Exhibit 10.1
[Nektar Letterhead]
August 9, 2007
Xx. Xxx Xxxxxxxx
[Personal Address]
[Personal Address]
Dear Xxx:
I am pleased and excited to offer you the position of Senior Vice President and
Chief Financial Officer of Nektar Therapeutics ("Nektar" or the "Company")
reporting directly to me. Accordingly, I present you with this offer letter
agreement setting forth certain terms and conditions of your employment.
Capitalized terms used herein and not defined shall have the meanings ascribed
to them in the Company's Change of Control Severance Benefit Plan, as it may be
amended from time to time (the "COC Plan").
Your annual cash compensation will consist of two components: base salary and an
annual performance bonus. Your base salary will be $440,000 on an annual basis
and paid in accordance with Xxxxxx's regular payroll schedule. Your annual
performance bonus target each year will be at least 50% of your annual base
salary for each annual period and $220,000 pro-rated for your partial period of
service in 2007 ("Target Annual Bonus"). Your base salary and Target Annual
Bonus shall be subject to annual performance review by the Compensation
Committee of the Board of Directors ("Compensation Committee") in consultation
with me for appropriate upward adjustment. The actual amount of your annual
performance bonus will range from 0% to 150% of the Target Annual Bonus based on
the Compensation Committee's assessment in consultation with me of the
achievement of a combination of annual corporate objectives and your achievement
of personal objectives agreed upon by you and me at the beginning of each annual
performance period; provided that your objectives for your partial period of
service in 2007 will be agreed upon by you and I as soon as practicable
following your start date. Your annual performance bonus for the prior year will
be paid in the first calendar quarter of each year within the period of time
required to avoid taxes and penalties under Section 409A of the Internal Revenue
Code.
Subject to approval by the Compensation Committee prior to and effective as of
your first day of full-time employment with Nektar ("Start Date"), you will be
granted (i) a stock option to purchase 200,000 shares of Nektar common stock
(the "Initial Option", which together with any subsequent stock options you may
receive, are the "Stock Options") under Xxxxxx's 2000 Equity Incentive Plan
("2000 Plan") and (ii) a restricted stock unit for 10,000 shares ("RSU") of
Nektar common stock under the 2000 Plan. The maximum number of shares subject to
the Stock Options will be granted as incentive stock options within the meaning
of Section 422 of the Internal Revenue Code to the extent permissible under
Section 10(d) of the 2000 Plan. The remainder of shares subject to the Stock
Options will be granted as non-statutory stock options. The exercise price will
be set at the closing price of Xxxxxx's common stock on Nasdaq on your Start
Date in the case of the Initial Option or at the date determined by the
Compensation Committee in the case of any subsequent Stock Options. The shares
subject to the Initial Option will vest according to a 4-year vesting schedule
for so long as you provide Continuous Service (as defined in the 2000 Plan) to
the Company with 25% of the shares subject to the Initial Option vesting on the
one year anniversary of your Start Date and the remainder vesting monthly on a
pro-rata basis over the following 3 years. The shares subject to the RSU will
vest according to a 4-year vesting schedule for so long as you provide
Continuous Service to the Company with 25% of the shares subject to the RSU
vesting on the one year anniversary of your Start Date and the remainder vesting
on an annual pro-rata basis over the following 3 years.
5
You will be eligible for annual equity awards, in the sole discretion of the
Compensation Committee, based on the Compensation Committee's review, in
consultation with me, of your individual performance and annual equity
compensation levels of chief financial officers of comparator companies as
analyzed by a reputable, nationally-recognized, independent compensation
consultancy firm.
You will also be eligible to participate in Nektar's executive benefits program
including medical, dental and vision insurance, term life insurance, 401(k), the
flexible health spending plan, short & long-term disability upon the terms
specified in those plans, and the COC Plan.
Your employment is by continued mutual agreement and may be terminated at will
with or without cause by either you or Nektar at any time with or without
advanced notice. You will also be required to enter into Xxxxxx's standard
Employment Agreement, a copy of which is attached as Exhibit A hereto. As we
have discussed, we currently expect your Start Date to be on August 24, 2007.
In the event of your death or Disability (as defined in the 2000 Plan), (a) 50%
of the unvested shares under your Stock Options will automatically vest in the
event of your Disability and 100% shall automatically vest in the event of your
death, (b) Nektar will pay to you or your estate, as applicable, all
unreimbursed expenses, all of your then accrued but unpaid base salary, and your
target bonus prorated for the portion of the last year in which you were
employed by Nektar prior to death or Disability, and (c) you and your dependents
shall be entitled to continued medical, dental, and vision insurance for
yourself and your dependents, at your or their expense, at the same level of
coverage as was provided to you and your dependents under Xxxxxx's insurance and
benefits plans immediately prior to the termination by electing COBRA
continuation coverage in accordance with applicable law.
In the event your employment is terminated for reasons not related to a Change
of Control (a) by the Company without Cause; or (b) by you for a Good Reason
Resignation, then you and the Company will meet in good faith to discuss the
terms of an appropriate separation. In any event, at a minimum, the Company will
enter into a severance arrangement with you which will include the following:
(i) a fully effective mutual waiver and release in such form as the Company may
reasonably require, (ii) a cash severance payment equal to your total annual
cash compensation target (defined as your current monthly base salary annualized
for 12 months, plus your bonus target multiplied by the expected pay-out
percentage used by the Company for its GAAP financial statements in the previous
calendar quarter, but not to exceed 100%), payable in accordance with the
severance payment schedule described in the COC Plan and subject to such delay
in payment required for compliance with Section 409A, (iii) pro-rata vesting
credit (based on conversion of the vesting schedule to a monthly vesting
schedule) on your Initial Option through the date of termination if your
termination occurs prior to the first anniversary of the Start Date, based on
months completed since your Start Date, (iv) the exercise period for the vested
and unexercised portion of your Initial Option shall be 12 months following the
termination date and (v) the Company shall pay all applicable COBRA payments for
you and your family for one year after the termination date (such payments shall
cease in the event that you become eligible for comparable benefits with another
employer).
6
In compliance with the terms of the Federal Immigration Reform and Control Act,
you will be required to provide us with proof of authorization to work and proof
of identity.
The terms, compensation and benefits set forth in this letter, which shall be
governed by California law, without reference to principles of conflicts of
laws, may not be reduced without your prior written consent and shall be binding
upon and inure to the benefit of (a) your heirs, executors, and legal
representatives upon your death and (b) any person or entity which at any time,
whether by purchase, merger, or otherwise, directly or indirectly acquires all
or a majority of the assets, business, capital stock, or voting stock of the
Nektar. Any such person or entity shall be deemed substituted for the Nektar
under this letter for all purposes.
7
Xxx, I am delighted at the prospect of your leadership at Nektar as Senior Vice
President and Chief Financial Officer. Please feel free to call me if you have
any questions and I look forward to working with you.
Sincerely,
/s/ Xxxxxx X. Xxxxx
Xxxxxx W. Xxxxx
President and Chief Executive Officer
OFFER ACCEPTED:
/s/ Xxx Xxxxxxxx August 10, 2007
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Xxx Xxxxxxxx Date
8
EXHIBIT A
EMPLOYEE AGREEMENT
In consideration of my employment or continued employment by Nektar
Therapeutics, its subsidiaries or affiliates (collectively, the "Company"), I,
_________________________ (name) residing at __________________________
(address), agree as of the date I was first employed by Company as follows:
1. Entire Agreement: This Agreement sets forth the complete and entire
agreement between Company and me and supersedes any and all previous oral or
written communications, discussions and agreements between Company and me with
respect to the subject of this Agreement.
2. Employment:
a. Duty of Loyalty. During the period of my employment by the Company, I
shall devote my full time and best efforts to the business of the Company, and I
shall neither pursue any business opportunity outside the Company nor take any
position with any organization other than as authorized in writing by the Chief
Executive Officer of the Company. While employed by the Company, I will avoid
all conflicts of interest and will not compete with the Company or undertake
other acts of disloyalty.
b. Change in Jobs. I agree that all of my obligations under this Agreement
will remain in full force and effect should I receive a promotion, demotion or
experience a change in job title or duties while employed by the Company.
c. Employment at Will. I agree that this Agreement does not guarantee my
continued employment with the Company. I acknowledge that, unless I enter into a
written employment agreement with the Company that provides for a specified
period of employment, I am employed "at-will," meaning that either the Company
or I may terminate the employment relationship at any time, for any or no
reason, with or without cause or prior notice.
3. Assignment of Developments:
a. Assignment to Company. If at any time or times during my employment or
other association with the Company, I shall (either alone or with others) make,
conceive, create, discover, invent or reduce to practice any development that
(i) relates to the business of the Company or any of the products or services
being explored, developed, manufactured or sold by the Company or which may be
used in relation therewith; or (ii) results from tasks assigned to me by the
Company; or (iii) results from the use of premises or personal property (whether
tangible or intangible) owned, leased or contracted for by the Company
(hereinafter collectively referred to as "Developments"), then all such
Developments and the benefits thereof are and shall immediately become the sole
and absolute property of the Company and its assigns, as works made for hire or
otherwise. I shall promptly disclose to the Company (or any persons designated
by it) each such Development. I hereby assign all rights (including, but not
limited to, rights to inventions, patentable subject matter, copyrights and
trademarks) I may have or may acquire in the Developments, as well as all
benefits and/or rights resulting therefrom, to the Company and its assigns
without further compensation and shall communicate, without cost or delay, and
without disclosing to others the same, all available information relating
thereto (with all necessary plans and models) to the Company.
b. Requirement to Provide Assistance. I agree to assist the Company, or
its designee, at the Company's expense, in every proper way to secure the
Company 's rights in the Developments and any copyrights, patents, trademarks,
and trade secret rights or other intellectual property rights in connection with
any such Developments in any and all countries, including the disclosure to the
Company of all pertinent information and data with respect thereto, the
execution of all applications, specifications, oaths, assignments and all other
instruments which the Company shall deem necessary in order to apply for and
obtain such rights and in order to assign and convey to the Company, its
successors, assigns, and nominees the sole and exclusive rights, title and
interest in and to such Developments, and any copyrights, patents, trademark and
other intellectual property rights relating thereto. I further agree that my
obligation to execute or cause to be executed, when it is in my power to do so,
any such instrument or papers shall continue after the termination of this
Agreement. If the Company is unable, because of my mental or physical incapacity
or for any other reason, to secure my signature to apply for or to pursue any
application for any United States or foreign patents or copyright registrations
covering Developments or original works of authorship assigned to the Company as
above, then I hereby irrevocably designate and appoint the Company and its duly
authorized officers and agents as my agent and attorney in fact, to act for and
in my behalf and stead to execute and file any such applications and to do all
other lawfully permitted acts to further the prosecution and issuance of letters
patent or copyright registrations thereon with the same legal force and effect
as if executed by me.
c. Works Made For Hire. I will promptly disclose to the Company all
material which I produce, compose or write, individually or in collaboration
with others, which arises out of work delegated to me by the Company. I agree
that all such material constitutes a work for hire, and at the expense of the
Company, I will assign to the Company all my interest in such copyrightable
material and will sign all papers and do all other acts necessary to assist the
Company to obtain copyrights on such material in any and all countries.
d. Ongoing Notice Obligation. I agree that for a period of one (1) year
following the termination of my employment for any reason, I will notify the
Company immediately of any and all creations, discoveries, inventions or other
developments made by me (either alone or with others) that relate to the
business of the Company or relate to research and development in which I was
involved during the course of my employment by the Company. Any such creation,
discovery, invention or other development relating to the Company's business
made by me (either alone or with others) within one (1) year following the
termination of my employment shall be presumed to be owned by the Company.
e. Inventions Not Assigned to Company. I understand and acknowledge that
the assignment of Developments under this Agreement does not apply to an
invention which qualifies fully for protection under section 2870 California
Labor Code section, a copy of which is attached as Appendix A, which pertains to
any rights I may have acquired in connection with an invention, discovery or
improvement that was developed entirely on my own time for which no equipment,
supplies, facilities or trade secret information of the Company was used and (a)
that does not relate directly or indirectly to the business of the Company or to
the Company's actual or demonstrably anticipated research or development, or (b)
that does not result from any work performed by me for the Company.
f. Disclosure of Prior Inventions. I represent that the creations,
discoveries, inventions or other developments identified in Appendix B attached
hereto ("Prior Developments"), if any, comprise all the Prior Developments that
I made or conceived prior to my employment by the Company, which Prior
Developments are excluded from this Agreement. I understand that it is only
necessary to list the title of such Prior Developments and the purpose thereof,
but not details of the Prior Development itself. IF THERE ARE ANY SUCH
DEVELOPMENTS TO BE EXCLUDED, THE UNDERSIGNED SHOULD INITIAL HERE; OTHERWISE IT
WILL BE DEEMED THAT THERE ARE NO SUCH EXCLUSIONS.
4. Nondisclosure of Confidential Information: I shall not at any time,
whether during or after the termination of my employment, reveal to any person
or entity any Confidential Information except to employees of the Company who
need to know such Confidential Information for the purposes of their employment,
or as otherwise authorized by the Company in writing. The term "Confidential
Information" shall include any information concerning the organization, business
or finances of the Company or of any third party which the Company is under an
obligation to keep confidential that is maintained by the Company as
confidential. Such Confidential Information shall include, but is not limited
to, trade secrets or confidential information respecting methods, know-how,
techniques, systems, processes, specifications, blueprints, formulae, devices,
models, software programs, works of authorship, customer lists, partner lists,
customer information, financial information, pricing or commission information,
business plans, projects, plans and proposals. I shall keep confidential all
matters entrusted to me and shall not use or attempt to use any Confidential
Information except as may be required in the ordinary course of performing my
duties as an employee of the Company, nor shall I use any Confidential
Information in any manner which may injure or cause loss or may be calculated to
injure or cause loss to the Company, whether directly or indirectly.
5. Nonsolicitation of Customers, Partners and Employees: I agree that the
Company has invested substantial time, effort and expense in compiling its
confidential and trade secret information and in assembling its present
personnel. In order to protect the confidentiality of the Company's sensitive
information, I agree that, during my employment and for one (1) year thereafter,
I shall not do the following:
a. approach, contact or otherwise communicate in any way with any customer
or partner of the Company with the use or assistance of Confidential Information
of the Company that I obtained during my employment for the purpose of engaging
in or assisting in soliciting business from that customer or partner;
b. solicit, approach, counsel or attempt to induce any person who is then
in the employ of the Company to leave the employ of the Company; or
c. aid, assist or counsel any other person, firm or corporation to do any
of the above.
6. Return of Property: I shall keep on Company's premises (except when
required elsewhere in connection with the conduct of Company's business) and
shall deliver to Company upon termination of my employment all writings related
to the business of Company, and all documents, equipment, materials and other
personal property belonging to Company. I further agree not to make or retain
any copy, duplication, facsimile, reproduction or replication of any of the
foregoing except as necessary to perform my duties as an employee of the
Company.
7. No Violation Of Prior Trade Secret Or Non-Competition Agreements: I
represent that the performance of all the terms of this Agreement as an employee
of this Company will not conflict with, and will not breach, any other
development assignment agreement, confidentiality agreement, employment
agreement or non-competition agreement to which I am or have been a party. To
the extent that I have confidential information or materials of any former
employer of mine, I acknowledge that the Company has directed me to not disclose
such confidential information or materials to the Company or any of its
employees, and that the Company prohibits me from using said confidential
information or materials in any work that I may perform for the Company, and I
will not bring with me to the Company, and will not use or disclose any
confidential, proprietary information, or trade secrets acquired by me prior to
my employment with the Company. I will not disclose to the Company or any of its
employees, or induce the Company or any of its employees to use, any
confidential or proprietary information or material belonging to any previous
employers or others, nor will I bring to the Company or use in connection with
my work for the Company copies of any software, computer files, or any other
copyrighted or trademarked materials except those owned by or licensed to the
Company. I am not a party to any other agreement that will interfere with my
full compliance with this Agreement. I further agree not to enter into any
agreement, whether written or oral, in conflict with the provisions of this
Agreement.
8. Choice of Law: This Agreement shall be construed and governed by the
laws of the state in which I am primarily assigned to perform my job for, or
engagement with, the Company and shall in all respects be interpreted, enforced
and governed under the internal and domestic laws of such state.
9. No Waiver: The waiver of any breach of this Agreement shall not
constitute a waiver of subsequent similar of dissimilar breaches of this
Agreement, or a waiver of any of the obligations contained herein.
10. Assignment: The Company shall have the right to assign this Agreement
to its successors and assigns, and all covenants and agreements hereunder shall
inure to the benefit of and be enforceable by said successors and assigns.
11. Right to Notify: I recognize the right of Company to notify any third
party of the existence of this Agreement and/or its provisions and/or my
agreeing to it.
12. Severability: Should a provision or part of a provision of this
Agreement be found as a matter or law to be invalid, such finding shall not have
the effect of invalidating the remainder of this Agreement and the provision or
part thereof as to which such finding of invalidity is made shall be interpreted
so as to be ineffective only to the extent of such invalidity without
invalidating the remainder of such provision or part thereof or any of the other
provisions of this Agreement.
13. Breach: I agree that any breach of this Agreement by me will cause
irreparable damage to the Company and that in the event of such breach the
Company shall have, in addition to any and all remedies of law, the right to an
injunction, specific performance or other equitable relief to prevent the
violation of my obligations hereunder. The Company may apply for such injunctive
relief in any court of competent jurisdiction without the necessity of posting
any bond or other security.
EMPLOYEE: NEKTAR THERAPEUTICS:
Signed: By:
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Name: Title: Vice President, Human Resources
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Dated: Dated:
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APPENDIX A
Section 2870 of California Labor Code: Application of provision providing that
employee shall assign or offer to assign rights in invention to employer.
a. Any provision and employment agreement which provides that an employee
shall assign, or offer to assign, any of his or her rights in an invention to
his or her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities or trade secret information except for those inventions
that either:
1 Relate at the time of conception or reduction to practice of
the invention to the employer's business, or actual or
demonstrably anticipated research or development of the
employer; or
2 Result from any work performed by the employee for the
employer.
b. To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be +assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
APPENDIX B
PRIOR INVENTIONS
