Employment Offer Letter, dated March 22, 2021, by and between the Registrant and Michael E. Faerm
March 22, 2021
Mr. Michael E. Faerm
Private & Confidential
Employment Offer Letter
On behalf of Artiva Biotherapeutics, Inc. (the Company), I am pleased to offer you employment under the terms set forth in this offer letter agreement (this Agreement). These employment terms will be effective as of your start date, which will be on April 5, 2021 (the Start Date).
1. Employment Position; Duties. You will be employed as the Companys Chief Financial Officer (CFO). As CFO, you will have those duties and responsibilities as are customary for this position and as may be directed by the Company. You will initially work remotely from your home office. Once you relocate to San Diego (no later than July 31, 2022), you will work from the corporate office in San Diego. Your position may require business travel, including to and from the San Diego office prior to your relocation. During your employment, you will devote your full-time best efforts to the business of the Company.
2. Base Salary; Employee Benefits and Business Expenses.
(a) Base Salary. Your initial base salary will be paid at the annual rate of $350,000.00, less standard payroll deductions and tax withholdings. Effective upon the closing of the Companys initial public offering (the IPO), your base salary will increase to $420,000.00. Your base salary will be paid on the Companys normal payroll schedule. As an exempt salaried employee, you will be required to work the Companys normal business hours, and such additional time as appropriate for your work assignments and position. You will not be eligible for extra payment under the overtime laws.
(b) Employee Benefits. Effective the first day of the month following employment, you will be eligible to participate in Artivas benefit program. The current benefit program includes medical, dental and vision coverage. You may also elect to participate in the Companys 401K plan. The Company does not contribute currently to the 401K plan. You will also be eligible for Paid Time Off (PTO) at a rate of 9 hours per pay period, or a total of 216 hours annually. Details of the PTO policy and other benefits are provided in your Employee Handbook.
(c) Business Expenses. Your legitimate and documented business expenses will be reimbursed by the Company as provided under its business expense reimbursement policies. While you are based out of your home office, such reimbursable business expenses will include reasonable costs of travel to and from San Diego on a schedule to be mutually agreed between yourself and the Chief Executive Officer.
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3. Annual Bonus. In addition to base salary, you will be eligible to earn discretionary incentive compensation at an annual target amount of thirty percent (30%) of your base salary in effect during the bonus year. Effective upon the IPO, your annual target bonus will increase to forty (40%). With respect to the annual incentive compensation program, the Companys executive team will evaluate and recommend specific annual individual and corporate performance targets, metrics and/or management-by-objectives (MBOs), to be finalized and approved by the Companys Board of Directors (the Board), as part of its annual compensation review process. Annual bonuses are paid on an annual basis, after the close of the fiscal year and after determination by the Board of (a) the level of achievement of the applicable individual and corporate performance targets, metrics and/or MBOs, and (b) the amount of the annual incentive compensation earned by you (if any). No amount of annual incentive compensation is guaranteed and, in addition to the other conditions for earning such compensation, you must remain an employee in good standing of the Company on the scheduled annual incentive compensation payment date in order to be eligible for any annual incentive compensation. This annual incentive compensation program will be the only incentive compensation, commissions, or other bonus program that will apply to you.
4. Equity Award: Upon joining the Company, and subject to approval by the Companys Board of Directors, you will be eligible to receive a stock option grant to purchase shares of the Companys common stock pursuant to the Companys 2020 Equity Incentive Plan (the Plan), equivalent to 1.0% of the Companys current fully diluted capitalization (the Options), and restricted stock units pursuant to the Plan, equivalent to .25% of the Companys fully diluted capitalization (the RSUs). The purchase price per share of the Options will be equal to the fair market value of the Companys common stock on the date of grant. Twenty-five percent (25%) of the Options will vest on the one-year anniversary of your Start Date and the remainder will vest in equal monthly installments thereafter over the next thirty-six (36) months, subject to your Continued Service (as defined in the Plan) with the Company. Twenty-five percent (25%) of the RSUs will vest on May 15, 2022, and the remainder will vest in equal quarterly installments over the remaining twelve (12) quarters, each subject to your Continued Service. (For clarity, the Companys RSU vest dates shall be February 15, May 15, August 15, and November 15). The terms of the Options and the RSUs will be governed by the Plan and an option award and restricted stock unit award agreement between you and the Company.
5. Relocation: As this role will require that you relocate to San Diego by July 31, 2022, the Company will provide the following to assist with your move:
Relocation bonus of $100,000.00. The relocation bonus will be paid in the second paycheck following your Start Date, and is taxable. The Relocation Bonus is subject to a repayment obligation in the event you voluntarily resign or are dismissed for Cause (as defined below) within twenty-four months of your Start Date, in which case you will be obligated to repay a pro-rated amount based on the length of your service with the Company.
6. Compliance with Confidentiality Agreement and Company Policies. As a condition of employment, you shall sign and comply with the Companys standard form of Employee Confidential Information and Invention Assignment Agreement (the Confidentiality Agreement). The Confidentiality Agreement shall be deemed fully incorporated into this Agreement by reference.
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7. Protection of Third-Party Information and Outside Activities.
(a) Third Party Information. In your work for the Company, you will be expected not to make any unauthorized use or disclosure of any confidential information or materials, including trade secrets, of any former employer or other third party; and not to violate any lawful agreement that you may have with any third party. By signing this Agreement, you represent that you are able to perform your job duties within these guidelines, and you are not in unauthorized possession or control of any confidential documents, information, or other property of any former employer. In addition, you represent that you have disclosed to the Company in writing any agreement you may have with any third party (e.g., a former employer) that may limit your ability to perform your duties to the Company or that could present a conflict of interest with the Company, including but not limited to disclosure (and a copy) of any contractual restrictions on solicitations or competitive activities.
(b) Outside Activities. During your employment by the Company, you may engage in civic and not-for-profit activities so long as such activities do not interfere with the performance of your duties hereunder or present a conflict of interest with the Company or its Affiliates. Subject to the restrictions set forth herein, and only with prior written disclosure to and written consent of the Board, you may engage in other types of business or public activities. The Board may withdraw such consent, if the Board determines, in its sole discretion, that such activities compromise or threaten to compromise the business interests of the Company or its Affiliates or conflict with your duties to the Company.
(c) Non-Competition. During your employment by the Company, you will not, without the express written consent of the Board, directly or indirectly serve as an officer, director, stockholder, employee, partner, proprietor, investor, joint venturer, associate, representative or consultant of any person or entity engaged in, or planning or preparing to engage in, business activity competitive with any line of business engaged in (or planned to be engaged in) by the Company or its Affiliates; provided, however, that you may purchase or otherwise acquire up to (but not more than) one percent (1%) of any class of securities of any enterprise (without participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange. In addition, you will be subject to certain restrictions (including restrictions continuing after your employment ends) under the terms of your Confidentiality Agreement.
8. At-Will Employment Relationship. Your employment relationship with the Company is employment at-will. Accordingly, you may terminate your employment with the Company at any time and for any reason whatsoever simply by notifying the Company; and the Company may terminate your employment at any time with or without Cause (as defined below) or prior notice. In addition, the Company retains the discretion to modify your other employment terms from time to time, including but not limited to your position, duties, reporting relationship, work location, compensation (including base salary and incentive compensation terms), and benefits.
(a) Severance for Qualifying Termination. If (i) your employment is terminated by the Company without Cause, other than due to your death or disability, and (ii) you satisfy the Release Requirement (defined below), then you will receive the Severance Payments (defined below) as your sole severance benefits, and you will not be eligible for severance benefits under any other policy, plan or agreement. Specifically, you will receive severance pay in the form of continuation of your final monthly base salary for six (6) months, plus six (6) months of benefits coverage under COBRA, less standard payroll
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deductions and tax withholdings (the Severance Payments). Post IPO, if your employment is terminated without Cause, or you resign for Good Reason (as defined in the Plan), your severance benefits will increase to nine (9) months of base salary, plus nine months benefits coverage under COBRA. Subject to Section 8(e), the Severance Payments will be paid in equal installments on the Companys regular payroll schedule in effect following your termination date, with such payments to begin on the first regular payroll date following the Release Effective Date (as defined below). If the Severance Payments do not commence with the first regular payroll date following your termination date because the Release Effective Date is later than such first payroll date, the first installment of the Severance Payments you receive will be a catch up payment in the total amount of the Severance Payments you would have received through such payroll date if such payments had begun with the first payroll date after your termination date. In addition, following the IPO if your employment is terminated without Cause, or you resign for Good Reason, within three (3) months before or twelve (12) months following a Change of Control (as defined in the Plan), your severance benefits would include twelve (12) months of base salary and COBRA coverage, payment of your full annual target bonus, and full equity acceleration.
(b) Release Requirement. To be eligible for the Severance Payments pursuant to Section 8(a) above you must satisfy the following release requirement (the Release Requirement): return to the Company a signed and dated general release of all known and unknown claims in a separation agreement acceptable to the Company (the Release and Waiver) within the applicable deadline set forth therein, but in no event later than forty-five (45) calendar days following your termination date and permit the Release and Waiver to become effective and irrevocable in accordance with its terms (such effective date of the Release and Waiver, the Release Effective Date). No Severance Payments will be paid hereunder prior to such Release Effective Date. You may be required by the separation agreement to provide reasonable transitional services as a condition of payment of Severance Payments.
(c) Definition of Cause. For purposes of this Agreement, Cause means the occurrence of any one or more of the following: (i) your conviction of, or plea of no contest, or commission of any felony or any crime involving fraud, embezzlement, dishonesty or moral turpitude; (ii) your attempted commission of, or participation in, a fraud, embezzlement or act of dishonesty (or an attempted fraud or act of dishonesty) that results in (or could result in) material harm to the Company, including but not limited to material harm to reputational interests; (iii) your violation of a fiduciary duty or duty of loyalty owed to the Company; (iv) your material breach of any contract or agreement between you and the Company, or any material Company policies that are disclosed or otherwise made available in writing to you prior to such breach; (v) persistent neglect of your job duties, which is not cured within fifteen (15) calendar days after you are provided written notice by the Company (provided, that such written notice and opportunity to cure are not required if your performance or neglect is not reasonably susceptible to being cured); or (vi) your gross misconduct or material failure to comply with a reasonable written instruction of the Company.
(d) Other. You will not be eligible for any Severance Payments under any circumstances other than those described herein, including circumstances in which your employment is terminated for Cause, you terminate your employment for any reason, or your employment terminates due to your death or disability. In addition, if you materially breach any continuing obligations to the Company (including, but not limited to, any material breach of this Agreement or any material breach of the Confidentiality Agreement) during the period of time that you are receiving any Severance Payments, you will forfeit your entitlement to any then unpaid Severance Payments, and the Companys obligation to continue to pay or provide such Severance Payments will immediately terminate as of the date of your material breach.
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(e) IRS Code Section 409A. All payments provided hereunder are intended to constitute separate payments for purposes of Treasury Regulation Section 1.409A-2(b)(2). If the Company determines that any benefits provided under this Agreement constitute deferred compensation under Section 409A of the Internal Revenue Code of 1986 as amended (Section 409A), such benefits will not commence in connection with your termination of employment unless such termination also qualifies as 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) (Separation from Service). If the Company determines that any benefits provided under this Agreement constitute deferred compensation under Section 409A and you are a specified employee of the Company or any affiliate (or any successor entity thereto) within the meaning of Section 409A(a)(2)(B)(i) of the Code on the date of your Separation from Service, then the payment of any such benefits shall be delayed until the earlier of (i) the date that is six (6) months and one (1) day after the date of your Separation from Service, or (ii) the date of your death (such date, the Delayed Payment Date), and the Company (or the successor entity thereto, as applicable) shall (A) pay to you a lump sum amount equal to the sum of the benefit payments that otherwise would have been paid to you on or before the Delayed Payment Date, without any adjustment on account of such delay, and (B) continue the benefit payments in accordance with any applicable payment schedules set forth for the balance of the period specified herein. In addition to the above, to the extent required to comply with Section 409A and the applicable regulations and guidance issued thereunder, if the applicable deadline for you to execute (and not revoke) the applicable Release and Waiver spans two (2) calendar years, your Severance Payments shall commence to be paid in installments on the first regularly scheduled payroll date that occurs in the second calendar year after the Release Effective Date of the Release and Waiver.
10. Section 280G; Limitations on Payment.
(a) If any payment or benefit you will or may receive from the Company or otherwise (a 280G Payment) would (i) any constitute a parachute payment within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the Excise Tax), then any such 280G Payment provided pursuant to this Agreement (a Payment) shall be equal to the Reduced Amount. The Reduced Amount shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) or by clause (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in your receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a Payment is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the reduction shall occur in the manner (the Reduction Method) that results in the greatest economic benefit for you. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the Pro Rata Reduction Method).
(b) Notwithstanding any provision of Section 9(a) to the contrary, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A that would not otherwise be subject to taxes pursuant to Section 409A, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified
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so as to avoid the imposition of taxes pursuant to Section 409A as follows: (i) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for you as determined on an after-tax basis; (ii) as a second priority, Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (iii) as a third priority, Payments that are deferred compensation within the meaning of Section 409A shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A.
(c) Unless you and the Company agree on an alternative accounting firm or law firm, the accounting firm engaged by the Company for general tax compliance purposes as of the day prior to the effective date of the Change of Control transaction shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control transaction, the Company shall appoint a nationally recognized accounting or law firm to make the determinations required by this Section 9. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the accounting or law firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to you and the Company within fifteen (15) calendar days after the date on which your right to a 280G Payment becomes reasonably likely to occur (if requested at that time by you or the Company) or such other time as requested by you or the Company.
(d) If you receive a Payment for which the Reduced Amount was determined pursuant to clause (x) of Section 9(a) and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, you agree to promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of Section 9(a) so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) of Section 9(a), you shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.
11. Dispute Resolution. To ensure the rapid and economical resolution of disputes that may arise in connection with your employment with the Company, you and the Company agree that any and all disputes, claims, or causes of action, in law or equity, including but not limited to statutory claims, arising from or relating to the enforcement, breach, performance, or interpretation of this Agreement, your employment with the Company, or the termination of your employment with the Company, will be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by law, by final, binding and confidential arbitration conducted by JAMS, Inc. (JAMS) or its successors by a single arbitrator. The arbitration will be held in San Diego, California, or such other location as then- agreed by the parties. Both you and the Company acknowledge that by agreeing to this arbitration procedure, you each waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding.
Any such arbitration proceeding will be governed by JAMS then applicable rules and procedures for employment disputes, which will be provided to you upon request. In any such proceeding, the arbitrator shall (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (b) issue a written arbitration decision including the arbitrators essential findings and conclusions and a statement of the award. You and the Company shall be entitled to all rights and remedies that would be entitled to pursue in a court of law. Nothing in this Agreement is intended to prevent either the Company or you from obtaining injunctive relief in court
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to prevent irreparable harm pending the conclusion of any such arbitration pursuant to applicable law. The Company shall pay all filing fees in excess of those which would be required if the dispute were decided in a court of law and shall pay the arbitrators fees and any other fees or costs unique to arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction.
12. General. This Agreement, along with the Confidentiality Agreement, forms the complete and exclusive statement of your agreement with the Company regarding the subject matter hereof. It supersedes and replaces any other agreements or promises made to you by anyone concerning your employment compensation, benefits and/or terms, whether oral or written. This Agreement may not be amended or modified except by a written modification signed by you and a duly authorized officer of the Company, with the exception of those changes expressly reserved to the Companys discretion in this Agreement. This Agreement is governed by the laws of the state of California, without reference to conflicts of law principles, and it is intended to bind and inure to the benefit of and be enforceable by the Company and its successors and assigns. If any provision of this Agreement shall be held invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and such provision will be reformed, construed and enforced so as to render it valid and enforceable consistent with the general intent of the parties insofar as possible under applicable law. With respect to the enforcement of this Agreement, no waiver of any right hereunder shall be effective unless it is in writing. Any ambiguity in this Agreement shall not be construed against either party as the drafter. This Agreement may be executed in counterparts which shall be deemed to be part of one original, and facsimile signatures shall be equivalent to original signatures.
To confirm your terms of employment, please sign and date this Agreement and the Confidentiality Agreement and return the fully signed documents to Jennifer Bush at ***@***. Please let me know if you have any questions.
|ARTIVA BIOTHERAPEUTICS, INC.|
/s/ Fred Aslan, MD
|Fred Aslan, MD.|
|President & CEO|
|Reviewed, Understood, and Accepted:|
/s/ Michael E. Faerm
|Michael E. Faerm||Date|
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