exv10w64



 





EXHIBIT 10.64




AMENDMENT TO EMPLOYMENT AGREEMENT




     This Amendment to Employment Agreement (the “Amendment”) is entered into effective as
of July 16, 2007 (the “Effective Date”), by and between Jean-Loup Romet-Lemonne (the
“Executive”) and IDM Pharma, Inc., a Delaware corporation (the “Company”).



Recitals




     A. The Company and the Executive have executed that certain Employment Agreement dated as of
April 21, 2005 (the “Original Agreement”).



     B. In consideration of the premises, and other good and valuable consideration, receipt of
which is hereby acknowledged by the parties, the Company and the Executive desire to amend the
Original Agreement and provide for Executive’s resignation from the Company’s Board of Directors as
specified herein, in each case effective as of the Effective Date.



Agreement




     The Company and the Executive, intending to be legally bound, agree as follows effective as of
the Effective Date:



1. Amendment of Original Agreement.




          (a) Deletion of Sections 2.2 and 2.3. Sections 2.2 and 2.3 of the Original Agreement are
hereby deleted in their entirety.




          (b) Amendment of Section 4.4.4. The first paragraph of Section 4.4.4 of the Original
Agreement is hereby amended to read as follows:





     “4.4.4 With Good Reason. If the Executive resigns with Good Reason,
then the Company shall pay the Executive’s Base Salary and accrued and
unused vacation earned through the date of termination, at the rate in
effect at the time of termination subject to standard deductions and
withholdings. In addition, subject to the limitations stated in Section
4.4.6 herein and upon the Executive’s furnishing to the Company, an
effective waiver and release of claims (a form of which is attached hereto
as Exhibit A), within the time period set forth therein, but in no event
later than forty-five (45) days following termination (the “Release”), and
such Release becoming effective in accordance with its terms, the Executive
shall be entitled to:”



          (c) Amendment of Section 4.4.5. The first paragraph of Section 4.4.5 of the Original
Agreement is hereby amended to read as follows:





     “4.4.5 Without Cause. If the Company terminates the Executive’s
employment without Cause, the Company shall pay the Executive’s Base Salary
and accrued and unused vacation earned through



 









 







the date of termination, at the rate in effect at the time of
termination subject to standard deductions and withholdings. In addition,
subject to the limitations stated in Section 4.4.6 herein and upon the
Executive’s furnishing to the Company the Release within the time period set
forth therein, but in no event later than forty-five (45) days following
termination, and such Release becoming effective in accordance with its
terms, the Executive shall be entitled to:”



          (d) Amendment of Section 4.4.5(i). Section 4.4.5(i) of the Original Agreement is hereby
amended to read in its entirety as follows:





     “(i) continuation of the Executive’s annual Base Salary in effect at
the time of termination for a period beginning upon the Effective Date of
the Release and continuing for twenty four (24) months thereafter (the
“Without Cause Severance Period”), less standard deductions and
withholdings, paid pursuant to the Company’s standard payroll practices;
and”



          (e) Amendment of Section 4.5.2. Section 4.5.2 of the Original Agreement is hereby amended to
read in its entirety as follows:





     “4.5.2 Good Reason. For purposes of this Agreement, Executive shall have
“Good Reason” for Executive’s resignation if: (w) any of the following occurs
without Executive’s consent; (x) Executive notifies the Company in writing that
Executive intends to terminate his employment no earlier than thirty (30) days after
providing the notice required by Section 4.2.1 of this Agreement; (y) the Company
does not cure such condition within thirty (30) days following its receipt of such
notice or states unequivocally in writing that it does not intend to attempt to cure
such condition, and (z) the Executive resigns from employment within thirty (30)
days following the end of the period within which the Company was entitled to remedy
the condition constituting Good Reason but failed to do so:




     (i) without the Executive’s consent, a material reduction in the Executive’s
duties, authority, or responsibilities relative to the duties, authority, or
responsibilities in effect immediately prior to such reduction;




     (ii) without the Executive’s consent, the relocation of the Executive’s
principal place of business to a point that is not within thirty five (35) miles of
either 5820 Nancy Ridge Drive, San Diego, California, or 9 Parker, Irvine,
California;




     (iii) a material reduction by the Company of the Executive’s base salary as
initially set forth herein or as the same may be increased from time to time,
provided that if such reduction occurs in connection with a Company wide decrease in
Executive salaries and the percent decrease in the Executive’s base salary does not
exceed the percent decrease in base salary of any other executive



 









 







of the Company such reduction will not constitute Good Reason to
terminate Executive’s employment for purposes of this Agreement; or




     (iv) a material breach by the Company of Section 6 of this Agreement.”



          (f) Amendment of Section 6: The following provision is added to the end of Section 6 of the
Original Agreement:





     “The Company shall obtain the assumption of this Agreement by any successor
or assign of the Company. which shall agree to assume the obligations and perform
all of the terms and conditions of this Agreement.”



          (g) New Section 19: A new Section 19 is hereby added to the Original Agreement as follows:





     “19. Deferred Compensation. Severance benefits payable pursuant to this
Agreement, to the extent of payments made from the date of termination of
Executive’s employment through March 15th of the calendar year following such
termination, are intended to constitute separate payments for purposes of Section
1.409A-2(b)(2) of the Treasury Regulations and thus payable pursuant to the
“short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury
Regulations; to the extent such payments are made following said March 15th, they
are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2)
of the Treasury Regulations made upon an involuntary termination from service and
payable pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations, to the
maximum extent permitted by said provision, with any excess amount being regarded as
subject to the distribution requirements of Section 409A(a)(2)(A) of the Code,
including, without limitation, the requirement of Section 409A(a)(2)(B)(i) of the
Code that payment to Executive be delayed until 6 months after Executive’s
separation from service if Executive is a “specified employee” within the meaning of
the aforesaid section of the Code at the time of such separation from service.”



     2. Board Resignation and Removal.



          (a) Resignation. By executing this Amendment, Executive hereby resigns from the Company’s
Board of Directors as of the Effective Date




          (b) Removal from Board. As of the Effective Date the Executive shall be automatically removed
from the Board without the necessity of any formal action by the Board.




     3. Miscellaneous Provisions.



          (a) Original Agreement. The Original Agreement, as amended by this Amendment, shall continue
in full force and effect after the date hereof. This Amendment shall not affect the Executive’s
execution of that certain Waiver and Release signed on June 5, 2007
(the “Release”), which shall remain in full force and effect, nor the Executive’s entitlement to




 









 







benefits pursuant to Section 4.4.5 the Original Agreement (as modified by section 1(d) of this
Amendment) based on the execution of the Release.




          (b) Whole Agreement. No agreements, representations or understandings (whether oral or
written and whether express or implied) which are not expressly set forth in the Original
Agreement, as amended by this Amendment, have been made or entered into by either party with
respect to the subject matter of this Amendment.




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     In Witness Whereof, each of the parties has executed this Amendment, in the case of
the Company by its duly authorized officer, effective as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	“Company”	 	 
	 
	 	 	 	 	 	 
	 	 	IDM Pharma, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Sylvie Grégoire	 	 
	 

	 	 	 	 

     [Name]
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	     Title:    Chairman of the Board	 	 
	 
	 	 	 	 	 	 
	 	 	“Executive”	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Jean-Loup Romet-Lemonne	 	 
	 	 	 	 	 
	 	 	Jean-Loup Romet-Lemonne