AZURRX BIOPHARMA, INC. EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (this
“Agreement”)
is made and entered into on September 26, 2017, effective as of
September 26, 2017 (the “Effective
Date”) by and between AzurRx Biopharma, Inc. (the
“Company”)
and Xxxxx Xxxxxxxx (“Executive”).
The Company and Executive are hereinafter collectively referred to
as the “Parties”,
and individually referred to as a “Party”.
RECITALS
A. The
Company desires assurance of the association and services of
Executive in order to retain Executive’s experience, skills,
abilities, background and knowledge, and is willing to engage
Executive’s services on the terms and conditions set forth in
this Agreement.
B. Executive
desires to be in the employ of the Company, and is willing to
accept such employment on the terms and conditions set forth in
this Agreement.
AGREEMENT
In
consideration of the foregoing Recitals and the mutual promises and
covenants herein contained, and for other good and valuable
consideration, the Parties, intending to be legally bound, agree as
follows:
1.
EMPLOYMENT.
1.1 Title.
Effective as of the Effective Date, Executive’s position
shall be Executive Vice-President Corporate Development and Chief
Financial Officer, subject to the terms and conditions set forth in
this Agreement.
1.2 Term.
The term of this Agreement shall begin on the Effective Date and
shall continue for a period of three (3) years or until it is
terminated pursuant to Section 4 herein (the “Term”).
1.3 Duties.
Executive shall have the customary powers, responsibilities and
authorities of Executive Vice-President Corporate Development and
Chief Financial Officer of corporations of the size, type and
nature of the Company, as it exists from time to time. Executive
shall report to the Company’s Chief Executive
Officer.
1.4 Governing
Agreement. The employment relationship between the Parties
shall be governed by this Agreement
2.
LOYALTY;
NONCOMPETITION; NONSOLICITATION.
Loyalty. During Executive’s
employment by the Company, Executive shall devote substantially all
his business time to the performance of Executive’s duties
under this Agreement. Notwithstanding the foregoing, except as
otherwise agreed to in writing, Executive shall have the right to
perform such incidental services as are necessary in connection
with (a) his private passive investments, (b) his charitable or
community activities, (c) his participation in trade or
professional organizations, and (d) his service on the board of
directors (or comparable body) of any third-party corporate entity
that is not a Competitive Entity (as defined in Section 2.2), so
long as these activities do not materially interfere with
Executive’s duties hereunder and, with respect to (d),
Executive obtains prior Company consent, which consent will not be
unreasonably withheld. Executive may also provide limited services
to other parties provided such services are without
remuneration.
2.1 Agreement
not to Participate in Company’s Competitors. During
the Term, Executive agrees not to acquire, assume or participate
in, directly or indirectly, any position, investment or interest
known by Executive to be adverse or antagonistic to the Company,
its business, or prospects, financial or otherwise, or in any
company, person, or entity that is, directly or indirectly, in
competition with the business of the Company or any of its
Affiliates (as defined below). Ownership by Executive, in
professionally managed funds over which the Executive does not have
control or discretion in investment decisions, or as a passive
investment, of less than five percent (5%) of the outstanding
shares of capital stock of any corporation with one or more classes
of its capital stock listed on a national securities exchange or
publicly traded on a national securities exchange or in the
over-the-counter market shall not constitute a breach of this
Section. For purposes of this Agreement, “Affiliate,”
means, with respect to any specific entity, any other entity that,
directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with such
specified entity.
2.2 Covenant
not to Compete. During the Term and for a period of
twelve
(12)
months thereafter (the “Restricted
Period”), Executive shall not engage in competition
with the Company and/or any of its Affiliates, either directly or
indirectly, in any manner or capacity, as adviser, principal,
agent, affiliate, promoter, partner, officer, director, employee,
stockholder, owner, co-owner, consultant, or member of any
association or otherwise, in any phase of the business of
researching and developing non-systemic biologics for the treatment
of patients with gastrointestinal disorders (a “Competitive
Entity”), except with the prior written consent of the
Board.
2.3 Nonsolicitation.
During the Restricted Period, Executive shall not: (i) solicit or
induce, or attempt to solicit or induce, any employee of the
Company or its Affiliates to leave the employ of the Company or
such Affiliate; or (ii) solicit or attempt to solicit the business
of any client or customer of the Company or its Affiliates with
respect to products, services, or investments similar to those
provided or supplied by the Company or its Affiliates.
2.4 Acknowledgements.
Executive acknowledges and agrees that his services to the Company
pursuant to this Agreement are unique and extraordinary and that in
the course of performing such services Executive shall have access
to and knowledge of significant confidential, proprietary, and
trade secret information belonging to the Company. Executive agrees
that the covenant not to compete and the nonsolicitation
obligations imposed by this Section 2 are reasonable in duration,
geographic area, and scope and are necessary to protect the
Company’s legitimate business interests in its goodwill, its
confidential, proprietary, and trade secret information, and its
investment in the unique and extraordinary services to be provided
by Executive pursuant to this Agreement. If, at the time of
enforcement of this Section 2, a court holds that the
covenant not to compete and/or the nonsolicitation obligations
described herein are unreasonable or unenforceable under the
circumstances then existing, then the Parties agree that the
maximum duration, scope, and/or geographic area legally permissible
under such circumstances will be substituted for the duration,
scope and/or area stated herein.
3.
COMPENSATION
OF THE EXECUTIVE.
3.1 Base
Salary. The Company shall pay Executive a base salary (the
“Base
Salary”) at the annualized rate of Two Hundred and
Seventy-Five Thousand Dollars ($275,000), less payroll deductions
and all required withholdings, payable in regular periodic payments
in accordance with the Company’s normal payroll practices.
The Base Salary shall be prorated for any partial year of
employment on the basis of a 365-day fiscal year. The Company may
increase, but not decrease (except in connection with a
Company-wide decrease in executive compensation), Executive’s
Base Salary from time to time, and if so increased, “Base
Salary” shall include such increases for purposes of this
Agreement.
3.2 Bonuses.
At the sole discretion of the Board or the compensation committee
of the Board (the “Compensation
Committee”), following each calendar year of
employment, Executive shall be eligible to receive an additional
cash bonus (the “Annual Milestone
Bonus”), based (in whole or in part) on
Executive’s attainment of certain financial, clinical
development, and/or business milestones (the “Milestones”)
to be established annually prior to March 30 of the applicable
calendar year by the Board or the Compensation Committee. The
determination of whether Executive has met the Milestones, and if
so, the bonus amount (if any) that will be paid, shall be
determined by the Board or the Compensation Committee in its sole
and absolute discretion. Any Annual Milestone Bonuses shall be
deemed to have been earned on December 31 of each calendar year;
and shall be paid in cash in a single lump-sum payment or in
installments, as determined by the Board or the Compensation
Committee. Notwithstanding the foregoing, any payment of an Annual
Milestone Bonus shall be payable only if Executive is employed as
of the bonus payment date.
3.3 Stock
Options. On the date of execution of this agreement,
Executive has been granted an option to purchase 100,000 shares of
Company common stock (the “Option”)
pursuant to the Company’s Amended and Restated 2014 Omnibus
Equity Incentive Plan (the “Plan”).
The Option shall have a per share exercise price equal to the
closing price of such stock on NASDAQ on the trading day
immediately prior to the grant date, and shall expire on the tenth
anniversary of the date of execution of this Agreement. To the
extent permitted by tax rules under Section 422 of the Internal
Revenue Code, the Option granted hereunder shall be intended to be
an “incentive stock option”. The Option shall vest as
follows so long as the Executive is serving as either Executive
Vice-President or as Chief Financial Officer at such time: (i) 75%
upon acceptance of a US IND for MS1819, and (ii) 25% upon the
Company completing a Phase IIa clinical trial for MS1819. In the
event of any conflict between this Agreement and the terms of the
Plan, the terms of this Agreement shall control. In addition, the
Executive may elect to exercise some or all of the stock options by
making a net exercise, in which case the Company shall issue to the
Executive a number of shares of unencumbered common stock of the
Company equal to: (x) the total number of shares underlying the
portion of the stock option being exercised less (y) the number of
shares whose fair market value is equal to the sum of (A) the
exercise price of the stock options being exercised, plus (B) any
required tax withholding amounts in respect of such exercise. In
the event Executive’s employment is terminated under the
provisions of Sections 4.5.3 or 4.5.4 hereof, all vested options
will remain exercisable for a period of twelve (12) months
following termination; provided,
however, that those options that are exercised after 90 days
following termination of employment shall no longer be eligible for
treatment as Incentive Stock Options.
3.4 Expense
Reimbursements. The Company will reimburse Executive for all
reasonable business expenses Executive incurs in conducting his
duties hereunder, pursuant to the Company’s usual expense
reimbursement policies, but in no event later than ninety (90) days
after the end of the calendar month following the month in which
such expenses were incurred by Executive; provided that Executive
supplies the appropriate substantiation for such expenses no later
than the end of the calendar month following the month in which
such expenses were incurred by Executive.
3.5 Changes
to Compensation. As described above, Executive’s
compensation will be reviewed at least on an annual basis and the
Base Salary may be increased, but not decreased (except in
connection with a Company-wide decrease in executive compensation),
from time to time in the Company’s sole
discretion.
3.6 Employment
Taxes. All of Executive’s compensation shall be
subject to customary withholding taxes and any other employment
taxes as are commonly required to be collected or withheld by the
Company.
3.7 Benefits.
The Executive shall, in accordance with Company policy and the
applicable plan documents, be eligible to participate in benefits
under any benefit plan or arrangement, including medical, dental,
vision, disability and life insurance programs, that may be in
effect from time to time and made available to the Company’s
senior management employees, subject to the terms and conditions of
those benefit plans.
3.8 Holidays
and Vacation. Executive shall receive twenty (20) days of
paid vacation per year, which cannot be taken in one increment, but
which shall accrue if not used in any year but only up to a maximum
of ten (10) days, and be paid to Executive or carried forward to
subsequent years consistent with Company policy. In addition to
such paid vacation, Executive shall receive all paid Company
holidays in accordance with Company policy.
4.
TERMINATION.
4.1 Termination
by the Company. Executive’s employment with the
Company is at will and may be terminated by the Company at any time
and for any reason, or for no reason, including, but not limited
to, under the following conditions:
4.1.1 Termination
by the Company for Cause. The Company may terminate
Executive’s employment under this Agreement for
“Cause” by delivery of written notice to Executive. Any
notice of termination given pursuant to this Section 4.1.1 shall
effect termination as of the date of the notice, or as of such
other date as specified in the notice.
4.1.2 Termination
by the Company without Cause. The Company may terminate
Executive’s employment under this Agreement without Cause at
any time and for any reason, or for no reason. Such termination
shall be effective on the date Executive is so informed, or as
otherwise specified by the Company.
4.2 Termination
by Resignation of Executive. Executive’s employment
with the Company is at will and may be terminated by Executive at
any time and for any reason, or for no reason, including via a
resignation for Good Reason in accordance with the procedures set
forth in Section 4.6.3 below.
4.3 Termination
for Death or Complete Disability. Executive’s
employment with the Company shall automatically terminate effective
upon the date of Executive’s death or Complete Disability (as
defined below).
4.4 Termination
by Mutual Agreement of the Parties. Executive’s
employment with the Company may be terminated at any time upon a
mutual agreement in writing of the Parties. Any such termination of
employment shall have the consequences specified in such
agreement.
4.5 Compensation
Upon Termination.
4.5.1 Death
or Complete Disability. If, during the Term of this
Agreement, Executive’s employment shall be terminated by
death or Complete Disability, the Company shall pay to Executive,
his estate, or his heirs, as applicable, (i) any Base Salary owed
to Executive through the date of termination; (ii) expenses
reimbursement amounts owed to Executive; (iii) all unpaid amounts
of any Annual Milestone Bonus(es) Executive earned prior to the
termination date; (iv) a cash lump sum in respect to accrued and
unused vacation benefits earned through the date of termination at
the rate in effect at the time of termination; (v) any payments and
benefits to which Executive (or his estate) is entitled pursuant to
the terms of any employee benefit or compensation plan or program
in which he participates (or participated); and (vi) any amount to
which Executive is entitled pursuant to any other written
agreements between the Company or any of its affiliates and
Executive (the amounts in (i) through (vi) above being the
“Termination
Amounts”). The Company shall pay Executive: (A) the
amounts contained in items (i) through (iv) within ten (10) days
following such termination; (B) any payments associated with (v) in
accordance to the terms of such plans or programs; and (C) any such
amounts in (vi) in accordance with the terms of such agreements,
with the Termination Amounts being subject to the standard
deductions and withholdings (as applicable). In addition, subject
to Executive (or his estate or heirs, as applicable) furnishing to
the Company an executed waiver and release of claims in the form
attached hereto as Exhibit A
(the “Release”)
within the time period specified therein, and allowing the Release
to become effective in accordance with its terms, then Executive,
his estate, or his heirs, as applicable, shall also be entitled to:
(1) continuation of Executive’s salary (at the Base Salary
rate in effect at the time of termination) for a period of ninety
(90) days following the termination date; and (2) a prorated annual
bonus equal to the Annual Milestone Bonus, if any, for the year of
termination multiplied by a fraction, the numerator of which shall
be the number of full and partial months Executive worked for the
Company and the denominator of which shall be 12. The Base Salary
payments will be subject to standard payroll deductions and
withholdings and will be made on the Company’s regular
payroll cycle, provided, however, that any payments otherwise
scheduled to be made prior to the effective date of the Release
shall accrue and be paid in the first payroll period that follows
such effective date. The prorated annual bonus payment will be
subject to standard payroll deductions and withholdings and will
paid at the same time as the Annual Milestone Bonus, if any, would
have been paid to Executive under Section 3.2 above, had Executive
remained employed with the Company.
4.5.2 Termination
For Cause or Resignation without Good Reason. If, during the
Term of this Agreement, Executive’s employment is terminated
by the Company for Cause, or Executive resigns his employment
hereunder without Good Reason, the Company shall pay Executive
the Termination Amounts, less standard deductions and withholdings.
The Company shall thereafter have no further obligations to
Executive under this Agreement, except as otherwise provided by
law.
4.5.3 Termination
Without Cause or Resignation for Good Reason Not in Connection with
a Change of Control. If the Company terminates
Executive’s employment without Cause, or if Executive resigns
for Good Reason, at any time other than upon the occurrence of, or
within thirty (30) days prior to, or six (6) months following, the
effective date of a Change of Control (as defined below), the
Company shall pay Executive the Termination Amounts, less standard
deductions and withholdings. In addition, subject to Executive
furnishing to the Company an executed Release within the time
period specified therein, and allowing the Release to become
effective in accordance with its terms, Executive shall be entitled
to: (1) severance in the form of continuation of his salary (at the
Base Salary rate in effect at the time of termination, but prior to
any reduction triggering Good Reason) for the greater of a period
of twelve (12) months following the termination date or the
remaining term; (2) payment of Executive’s premiums to cover
COBRA for a period of twelve (12) months following the termination
date; and (3) a prorated annual bonus equal to the target Annual
Milestone Bonus, if any, for the year of termination multiplied by
a fraction, the numerator of which shall be the number of full and
partial months Executive worked for the Company and the denominator
of which shall be 12, and (4) immediate accelerated vesting of any
unvested Restricted Shares and unvested outstanding stock
option(s). These payments under (1), (2), (3) and (4) above will be
subject to standard payroll deductions and withholdings and will be
made on the Company’s regular payroll cycle, provided,
however, that any payments otherwise scheduled to be made prior to
the effective date of the Release shall accrue and be paid in the
first payroll period that follows such effective date.
4.5.4 Termination
Without Cause or Resignation for Good Reason in Connection with a
Change of Control. If the Company terminates
Executive’s employment without Cause, or if Executive resigns
for Good Reason, upon the occurrence of, or within thirty
(30)
days prior to, or within six (6) months following, the effective
date of a Change of Control, the Company shall pay Executive the
Termination Amounts, less standard deductions and withholdings. In
addition, subject to Executive furnishing to the Company an
executed Release within the time period specified therein, and
allowing the Release to become effective in accordance with its
terms, then Executive shall be entitled to: (1) severance in the
form of a lump sum payment equivalent to the greater of twelve (12)
months of his Base Salary (at the Base Salary rate in effect at the
time of termination, but prior to any reduction triggering Good
Reason) or the remaining Term; (2) payment of Executive’s
premiums to cover COBRA for a period of twelve (12) months
following the termination date; (3) a prorated annual bonus equal
to the target Annual Milestone Bonus, if any, for the year of
termination multiplied by a fraction, the numerator of which shall
be the number of full and partial months Executive worked for the
Company and the denominator of which shall be 12, and (4) immediate
accelerated vesting of any unvested Restricted Shares and unvested
outstanding stock option(s). These payments under (1), (2), and (3)
above, will be subject to standard payroll deductions and
withholdings and will be made on the Company’s regular
payroll cycle, provided, however, that any payments otherwise
scheduled to be made prior to the effective date of the Release
shall accrue and be paid in the first payroll period that follows
such effective date.
4.6 Definitions.
For purposes of this Agreement, the following terms shall have the
following meanings:
4.6.1 Complete
Disability. “Complete
Disability” means that Executive is determined to be
permanently disabled pursuant to the Company’s long-term
disability plan and is receiving disability benefits under such
plan.
4.6.2 Cause.
“Cause”
for the Company to terminate Executive’s employment hereunder
shall mean the occurrence of any of the following events, as
determined by the Company and/or the Board in its and/or their sole
and absolute discretion:
(i) The willful
failure, disregard or refusal by Executive to perform his material
duties or obligations under this Agreement or to follow lawful
directions received by Executive from the Board, provided, however, that, any such
termination of Executive shall only be deemed for Cause pursuant to
this definition if: (i) the Company gives the Executive written
notice of the condition(s) alleged to constitute Cause, which
notice shall describe such condition(s); and (ii) the Executive
fails to remedy such condition(s) within thirty (30) days following
receipt of the written notice, provided, further, that written notice
shall not be required to be given hereunder in the event the
failure, disregard or refusal by Executive is willful, in the
reasonable determination of the Chief Executive
Officer;
(ii) Any
grossly negligent act by Executive having the effect of materially
injuring (whether financially or otherwise) the business or
reputation of the Company or any willful act by Executive intended
to cause such material injury, except any acts (A) made by
Executive in connection with the enforcement of his rights, whether
under this Agreement, any other agreement between the Company or
any affiliate and Executive, or pursuant to applicable law (e.g.
disparagement, etc.) or (B) which are required by law or pursuant
to a subpoena or demand by a governmental or regulatory
body.
(iii) Executive’s
indictment of any felony involving moral turpitude (including entry
of a nolo contendere
plea);
(iv) The
determination, after a reasonable and good-faith independent
investigation, that the Executive engaged in discrimination
prohibited by law (including, without limitation, age, sex or race
discrimination);
(v) Executive’s
material misappropriation or embezzlement of the property of the
Company or its Affiliates (whether or not a misdemeanor or felony);
or
(vi) Material
breach by Executive of this Agreement and/or of his Proprietary
Information and Inventions Agreement (“PIIA”);
provided, however, that,
any such termination of Executive shall only be deemed for Cause
pursuant to this definition if: (i) the Company gives the Executive
written notice of the condition(s) alleged to constitute Cause,
which notice shall describe such condition(s); and (ii) the
Executive fails to remedy such condition(s) (if curable) within
thirty (30) days following receipt of the written
notice.
For
purposes of this definition, the Parties agree that any material
breach of Sections 2 or 5 of this Agreement shall be deemed a
material breach that is not capable of cure by
Executive.
4.6.3 Good
Reason. For purposes of this Agreement, and subject to the
caveat at the end of this Section 4.6.3, “Good Reason”
for Executive to terminate his employment hereunder shall mean the
occurrence of any of the following events without Executive’s
prior written consent:
(i) any reduction by
the Company of Executive’s Base Salary as initially set forth
herein or as the same may be increased from time to time, provided,
however, that if such reduction occurs in connection with a
Company-wide decrease in executive compensation, such reduction
shall not constitute Good Reason for Executive to terminate his
employment;
(ii) a
material breach by the Company (or any of its affiliates) of this
Agreement or any other written agreement between the Company or any
of its affiliates and Executive; or
(iii) a
material adverse change in Executive’s duties, titles,
authority, responsibilities or reporting relationships, with such
determination being made with reference to the greatest extent of
Executive's duties, titles, authority, responsibilities or
reporting relationships, etc. as increased (but not decreased) from
time to time; provided, however, a change in Executive’s role
and/or title to no less than Executive Vice-President Corporate
Development shall not constitute Good Reason under this
Agreement;
(iv) any
failure of the Company or any affiliate to pay Executive any amount
owed to Executive under this Agreement or any other written
agreement plan or program between the Company, any affiliates and
Executive;
(v) any reduction in
Executive’s bonus eligibility; or
(vi) the
assignment to Executive of duties materially inconsistent with his
position with the Company.
Provided, however,
that a change in Executive’s role and/or title to no less
than Executive Vice-President shall not constitute a termination
for Good Reason under this Agreement, and, provided further, that any such
termination by the Executive shall only be deemed for Good Reason
pursuant to this definition if: (1) the Executive gives the Company
written notice of his intent to terminate for Good Reason; which
notice shall describe such condition(s); (2) the Company fails to
remedy such condition(s) within thirty (30) days following receipt
of the written notice the “Cure Period”);
and (3) Executive voluntarily terminates his employment within
thirty (30) days following the end of the Cure Period.
4.6.4 Change
of Control. For purposes of this Agreement, “Change of
Control” shall mean the occurrence, in a single transaction
or in a series of related transactions, of any one or more of the
following events (excluding in any case transactions in which the
Company or its successors issues securities to investors primarily
for capital raising purposes):
(i) the acquisition by
a third party (or more than one party acting as a group) of
securities of the Company representing more than fifty percent
(50%) of the combined voting power of the Company’s then
outstanding securities other than by virtue of a merger,
consolidation or similar transaction;
(ii) a
merger, consolidation or similar transaction following which the
stockholders of the Company immediately prior thereto do not own at
least fifty percent (50%) of the combined outstanding voting power
of the surviving entity (or that entity’s parent) in such
merger, consolidation or similar transaction; or
(iii) the
sale, or other disposition of all or substantially all of the
assets of the Company.
4.7 Survival
of Certain Sections. The terms and conditions set forth in
this Agreement shall survive the termination hereof; provided, however, Sections 14 and 15
shall terminate and be of no further force and effect upon such
termination.
4.8 Parachute
Payment. If any payment or benefit the Executive would
receive pursuant to this Agreement (“Payment”)
would (i) constitute a “Parachute
Payment” within
the meaning of Section 280G of the Internal Revenue Code of 1986,
as amended (the “Code”),
and (ii) be subject to the excise tax imposed by Section 4999 of
the Code (the “Excise
Tax”), then the Executive shall be entitled to receive
an additional payment from the Company (the “Gross-Up
Payment”) in an amount such that the net amount of
such additional payment retained by the Executive, after payment of
all federal, state and local income and employment and Excise Taxes
imposed on the Gross-Up Payment, shall be equal to the Excise Tax
imposed on the Payment. The Company shall pay Executive the
Gross-Up Payment as soon as practicable following the date
Executive’s right to the applicable Payment is triggered, but
in no event will the Company make such Gross-Up Payment later than
the time required by the rules governing Section 409A, including,
but not limited to, Treasury Regulation
1.409A-3(i)(1)(v).
Unless
Executive and the Company agree on an alternative accounting, law
or consulting firm, the accounting firm then engaged by the Company
for general tax compliance purposes shall perform the Gross-Up
Payment calculations. If the accounting firm so engaged by the
Company is serving as accountant or auditor for the individual,
entity or group effecting the Change in Control, the Company shall
appoint a nationally recognized accounting, law or consulting firm
to make the determinations required hereunder. The Company shall
bear all expenses with respect to the determinations by such
accounting, law or consulting firm required to be made
hereunder.
The
Company shall use commercially reasonable efforts such that the
accounting, law or consulting firm engaged to make the
determinations hereunder shall provide its calculations, together
with detailed supporting documentation, to Executive and the
Company within fifteen (15) calendar days after the date on which
Executive’s right to a Payment is triggered (if requested at
that time by the Executive or the Company) or such other time as
requested by the Executive or the Company.
4.9 Application
of Internal Revenue Code Section 409A. Notwithstanding
anything to the contrary set forth herein, any payments and
benefits provided under this Agreement (the “Severance
Benefits”) that constitute “deferred
compensation” within the meaning of Section 409A of the Code
and the regulations and other guidance thereunder and any state law
of similar effect (collectively “Section 409A”)
shall not commence in connection with Executive’s termination
of employment unless and until Executive has also incurred a
“separation from service” (as such term is defined in
Treasury Regulation Section 1.409A-1(h) (“Separation
from Service”), unless the Company reasonably
determines that such amounts may be provided to Executive without
causing Executive to incur the additional 20% tax under Section
409A.
It is
intended that each installment of the Severance Benefits payments
provided for in this Agreement is a separate “payment”
for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i). For
the avoidance of doubt, it is intended that payments of the
Severance Benefits set forth in this Agreement satisfy, to the
greatest extent possible, the exemptions from the application of
Section 409A provided under Treasury Regulation Sections
1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, if the
Company (or, if applicable, the successor entity thereto)
determines that the Severance Benefits constitute “deferred
compensation” under Section 409A and Executive is, on the
termination of service, a “specified employee” of the
Company or any successor entity thereto, as such term is defined in
Section 409A(a)(2)(B)(i) of the Code, then, solely to the extent
necessary to avoid the incurrence of the adverse personal tax
consequences under Section 409A, the timing of the Severance
Benefit payments shall be delayed until the earlier to occur of:
(i) the date that is six months and one day after Executive’s
Separation From Service, or (ii) the date of Executive’s
death (such applicable date, the “Specified Employee Initial
Payment Date”), the Company (or the successor entity
thereto, as applicable) shall (A) pay to Executive a lump sum
amount equal to the sum of the Severance Benefit payments that
Executive would otherwise have received through the Specified
Employee Initial Payment Date if the commencement of the payment of
the Severance Benefits had not been so delayed pursuant to this
Section 4.9, and (B) commence paying the balance of the Severance
Benefits in accordance with the applicable payment schedules set
forth in this Agreement.
Notwithstanding
anything to the contrary set forth herein, Executive shall receive
the Severance Benefits described above, if and only if Executive
duly executes and returns to the Company within the applicable time
period set forth therein, but in no event more than forty-five days
following Separation from Service, the Release and permits the
release of claims contained therein to become effective in
accordance with its terms. Notwithstanding any other payment
schedule set forth in this Agreement, none of the Severance
Benefits will be paid or otherwise delivered prior to the effective
date of the Release. Except to the extent that payments may be
delayed until the Specified Employee Initial Payment Date pursuant
to the preceding paragraph, on the first regular payroll pay day
following the effective date of the Release, the Company will pay
Executive the Severance Benefits Executive would otherwise have
received under the Agreement on or prior to such date but for the
delay in payment related to the effectiveness of the Release, with
the balance of the Severance Benefits being paid as originally
scheduled. All amounts payable under the Agreement will be subject
to standard payroll taxes and deductions.
All
reimbursements and in-kind benefits provided under this Agreement
shall be made or provided in accordance with the requirements of
Section 409A to the extent that such reimbursements or in-kind
benefits are subject to Section 409A. All reimbursements for
expenses paid pursuant hereto that constitute taxable income to
Executive shall in no event be paid later than the end of the
calendar year next following the calendar year in which Executive
incurs such expense or pays such related tax. Unless otherwise
permitted by Section 409A, the right to reimbursement or in-kind
benefits under this Agreement shall not be subject to liquidation
or exchange for another benefit and the amount of expenses eligible
for reimbursement, or in-kind benefits, provided during any taxable
year shall not affect the expenses eligible for reimbursement, or
in-kind benefits to be provided, respectively, in any other taxable
year.
5.
CONFIDENTIAL
AND PROPRIETARY INFORMATION.
As a
condition of employment, Executive agrees to execute and abide by
the PIIA.
6.
ASSIGNMENT
AND BINDING
EFFECT.
This
Agreement shall be binding upon and inure to the benefit of
Executive and Executive’s heirs, executors, personal
representatives, assigns, administrators and legal representatives.
Because of the unique and personal nature of Executive’s
duties under this Agreement, neither this Agreement nor any rights
or obligations under this Agreement shall be assignable by
Executive. This Agreement shall be binding upon and inure to the
benefit of the Company and its successors, assigns and legal
representatives. Any such successor of the Company will be deemed
substituted for the Company under the terms of this Agreement for
all purposes. For this purpose, “successor” means any
person, firm, corporation or other business entity which at any
time, whether by purchase, merger or otherwise, directly or
indirectly acquires all or substantially all of the assets or
business of the Company.
7.
NOTICES.
All
notices or demands of any kind required or permitted to be given by
the Company or Executive under this Agreement shall be given in
writing and shall be personally delivered (and receipted for) or
faxed during normal business hours or mailed by certified mail,
return receipt requested, postage prepaid, addressed as
follows:
If
to the Company:
000
Xxxxxxxx Xxxxxx
Xxxxxxxxx
Biotechnology Incubator, Xxxxx 000
Xxxxxxxx, Xxx Xxxx
00000
(000)
000-0000
Attn:
Chief Executive
If
to Executive:
Xxxxx
Xxxxxxxx
000
Xxxxxxx Xxxxxx
Xxxxxxxx. XX
00000
Any
such written notice shall be deemed given on the earlier of the
date on which such notice is personally delivered or three (3) days
after its deposit in the United States mail as specified above.
Either Party may change its address for notices by giving notice to
the other Party in the manner specified in this Section
7.
8.
CHOICE
OF LAW.
This
Agreement shall be construed and interpreted in accordance with the
internal laws of the State of New York without regard to its
conflict of laws principles.
9.
INTEGRATION.
This
Agreement, including Exhibit
A, the Option
Agreement attached hereto as Exhibit
B, and the PIIA
attached as Exhibit C,
contains the complete, final and exclusive agreement of the Parties
relating to the terms and conditions of Executive’s
employment and the termination of Executive’s employment, and
supersedes all prior and contemporaneous oral and written
employment agreements or arrangements between the Parties. To the
extent of any conflict between this Agreement and the terms of the
Option Agreement, the terms set forth herein shall
control.
10.
AMENDMENT.
This
Agreement cannot be amended or modified except by a written
agreement signed by Executive and the Company.
11.
WAIVER.
No
term, covenant or condition of this Agreement or any breach thereof
shall be deemed waived, except with the written consent of the
Party against whom the wavier is claimed, and any waiver or any
such term, covenant, condition or breach shall not be deemed to be
a waiver of any preceding or succeeding breach of the same or any
other term, covenant, condition or breach.
12.
SEVERABILITY.
The
finding by a court of competent jurisdiction of the
unenforceability, invalidity or illegality of any provision of this
Agreement shall not render any other provision of this Agreement
unenforceable, invalid or illegal. Such court shall have the
authority to modify or replace the invalid or unenforceable term or
provision with a valid and enforceable term or provision, which
most accurately represents the Parties’ intention with
respect to the invalid or unenforceable term, or
provision.
13.
INTERPRETATION;
CONSTRUCTION.
The
headings set forth in this Agreement are for convenience of
reference only and shall not be used in interpreting this
Agreement. This Agreement has been drafted by legal counsel
representing the Company, but the Executive has been encouraged to
consult with, and has consulted with, Executive’s own
independent counsel and tax advisors with respect to the terms of
this Agreement. The Parties acknowledge that each Party and its
counsel has reviewed and revised, or had an opportunity to review
and revise, this Agreement, and any rule of construction to the
effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of this
Agreement.
14.
REPRESENTATIONS
AND WARRANTIES.
Executive
represents and warrants that Executive is not restricted or
prohibited, contractually or otherwise, from entering into and
performing each of the terms and covenants contained in this
Agreement, and that Executive’s execution and performance of
this Agreement will not violate or breach any other agreements
between the Executive and any other person or entity.
15.
COUNTERPARTS.
This
Agreement may be executed in two counterparts, each of which shall
be deemed an original, all of which together shall contribute one
and the same instrument. Signatures to this Agreement transmitted
by fax, by email in “portable document format”
(“.pdf”) or by any other electronic means intended to
preserve the original graphic and pictorial appearance of this
Agreement shall have the same effect as physical delivery of the
paper document bearing original signature.
16.
ARBITRATION.
To
ensure the rapid and economical resolution of disputes that may
arise in connection with the Executive’s employment with the
Company, Executive and the Company agree that any and all disputes,
claims, or causes of action, in law or equity, arising from or
relating to Executive’s employment, or the termination of
that employment, will be resolved, to the fullest extent permitted
by law, by final, binding and confidential arbitration pursuant to
the Federal Arbitration Act in New York, New York conducted by the
Judicial Arbitration and Mediation Services/Endispute, Inc.
(“JAMS”),
or its successors, under the then current rules of JAMS for
employment disputes; provided that the arbitrator shall: (a) have
the authority to compel adequate discovery for the resolution of
the dispute and to award such relief as would otherwise be
permitted by law; and (b) issue a written arbitration decision
including the arbitrator’s essential findings and conclusions
and a statement of the award. Accordingly, Executive and the
Company hereby waive any right to a jury trial. Both Executive and
the Company shall be entitled to all rights and remedies that
either Executive or the Company would be entitled to pursue in a
court of law. The Company shall pay any JAMS filing fee and shall
pay the arbitrator’s fee. The arbitrator shall have the
discretion to award attorney’s fees to the party the
arbitrator determines is the prevailing party in the arbitration.
Nothing in this Agreement is intended to prevent either Executive
or the Company from obtaining injunctive relief in court to prevent
irreparable harm pending the conclusion of any such arbitration.
Notwithstanding the foregoing, Executive and the Company each have
the right to resolve any issue or dispute involving confidential,
proprietary or trade secret information, or intellectual property
rights, by Court action instead of arbitration.
17.
INDEMNIFICATION.
The
Company shall defend and indemnify Executive in his capacity as
Executive Vice-President and Chief Financial Officer of the
Company, and with respect to all services performed by Executive
for the Company and as an employee, to the fullest extent permitted
under the Delaware General Corporation Law (“DGCL”). The
Company shall also maintain a policy for indemnifying its officers
and directors, including but not limited to the Executive, for
all actions permitted
under the DGCL taken in good faith pursuit of their duties for the
Company, including but not limited to maintaining an appropriate
level of Directors and Officers Liability coverage and maintaining
the inclusion of such provisions in the Company’s by-laws or
articles of incorporation, as applicable and customary. The rights
to indemnification shall survive any termination of this
Agreement.
18.
TRADE
SECRETS OF OTHERS.
It is
the understanding of both the Company and Executive that Executive
shall not divulge to the Company and/or its subsidiaries any
confidential information or trade secrets belonging to others,
including Executive’s former employers, nor shall the Company
and/or its Affiliates seek to elicit from Executive any such
information. Consistent with the foregoing, Executive shall not
provide to the Company and/or its Affiliates, and the Company
and/or its Affiliates shall not request, any documents or copies of
documents containing such information.
19.
ADVERTISING
WAIVER.
Executive agrees to
permit the Company, and persons or other organizations authorized
by the Company, to use, publish and distribute advertising or sales
promotional literature concerning the products and/or services of
the Company, or the machinery and equipment used in the provision
thereof, in which Executive’s name and/or pictures of
Executive taken in the course of Executive’s provision of
services to the Company appear. Executive hereby waives and
releases any claim or right Executive may otherwise have arising
out of such use, publication or distribution.
20.
NO
MITIGATION.
Executive shall not
be required to mitigate damages or the amount of any payment
provided for under this Agreement by seeking other employment or
otherwise after the termination of his employment hereunder, and
any amounts earned by Executive, whether from self-employment, as a
common-law employee or otherwise, shall not reduce the amount of
any payment otherwise payable to him.
[SIGNATURE PAGE
FOLLOWS]
IN WITNESS WHEREOF, the Parties
have executed this Agreement as of the date first above
written.
AZURRX
BIOPHARMA, INC.
By:
/s/
Thijs Xxxxx
Name: Thijs Xxxxx
Its: President and CEO
Dated:
September 26, 2017
EXECUTIVE:
/s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Dated: September 26, 2017
EXHIBIT
A
RELEASE
AND WAIVER OF CLAIMS
TO
BE SIGNED ON OR FOLLOWING THE SEPARATION DATE ONLY
In
consideration of the payments and other benefits set forth in the
Employment Agreement effective as of September 26, 2017, to which
this form is attached, I, Xxxxx Xxxxxxxx, hereby furnish
AZURRX BIOPHARMA, INC. (the
“Company”),
with the following release and waiver (“Release and
Waiver”). Payments to be made in consideration of this
Release and Waiver shall commence on the "Release Payment
Date" which shall mean the effective date of this release,
provided however, that if
the period below for review of this Release spans beyond December
31 of a given year, then the Release Payment Date shall be the
later of (i) the first payroll date in such subsequent calendar
year or (ii) the first payroll date that follows the Release
Payment Date.
In
exchange for the consideration provided to me by the Employment
Agreement that I am not otherwise entitled to receive, I hereby
generally and completely release the Company and its current and
former directors, officers, employees, stockholders, partners,
agents, attorneys, predecessors, successors, parent and subsidiary
entities, insurers, affiliates, and assigns (collectively, the
“Released
Parties”) from any and all claims, liabilities and
obligations, both known and unknown, that arise out of or are in
any way related to events, acts, conduct, or omissions occurring
prior to or on the date that I sign this Agreement (collectively,
the “Released
Claims”). Except as provided below, the Released
Claims include, but are not limited to: (a) all claims arising out
of or in any way related to my employment with the Company, or the
termination of that employment; (b) all claims related to my
compensation or benefits from the Company including salary,
bonuses, commissions, vacation pay, expense reimbursements,
severance pay, fringe benefits, stock, stock options, or any other
ownership interests in the Company; (c) all claims for breach of
contract, wrongful termination, and breach of the implied covenant
of good faith and fair dealing; (d) all tort claims, including
claims for fraud, defamation, emotional distress, and discharge in
violation of public policy; and (e) all federal, state, and local
statutory claims, including claims for discrimination, harassment,
retaliation, misclassification, attorneys’ fees, or other
claims arising under the federal Civil Rights Act of 1964 (as
amended), the federal Americans with Disabilities Act of 1990, the
federal Age Discrimination in Employment Act of 1967 (as amended)
(the “ADEA”), the
fair employment practices statutes of the state or states in which
I have provided services to the Company and/or any other federal,
state or local law, regulation or other requirement.
Notwithstanding the foregoing, the following are not included in
the Released Claims (the “Excluded
Claims”):
(a) any
rights or claims under the Employment Agreement or any other
written agreement between the Company and me, including any stock
option award agreement or plan, (b) any rights or claims that may
arise as a result of events occurring after the date this Release
and Waiver is executed or which otherwise cannot lawfully be
waived, (c) any rights to representation and/or indemnification I
may have as a current or former officer , director, or employee of
the Company or its subsidiaries or affiliated companies, including
but not limited to any rights or claims for representation and/or
indemnification I may have pursuant to the Employment Agreement,
any written indemnification agreement with the Company to which I
am a party or beneficiary, the charter, bylaws, or operating
agreements of the Company, or under any applicable law or Company
policy, including but not limited to Directors and Officers
Liability Insurance policies, employment practice liability
insurance policies, other insurance policies, and/or Company
policies; (d) any claims for benefits under any directors’
and officers’ liability policy maintained by the Company or
its subsidiaries or affiliated companies in accordance with the
terms of such policy, (e) any rights or claims under any employee
benefit or compensation plan or program in which I participate or
participated (or was eligible to participate), (f) any rights or
claims to unemployment compensation, (g) reimbursement for business
expenses which are consistent with the Company’s
reimbursement policy, and (h) my rights under COBRA. I hereby
represent and warrant that, other than the Excluded Claims, I am
not aware of any claims I have or might have against any of the
Released Parties that are not included in the Released
Claims.
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Notwithstanding any other provision
of this Agreement, the release of claims against individual
employees, stockholders, agents and attorneys is limited to claims
arising out of or in any way related to my employment with
Company.
I
expressly waive and relinquish any and all rights and benefits
under any applicable law or statute providing, in substance, that a
general release does not extend to claims which a party does not
know or suspect to exist in his or his favor at the time of
executing the release, which if known by him or his would have
materially affected the terms of such release.
I
acknowledge that, among other rights, I am waiving and releasing
any rights I may have under ADEA, that this Release and Waiver is
knowing and voluntary, and that the consideration given for this
Release and Waiver is in addition to anything of value to which I
was already entitled as an executive of the Company. If I am 40
years of age or older upon execution of this Release and Waiver, I
further acknowledge that I have been advised, as required by the
Older Workers Benefit Protection Act, that: (a) the release and
waiver granted herein does not relate to claims under the ADEA
which may arise after this Release and Waiver is executed; (b) I
should consult with an attorney prior to executing this Release and
Waiver; and (c) I have twenty-one (21) days from the date of
termination of my employment with the Company in which to consider
this Release and Waiver (although I may choose voluntarily to
execute this Release and Waiver earlier); (d) I have seven (7) days
following the execution of this Release and Waiver to revoke my
consent to this Release and Waiver; and (e) this Release and Waiver
shall not be effective until the seven (7) day revocation period
has expired without my having previously revoked this Release and
Waiver.
I
acknowledge that I must not use or disclose any confidential or
proprietary information of the Company and I must immediately
return all Company property and documents (including all
embodiments of proprietary information) and all copies thereof in
my possession or control except I may retain documents relating to
my compensation and/or benefits. I understand and agree that my
right to the severance pay I am receiving in exchange for my
agreement to the terms of this Release and Waiver is contingent
upon my continued compliance with my Proprietary Information and
Inventions Agreement.
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This
Release and Waiver constitutes the complete, final and exclusive
embodiment of the entire agreement between the Company and me with
regard to the subject matter hereof. I am not relying on any
promise or representation by the Company that is not expressly
stated herein. This Release and Waiver may only be modified by a
writing signed by both me and a duly authorized officer of the
Company.
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Date: _________________________
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By:
_________________________
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Xxxxx
Xxxxxxxx
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By:
_________________________
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Name: Thijs
Xxxxx
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Its: President and
CEO
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Dated:
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