Exhibit 10.34
AFFYMAX INC.
EXECUTIVE EMPLOYMENT
AGREEMENT
for
Robert F.
Venteicher
This Employment Agreement (“
Agreement ”) is entered into by and between
Robert F. Venteicher (“ Executive ”) and
Affymax Inc., (the “ Company ”),
effective as of December 17, 2008 (the “ Effective
Date ”).
WHEREAS , the Company retains the services of Executive
pursuant to that certain Executive Employment Agreement dated
July 24, 2007 (the “ Employment Agreement
”) and the Company and Executive hereby wish to amend and
restate the Employment Agreement in its entirety as provided
herein;
WHEREAS , the Company desires to continue to employ
Executive to provide personal services to the Company, and wishes
to continue to provide Executive with certain compensation and
benefits in return for his services; and
WHEREAS , Executive wishes to continue to be employed by
the Company and provide personal services to the Company in return
for certain compensation and benefits;
NOW, THEREFORE
, in consideration of the mutual
promises and covenants contained herein, it is hereby agreed by and
between the parties hereto as follows:
1.
EMPLOYMENT BY THE
COMPANY.
1.1
Position. Subject to terms set forth herein, the
Company agrees to continue to employ Executive in the position of
Senior Vice President, Technical Operations and Executive hereby
continues to accept such employment which commenced effective as of
July 30, 2007 (the “ Employment Date
”). During the term of his employment with the Company,
Executive will devote his best efforts and substantially all of his
business time and attention to the business of the Company, except
for vacation periods as set forth herein and reasonable periods of
illness or other incapacities permitted by the Company’s
general employment policies.
1.2
Duties and Location.
Executive shall serve in an
executive capacity and shall perform such duties as are customarily
associated with his then current title, consistent with the Bylaws
of the Company and as required by the Company’s Board of
Directors (the “ Board ”).
Executive will report to the Chief Executive Officer.
Executive’s primary office location shall be the
Company’s corporate headquarters, currently located in Palo
Alto, California. The Company reserves the right to
reasonably require Executive to perform his duties at places other
than its corporate headquarters from time to time, and to require
reasonable business travel.
1.3
Policies and
Procedures. The
employment relationship between the parties shall also be governed
by the general employment policies and practices of the
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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.
2.
COMPENSATION.
2.1
Salary. As of the Effective Date, Executive shall
receive for services to be rendered hereunder an annualized base
salary of $300,000, payable on a semi-monthly basis, subject to
payroll withholding and deductions and payable in accordance with
the Company’s regular payroll schedule. Such salary
shall be reviewed annually and may be increased as approved by the
Board.
2.2
Bonus. As of the Effective Date, Executive will
be eligible to earn an annual bonus of up to thirty-five percent
(35%) of base salary as determined by the Board of Directors upon
the recommendations of its Compensation Committee and Chief
Executive Officer and provided that Executive remains employed by
the Company as of the date the bonus is calculated. As of the
Effective Date, seventy-five (75%) of the bonus amount will be
based on the Company’s performance in meeting its planned
operating objectives and twenty-five percent (25%) of the bonus
amount will be based on the Executive’s performance against
expectations of his position, as determined by the Company in its
sole discretion.
2.3
Standard Company
Benefits.
Executive shall be entitled to all rights and benefits for which he
is eligible under the terms and conditions of the standard Company
benefits and compensation practices which may be in effect from
time to time and provided by the Company to its employees
generally.
2.4
Equity Awards.
The Board will grant equity
awards to Executive in its sole discretion.
3.
PROPRIETARY INFORMATION
OBLIGATIONS.
3.1
Agreement.
As a condition of employment,
Executive agrees to execute and abide by the Proprietary
Information and Inventions Agreement attached hereto as
Exhibit A.
3.2
Remedies. Executive’s duties under the
Employee Proprietary Information and Inventions Agreement shall
survive termination of his employment with the Company.
Executive acknowledges that a remedy at law for any breach or
threatened breach by him of the provisions of the Proprietary
Information and Inventions Agreement would be inadequate, and he
therefore agrees that the Company shall be entitled to injunctive
relief in case of any such breach or threatened breach.
3.3
Third Party Agreements and
Information.
Executive represents and warrants that Executive’s employment
by the Company will not conflict with any prior employment or
consulting agreement or other agreement with any third party, and
that Executive will perform his duties to the Company without
violating any such agreement.
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Executive represents and warrants that Executive
does not possess confidential information arising out of prior
employment, consulting, or other third party relationships, which
would be used in connection with Executive’s employment by
the Company, except as expressly authorized by that third
party. During Executive’s employment by the Company,
Executive will use in the performance of Executive’s duties
only information which is generally known and used by persons with
training and experience comparable to Executive’s own, common
knowledge in the industry, otherwise legally in the public domain,
or obtained or developed by the Company or by Executive in the
course of Executive’s work for the Company.
4.
OUTSIDE ACTIVITIES DURING
EMPLOYMENT.
4.1
Non-Company
Business. Except
with the prior written consent of the Company’s Board of
Directors, Executive will not during the term of this Agreement
undertake or engage in any other employment, occupation or business
enterprise, other than ones in which Executive is a passive
investor, provided that Executive agrees not to become
engaged in any other business activity which, in the reasonable
judgment of the Board, is likely to interfere with
Executive’s ability to discharge his duties and
responsibilities to the Company. Executive may engage in
civic and not-for-profit activities so long as such activities do
not materially interfere with the performance of his duties
hereunder.
4.2
No Adverse Interests.
Except as permitted by
Section 4.3, Executive agrees not to acquire, assume or
participate in, directly or indirectly, any position, investment or
interest known by him to be adverse or antagonistic to the
Company, its business or prospects, financial or
otherwise.
4.3
Noncompetition.
During the term of his
employment by the Company, except on behalf of the Company,
Executive will not directly or indirectly, whether as an officer,
director, stockholder, partner, proprietor, associate,
representative, consultant, or in any capacity whatsoever engage
in, become financially interested in, be employed by or have any
business connection with any other person, corporation, firm,
partnership or other entity whatsoever which were known by him to
compete directly with the Company, throughout the world, in any
line of business engaged in (or planned to be engaged in) by the
Company; provided, however, that anything above to the
contrary notwithstanding, he may own, as a passive investor,
securities of any competitor corporation, so long as his direct
holdings in any one such corporation shall not in the aggregate
constitute more than one percent (1%) of the voting stock of such
corporation.
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5.
TERMINATION OF
EMPLOYMENT.
5.1
At-Will Relationship.
Executive’s employment
relationship is at-will. Either Executive or the Company may
terminate the employment relationship at any time, with or without
cause or advance notice.
5.2
Termination Without
Cause.
(a)
The Company may terminate
Executive’s employment with the Company at any time without
Cause, upon notice to Executive.
(b)
In the event Executive’s
employment is terminated without Cause and such termination results
in a “separation from service” with the Company within
the meaning of Treasury Regulation Section 1.409A-1(h) (without
regard to any permissible alternative definition thereunder), the
Company shall provide Executive the following severance benefits
(the “ Severance Benefits ”):
(i) a lump sum cash severance payment equal to six
(6) months of Executive’s then current annual base
salary, less applicable withholdings and deductions; (ii) if
Executive timely elects continued Company-provided group health
insurance coverage pursuant to federal COBRA law, the Company will
pay Executive’s COBRA premiums sufficient to maintain his
group health insurance coverage in effect as of the date of the
termination for twelve (12) months following the termination,
provided that the Company’s obligation to continue to pay
Executive’s COBRA premiums hereunder will cease immediately
upon Executive’s eligibility for equivalent group health
insurance coverage through a new employer; (iii) Executive
will have the ability to exercise any vested stock option shares
granted to Executive by the Company until one (1) year
following the date of the termination or the expiration of the term
of any such options, whichever occurs earlier. As a condition
precedent to Executive’s receipt of the Severance Benefits,
Executive must properly execute, and not revoke or attempt to
revoke, the Release described in Section 6.
5.3
Termination for
Cause.
(a)
The Company may terminate
Executive’s employment with the Company at any time for
Cause, upon notice to Executive.
(b)
“Cause” for termination
shall mean: indictment or conviction of any felony or of any crime
involving dishonesty; participation in any fraud against the
Company; breach of Executive’s duties to the Company,
including persistent unsatisfactory performance of job duties;
intentional damage to any property of the Company; conduct by
Executive which in the good faith and reasonable determination of
the Board demonstrates gross unfitness to serve; incapacity to
perform the essential functions of Executive’s job for a
period of ninety (90) consecutive days; or death.
(c)
In the event Executive’s
employment is terminated at any time with Cause, he shall be
entitled to receive his base salary, and his accrued but unused
paid time off earned through the date of termination; Executive
will not be entitled to severance pay, pay in lieu of notice or any
other such compensation, except as may be
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provided in the Company’s severance
benefit plan, if any, in effect on the termination date, or except
as required by law.
5.4
Termination for Good
Reason.
(a)
Executive may voluntarily terminate
his employment for “Good Reason” by notifying the
Company in writing that Executive believes that an event described
in this Section 5.4(a) has occurred (the “
Constructive Termination Notice ”), within ten
(10) days after the initial occurrence of one of the following
events; provided, however , that Executive shall not have
“Good Reason” to terminate employment unless the
Company does not cure the event described in this
Section 5.4(a) within thirty (30) days following receipt
by the Company of the Constructive Termination Notice:
(i)
the assignment to Executive of any
duties or responsibilities which result in the material diminution
of Executive’s position; provided, however , that the
acquisition of the Company and subsequent conversion of the Company
to a division or unit of the acquiring corporation will not by
itself result in a diminution of Executive’s
position;
(ii)
a reduction by the Company in
Executive’s annual base salary by greater than fifteen
percent (15%), except to the extent the base salaries of other
executive officers of the Company are accordingly reduced;
or
(iii)
a relocation of Executive, or the
Company’s principal executive offices by more than forty (40)
miles, except for required travel by Executive on the
Company’s business.
(b)
In the event Executive terminates
his employment for Good Reason, and such termination results
in a “separation from service” with the Company within
the meaning of Treasury Regulation
Section 1.409A-1(h) (without regard to any permissible
alternative definition thereunder), the Company shall provide
Executive the Severance Benefits described above in
Section 5.2(b).
5.5
Voluntary or Mutual
Termination.
(a)
Executive may voluntarily terminate
his employment with the Company at any time, after which no further
compensation will be paid to Executive.
(b)
In the event Executive voluntarily
terminates his employment other than for “Good
Reason,” he will not be entitled to severance pay, pay in
lieu of notice or any other such compensation.
5.6
Involuntary Termination Following
a Change in Control.
(a)
Definition.
For the purposes of this
Agreement, a “Change in Control” shall mean a merger or
consolidation of the Company with, or any sale of all or
substantially all of the assets of the Company, to any other
person, corporation or entity, unless as a result of such merger,
consolidation or sale of assets the holders of the
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Company’s voting securities prior thereto
hold at least fifty percent (50%) of the total voting power
represented by the voting securities of the surviving or successor
corporation after such transaction.
(b)
Severance Benefits.
In the event of the
termination of Executive’s employment without Cause or
Executive’s resignation for Good Reason, and in each case
such termination results in a “separation from service”
with the Company within the meaning of Treasury Regulation
Section 1.409A-1(h) (without regard to any permissible
alternative definition thereunder) (an “ Involuntary
Termination ”) within twelve (12) months immediately
following the effective date of a Change in Control, in lieu of the
Severance Benefits provided in Sections 5.2 and 5.4 herein,
Executive will receive the following benefits upon such Involuntary
Termination (the “ Change in Control Benefits
”): (i) a lump sum cash severance payment equal to
twelve (12) months of Executive’s then current annual base
salary, less applicable withholdings and deductions; (ii) a
lump sum cash severance payment equal to one (1) times
Executive’s annual target bonus potential, less applicable
withholdings and deductions; (iii) if Executive timely elects
continued Company-provided group health insurance coverage pursuant
to federal COBRA law, the Company will pay Executive’s COBRA
premiums sufficient to maintain his group health insurance coverage
in effect as of the date of the Involuntary Termination for twelve
(12) months following the Involuntary Termination, provided that
the Company’s obligation to continue to pay Executive’s
COBRA premiums hereunder will cease immediately upon
Executive’s eligibility for equivalent group health insurance
coverage through a new employer; (iv) Executive will have the
ability to exercise any vested stock option shares granted to
Executive by the Company until one (1) year following the date
of the Involuntary Termination or the expiration of the term of any
such option, whichever occurs earlier; and (v) the vesting of
all of Executive’s outstanding equity awards shall be
accelerated so that they vest in full and the Company’s right
to repurchase any earlier exercised shares, if applicable, shall
lapse. As a condition precedent to Executive’s receipt
of the Change in Control Benefits, Executive must properly execute,
and not revoke or attempt to revoke, the Release described in
Section 6.
6.
RELEASE. As a condition of receipt of any benefits
under Section 5 of this Agreement, Executive shall provide the
Company with an executed and effective general release
substantially in the form attached hereto as EXHIBIT B
(the “ Release ”
