Exhibit 10.12

 



 

February 7, 2014

 

VIA HAND DELIVERY and e-MAIL

 

Charles O. Thompson

 

Dear Charles,

 

Jaguar Animal Health, Inc. (“JAH” or the “Company”) is pleased to offer you a position as Executive Vice President, Finance, and Chief Financial Officer, reporting to me, the Company’s Chief Executive Officer, or my designee.  We are looking forward to having you fully integrated into the JAH family.  We believe that you will continue to play an instrumental role in growing the Company.

 

If you accept this offer your Start Date will be March 1, 2014 and your position will be a full-time, exempt position.  Your bi-weekly salary, if annualized, would be $255,000 per twelve month period, paid in arrears in accordance with our regular payroll processing procedures.  We pay bi-weekly, and, thus, we have 26 pay periods during each calendar year.  Therefore, you will be paid $9807.69 per pay period, less applicable payroll taxes and other authorized deductions.  Your base salary will be subject to performance review and possible adjustment on an annual basis.

 

If and when bonuses are declared by the Company’s Board of Directors, you will be eligible for a target bonus of thirty percent (30%) of your base salary.  Your bonus in any given bonus period would be determined by a combination of the Company’s performance and your meeting certain goals and objectives that you and I, or the person to whom you are then-reporting, have mutually established for that bonus period.  For a bonus to be payable to you for any previous bonus period, you must still be employed by the Company on the date such bonus is actually paid for such period.

 

JAH provides a benefits package to all regular full-time employees working thirty (30) or more hours per week.  You are eligible to participate in the benefits package. The benefits package will include a medical plan, a dental plan, a vision plan, long term disability and life insurance.  The Company will pay the premiums for all the foregoing policies to cover you; and, additionally, the Company will pay the premiums for the medical plan, the dental plan, and the vision plan to cover your spouse (or domestic partner) and your dependents.  The Company intends to establish a non-matching 401(k) plan in which you would be eligible to participate; provided, however, that establishment of such a plan will be in the sole discretion of the Board of Directors.

 

Your position accrues paid time off (“PTO”) at the rate of 6.15 hours per pay period (which is equivalent to 20 work days per year).  In addition to PTO which may be used for either vacation or sick leave, in accordance with the policies set forth in the Company’s Employee Handbook (the “Handbook”), you will be entitled to the Company’s paid holidays and five (5) personal days as other JAH employees, in accordance with JAH’s policies as in effect from time to time.    You may accrue up to a maximum of two hundred (200) hours (equivalent to 20 PTO days and 5 personal days), at which time you shall cease to accrue any additional PTO or personal days until you use some of the accrual, bringing your balance below the maximum.

 











 

Subject to approval by the Company’s Board of Directors and the stockholders, you will be eligible to receive a grant of options to purchase up to that number of shares of the Company’s common stock as shall be equal to one and eight-tenths percent (1.8%) of the fully diluted capitalization of the Company, calculated following the final closing of the Company’s Series A preferred stock financing (the “Stock Options”). The Company’s Board of Directors will consider grants of stock options as soon as is practicable after the closing of the financing (and, in the case of a multi-tranche financing, after the closing of the first tranche). The Stock Options, when granted, will be granted pursuant to the JAH’s 2013 Equity Incentive Plan. The Stock Options are intended to be incentive stock options within the meaning of Section 422(a) of the Internal Revenue Code of 1986, as amended.

 

The Stock Options shall have an exercise price equal to the fair market value of the Company’s common stock on the date upon which the Stock Options are granted (the “Grant Date”). You will vest in these stock options as follows:  in one-twelfth (1/12) of the Stock Options upon the last day of the month that is three months after the Grant Date, and then, at the rate of 1/36th of the Stock Options each month over a period of thirty-three (33) months, on the last day of each month. Assuming you remain in the employ of the Company, you will be fully vested in all these stock options after three years from the Grant Date

 

The Company will reimburse you for reasonable expenses associated with travel you undertake for Company business, so long as (i) you use the Company’s travel agent or an alternative source for your travel arrangements that is at least as, or more, economical for the Company and (ii) so long as you submit your expenses with original receipts, in accordance with the Company’s reimbursement policies and procedures.  The Company’s policy regarding travel expenses, as noted above, is to reimburse employees at coach or economy fares for domestic travel and at business class for international travel.

 

As a condition of your employment, you will be required to execute and be bound by the Company’s Employee Proprietary Information and Inventions Agreement, a copy of which is attached as Exhibit A and incorporated herein by this reference.  The covenants in that agreement will survive any termination of your employment with the Company.  You agree that, when the Handbook has been approved for use, and a copy has been delivered to you, you will acknowledge receipt, as will all other employees of the Company. We expect that you will comply with the Company’s policies and procedures set forth in the Handbook.

 

Finally, in accordance with the laws of California, you understand that the Company is an “at-will” employer.  The term “at-will” is explained in the Handbook.

 

It is my understanding that, as of your Start Date, you will not be serving any other company in any capacity.  You agree that, while you are employed with JAH, you will not accept employment with, consult with, or work with, in any capacity whatsoever (including as a director or advisor), any company or organization that directly competes with the Company without my prior approval, or the approval of my designee, nor engage in any efforts that would detract from your performance at JAH. If you have any question or doubt as to whether or not a company with which you would like to work is considered a competitor or if an activity would be considered a meaningful distraction, you will consult with me prior to commencing any such working relationship.

 

This letter is to be interpreted and enforced in accordance with the internal laws of the State of California.

 

This letter reflects our entire understanding on this subject matter.  This letter, together with the Employee Proprietary Information and Inventions Agreement, any other exhibits, schedules and addenda, and the Handbook, set forth the terms of your employment and supersedes any prior representations or agreements, whether written or oral.  This letter may be executed in counterparts.  Facsimile signatures, if identifiable, legible and complete, will be considered original

 











 

signatures for purposes of enforcement.  Any modification, alteration, or change to this letter shall be made only by a written agreement duly executed by both you and me.

 

Please sign and return this letter to me by February 15, 2014.

 

	
Warm   Regards,
    	
 
    
	
 
    	
 
    
	
/s/   Lisa A. Conte
    	
 
    
	
 
    	
 
    
	
Lisa   A. Conte.
    	
 
    
	
Chief   Executive Officer
    	
 
    
	
 
    	
 
    
	
Agreed to and Accepted by:
    	
 
    
	
 
    	
 
    
	
/s/   Charles O. Thompson
    	
 
    
	
Charles   O. Thompson
    	
 
    
	
 
    	
 
    
	
February 28,   2014
    	
 
    


 











 

EXHIBIT A

TO THE OFFER LETTER

 

EMPLOYMENT, CONFIDENTIAL INFORMATION,

INVENTION ASSIGNMENT AND ARBITRATION AGREEMENT

 

As a condition of my employment with Jaguar Animal Health, Inc., its subsidiaries, affiliates, successors or assigns (together the “Company”), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the Company, I agree as of the date of commencement of my employment to the following:

 

1.                                      At-Will Employment.  I UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN UNSPECIFIED DURATION AND CONSTITUTES “AT-WILL” EMPLOYMENT.  I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY AN OFFICER OF THE COMPANY.

 

2.                                      Confidential Information.

 

(a)                                 Company Information.  I agree at all times during the term of my employment and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board of Directors of the Company, any Confidential Information of the Company.  I understand that “Confidential Information” means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customer lists and customers (including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my employment), markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed to me by the Company either directly or indirectly in writing, orally or by drawings or observation of parts or equipment.  I further understand that Confidential Information does not include any of the foregoing items which has become publicly known and made generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the item or items involved.

 

(b)                                 Former Employer Information.  I agree that I will not, during my employment with the Company, improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person or entity.

 

(c)                                  Third Party Information.  I recognize that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes.  I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s agreement with such third party.

 











 

3.                                      Inventions.

 

(a)                                 Inventions Retained and Licensed.  I have attached hereto, as Exhibit A, a list describing all inventions, original works of authorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company (collectively referred to as “Prior Inventions”), which belong to me, which relate to the Company’s proposed business, products or research and development, and which are not assigned to the Company hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions.  If in the course of my employment with the Company, I incorporate into a Company product, process or machine a Prior Invention owned by me or in which I have an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such Prior Invention as part of or in connection with such product, process or machine.

 

(b)                                 Assignment of Inventions.  I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions, technologies, formulations, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the employ of the Company (collectively referred to as “Inventions”), except as provided in Section 3(f) below.  I further acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of and during the period of my employment with the Company and which are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act.  I understand and agree that the decision whether or not to commercialize or market any invention developed by me solely or jointly with others is within the Company’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the Company’s efforts to commercialize or market any such invention.

 

(c)                                  Inventions Assigned to the United States.  I agree to assign to the United States government all my right, title, and interest in and to any and all Inventions whenever such full title is required by a contract between the Company and the United States or any of its agencies.

 

(d)                                 Maintenance of Records.  I agree that any written records of all Inventions made by me (solely or jointly with others) during the term of my employment with the Company, whether in the form of notes, sketches, drawings, and any other format that may be specified by the Company, will be available to and remain the sole property of the Company at all times.

 

(e)                                  Patent and Copyright Registrations.  I agree to assist the Company, or its designee, at the Company’s expense, in every proper way to secure the Company’s rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary in order to apply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto.  I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the termination of this Agreement.  If the Company is unable because of my mental or physical incapacity or for any other reason to secure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Inventions or original works of

 











 

authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by me.

 

(f)                                   Exception to Assignments.  I understand that the provisions of this Agreement requiring assignment of Inventions to the Company do not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto as Exhibit B).  I will advise the Company promptly in writing of any inventions that I believe meet the criteria in California Labor Code Section 2870 and not otherwise disclosed on Exhibit A.

 

4.                                      Conflicting Employment.  I agree that, during the term of my employment with the Company, I will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.

 

5.                                      Returning Company Documents.  I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items developed by me pursuant to my employment with the Company or otherwise belonging to the Company, its successors or assigns.  In the event of the termination of my employment, I agree to sign and deliver the “Termination Certification” attached hereto as Exhibit C.

 

6.                                      Notification of New Employer.  In the event that I leave the employ of the Company, I hereby grant consent to notification by the Company to my new employer about my rights and obligations under this Agreement.

 

7.                                      Solicitation of Employees.  I agree that for a period of twelve (12) months immediately following the termination of my relationship with the Company for any reason, whether with or without cause, I shall not either directly or indirectly solicit, induce, recruit or encourage any of the Company’s employees to leave their employment with the Company, or attempt to solicit, induce, recruit, or encourage any such employees to leave their employment with the Company, either for myself or for any other person or entity.

 

8.                                      Representations.  I agree to execute any proper oath or verify any proper and commercially reasonable document required to carry out the terms of this Agreement.  I represent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by me in confidence or in trust prior to my employment by the Company.  I have not entered into, and I agree I will not enter into, any oral or written agreement in conflict herewith.

 

9.                                      Arbitration and Equitable Relief.

 

(a)                                 Arbitration.  EXCEPT AS PROVIDED IN SECTION 9(b) BELOW, I AGREE THAT ANY DISPUTE OR CONTROVERSY ARISING OUT OF, RELATING TO, OR CONCERNING ANY INTERPRETATION, CONSTRUCTION, PERFORMANCE OR BREACH OF THIS AGREEMENT, SHALL BE SETTLED BY ARBITRATION TO BE HELD IN SAN FRANCISCO COUNTY, CALIFORNIA, IN ACCORDANCE WITH THE EMPLOYMENT DISPUTE

 











 

RESOLUTION RULES THEN IN EFFECT OF THE AMERICAN ARBITRATION ASSOCIATION.  THE ARBITRATOR MAY GRANT INJUNCTIONS OR OTHER RELIEF IN SUCH DISPUTE OR CONTROVERSY.  THE DECISION OF THE ARBITRATOR SHALL BE FINAL, CONCLUSIVE AND BINDING ON THE PARTIES TO THE ARBITRATION.  JUDGMENT MAY BE ENTERED ON THE ARBITRATOR’S DECISION IN ANY COURT HAVING JURISDICTION.

 

THIS ARBITRATION CLAUSE RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP (EXCEPT AS PROVIDED IN SECTION 10(b) BELOW), INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING CLAIMS:

 

i.                                          ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION;

 

ii.                                       ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL, STATE OR MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR STANDARDS ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR CODE SECTION 201, et seq.;

 

iii.                                    ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.

 

(b)                                 Equitable Remedies.  I AGREE THAT IT WOULD BE IMPOSSIBLE OR INADEQUATE TO MEASURE AND CALCULATE THE COMPANY’S DAMAGES FROM ANY BREACH OF THE COVENANTS SET FORTH IN SECTIONS 2, 3, AND 5 HEREIN.  ACCORDINGLY, I AGREE THAT IF I BREACH ANY OF SUCH SECTIONS, THE COMPANY WILL HAVE AVAILABLE, BEFORE COMMENCING ARBITRATION PROCEEDINGS, THE RIGHT TO OBTAIN AN INJUNCTION FROM A COURT OF COMPETENT JURISDICTION RESTRAINING SUCH BREACH OR THREATENED BREACH AND TO SPECIFIC PERFORMANCE OF ANY SUCH PROVISION OF THIS AGREEMENT.  I FURTHER AGREE THAT NO BOND OR OTHER SECURITY SHALL BE REQUIRED IN OBTAINING SUCH EQUITABLE RELIEF AND I HEREBY CONSENT TO THE ISSUANCE OF SUCH INJUNCTION AND TO THE ORDERING OF SPECIFIC PERFORMANCE.

 

(c)                                  Consideration.  I UNDERSTAND THAT EACH PARTY’S PROMISE TO RESOLVE CLAIMS BY ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT, RATHER THAN THROUGH THE COURTS, IS CONSIDERATION FOR OTHER PARTY’S LIKE PROMISE.  I FURTHER UNDERSTAND THAT I AM OFFERED EMPLOYMENT IN CONSIDERATION OF MY PROMISE TO ARBITRATE CLAIMS.

 











 

10.                               General Provisions.

 

(a)                                 Governing Law; Consent to Personal Jurisdiction.  This Agreement will be governed by the laws of the State of California.  I hereby expressly consent to the personal jurisdiction of the state and federal courts located in California for any lawsuit filed there against me by the Company arising from or relating to this Agreement.

 

(b)                                 Entire Agreement.  This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject matter herein and merges all prior discussions between us.  No modification of or amendment to this Agreement, nor any waiver of any rights under this agreement, will be effective unless in writing 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.

 











 

(c)                                  Severability.  If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full force and effect.

 

(d)                                 Successors and Assigns.  This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the Company, its successors, and its assigns.

 

(e)                                  Survival.  The provisions of this Agreement will survive termination of my employment for a period of three (3) years.

 

 

	
 
    	
 
    
	
 
    	
Employee’s   Signature
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Type/Print   Employee’s Name
    


 











 

EXHIBIT A TO THE

EMPLOYMENT, CONFIDENTIAL INFORMATION,

INVENTION ASSIGNMENT AND ARBITRATION AGREEMENT

 

LIST OF PRIOR INVENTIONS

AND ORIGINAL WORKS OF AUTHORSHIP

 

	
Title
    	
 
    	
Date
    	
 
    	
Identifying Number or Brief Description
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    


 

o No inventions or improvements

 

o Additional Sheets Attached

 

	
Signature   of Employee:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Print   Name of Employee:
    	
 
    	
 
    
				


 











 

EXHIBIT B

To the

 

EMPLOYMENT, CONFIDENTIAL INFORMATION,

INVENTION ASSIGNMENT AND ARBITRATION AGREEMENT

 

CALIFORNIA LABOR CODE SECTION 2870

INVENTION ON OWN TIME o  EXEMPTION  FROM  AGREEMENT

 

“(a)                           Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s 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 the employer’s business, or actual or demonstrably anticipated research or development of the employer; or

 

(2)                                 Result from any work performed by the employee for the employer.

 

(b)                                 To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”

 

 

	
 
    	
 
    
	
 
    	
Employee’s   Signature
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Type/Print   Employee’s Name
    


 











 

EXHIBIT C

To the EMPLOYMENT, CONFIDENTIAL INFORMATION,

INVENTION ASSIGNMENT AND ARBITRATION AGREEMENT

 

TERMINATION CERTIFICATION

 

This is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items belonging to JAH Pharmaceuticals, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).

 

I further certify that I have complied with all the terms of the Company’s Employment, Confidential Information, Invention Assignment and Arbitration Agreement signed by me, including the reporting of any inventions and original works of authorship (as defined therein), conceived or made by me (solely or jointly with others) covered by that agreement.

 

I further agree that, in compliance with the Employment, Confidential Information, Invention Assignment, and Arbitration Agreement, I will preserve as confidential all trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs, formulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans, financial information or other subject matter pertaining to any business of the Company or any of its employees, clients, consultants or licensees.

 

I further agree that for twelve (12) months from this date, I will not hire any employees of the Company and I will not solicit, induce, recruit or encourage any of the Company’s employees to leave their employment with the Company.

 

 

	
Date:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Employee’s Signature
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Type/Print   Employee’s Name