Exhibit 10.55(a)
ORE PHARMACEUTICALS INC.
EXECUTIVE SEVERANCE PLAN
As Amended and Restated Effective September 29, 2008
SECTION 1. INTRODUCTION.
(a) General. Ore Pharmaceuticals Inc. (the "Company" or "Ore
Pharmaceuticals") changed its name from Gene Logic, Inc. on December 18, 2007,
and corresponding changes have been made in this plan. The Company's Executive
Severance Plan (the "Plan") was approved by the Company's Board of Directors of
on March 19, 1999 and amended and restated in its entirety effective February
23, 2001 and subsequently further amended and restated in its entirety on
September 29, 2008, to read as provided herein.
(b) Purpose. The purpose of the Plan is to encourage eligible employees
of the Company to continue as employees of the Company in the event of a Change
of Control (as defined herein) and to provide for the payment of severance
benefits to such employees in the event their employment with the Company is
terminated, as provided herein, within a specified period preceding or following
a Change of Control. Except as otherwise stated herein, this Plan shall
supersede both any severance benefit plan, policy or practice previously
maintained by the Company and any employment agreement entered into by the
Company with an individual employee, but only to the extent that such plan,
policy, practice or individual employment agreement addressed the provision of
severance benefits under circumstances covered by the Plan. Notwithstanding the
foregoing, this Plan shall not limit or restrict in any way the provisions of
the Company's Equity Incentive Plan, as amended (the "Equity Incentive Plan"),
including but not limited to the provisions of that section entitled
"Adjustments upon Changes in Stock," and any provisions of the Plan relating to
the treatment of stock awards issued under the Equity Incentive Plan shall be
construed only to provide additional benefits to Eligible Employees holding one
or more stock awards granted under the Equity Incentive Plan. This Plan document
is also the Summary Plan Description for the Plan.
(c) ERISA. The Plan is intended to be an unfunded employee welfare plan
under the Employee Retirement Income Security Act of 1974, as amended, ("ERISA")
for the purposes of providing benefits for a select group of management or
highly compensated employees.
SECTION 2. ELIGIBILITY FOR BENEFITS.
(a) Eligible Employees. "Eligible Employees" are the following
individuals: (i) Chief Executive Officer, President, Chief Operating Officer,
Chief Financial Officer and all executive and senior vice presidents of the
Company, (ii) selected employees who both (A) hold the title vice president,
"director" or "senior director" with the Company or who are officers of any
majority owned subsidiary of the Company and (B) are designated by the
Compensation Committee of the Board of Directors (the "Compensation Committee"),
in its sole and absolute discretion, as eligible to receive benefits under the
Plan, which designation shall be reflected in writing on Exhibit A(1) signed by
the Chairman of the Compensation Committee, and (iii) the Chairman of the Board
of Directors of the Company solely in his or her capacity, and only with
reference to Pay, bonus, stock options and other benefits received, as an
employee of the Company. No other employees of or consultants to the Company
shall be eligible to receive benefits under the Plan. Notwithstanding the above,
the Company may exclude any individual who is an Eligible Employee by virtue of
his or her office under subsection (i) or (iii) above from benefits hereunder in
whole or in part if the Eligible Employee so agrees in writing.
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(b) Eligibility for Benefits under the Plan. An Eligible Employee shall
be eligible for benefits under the Plan if such Eligible Employee's employment
with the Company terminates due to an Involuntary Termination Without Cause or a
Constructive Termination, in either case on or within three (3) months prior to,
upon the occurrence of, or on or within thirteen (13) months following, the
effective date of a Change of Control. In addition, an individual who became an
Eligible Employee prior to September 29, 2008, shall be eligible for benefits
under the Plan if such Eligible Employee's employment with the Company
terminates due to death or Disability on or within thirteen (13) months
following the effective date of a Change of Control. Except as provided in
Section 3(b), an employee who otherwise is an Eligible Employee will not receive
benefits under the Plan if the Eligible Employee's employment with the Company
is terminated due to any reason other than Involuntary Termination Without
Cause, Constructive Termination, death or Disability.
(c) Acknowledgement and Acceptance; Waiver and Release. In order to be
eligible to receive benefits under the Plan, an Eligible Employee must execute
the form of Acknowledgement and Acceptance of Plan Benefits in the form attached
hereto as Exhibit A(2) and, prior to receipt of benefits hereunder, must execute
a general waiver and release substantially in the form attached hereto as
Exhibit B, with any changes required by law, and not revoke or withdraw such
waiver and release.
SECTION 3. BENEFITS.
(a) Cash Severance Payment. Eligible Employees who become eligible for
benefits under the Plan pursuant to Section 2 hereof will receive the cash
severance benefit described in paragraph (i) or (ii) below, as appropriate:
(i). If an Eligible Employee terminates employment with the
Company due to an Involuntary Termination Without Cause or a Constructive
Termination within the time frames of a Change of Control specified in Section
2(b), the cash severance benefit payable under this Plan shall be a lump sum
payment equal to twelve (12) months of Pay and an amount equal to the annual
maximum bonus award that the Eligible Employee is eligible to receive as of the
Termination Date. If an Eligible Employee's bonus is calculated on a monthly or
quarterly basis, the maximum bonus award for these purposes shall be the amount
derived by annualizing the maximum monthly or quarterly payment. Any bonus
payments that have been made to an Eligible Employee during the calendar year
that includes the Termination Date (excluding payments that were earned in past
years) will reduce the amount of the maximum annual bonus award herein.
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(ii). If an individual who became an Eligible Employee prior
to September 29, 2008, terminates employment as an Eligible Employee with the
Company due to death or Disability within the time frames of a Change of Control
specified in Section 2(b) and who has not waived payment of cash severance under
this Plan due to death or Disability , the cash severance benefit payable under
this Plan shall be a lump sum payment equal to six (6) months of Pay and an
amount equal to the annual maximum bonus award that the Eligible Employee is
eligible to receive as of the Termination Date. If an Eligible Employee's bonus
is calculated on a monthly or quarterly basis, the maximum bonus award for these
purposes shall be the amount derived by annualizing the maximum monthly or
quarterly payment. Any bonus payments that have been made to an Eligible
Employee during the calendar year that includes the Termination Date (excluding
payments that were earned in past years) will reduce the amount of the maximum
annual bonus award herein.
(b) Stock Options. Notwithstanding anything herein to the contrary, as
to Eligible Employees who remain in the employment of the Company on the date of
a Change of Control, or whose employment was terminated within three (3) months
beforehand due to Involuntary Termination Without Cause or Constructive
Termination, (i) stock options, if any, that were previously granted to the
Eligible Employee under the Company's discretionary stock plans, including,
without limitation, the Company's 1997 Equity Incentive Plan, shall become 100%
fully vested on the date of the Change of Control (although the term of such
options shall not be extended), and (ii) the Company's repurchase option with
respect to any unvested option shares that were acquired on or before the Change
of Control will expire in full.
(c) COBRA Continuation.
(i) Each Eligible Employee who is enrolled in a group health
plan sponsored by the Company may be eligible to continue coverage under such
group health plan under the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA") at the time of the Eligible Employee's termination of employment.
The Company will notify the individual of any such right to continue health
coverage at the time of termination.
(ii) Each Eligible Employee who terminates employment with the
Company due to Involuntary Termination Without Cause, Constructive Termination,
death or Disability within the time frames of a Change of Control specified in
Section 2(b) and who was enrolled in a group health plan sponsored by the
Company on the Eligible Employee's Termination Date will be entitled to the
following COBRA premium payments. The Company will pay the Eligible Employee's
COBRA premiums during the Severance Period. The Company will pay the COBRA
premiums for the Eligible Employee's dependents during the Severance Period if,
and only to the extent that, such dependents were enrolled in a group health
plan sponsored by the Company prior to the Eligible Employee's Termination Date
and some or all of such dependents' premiums under such plan were paid by the
Company prior to the Eligible Employee's Termination Date. No provision of this
Plan will affect the continuation coverage rules under COBRA, except that the
Company's payment of any applicable premiums during the Severance Period will be
credited as payment by the Eligible Employee for purposes of the Eligible
Employee's payment required under COBRA. Therefore, the period during which an
Eligible Employee must elect to continue the Company's group health coverage at
his or her own expense under COBRA, the length of time during which COBRA
coverage will be made available to the Eligible Employee, and all other rights
and obligations of the Eligible Employee under COBRA (except the obligation to
pay premiums that the Company pays during the Severance Period) will be applied
in the same manner that such rules would apply in the absence of this Plan. At
the conclusion of the Severance Period the Eligible Employee will be responsible
for the entire payment of premiums required under COBRA for the duration of the
COBRA period, if any.
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(d) Outplacement Benefits. Each Eligible Employee will receive
outplacement services through a vendor and program of the Company's choice
following the Eligible Employee's Involuntary Termination Without Cause or
Constructive Termination within the time frames of a Change of Control specified
in Section 2(b). Such outplacement services must commence within twelve (12)
months after the Eligible Employee's Termination Date and be completed within
eighteen (18) months after such Termination Date. Payment for such outplacement
services shall be made directly to the service provider, and the Company shall
not be obligated to make any payments to the Eligible Employee regardless of
whether he or she utilizes such outplacement services and what the cost of any
such outplacement services are. The total cost to the Company of such
outplacement services on an Eligible Employee's behalf shall not exceed a
reasonable amount, taking into account all facts and circumstances, including
the position of the Eligible Employee with the Company at termination of
employment and the going rate for such services at that time.
SECTION 4. LIMITATIONS ON BENEFITS.
(a) Parachute Payments.
(i) If any payment or benefit an Eligible Employee would
receive under this Plan ("Payment"), when combined with any other payment or
benefit such Eligible Employee receives which is treated as contingent on the
occurrence of a change in ownership of the Company within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code") and the
regulations promulgated thereunder, ("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 such Payment shall be either (x) the full amount
of such Payment or (y) such lesser amount (with cash payments being reduced
before stock option compensation) as would result in no portion of the Payment
being subject to the Excise Tax, whichever of the foregoing amounts, taking into
account applicable federal, state and local employment taxes, income taxes, the
Excise Tax, and any other applicable taxes, results in the Eligible Employee's
receipt, on an after-tax basis, of the greater portion of the Payment
notwithstanding that all or some portion of the Payment may be subject to the
Excise Tax.
(ii) Unless the Company and Eligible Employee otherwise agree
in writing, any determination required under this subsection shall be made in
writing by the Company's independent public accountants (the "Accountants"),
whose determination shall be conclusive and binding upon the Eligible Employee
and the Company for all purposes. For purposes of making the calculations
required by this subsection, the Accountants 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. The Company and Eligible Employee shall furnish to the Accountants
such information and documents as the Accountants may reasonably request in
order to make a determination under this subsection. The Company shall bear all
costs the Accountants may reasonably incur in connection with any calculations
contemplated by this subsection.
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(iii) If, notwithstanding any reduction described in this
subsection, the IRS determines that the Eligible Employee is liable for the
Excise Tax as a result of the receipt of the payment of benefits as described
above, then the Eligible Employee shall be obligated to pay back to the Company,
within thirty (30) days after a final IRS determination or in the event that the
Eligible Employee challenges the final IRS determination, a final judicial
determination, a portion of the payment equal to the "Repayment Amount." The
Repayment Amount with respect to the payment of benefits shall be the smallest
such amount, if any, as shall be required to be paid to the Company so that the
Eligible Employee's net after-tax proceeds with respect to any payment of
benefits (after taking into account the payment of the Excise Tax and all other
applicable taxes imposed on such payment) shall be maximized. The Repayment
Amount with respect to the payment of benefits shall be zero if a Repayment
Amount of more than zero would not result in the Eligible Employee's net
after-tax proceeds with respect to the payment of such benefits being maximized.
If the Excise Tax is not eliminated pursuant to this paragraph, the Eligible
Employee shall pay the Excise Tax.
(iv) If the Eligible Employee either (1) brings any action to
enforce rights pursuant to this subsection 4(a), or (2) defends any legal
challenge to his or her rights hereunder, the Eligible Employee shall be
entitled to recover attorneys' fees and costs incurred in connection with such
action, regardless of the outcome of such action; provided, however, that in the
event such action is commenced by the Eligible Employee, the court finds the
claim was brought in good faith.
(b) Duplication of Benefits. Notwithstanding any other provision of the
Plan to the contrary, any benefits payable to an Eligible Employee under this
Plan shall be in lieu of any severance benefits payable by the Company to such
individual under any other arrangement covering the individual, unless expressly
otherwise agreed to by the Company in writing. In the event that any severance
benefits under any other arrangement covering an Eligible Employee become
payable or are otherwise provided to such individual prior to the time that the
Company's liability to pay any severance benefits under the Plan pursuant to
Subsection 5(a) below becomes certain, then benefits paid under such other
arrangement shall be offset against the payments and other benefits provided
hereunder so that the total value of severance payments and benefits to such
individual will not in the aggregate exceed those provided hereunder.
(c) Non-Health Employee Benefits. All non-health benefits (such as life
insurance and disability coverage) shall terminate as of the employee's
Termination Date or as otherwise provided under the terms of the policy or
agreement setting forth the terms of such benefits (except to the extent that
any conversion privilege, at the Eligible Employee's expense, is available
thereunder).
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SECTION 5. TIME OF PAYMENT AND FORM OF BENEFIT; INDEBTEDNESS.
(a) Cash benefits under this Plan as described under Section 3(a) (less
applicable tax withholdings) shall be paid in a lump sum to the Eligible
Employee or his or her assignee according to the following schedule:
(i) if an Eligible Employee's employment terminates either (A)
on or within three (3) months prior to the effective date of a Change of Control
or (B) upon the occurrence of a Change of Control, in either case due to an
Involuntary Termination Without Cause or a Constructive Termination, the
benefits shall be payable at the time at which the Change of Control becomes
effective; or
(ii) if an Eligible Employee's employment terminates upon or
within thirteen (13) months following the effective date of a Change of Control
due to an Involuntary Termination Without Cause, Constructive Termination, death
or Disability, the benefits shall be payable upon the Eligible Employee's
Termination Date.
(b) Notwithstanding the foregoing, no payment shall be required to be
made under this Plan prior to the fifth (5th) business day after the expiration
of any waiting period or revocation period as required by applicable law or set
forth in Exhibit B in order for the general waiver and release required by
Section 2(c) of this Plan to be effective. Such waiver and release shall be
presented to the Eligible Employee for signature no later than ten (10) days
after the date of termination of employment of the Eligible Employee from the
Company or, if the date of termination of employment is prior to the date of a
Change in Control, the occurrence of a Change in Control if the Eligible
Employee is due benefits hereunder as a result thereof.
(c) If an Eligible Employee is indebted to the Company on his or her
Termination Date, the Company reserves the right to offset any severance
payments under the Plan by the amount of such indebtedness. Notwithstanding the
preceding sentence, the Plan may provide for the acceleration of the time or
schedule of a payment, or a payment may be made under the Plan, as satisfaction
of a debt of the Eligible Employee to the Company, only in the event such debt
is incurred in the ordinary course of the service relationship between the
Company and the Eligible Employee, the entire amount of reduction in any of the
Company's taxable years does not exceed $5,000, and the reduction is made at the
same time and in the same amount as the debt otherwise would have been due and
collected from the Eligible Employee. In addition, the Company shall withhold
appropriate federal, state, local and foreign income and employment taxes from
any payments hereunder. In no event shall payment of any Plan benefit be made
prior to the Eligible Employee's Termination Date.
(d) It is the intent of this Plan for amounts payable hereunder to
either meet an exemption from or to comply with the requirements of Section 409A
of the Code and any regulations promulgated thereunder, and any ambiguities
herein will be interpreted and this agreement will be administered to so comply.
Notwithstanding Section 4(a) above, if the Eligible Employee is a "specified
employee" within the meaning of Code Section 409A(a)(2)(B)(i) at the time of the
Eligible Employee's termination of employment, any nonqualified deferred
compensation subject to Code Section 409A that would otherwise have been payable
under this Agreement as a result of, and within the first six (6) months
following, the Eligible Employee's "separation from service", and not by reason
of another event under Section 409A(a)(2)(A), will become payable six (6) months
and one (1) day following the date of the Eligible Employee's separation from
service or, if earlier, the date of Eligible Employee's death
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SECTION 6. RIGHT TO INTERPRET PLAN; AMENDMENT AND TERMINATION; OTHER
ARRANGEMENTS; BINDING NATURE OF PLAN.
(a) Exclusive Discretion. The Plan Administrator shall have the
exclusive discretion and authority to establish rules, forms, and procedures for
the administration of the Plan, and to construe and interpret the Plan and to
decide any and all questions of fact, interpretation, definition, computation or
administration arising in connection with the operation of the Plan, including,
but not limited to, the eligibility to participate in the Plan and the amount of
benefits paid under the Plan. The rules, interpretations, computations and other
actions of the Plan Administrator shall be binding and conclusive on all
persons.
(b) Term Of Plan. This Plan shall be effective until amended, suspended
or terminated by the Company.
(c) Amendment, Suspension Or Termination. The Company reserves the
right to amend, suspend or terminate this Plan or the benefits provided
hereunder at any time; provided, however, that no such amendment, suspension or
termination shall affect the right to any unpaid benefit of any Eligible
Employee whose Termination Date has occurred prior to amendment, suspension or
termination of the Plan; and further provided, that for the period of thirteen
(13) months following the effective date of a Change of Control, the Plan shall
not be amended, suspended or terminated, the Plan Administrator shall not be
removed, and no Eligible Employee shall be reclassified in any manner that would
adversely affect the interests of such Eligible Employee without the written
consent of the Eligible Employee so affected. Subject to the foregoing, this
Plan establishes and vests in each Eligible Employee a contractual right to the
benefits to which such Eligible Employee is entitled hereunder, enforceable by
the Eligible Employee against the Company. Any action amending, suspending or
terminating the Plan may be taken only by the Chief Executive Officer of the
Company or the Compensation Committee and shall be in writing, which writing
must be executed by the Chief Executive Officer of the Company or Compensation
Committee, as applicable; provided, however, that any material amendments to the
Plan must be approved by the Compensation Committee.
(d) Other Severance Arrangements. The Company reserves the right to
make other arrangements regarding severance benefits in special circumstances.
(e) Binding Effect On Successor To Company. This Plan shall be binding
upon any successor or assignee, whether direct or indirect, by purchase, merger,
consolidation or otherwise, to all or substantially all of the business or
assets of the Company, or upon any successor to the Company as the result of a
Change of Control, and any such successor or assignee shall be required to
perform the Company's obligations under the Plan, in the same manner and to the
same extent that the Company would be required to perform if no such succession
or assignment or Change of Control had taken place. In such event, the term
"Company," as used in the Plan, shall mean the Company as hereinafter defined
and any successor or assignee as described above which by reason hereof becomes
bound by the terms and provisions of this Plan.
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SECTION 7. DEFINITIONS.
Capitalized terms used in this Plan, unless defined elsewhere in this
Plan, shall have the following meanings:
(a) Cause means (i) conviction of, a guilty plea with respect to, or a
plea of nolo contendere to, a charge that the Eligible Employee has committed a
felony under the laws of the United States or of any state or a crime involving
moral turpitude, including, but not limited to, fraud, theft, embezzlement or
any crime that results in or is intended to result in personal enrichment at the
expense of the Company; (ii) material breach of any agreement entered into
between the Eligible Employee and the Company that impairs the Company's
interest therein; (iii) willful misconduct or gross neglect by the Eligible
Employee of the Eligible Employee's duties; or (iv) engagement in any activity
that constitutes a material conflict of interest with the Company.
(b) Change of Control means the occurrence of one or more of the
following events: (1) a sale of all or substantially all of the assets of the
Company; (2) a merger or consolidation in which the Company is not the surviving
corporation and the stockholders of the Company immediately prior to such merger
or consolidation fail to acquire at least fifty percent (50%) of the beneficial
ownership of the securities of the surviving corporation (or an entity
controlling the surviving corporation); (3) a reverse merger in which the
Company is the surviving corporation but the shares of the Company's common
shares 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 the stockholders of the Company immediately prior to such merger
fail to acquire at least fifty percent (50%) of the beneficial ownership of the
securities of the Company (or an entity controlling the Company); or (4) the
acquisition in a single transaction or series of related transactions by any
person, entity or group of persons or entities (excluding any employee benefit
plan, or related trust, sponsored or maintained 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 combined voting power entitled
to vote in the election of directors. "Change of Control" shall also mean the
sale by the Company of one or more of the Company's product groups, but only
with respect to those Eligible Employees working exclusively or primarily with
the affected group or groups.
(c) Company means Ore Pharmaceuticals Inc., a Delaware corporation,
including any successor as provided in Section 6(e) hereof, and any affiliate or
related entity of Ore Pharmaceuticals Inc. that is designated by the Company's
Board of Directors.
(d) Constructive Termination means the original definition in
subsection (I) below in the case of an individual who both became an Eligible
Employee prior to September 29, 2008, and did not accept and agree to the
alternative definition in subsection (II) in a signed Exhibit (A)(2) which was
returned to and acknowledged by the Company on or before the earlier of December
31, 2008 or, as to any specific Eligible Employee, such Eligible Employee's
Termination Date. In the case of all other Eligible Employees, Constructive
Termination means the alternative definition in Subsection (II).
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(I) Original Definition. Constructive Termination means that
an Eligible Employee voluntarily terminates his or her employment with the
Company after any of the following are undertaken without the Eligible
Employee's express written consent:
(i) the assignment to the Eligible Employee of any duties
or responsibilities which result in any diminution or adverse change of the
Eligible Employee's position, status or circumstances of employment as in effect
at the beginning of the three (3) month period immediately prior to a Change of
Control, an adverse change in the Eligible Employee's titles or offices or
reporting relationships as in effect at the beginning of the three (3) month
period immediately prior to the effective date of a Change of Control, or any
removal of the Eligible Employee from or any failure to reelect the Eligible
Employee to any of such positions, except in connection with the termination of
the Eligible Employee's service on account of death, disability, retirement, for
Cause, or any voluntary termination of service by the Eligible Employee other
than Constructive Termination;
(ii) a reduction by the Company in the Eligible Employee's
annual base compensation;
(iii) any failure by the Company to continue in effect any
benefit plan or arrangement, including incentive plans or plans to receive
securities of the Company, in which the Eligible Employee is participating at
the time of a Change of Control (hereinafter referred to as "Benefit Plans"), or
the taking of any action by the Company which would adversely affect the
Eligible Employee's participation in or reduce the Eligible Employee's benefits
under any Benefit Plan or deprive the Eligible Employee of any fringe benefit
enjoyed by the Eligible Employee at the time of a Change of Control; provided,
however, that the Eligible Employee will not incur a Constructive Termination
following a Change of Control based on this clause (iii) if the Company offers a
range of benefit plans and programs which, taken as a whole, are comparable to
the Benefit Plans;
(iv) a relocation of the Eligible Employee or the
Company's offices to a location more than twenty five (25) miles from the
location at which the Eligible Employee performed his or her duties prior to a
Change of Control, except for required travel by the Eligible Employee on the
Company's business to an extent substantially consistent with the Eligible
Employee's business travel obligations at the time of a Change of Control;
(v) any breach by the Company of any provision of this
Plan; or
(vi) any failure by the Company to obtain the assumption
of this Plan by any successor or assign of the Company.
(II) Alternative Definition. Constructive Termination means
that an Eligible Employee voluntarily terminates his or her employment with the
Company within thirteen (13) months following the initial existence of one or
more of the following conditions arising without the consent of the Eligible
Employee:
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(i) A material diminution in the Eligible Employee's base
compensation.
(ii) A material diminution in the Eligible Employee's
authority, duties, or responsibilities.
(iii) A material diminution in the authority, duties, or
responsibilities of the supervisor to whom the Eligible Employee is required to
report, including a requirement that an Eligible Employee report to a corporate
officer or employee instead of reporting directly to the Board of Directors (if
the Eligible Employee previously reported directly to the Board of Directors).
(iv) A material change in the geographic location at which
the Eligible Employee must perform the services.
(v) Any other action or inaction that constitutes a
material breach by the Company of the agreement under which the Eligible
Employee provides services.
Under this alternative definition of Constructive Termination, the
Eligible Employee must provide notice to the Company of the existence of one or
more of the conditions described in (i) through (v) above within a period not to
exceed ninety (90) days of the initial existence of the condition, upon the
notice of which the Company will have a period of at least thirty (30) days
during which it may remedy the condition. In the event the Company remedies the
condition specified in such a notice, the condition shall not be grounds for a
Constructive Termination. A Constructive Termination meeting the above
requirements will be treated the same hereunder as an Involuntary Termination
Without Cause.
(e) Disability means the inability of an Eligible Employee, in the
opinion of a qualified physician acceptable to the Company, in the good faith
determination of the Company, to perform the major duties of that Eligible
Employee's position with the Company because of the sickness or injury of the
Eligible Employee. Notwithstanding the above, an Eligible Employee shall be
considered as being under a Disability only if the Eligible Employee is disabled
within the meaning of Code Section 409A(a)(2)(C).
(f) Eligible Employee means an employee of the Company who is eligible
to participate in the Plan as specified in Section 2 hereof.
(g) Involuntary Termination Without Cause means the Eligible Employee's
dismissal or discharge by the Company (or, if applicable, by any successor
entity) for a reason other than "Cause." Termination due to an Eligible
Employee's death or Disability shall not constitute Involuntary Termination
Without Cause.
(h) Pay means the Eligible Employee's base pay (exclusive of bonuses,
shift differentials, overtime and other forms of supplemental compensation) at
the rate in effect during the last regularly scheduled payroll period
immediately preceding the Eligible Employee's Termination Date.
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(i) Plan means this Executive Severance Plan.
(j) Severance Period means the number of months of Pay used for
calculating the Eligible Employee's cash severance benefits, as specified in
Section 3(a) of the Plan; provided, however, that the Severance Period shall not
continue for longer than the period for which the Eligible Employee or the
covered dependent, as applicable, is entitled to COBRA continuation coverage
under the Company's group health plan.
(k) Termination Date means the last date on which the Eligible Employee
is in active pay status with the Company. A holiday cannot constitute a
Termination Date unless the Eligible Employee actively provided services for the
Company on such holiday. Notwithstanding the above, except as regards COBRA
entitlement, a Termination Date shall have the same meaning as the term
"separation from service" under Code Section 409A(a)(2)(A)(i).
SECTION 8. NO IMPLIED EMPLOYMENT CONTRACT.
The Plan shall not be deemed (i) to give any employee or other person
any right to be retained in the employ of the Company or (ii) to interfere with
the right of the Company to discharge any employee or other person at any time
and for any reason or no reason, with or without notice, which right is hereby
reserved.
SECTION 9. MODIFICATION; WAIVER; ENTIRE AGREEMENT; NON-PUBLICATION.
(a) No provisions of the Plan may be modified, waived or discharged
unless such modification, waiver or discharge is agreed to in writing signed by
the Chief Executive Officer of the Company and, to the extent such modification,
waiver or discharge would have a material adverse impact on him or her, by the
Eligible Employee. No waiver by either party hereto at any time of any breach by
the other party of, or compliance with, any condition or provision of the Plan
to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or any prior or subsequent time.
No agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in or referred to in the Plan.
(b) The parties mutually agree not to disclose publicly the terms of
the Plan except to the extent that disclosure is mandated by applicable law.
SECTION 10. LEGAL CONSTRUCTION.
This Plan is intended to be governed by and shall be construed in
accordance with ERISA and, to the extent not preempted by ERISA, the laws of the
State of Maryland.
SECTION 11. CLAIMS, INQUIRIES AND APPEALS.
(a) Applications For Benefits And Inquiries. Any application for
benefits, inquiries about the Plan or inquiries about present or future rights
under the Plan must be submitted to the Plan Administrator in writing. The
address of the Plan Administrator is:
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ORE PHARMACEUTICALS INC.
ATTN: Plan Administrator for the
Executive Severance Plan
610 Professional Drive, Suite 101
Gaithersburg, Maryland 20879
(b) Denial Of Claims. In the event that any application for benefits is
denied in whole or in part, the Plan Administrator must notify the applicant, in
writing, of the denial of the application, and of the applicant's right to
review the denial. The written notice of denial will be set forth in a manner
designed to be understood by the employee, and will include specific reasons for
the denial, specific references to the Plan provision upon which the denial is
based, a description of any information or material that the Plan Administrator
needs to complete the review and an explanation of the Plan's review procedure.
This written notice will be given to the employee within 90 days after
the Plan Administrator receives the application, unless special circumstances
require an extension of time, in which case, the Plan Administrator has up to an
additional 90 days for processing the application. If an extension of time for
processing is required, written notice of the extension will be furnished to the
applicant before the end of the initial 90-day period.
This notice of extension will describe the special circumstances
necessitating the additional time and the date by which the Plan Administrator
is to render its decision on the application. If written notice of denial of the
application for benefits is not furnished within the specified time, the
application shall be deemed to be denied. The applicant will then be permitted
to appeal the denial in accordance with the Review Procedure described below.
(c) Request For A Review. Any person (or that person's authorized
representative) for whom an application for benefits is denied (or deemed
denied), in whole or in part, may appeal the denial by submitting a request for
a review to the Plan Administrator within 60 days after the application is
denied (or deemed denied). The Plan Administrator will give the applicant (or
his or her representative) an opportunity to review pertinent documents in
preparing a request for a review. A request for a review shall be in writing and
shall be addressed to:
ORE PHARMACEUTICALS INC.
ATTN: Plan Administrator for the
Executive Severance Plan
610 Professional Drive, Suite 101
Gaithersburg, Maryland 20879
A request for review must set forth all of the grounds on which it is based, all
facts in support of the request and any other matters that the applicant feels
are pertinent. The Plan Administrator may require the applicant to submit
additional facts, documents or other material as it may find necessary or
appropriate in making its review.
(d) Decision On Review. The Plan Administrator will act on each request
for review within 60 days after receipt of the request, unless special
circumstances require an extension of time (not to exceed an additional 60
days), for processing the request for a review. If an extension for review is
required, written notice of the extension will be furnished to the applicant
within the initial 60-day period. The Plan Administrator will give prompt,
written notice of its decision to the applicant. In the event that the Plan
Administrator confirms the denial of the application for benefits in whole or in
part, the notice will outline, in a manner calculated to be understood by the
applicant, the specific Plan provisions upon which the decision is based. If
written notice of the Plan Administrator's decision is not given to the
applicant within the time prescribed in this subsection (d), the application
will be deemed denied on review.
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(e) Rules And Procedures. The Plan Administrator will establish rules
and procedures, consistent with the Plan and with ERISA, as necessary and
appropriate in carrying out its responsibilities in reviewing benefit claims.
The Plan Administrator may require an applicant who wishes to submit additional
information in connection with an appeal from the denial (or deemed denial) of
benefits to do so at the applicant's own expense.
(f) Exhaustion Of Remedies. No legal action for benefits under the Plan
may be brought until the claimant (i) has submitted a written application for
benefits in accordance with the procedures described by Section 11(a) above,
(ii) has been notified by the Plan Administrator that the application is denied
(or the application is deemed denied due to the Plan Administrator's failure to
act on it within the established time period), (iii) has filed a written request
for a review of the application in accordance with the appeal procedure
described in Section 11(c) above and (iv) has been notified in writing that the
Plan Administrator has denied the appeal (or the appeal is deemed to be denied
due to the Plan Administrator's failure to take any action on the claim within
the time prescribed by Section 11(d) above).
SECTION 12. BASIS OF PAYMENTS TO AND FROM PLAN.
All benefits under the Plan shall be paid by the Company. The Plan
shall be unfunded, and benefits hereunder shall be paid only from the general
assets of the Company.
SECTION 13. OTHER PLAN INFORMATION.
(a) Employer And Plan Identification Numbers. The Employer
Identification Number assigned to the Company (which is the "Plan Sponsor" as
that term is used in ERISA) by the Internal Revenue Service is 06-1411336. The
Plan Number assigned to the Plan by the Plan Sponsor pursuant to the
instructions of the Internal Revenue Service is 510.
(b) Ending Date For Plan's Fiscal Year. The date of the end of the
fiscal year for the purpose of maintaining the Plan's records is December 31.
(c) Agent For The Service Of Legal Process. The agent for the service
of legal process with respect to the Plan is Vice President of Human Resources
and Administration, Ore Pharmaceuticals Inc., 610 Professional Drive, Suite 101,
Gaithersburg, Maryland 20879. The service of legal process may also be made on
the Plan by serving the Plan Administrator.
(d) Plan Sponsor And Administrator. The "Plan Sponsor" is Ore
Pharmaceuticals Inc., 610 Professional Drive, Suite 101, Gaithersburg, Maryland
20879. The "Plan Administrator" is the Chief Executive Officer of the Company or
his or her designee. The Plan Sponsor's and Plan Administrator's telephone
number is (240) 361-4400. The Plan Administrator is the named fiduciary charged
with the responsibility for administering the Plan.
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SECTION 14. STATEMENT OF ERISA RIGHTS.
Participants in this Plan (which is a welfare benefit plan sponsored by
ORE PHARMACEUTICALS INC.) are entitled to certain rights and protections under
ERISA. If you are an Eligible Employee, you are considered a participant in the
Plan and, under ERISA, you are entitled to:
(a) Examine, without charge, at the Plan Administrator's office and at
other specified locations, such as work sites, all Plan documents and copies of
all documents filed by the Plan with the U.S. Department of Labor, such as
detailed annual reports;
(b) Obtain copies of all Plan documents and Plan information upon
written request to the Plan Administrator. The Administrator may make a
reasonable charge for the copies;
(c) Receive a summary of the Plan's annual financial report, in the
case of a plan which is required to file an annual financial report with the
Department of Labor. (Generally, all pension plans and welfare plans with 100 or
more participants must file these annual reports.)
In addition to creating rights for Plan participants, ERISA imposes
duties upon the people responsible for the operation of the employee benefit
plan. The people who operate the Plan, called "fiduciaries" of the Plan, have a
duty to do so prudently and in the interest of you and other Plan participants
and beneficiaries.
No one, including your employer or any other person, may fire you or
otherwise discriminate against you in any way to prevent you from obtaining a
Plan benefit or exercising your rights under ERISA. If your claim for a Plan
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 obtain copies of documents
relating to the decision without charge and to have the Plan review and
reconsider your claim, all within certain time limits.
Under ERISA, there are steps you can take to enforce the above rights.
For instance, if you request materials from the Plan 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 Plan Administrator to provide the materials and pay you up to
$110 a day until you receive the materials, unless the materials were not sent
because of reasons beyond the control of the Plan Administrator. If you have a
claim for benefits that is denied or ignored, in whole or in part, you may file
suit in a state or federal court. If it should happen that the Plan fiduciaries
misuse the Plan's money, or if 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. The court will decide who should 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 your claim is frivolous.
If you have any questions about this statement or about your rights
under ERISA, you should contact the nearest office of the Employee Benefits
Security 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.
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SECTION 15. EXECUTION.
To record the adoption of the amendment and restatement of the Plan as
set forth herein, effective as of September 29, 2008, by the Company's Board of
Directors, the Company has caused its duly authorized officer to execute same on
its behalf.
ORE PHARMACEUTICALS INC.
By:
--------------------------------
Title:
-----------------------------
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