Offer Letter Agreement, dated December 15, 2009, between the Registrant and Jeffrey W. Dunn
Exhibit 10.7
SI-BONE, INC.
SUITE 1F
20045 STEVENS CREEK BLVD
CUPERTINO, CA 95014
December 15, 2009
Jeffrey W. Dunn
[Address intentionally omitted.]
Dear Jeff,
SI-BONE, Inc. (the Company) is pleased to offer you employment on the following terms. In consideration for receiving this offer of employment, you acknowledge and agree that, effective as of January 1, 2010, the consulting agreement between you and the Company is terminated and of no further force and effect.
1. Position. Your initial title will be President and CEO, and you will initially report to the Companys Board of Directors. While you render services to the Company, you will not engage in any other employment, consulting or other business activity (whether full-time or part-time) that would create a conflict of interest with the Company. By signing this letter agreement, you confirm to the Company that you have no contractual commitments or other legal obligations that would prohibit you from performing your duties for the Company.
2. Cash Compensation. The Company will pay you a starting salary at the rate of $360,000 per year, payable in accordance with the Companys standard payroll schedule. This salary will be subject to adjustment pursuant to the Companys employee compensation policies in effect from time to time.
3. Employee Benefits. As a regular employee of the Company, you will be eligible to participate in a number of Company-sponsored benefits. In addition, you will be entitled to paid vacation in accordance with the Companys vacation policy, as in effect from time to time.
4. Equity. On June 20, 2009 and October 7, 2009, the Companys Board of Directors granted you options to purchase 1,668,963 shares of the Companys Series 1 Common Stock and 953,693 shares of the Companys Series 1 Common Stock, respectively (the Options). The Options are subject to the terms and conditions applicable to options granted under the Companys 2008 Stock Plan (the Plan), as described in the Plan and the applicable Stock Option Agreements.
Jeffrey W. Dunn
January 1, 2010
Page 2
5. Severance Benefits.
A. General. If you are subject to an Involuntary Termination, then you will be entitled to the benefits described in this Section 5. However, this Section 5 will not apply unless you (i) have returned all Company property in your possession, (ii) have resigned as a member of the Boards of Directors of the Company and all of its subsidiaries, to the extent applicable, and (iii) have executed a general release of all claims that you may have against the Company or persons affiliated with the Company. The release must be in the form prescribed by the Company, without alterations. You must execute and return the release on or before the date specified by the Company in the prescribed form (the Release Deadline). The Release Deadline will in no event be later than 60 days after your Separation. If you fail to return the release on or before the Release Deadline, or if you revoke the release, then you will not be entitled to the benefits described in this Section 5.
B. Salary Continuation. If you are subject to an Involuntary Termination, then the Company will continue to pay your base salary for a period of 12 months after your Separation. Your base salary will be paid at the rate in effect at the time of your Separation and in accordance with the Companys standard payroll procedures. The salary continuation payments will commence within 30 days after the Release Deadline and, once they commence, will be retroactive to the date of your Separation.
C. COBRA. If you are subject to an Involuntary Termination and you elect to continue your health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA) following your Separation, then the Company will pay the same portion of your monthly premium under COBRA as it pays for active employees until the earliest of (i) the close of the 12-month period following your Separation, (ii) the expiration of your continuation coverage under COBRA or (iii) the date when you become eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment.
Cause means (a) your unauthorized use or disclosure of the Companys confidential information or trade secrets, which use or disclosure causes material harm to the Company, (b) your material breach of any agreement between you and the Company, (c) your material failure to comply with the Companys written policies or rules, (d) your conviction of, or your plea of guilty or no contest to, a felony under the laws of the United States or any State, (e) your gross negligence or willful misconduct, (f) your continuing failure to perform assigned duties after receiving written notification of the failure from the Companys Board of Directors or (g) your failure to cooperate in good faith with a governmental or internal investigation of the Company or its directors, officers or employees, if the Company has requested your cooperation.
Change in Control means (a) the consummation of a merger or consolidation of the Company with or into another entity or (b) the dissolution, liquidation or winding up of the Company. The foregoing notwithstanding, a merger or consolidation of the Company does not constitute a Change in Control if immediately after the merger or consolidation a majority of the voting power of the capital stock of the continuing or surviving entity, or any direct or indirect parent corporation of the continuing or surviving entity, will be owned by the persons
Jeffrey W. Dunn
January 1, 2010
Page 3
who were the Companys stockholders immediately prior to the merger or consolidation in substantially the same proportions as their ownership of the voting power of the Companys capital stock immediately prior to the merger or consolidation.
Good Reason means that you resign within 12 months after one of the following conditions has come into existence without your consent:
1. A reduction in your base salary by more than 10%;
2. A change in your position with the Company that materially reduces your level of authority or responsibility; or
3. A relocation of your principal workplace by more than 30 miles.
A condition will not be considered Good Reason unless you give the Company written notice of the condition within 90 days after the condition comes into existence and the Company fails to remedy the condition within 30 days after receiving your written notice.
Involuntary Termination means a Separation resulting from either (a) your involuntary discharge by the Company for reasons other than Cause or Permanent Disability or (b) within 12 months after a Change in Control of the Company, your voluntary resignation for Good Reason.
Permanent Disability means that you are unable to perform the essential functions of your position, with or without reasonable accommodation, for a period of at least 120 consecutive days because of a physical or mental impairment.
Separation means a separation from service, as defined in the regulations under Section 409A of the Internal Revenue Code of 1986, as amended (the Code)
6. Proprietary Information and Inventions Agreement. Like all Company employees, you will be required, as a condition of your employment with the Company, to sign the Companys standard Proprietary Information and Inventions Agreement, a copy of which is attached hereto as Exhibit A.
7. Employment Relationship. Employment with the Company is for no specific period of time. Your employment with the Company will be at will, meaning that either you or the Company may terminate your employment at any time and for any reason, with or without cause. Any contrary representations that may have been made to you are superseded by this letter agreement. This is the full and complete agreement between you and the Company on this term. Although your job duties, title, compensation and benefits, as well as the Companys personnel policies and procedures, may change from time to time, the at will nature of your employment may only be changed in an express written agreement signed by you and a duly authorized officer of the Company (other than you).
Jeffrey W. Dunn
January 1, 2010
Page 4
8. Tax Matters.
(a) Withholding. All forms of compensation referred to in this letter agreement are subject to reduction to reflect applicable withholding and payroll taxes and other deductions required by law.
(b) Section 409A. For purposes of Section 409A of the Code, each salary continuation payment under Section 5(b) is hereby designated as a separate payment. If the Company determines that you are a specified employee under Section 409A(a)(2)(B)(i) of the Code at the time of your Separation, then (i) the salary continuation payments under Section 5(b), to the extent that they are subject to Section 409A of the Code, will commence during the seventh month after your Separation and (ii) the installments that otherwise would have been paid during the first six months after your Separation will be paid in a lump sum when the salary continuation payments commence.
(c) Tax Advice. You are encouraged to obtain your own tax advice regarding your compensation from the Company. You agree that the Company does not have a duty to design its compensation policies in a manner that minimizes your tax liabilities, and you will not make any claim against the Company or its Board of Directors related to tax liabilities arising from your compensation.
9. Interpretation, Amendment and Enforcement. This letter agreement and Exhibit A constitute the complete agreement between you and the Company, contain all of the terms of your employment with the Company and supersede any prior agreements, representations or understandings (whether written, oral or implied) between you and the Company, including the Consulting Agreement. This letter agreement may not be amended or modified, except by an express written agreement signed by both you and a duly authorized officer of the Company. The terms of this letter agreement and the resolution of any disputes as to the meaning, effect, performance or validity of this letter agreement or arising out of, related to, or in any way connected with, this letter agreement, your employment with the Company or any other relationship between you and the Company (the Disputes) will be governed by California law. excluding laws relating to conflicts or choice of law. You and the Company submit to the exclusive personal jurisdiction of the federal and state courts located in Santa Clara County in connection with any Dispute or any claim related to any Dispute.
* * * * *
Jeffrey W. Dunn
January 1, 2010
Page 5
We hope that you will accept our offer to join the Company. You may indicate your agreement with these terms and accept this offer by signing and dating both the enclosed duplicate original of this letter agreement and the enclosed Proprietary Information and Inventions Agreement and returning them to me. This offer, if not accepted, will expire at the close of business on December 25, 2009. As required by law, your employment with the Company is contingent upon your providing legal proof of your identity and authorization to work in the United States. Your employment is also contingent upon your starting work with the Company on January 1, 2010.
If you have any questions, please do not hesitate to contact me.
Very truly yours, | ||
SI-BONE, Inc. | ||
By: | /s/ Ted Davis | |
Title: | Ted Davis, BOD Member on behalf of the Board of Directors |
I have read and accept this employment offer: | ||
/s/ Jeffrey W. Dunn | ||
Signature of Jeffrey W. Dunn | ||
Dated: | 12.30.09 | |
Attachment | ||
Exhibit A: Proprietary Information and Inventions Agreement |