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 28, 2015

 

IMMUNE PHARMACEUTICALS INC.

 

(Exact name of registrant as specified in its charter)

 

     
Delaware 001-36602 52-1841431

(State or other jurisdiction

of incorporation)

(Commission

File Number)

(IRS Employer

Identification No.)

 

     
430 East 29 th Street, Suite 940, New York, NY 10016
(Address of principal executive offices) (Zip Code)

 

Registrant’s telephone number, including area code:   (646) 440-9310

 

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 ( see General Instruction A.2. below):

 

¨ 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))

       

 

 

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

(c), (e)

 

On December 31, 2015, Immune Pharmaceuticals Inc. (the “Company”), appointed Mr. John Militello as its Vice President of Finance, Controller and Chief Accounting Officer, effective January 1, 2016. Mr. Militello will also serve as the Company’s Principal Financial Officer.

 

Pursuant to an employment agreement, dated as of December 31, 2015, (the “Employment Agreement”), entered into between the Company and Mr. Militello, Mr. Militello will be entitled to receive an annual base salary of $220,000. In addition, Mr. Militello will be awarded on December 31, 2015, options to purchase an aggregate of 125,000 shares of the Company’s common stock, par value $0.0001 per share, at an exercise price equal to the closing price of the Company’s common stock on the grant date, as reported by The NASDAQ Capital Market, which will vest annually over a three-year period, commencing on the first anniversary of the grant date, subject to the Company’s 2015 Equity Incentive Plan (the “Plan”) and subject to acceleration in the event of (i) a change of control; or (ii) termination by the Company without Cause. Furthermore, Mr. Militello will be eligible to receive, subject to the Company’s board of directors’ approval, an annual incentive award, contingent upon his achievement of goals mutually agreed upon by Mr. Militello and the Company, of up to $77,000 for each calendar year of his term of employment, which may be granted in cash or in equity equivalent. In addition, Mr. Militello will be eligible to participate in all employee benefits plans available to senior executives of the Company.

 

The Employment Agreement will remain in effect until terminated by the Company with or without Cause, by Mr. Militello for Good Reason or for any reason or upon Mr. Militello’s death or disability. In the event that the Employment Agreement is terminated by the Company without Cause, Mr. Militello will be entitled to receive payment in the amount of three months of his base salary, or six months of his base salary in the event of his termination upon a change of control. In connection with his entry into the Employment Agreement, Mr. Militello additionally entered into a standard Non-Disclosure and Non-Competition Agreement with the Company.

 

“Cause” is defined in the Employment Agreement as Mr. Militello’s (i) failure to substantially perform the duties of his position for a period of at least fifteen calendar days following Company’s written notice of such failure; (ii) engagement in conduct that is demonstrably and materially injurious to the Company; (iii) action in a manner which constitutes gross negligence or willful misconduct with respect to his duties to the Company; (iv) misappropriation of corporate assets or corporate opportunities; (v) commission of a felony, or a misdemeanor involving moral turpitude (including the entry of a plea of nolo contendre ); (vi) engagement in theft, embezzlement, self-dealing, or an act which causes material damage to the Company and/or any of its related corporate entities, officers or directors, or (vii) material violation of the Employment Agreement or that certain Non-Disclosure and Non-Competition Agreement that was signed by Mr. Militello in connection with his entry into the Employment Agreement. “Good Reason” is defined in the Employment Agreement as (i) a material change to Mr. Militello’s role at the Company which was not agreed upon by him; (ii) material breach by the Company or any of its affiliated corporate entities of their material obligations to Mr. Militello; or (iii) failure of the Company to obtain the assumption in writing of its obligations under the Employment Agreement by any successor to all or substantially all of its business or assets within fifteen days after any merger, sale, liquidation or dissolution of the Company, in each case absent Mr. Militello’s consent.

 

The foregoing description of the Employment Agreement does not purport to be complete and is qualified in its entirety by reference to the Employment Agreement, which is filed hereto as Exhibit 10.1 and is incorporated herein by reference.

 

Mr. Militello, age 42, joined the Company’s in April 2015 as its Executive Director of Finance and Corporate Controller. Prior to that, Mr. Militello was an Assistant Controller with Retrophin, Inc. (NASDAQ GM: RTRX), a San Diego based biotech company, and the Manager, External Reporting & Compliance at Volt Information Sciences, Inc. (NYSE MKT: VISI), a publicly traded staffing company. Prior to Volt Information Sciences, Inc., Mr. Militello was a Senior Manager with BDO USA, LLP serving multi-national SEC registrants. Mr. Militello is a Certified Public Accountant and earned his Bachelor of Science degree in Accounting from St. Joseph’s College.

 

There is no family relationship between Mr. Militello and any director, executive officer, or person nominated or chosen by the Company to become a director or executive officer. In addition, there are no transactions between the Company and Mr. Militello, or any member of Mr. Militello’s immediate family, of the type set forth in Item 404(a) of Regulation S-K, other than the compensation received by Mr. Militello for his prior position with the Company.

 

 

 

 

(b), (e)

 

Effective December 31, 2015, Mr. Gad Berdugo resigned from his positions as Chief Financial Officer, Executive Vice President, Finance and Administration, and Secretary of the Company to pursue other projects. The Company thanks Mr. Berdugo for his services.

 

In connection with Mr. Berdugo’s resignation, the Company and Mr. Berdugo entered into a Release and Consulting Agreement (the “Consulting Agreement”) dated as of December 28, 2015.

 

Pursuant to the terms of the Consulting Agreement, Mr. Berdugo will provide financial and strategic consulting services to the Company from January 1, 2016 through June 30, 2016. In consideration for Mr. Berdugo’s services as a consultant, the Company has agreed to provide Mr. Berdugo with a monthly fee in the amount of $25,000 throughout the term of the Consulting Agreement. In addition, options to purchase 123,333 shares of the Company’s common stock held by Mr. Berdugo shall be accelerated to vest upon the effective date of the Consulting Agreement (the “Effective Date”), and the period of time in which Mr. Berdugo must exercise the options shall not exceed six months following the Effective Date and options to purchase 246,667 shares of common stock that were scheduled to vest after January 2016, will be forfeited as of December 31, 2015.

 

Additionally, as part of the Consulting Agreement, the Company and Mr. Berdugo have agreed to general releases of claims and to certain confidentiality provisions and mutual non-disparagement provisions. Mr. Berdugo has agreed to abide by a “standstill” relating to the sale of the Company’s voting securities until the Company’s Annual Report on Form 10-K for the period ending December 31, 2015 has been filed with the Securities and Exchange Commission.

 

The foregoing summary of the Consulting Agreement does not purport to be complete and is qualified in its entirety by reference to the Consulting Agreement, which is filed hereto as Exhibit 10.2 and is incorporated herein by reference.

 

Item 9.01 Financial Statements and Exhibits.

 

  (d) Exhibits

 

Exhibit No.   Description
     
10.1   Employment Agreement, by and between Immune Pharmaceuticals Inc. and John Militello, dated as of December 31, 2015.  

10.2

 

  Release and Consulting Agreement, by and between Immune Pharmaceuticals Inc. and Gad Berdugo, dated as of December 28, 2015.  
     

 

 

 

 

SIGNATURE

 

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

 

  IMMUNE PHARMACEUTICALS INC.  
Date:  December 31, 2015 By: /s/ Daniel G. Teper  
  Name: Daniel G. Teper  
  Title: Chief Executive Officer  

  

 

 

 

 

Exhibit 10.1

 

December 31, 2015

 

To : John Militello

430 East 29th Street,

Suite 940

New York, NY 10016

 

Dear John,

 

We are pleased to offer you a position with Immune Pharmaceuticals Inc. (“Immune Pharmaceuticals” or the “Company”) in accordance with the terms and subject to the conditions specified herein below:

 

1. Position and Duties:

You will function as the Vice President of Finance, Controller, and Chief Accounting Officer, and will perform all duties as determined necessary by the Chief Executive Officer (the “CEO” or, your “Supervisor”). This is a full-time position for which you agree to devote 100% of your working hours. You will work primarily from Company’s New York office, but periodically may be required to travel domestically and internationally in accordance with Company’s business needs. It is understood that you may engage in charitable activities and community affairs, provided that these activities do not materially interfere with the proper performance of your duties and responsibilities to Company, or create a conflict of interest.

 

2. Term :

The term of your employment commenced on April 27, 2015 as amended December 31, 2015 and the terms of this agreement constitute your amended and restated employment agreement. The term of your employment shall continue, unless terminated by either you or Company as set forth in Section 7 below (all periods of your employment with the Company under this employment agreement, the “Term”). Please note that neither this employment agreement nor any other oral or written representations constitute a contract of employment with Company for any guaranteed specific period of time, and that Company shall have the discretion to determine whether or not you will be required to continue to perform your regular duties and/or report to work during any relevant notice period.

 

3. Compensation:

Your annual base salary shall be $220,000; less required and authorized deductions (the “Base Salary”), with such Base Salary paid to you on a prorated semi-monthly basis in accordance with Company’s regular payroll practices. It is agreed that during the Term your Base Salary shall not be decreased at any time without your prior written consent. As you know, your position is classified as exempt for purposes of federal wage-hour law and therefore you are not entitled to overtime pay.

 

In addition to the Base Salary, you will have the opportunity to earn additional compensation via an Incentive Plan, attached to this letter agreement as Schedule A, as amended from time to time.

 

4. Paid Time Off and Benefits:

You will be eligible to participate in all employee benefit plans, programs and arrangements, and all fringe benefits and perquisites that are made available to senior executives of Immune Pharmaceuticals, including but not limited to health insurance coverage in accordance with the terms of the Immune Pharmaceuticals health insurance plan.

 

You are entitled to take 21 days of paid time off per calendar year (prorated, for partial years of employment), in addition to Company-designated holidays, in each case, in accordance with Company policy and in coordination with your Supervisor. Please note that you shall be permitted to carryover up to 5 days from one calendar year to the next, and shall forfeit any accrued but unused vacation days above such amount. Upon your termination of employment for any reason you shall be entitled to payment for a maximum of 15 accrued but unused days.

 

  1

 

 

In accordance with Company policy, you are entitled to reimbursement for those expenses reasonably incurred by you in connection with your employment duties, upon your submission of an expense report to the CEO of Company, provided that such expense report is in form and in substance satisfactory to Company, and is submitted within thirty days of your incurring such expenses and provided further that such expenses are in line with the Company’s expense policy, as may be amended from time to time.

 

5. Company Property :

During the Term, Immune Pharmaceuticals may provide you with the benefit of using Company property, such as a laptop and/or cell phone. Your use of such Company property must be in accordance with Company guidelines, and you are obligated to return any such property to Company upon its request, and in any case upon the termination of your employment for any reason.

 

6. Confidentiality :

Your continued employment is dependent upon your signing and complying with the terms of the Non-Disclosure and Non-Competition Agreement (“NDNC”) attached to this letter agreement as Schedule B.

 

7. Termination :

You employment may be terminated at any time as follows:

 

(a) Termination upon Death or Disability . The Term shall automatically end upon your death or Disability. For purposes of this letter agreement, “Disability” shall be defined as your failure to perform your regular duties on account of a physical or mental illness for a period of thirty consecutive workdays, or forty-five days in any six-month period.

 

(b) Termination for Cause . At any time, Company has the right to immediately terminate your employment for Cause. For purposes of this letter agreement, “Cause” shall be defined as your (i) failure to substantially perform the duties of your position for a period of at least fifteen calendar days following Company’s written notice of such failure; (ii) engaging in conduct, which in Company’s sole discretion, is demonstrably and materially injurious to Company, and which does not cease immediately following your receipt of written notice from Company specifying the nature of such conduct; (iii) acting in a manner which constitutes gross negligence or willful misconduct with respect to your duties to Company; (iv) misappropriating corporate assets or corporate opportunities, or any other acts of dishonesty or breach of fiduciary obligations to Immune Pharmaceuticals or its affiliated corporate entities; (v) committing a felony, or a misdemeanor involving moral turpitude (including the entry of a plea of nolo contendre ); (vi) engaging in theft, embezzlement, self-dealing, or an act which causes material damage to Company and/or any of its related corporate entities, officers or directors, or (vii) materially violating this Agreement or your signed Non-Disclosure Non-Competition Agreement (“NDNC”).

 

(c) Termination for Good Reason . You shall be entitled to terminate your employment with Company for "Good Reason," which shall be defined as a: (i) material change to your role at Company which was not agreed upon with you; (ii) material breach by Company or any of its affiliated corporate entities of their material obligations to you; or (iii) failure of Company to obtain the assumption in writing of its obligations under this letter agreement by any successor to all or substantially all of its business or assets within fifteen days after any merger, sale, liquidation or dissolution of Company, in each case absent your consent. In order to qualify as a termination for Good Reason, you must give written notice to the Board of Company within fourteen calendar days of the occurrence of one of the above events, and Company must fail to cure within thirty calendar days of receiving such notice from you.

 

(d) Termination without Cause. Your employment may be terminated by Company without Cause upon written notice from Company to you. Upon such termination, you shall be entitled to three months Base Salary, upon your signing of a release in form and in substance satisfactory to Company. In the event of a termination without Cause, Company shall in its discretion determine based on its business needs, the appropriate notice period and whether or not you will be obligated to report to work during such notice period. Upon termination for a change of control you will be entitled to six months base salary.

 

  2

 

 

(e) Termination by you . Your employment may be terminated by you for any reason at any time upon four weeks’ written notice from you to Company. In the event of such termination, Company shall have the right to determine whether or not you will be obligated to report to work during such notice period.

 

(f) Notice of Termination . In the event of a termination of your employment for any reason, written notice of such termination must be given by one party to the other via certified or registered mail, email, fax, or by hand, and such notice shall be deemed to have been received three days after mailing, twenty-four hours after sending an email or fax, or immediately upon confirmation of receipt.

 

(g) Transition . Regardless of the circumstances surrounding your termination of employment, it is agreed that upon such termination, you will return to Company all Company property and will make every effort to facilitate the orderly transition of your duties and responsibilities.

 

8. Dispute Resolution :

In the event of a dispute between you and Company arising out of or related to your employment with Immune Pharmaceuticals (with the exception of disputes arising under the NDNC), it is agreed that any such dispute shall be settled by means of arbitration administered under New York law by the American Arbitration Association (“AAA”) located in the State of New York and conducted in accordance with the AAA’s Employment Rules. In such arbitration, the arbitrator (i) shall not amend or modify the terms of this letter agreement or of any Company policy, and (ii) shall render a decision within ten business days from the closing statements or submission of post-hearing briefs by the parties. The arbitration award shall be final and binding, and any state or federal court shall have jurisdiction to enter a judgment on such award. This requirement to arbitrate disputes shall apply to all claims and demands, including, without limitation, any rights you may assert under any federal, state, or local laws or regulations applicable to your employment with Company.

 

9. Section 409A of the Internal Revenue Code of 1986, as amended :

The intent with respect to any and all payments and benefits under this letter agreement (including Schedule A), is that such payments and benefits either: (i) do not constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Internal Revenue Code (“Section 409A”), and therefore are exempt from Section 409A, or (ii) are subject to a “substantial risk of forfeiture” and are exempt from Section 409A under the “short−term deferral rule” set forth in Treasury Regulation §1.409A−1(b)(4). In any event, it is confirmed that the intent is to have all provisions of this letter agreement (including Schedule A) construed, interpreted and administered in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A.

 

During your employment with Company, you will be expected to abide by all Company policies, as established from time to time. Please note that the terms of your employment, as well as your post-employment obligations, will be governed by such Company policies, the NDNC, and the terms of this letter agreement, which supersedes any prior agreements, whether oral or written, between you and Company. In addition, all matters related to your relationship with Company shall be governed by New York law.

 

To signify your agreement with the terms of employment as set forth in this letter agreement, please sign below where indicated, and send a copy of the signed letter agreement (including signed Schedule B) to . Please note that the terms of this letter agreement may be amended only via a writing signed by both you and an officer of Company.

 

We are confident in your ability to continue to contribute to Company's growth and success, and are happy to continue to have you as a valuable member of the Immune Pharmaceuticals team.

 

  3

 

 

  Sincerely,
   
  IMMUNE PHARMACEUTICALS INC.
   
   
  By: /s/ Daniel Teper
  Name: Daniel Teper
  Title: CEO

  

Acknowledged and Accepted by: /s/ John Militello  
     John Militello  

  

Date: December 31, 2015

 

  4

 

  

SCHEDULE A

 

Incentive Plan :

 

1. Equity

 

You shall be entitled to receive an option to purchase 125,000 shares of common stock of the Corporation, par value $0.0001 each (the “Shares”), under the Immune Pharmaceuticals Inc. 2015 Equity Incentive Plan (the “Plan”), vesting over a period of three (3) years, commencing on the date of grant, whereby 33.33% of the Shares shall vest on the first year anniversary from the date of grant (the “Anniversary”), and the remainder 66.66% of the Shares shall vest in equal portions at the end of each three months period, over the course of a two (2) years period commencing on the Anniversary, subject to the full acceleration of any and all unvested options in the event of a Change of Control.

 

2. Bonus :

 

You are eligible for an annual incentive award for each calendar year of the Term, upon your achievement of mutually agreed upon goals, of an annual bonus of up to 35% of your base salary or $77,000, which may be granted in cash or in equity equivalent (with such equivalent to be determined as of the date of the equity grant). The Board or any designated compensation committee shall have the sole discretion to determine whether you have met the mutually agreed upon goals set of goals, and the amount of such incentive award to be granted to you. The incentive award shall be paid to you in accordance with Company's annual incentive award payment practices and schedule for senior executives of the Company. Please note that in order to receive such incentive award, you must be employed by Company, without notice of any termination having been given, on the date that such incentive award is scheduled to be paid.

 

  5

 

 

 

Exhibit 10.2

 

[Company Letterhead]

 

December 28th, 2015

 

Personal and Confidential

 

Gad Berdugo

[ADDRESS]

 

Dear Gad:

 

This letter will confirm the following terms in connection with your separation of employment from Immune Pharmaceuticals Inc. (the “ Company ”) and the commencement of your consulting services to the Company. The Company and you agree that this letter (this “ Agreement ”) represents the full and complete agreement concerning your termination of employment with the Company and the terms of your consulting services to the Company.

 

1.                   Consulting Term. You will resign from the Company effective December 31, 2015 (the “ Separation Date ”). Commencing on January 1, 2016 and continuing until June 30, 2016, unless terminated earlier by the Company pursuant to Paragraph 6 (the “ Term ”), you will provide strategic financial (non-operational) consulting services to the Company (the “ Services ”). The Company acknowledges and agrees that the Services will not require you to have access to material non-public information of the Company and will not require you to provide more than fifty (50) hours of Services per month of the Term, based on your reasonable availability. Notwithstanding the foregoing, providing Services for less than fifty (50) hours per month will not constitute a material breach under Paragraph 6 of this Agreement.

 

2.                   Fees and Other Related Matters. As compensation for the Services during the Term, the Company will pay you a monthly fee (the “ Fee ”) in the amount of $25,000.00. The Fee will be paid in two equal monthly payments: the first payment in the amount of $12,500.00 will be paid on the 1 st day of each month and the second payment in the amount of $12,500.00 will be paid on the 15 th day of each month. The Company will issue to you a Form 1099 on or before January 31 of the tax year following the Term for any Fee paid to you for the Services. You shall be responsible for the payment of all local, state, federal and foreign taxes resulting from the payment of any Fees. In addition, you agree to indemnify and hold harmless the Company from and against any and all claims, liabilities, suits and penalties for any amounts assessed by or due to any federal, state or local government with respect to such Fees, if any.

 

3.                   Options. Pursuant to the terms of the Stock Option Agreement (“Option Agreement”) dated as of January 22, 2015, the unvested portion of the options (the “ Options ”) to purchase 370,000 shares of Company Stock will be forfeited as of the Separation Date and the vested portion will continue to subsist in accordance with the Option Agreement and the Company’s Amended and Restated 2005 Equity Incentive Plan (the “ Plan ”). Notwithstanding the foregoing, provided you execute and do not revoke this Agreement, (i) 123,333 shares covered by the Option Agreement shall vest as of the Effective Date (“Vested Options”), and (ii) the period of time in which you must exercise the Vested Options shall not exceed six (6) months after the Effective Date.

 

 

 

 

4.                   Post-Employment Restrictions. You acknowledge and agree that you will continue to abide by and comply with the covenants set forth the Non-Disclosure and Non-Competition Agreement dated January 21, 2015 (the “ NDA ”) which continue in effect in accordance with their terms following termination of your employment. Provided you execute and do not revoke this Agreement, the Company will waive your obligations under Section 4(a) upon the Effective Date of this Agreement.

 

5.                   Trading Restrictions. You will not transfer or attempt to transfer any of the shares of Common Stock of the Company owned by you or owned by you in the future as a result of your exercise of the Options until after the Company’s Form 10-K for the period ending December 31, 2015 has been filed on or about March 15, 2015 and in any case within the SEC limit for such a filing.

 

6.                   Termination. The Company may terminate this Agreement on contemporaneous written notice to you only upon material breach of the terms of this Agreement or the NDA. A “Material Breach” shall only exist if the Company provided you with written notice of the breach event and you fail to correct such breach event within thirty (30) days following your receipt of such notice, and upon cure thereof by you to the reasonable satisfaction of the Company, such event shall no longer constitute a Material breach for purposes of this Agreement.

 

7.                   Your Release. In consideration for the payments, benefits and other promises and covenants set forth herein, you voluntarily, knowingly and willingly release and forever discharge the Company, its subsidiaries, affiliates and parents, together with each of those entities’ respective officers, directors, shareholders, employees, agents, fiduciaries and administrators (collectively, the “ Releasees ”) from any and all claims and rights of any nature whatsoever which you now have or in the future may have against them, whether known or unknown, suspected or unsuspected. This release includes, but is not limited to, any rights or claims relating in any way to your employment relationship with the Company or any of the other Releasees or the termination thereof, any contract claims (express or implied, written or oral), or any rights or claims under any statute, including, without limitation, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers’ Benefit Protection Act, the Rehabilitation Act of 1973 (including Section 504 thereof), Title VII of the 1964 Civil Rights Act, the Civil Rights Act of 1866 (42 U.S.C. § 1981), the Civil Rights Act of 1991, the Equal Pay Act, the National Labor Relations Act, the Worker Adjustment and Retraining Notification Act, the New York State Human Rights Law, the New York City Human Rights Law, the Employee Retirement Income Security Act of 1974, the Family Medical Leave Act, the Lilly Ledbetter Fair Pay Act, and the Genetic Information Non-Discrimination Act, all as amended, and any other federal, state or local law. This release specifically includes, but is not limited to, any claims based upon the right to the payment of wages, bonuses, equity awards, incentive and performance compensation, vacation, pension benefits, 401(k) Plan benefits, stock benefits or any other employee benefits, or any other rights arising under federal, state or local laws prohibiting discrimination and/or harassment on the basis of race, color, age, religion, sexual orientation, religious creed, sex, national origin, ancestry, alienage, citizenship, nationality, mental or physical disability, denial of family and medical care leave, medical condition (including cancer and genetic characteristics), marital status, military status, gender identity, harassment or any other basis prohibited by law. Notwithstanding the foregoing, this release expressly excludes (i) your rights, if any, under any director or officer liability insurance that covered you; (ii) your right to enforce the terms of this Agreement; (iii) your right to file an administrative charge or complaint with the Equal Opportunity employment Commission, although you waive any right to monetary relief related to such a charge or administrative complaint; (iv) any right to indemnification for acts or omissions as officer or employee to which you were entitled as of the Separation Date under any agreement, contract, governing documents or applicable law; (v) any equity rights pursuant to the Option Agreement; (vi) any claims arising out of acts occurring after your execution of this Agreement; and (vii) any claims that cannot be waived as a matter of law.

 

 

 

 

8.                   The Company’s Release. The Company hereby releases you from any and all claims and rights of any nature whatsoever which it now has or in the future may have against you, whether known or unknown, suspected or unsuspected. Notwithstanding the foregoing, the Company’s release of you does not include a release of any claims against you arising out of or relating to fraud, embezzlement, securities violations, or criminal conduct.

 

9.                   No Claims Filed. As a condition of the Company entering into this Agreement, you further represent that you have not filed against the Company or any of the other Releasees, any complaints, claims or lawsuits with any court, administrative agency or arbitral tribunal prior to the date hereof, and that you have not transferred to any other person any such complaints, claims or lawsuits. You understand that by signing this Agreement, you waive your right to any monetary recovery in connection with a local, state or federal governmental agency proceeding and you waive your right to file a claim seeking monetary damages in any court, administrative agency or arbitral tribunal. This Agreement does not: (i) prohibit or restrict you from communicating, providing relevant information to or otherwise cooperating with the U.S. Equal Employment Opportunity Commission or any other governmental authority with responsibility for the administration of fair employment practices laws regarding a possible violation of such laws or responding to any inquiry from such authority, including an inquiry about the existence of this Agreement or its underlying facts, or (ii) require you to notify the Company of such communications or inquiry.

 

10.               No Admission of Wrongdoing. By entering into this Agreement, neither you nor the Company nor any of the Company’s officers, agents or employees, admit any wrongdoing or violation of any law.

 

11.               Confidentiality. You and the Company agree that the terms of this Agreement are CONFIDENTIAL. You and the Company agree not to tell anyone about this Agreement and not to disclose any information contained in this Agreement to anyone, other than to your or the Company’s lawyers or financial advisors or your immediate family members, in each case to the extent necessary to administer this Agreement, to enforce this Agreement, or to respond to a valid subpoena or other legal process; provided that any such disclosure by you to your lawyers, financial advisors or immediate family members shall be conditioned on your first informing such persons that they must keep this Agreement and its contents confidential.

 

 

 

 

12.               Return of Company Property. You shall within 10 business days of the signature of this agreement return all Company property, documents and confidential information in your possession or under your control, that is in electronic, written or other tangible form (together with all duplicates thereof) and you agree not to retain any such Company property, documents or confidential information or any copies thereof.

 

13.               No Negative Statements. You agree not to make, or cause to be made, any negative or disparaging statements about, or to intentionally do anything that damages, the Company, any of the other Releasees, or the services, reputation, financial status or business relationships of any of the foregoing. The Company will direct its officers and directors not to make, or cause to be made, any negative or disparaging statements about, or to intentionally do anything that damages your business reputation. Nothing in this paragraph will preclude any party from making truthful statements pursuant to legal process or in connection with any government inquiry.

 

14.               Non-Exclusivity. The Company acknowledges that you may provide similar services to other organizations that may be competitive with the Company (“Competitive Services”). You will use commercially reasonable efforts to advise the Company of any such potential conflicts, and you shall abide by the terms of the NDA, as set forth in Section 4 of this Agreement, throughout your provision of any Competitive Services.

 

15.               Breach of this Agreement. You and the Company promise to abide by the terms and conditions in this Agreement, and you and the Company understand that if you or the Company breach the Agreement, the non-breaching party shall be entitled to attorneys’ fees and any other damages incurred due to such breach, except that this provision will not apply if you or the Company file a lawsuit challenging the validity of this Agreement.

 

16.               Severability. If at any time, after the date of the execution of this Agreement any court or administrative agency finds that any provision of this Agreement is illegal, void, or unenforceable, that provision will no longer have any force and effect. However, the provision’s illegality or unenforceability will not impair the enforceability of any other provision of this Agreement.

 

17.               Changes to the Agreement. This Agreement may not be changed unless the changes are in writing and signed by you and an authorized representative of the Company.

 

18.               Entire Agreement. This Agreement (together with the NDA) constitutes the entire agreement between you and the Company and supersedes all other agreements between you and the Company, except this Agreement shall not relieve you of any contractual or common law obligations you have to the Company or any of its affiliates that by their nature are intended to survive the termination of your employment with the Company, including, without limitation, to maintain the Company’s confidential, proprietary and trade secret information as confidential and not to use such information for your benefit or the benefit of any third party. You confirm that in signing this Agreement you have not relied on any warranty, representation, assurance, or promise of any kind whatsoever other than as expressly set out in this Agreement.

 

19.               Waiver. By signing this Agreement, you acknowledge that:

 

 

 

 

(i) You have carefully read and understand this Agreement;

 

(ii) The Company advised you to consult with an attorney and/or any other advisors of your choice before signing this Agreement;

 

(iii) You have been given twenty-one (21) days to consider your rights and obligations under this Agreement and to consult with an attorney about both;

 

(iv) You understand that this Agreement is LEGALLY BINDING and by signing it you give up certain rights;

 

(v) You have voluntarily chosen to enter into this Agreement and have not been forced or pressured in any way to sign it;

 

(vi) You acknowledge and agree that the payments, benefits, promises and covenants set forth in this Agreement are contingent on execution of this Agreement, which releases all of your claims against the Company and the Releasees, and you KNOWINGLY AND VOLUNTARILY AGREE TO RELEASE the Company and the Releasees from any and all claims you may have, known or unknown, in exchange for the benefits you have obtained by signing, and that these benefits are in addition to any benefit you would have otherwise received if you did not sign this Agreement;

 

(vii) You have seven (7) days after you sign this Agreement to revoke it by notifying the Company in writing. The Agreement will not become effective or enforceable until the seven (7) day revocation period has expired;

 

(viii) This Agreement includes a WAIVER OF ALL RIGHTS AND CLAIMS you may have under the Age Discrimination in Employment Act of 1967 (29 U.S.C. §621 et seq .); and

 

(ix) This Agreement does not waive any rights or claims that may arise after this Agreement becomes effective, which is seven (7) days after you sign it, provided that you do not exercise your right to revoke this Agreement (the 8 th day after you sign it, provided you have not exercised your right to revoke it, is the “ Effective Date ”). If you exercise your right to revoke this Agreement, you will not be entitled to any payments or benefits under this Agreement.

 

 

 

 

20.               Return of Signed Agreement. If you are signing electronically, you should return an original signed Agreement to the company on or before the date that is a week from the date hereof.

 

Sincerely,

 

/s/ Daniel Teper  
Daniel Teper  
Chief Executive Officer  
Immune Pharmaceuticals Inc.  
   
Read, Accepted and Agreed to:  
   
/s/ Gad Berdugo  
Gad Berdugo  
   
December 27 th , 2015  
Date