Exhibit 10.1
TENAYA THERAPEUTICS, INC.
EXECUTIVE CHANGE IN CONTROL AND SEVERANCE PLAN
AND SUMMARY PLAN DESCRIPTION
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For purposes of this definition, persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the Company.
Notwithstanding the foregoing, a transaction will not be deemed a Change in Control unless the transaction qualifies as a change in control event within the meaning of Code Section 409A.
Further and for the avoidance of doubt, a transaction will not constitute a Change in Control if: (x) its sole purpose is to change the jurisdiction of the Company’s incorporation, or (y) its sole purpose is to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.
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(x) delivered in full, or
(y) delivered as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Participant on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in the 280G Payments is necessary so that no portion of such benefits are subject to the Excise Tax, reduction will occur in the following order: (i) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G); (ii) a pro rata reduction of (A) cash payments that are subject to Section 409A as deferred compensation and (B) cash payments not subject to Section 409A of the Code; (iii) a pro rata reduction of (A) employee benefits that are subject to Section 409A as deferred compensation and (B) employee benefits not subject to Section 409A; and (iv) a pro rata cancellation of (A) accelerated vesting equity awards that are subject to Section 409A as deferred compensation and (B) equity awards not subject to Section 409A. In the event that acceleration of vesting of equity awards is to be cancelled, such acceleration of vesting will be cancelled in the reverse order of the date of grant of a Participant’s equity awards.
A nationally recognized professional services firm selected by the Company, the Company’s legal counsel or such other person or entity to which the parties mutually agree (the “Firm”) will make any determination required under this Section 5. Such determinations will be made in writing by the Firm and any good faith determinations of the Firm will be conclusive and binding upon Participant and the Company. For purposes of making the calculations required by this Section 5 the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Participant and the Company will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section 5. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
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Plan Name: | Tenaya Therapeutics, Inc. Executive Change in Control and Severance Plan |
Plan Sponsor: | Tenaya Therapeutics, Inc. |
| South San Francisco, CA 94080 |
| (650) 351-9757 |
Identification Numbers: | EIN: 81-3789973 |
Plan Number: | 510 |
Plan Year: | Company’s fiscal year |
Plan Administrator: | Tenaya Therapeutics, Inc. |
| South San Francisco, CA 94080 |
| (650) 351-9757 |
Agent for Service of | Tenaya Therapeutics, Inc. |
Legal Process: | Attention: General Counsel |
| 171 Oyster Point Boulevard |
| South San Francisco, CA 94080 |
| (650) 351-9757 |
| Service of process also may be made upon the Administrator. |
Type of Plan | Severance Plan/Employee Welfare Benefit Plan |
Plan Costs | The cost of the Plan is paid by the Company. |
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As a Participant under the Plan, you have certain rights and protections under ERISA:
You may examine (without charge) all Plan documents, including any amendments and copies of all documents filed with the U.S. Department of Labor. These documents are available for your review in the Company’s human resources department.
You may obtain copies of all Plan documents and other Plan information upon written request to the Administrator. A reasonable charge may be made for such copies.
In addition to creating rights for Participants, ERISA imposes duties upon the people who are responsible for the operation of the Plan. The people who operate the Plan (called “fiduciaries”) have a duty to do so prudently and in the interests of you and the other Participants. No one, including the Company or any other person, may fire you or otherwise discriminate against you in any way to prevent you from obtaining a benefit under the Plan or exercising your rights under ERISA. If your claim for a severance benefit is denied, in whole or in part, you must receive a written explanation of the reason for the denial. You have the right to have the denial of your claim reviewed. (The claim review procedure is explained in Section 14 above.)
Under ERISA, there are steps you can take to enforce the above rights. For example, if you request materials and do not receive them within 30 days, you may file suit in a federal court. In such a case, the court may require the Administrator to provide the materials and to pay you up to $110 a day until you receive the materials, unless the materials were not sent due to reasons beyond the control of the Administrator. If you have a claim which is denied or ignored, in whole or in part, you may file suit in a federal court. If it should happen that you are discriminated against for asserting your rights, you may seek assistance from the U.S. Department of Labor, or you may file suit in a federal court.
In any case, the court will decide who will pay court costs and legal fees. If you are successful, the court may order the person you have sued to pay these costs and fees. If you lose, the court may order you to pay these costs and fees, for example, if it finds that your claim is frivolous.
If you have any questions regarding the Plan, please contact the Administrator. If you have any questions about this statement or about your rights under ERISA, you may contact the nearest area office of the Employee Benefits Security Administration (formerly the Pension and Welfare Benefits Administration), U.S. Department of Labor, listed in your telephone directory, or the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W. Washington, D.C. 20210. You also may obtain certain publications about your rights and responsibilities under ERISA by calling the publications hotline of the Employee Benefits Security Administration.
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For individuals participating
before June 8, 2023
Appendix A
Tenaya Therapeutics, Inc. Executive Change in Control and Severance Plan
Amended and Restated Participation Agreement
This Amended and Restated Participation Agreement (this “A&R Participation Agreement”) relates to your participation in the Tenaya Therapeutics, Inc. (the “Company”) Executive Change in Control and Severance Plan (the “Plan”) as a Participant and replaces and supersedes in full all participation agreements under the Plan signed by you prior to the A&R Effective Date (as defined below), including that certain Participation Agreement dated [DATE OF PRIOR PARTICIPATION AGREEMENT]. The “A&R Effective Date” is the date that this Amended and Restated Participation Agreement is signed by you.
A copy of the Plan was delivered to you with this A&R Participation Agreement. Your participation in the Plan is subject to all of the terms and conditions of the Plan. The capitalized terms used but not defined herein will have the meanings ascribed to them in the Plan.
The Plan describes in detail certain circumstances under which you may become eligible for Severance Benefits. As described more fully in the Plan, you may become eligible for certain Severance Benefits if you experience a Qualifying Termination.
For the purposes of this A&R Participation Agreement, the following terms shall have the following meanings:
“Change in Control Period” means the time period beginning on the date that is 3 months prior to a Change in Control and ending on the date that is 12 months following a Change in Control.
[CEO ONLY: “Cause” means (1) an act of dishonesty made by you in connection with your responsibilities as an employee that has caused the Company to suffer material harm; (2) your conviction of, or plea of nolo contendere to, a felony or any crime involving fraud, embezzlement or any other act of moral turpitude; (3) your gross misconduct that has caused the Company to suffer material harm; (4) 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; (5) your willful breach of any obligations under any written agreement or covenant with the Company; (6) your continued failure to perform your employment duties after you have received a written demand of performance from the Company which specifically sets forth the factual basis for the Company’s belief that you have not substantially performed your duties. Notwithstanding the foregoing, Cause shall only exist after; (x) the Board delivers written notice to you of the Board’s determination that Cause exists; (y) such notice sets forth in reasonable detail such facts and circumstances; and (z) you have failed to fully correct any of the events listed above, if such events are reasonably capable of being fully corrected, within 10 days following delivery to you of the Board’s written notice of its determination that Cause exists.
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“Good Reason” means the occurrence of one or more of the following without your written consent: (1) a material diminution of your authority, duties or responsibilities; provided, however, that a reduction in authority, duties, or responsibilities solely by virtue of the Company being acquired and made part of a larger entity, whether as a subsidiary, business unit or otherwise (as, for example, when the CEO of the Company remains as such following an acquisition where the Company becomes a wholly owned subsidiary of the acquirer, but is not made the CEO of the acquiring corporation), will not constitute “Good Reason”, (2) a material change in the geographic location at which you must perform services for Tenaya (which, for this purpose means relocation of the offices of the Company at which you are principally employed to a location more than 40 miles from the location of such offices immediately prior to the relocation), or (3) a material diminution in your annual base salary. In order for your termination of employment to be for Good Reason, you must not terminate employment with the Company without first providing the Company with written notice of the acts or omissions constituting the grounds for “Good Reason” within ninety (90) days of their initial occurrence and a reasonable cure period of not less than thirty (30) days following the date of such notice (the “Cure Period”), and your resignation must occur within thirty (30) days following the end of the Cure Period if the “Good Reason” conditions remain uncured.
“Non-CIC Qualifying Termination” means termination of a Participant’s employment with the Company (or any parent or subsidiary of the Company) other than within the Change in Control Period by (1) you for Good Reason, or (2) the Company (or any parent or subsidiary of the Company) without Cause (excluding by reason of your death or Disability).]
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In order to receive any Severance Benefits for which you otherwise become eligible under the Plan, you must sign and deliver to the Company the Release, which must have become effective and irrevocable within the requisite period, and otherwise comply with the requirements under Section 6 of the Plan.
By your signature below, you and the Company agree that your participation in the Plan is governed by this A&R Participation Agreement and the provisions of the Plan. Your signature below confirms that: (1) you have received a copy of the Executive Change in Control and Severance Plan and Summary Plan Description; (2) you have carefully read this A&R Participation Agreement and the Executive Change in Control and Severance Plan and Summary Plan Description and you acknowledge and agree to its terms in accordance with the terms of the Plan and this A&R Participation Agreement; and (3) decisions and determinations by the Administrator under the Plan will be final and binding on you and your successors.
[Signature page follows]
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TENAYA THERAPEUTICS, INC. |
| PARTICIPANT |
Signature |
| Signature |
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Name |
| Name |
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Title |
| Date |
Attachment: Tenaya Therapeutics, Inc. Executive Change in Control and Severance Plan and Summary Plan Description
[Signature page to the Participation Agreement]
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For individuals partcipating
on or after June 8, 2023
Appendix A
Tenaya Therapeutics, Inc. Executive Change in Control and Severance Plan
Participation Agreement
Tenaya Therapeutics, Inc. (the “Company”) is pleased to inform you, the undersigned that you have been selected to participate in the Company’s Executive Change in Control and Severance Plan (the “Plan”) as a Participant.
A copy of the Plan was delivered to you with this Participation Agreement. Your participation in the Plan is subject to all of the terms and conditions of the Plan. The capitalized terms used but not defined herein will have the meanings ascribed to them in the Plan.
The Plan describes in detail certain circumstances under which you may become eligible for Severance Benefits. As described more fully in the Plan, you may become eligible for certain Severance Benefits if you experience a Qualifying Termination.
For the purposes of this Participation Agreement, the following terms shall have the following meanings:
“Change in Control Period” means the time period beginning on the date that is 3 months prior to a Change in Control and ending on the date that is 12 months following a Change in Control.
[CEO ONLY: “Cause” means (1) an act of dishonesty made by you in connection with your responsibilities as an employee that has caused the Company to suffer material harm; (2) your conviction of, or plea of nolo contendere to, a felony or any crime involving fraud, embezzlement or any other act of moral turpitude; (3) your gross misconduct that has caused the Company to suffer material harm; (4) 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; (5) your willful breach of any obligations under any written agreement or covenant with the Company; (6) your continued failure to perform your employment duties after you have received a written demand of performance from the Company which specifically sets forth the factual basis for the Company’s belief that you have not substantially performed your duties. Notwithstanding the foregoing, Cause shall only exist after; (x) the Board delivers written notice to you of the Board’s determination that Cause exists; (y) such notice sets forth in reasonable detail such facts and circumstances; and (z) you have failed to fully correct any of the events listed above, if such events are reasonably capable of being fully corrected, within 10 days following delivery to you of the Board’s written notice of its determination that Cause exists.
“Good Reason” means the occurrence of one or more of the following without your written consent: (1) a material diminution of your authority, duties or responsibilities; provided, however, that a reduction in authority, duties, or responsibilities solely by virtue of the Company being acquired and made part of a larger entity, whether as a subsidiary, business unit or otherwise (as,
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for example, when the CEO of the Company remains as such following an acquisition where the Company becomes a wholly owned subsidiary of the acquirer, but is not made the CEO of the acquiring corporation), will not constitute “Good Reason”, (2) a material change in the geographic location at which you must perform services for Tenaya (which, for this purpose means relocation of the offices of the Company at which you are principally employed to a location more than 40 miles from the location of such offices immediately prior to the relocation), or (3) a material diminution in your annual base salary. In order for your termination of employment to be for Good Reason, you must not terminate employment with the Company without first providing the Company with written notice of the acts or omissions constituting the grounds for “Good Reason” within ninety (90) days of their initial occurrence and a reasonable cure period of not less than thirty (30) days following the date of such notice (the “Cure Period”), and your resignation must occur within thirty (30) days following the end of the Cure Period if the “Good Reason” conditions remain uncured.
“Non-CIC Qualifying Termination” means termination of a Participant’s employment with the Company (or any parent or subsidiary of the Company) other than within the Change in Control Period by (1) you for Good Reason, or (2) the Company (or any parent or subsidiary of the Company) without Cause (excluding by reason of your death or Disability).]
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In order to receive any Severance Benefits for which you otherwise become eligible under the Plan, you must sign and deliver to the Company the Release, which must have become effective and irrevocable within the requisite period, and otherwise comply with the requirements under Section 6 of the Plan.
By your signature below, you and the Company agree that your participation in the Plan is governed by this Participation Agreement and the provisions of the Plan. Your signature below
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confirms that: (1) you have received a copy of the Executive Change in Control and Severance Plan and Summary Plan Description; (2) you have carefully read this Participation Agreement and the Executive Change in Control and Severance Plan and Summary Plan Description and you acknowledge and agree to its terms in accordance with the terms of the Plan and this Participation Agreement; and (3) decisions and determinations by the Administrator under the Plan will be final and binding on you and your successors.
[Signature page follows]
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TENAYA THERAPEUTICS, INC. |
| PARTICIPANT |
Signature |
| Signature |
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|
Name |
| Name |
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|
Title |
| Date |
Attachment: Tenaya Therapeutics, Inc. Executive Change in Control and Severance Plan and Summary Plan Description
[Signature page to the Participation Agreement]
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