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Exhibit
10.1
EMPLOYMENT
AGREEMENT
This E MPLOYMENT A
GREEMENT (this
“Agreement” ) is made and entered into
effective as of October __, 2007 (the “ Effective
Date ”) by and among I NSERT T
HERAPEUTICS ( “Insert”
), C ALANDO P HARMACEUTICALS (
“ Calando”) (collectively, the
“Companies” ), and L
ARRY S TAMBAUGH (the
“Executive” ). The Companies and the
Executive are hereinafter collectively referred to as the
“Parties” , and individually referred to
as a “Party” .
R
ECITALS
A. The Companies
desire assurance of the association and services of the Executive
in order to retain the Executive’s experience, skills,
abilities, background and knowledge, and is willing to engage the
Executive’s services on the terms and conditions set forth in
this Agreement.
B. The Executive
desires to be in the employ of the Companies, and is willing to
accept such employment on the terms and conditions set forth in
this Agreement.
C. The Parties
anticipate that, shortly following the execution of this Agreement,
Insert and Calando shall merge into a single entity (the “
Merged Entity ”), and that Executive shall
thereafter perform the services described herein on behalf of the
Merged Entity.
A
GREEMENT
In consideration of the
foregoing Recitals and the mutual promises and covenants herein
contained, and for other good and valuable consideration, the
Parties, intending to be legally bound, agree as
follows:
1.1 Term. The
Companies hereby employ the Executive, and the Executive hereby
accepts employment with the Companies, upon the terms and
conditions set forth in this Agreement. The term of this Agreement
shall begin on the Effective Date and shall continue until it is
terminated pursuant to Section 4 herein (the
“Term” ). The initial term of this
Agreement shall be for a period of (i) three years after the
Effective Date of this Agreement (“ Initial
Term ”); or (ii) the date upon which
Executive’s employment is terminated in accordance with
Section 4. This Agreement shall be automatically renewed for
additional one (1) year terms (each an “ Extension
Term ”) upon the expiration of the Initial Term and
each Extension Term, unless either party gives the other party a
written notice of termination not less than thirty (30) days
prior to the date of expiration of the Initial Term or any
Extension Term (together, the Initial Term and all Extension Terms
are referred to herein as the “ Term ”).
Where the Agreement is terminated upon notice and the expiration of
the Initial Term or an Extension Term, the Company shall pay to
Executive all compensation to which Executive is entitled up
through the effective date of termination according to its normal
payroll practices, and the Company shall not have any further
obligations under this Agreement. It is expected that the
Executive’s first day of work for the Companies shall be
November 1, 2007.
1.
1.2 Title
. The Executive shall be the President and Chief Executive
Officer of Insert and the President and Chief Executive Officer of
Calando, and shall also serve in such other capacity or capacities
as the Boards of Directors (the “ Boards
”) of the Companies may from time to time prescribe. The
Executive shall also serve as a member of the Companies’
Boards. Following the anticipated merger of the Companies into the
Merged Entity, the Executive shall serve as the President and Chief
Executive Officer of the Merged Entity and shall also serve on the
Board of the Merged Entity.
1.3 Duties. The
Executive shall do and perform all services, acts or things
necessary or advisable to manage and conduct the business of the
Companies and that are normally associated with the position of
President and Chief Executive Officer. The Executive shall report
to the Companies’ Boards.
1.4 Policies and
Practices. The employment relationship between the Parties
shall be governed by this Agreement and by the policies and
practices established by the Companies and the Companies’
Boards. In the event that the terms of this Agreement differ from
or are in conflict with the Companies’ policies or practices
or the Companies’ Employee Handbooks, this Agreement shall
control.
1.5 Location
. Unless the Parties otherwise agree in writing, during the
Term the Executive shall perform the services the Executive is
required to perform pursuant to this Agreement in San Diego,
California; provided, however , that the Companies may from
time to time require the Executive to travel temporarily to other
locations in connection with the Companies’
business.
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2. |
L OYAL AND C
ONSCIENTIOUS P ERFORMANCE ; N
ONCOMPETITION . |
2.1 Loyalty
. During the Executive’s employment by the Companies,
the Executive shall devote the Executive’s full business
energies, interest, abilities and productive time to the proper and
efficient performance of Executive’s duties under this
Agreement. Notwithstanding the foregoing, the Executive and the
Companies agree that the Executive may (1) serve as a member
of the Boards of Directors of Precision, Elixir Industries, and
Axtel, Inc.; and (2) serve as the Chairman of the Board of
Directors of a yet-to-be-formed subsidiary of Virtual Reality
Medical Center; provided that such service does not materially
interfere with the Executive’s duties for the
Companies.
2.2 Agreement not
to Participate in Companies’ Competitors . During
the Term, the Executive agrees not to acquire, assume or
participate in, directly or indirectly, any position, investment or
interest known by Executive to be adverse or antagonistic to the
Companies, their business, or prospects, financial or otherwise, or
in any company, person, or entity that is, directly or indirectly,
in competition with the business of the Companies or any of their
Affiliates. Ownership by the Executive, in professionally managed
funds over which the Executive does not have control or discretion
in investment decisions, or as a passive investment, of less than
two percent (2%) of the outstanding shares of capital stock of
any corporation with one or more classes of its capital stock
listed on a national securities exchange or publicly traded on the
Nasdaq Stock Market or in the over-the-counter market shall not
constitute a breach of this Section 2.3.
2.
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3. |
C OMPENSATION OF
THE E XECUTIVE . |
3.1 Base
Salary. The Companies shall pay the Executive a combined base
salary at the rate of four hundred thousand dollars ($400,000) per
year (the “Base Salary” ), less payroll
deductions and all required withholdings, payable in regular
periodic payments in accordance with the Companies’ normal
payroll practices. Such Base Salary shall be prorated for any
partial year of employment on the basis of a 365-day fiscal
year.
3.2 Annual Bonus. In
addition to the Base Salary, the Executive shall be eligible for an
annual bonus of up to 50% of the Executive’s Base Salary as
is then in effect, based on the Executive’s achievement of
performance milestones to be established for the Executive each
year by the Companies’ Boards in consultation with the
Executive. Any annual bonus earned by Executive will be paid within
two-and-one-half months of the end of the year in which it was
earned.
3.1 Stock
Options.
3.1.1 Option
Grants. Subject to the approval of the Boards of Insert,
Calando, and Arrowhead Research Corporation (“
Arrowhead ”), and subject to the terms of
Insert’s, Calando’s, and Arrowhead’s respective
Equity Incentive Plans (the “ Plans
” ), the Executive will be granted all of the
following (collectively, the “ Options
”):
(i) an option to
purchase a number of shares of Insert’s common stock that is
not less than five percent (5%) of Insert’s outstanding
common stock, which percentage shall be based on the fully-diluted
capitalization of Insert immediately following the grant of the
option, at an exercise price per share equal to the fair market
value of a share of Insert’s common stock on the date of the
grant;
(ii) an option to
purchase a number of shares of Calando’s common stock that is
not less than five percent (5%) of Calando’s outstanding
common stock, which percentage shall be based on the fully-diluted
capitalization of Calando immediately following the grant of the
option, at an exercise price per share equal to the fair market
value of a share of Calando’s common stock on the date of the
grant; and
(iii) an option to
purchase 100,000 shares of Arrowhead’s common stock at an
exercise price equal to the closing price of a share of
Arrowhead’s common stock on the NASDAQ exchange on the later
of (a) the Executive’s start date; and (b) the date
Arrowhead’s Board approves the option.
The Options shall be immediately fully
exercisable and shall vest in accordance with Section 3.1.2
below. The Executive’s right to exercise the shares, the
Companies’ and Arrowhead’s repurchase rights with
respect to any exercised unvested shares, and all other rights and
obligations with respect to the Option, will be as set forth in the
stock option agreement, grant notice and applicable
Plans.
3.
3.1.2 Vesting.
The Options shall vest as follows: 12.5% of the shares subject to
each of the three Options shall vest on the six (6) month
anniversary of the Effective Date. The remaining 87.5% of the
shares subject to the Options shall vest in equal monthly
installments on the last calendar day of each month for the
42-month period thereafter.
3.1.3 Incentive Stock
Option. To the maximum extent possible, the Options shall be
Incentive Stock Options as such term is defined in Section 422
of the Internal Revenue Code of 1986, as amended.
3.2 Employment
Taxes . All of the Executive’s compensation shall be
subject to customary withholding taxes and any other employment
taxes as are commonly required to be collected or withheld by the
Companies.
3.3 Vacation.
The Executive shall be entitled to four (4) weeks of paid
vacation per year. Benefits . The Executive shall, in
accordance with Arrowhead’s policies and the terms of the
applicable plan documents, be eligible to participate in the
various employee benefit plans and programs offered by Arrowhead,
including but not limited to health, dental, and vision, life, and
disability insurance benefits and Arrowhead’s 401(k)
plan.
3.4 Expense
Reimbursements. The Companies will reimburse the Executive for
all reasonable business expenses Executive incurs in conducting his
duties hereunder, pursuant to the Companies’ usual expense
reimbursement policies.
4.1 Termination By
the Companies . The Executive’s employment with the
Companies is at will and may be terminated by the Companies at any
time and for any reason or for no reason, including but not limited
to under the following conditions:
4.1.1 Termination
for Death or Disability . The Executive’s employment with
the Companies shall automatically terminate effective upon the date
of the Executive’s death or Complete Disability (as defined
below), provided, however, that this Section 4.1.1 shall in no
way limit the Companies’ obligation to provide such
reasonable accommodations to the Executive as may be required by
law.
4.1.2 Termination
by the Companies For Cause . The Companies may terminate the
Executive’s employment under this Agreement for
“Cause” (as defined below) by delivery of written
notice to the Executive specifying the Cause or Causes relied upon
for such termination. Any notice of termination given pursuant to
this Section 4.1.2 shall effect termination as of the date of
the notice, or as of such other date as specified in the
notice.
4.1.3 Termination by the
Companies Without Cause. The Companies may terminate the
Executive’s employment under this Agreement without Cause at
any time and for any reason, or for no reason. Such termination
shall be effective on the date the Executive is so informed, or as
otherwise specified by the Companies.
4.
4.2 Termination By
The Executive . The Executive’s employment with the
Companies is at will and may be terminated by the Executive at any
time and for any reason or for no reason, including but not limited
to under the following conditions:
4.2.1 Good
Reason . The Executive may terminate his employment under this
Agreement for “Good Reason” (as defined below) in
accordance with the procedures specified in Section 4.6.2
below.
4.2.2 Without Good
Reason . The Executive may terminate the Executive’s
employment hereunder for other than Good Reason upon thirty
(30) days written notice to the Companies.
4.3 Termination by
Mutual Agreement of the Parties . The Executive’s
employment pursuant to this Agreement may be terminated at any time
upon a mutual agreement in writing of the Parties. Any such
termination of employment shall have the consequences specified in
such agreement.
4.4 Compensation
Upon Termination .
4.4.1 Death or
Complete Disability . If the Executive’s employment shall
be terminated by death or Complete Disability as provided in
Section 4.1.1, the Companies shall pay to the Executive, or to
the Executive’s heirs, the Executive’s Base Salary and
accrued and unused vacation benefits earned through the date of
termination at the rate in effect at the time of termination, less
standard deductions and withholdings.
4.4.2 With Cause or
Without Good Reason. If the Executive’s employment shall
be terminated by the Companies for Cause, or if the Executive
terminates his employment hereunder without Good Reason, the
Companies shall pay the Executive’s Base Salary and accrued
and unused vacation benefits earned through the date of termination
at the rate in effect at the time of termination, less standard
deductions and withholdings.
4.4.3 Without Cause
or For Good Reason Not In Connection with a Change in Control.
If the Companies terminate the Executive’s employment without
Cause, or if the Executive terminates his employment for Good
Reason, at any time other than during the three (3) months
immediately preceding, or the twelve (12) months immediately
following, a Change in Control (as defined below) of Insert,
Calando, or the Merged Entity, the Companies shall pay the
Executive’s Base Salary and accrued and unused vacation
earned through the date of termination, at the rate in effect at
the time of termination, less standard deductions and withholdings.
In addition, upon the Executive’s furnishing to the Companies
a waiver and release of claims in the form attached hereto as
Exhibit A ( the “ Release
”) within the time period set forth therein, but in no
event later than forty-five days following Executive’s
termination, and permits the Release to become effective in
accordance with its terms, the Executive shall be entitled to the
following:
5.
(i) an amount equal to
six (6) months of the Executive’s Base Salary in effect
at the time of termination (calculated prior to any reduction in
Base Salary that would give rise to the Executive’s right to
resign for Good Reason pursuant to Section 4.6.2(iii)), less
standard deductions and withholdings, to be paid to the Executive
in a single lump sum within five (5) days of the effective
date of the Release (as defined therein); and
(ii) in the event the
Executive timely elects continued coverage under COBRA, the
Companies will pay the same portion of the Executive’s COBRA
health insurance premiums as the percentage of health insurance
premiums it paid during the Executive’s employment for the
twelve (12) month period commencing on the first day of the
first full calendar month following the effective date of the
Release; and
(iii) if the
termination date is on or before the first anniversary of the
Effective Date, vesting of the Executive’s Options shall be
accelerated such that, on the effective date of the Release, the
Executive shall receive immediate accelerated vesting of the number
of shares subject to each of the three Options that will bring the
Executive’s total percentage of vested shares under each of
the three Options to 20%. For example, if the Executive’s
employment were terminated three (3) months after the
Effective Date, the Executive would be entitled to immediate
accelerated vesting of 20% of the shares subject to each of the
three Options. If the Executive’s employment were terminated
six (6) months and one day after the Effective Date, such that
the Executive would already be vested in 12.5% of the shares
subject to each of the three Options under Section 3.1.2, the
Executive would be entitled to immediate accelerated vesting of
7.5% of the shares subject to each of the three Options.
4.4.4 Without Cause
or For Good Reason In Connection with a Change in Control. If
the Companies terminate the Executive’s employment without
Cause, or if the Executive terminates his employment for Good
Reason, at any time during the three (3) months immediately
preceding, or the twelve (12) months immediately following, a
Change in Control of Insert, Calando, or the Merged Entity, the
Companies shall pay the Executive’s Base Salary and accrued
and unused vacation earned through the date of termination, at the
rate in effect at the time of termination, less standard deductions
and withholdings. In addition, if the Executive furnishes to the
Companies the Release within the time period set forth therein, but
in no event later than forty-five days following Executive’s
termination, and permits the Release to become effective in
accordance with its terms, the Executive shall be entitled to the
following:
(i) an amount equal to
twelve (12) months of the Executive’s Base Salary in
effect at the time of termination (calculated prior to any
reduction in Base Salary that would give rise to the
Executive’s right to resign for Good Reason pursuant to
Section 4.6.2(iii)), less standard deductions and
withholdings, to be paid to the Executive in a single lump sum
within five (5) days of the effective date of the Release;
and
(ii) in the event the
Executive timely elects continued coverage under COBRA, the
Companies will pay the same portion of the Executive’s COBRA
health insurance premiums as the percentage of health insurance
premiums it paid during the Executive’s employment for the
twelve (12) month period commencing on the first
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