May 22, 2018 Dean Schorno [Address omitted] Re: Offer and Employment Terms Dear Dean:
Exhibit 10.2
May 22, 2018
▇▇▇▇ ▇▇▇▇▇▇▇
[Address omitted]
Re: Offer and Employment Terms
Dear ▇▇▇▇:
▇▇▇▇▇ Pharmaceuticals, Inc. (the Company) is pleased to offer you the position of Executive Vice President and Chief Financial Officer, reporting to me, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, on the following terms. Please take the next few days to carefully review the terms and let us know if you have any questions.
If you accept this offer (the "Agreement"), your annual salary will be $400,000 (four hundred thousand dollars), less all required withholdings and any voluntary payroll deductions, which salary will be reviewed periodically. In addition, you will be eligible for a company bonus target of 50% of base salary paid on achievement of Company goals. You will be eligible for the Company’s standard benefits, including medical insurance, vacation, sick leave, and holidays. Additionally, under the Company's Amended and Restated Severance Plan of 1/24/18, in the instance of a termination in the case of a change-in-control, you will qualify for a severance of 2.5x (salary + eligible bonus), vesting of all stock options, 1 year period to exercise options, and 1.5 years of COBRA, all under certain conditions, and in the absence of a change-in-control, you will qualify for a severance of 1 year (paid monthly), vesting of stock in the amount of that which would vest over the next year, a 2 year period to exercise options, and 1 year of COBRA, all under certain conditions. The Company may modify compensation and benefits from time to time, as it deems necessary.
Additionally, the Compensation Committee will grant you the following equity grant after commencement of your employment: an option to purchase (1) 167,500 (one hundred and sixty-seven thousand five hundred) shares of the Company's common stock, which has a four year vesting period initiated on your start-date, 1/4th (one-fourth) of the shares vest one year after your hire date, and 1/48th (one forty-eighth) of the shares vest monthly thereafter over the next three years (“time-based option grant”), and (2) 83,750 (eighty-three thousand and seven hundred and fifty) shares of the Company’s common stock which will vest on achieving [*], and an additional 83,750 (eighty-three thousand and seven hundred and fifty) shares of the Company’s common stock which will vest on achieving [*] (“performance-based option grants”). The strike price for the time-based and performance-based option grants shall be the same as the close price on NASDAQ, the day prior to the date that the Compensation Committee makes the grant.
Within 30 days of your date of hire, you will receive a sign-on bonus in the amount of $50,000 (fifty thousand dollars), less all required withholdings. Should you voluntarily terminate employment less than 12 months from your date of hire, you agree to repay, in full, the sign-on bonus amount of $50,000.
This offer is contingent upon ▇▇▇▇▇ receiving successful results from a background check conducted on you by our third-party vendor.
As a Rigel employee, you will be expected to sign and comply with the Company Proprietary Information and Inventions Agreement, attached hereto as Exhibit 1, which prohibits unauthorized use or disclosure of Company proprietary information. You will be responsible for all duties customarily associated with this position. You will work at our facility located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. Of course, the Company may change your position, duties and work location from time to time, as it deems necessary.
You may terminate your employment with the Company at any time and for any reason whatsoever simply by notifying
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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the Company. Likewise, the Company may terminate your employment at any time and for any reason whatsoever, with or without cause or advance notice. This at-will employment relationship cannot be changed except in a writing signed by a Company officer.
You agree that, for one (1) year following the termination of your employment with the Company, you will not personally initiate or participate in the solicitation of any employee of the Company or any of its affiliates to terminate his or her relationship with the Company or any of its affiliates in order to become an employee for any other person or business entity.
To ensure rapid and economical resolution of any disputes which may arise under this Agreement, you and the Company agree that any and all disputes or controversies, whether of law or fact of any nature whatsoever (including, but not limited to, all state and federal statutory and discrimination claims), with the sole exception of those disputes which may arise from your Proprietary Information and Inventions Agreement, arising from or regarding your employment or the termination thereof, or the interpretation, performance, enforcement or breach of this Agreement shall be resolved by confidential, final and binding arbitration under the then-existing Rules of Practice and Procedure of Judicial Arbitration and Mediation Services, Inc. (JAMS), which shall be conducted in San Francisco, California.
This Agreement, including Exhibit 1, constitutes the complete, final and exclusive embodiment of the entire agreement between you and the Company with respect to the terms and conditions of your employment. This Agreement is entered into without reliance upon any promise, warranty or representation, written or oral, other than those expressly contained herein, and it supersedes any other such promises, warranties, representations or agreements. It may not be amended or modified except by a written instrument signed by you and a duly authorized representative of the Company. If any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, this determination will not affect any other provision of this Agreement. This Agreement shall be construed and interpreted in accordance with the laws of the State of California and shall be deemed drafted by both parties. As required by law, this offer is subject to satisfactory proof of your right to work in the United States.
We are very excited about your joining our team and being part of ▇▇▇▇▇'▇ plan for success. As discussed, we expect your start date to be on May 29, 2018. Please formalize your acceptance by providing us with your signature on this letter and the Exhibit 1.
Sincerely,
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
CEO, ▇▇▇▇▇ Pharmaceuticals, Inc.
Accepted:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
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EXHIBIT 1
FORM OF EMPLOYEE CONFIDENTIALITY AND PROPRIETARY RIGHTS/INFORMATION AGREEMENT
In consideration of my employment or continued employment by Rigel Pharmaceuticals, Inc. (“Rigel”), and the compensation now and hereafter paid to me, I __________________________ hereby agree to the following terms and conditions:
1. NONDISCLOSURE
1.1 Recognition of Rigel’s Rights; Nondisclosure. At all times during my employment at Rigel and thereafter, I will hold in strictest confidence and will not disclose, use, lecture upon or publish ▇▇▇▇▇’▇ Proprietary Information (defined below), except as such disclosure, use or publication may be required in connection with my work for Rigel, or unless an officer of Rigel expressly authorizes such in writing. I will obtain ▇▇▇▇▇’▇ written approval before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to my work at Rigel and/or incorporates any Proprietary Information. I hereby assign to Rigel any rights I may have or acquire in such Proprietary Information and recognize that all Proprietary Information shall be the sole property of Rigel and its assigns.
1.2 Proprietary Information. The term “Proprietary Information” shall mean any and all confidential and/or proprietary knowledge, data or information of Rigel and its affiliated entities. By way of illustration but not limitation, “Proprietary Information” includes (a) trade secrets, inventions, ideas, processes, formulas, data, programs, other works of authorship, know-how, improvements, discoveries, cell lines, chemical compounds, developments, designs and techniques (hereinafter collectively referred to as “Inventions”); and (b) information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation of other contract workers placed at Rigel or employees of Rigel. Notwithstanding the foregoing, it is understood that, at all such times, I am free to use information which is generally known in the trade or industry, which is not gained as result of a breach of this Agreement, and my own, skill, knowledge, know-how and experience to whatever extent and in whichever way I wish.
1.3 Third Party Information. I understand, in addition, that ▇▇▇▇▇ has received and in the future will receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty on ▇▇▇▇▇’▇ part to maintain the confidentiality of such information and to use it only for certain limited purposes. During the term of my employment at Rigel and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose to anyone (other than Rigel personnel who need to know such information in connection with their work for Rigel) or use, except in connection with my work for ▇▇▇▇▇, Third Party Information unless expressly authorized in writing by an authorized representative of Rigel.
1.4 No Improper Use of Information of Prior Work Placements, Employers and Others. During my employment at Rigel I will not improperly use or disclose any confidential information or trade secrets, if any, of any former work placement, employer or any other person to whom I have an obligation of confidentiality, and I will not bring onto the premises of Rigel any unpublished documents or any property belonging to any former work placement, employer or any other person to whom I have an obligation of confidentiality unless consented to in writing by that former wo r k placement, employer or person. I will use in the performance of my duties only information which is generally known and used by persons with training and experience comparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by Rigel.
2. ASSIGNMENT OF INVENTIONS.
2.1 Proprietary Rights. The term “Proprietary Rights” shall mean all trade secret, patent, copyright, and other intellectual property rights throughout the world.
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2.2 Prior Inventions. Inventions, if any, patented or unpatented, which I made prior to the commencement of my employment with Rigel are excluded from the scope of this Agreement. To preclude any possible uncertainty, I have set forth on Exhibit B (Previous Inventions) attached hereto a complete list of all Inventions that I have, alone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my work placement with ▇▇▇▇▇, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement (collectively referred to as “Prior Inventions”). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I understand that I am not to list such Prior Inventions in Exhibit B but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is provided on Exhibit B for such purpose. If no such disclosure is attached, I represent that there are no Prior Inventions. If, in the course of my employment at Rigel, I incorporate a Prior Invention into a Rigel product, process or machine, Rigel is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to make, have made, modify, use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be incorporated, Prior Inventions in any Rigel Inventions without ▇▇▇▇▇’▇ prior written consent.
2.3 Assignment of Inventions. Subject to Sections 2.4, and 2.6, I hereby assign and agree to assign in the future (when any such Inventions or Proprietary Rights are first conceived, reduced to practice or fixed in a tangible medium, as applicable) to Rigel all my right, title and interest in and to any and all Inventions (and all Proprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the period of my employment with ▇▇▇▇▇. Inventions assigned to Rigel, or to a third party as directed by ▇▇▇▇▇ pursuant to this Section 2, are hereinafter referred to as “Rigel Inventions.”
2.4 Nonassignable Inventions. This Agreement does not apply to an Invention that qualifies fully as a nonassignable Invention under Section 2870 of the California Labor Code (hereinafter “Section 2870”). I have reviewed the notification on Exhibit A (Limited Exclusion Notification) and agree that my signature acknowledges receipt of the notification.
2.5 Obligation to Keep Rigel Informed. During the period of my employment at Rigel and for twelve (12) months after termination of my employment at Rigel, I will promptly disclose to Rigel fully and in writing all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others that relate to ▇▇▇▇▇’▇ field of business or to the work I performed for ▇▇▇▇▇ during my employment at Rigel (“Related Subsequent Inventions”). In addition, I will promptly disclose to Rigel all patent applications filed by me or on my behalf within a year after termination of employment at Rigel that claim or disclose Related Subsequent Inventions. At the time of each such disclosure, I will advise ▇▇▇▇▇ in writing of any Inventions that I believe fully qualify for protection under Section 2870; and I will at that time provide to Rigel in writing all evidence necessary to substantiate that belief. ▇▇▇▇▇ will keep in confidence and will not use for any purpose or disclose to third parties without my consent any confidential information disclosed in writing to Rigel pursuant to this Agreement relating to Inventions that qualify fully for protection under the provisions of Section 2870. I will preserve the confidentiality of any Invention that does not fully qualify for protection under Section 2870.
2.6 Government or Third Party. I also agree to assign all my right, title and interest in and to any particular Invention to a third party, including without limitation the United States, as directed by ▇▇▇▇▇.
2.7 Works for Hire. I acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my employment at Rigel and which are protectable by copyright are “works made for hire,” pursuant to United States Copyright Act (17 U.S.C., Section 101).
2.8 Enforcement of Proprietary Rights. I will assist ▇▇▇▇▇ in every proper way to obtain, and from time to time enforce, United States and foreign Proprietary Rights relating to Rigel Inventions in any and all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including appearances as a witness) as ▇▇▇▇▇ may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, I will execute, verify and deliver assignments of such Proprietary Rights to Rigel or its designee. My obligation to assist ▇▇▇▇▇ with respect to Proprietary Rights relating to
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such Rigel Inventions in any and all countries shall continue beyond the termination of my employment at Rigel, but ▇▇▇▇▇ shall compensate me at a reasonable rate after my termination for the time actually spent by me at ▇▇▇▇▇’▇ request on such assistance.
In the event ▇▇▇▇▇ is unable for any reason, after reasonable effort, to secure my signature on any document needed in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint ▇▇▇▇▇ and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled with an interest, to act for and in my behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by me. I hereby waive and quitclaim to Rigel any and all claims, of any nature whatsoever, which I now or may hereafter have for infringement of any Proprietary Rights assigned hereunder to Rigel.
3. Records. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that may be required by ▇▇▇▇▇) of all Proprietary Information developed by me and all Inventions made by me during the period of my employment at Rigel, which records shall be available to and remain the sole property of Rigel at all times.
4. Additional Activities. I agree that during the period of my employment at Rigel I will not, without ▇▇▇▇▇’▇ express written consent, engage in any work placement or employment or business activity which is competitive with, or would otherwise conflict with, my employment with Rigel. I agree further that for the period of my employment by ▇▇▇▇▇ and for one (l) year after the date of termination of my employment at Rigel I will not induce any employee of Rigel to leave the employ of ▇▇▇▇▇.
5. No Conflicting Obligation. I represent that my performance of all the terms of this Agreement and as temporary contract worker or intern of ▇▇▇▇▇ does not and will not breach any agreement to keep in confidence information acquired by me in confidence or in trust prior to my employment at Rigel. I have not entered into, and I agree I will not enter into, any agreement either written or oral in conflict herewith.
6. Return of Rigel Documents. When I leave my employ ▇▇ ▇▇▇▇▇, I will deliver to Rigel any and all drawings, notes, memoranda, specifications, devices, formulas, samples, and documents, together with all copies thereof, and any other material containing or disclosing any Rigel Inventions, Third Party Information or Proprietary Information of Rigel. I further agree that any property situated on ▇▇▇▇▇’▇ premises and owned by Rigel, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Rigel personnel at any time with or without notice. Prior to leaving, I will cooperate with ▇▇▇▇▇ in completing and signing ▇▇▇▇▇’▇ termination statement.
7. Legal and Equitable Remedies. Because my services are personal and unique and because I may have access to and become acquainted with the Proprietary Information of ▇▇▇▇▇, ▇▇▇▇▇ shall have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and without prejudice to any other rights and remedies that ▇▇▇▇▇ may have for a breach of this Agreement.
8. Notices. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of mailing.
9. Notification of New Work Placement. In the event that I leave the employ of ▇▇▇▇▇, I hereby consent to the notification of my new work placement or employer of my rights and obligations under this Agreement.
10. General Provisions.
10.1 Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to the laws of the State of California, as such laws are applied to agreements entered into and to be performed entirely within California between California residents. I hereby expressly consent to the personal jurisdiction of the state and federal courts located in San Mateo County, California for any lawsuit filed there against me by ▇▇▇▇▇ arising from or related to this Agreement.
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10.2 Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
10.3 Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of Rigel, its successors, and its assigns.
10.4 Survival. The provisions of this Agreement shall survive the termination of my work placement at Rigel and the assignment of this Agreement by ▇▇▇▇▇ to any successor in interest or other assignee.
10.5 Employment. I agree and understand that nothing in this Agreement shall confer any right with respect to continuation of my employment at Rigel, nor shall it interfere in any way with my right or ▇▇▇▇▇’▇ right to terminate my employment at Rigel at any time, with or without cause.
10.6 Waiver. No waiver by ▇▇▇▇▇ of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by ▇▇▇▇▇ of any right under this Agreement shall be construed as a waiver of any other right. Rigel shall not be required to give notice to enforce strict adherence to all terms of this Agreement.
10.7 Entire Agreement. The obligations pursuant to Sections 1 and 2 of this Agreement shall apply to any time during which I was previously placed at Rigel, or am in the future placed at Rigel, by ▇▇▇▇▇ as a consultant if no other agreement governs nondisclosure and assignment of inventions during such period. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.
This Agreement shall be effective as of the first day of my employment at Rigel, namely: ______________________
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED OUT EXHIBIT B TO THIS AGREEMENT.
ACCEPTED AND AGREED:
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EXHIBIT A
LIMITED EXCLUSION NOTIFICATION
THIS IS TO NOTIFY you in accordance with Section 2872 of the California Labor Code that the foregoing Agreement between you and Rigel does not require you to assign or offer to assign to Rigel any invention that you developed entirely on your own time without using ▇▇▇▇▇’▇ 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 ▇▇▇▇▇’▇ business, or actual or demonstrably anticipated research or development of Rigel;
(2) Result from any work performed by you for ▇▇▇▇▇.
To the extent a provision in the foregoing Agreement purports to require you to assign an invention otherwise excluded from the preceding paragraph, the provision is against the public policy of this state and is unenforceable.
This limited exclusion does not apply to any patent or invention covered by a contract between Rigel and the United States or any of its agencies requiring full title to such patent or invention to be in the United States.
I ACKNOWLEDGE RECEIPT of a copy of this notification.
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EXHIBIT B
TO: Rigel Pharmaceuticals, Inc.
FROM: _______________________________________
DATE: ____________________________________
SUBJECT: Previous Inventions
1. Except as listed in Section 2 below, the following is a complete list of all inventions or improvements relevant to the subject matter of my employment at Rigel Pharmaceuticals, Inc. that have been made or conceived or first reduced to practice by me alone or jointly with others prior to my engagement by ▇▇▇▇▇ Pharmaceuticals, Inc.:
□ No inventions or improvements.
□ See below:
__________________________________________________________________________________
__________________________________________________________________________________
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□ Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the disclosure under Section 1 above with respect to inventions or improvements generally listed below, the proprietary rights and duty of confidentiality with respect to which I owe to the following party(ies):
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□ Additional sheets attached
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