Exhibit 10.4
Icosavax, Inc.
June 7, 2023
Re: Employment Letter Agreement
Dear Amin:
Icosavax, Inc. (the “Company”) is pleased to offer you (the “Employee”) a position on the terms set forth in this letter (this “Agreement”). In consideration of the mutual promises herein contained, the parties agree as follows:
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Except in the case of a Qualifying Termination that occurs within eighteen (18) months following a Change in Control, the Base Severance will be paid in installments in the form of continuation of Employee’s Base Salary payments over the Severance Period, paid on the Company’s ordinary payroll dates, commencing on the sixtieth (60th) day following Employee’s Separation from Service date. The first such installment shall be for any accrued Base Salary for the sixty (60)-day period preceding such initial payment date. All salary continuation payments thereafter, if any, shall be made on the Company’s regular payroll dates.
In the case of a Qualifying Termination that occurs within eighteen (18) months following a Change in Control, the Base Severance will be paid in a lump sum on the sixtieth (60th) day following Employee’s Separation from Service date.
Any Bonus Severance will be paid in a lump sum on the sixtieth (60th) day following Employee’s Separation from Service date.
(a) In the event of Employee’s Qualifying Termination not occurring during the Change in Control Period, then such number of shares underlying Employee’s Stock Awards shall be deemed vested effective immediately prior to such termination as would have vested by the terms of such awards during the nine (9) months following Employee’s date of termination had Employee remained employed by the Company during such period; and
(b) In the event of Employee’s Qualifying Termination during the Change in Control Period, all of Employee’s Stock Awards shall vest effective upon the later of (i) the date of termination or (ii) the date of the Change in Control.
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Except to the extent an award agreement governing a Stock Award granted to Employee specifically provides for the treatment of such Stock Award in the event of any of the acceleration events described in this Section 9 and provides that its terms shall supersede the provisions of this Section 9, in which case the terms of such award agreement shall govern, the foregoing Accelerated Vesting provisions are deemed to be a part of each Stock Award and to amend and supersede any less favorable provision in any agreement or plan regarding such Stock Award (and, for the avoidance of doubt, if any Stock Award is subject to more favorable vesting than the Accelerated Vesting pursuant to any agreement or plan regarding such Stock Award, such more favorable provisions shall continue to apply and shall not be limited by the Accelerated Vesting).
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(a) In the event that any payment or benefit received or to be received by Employee pursuant to the terms of any plan, arrangement or agreement (including any payment or benefit received in connection with a change of control or the termination of Employee’s employment) (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part) to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, then the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (after subtracting the amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Employee would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to Employee that are exempt from Section 409A of the Code, (B) reduction of any other cash payments or benefits otherwise payable to Employee that are exempt from Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting or payment with respect to any equity award with respect to the Company’s common stock that is exempt from Section 409A of the Code, (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting and payment with respect to any equity award with respect to the Company’s common stock that is exempt from Section 409A of the Code, and (D) reduction of any payments attributable to the acceleration of vesting or payment with respect to any equity award with respect to the Company’s common stock that is exempt from Section 409A of the Code; provided, in case of clauses (B), (C) and (D), that reduction of any payments or benefits attributable to the acceleration of vesting of Company equity awards shall be first applied to Company equity awards that would otherwise vest last in time. The foregoing reductions shall be made in a manner that results in the maximum economic benefit to Employee on an after-tax basis and, to the extent economically equivalent payments or benefits are subject to reduction, in a pro rata manner.
(b) All determinations regarding the application of this “Section 280G Treatment” section shall be made by an independent accounting firm or consulting group with nationally recognized standing and substantial expertise and experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax retained by the Company prior to the date of the applicable change in control (the “280G Firm”). For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments shall be taken into account
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which, in the written opinion of the 280G Firm, (A) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, or (B) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, (ii) no portion of the Total Payments the receipt or enjoyment of which Employee shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the 280G Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. All determinations related to the calculations to be performed pursuant to this “Section 280G Treatment” section shall be done by the 280G Firm.
(c) The 280G Firm will be directed to submit its determination and detailed supporting calculations to both Employee and the Company within fifteen (15) days after notification from either the Company or Employee that Employee may receive payments which may be “parachute payments.” Employee and the Company will each provide the 280G Firm access to and copies of any books, records, and documents in their possession as may be reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Agreement. The fees and expenses of the 280G Firm for its services in connection with the determinations and calculations contemplated by this Agreement will be borne solely by the Company.
(b) Protection of Third Party Information. In Employee’s work for the Company, Employee will be expected not to use or disclose any confidential information, including trade secrets, of any former employer or other person to whom Employee has an obligation of confidentiality. Rather, Employee will be expected to use only that information which is generally known and used by persons with training and experience comparable to his own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company. Employee agrees that Employee will not bring onto Company premises any unpublished documents or property belonging to any former employer or other person to whom Employee has an obligation of confidentiality. Employee hereby represents that he has disclosed to the Company any contract he has signed that may restrict his activities on behalf of the Company.
(c) Return of Company Property. Upon the termination of Employee’s employment with the Company for any reason, Employee will return to the Company all Company documents (and all copies thereof) and other Company property within their possession, custody or control, including but not limited to Company files, notes, financial and operational information, customer lists and contact
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information, investor and finance source lists and contract information, product information, research and development information, drawings, records, plans, forecasts, reports, payroll information, spreadsheets, studies, analyses, compilations of data, proposals, agreements, sales and marketing information, personnel information, specifications, code, software, databases, computer-recorded information, tangible property and equipment (including but not limited to computers, facsimile machines, mobile telephones, tablets, handheld devices and servers), credit cards, entry cards, identification badges and keys, and any materials of any kind which contain or embody any proprietary or confidential information of the Company (and all reproductions thereof in whole or in part and in any medium). Employee shall deliver to the Company, upon request, a signed statement certifying compliance with this Section 15.
(d) Other Protections. Notwithstanding anything contained in this Agreement or in the Confidential Information and Inventions Assignment Agreement, pursuant to 18 U.S.C. Section 1833(b), Employee shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (i) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, nothing in this Agreement or in the Confidential Information and Inventions Assignment Agreement prevents Employee from (x) communicating directly with, cooperating with, or providing information to any federal, state or local government agency, including without limitation the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission, the U.S. Department of Justice, the U.S. Equal Employment Opportunity Commission, or the U.S. National Labor Relations Board, (y) exercising any rights Employee may have under Section 7 of the U.S. National Labor Relations Act, or (z) discussing or disclosing information about conduct, or the existence of a settlement involving conduct, that Employee reasonably believes under Washington state, federal, or common law to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, or sexual assault, unlawful, or that is recognized as against a clear mandate of public policy, where the conduct occurred at the workplace, at work-related events coordinate by or through an employer, between employees, or between an employer and employee, whether on or off the employment premises.
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22. Conditions to Employment. As a condition to Employee’s employment with the Company, Employee is required to (a) sign and return a satisfactory I-9 Immigration form providing sufficient documentation establishing Employee’s employment eligibility in the United States, and (b) provide satisfactory proof of Employee’s identity as required by United States law. In the event these conditions are not satisfied on or prior to the Effective Date, or in the event Employee fails to sign and return the Confidential Information and Inventions Assignment Agreement on or prior to the Effective Date, this offer of employment shall be revoked and this Agreement shall terminate and be of no further force or effect.
(Signature Page Follows)
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Sincerely,
Icosavax, Inc.
By: /s/ Adam K. Simpson
Adam K. Simpson, Chief Executive Officer
Date: June 7, 2023
Acknowledged and Agreed:
By: /s/ M. Amin Khan
M. Amin Khan, Ph.D.
Date: June 7, 2023
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Exhibit A
Confidential Information and Inventions Assignment Agreement
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