Exhibit 10.2
EMPLOYMENT
AGREEMENT
This Employment Agreement
(“Agreement”) is entered into as of the
day of
, by and
between
(“Executive”) and Orexigen Therapeutics, Inc. (the
“Company”) and is contingent on final approval by the
Company’s Board of Directors.
W HEREAS , the Company and Executive desire to amend and
restate the Prior Agreement on the terms and conditions set forth
herein.
N OW ,
T HEREFORE
, in consideration of the mutual
promises and covenants contained herein, it is hereby agreed by and
between the parties hereto as follows:
ARTICLE I
DEFINITIONS
For purposes of the Agreement, the
following terms are defined as follows:
1.1 “ Board ” means the Board of
Directors of the Company.
1.2 “ Cause ” means the
occurrence of any of the following events:
(a) Executive’s conviction of or plea of
guilty or nolo contendere to any felony or a crime of moral
turpitude;
(b) Executive’s willful and continued failure
or refusal to follow reasonable instructions of the Chief Executive
Officer and/or President of the Company or reasonable policies,
standards and regulations of the Company or its
affiliates;
(c) Executive’s willful and continued failure
or refusal to faithfully and diligently perform the usual,
customary duties of her employment with the Company or its
affiliates;
(d) Unprofessional, unethical, immoral or fraudulent
conduct by Executive;
(e) Conduct by Executive that materially discredits
the Company or any affiliate or is materially detrimental to the
reputation, character and standing of the Company or any affiliate;
or
(f) Executive’s material breach of the
Proprietary Information and Inventions Agreement.
An event described in Section 1.2(b)
through Section 1.2(f) herein shall not be treated as
“Cause” until after Executive has been given written
notice of such event, failure or conduct and Executive fails to
cure such event, failure, conduct or breach, if curable, within 30
days from such written notice. Failure of the Company to meet
financial or performance targets or goals shall not be deemed to be
a breach pursuant to Sections 1.2(b) or 1.2(c) herein.
1.3 “ Change in Control ” means
the occurrence of any of the following events:
(a) the direct or indirect acquisition by any person
or related group of persons (other than the Company or a person
that directly or indirectly controls, is controlled by, or is under
common control with, the Company) of beneficial ownership (within
the meaning of Rule 13d-3 of the Exchange Act) of securities
possessing more than 50% of the total combined voting power of the
Company’s outstanding securities pursuant to a tender or
exchange offer made directly to the Company’s shareholders
which the Board does not recommend such shareholders to
accept;
(b) a change in the composition of the Board over a
period of 36 months or less such that a majority of the Board
members ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who either (i)
have been Board members continuously since the beginning of such
period, or (ii) have been elected or nominated for election as
Board members during such period by at least a majority of the
Board members described in clause (i) who were still in office at
the time such election or nomination was approved by the
Board;
(c) the consummation of any consolidation, share
exchange or merger of the Company (i) in which the stockholders of
the Company immediately prior to such transaction do not own at
least a majority of the voting power of the entity which
survives/results from that transaction (or the parent of such
surviving/resulting entity), or (ii) in which a stockholder of the
Company who does not own a majority of the voting stock of the
Company immediately prior to such transaction, owns a majority of
the Company’s voting stock immediately after such
transaction; or
(d) the liquidation or dissolution of the Company or
any sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all or substantially all the
assets of the Company, including stock held in subsidiary
corporations or interests held in subsidiary ventures.
1.4 “ Company ” means Orexigen
Therapeutics, Inc. or, following a Change in Control, the surviving
entity resulting from such transaction.
1.5 “ Constructive Termination ”
means Executive’s Separation from Service as a result of
Executive’s voluntary resignation following:
(a) a material reduction in the level of
responsibility associated with Executive’s employment with
the Company or any surviving entity (other than a change in job
title or officer title);
(b) any material reduction in Executive’s
level of base salary; or
(c) a relocation of Executive’s principal
place of employment by more than 50 miles (other than reasonable
business travel required as part of the job duties associated with
Executive’s position);
provided , and only in the event that, such change,
reduction or relocation is effected by the Company without Cause
and without Executive’s consent.
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Executive must provide written
notice to the Company of the occurrence of any of the foregoing
events or conditions without the Executive’s written consent
within 90 days of the occurrence of such event. The Company or any
surviving entity shall have a period of 30 days to cure such event
or condition after receipt of written notice of such event from
Executive. Any Constructive Termination following such 30 day cure
period must occur no later than the date that is two years
following the initial occurrence of one of the foregoing events or
conditions without Executive’s written consent.
Executive’s Constructive Termination shall be treated as
involuntary.
1.6 “ Covered Termination ” means
an Involuntary Termination Without Cause or Constructive
Termination that occurs within the one-month period before the
effective date of a Change in Control and the six-month period
commencing on the effective date of a Change in Control.
1.7 “ Exchange Act ” means the
Securities Exchange Act of 1934, as amended.
1.8 “ Involuntary Termination Without
Cause ” means Executive’s Separation from Service
as a result of Executive’s dismissal or discharge by the
Company other than for Cause. The termination of Executive’s
employment as a result of Executive’s death or disability
will not be deemed to be an Involuntary Termination Without
Cause.
ARTICLE II
EMPLOYMENT BY THE
COMPANY
2.1 Position and
Duties. Subject to terms
set forth herein, the Company agrees to employ Executive in the
position of
and Executive hereby accepts such employment. Executive shall serve
in an executive capacity and shall perform such duties as are
customarily associated with the position of
and such other duties as are assigned to Executive by the
of the Company. During the term of Executive’s employment
with the Company, Executive will devote Executive’s best
efforts and substantially all of Executive’s business time
and attention (except for vacation periods and reasonable periods
of illness or other incapacities permitted by the Company’s
general employment policies or as otherwise set forth in this
Agreement) to the business of the Company.
2.2 Employment at
Will. Both the Company
and Executive shall have the right to terminate Executive’s
employment with the Company at any time, with or without Cause,
upon 30 days’ written notice. If Executive’s employment
with the Company is terminated, Executive will be eligible to
receive severance benefits to the extent provided in this
Agreement. If applicable, upon the date of Executive’s
termination of employment with the Company for any reason,
Executive shall immediately resign from the Board and the board of
directors or comparable body of every subsidiary, parent or other
affiliated corporation of the Company, and every committee
thereof.
2.3 Employment
Policies. The employment
relationship between the parties shall also be governed by the
general employment policies and practices of the Company, including
those relating to protection of confidential information and
assignment of inventions, except that when the terms of this
Agreement differ from or are in conflict with the Company’s
general employment policies or practices, this Agreement shall
control.
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2.4 Effective Date. The effective date of this agreement shall be
the date in which Executive begins employment with the Company
which is anticipated to be
.
ARTICLE III
COMPENSATION AND
BENEFITS
3.1 Base
Salary. Executive shall receive for
services to be rendered hereunder an annual base salary of $
(“ Base Salary ”), payable on the regular
payroll dates of the Company. 1
3.2 Annual
Bonus. In
addition to the Base Salary, Executive will be eligible for an
annual performance bonus, equal to up to 50% of the Base Salary,
and which is 100% based upon the achievement of the performance
goals and objectives to be determined by the compensation committee
of the Board (“ Annual Bonus ”). Such Annual
Bonus shall be evaluated and paid no later than December 31 of the
calendar year following the calendar year to which such Annual
Bonus relates. 2
3.3 Stock Options. Subject to approval of the
Board or the compensation committee of the Board, Executive shall
receive stock options to purchase
shares of the Company’s common stock pursuant to the
Company’s 2007 Equity Incentive Award Plan (the “2007
Plan”). Any stock options granted pursuant to this Section
3.3 shall have an exercise price per share equal to the
then-current fair market value per share of the Company’s
common stock (as determined pursuant to the 2007 Plan) on the date
the grant is approved by the Board or the compensation committee of
the Board. Such stock options shall be incentive stock options to
the extent permitted under Section 422 of the Internal Revenue Code
of 1986, as amended (the “ Code ”). Subject to
Section 4.2, 25% of the shares subject to such stock options shall
vest on the one year anniversary of your date of hire and the
remainder will vest in 36 equal monthly installments over a three
year period thereafter, subject to Executive’s continued
employment or service with the Company on each such date. Such
stock options shall have a ten (10) year term and shall be subject
to the terms and conditions of the 2007 Plan and the stock option
agreement pursuant to which such stock options are granted to the
extent such provisions are not less favorable to Executive than the
applicable provisions of this Agreement.
3.4 Signing Bonus.
As of the date of this Agreement,
Executive has received a signing bonus of $
from the Company. Such signing bonus is subject to repayment in the
event Executive’s employment with the Company is terminated
for any reason. Repayment of the signing bonus shall be forgiven by
50 percent on each of the first and second anniversaries of
Executive’s commencement of employment with the
Company.
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Base salary level to be
updated, as appropriate.
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Target bonus level to be
updated, as appropriate.
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3.5 Vacation and Paid Time Off.
Executive shall be entitled to 20
business days of paid vacation each year, accruing on a monthly
basis, 2 personal days, and 8 holidays each year.
3.6 Expenses.
During the term of this Agreement,
the Company shall reimburse Executive for all reasonable and
necessary out-of-pocket expenses incurred by Executive in
connection with services rendered on behalf of the Company subject
to Executive providing the Company with appropriate substantiation
in accordance with Company policy. Any amounts payable under this
Section 3.5 shall be made in accordance with Treasury Regulation
Section 1.409A-3(i)(1)(iv) and shall be paid on or before the last
day of Executive’s taxable year following the taxable year in
which Executive incurred the expenses. The amounts provided under
this Section 3.5 during any taxable year of Executive’s will
not affect such amounts provided in any other taxable year of
Executive’s, and Executive’s right to reimbursement for
such amounts shall not be subject to liquidation or exchange for
any other benefit.
3.7 Standard Company
Benefits. Executive shall
be entitled to all rights and benefits for which Executive is
eligible under the terms and conditions of the standard Company
benefits and co
