false 0001576280 0001576280 2020-12-11 2020-12-11

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported): December 11, 2020

 

 

GUARDANT HEALTH, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-38683   45-4139254

(State or other jurisdiction

of incorporation or organization)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

505 Penobscot Dr.

Redwood City, California 94063

(Address of principal executive offices) (Zip Code)

855-698-8887

(Registrant’s telephone number, include area code)

N/A

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading

Symbol(s)

 

Name of each exchange

on which registered

Common Stock, par value $0.00001   GH   The Nasdaq Global Select Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


Item 5.02.

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On December 11, 2020, the Board of Directors (the “Board”) of Guardant Health, Inc. (the “Company”) appointed Michael Bell to serve as the Company’s Chief Financial Officer effective January 5, 2021.

Mr. Bell, age 51, has extensive senior finance leadership experience. He most recently served as the Chief Financial Officer of CareDx, Inc., a precision medicine company focused on transplantation, from April 2017 to December 2020. From January 2016 to March 2017, Mr. Bell served as the Chief Financial Officer of Metabiota, Inc., a company that develops and sells risk analytics products focused on infectious disease. From May 2012 to January 2016, he served as the Chief Financial Officer of Singulex, Inc., a clinical diagnostics company. Prior to that, Mr. Bell held leadership and executive positions within Novartis, including with Novartis Diagnostics, a global provider of blood screening solutions, where he served as Chief Financial Officer from 2011 to 2012, and Senior Director, Global Head of Finance from 2008 to 2011. Mr. Bell also previously worked for several years in public accounting with both Ernst & Young LLP and Deloitte, UK. He holds a Bachelor of Science degree in Mathematics with Computing from the University of Leicester in the United Kingdom, and is a Fellow of the Institute of Chartered Accountants in England & Wales.

In connection with his appointment, Mr. Bell and the Company entered into an offer letter that sets forth the material terms of his employment effective January 5, 2021 (the “Offer Letter”). Under the Offer Letter, Mr. Bell is entitled to receive (i) an annual base salary of $450,000 and (ii) a target bonus equal to 50% of his annual base salary. Also under the Offer Letter, the Company will recommend to the Compensation Committee of the Board that the Company make the following equity grants to Mr. Bell: (A) restricted stock units covering shares of the Company’s common stock with the number of restricted stock units valued at approximately $2,000,000 (the “RSUs”), (B) a stock option to purchase approximately $2,000,000 of the Company’s common stock, and (C) performance stock units covering shares of the Company’s common stock with a value of approximately $1,000,000 (the “PSUs”). Vesting of each equity award is as follows: (x) the RSUs are expected to vest ratably over the first four anniversaries of the grant date, subject to Mr. Bell’s continued service, (y) the stock option will vest and become exercisable with respect to 25% of the shares on the first anniversary of Mr. Bell’s start date, and with respect to 75% of the shares in substantially equal monthly installments thereafter (so that the stock option is fully vested and exercisable on the fourth anniversary of Mr. Bell’s start date), subject to Mr. Bell’s continued employment and (z) the PSUs will vest upon the achievement of certain objectives determined by the Compensation Committee of the Board, subject to Mr. Bell’s continued employment. Additionally, under the Offer Letter, Mr. Bell is entitled to a signing bonus of $500,000, which is subject to clawback (on a prorated basis) in the event Mr. Bell voluntarily terminates employment with the Company prior to completing 24 months of service. In conjunction with entering into the Offer Letter, Mr. Bell agreed to certain restrictive covenants, including confidentiality, invention assignment, and a customer and one-year employee non-solicitation.

The foregoing description of the Offer Letter is a summary only and does not describe all terms and conditions applicable to the Offer Letter. The description is qualified in its entirety by the terms of the Offer Letter, a copy of which is filed as Exhibit 10.1 to this Form 8-K, and is incorporated by reference herein.

In accordance with the Company’s customary practice, the Company is entering into its standard form of indemnification agreement with Mr. Bell, which will require the Company to indemnify him against certain liabilities that may arise as result of his status or service as an officer. The description of Mr. Bell’s indemnification agreement is qualified in its entirety by the full text of the form of indemnification agreement, which is attached to the Company’s Registration Statement on Form S-1/A filed with Securities and Exchange Commission on September 18, 2018 as Exhibit 10.8.

There are no arrangements or understandings between Mr. Bell and any other person pursuant to which he was selected as an officer, nor are there any transactions in which Mr. Bell has an interest that would be reportable under Item 404(a) of Regulation S-K.

In addition, on December 4, 2020, Derek Bertocci tendered his resignation as an officer of the Company, effective the same day. Although he resigned as an officer of the Company, Mr. Bertocci will remain an employee of the Company to provide transition and onboarding support for the Company’s new Chief Financial Officer under an employment letter effective December 7,


2020 (the “Employment Letter”). Under the Employment Letter, Mr. Bertocci will be paid $22 per hour for services he provides during the transition period. Additionally, Mr. Bertocci’s will continue to vest in his outstanding stock options and restricted stock unit awards for the duration of his employment under the Employment Letter, which is expected to end March 5, 2021.

The foregoing description of the Employment Letter is a summary only and does not describe all terms and conditions applicable to the Employment Letter. The description is qualified in its entirety by the terms of the Employment Letter, a copy of which is filed as Exhibit 10.2 to this Form 8-K, and is incorporated by reference herein

 

Item 7.01.

Regulation FD Disclosure.

On December 11, 2020, the Company issued a press release announcing the appointment of Michael Bell to serve as the Company’s Chief Financial Officer. A copy of the press release is attached as Exhibit 99.1 to this report and the information set forth therein is incorporated herein by reference and constitutes a part of this report.

The information included under Item 7.01 in this Current Report on Form 8-K, including Exhibit 99.1, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section, nor shall it be deemed to be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such filing.

 

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit
No.

  

Description

10.1    Offer Letter, dated December 4, 2020, by and between Guardant Health, Inc. and Michael Bell
10.2    Employment Letter, dated December 7, 2020, by and between Guardant Health, Inc. and Derek Bertocci
99.1    Press release of Guardant Health, Inc., dated December 11, 2020, announcing the appointment of Michael Bell
104    Cover Page Interactive Data File (embedded within the Inline XBRL document)


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    GUARDANT HEALTH, INC.

Date: December 11, 2020

     
    By:  

/s/ John G. Saia

      John G. Saia
      Senior Vice President, General Counsel and Secretary

Exhibit 10.1

 

LOGO

GUARDANT HEALTH 505 Penobscot Drive, Redwood City, CA 94063 USA / 855.698.8887 client services / www.guardanthealth.com

REVISED OFFER LETTER

December 4, 2020

Michael Bell

61 Van Tassel Lane

Orinda, CA 94563

Dear Mike,

On behalf of Guardant Health, Inc. (the “Company”), I am pleased to offer you the position of Chief Financial Officer working as part of our Finance Department in 505 Penobscot Dr, Redwood City, CA 94063, USA. You will be working under the guidance of, and reporting to Helmy Eltoukhy, Chief Executive Officer.

When you join Guardant Health, you will be an exempt salaried employee. Your initial base salary will be USD 450,000, less applicable deductions and withholdings, which will be paid biweekly in accordance to the Company’s normal payroll procedures. As an exempt employee, you will not be entitled to payment of overtime. Your initial merit increase will be prorated from your hire date. For those starting on or after October 1st, you will not be eligible for a merit increase until the following year.

Bonus: You are eligible to participate in the Guardant Health Incentive Bonus Plan, and your target bonus percentage, as a percentage of base salary, is 50%. Actual target bonus amounts subject to the Guardant Health Incentive Bonus Plan are pro-rated based on date of hire. Employees with a date of hire on or after October 1st of this year are not eligible to participate in the Guardant Health Incentive Bonus Plan in the year in which they are hired.

Sign On: You will receive a signing bonus of USD 500,000 that will be earned over twenty-four (24) months, subject to applicable taxes, that will be payable on your first or second payroll date. Please note that if you voluntarily terminate your employment with the Company prior to completing the required twenty-four (24) months of service, you will be required to repay the sign-on bonus on a prorated basis. It will be based upon the number of months of employment with the Company divided by twenty-four (24).

Equity:

Restricted Stock Unit Award: Subject to the approval of the Guardant Health Compensation Committee, the Company will grant you a restricted stock unit award (the “RSU Award”) covering shares of the


Company’s common stock with a grant-date fair value of approximately USD 2,000,000 subject to your continued employment through the date of grant. The number of RSUs to be awarded will be determining by calculating the average closing price of the Company’s common stock for the calendar quarter during which you commence employment, in this case the average closing price for all trading days for the period of January 1, 2021 to March 31, 2021, and dividing the target RSU Award value by the average closing price of the Company’s common stock, then rounding up to the next whole share. The RSU Award is expected to vest 25% per year over a period of four years following your Start Date, as defined below, subject to your continued service with the Company through the applicable vesting date, and will be subject to the terms of the Company’s 2018 Incentive Award Plan (the “2018 Plan”) and an applicable award agreement in a form prescribed by the Company to be entered into by you and the Company, which will evidence the grant of the RSU Award.

Stock Options: Subject to the approval of the Guardant Health Compensation Committee, the Company will grant you a stock option (the “Option”) to purchase USD 2,000,000 of the Company’s common stock with an exercise price equal to the fair market value of the date of the grant. The number of stock options granted is calculated as 200% of the rounded number of RSUs awarded as calculated per the formula described above. Stock option exercise price is equal to the closing price of Guardant Health common stock on the date of grant. The Option shares will vest and become exercisable at the rate of 25% of the total number of shares on the twelve (12) month anniversary of your Vesting Commencement Date (as defined in the Stock Option Agreement to be executed between you and the Company, which date will be your Start Date, as defined below) and 1/48th of the total number of shares each month thereafter on the monthly anniversary of the Vesting Commencement Date. Vesting will, of course, depend on your continued employment with the Company. The Option will be an incentive stock option to the maximum extent allowed by the tax code and will be subject to the terms of the Company’s 2018 Plan and the applicable award agreement between you and the Company.

Performance Stock Units: Subject to the approval of the Guardant Health Compensation Committee, the Company will grant you a performance-based stock unit award (the “PSU Award”) that when vested will be convert into the Company’s common stock with a grant-date fair value of approximately USD 1,000,000, subject to the Company meeting certain operational and financial performance milestones and your continued employment through the achievement of the milestones and subsequent holding period. Additional details will be provided upon approval by the Guardant Health Compensation Committee.

Paid Time Off: You will be eligible to accrue paid time off of 15 days for your first year and then 20 days from your first anniversary, accrued per pay period. Details of our paid time off policy will be provided in our Company’s handbook.

Group Benefits Plans: You will be eligible to participate in the standard benefits plans currently available to other similarly situated employees, including medical, dental, vision and life insurance, subject to any eligibility requirements imposed by such plans. Eligibility for these plans will start on your first day of employment. Details of the plans will be provided prior to your Start Date and you will be able to select benefits during your first 30 days of employment. As an executive officer of the Company, you will also be extended our Indemnity Agreement and participate in our Executive Severance Plan, along with a supplemental long term disability insurance policy.

Confidentiality Agreement: Your acceptance of this offer and commencement of employment with the Company is contingent upon the execution, and delivery to an officer of the Company, of the Company’s Confidential Information and Invention Assignment Agreement, a copy of which is enclosed for your review and execution (the “Confidentiality Agreement”), prior to your Start Date.


Work Authorization: This offer is contingent upon your obtaining the requisite employment authorization. If you require assistance obtaining work authorization or transferring a visa, please contact Melissa Johnson (mejohnson@guardanthealth.com) to initiate the process with our attorneys. The Company will submit a petition on your behalf to obtain employment authorization, as well as file visa applications for your immediate dependent family members. The Company will pay the legal fees and costs related to these filings. Because the number of work visas available each year is limited by the U.S. Government, Guardant Health reserves the right to withdraw or suspend this offer of employment if it is not able to obtain work authorization for you in a reasonable period of time. Please note that if you currently have employment authorization such as practical, curricular or academic training (F-1 or J- 1) you must contact us before beginning employment.

Federal immigration law requires that we verify your right to work legally in the United States. You will be required to provide to the Company documentary evidence of your identity and eligibility for employment in the United States. Such documentation must be provided to us within three (3) business days of your Start Date, or our employment relationship with you may be terminated.

Your offer of employment is also contingent upon the successful verification of the information you provided to the Company during your application process, as well as a general reference and background check performed by the Company. By accepting this offer of employment, you warrant that all information provided by you is true and correct to the best of your knowledge. Please make sure to fill out the necessary forms as soon as you receive them.

Lastly, we pride ourselves having a supportive and open environment, however, as a Guardant Health employee, you will be expected to abide by the Company rules and standards. You will be required to read and sign the ‘Acknowledgment of Receipt’ from the Guardant Health Employee Handbook.

No Conflicting Obligations: By accepting this offer of employment, you understand and agree that your performance will not breach any other agreement to which you are a party and that you have not, and will not during the term of your employment with the Company, enter into any oral or written agreement in conflict with any of the provisions of this letter or the Company’s policies. You are not to bring with you to Guardant Health, or use or disclose to any person associated with the Company, any confidential or proprietary information belonging to any former employer or other person or entity with respect to which you owe an obligation of confidentiality under any agreement or otherwise. The Company does not need and will not use such information and we will assist you in any way possible to preserve and protect the confidentiality of proprietary information belonging to third parties. Also, we expect you to abide by any obligations to refrain from soliciting any person employed by or otherwise associated with any former employer (to the extent you have any such obligations) and suggest that you refrain from having any contact with such persons until such time as any non-solicitation obligation expires.

General Obligations: Guardant Health is proud of its culture that it’s developed and as an employee, you will be expected to adhere to the Company’s standards of professionalism, loyalty, integrity, honesty, reliability and respect for all. Please note that we are an equal opportunity employer. The Company does not permit, and will not tolerate, the unlawful discrimination or harassment of any employees, consultants, or related third parties on the basis of sex, race, color, religion, age, national origin or ancestry, family care status, marital or domestic partner status, veteran or military status, mental or physical disability or legally protected medical condition, genetic information, sexual orientation, gender identity, gender expression, pregnancy, childbirth or related medical condition, or any other status protected by applicable law.


At Will Employment: Guardant Health is excited about your joining and looks forward to a mutually beneficial relationship. Nevertheless, you should be aware that your employment with the Company is for no specified period and constitutes at-will employment. As a result, you are free to resign at any time, for any reason or for no reason without further obligation or liability. Similarly, the Company is free to conclude its employment relationship with you at any time, with or without cause, and with or without notice. The Company also reserves the right to modify or amend the terms of your employment at any time for any reason. This policy of at-will employment is the final and entire agreement as to how your employment may be terminated and may only be modified in an express written agreement signed by the Chief Executive Officer of the Company that expressly changes your at-will status.

This letter, together with the Confidentiality Agreement, set forth the terms of your employment with the Company and supersede any prior representations or agreements, whether written or oral. This letter will be governed by the laws of California, without regard to its conflict of laws and provisions.

We are all delighted to be able to extend you this offer and look forward to working with you. To indicate your acceptance of the offer, please sign and date this letter in the space provided below and return it to me by December 8, 2020. We request that you begin full-time work in this new position on

January 5, 2021 (your “Start Date”).

Mike, we are very excited about having you join Guardant Health and look forward to working with you.

 

Very truly yours,
Guardant Health, Inc.

/s/ Amelia Merrill

Amelia Merrill, VP of People

 

ACCEPTED AND AGREED:
Michael Bell

/s/ Michael Bell

Signature

12/6/2020

Date

Attachment A: Confidential Information and Invention Assignment Agreement


GUARDANT HEALTH

EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT

In consideration of my continued employment with Guardant Health (the “Company”), I, Michael Bell (“I” or “Employee”), agree to the following terms (all of which shall be deemed to be effective starting as of when employment with the Company first commenced):

1. MAINTAINING CONFIDENTIAL INFORMATION

(a)     Confidential Information. For purposes of this Agreement, the term “Confidential Information” means all information and materials that are confidential, secret, or proprietary (whether or not technical in nature) related to any aspect of the business of the Company. Confidential Information includes lists of names or classes of customers or personnel, lists of suppliers or manufacturing entities, inventions, innovations, improvements, research or development activities and plans, test results, product specifications, disclosures, processes, systems, methods, formulae, devices, patents, patent applications, trademarks, intellectual properties, instruments, materials, products, patterns, compilations, programs, techniques, sequences, designs, specifications, computer programs, source codes, mask works, costs of production, volume of sales, promotional methods, marketing plans, business plans, business opportunities, strategies, forecasts, prices or other financial data, financial statements, budgets, projections, representative agreements, licenses, sub-licenses, agreements, and any and all information concerning the teaching of sales, marketing, and operational techniques, marketing and purchasing formulae, development of product designs, pre-manufacturing product designs, and formats. Confidential Information includes not only information that I have had disclosed to me or had access to in the course of employment, but also information that I developed or learned during the course of my employment with the Company. The term “Confidential Information” is to be broadly defined, but shall not include any of the foregoing items which have 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)     Company Confidential Information. I agree at all times in perpetuity to hold all Confidential Information in confidence and to not disclose, use, copy, publish, summarize, or remove from the premises of the Company any Confidential Information, except (a) as necessary to carry out my assigned responsibilities as a Company employee, and (b) after termination of my employment, only as specifically authorized in writing by an officer of the Company. I agree to take all reasonable measures to protect the Confidential Information of the Company from falling into the public domain or the possession of persons other than those persons authorized to have any such Confidential Information. Nothing in this Agreement shall prohibit me from disclosing Confidential Information of the Company if legally required to do so by judicial or governmental order or in a judicial or governmental proceeding (“Required Disclosure”); provided that I shall (i) give the Company prompt notice of such Required Disclosure prior to disclosure; (ii) cooperate with the other party in the event that it elects to contest such disclosure or seek a protective order with respect thereto, and/or (iii) in any event only disclose the exact Confidential Information, or portion thereof, specifically requested by the Required Disclosure.

(c)     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 my former or concurrent employers and that I will not bring onto the premises of the Company any unpublished document or any property belonging to my former or concurrent employers unless consented to in


writing by said employers. [I acknowledge and agree that I have listed on Exhibit D all agreements (e.g., non-competition agreements, non-solicitation of customers agreements, non-solicitation of employees agreements, confidentiality agreements, inventions agreements, etc.) with a current or former employer, or any other person or entity, that may restrict my ability to accept employment with the Company or my ability as an employee to recruit or engage customers or service providers on behalf of the Company, or otherwise restrict my ability to perform my duties as an employee of the Company or any obligation I may have to the Company.]

(d)     Third Party Information. I recognize that the Company has received and in the future will receive from third parties 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 that I owe the Company and such third parties, during the term of my employment and thereafter, a duty to hold all such confidential or proprietary information in the strictest confidence, to the same extent as if it were Confidential Information.

(e)     Notice of Immunity. I am hereby notified that, pursuant to the federal Defend Trade Secrets Act of 2016, an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (i) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

2. RETAINING AND ASSIGNING INVENTIONS AND ORIGINAL WORKS

(a)     Inventions and Original Works Retained By Me. I have attached hereto, as Exhibit A, in a manner that does not violate any third party rights, 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, which belong to me, which relate to the Company’s business and products, and which are not assigned to the Company; or, if such list is not attached, I represent that there are no such inventions.

(b)     Inventions and Original Works to Be Assigned to the Company. I will promptly make full written disclosure to the Company, I will hold in trust for the sole right and benefit of the Company, and I hereby assign to the Company all my right, title, and interest in and to any and all inventions, original works of authorship, mask works, developments, improvements, designs, know-how, ideas, information or trade secrets which I solely or jointly conceive or develop or reduce to practice during the period of time I am in the employ of the Company. I hereby make all assignments necessary to accomplish the foregoing. I further agree that if I use or disclose my own confidential information or intellectual property in creating any inventions, original works of authorship, mask works, developments, improvements, designs, know-how, ideas, information or trade secrets during the period of time I am in the employ of the Company, the Company will have and I hereby grant the Company a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable right and license to exploit and exercise all such confidential information and intellectual property rights. I recognize, however, that Section 2870 of the California Labor Code (as set forth in Exhibit B hereto) exempts from this provision any invention as to which I can prove the following:

(i)     It was developed entirely on my own time; and


(ii)     No equipment, supplies, facility or trade secret of the Company was used in its development; and

(iii)     It does not relate to the business of the Company or to the Company’s actual or demonstrably anticipated research and development; and

(iv)     It does not result from any work performed by me for the Company.

I acknowledge that all original works of authorship which have been and will be made by me (solely or jointly with others) within the scope of my employment and which are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 USCA, Section 101).

(c)     Obtaining Letters Patent and Copyright Registrations. I agree that my obligation to assist the Company to obtain United States or foreign letters patent and copyright registrations covering inventions and original works of authorship assigned hereunder to the Company shall continue beyond the termination of my employment, but the Company shall compensate me at a reasonable rate for time actually spent by me at the Company’s request on such assistance. If the Company or its designee is unable because of my mental or physical incapacity or unavailability or for any other reason to secure my signature to apply for or to pursue any application for any United States or foreign patents, copyright, mask works or other registrations covering Inventions or original works of authorship assigned to the Company or its designee 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 application for, prosecution, issuance, maintenance or transfer of letters patent, copyright or other registrations thereon with the same legal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the Company or its designee any and all claims, of any nature whatsoever, which I now or hereafter have for infringement of any and all proprietary rights assigned to the Company or such designee.

(d)     Moral Rights. To the extent allowed by law, Section 2(b) includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively “Moral Rights”). To the extent I retain any such Moral Rights under applicable law, I hereby ratify and consent to any action that may be taken with respect to such Moral Rights by or authorized by the Company and agree not to assert any Moral Rights with respect thereto. I will confirm any such ratifications, consents and agreements from time to time as requested by the Company.

3. CONFLICTING EMPLOYMENT

I agree that, during the term of my employment with the Company, I will devote full time to the business of the Company and 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.


4. 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 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 belonging to the Company, its successors or assigns, whether or not confidential. In the event of the termination of my employment, I agree to sign and deliver the “Termination Certification” attached hereto as Exhibit C.

5. REPRESENTATIONS

I agree to execute any proper oath or verify any proper 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.

6. NON-SOLICITATION

(a)     Non-solicitation of Business. I agree that upon termination of my employment, I will not use Company trade secrets to either solicit business from, or enter into a business relationship or transaction with, any person or entity that has or has had a business relationship with the Company (including, but not limited to, customers) or disrupt, or attempt to disrupt, any relationship, contractual or otherwise, between Company and any such person or entity.

(b)     Non-solicitation of Employees and Contractors. To the extent permitted by law, I agree that during my employment by the Company and for one year thereafter I will not solicit any employee or contractor of the Company to terminate his or her employment or contractor status with the Company.

7. GENERAL PROVISIONS

(a)     CA Law. This Agreement will be governed by the laws of the State of CA.

(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)     At-Will Employment. I agree that my employment relationship with the Company is one of employment at will, meaning that either I or the Company may terminate my employment relationship without advance notice for any reason (or for no reason).

(f)     Remedies. I acknowledge and agree that violation of this Agreement by me may cause the Company irreparable harm, and therefore agree that the Company will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security and in addition to and without prejudice to any other rights or remedies that the Company may have for a breach of this Agreement.

(g)     Advice of Counsel. I acknowledge that, in executing this Agreement, I have had the opportunity to seek the advice of independent legal counsel, and I have read and understood all of the terms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation hereof.

(h)     Continuing Obligations. I agree that my obligations under this Agreement shall continue in effect after termination of my employment, regardless of the reason or reasons for termination, and whether such termination is voluntary or involuntary on my part, and that the Company is entitled to communicate my obligations under this Agreement to any future employer or potential employer of mine.

I HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE OBLIGATIONS WHICH IT IMPOSES UPON ME WITHOUT RESERVATION. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY, IN DUPLICATE, WITH THE UNDERSTANDING THAT THE COMPANY WILL RETAIN ONE COUNTERPART AND THE OTHER COUNTERPART WILL BE RETAINED BY ME.

 

Date:   12/6/2020

 

 

/s/ Michael Bell

Signature

Michael Bell

Name of Employee (typed or printed)


EXHIBIT A

LIST OF PRIOR INVENTIONS

AND ORIGINAL WORKS OF AUTHORSHIP

 

TITLE

   DATE     

IDENTIFYING NUMBER

OR BRIEF DESCRIPTION

None

     


EXHIBIT B

CALIFORNIA LABOR CODE SECTION 2870

EMPLOYMENT AGREEMENTS, ASSIGNMENT OF RIGHTS

“(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.”


EXHIBIT C

GUARDANT HEALTH

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, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items belonging to Guardant Health (the “Company”).

I further certify that I have complied with all the terms of the Company’s Confidential Information and Invention Assignment 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 Confidential Information and Invention Assignment Agreement, I will preserve as confidential all trade secrets, confidential knowledge, data and 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 and other subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.

 

Date:

 

 

 

Employee’s Signature

 

Type/Print Employee’s Name


EXHIBIT D

LIST OF PRIOR AGREEMENTS

None

Exhibit 10.2

 

LOGO

GUARDANT HEALTH 505 Penobscot Drive, Redwood City, CA 94063 USA / 855.698.8887 client services / www.guardanthealth.com

December 7, 2020

CONFIDENTIAL

Derek Bertocci

240 San Mateo Ave

Los Gatos, CA 95030

 

Re:

Employment Offer

Dear Derek:

This letter will provide details regarding your continued employment with Guardant Health, Inc. (the “Company”) effective as of December 7, 2020 (“Effective Date”). This letter constitutes the entire agreement between you and the Company with respect to the subject matter hereof and supersedes and replaces any and all prior agreements or representations relating to such subject matter including, but not limited to, your June 21, 2016 offer of employment with the Company which will become null and void upon your agreement to this letter.

The details of your employment are as follows:

Start Date for New Role: You will begin in this new role upon the Effective Date. Although it is anticipated that your position will last until March 5, 2021 (the “End Date”), you will remain an at-will employee during the entire term of your employment, as described below.

Compensation: The majority of your compensation for your services will be related to your continued vesting of your outstanding equity awards (see Stock Options/RSUs below). Nevertheless, in order to provide transition and onboarding support for Company’s new Chief Financial Officer the Company will pay you an hourly rate of $22.00 per hour for compliance reasons. less applicable deductions and withholdings, which will be paid biweekly in accordance to the Company’s normal payroll procedures. Your position is classified as non-exempt, meaning you are eligible for overtime pay. You will be paid overtime as required by state and federal law. As required by California law I’ve provided detailed information about the terms of your wages in the enclosed Notice to Employee (Labor Code section 2810.5). Please also sign and return one copy of the notice with this signed letter.

Sick Leave/Paid Time Off: As a part-time employee regularly scheduled to work fewer than 20 hours per week, you are not eligible to accrue vacation or to receive paid holidays. As a part-time employee you will accrue sick time at one hour for every 30 hours worked. You may only use accrued sick leave beginning on the 90th day of employment.

Stock Options/RSUs: The parties acknowledge that your seamless transition from Chief Financial Officer to employee does not constitute a break in service for purposes of your outstanding stock options and restricted stock unit awards (together, the “Equity Awards”). In addition, the vesting

 

1


schedule of your Equity Awards will continue in accordance with the same vesting schedule applicable while you were employed as Chief Financial Officer, and you will continue to vest in such awards so long as you continue to provide services as an employee to the Company.

Benefits Plans: In this part-time role, you are not eligible for any Company benefits (including any severance benefits that you may have had available to you when you were previously an executive of the Company), except as otherwise described in this letter and as otherwise required by state, federal, or local law. As a result of your transition from Company executive to a part-time employee, the Company will reimburse your COBRA premiums during the term of your continued employment.

Expense Reimbursement: You must obtain prior approval from Helmy Eltoukhy for any business-related travel, with any arrangements relating to transportation, lodging and meals to be mutually agreed between the parties in advance.

At-Will Employment: Consistent with state law, your employment with the Company will be “at- will.” This means that your employment with the Company will not last for any specific period of time, and either you or the Company can terminate your employment with 60 days’ notice and for any reason or for no reason. This letter will reflect the final, total and complete agreement between you and the Company regarding how your employment may be terminated. The “at-will” nature of your employment may only be changed if the CEO of the Company signs a written contract which explicitly changes at-will status.

Offer Acceptance: In order to accept this agreement, you must sign this letter and the other document enclosed for your signature, and I must receive them back before close of business on December 7, 2020. This letter, once accepted, constitutes the entire agreement between you and Guardant Health, Inc. with respect to the subject matter hereof and supersedes and replaces any and all prior agreements or representations relating to such subject matter including, but not limited to, your June 21, 2016 offer of employment. If you have any questions about this letter, then before signing please contact me.

 

Sincerely,

/s/ Amelia Merrill

Amelia Merrill

VP, People

Guardant Health, Inc.

I, Derek Bertocci, have read this letter and understand and agree to its terms.

 

   

Signature:

 

/s/ Derek Bertocci

Date: December 7, 2020

     

Derek Bertocci


NOTICE TO EMPLOYEE

Labor Code section 2810.5

 

EMPLOYEE

 

Employee Name: Derek Bertocci

 

Start Date: December 7, 2020

EMPLOYER

 

Legal Name of Hiring Employer: GUARDANT HEALTH INC.

 

Is hiring employer a staffing agency/business (e.g., Temporary Services Agency; Employee Leasing

Company; or Professional Employer Organization [PEO])? No

 

Other Names Hiring Employer is “doing business as” (if applicable): NA

 

Physical Address of Hiring Employer’s Main Office:

 

505 PENOBSCOT DRIVE, REDWOOD CITY CA, 94063

 

Hiring Employer’s Mailing Address (if different than above):                                                                                                       

 

Hiring Employer’s Telephone Number: 855-698-8887

 

If the hiring employer is a staffing agency/business (above box checked “Yes”), the following is the other entity for whom this employee will perform work:

 

Name:                                                                                                               

 

Physical Address of Main Office:                                                                          

 

Mailing Address:                                                                                                                       

 

Telephone Number:                                                                                                                   

 

WAGE INFORMATION

 

Rate(s) of Pay: $22.00 per HOUR [indicate rate and basis of pay, e.g., by hour, shift, day, week, salary, piece, commission, and/or other]

 

Overtime Rate(s) of Pay:

 

In accordance with California law, [at least] $33.00 (1.5 x regular rate) per hour for overtime hours worked in excess of eight (8) hours in a single workday, in excess of forty (40) hours in any one workweek, and for the first eight (8) hours worked on the seventh consecutive day of work in any one workweek [, subject to upward adjustment based upon         NA             ].


In accordance with California law, [at least] $44.00 (2 x regular rate) per hour for hours worked in excess of twelve (12) hours in any workday and for all hours worked in excess of eight (8) hours on a seventh consecutive day of work in any one workweek [, subject to upward adjustment based upon                 ].

 

[Bonuses: You are eligible to earn a potential bonus with the following rate(s) of pay—        NA    .    Please see the attached bonus plan for more terms and conditions regarding the bonus.]

 

[Commissions: You are eligible to earn potential commissions with the following rate(s) of pay—         NA        

 

[Other: [provide specifics of any rates of any other forms of pay]]

 

Does a written agreement exist providing the rate(s) of pay?    (check box)    ☒  Yes    ☐  No

 

If yes, are all rate(s) of pay and bases thereof contained in that written agreement?    ☒  Yes    ☐  No

 

(The written agreement referenced above is [e.g., the employee’s offer letter dated December 31, 2019

 

Allowances, if any, claimed as part of minimum wage (including meal or lodging allowances):

 

                                                                                                                                                                                                                 

 

(If the employee has signed the acknowledgment of receipt below, it does not constitute a “voluntary written agreement” as required under the law between the employer and employee in order to credit any meals or lodging against the minimum wage. Any such voluntary written agreement must be evidenced by a separate document.)

 

Regular Payday: 15TH DAY OF THE MONTH, AND LAST DAY OF THE MONTH.

 

WORKERS’ COMPENSATION

 

Insurance carrier’s Name:                 THE HARTFORD                                                                                      

 

Address:                 3600 WISEMAN BLVD. SAN ANTONIO, TX 78251                                                 

 

Telephone Number:         1-800-447-7649                                                                                                       

 

Policy No.: _    57 WEC DS9823                                                     

 

☐ Self-Insured (Labor Code 3700) and Certificate Number for Consent to Self-Insure:                                         

 

PAID SICK LEAVE

 

Unless exempt, the employee identified on this notice is entitled to minimum requirements for paid sick leave under state law which provides that an employee:

 

a. May accrue paid sick leave and may request and use up to 3 days or 24 hours of accrued paid sick leave per year;

 

b. May not be terminated or retaliated against for using or requesting the use of accrued paid sick leave; and

 

c. Has the right to file a complaint against an employer who retaliates or discriminates against an employee for

 

1.  requesting or using accrued sick days;


2.  attempting to exercise the right to use accrued paid sick days;

 

3.  filing a complaint or alleging a violation of Article 1.5 section 245 et seq. of the California Labor Code;

 

4.  cooperating in an investigation or prosecution of an alleged violation of this Article or opposing any policy or practice or act that is prohibited by Article 1.5 section 245 et seq. of the California Labor Code.

 

The following applies to the employee identified on this notice: (Check one box)

 

☐  1. Accrues paid sick leave only pursuant to the minimum requirements stated in Labor Code §245 et seq. with no other employer policy providing additional or different terms for accrual and use for paid sick leave.

 

☒  2. Accrues paid sick leave pursuant to the employer’s policy which satisfies or exceeds the accrual, carryover, and use requirements of Labor Code §246

 

☐  3. Employer provides no less than 24 hours (or 3 days) of paid sick leave at the beginning of each 12-month period.

 

☐  4. The employee is exempt from paid sick leave protection by Labor Code §245.5. (State exemption and specific subsection for exemption):                                                                              

 

ACKNOWLEDGMENT OF RECEIPT
   

Amelia Merrill

     Derek Bertocci
(PRINT NAME of Employer representative)      (PRINT NAME of Employee)
   

/s/ Amelia Merrill

    

/s/ Derek Bertocci

(SIGNATURE of Employer representative)      (SIGNATURE of Employee)
   

12/4/2020

    

12/7/2020

(Date)      (Date)
 

The employee’s signature on this notice merely constitutes acknowledgment of receipt.

 

    

 

Labor Code section 2810.5(b) requires that the employer notify you in writing of any changes to the information set forth in this Notice within seven calendar days after the time of the changes, unless one of the following applies: (a) All changes are reflected on a timely wage statement furnished in accordance with Labor Code section 226; (b) Notice of all changes is provided in another writing required by law within seven days of the changes.

Exhibit 99.1

 

LOGO

PRESS RELEASE

Guardant Health Names Michael Bell as New Chief Financial Officer

REDWOOD CITY, Calif. December 11, 2020 (BUSINESS WIRE) — Guardant Health, Inc. (Nasdaq: GH), a leading precision oncology company, has named Michael Bell as the company’s new Chief Financial Officer (CFO) effective January 5, 2021. Michael will succeed Derek Bertocci who has retired after successfully ushering the company through its successful transition as a public company.

“I am delighted to welcome Michael Bell to our executive leadership team,” said Helmy Eltoukhy, Guardant Health CEO. “Michael is a proven business leader whose extensive experience leading the financial operations of leading clinical diagnostic and pharmaceutical companies will make a tremendous impact as we continue to position Guardant Health for the future and progress toward our goal of transforming cancer care across all stages of the disease.”

Helmy Eltoukhy adds, “I also wish Derek Bertocci the very best as he takes on this next chapter of his life. I am grateful for his trusted partnership in positioning Guardant Health for long-term growth. On behalf of the company and the Board of Directors, I thank Derek for his leadership and contributions to Guardant Health over the last four years.”

“I’m thrilled to join Guardant Health and contribute to the company’s profound mission of conquering cancer with data,” said Michael Bell. “The company is in a unique position to help cancer patients across all stages of the disease, and I look forward to working with the incredible team at Guardant Health to continue to scale and help serve even more cancer patients.”

Michael brings over 25 years of international finance and accounting experience to this role after working in clinical diagnostics, pharma, and public accounting. He was most recently the CFO of CareDx, and was formerly the CFO for Metabiota, Singulex, and Novartis Diagnostics. Prior, Michael worked in public accounting at Ernst & Young and Deloitte. Michael holds a Bachelor of Science degree in Mathematics with Computing from the University of Leicester in the United Kingdom, and is a Fellow of the Institute of Chartered Accountants in England & Wales.

About Guardant Health

Guardant Health is a leading precision oncology company focused on helping conquer cancer globally through use of its proprietary blood tests, vast data sets and advanced analytics. The Guardant Health Oncology Platform


leverages capabilities to drive commercial adoption, improve patient clinical outcomes and lower healthcare costs across all stages of the cancer care continuum. Guardant Health has launched liquid biopsy-based Guardant360®, Guardant360 CDx and GuardantOMNI® tests for advanced stage cancer patients. These tests fuel development of its LUNAR program, which aims to address the needs of early stage cancer patients with neoadjuvant and adjuvant treatment selection, cancer survivors with surveillance, asymptomatic individuals eligible for cancer screening and individuals at a higher risk for developing cancer with early detection.

Investor Contact:

Carrie Mendivil

investors@guardanthealth.com

Media Contact:

Anna Czene

press@guardanthealth.com

Courtney Carroll

courtney.carroll@uncappedcommunications.com