form8k.htm

0001140361-10-030915.txt : 20100802 0001140361-10-030915.hdr.sgml : 20100802 20100730211233 ACCESSION NUMBER: 0001140361-10-030915 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20100728 ITEM INFORMATION: Completion of Acquisition or Disposition of Assets ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20100802 DATE AS OF CHANGE: 20100730 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VAXGEN INC CENTRAL INDEX KEY: 0001036968 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 943236309 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-26483 FILM NUMBER: 10982551 BUSINESS ADDRESS: STREET 1: 343 OYSTER POINT CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 BUSINESS PHONE: (650) 624-1000 MAIL ADDRESS: STREET 1: 343 OYSTER POINT CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 8-K 1 form8k.htm VAXGEN, INC 8-K 7-28-2010 form8k.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): July 28, 2010

VAXGEN, INC.

(Exact Name of Registrant as Specified in its Charter)

Delaware	0-26483	94-3236309
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

379 Oyster Point Boulevard, Suite 10, South San Francisco, California 94080

(Address of Principal Executive Offices) (Zip Code)

Registrant’s telephone number, including area code: (650) 624-1000

N/A

(Former Name or Former Address, if Changed Since Last Report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

o	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 2.01. Completion of Acquisition or Disposition of Assets.

On July 28, 2010, VaxGen, Inc. (“VaxGen”) announced the closing of its merger transaction with privately-held diaDexus, Inc. (“diaDexus”) pursuant to the Agreement and Plan of Merger and Reorganization, dated as of May 28, 2010, as amended June 24, 2010 (the “Merger Agreement”), by and among VaxGen, diaDexus, Violet Acquisition Corporation, a wholly owned subsidiary of VaxGen (“Merger Sub I”), Violet Acquisition, LLC, a wholly owned subsidiary of VaxGen (“Merger Sub II”), and John E. Hamer, as the representative of diaDexus’ stockholders. Pursuant to the Merger Agreement, diaDexus became a wholly owned subsidiary of VaxGen through a merger of Merger Sub I with and into diaDexus with diaDexus as the surviving company (“Merger I”) and, immediately foll owing the effectiveness of Merger I, a merger of diaDexus with and into Merger Sub II with Merger Sub II as the surviving entity (“Merger II” and together with Merger I, the “Merger”).

Upon completion of the Merger and subject to the terms and conditions of the Merger Agreement, each outstanding share of Series F Preferred Stock of diaDexus (“diaDexus Series F Preferred”) converted into the right to receive approximately 1.7583 shares of common stock of VaxGen, which in the aggregate totaled approximately 19,059,144 shares of VaxGen common stock. In addition, in accordance with the Merger Agreement and the diaDexus Retention Bonus Plan, as amended and restated as of June 24, 2010 (the “Retention Bonus Plan”), (i) VaxGen issued 901,390 shares of VaxGen common stock to the executive officers of diaDexus and (ii) paid or will pay approximately $90,048 in cash to the executive officers of diaDexus to satisfy certain withholding obligations incurred in connection with issuance of the afore mentioned shares of VaxGen common stock and $136,729 in cash to non-officer employees of diaDexus. As of July 28, 2010, after giving effect to the Merger and the issuance of VaxGen common stock to the executive officers of diaDexus, VaxGen had 53,067,057 shares of common stock issued and outstanding, with the former holders of diaDexus Series F Preferred and the executive officers of diaDexus collectively owning approximately 38%, and the pre-Merger VaxGen stockholders owning approximately 62%, of the outstanding VaxGen common stock.

Approximately 10% of the shares issued in the Merger have been placed in escrow to satisfy indemnification obligations, if any, of the former holders of diaDexus Series F Preferred and the executive officers of diaDexus pursuant to the Merger Agreement. The escrow will expire on July 28, 2011.

Pursuant to a bridge financing entered into by diaDexus on May 28, 2010 in connection with the execution of the Merger Agreement, diaDexus issued to VaxGen a secured promissory note for an amount up to $6 million and issued to certain stockholders of diaDexus secured promissory notes in the aggregate amount of $1.5 million. In connection with the completion of the Merger, VaxGen forgave the full remaining amount of its secured promissory note (approximately $4 million principal balance at the time of the Merger), and VaxGen and diaDexus repaid in full the other outstanding secured promissory notes held by the former diaDexus stockholders. One of the secured promissory notes was held by a fund affiliated with Louis C. Bock, who was appointed to the Board of Directors of VaxGen in connection with the Merger. 0;See Item 5.02 of this Form 8-K for additional information.

Pursuant to the terms of the Merger Agreement, former diaDexus directors Patrick Plewman, Louis C. Bock and Charles W. Patrick were appointed to the Board of Directors of VaxGen immediately after the effective time of Merger II. The officers of diaDexus were appointed as the officers of VaxGen, with Patrick Plewman to serve as President and Chief Executive Officer, David J. Foster to serve as Executive Vice President, Chief Financial Officer and Secretary, Robert L. Wolfert to serve as Executive Vice President and Chief Scientific Officer, and Bernard M. Alfano to serve as Executive Vice President and Chief Commercial Officer. See Item 5.02 of this Form 8-K for additional information regarding VaxGen’s officers and directors.

The Merger Agreement is filed herewith as Exhibit 2.1 and Amendment No. 1 to the Merger Agreement, dated as of June 24, 2010, is filed herewith as Exhibit 2.2, and each is incorporated herein by reference.

Item 3.02. Unregistered Sales of Equity Securities.

On July 28, 2010 in connection with the Merger, VaxGen issued an aggregate of 19,960,534 shares of VaxGen common stock to the former holders of diaDexus Series F Preferred and to the executive officers of diaDexus. VaxGen issued (i) 1.7583 shares of VaxGen common stock for each share of diaDexus Series F Preferred, which resulted in the aggregate issuance of approximately 19,059,144 shares, pursuant and subject to the terms and conditions of the Merger Agreement and (ii) 901,390 shares of VaxGen common stock to the executive officers of diaDexus allocated pursuant and subject to the terms and conditions of the Retention Bonus Plan and the Merger Agreement.

The issuance of the shares of VaxGen common stock to the former holders of diaDexus Series F Preferred in connection with the Merger and to the executive officers of diaDexus in accordance with the Retention Bonus Plan were made pursuant to a private placement in reliance upon the exemption from registration pursuant to Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”), and/or Rule 506 thereunder. Each of the 21 holders of diaDexus Series F Preferred and each of the four executive officer participants in the Retention Bonus Plan were “accredited investors” as defined in Rule 501(a) under the Securities Act. Each recipient represented that it was acquiring the securities for investment purposes for its own account and not with a view toward distribution of the secur ities. Additionally, VaxGen advised each recipient that the securities issued to them in connection with the Merger had not been registered under the Securities Act and may not be sold unless they are registered under the Securities Act or sold pursuant to a valid exemption from registration under the Securities Act. The certificates representing the subject shares were issued with the appropriate restrictive legend. Additionally, VaxGen did not engage in any general solicitation or advertisement for the issuance of the VaxGen common shares to the recipients in connection with the Merger.

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Directors

Pursuant to the terms of the Merger Agreement, each of Franklin M. Berger and Kevin L. Reilly resigned from VaxGen’s Board of Directors effective as of the effective time of Merger II on July 28, 2010. Patrick Plewman, Louis C. Bock and Charles W. Patrick were appointed to the Board of Directors effective immediately after the effective time of Merger II on July 28, 2010 to fill three vacancies on the Board of Directors. Lori F. Rafield and James P. Panek will continue to serve as directors of VaxGen. On July 29, 2010, (i) Dr. Rafield was appointed Chairman of the Board of Directors, (ii) Messrs. Bock, Panek and Patrick were appointed as members of the Audit Committee (with Mr. Bock to serve as chair of such committee), and (iii) Messrs. Bock, Panek and Patrick and Dr. Rafield were appointed as members of the Compensation Committee.

Compensation

Pursuant to VaxGen’s Non-Employee Director Cash Compensation Policy, adopted by the Board of Directors on July 29, 2010, (i) each of VaxGen’s non-employee directors (other than the Chairman of the Board) will receive an annual retainer fee of $25,000, (ii) the Chairman of the Board will receive an annual retainer fee of $40,000, (iii) each member of the Audit Committee (other than the chair) will receive an annual retainer fee of $7,500, and (iv) the chair of the Audit Committee will receive an annual retainer fee of $15,000. The members of the Compensation Committee will not be separately compensated for their services in such capacity.

On July 29, 2010, the Board of Directors approved option grants under VaxGen’s Amended and Restated 1996 Stock Option Plan to certain members of the Board of Directors. Specifically, the Board of Directors granted an option to purchase 60,000 shares of VaxGen common stock to each of Messrs. Panek, Patrick and Bock and an option to purchase 90,000 shares of VaxGen common stock to Dr. Rafield, in each case, with an exercise price of $0.26 per share, vesting in substantially equal monthly installments over a period of 12 months. Mr. Panek and Dr. Rafield each agreed to surrender their previously-granted options to purchase VaxGen common stock.

Indemnity Agreements

Each of VaxGen’s newly appointed directors will enter into VaxGen’s standard indemnity agreement.

Bridge Loan Payment

Mr. Bock is a Managing Director of Scale Venture Management I, LLC, which is the General Partner of BAVP, LP. Pursuant to the bridge financing entered into by diaDexus on May 28, 2010 in connection with the execution of the Merger Agreement, diaDexus issued a secured promissory note to BAVP, LP in the principal amount of $420,472, which note accrued simple interest of 10% per annum. In connection with the closing of the Merger, diaDexus repaid in full the principal balance and accrued interest (approximately $427,499) of the secured promissory note.

Executive Officers

Pursuant to the terms of the Merger Agreement, James P. Panek resigned from his position as President of VaxGen effective as of the effective time of Merger II on July 28, 2010, with his employment to be terminated by VaxGen on July 31, 2010. In connection with the termination of his employment, Mr. Panek will receive severance benefits, including a $193,050 cash payment, health insurance continuation coverage and payment of certain accrued benefits, all as provided in his existing Amended and Restated Employment Agreement, dated April 20, 2010, as amended May 27, 2010 (the “Panek Agreement”). Mr. Panek is also entitled to receive a one-time cash bonus of $52,000 as a result of the completion of the Merger, as also provided in the Panek Agreement.

Effective immediately following the effective time of Merger II on July 28, 2010, the Board of Directors appointed Patrick Plewman to serve as President and Chief Executive Officer, David J. Foster to serve as Executive Vice President, Chief Financial Officer and Secretary, Robert L. Wolfert to serve as Executive Vice President and Chief Scientific Officer, and Bernard M. Alfano to serve as Executive Vice President and Chief Commercial Officer of VaxGen.

Patrick Plewman, age 44, served as Chief Executive Officer of diaDexus from June 2000 to July 2010, a Director of diaDexus from April 2000 to July 2010, and President of diaDexus from December 1999 to July 2010. From diaDexus’ inception in August 1997 through June 1999, Mr. Plewman served as diaDexus’ Vice President of Corporate Development and from July 1999 served as diaDexus’ Chief Operating Officer. From 1989 to 1997, Mr. Plewman served in various capacities at SmithKline Beecham Corporation, most recently as Director, Business Development – Molecular Diagnostics, leading the formation and spin-out of diaDexus from SmithKline Beecham Corporation in 1997. Mr. Plewman was a Phi Beta Kappa graduate and Morehead-Cain Scholar at the University of North Carolina at Chapel Hill where he received a B.A. in Chemistry and Political Science. Mr. Plewman also holds an M.B.A. from Harvard Business School.

David J. Foster, age 53, served as diaDexus’ Executive Vice President, Finance and Administration and Chief Financial Officer from February 2007 to July 2010. Since 2008, Mr. Foster has also served as a member of the board of directors of NovaRay Medical, Inc., a developer of digital x-ray technology for medical imaging. From July 2005 until February 2007, he served as a consultant to various companies. From 2002 to 2005, Mr. Foster served as Senior Vice President and Chief Financial Officer of Argonaut Technologies, Inc., a publicly owned chemistry instrument and consumables company. Previously, Mr. Foster was a co-founder and Chief Executive Officer of Cohesion Technologies Inc., a publicly owned, medical technology start-up. From 1984 to 1997, Mr. Foster served in various capacities at Collagen C orporation, a global, public medical technology company, most recently as Senior Vice President and General Manager of Collagen Technologies. He also served as an officer at Collagen Corporation for seven years, including five years as Chief Financial Officer. Mr. Foster holds a B.S. in Mechanical Engineering and an M.B.A. from the University of California at Berkeley.

Bernard M. Alfano, age 49, served as diaDexus’ Executive Vice President and Chief Commercial Officer from May 2009 to July 2010 and previously served as diaDexus’ Executive Vice President, Sales and Marketing from February 2007 to April 2009. From 2001 to 2006, Mr. Alfano held various senior management positions within IRIS Diagnostics, a division of publicly owned International Remote Imaging Systems, Inc. (“IRIS”), ultimately serving as President from 2005 to 2006. Prior to joining IRIS, he served as Vice President, Business and Product Development at OxiBio, Inc. and as Vice President, Global Sales and Marketing at Litmus Concepts Inc., two early stage biotech companies. Mr. Alfano has more than 20 years experience in medical devices and diagnostics including companies such as C .R. Bard, Inc., Syntex Corporation and Johnson & Johnson earlier in his career. He received a B.A. in Business Administration from Seattle University.

Robert L. Wolfert, age 56, served as diaDexus’ Executive Vice President and Chief Scientific Officer from May 2008 to July 2010 and previously served as diaDexus’ Executive Vice President, Diagnostics from 2006. Dr. Wolfert joined diaDexus as Vice President, Diagnostics in 2000. From 1999 to 2000, Dr. Wolfert was Vice President, Research and Development of Atairgin Technologies Inc., a biotechnology company. From 1984 to 1999, Dr. Wolfert served in various capacities at Hybritech Incorporated where he most recently held the position of Director of Immunodiagnostics Research. Dr. Wolfert holds a B.A. in Chemistry and Biology from Cornell University and a Ph.D. in Biochemistry and Immunology from Tufts University School of Medicine.

The Merger Agreement provided that each of Messrs. Plewman, Foster and Alfano and Dr. Wolfert would be appointed to serve in the positions indicated for VaxGen immediately following the consummation of the Merger. There are no family relationships between any of Messrs. Plewman, Foster and Alfano and Dr. Wolfert and/or any of VaxGen’s directors.

Executive Agreements

Terms of Patrick Plewman’s Employment Agreement

diaDexus entered into an Amended and Restated Employment Agreement with Patrick Plewman, its President and Chief Executive Officer, effective as of May 1, 2008 (the “Plewman Agreement”). Upon consummation of the Merger, VaxGen succeeded to all rights and obligations under the Plewman Agreement.

VaxGen’s Board of Directors has set Mr. Plewman’s base salary at $380,000. Mr. Plewman is also eligible to earn an annual bonus based upon specified performance criteria. Mr. Plewman’s base salary and annual bonus are each subject to review annually for possible increases in light of Mr. Plewman’s performance and competitive data. Mr. Plewman is also eligible to receive stock option grants and other equity awards as are approved by the Board of Directors. Under the Plewman Agreement, if Mr. Plewman is terminated without cause or he is constructively terminated and he signs and does not revoke a standard form of release of claims, Mr. Plewman will be entitled to the following severance:

Payment of an amount equal to one year of his base salary less applicable withholding, payable in substantially equal bi-monthly installments (the “Plewman Cash Severance”);

All outstanding options for common stock and other equity-based awards held by Mr. Plewman will become fully vested and exercisable and any restrictions on unvested shares of common stock held by Mr. Plewman will lapse;

Payment of group health, dental and vision plan continuation coverage premiums and, if applicable, covered dependents, for the lesser of 12 months from the termination of service or the date upon which he and his covered dependents are covered by similar plans by Mr. Plewman’s new employer; and

Reimbursement of relocation expenses for Mr. Plewman and his family from the San Francisco Bay Area, California, to the United Kingdom incurred within 12 months of Mr. Plewman’s termination.

If Mr. Plewman dies or becomes permanently disabled during the term of the Plewman Agreement, Mr. Plewman will be treated as if he had been terminated without cause for the purpose of severance benefits.

The foregoing description of the Plewman Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Plewman Agreement, which is attached as Exhibit 10.1 to this Current Report on Form 8-K, and is incorporated herein by reference.

Guaranty of Monetary Compensation to Patrick Plewman

Pursuant to the Merger Agreement, VaxGen entered into a Guaranty, dated July 28, 2010, in favor of Mr. Plewman, (the “Plewman Guaranty”), which provides that VaxGen will guarantee the payment when due of the base salary, bonuses and the Plewman Cash Severance owed to Mr. Plewman pursuant to the Plewman Agreement. The maximum amount of the guaranty is limited to the sum of remaining amounts payable with respect to payments of base salary, bonuses accruing after the effective time of Merger II and the Plewman Cash Severance.

The foregoing description of the Plewman Guaranty does not purport to be complete and is qualified in its entirety by reference to the full text of the Plewman Guaranty, which is attached as Exhibit 10.2 to this Current Report on Form 8-K, and is incorporated herein by reference.

Terms of Employment Agreements for David J. Foster, Bernard M. Alfano and Robert L. Wolfert

diaDexus entered into an Amended and Restated Employment Agreement with each of David J. Foster, its Executive Vice President and Chief Financial Officer, Bernard M. Alfano, its Executive Vice President and Chief Commercial Officer, and Robert L. Wolfert, its Executive Vice President and Chief Scientific Officer, effective as of May 1, 2008 (the “Executive Agreements”). Upon consummation of the Merger, VaxGen succeeded to all rights and obligations under the Executive Agreements.

VaxGen’s Board of Directors has set the base salaries for each of Messrs. Foster and Alfano and Dr. Wolfert at $320,000. Each executive is also eligible to earn an annual bonus of up to 50% of his base salary based upon specified performance criteria. Each executive’s base salary and annual bonus are subject to review annually for possible increases in light of such executive’s performance and competitive data. Each executive is also eligible to receive stock option grants and other equity awards as are approved by the Board of Directors. Under the Executive Agreements, if an executive is terminated without cause or he is constructively terminated and he signs and does not revoke a standard form of release of claims, such executive will be entitled to the following severance:

Payment of an amount equal to six months of his base salary less applicable withholding;

Payment of group health, dental and vision plan continuation coverage premiums and, if applicable, covered dependents, for the lesser of six months from the termination of service or the date upon which he and his covered dependents are covered by similar plans by the executive’s new employer; and

If the executive is terminated within 12 months of a change in control, all outstanding options for common stock will become vested and exercisable and any restrictions on unvested shares of common stock held by the executive will lapse with respect to that number of shares which would have become vested if the executive had remained in continuous service for an additional six months.

If an executive dies or becomes permanently disabled during the term of his applicable Executive Agreement, such executive will be treated as if he had been terminated without cause for the purpose of severance benefits.

The foregoing description of the Executive Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the Executive Agreements, which are attached as Exhibit 10.3, Exhibit 10.4 and Exhibit 10.5 to this Current Report on Form 8-K, and are incorporated herein by reference.

Retention Bonus Plan

In connection with the Merger, the Retention Bonus Plan provides for an amount equal to 8% of the shares of VaxGen common stock issuable in the Merger to be paid to the diaDexus employee participants in the Retention Bonus Plan. The Merger Agreement provides for VaxGen to make payments required to be made under the Retention Bonus Plan in connection with the Merger. The diaDexus Compensation Committee designated the participants of the Retention Bonus Plan and their respective percentage interests in the bonus pool prior to the Merger. Patrick Plewman, David J. Foster, Bernard M. Alfano and Robert L. Wolfert are each designated participants in the Retention Bonus Plan, with participation percentage interests of 40%, 10%, 7.5% and 15%, respectively. In connection with the Merger, each of these e xecutives was issued shares of VaxGen common stock and, to the extent not otherwise satisfied, cash in lieu of shares to satisfy such participant’s tax withholding obligations. Specifically, Mr. Plewman was issued 444,627 shares of VaxGen common stock and was paid $65,490 in cash to satisfy withholding obligations; Mr. Foster was issued 165,731 shares of VaxGen common stock; Mr. Alfano was issued 124,298 shares of VaxGen common stock; and Dr. Wolfert was issued 166,734 shares of VaxGen common stock and was paid $24,559 in cash to satisfy withholding obligations. The remaining 27.5% of the funds allocated pursuant to the Retention Bonus Plan are designated for payment in cash to non-officer participants in the Retention Bonus Plan by August 27, 2010.

Stock Option Grants

On July 29, 2010, the Board of Directors approved initial option grants under VaxGen’s Amended and Restated 1996 Stock Option Plan to each of Messrs. Plewman, Foster, and Alfano and Dr. Wolfert. Specifically, the Board of Directors granted an option to purchase 1,917,125 shares of VaxGen common stock to Mr. Plewman, an option to purchase 569,158 shares of VaxGen common stock to Mr. Foster, an option to purchase 590,876 shares of VaxGen common stock to Mr. Alfano and an option to purchase 789,161 shares of VaxGen common stock to Dr. Wolfert, in each case, with an exercise price of $0.26 per share, vesting in substantially equal monthly installments over a period of 36 months.

Indemnity Agreements

Each of VaxGen’s newly appointed executive officers will enter into VaxGen’s standard indemnity agreement.

Item 7.01. Regulation FD Disclosure.

On July 28, 2010, VaxGen issued a press release announcing the closing of the Merger, a copy of which is furnished as Exhibit 99.1 hereto.

The information in this Item 7.01 and Exhibit 99.1 attached hereto shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, except as shall be expressly set forth by specific reference in such filing.

Item 9.01. Financial Statements and Exhibits.

(a) Financial Statements of Businesses Acquired.

The consolidated financial statements of diaDexus, including the report of the independent registered public accounting firm, PricewaterhouseCoopers, required by this item have not been filed on this initial Current Report on Form 8-K but will be filed by amendment on or before October 13, 2010.

The unaudited consolidated financial statements of diaDexus required by this item have not been filed on this initial Current Report on Form 8-K but will be filed by amendment on or before October 13, 2010.

(b) Pro Forma Financial Information.

The pro forma financial information required by this item has not been filed on this initial Current Report on Form 8-K but will be filed by amendment on or before October 13, 2010.

(d) Exhibits.

Exhibit No.		Description

2.1		Agreement and Plan of Merger and Reorganization, dated May 28, 2010, by and among VaxGen, Inc., Violet Acquisition Corporation, Violet Acquisition LLC and diaDexus, Inc., and John E. Hamer, as the agent of diaDexus’ stockholders (incorporated by reference to Exhibit 2.1 to VaxGen’s Current Report on Form 8-K, file no. 000-26483, dated May 28, 2010).*

2.2		Amendment No. 1 to Agreement and Plan of Merger and Reorganization, dated June 24, 2010, by and among VaxGen, Inc., Violet Acquisition Corporation, Violet Acquisition LLC, diaDexus, Inc., and John E. Hamer, as the agent of diaDexus’ stockholders (incorporated by reference to Exhibit 2.1 to VaxGen’s Current Report on Form 8-K, file no. 000-26483, dated June 24, 2010).

10.1		Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and Patrick Plewman.

10.2		Guaranty, dated July 28, 2010, by VaxGen, Inc. in favor of Patrick Plewman.

10.3		Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and David Foster.

10.4		Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and Bernard M. Alfano.

10.5		Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and Robert Wolfert.

99.1		Press Release dated July 28, 2010.

* Certain schedules referenced in the Agreement and Plan of Merger and Reorganization have been omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule will be furnished supplementally to the Securities and Exchange Commission upon request.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	VaxGen, Inc.
	(Registrant)

Date: July 30, 2010
	By:	/s/ David J. Foster
		David J. Foster
	Title: Executive Vice President, Chief Financial Officer and Secretary

EXHIBIT INDEX

Exhibit No.		Description

2.1		Agreement and Plan of Merger and Reorganization, dated May 28, 2010, by and among VaxGen, Inc., Violet Acquisition Corporation, Violet Acquisition LLC and diaDexus, Inc., and John E. Hamer, as the agent of diaDexus’ stockholders (incorporated by reference to Exhibit 2.1 to VaxGen’s Current Report on Form 8-K, file no. 000-26483, dated May 28, 2010).*

2.2		Amendment No. 1 to Agreement and Plan of Merger and Reorganization, dated June 24, 2010, by and among VaxGen, Inc., Violet Acquisition Corporation, Violet Acquisition LLC, diaDexus, Inc., and John E. Hamer as the agent of diaDexus’ stockholders (incorporated by reference to Exhibit 2.1 to VaxGen’s Current Report on Form 8-K, file no. 000-26483, dated June 24, 2010).

10.1		Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and Patrick Plewman.

10.2		Guaranty, dated July 28, 2010, by VaxGen, Inc. in favor of Patrick Plewman.

10.3		Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and David Foster.

10.4		Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and Bernard M. Alfano.

10.5		Amended and Restated Employment Agreement, effective May 1, 2008, by and between diaDexus, Inc. and Robert Wolfert.

99.1		Press Release dated July 28, 2010.

EX-10.1 2 ex10_1.htm EXHIBIT 10.1 ex10_1.htm

Exhibit 10.1

AMENDED AND RESTATED

EMPLOYMENT AGREEMENT

This Agreement is made by and between diaDexus, Inc. (the “Company”), and Patrick Plewman (“Executive”) effective as of May 1, 2008 (the “Effective Date”) and amends and restates that certain Employment Agreement entered into by and between the Company and Executive effective as of June 4, 2000 in its entirety.

1. Duties and Scope of Employment.

(a) Positions; Employment Term; Duties. Executive’s employment with the Company commenced in October 1997, and as of June 4, 2000, the Executive was appointed Chief Executive Officer, President, Chief Operating Officer and Secretary of the Company, and he continues to be employed in such capacities in accordance with the terms hereof. The period of Executive’s employment hereunder is referred to herein as the Employment Term. During the Employment Term, Executive shall render such business and professional services in the performance of his duties, consistent with Executive’s position within the Company, as shall reasonably be assigned to him by the Boa rd of Directors (the “Board”).

(b) Obligations. During the Employment Term, Executive shall devote his full business efforts and time to the Company. Executive agrees, during the Employment Term, not to actively engage in any other employment, occupation or consulting activity for any direct or indirect remuneration without the prior approval of the Board; provided, however, that Executive may serve in any capacity with any civic, educational or charitable organization, or as a member of corporate Boards of Directors or committees thereof upon which Executive currently serves, without the approval of the Board; provided, further that Executive may devote a reasonable amount of time to managing his family in vestments.

(c) Paid Time Off. Executive shall be entitled to paid time off in accordance with the Company’s policies for senior executives of the Company, as may be in effect from time to time. For purposes of this Agreement “paid time off” includes vacation, personal time off, sick leave, family illness, bereavement leave and religious holiday observances. During such paid time off periods, Executive shall not be relieved of his duties under this Agreement and there will be no abatement or reduction of Executive’s compensation hereunder.

3. At-Will Employment. Executive and the Company understand and acknowledge that Executive’s employment with the Company constitutes at-will employment. Subject to the Company’s obligation to provide severance benefits as specified herein, Executive and the Company acknowledge that this employment relationship may be terminated at any time, upon written notice to the other party, with or without good cause or for any or no cause, at the option either of the Company or Executive.

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4. Compensation.

(a) Base Salary. While employed by the Company, the Company shall pay the Executive as compensation for his services a base salary at the annualized rate of $345,050 (as may be increased from time to time, the “Base Salary”). Such salary shall be paid periodically in accordance with normal Company payroll practices and subject to the usual, required withholding. Executive’s Base Salary shall be reviewed annually by the Compensation Committee of the Board for possible increases in light of Executive’s performance and competitive data.

(b) Bonuses. Executive shall be eligible to earn a bonus. Executive’s performance shall be evaluated by the Compensation Committee of the Board based upon performance criteria specified by that committee. The payment of any bonus under this Section 4(b) shall be subject to Executive’s employment with the Company through the end of the relevant evaluation period. Executive’s bonus shall be reviewed annually by the Compensation Committee of the Board for possible increases in light of Executive’s performance and competitive data.

(c) Equity Compensation. Executive has received certain past grants of stock options and will be eligible to receive such future grants of stock options and other equity awards as are approved by the Board in accordance with the Company’s equity incentive plan.

(d) Severance.

(i) Covered Terminations. If Executive experiences a Covered Termination, then, subject to Executive executing and not revoking a standard form of release of claims with the Company in a form acceptable to the Company within sixty (60) days of such termination (i) Executive shall be entitled to receive an amount equal to one year’s Base Salary, less applicable withholding, payable in substantially equal bi-monthly installments in accordance with the Company’s standard payroll practices, (ii) all of Executive’s then outstanding options to purchase shares of Company common stock and other equity-based awards shall become fully vested and exercisable, and/or the restrictions a pplicable to unvested shares of common stock held by Executive shall lapse, immediately prior to the date of Executive’s Covered Termination, (iii) the Company shall pay the group health, dental and vision plan continuation coverage premiums for Executive and, if relevant, his covered dependents under Title X of the Consolidated Budget Reconciliation Act of 1985, as amended (“COBRA”) for the lesser of (A) twelve (12) months from the date of Executive’s termination of service, or (B) the date upon which Executive and his covered dependents are covered by similar plans of Executive’s new employer and (iv) the Company shall reimburse Executive for the expense of relocation for Executive and Executive’s family from the San Francisco Bay Area, California to the United Kingdom incurred within twelve (12) months of Executive’s termination of services, if any; provided, however that such reimbursement shall not exceed the relocation benefits paid to Executive in connection w ith his initial commencement of employment with the Company, and, provided further, that Executive shall submit a claim for such reimbursement to the Company prior to the end of the calendar year following the calendar year in which such expense is incurred and the Company shall make such reimbursement payment as soon as administratively practicable thereafter.

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For the purposes of this Agreement, “Cause” means (i) a material act of dishonesty made by Executive in connection with Executive’s responsibilities as a service provider, (ii) Executive’s conviction of, or plea of nolo contendere to, a felony, (iii) Executive’s gross misconduct in connection with the performance of his duties hereunder or (iv) Executive’s material breach of his obligations under this Agreement; provided, however, that with respect to clauses (iii) and (iv), such actions shall not constitute Cause if they are cured by Executive within thirty (30) days following delivery to Executive of a written explanation specifying the basis for the Company’s beliefs with respect to such clauses.

For the purposes of this Agreement, “Good Reason” shall mean (i) a material reduction in Executive’s Base Salary, (ii) a material reduction in Executive’s title, authority or duties, (iii) the requirement that Executive’s principal place of employment materially relocates more than 15 miles from its current location, or (iv) the Company’s material breach of its obligations under this Agreement; provided, however, that any such condition shall not provide a basis for termination for Good Reason if it is cured by the Company within thirty (30) days following delivery to the Company of a written explanation specifying the basis for the Executive’s beliefs with respect to such condition within ninety (90) days of its first occurrence.

For the purposes of this Agreement, “Covered Termination” shall mean the termination of Executive’s employment with the Company by the Company for other than Cause or by the Executive for Good Reason, in either case, that constitutes a “separation from service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the Department of Treasury regulations and other guidance promulgated thereunder.

The Executive shall not be required to mitigate the value of any severance benefits contemplated by Section 4 of this Agreement, nor shall any such benefits be reduced by any earnings or benefits that the Executive may receive from any other source.

Notwithstanding anything in this Section 4 to the contrary, if the Executive is deemed at the time of his separation from service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of the benefits to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of Executive’s benefits shall not be provided to Executive prior to the earlier of (a) the expiration of the six-month period measured from the date of the Executive’s “separation from service” with the Company (as such term is defined in the Treasury Regulations issued under Section 409A of the Code) or (b) the date of Executive’s death. Upon the ex piration of the applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to the Executive, and any remaining payments due under the Agreement shall be paid as otherwise provided herein.

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For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Executive’s right to receive the installment payments under this Agreement shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment.

5. Total Disability of Executive. If Executive becomes permanently and totally disabled (as defined in accordance with Section 22(e)(3) of the Code or its successor provision) during the term of this Agreement, Executive’s service hereunder shall automatically terminate and Executive shall be treated as having been terminated other than for Cause for purposes of Section 4 of this Agreement.

6. Death of Executive. If Executive dies during the term of this Agreement, Executive shall be treated as having been terminated other than for Cause for purposes of Section 4 of this Agreement.

7. Assignment. This Agreement shall be binding upon and inure to the benefit of (a) the heirs, beneficiaries, executors and legal representatives of Executive upon Executive’s death and (b) any successor of the Company. Any such successor of the Company shall be deemed substituted for the Company under the terms of this Agreement for all purposes. As used herein, successor shall include any person, firm, corporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or substantially all of the assets or business of the Company. None of the rights of Executive to receive any form of compensation payable pursuant to this Agreement shall be assignable or transferable except through a testamentary disposition or by the laws of descent and distribution upon the death of Executive. Any attempted assignment, transfer, conveyance or other disposition (other than as aforesaid) of any interest in the rights of Executive to receive any form of compensation hereunder shall be null and void.

8. Notices. All notices, requests, demands and other communications called for hereunder shall be in writing and shall be deemed given if (i) delivered personally or by facsimile, (ii) one (1) day after being sent by Federal Express or a similar commercial overnight service, or (iii) three (3) days after being mailed by registered or certified mail, return receipt requested, prepaid and addressed to the parties or their successors in interest at the following addresses, or at such other addresses as the parties may designate by written notice in the manner aforesaid:

	If to the Company:
	Attn: Chief Financial Officer
	diaDexus, Inc.
	343 Oyster Point Boulevard
	South San Francisco, CA 94080

	If to Executive:

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	Patrick Plewman


	Tel:
	Fax:

	Or at the last residential address known by the Company.

9. Severability. In the event that any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision.

10. Proprietary Information Agreement. Executive has entered into the Company’s standard Employee Proprietary Information Agreement (the “Proprietary Information Agreement”) upon commencing employment hereunder.

11. Entire Agreement. This Agreement, the indemnification agreement and employee benefit plans referred to in Section 2 and the Proprietary Information Agreement represent the entire agreement and understanding between the Company and Executive concerning Executive’s employment relationship with the Company, and supersede and replace any and all prior agreements and understandings concerning Executive’s employment relationship with the Company.

12. Non-Binding Mediation, Arbitration and Equitable Relief.

(a) The parties agree to make a good faith attempt to resolve any dispute or claim arising out of or related to this Agreement through negotiation. In the event that any dispute or claim arising out of or related to this Agreement is not settled by the parties hereto, the parties will attempt in good faith to resolve such dispute or claim by non-binding mediation in San Mateo County, California to be conducted by one mediator belonging to the American Arbitration Association. The mediation shall be held within thirty (30) days of the request therefor. The costs of the mediation shall be borne equally by the parties to the mediation.

(b) Except as provided in Section 12(e) below, Executive and the Company agree that, to the extent permitted by law, any dispute or controversy arising out of, relating to, or in connection with this Agreement, or the interpretation, validity, construction, performance, breach, or termination thereof which has not been resolved by negotiation or mediation as set forth in Section 12(a) shall be finally settled by binding arbitration to be held in San Mateo County, California, in accordance with the National Rules for the Resolution of Employment Disputes then in effect of the American Arbitration Association (the “Rules”). The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator sha ll be confidential, final, conclusive and binding on the parties to the arbitration. Judgment may be entered under a protective order on the arbitrator’s decision in any court having jurisdiction.

(c) The arbitrator shall apply California law to the merits of any dispute or claim, without reference to rules of conflict of law. The arbitration proceedings shall be governed by federal arbitration law and by the Rules, without reference to state arbitration law. Executive hereby expressly consents to the personal jurisdiction of the state and federal courts located in California for any action or proceeding arising from or relating to this Agreement and/or relating to any arbitration in which the parties are participants.

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(d) Executive understands that nothing in Section 12 modifies Executive’s at-will status. Either the Company or Executive can terminate the employment relationship at any time, with or without cause.

(e) EXECUTIVE HAS READ AND UNDERSTANDS SECTION 12, WHICH DISCUSSES ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE AGREES, TO THE EXTENT PERMITTED BY LAW, TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH, OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EXECUTIVE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING CLAIMS:

(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.

(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR STANDARDS ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR CODE SECTION 201, et seq;

(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.

13. No Oral Modification, Cancellation or Discharge. This Agreement may only be amended, canceled or discharged in writing signed by the parties hereto.

14. Withholding. The Company shall be entitled to withhold, or cause to be withheld, from payment any amount of withholding taxes required by law with respect to payments made to Executive in connection with his employment hereunder.

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15. Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to the conflict of law provisions thereof.

16. Acknowledgment. Executive acknowledges that he has had the opportunity to discuss this matter with and obtain advice from his private attorney, has had sufficient time to, and has carefully read and fully understands all the provisions of this Agreement, and is knowingly and voluntarily entering into this Agreement.

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IN WITNESS WHEREOF, the undersigned have executed this Agreement:

/s/ Louis C. Bock		5/27/08
By: Louis C. Bock		Date
diaDexus, Inc.


/s/ Patrick Plewman		5/20/08
Patrick Plewman		Date
Executive

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EX-10.2 3 ex10_2.htm EXHIBIT 10.2 ex10_2.htm

Exhibit 10.2

Guaranty

This Guaranty (“Guaranty”) is dated as of July 28, 2010. For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and pursuant to the terms and conditions of the Agreement and Plan of Merger and Reorganization, dated as of May 28, 2010, as amended June 24, 2010 (the “Merger Agreement”), by and among VaxGen, Inc., a Delaware corporation (“Guarantor”), Violet Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of Guarantor, Violet Acquisition, LLC, a Delaware limited liability company and wholly-owned subsidiar y of Guarantor, diaDexus, Inc., a Delaware corporation (“Company”), and John E. Hamer, as representative of the Company’s stockholders, effective and contingent upon the Effective Time of Merger II (as defined in the Merger Agreement), Guarantor hereby agrees as follows:

1. Guarantor absolutely, unconditionally and irrevocably guarantees the prompt and complete payment when due of the monetary compensation set forth in Section 4 of that certain Amended and Restated Employment Agreement, effective as of May 1, 2008 (the “Employment Agreement”), by and between Patrick Plewman (“Executive”) and the Company. The liability of Guarantor under the Employment Agreement shall relate only to the obligations of the Company to pay (i) Base Salary (as defined in the Employment Agreement), (ii) bonuses and (iii) the cash severance described in Section 4(d)(i)(i) of the Employmen t Agreement.

2. The maximum amount of this Guaranty shall be limited to the sum of (i) the remaining amounts payable under the Employment Agreement with respect to the payments of Base Salary, (ii) bonuses, each as accruing following the Effective Time of Merger II, and (iii) the severance payments described in Section 4(d)(i)(i) of the Employment Agreement.

3. By entering into this Guaranty, Guarantor is not establishing any employment relationship with Executive, and at all times, Executive will remain an employee of the Company or any assignee or successor of the Company.

4. The liability of Guarantor under the Employment Agreement is primary. Guarantor waives and agrees, to the fullest extent permitted by law, not to assert or take advantage of any right to require the Executive to proceed against the Company or any other person or to pursue any other remedy before proceeding against Guarantor.

5. This Guaranty will continue unchanged by the occurrence of any bankruptcy-related event with respect to the Company or any assignee or successor of the Company or by any disaffirmance or abandonment of this Guaranty by a trustee of the Company. Neither Guarantor’s obligation to make payment or render performance in accordance with the terms of this Guaranty nor any remedy for the enforcement hereof shall be impaired, modified, changed, released or limited in any manner whatsoever by any impairment, modification, change, release, rejection, termination, or limitation of the liability of the Company or their estates in bankruptcy or of any remedy for the enforcement thereof, resulting from the operation of any present or future provision of the U.S. Bankruptcy Act or other statute, or from the decision of any court or agency.

6. The liability of Guarantor and all rights, powers and remedies of the Executive hereunder and the liability and obligations of the Company and all rights, powers and remedies of the Executive under the Employment Agreement and under this Guaranty shall be in addition to all rights, powers and remedies given to the Executive by law.

7. This Guaranty applies to, inures to the benefit of and binds all parties hereto, their heirs, devisees, legatees, executors, administrators, representatives, successors and assigns.

8. No provision of this Guaranty or right of the Executive hereunder may be waived nor may any Guarantor be released from any obligation hereunder except by a writing duly executed by the Executive. Should any one or more provisions of this Guaranty be determined to be illegal or unenforceable, all other provisions shall nevertheless be effective. The waiver or failure by the Executive to enforce any provision of this Guaranty shall not operate as a waiver of any other breach of such provision or any other provisions hereof. Guarantor agrees that all questions with respect to this Guaranty shall be governed by and decided in accordance with the laws of the State of California.

[Remainder of page intentionally left blank]

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In Witness Whereof, the Guarantor has duly caused this Guaranty to be executed as of the date first written above.

	Guarantor:

	VaxGen, Inc.,
	a Delaware corporation


	By:	/s/ James P. Panek
		James P. Panek
		President

EX-10.3 4 ex10_3.htm EXHIBIT 10.3 ex10_3.htm

Exhibit 10.3

AMENDED AND RESTATED

EMPLOYMENT AGREEMENT

This Agreement is made by and between diaDexus, Inc. (the “Company”), and David Foster (“Executive”) effective as of May 1, 2008 (the “Effective Date”) and amends and restates that certain Employment Agreement entered into by and between the Company and Executive effective as of April 26, 2007 in its entirety.

1. Duties and Scope of Employment.

(a) Positions; Employment Term; Duties. Executive commenced employment with the Company on February 1, 2007 (the “Employment Commencement Date”) as the Chief Financial Officer and Executive Vice President. The period of Executive’s employment hereunder is referred to herein as the Employment Term. During the Employment Term, Executive shall be an executive officer of the Company, and Executive shall render such business and professional services in the performance of his duties, consistent with Executive’s positions within the Company, as shall reasonably be assigned to him by the Company’s Chief Executive Officer. Executive shall receive focal performance reviews semi-annually.

(b) Obligations. During the Employment Term, Executive shall devote his full business efforts and time to the Company. Executive agrees, during the Employment Term, not to actively engage in any other employment, occupation or consulting activity for any direct or indirect remuneration without the prior approval of the Board of Directors (the “Board”); provided, however, that Executive may serve in any capacity with any civic, educational or charitable organization, or as a member of corporate Boards of Directors or committees thereof upon which Executive currently serves, without the approval of the Board; provided, further that Executive may devote a reasonable a mount of time to managing his family investments.

2. Employee Benefits; Indemnification Agreement. During the Employment Term, except as otherwise provided herein, Executive shall be eligible to participate in the employee benefit plans maintained by the Company that are applicable to other senior management to the full extent provided for under those plans. Executive shall be entitled to paid time off in accordance with the Company’s policies for senior executives of the Company, as may be in effect from time to time. For the purposes of this agreement, “paid time off” includes vacation, personal time off, sick leave, family illness, bereavement leave and religious holiday observances. 0;Upon his commencement of employment with the Company, Executive entered into an indemnification agreement comparable in form and substance to indemnification agreements entered into by and between the Company and its executive officers (the “Indemnification Agreement”).

4. Compensation.

(a) Base Salary. While employed by the Company, the Company shall pay the Executive as compensation for his services a base salary at the annualized rate of $275,000 (as may be increased from time to time, the “Base Salary”). Such salary shall be paid periodically in accordance with normal Company payroll practices and subject to applicable withholding. Executive’s Base Salary shall be reviewed annually by the Chief Executive Officer for possible increases in light of Executive’s performance and competitive data.

(b) Performance Bonus. Executive shall be eligible to receive annual performance bonuses of up to 50% of Executive’s Base Salary. Executive’s performance for purposes of determining his entitlement to performance bonuses shall be evaluated by the Chief Executive Officer based upon criteria specified by the Chief Executive Officer. The payment of any bonus under this Section 4(b) shall be subject to Executive’s employment with the Company through the end of the relevant evaluation period. Executive’s annual bonus opportunity shall be reviewed annually by the Chief Executive Officer for possible increases in light of Executive’s performan ce and competitive data.

(d) Retention Bonus Plan. Executive shall be eligible to participate in the Company’s Retention Bonus Plan, as may be amended from time to time (the “Retention Plan”), and, subject to the terms of the Retention Plan, shall be eligible to receive 6.25 percent of the Bonus Pool Amount (as defined in the Retention Plan).

(e) Severance. If Executive experiences a Covered Termination, then, subject to Executive executing and not revoking a standard form of release of claims with the Company in a form acceptable to the Company within sixty (60) days of such termination, (i) Executive shall be entitled to receive an amount equal to six months’ Base Salary, less applicable withholding, in accordance with the Company’s standard payroll practices, (ii) the Company shall pay the group health, dental and vision plan continuation coverage premiums for Executive and, if relevant, his covered dependents under Title X of the Consolidated Budget Reconciliation Act of 1985, as amended (“COBRA”) for the les ser of (A) six (6) months from the date of Executive’s termination of service, or (B) the date upon which Executive and his covered dependents are covered by similar plans of Executive’s new employer, and (iii) in the event of Executive’s Covered Termination within twelve (12) months of a Change in Control (as defined below), then, effective immediately prior to such Covered Termination, Executive’s options to purchase shares of the common stock of the Company shall become vested and exercisable and/or the restrictions applicable to unvested or restricted shares of the common stock of the Company held by Executive shall lapse, in each case, with respect to that number of shares which would have become vested had Executive remained in continuous service with the Company for an additional six months following the date of Executive’s Covered Termination.

For the purposes of this Agreement, “Cause” means:

(i) A material act of dishonesty made by Executive in connection with Executive’s responsibilities as a service provider;

(ii) Executive’s conviction of, or plea of nolo contendere to, a felony;

(iii) Executive’s gross misconduct in connection with the performance of his duties hereunder; or

(iv) Executive’s material breach of his obligations under this Agreement;

provided, however, that with respect to clauses (iii) and (iv), such actions shall not constitute Cause if they are cured by Executive within thirty (30) days following delivery to Executive of a written explanation specifying the basis for the Company’s beliefs with respect to such clauses.

For the purposes of this Agreement, “Good Reason” shall mean:

(i) A material reduction in Executive’s Base Salary;

(ii) A material reduction in Executive’s title, authority or duties;

(iii) The requirement that Executive’s principal place of employment materially relocates more than 15 miles from its current location; or

(iv) The Company’s material breach of its obligations under this Agreement;

provided, however, that any such condition shall not provide a basis for termination for Good Reason if it is cured by the Company within thirty (30) days following delivery to the Company of a written explanation specifying the basis for the Executive’s beliefs with respect to such condition within ninety (90) days of its first occurrence.

For the purposes of this Agreement, “Change in Control” means:

(i) Any person (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) becomes the beneficial owner (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company’s then outstanding voting securities;

(ii) A change in the composition of the Board occurring within a two-year period, as a result of which fewer than a majority of the directors are Incumbent Directors. Incumbent Directors shall mean directors who either (A) are directors of the Company as of the date hereof, or (B) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but shall not include an individual whose election or nomination is in connection with an actual or threatened proxy contest relating to the election of directors to the Company);

(iii) The consummation of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; or

(iv) The consummation of the sale or disposition by the Company of all or substantially all of the Company’s assets.

6. Death of Executive. If Executive dies during the term of this Agreement, Executive shall be treated as having been terminated other than for Cause for purposes of Section 4 of this Agreement.

	If to the Company:
	Attn: Chief Executive Officer
	diaDexus, Inc.
	343 Oyster Point Boulevard
	South San Francisco, CA 94080

	If to Executive:
	David Foster
	___________________
	___________________
	Tel: _____________
	Fax: _____________

Or at the last residential address known by the Company.

11. Entire Agreement. This Agreement, the Indemnification Agreement and employee benefit plans referred to in Section 2 and the Proprietary Information Agreement represent the entire agreement and understanding between the Company and Executive concerning Executive’s employment relationship with the Company, and supersede and replace any and all prior agreements and understandings concerning Executive’s employment relationship with the Company.

12. Non-Binding Mediation, Arbitration and Equitable Relief.

(e) EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION 12, WHICH DISCUSSES ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE AGREES, TO THE EXTENT PERMITTED BY LAW, TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH, OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EXECUTIVE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING CLAIMS:

(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.

13. No Oral Modification, Cancellation or Discharge. This Agreement may only be amended, canceled or discharged in writing signed by the parties hereto.

15. Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to the conflict of law provisions thereof.

(Signature Page Follows)

IN WITNESS WHEREOF, the undersigned have executed this Agreement:

/s/ Patrick Plewman		5/20/08
By: Patrick Plewman		Date
diaDexus, Inc.


/s/ David Foster		5/20/08
David Foster		Date
Executive

EX-10.4 5 ex10_4.htm EXHIBIT 10.4 ex10_4.htm

Exhibit 10.4

AMENDED AND RESTATED

EMPLOYMENT AGREEMENT

This Agreement is made by and between diaDexus, Inc. (the “Company”), and Bernard M. Alfano (“Executive”) effective as of May 1, 2008 (the “Effective Date”) and amends and restates that certain Employment Agreement entered into by and between the Company and Executive effective as of April 26, 2007 in its entirety.

1. Duties and Scope of Employment.

(a) Positions; Employment Term; Duties. Executive commenced employment with the Company on February 1, 2007 (the “Employment Commencement Date”) as the Executive Vice President – Sales & Marketing. The period of Executive’s employment hereunder is referred to herein as the Employment Term. During the Employment Term, Executive shall be an executive officer of the Company, and Executive shall render such business and professional services in the performance of his duties, consistent with Executive’s positions within the Company, as shall reasonably be assigned to him by the Company’s Chief Executive Officer. Executive sha ll receive focal performance reviews semi-annually.

(b) Obligations. During the Employment Term, Executive shall devote his full business efforts and time to the Company. Executive agrees, during the Employment Term, not to actively engage in any other employment, occupation or consulting activity for any direct or indirect remuneration without the prior approval of the Board of Directors (the “Board”); provided, however, that Executive may serve in any capacity with any civic, educational or charitable organization, or as a member of corporate Boards of Directors or committees thereof upon which Executive currently serves, without the approval of the Board; provided, further that Executive may devote a reasonable a mount of time to managing his family investments.

4. Compensation.

(d) Retention Bonus Plan. Executive shall be eligible to participate in the Company’s Retention Bonus Plan, as may be amended from time to time (the “Retention Plan”) and, subject to the terms of the Retention Plan, shall be eligible to receive 6.25 percent of the Bonus Pool Amount (as defined in the Retention Plan).

For the purposes of this Agreement, “Cause” means:

(i) A material act of dishonesty made by Executive in connection with Executive’s responsibilities as a service provider;

(ii) Executive’s conviction of, or plea of nolo contendere to, a felony;

(iii) Executive’s gross misconduct in connection with the performance of his duties hereunder; or

(iv) Executive’s material breach of his obligations under this Agreement;

For the purposes of this Agreement, “Good Reason” shall mean:

(i) A material reduction in Executive’s Base Salary;

(ii) A material reduction in Executive’s title, authority or duties;

(iii) The requirement that Executive’s principal place of employment materially relocates more than 15 miles from its current location; or

(iv) The Company’s material breach of its obligations under this Agreement;

For the purposes of this Agreement, “Change in Control” means:

(iv) The consummation of the sale or disposition by the Company of all or substantially all of the Company’s assets.

6. Death of Executive. If Executive dies during the term of this Agreement, Executive shall be treated as having been terminated other than for Cause for purposes of Section 4 of this Agreement.

	If to the Company:
	Attn: Chief Executive Officer
	diaDexus, Inc.
	343 Oyster Point Boulevard
	South San Francisco, CA 94080

	If to Executive:
	Bernard M. Alfano
	___________________
	___________________
	Tel: _____________
	Fax: _____________

Or at the last residential address known by the Company.

12. Non-Binding Mediation, Arbitration and Equitable Relief.

(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.

13. No Oral Modification, Cancellation or Discharge. This Agreement may only be amended, canceled or discharged in writing signed by the parties hereto.

15. Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to the conflict of law provisions thereof.

(Signature Page Follows)

IN WITNESS WHEREOF, the undersigned have executed this Agreement:

/s/ Patrick Plewman		5/20/08
By: Patrick Plewman		Date
diaDexus, Inc.


/s/ Bernard M. Alfano		5/21/08
Bernard M. Alfano		Date
Executive

EX-10.5 6 ex10_5.htm EXHIBIT 10.5 ex10_5.htm

Exhibit 10.5

AMENDED AND RESTATED

EMPLOYMENT AGREEMENT

This Agreement is made by and between diaDexus, Inc. (the “Company”), and Robert Wolfert (“Executive”) effective as of May 1, 2008 (the “Effective Date”) and amends and restates that certain Employment Agreement entered into by and between the Company and Executive effective as of March 1, 2002 in its entirety.

1. Duties and Scope of Employment.

(a) Positions; Employment Term; Duties. Executive commenced employment with the Company on November 6, 2000 (the “Employment Commencement Date”) as the Vice President of Diagnostics. The Executive shall be a non-executive officer of the Company. The period of Executive’s employment hereunder is referred to herein as the Employment Term. During the Employment Term, Executive shall render such business and professional services in the performance of his duties, consistent with Executive’s position within the Company, as shall reasonably be assigned to him by the Vice President of Research and Development and Chief Scientific Officer.

(b) Obligations. During the Employment Term, Executive shall devote his full business efforts and time to the Company. Executive agrees, during the Employment Term, not to actively engage in any other employment, occupation or consulting activity for any direct or indirect remuneration without the prior approval of the Board of Directors (the “Board”); provided, however, that Executive may serve in any capacity with any civic, educational or charitable organization, or as a member of corporate Boards of Directors or committees thereof upon which Executive currently serves, without the approval of the Board; provided, further that Executive may devote a reasonable a mount of time to managing his family investments.

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4. Compensation.

(a) Base Salary. While employed by the Company, the Company shall pay the Executive as compensation for his services a base salary at the annualized rate of $200,000 (as may be increased from time to time, the “Base Salary”). Such salary shall be paid periodically in accordance with normal Company payroll practices and subject to the applicable withholding. Executive’s Base Salary shall be reviewed annually by the Chief Executive Officer and the Vice President of Research & Development and Chief Scientific Officer for possible increases in light of Executive’s performance and competitive data.

(b) Performance Bonus. Executive shall be eligible to receive annual performance bonuses. Executive’s performance for purposes of determining his entitlement to performance bonuses shall be evaluated by the Chief Executive Officer and the Vice President of Research & Development and Chief Scientific Officer based upon criteria specified by the Chief Executive Officer and the Vice President of Research & Development and Chief Scientific Officer. The payment of any bonus under this Section 4(b) shall be subject to Executive’s employment with the Company through the end of the relevant evaluation period. Executive’s annual bonus opportunity sh all be reviewed annually by the Chief Executive Officer and the Vice President of Research & Development and Chief Scientific Officer for possible increases in light of Executive’s performance and competitive data.

(d) Severance. If Executive experiences a Covered Termination, then, subject to Executive executing and not revoking a standard form of release of claims with the Company in a form acceptable to the Company within sixty (60) days of such termination, (i) Executive shall be entitled to receive an amount equal to six months’ Base Salary, less applicable withholding, in accordance with the Company’s standard payroll practices, (ii) the Company shall pay the group health, dental and vision plan continuation coverage premiums for Executive and, if relevant, his covered dependents under Title X of the Consolidated Budget Reconciliation Act of 1985, as amended (“COBRA”) for the les ser of (A) six (6) months from the date of Executive’s termination of service, or (B) the date upon which Executive and his covered dependents are covered by similar plans of Executive’s new employer, and (iii) in the event of Executive’s Covered Termination within twelve (12) months of a Change in Control (as defined below), then, effective immediately prior to such Covered Termination, Executive’s options to purchase shares of the common stock of the Company shall become vested and exercisable and/or the restrictions applicable to unvested or restricted shares of the common stock of the Company held by Executive shall lapse, in each case, with respect to that number of shares which would have become vested had Executive remained in continuous service with the Company for an additional six months following the date of Executive’s Covered Termination.

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For the purposes of this Agreement, “Cause” means:

(i) A material act of dishonesty made by Executive in connection with Executive’s responsibilities as a service provider;

(ii) Executive’s conviction of, or plea of nolo contendere to, a felony;

(iii) Executive’s gross misconduct in connection with the performance of his duties hereunder; or

(iv) Executive’s material breach of his obligations under this Agreement;

For the purposes of this Agreement, “Good Reason” shall mean:

(i) A material reduction in Executive’s Base Salary;

(ii) A material reduction in Executive’s title, authority or duties;

(iii) The requirement that Executive’s principal place of employment materially relocates more than 15 miles from its current location; or

(iv) The Company’s material breach of its obligations under this Agreement;

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For the purposes of this Agreement, “Change in Control” means:

(iv) The consummation of the sale or disposition by the Company of all or substantially all of the Company’s assets.

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6. Death of Executive. If Executive dies during the term of this Agreement, Executive shall be treated as having been terminated other than for Cause for purposes of Section 4 of this Agreement.

7. Assignment. This Agreement shall be binding upon and inure to the benefit of (a) the heirs, beneficiaries, executors and legal representatives of Executive upon Executive’s death and (b) any successor of the Company. Any such successor of the Company shall be deemed substituted for the Company under the terms of this Agreement for all purposes. As used herein, successor shall include any person, firm, corporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or substantially all of the assets or business of the Company. None of the rights of Executive to receive any form of compensat ion payable pursuant to this Agreement shall be assignable or transferable except through a testamentary disposition or by the laws of descent and distribution upon the death of Executive. Any attempted assignment, transfer, conveyance or other disposition (other than as aforesaid) of any interest in the rights of Executive to receive any form of compensation hereunder shall be null and void.

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	If to the Company:
	Attn: Chief Financial Officer
	diaDexus, Inc.
	343 Oyster Point Boulevard
	South San Francisco, CA 94080

	If to Executive:
	Robert Wolfert


	Tel:
	Fax:

	Or at the last residential address known by the Company.

12. Non-Binding Mediation, Arbitration and Equitable Relief.

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(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.

13. No Oral Modification, Cancellation or Discharge. This Agreement may only be amended, canceled or discharged in writing signed by the parties hereto.

15. Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to the conflict of law provisions thereof.

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IN WITNESS WHEREOF, the undersigned have executed this Agreement:

/s/ Patrick Plewman		5/20/08
By: Patrick Plewman		Date
diaDexus, Inc.


/s/ Robert Wolfert		5/21/08
Robert Wolfert		Date
Executive

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EX-99.1 7 ex99_1.htm EXHIBIT 99.1 ex99_1.htm

Exhibit 99.1

Investor and Media Contact:

David Foster

Executive Vice President, CFO

650-246-6403

VAXGEN AND DIADEXUS COMPLETE MERGER

July 28, 2010, South San Francisco –VaxGen, Inc. (OTC Bulletin Board: VXGN) announced today the completion of its merger transaction with diaDexus, Inc., a diagnostics company focused on the development and commercialization of patent-protected in vitro diagnostic products addressing unmet needs in cardiovascular disease.

As consideration in the transaction, VaxGen issued approximately 19,960,534 shares to certain diaDexus stockholders and officers. As a result, VaxGen now has 53,067,057 shares of common stock issued and outstanding, of which pre-transaction diaDexus stockholders and officers own approximately 38% and pre-transaction VaxGen stockholders continue to own approximately 62%. diaDexus, LLC (as the successor entity to diaDexus, Inc. in the transaction) will operate as a wholly-owned subsidiary of VaxGen.

“The Board of Directors and I are very pleased to announce the completion of this transaction,” said Patrick Plewman, the new President and Chief Executive Officer of VaxGen. “We believe the company has the opportunity for strong revenue growth based on the potential of the PLAC Test and on the cash assets that are being combined in this merger. The PLAC ELISA Test for Lp-PLA2 is the only blood test cleared by the FDA to assess risk for coronary heart disease and ischemic stroke, the #1 and #3 cause of death, respectively, in the United States.”

Effective upon the closing of the transaction, VaxGen’s board was reconstituted and new officers were appointed. Patrick Plewman will serve as President and Chief Executive Officer, David J. Foster will serve as Executive Vice President, Chief Financial Officer and Secretary, Robert L. Wolfert will serve as Executive Vice President and Chief Scientific Officer, and Bernard M. Alfano will serve as Executive Vice President and Chief Commercial Officer. The new VaxGen Board of Directors is comprised of Patrick Plewman, Louis C. Bock, Charles W. Patrick, Lori F. Rafield and James P. Panek.

About VaxGen and diaDexus, LLC (formerly diaDexus, Inc.)

VaxGen is based in South San Francisco, California and is focused on the development and commercialization of patent-protected in vitro diagnostic products addressing unmet needs in cardiovascular disease. On July 28, 2010 VaxGen acquired diaDexus, Inc. and merged it into its wholly-owned subsidiary diaDexus, LLC. At a future date to be determined, diaDexus, LLC expects to merge into VaxGen and change the company name to diaDexus, Inc. For more information, including links to SEC public filings, please visit VaxGen’s web site at http://www.vaxgen.com. For more information about the diaDexus diagnostic business, please visit http://www.diadexus.com.< /font>

Forward-Looking Statements

This news release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Such statements include, but are not limited to, statements about the transaction and its potential benefits to VaxGen stockholders, the company’s plans, objectives, expectations and intentions with respect to future operations and products and other statements that are not historical in nature, particularly those that utilize terminology such as “will,” “potential”, “could,” “can,” “believe,” “intends,” “continue,” “plans,” “expects,” “estimates” or comparable terminology. Forward-looking statements are based on current expectations and assumptions, and entail various known and unknown risks and uncertainties that could cause actual results to differ materially from those expressed in such forward-looking statements. Important factors known to VaxGen that could cause actual results to differ materially from those expressed in such forward-looking statements include the risk of general business and economic conditions; the failure to realize the anticipated benefits from the transaction or delay in realization thereof; the sufficiency of available capital to allow the company to grow revenue or achieve profitability; the risk that the company is unable to obtain required regulatory approvals and to commercially reintroduce its PLAC TIA test in a timely manner, or at all, or that company revenues are materially adversely affected by the issuance of a “do not use” letter to customers with respect to the PLAC TIA test; the technical and commercial merits and potential of the company’s diagnostic products; and the difficulty of developing pharmaceutical and diagnostic products , obtaining regulatory and other approvals and achieving market acceptance. Additional factors that could cause VaxGen’s results to differ materially from those described in the forward-looking statements can be found in VaxGen’s most recent annual report on Form 10-K and subsequent quarterly reports on Form 10-Q and other reports filed with the Securities and Exchange Commission, and available at the SEC’s web site at www.sec.gov. The information set forth herein speaks only as of the date hereof, and VaxGen disclaims any intention and does not assume any obligation to update or revise any forward looking statement, whether as a result of new information, future events or otherwise.

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