release"). The Severance Pay will be
paid in equal installments on the Company's regular payroll schedule over the period outlined above following the date of
your Separation from Service; provided, however, that no payments will be made prior to the sixtieth (60th) day
following your Separation from Service. On the sixtieth (60th) day following your Separation from Service, the Company
will pay you in a lump sum the amount of the Severance Pay that you would have received on or prior to such date under the original
schedule but for the delay while waiting for the sixtieth (60th) day, with the balance of the Severance Pay being paid
as originally scheduled.
"Cause" for purposes of your Severance Pay means (i) your gross negligence or willful failure
substantially to perform your duties and responsibilities to the Company or deliberate violation of a Company policy; (ii) your
commission of any act of fraud, embezzlement or dishonesty against the Company or any other willful misconduct that has caused
or is reasonably expected to result in material injury to the Company; (iii) your unauthorized use or disclosure of any proprietary
information or trade secrets of the Company or any other party to whom you owe an obligation of nondisclosure as a result of your
relationship with the Company; or (iv) your willful breach of any of your obligations under any written agreement or covenant with
the Company, including without limitation this Agreement and your PIIA.
"Good Reason" for purposes of your Severance Pay means the occurrence at any time of any of
the following without your prior written consent: (i) a material reduction in your authority, duties or responsibilities (other
than a mere change in title following any merger or consolidation of the Company with another entity); (ii) a material reduction
in your base salary; or (iii) any willful failure or willful breach by the Company of any of its material obligations under this
Agreement. For purposes of this subsection, no act, or failure to act, on the Company's part shall be deemed "willful"
unless done, or omitted to be done, by the Company not in good faith and without reasonable belief that the Company's act,
or failure to act, was in the best interest of the Company. In order to terminate your employment under this Agreement for Good
Reason, you must (1) provide written notice to the Company within ninety (90) days of the first occurrence of the events described
above, (2) allow the Company at least thirty (30) days from such receipt of such written notice to cure such event, and (3) if
such event is not reasonably cured within such period, resign from all position you then hold with the Company effective not later
than the one-hundred eightieth (180th) day after the initial occurrence of such event.
Change in Control. If your Involuntary Termination occurs within one (1) month prior to, or twelve (12) months following
a Change in Control (as defined in the Plan), the vesting of all of your outstanding equity awards (including the Option) that
are subject to time-based vesting requirements shall accelerate in full such that all such equity awards shall be deemed fully
vested as of the date of such Involuntary Termination (or Change in Control, if later).
Taxes: All amounts paid under this Agreement shall be paid less all applicable state and federal tax withholdings (if
any) and any other withholdings required by any applicable jurisdiction or authorized by you.
Section 409A. The Severance Pay provided in this Agreement is intended to qualify for an exemption from application
of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") and the regulations and
other guidance thereunder and any state law of similar effect (collectively "Section 409A") or to comply
with its requirements to the extent necessary to avoid adverse personal tax consequences under Section 409A, and any ambiguities
herein shall be interpreted accordingly. Each installment of Severance Pay is a separate "payment" for purposes of
Treasury Regulations Section 1.409A-2(b)(2)(i), and the Severance Pay is intended to satisfy the exemptions from application of
Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if such
exemptions are not available and you are, upon Separation from Service, a "specified employee" for purposes of Section
409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing of the Severance
Pay shall be delayed until the earlier of (i) six (6) months and one day after your Separation from Service, or (ii) your death.
Except to the minimum extent that payments must be delayed because you are a "specified employee", all amounts of
Severance Pay will be paid as soon as practicable in accordance with the schedule provided herein and in accordance with the Company's
normal payroll practices.
Section 280G. If any payment or benefit you will or may receive from the Company or otherwise (a "280G Payment")
would (i) constitute a "parachute payment" within the meaning of Section 280G of the Code, and (ii) but for this sentence,
be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then any such 280G
Payment pursuant to this Agreement or otherwise (a "Payment") shall be equal to the Reduced Amount. The
"Reduced Amount" shall be either (x) the largest portion of the Payment that would result in no portion
of the Payment (after reduction) being subject to the Excise Tax or (y) the largest portion, up to and including the total, of
the Payment, whichever amount (i.e., the amount determined by clause (x) or by clause (y)), after taking into account all applicable
federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate),
results in your receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the
Payment may be subject to the Excise Tax. If a reduction in a Payment is required pursuant to the preceding sentence and the Reduced