Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT,
is made as of the Start Date (as defined below), by and between BIONIK LABORATORIES CORP., a Delaware corporation (hereinafter
referred to as the “Company”), and Tim McCarthy (hereinafter referred to as the “Employee”).
RECITALS
WHEREAS, the Company,
directly or through its subsidiaries, is engaged in the business of medical device research, development and production; and
WHEREAS, the Company
and the Employee have agreed to enter into an employment relationship upon the terms and subject to the conditions hereinafter
set forth.
NOW THEREFORE, in consideration
of the mutual covenants and promises herein contained and other good and valuable consideration, the parties agree as follows:
ARTICLE
1 – EMPLOYMENT AND DUTIES
1.1
Appointment. Subject to the terms and conditions of this Agreement, the Company hereby agrees to employ the employee, and
the Employee hereby accepts employment, in the position of Chief Commercialization Officer of the Company (the “Position”),
effective on the first day of employment with the Company (the “Start Date”); provided that this Agreement shall not
be binding on the Company until the Employee gives official notice of resignation to his previous employer and informs the Company
of such resignation and the proposed Start Date.
1.2
Term. The Employee shall be employed until terminated pursuant to the termination provisions set out in Article 4 and Article
5 of this Agreement and to any amendments as may from time to time be agreed to in writing by the Employee and the Company (the
“Term”).
1.3
Reporting and Duties. The Employee shall report to the Chief Executive Officer of the Company. The Employee shall be responsible
for the preparation and implementation of the commercialization strategy for the Company and each of the Company’s existing
and planned products from time to time, support any and all partnering efforts associated with the Company’s existing and
planned products, and perform all of the normal and customary duties, responsibilities and authorities customarily accorded to,
and expected of the Position, including those duties, responsibilities and authorities as may be reasonably designated by the Chief
Executive Officer of the Company or the Board from time to time (collectively, the “Duties”). Services performed pursuant
to this Agreement shall be performed at the Company’s U.S. headquarters in Boston, Massachusetts, or such place(s) as shall
be mutually agreeable to the Company and Employee. The Employee understands and agrees that the Position requires travel to the
Company’s chief executive offices in Toronto, Canada from time to time, as well as other destinations, to fulfill the Duties.
The Employee agrees to comply with all applicable policies and rules of Company.
During the Term, the Employee shall faithfully
and honestly serve the Company and devote no less than full-time service to the business and affairs of the Company or, where applicable,
any subsidiary or other affiliate of the Company (individually a “Subsidiary” and collectively, the “Subsidiaries”),
including the Employee’s role in the Position and the Duties. The Employee shall use his best efforts to promote the interests
of the Company and its Subsidiaries. Notwithstanding the foregoing or anything else to the contrary herein, nothing in this Agreement
shall preclude the Employee from:
(a)
engaging in charitable, education, communal or recreational activities; or
(b)
engaging in another business enterprise as a passive investor; provided that in no event shall the Employee own more than
4.9% of any other business enterprise and further provided that no such business enterprise shall be a competitor of the Company
or its Subsidiaries.
However, the engagements described in 1.3(a)
– (b) above shall only be permissible so long as they do not result in a contravention of Article 3 hereof, or impair the
ability of the Employee to discharge his duties to the Company hereunder.
In addition, the Employee shall truly and
faithfully account for and deliver to the Company and its Subsidiaries, all money, securities and things of value belonging to
the Company or the Subsidiaries which the Employee may from time to time receive for, from or on account of the Company or the
Subsidiaries.
ARTICLE
2 – COMPENSATION
2.1
Base Salary. The Employee will receive an annual base salary of Two Hundred Sixty Thousand Dollars ($260,000), payable in
accordance with the Company’s standard payroll practices in effect from time to time, and subject to applicable statutory
deductions and withholding required by law (“Base Salary”). The Employee’s Base Salary will be reviewed on an
annual basis to determine potential increases, if any, based on the Employee’s performance and that of the Company.
2.2
Incentive Compensation. The Employee will be entitled to participate in the Company’s 2014 Equity Incentive Plan (the
“Plan”) based on the terms of the Plan. Subject to the immediately following sentence, the Employee shall be granted
incentive options to purchase an aggregate of 750,000 shares of the Company’s common stock, at an exercise price per share
equal to the fair market value of the Company’s common stock on the date of grant, and which shall vest equally over a three
(3) year period commencing one year from the date of grant and in the two subsequent years on the anniversary of the grant date.
The granting of any options or other equity compensation is conditional on the written approval of the Board, subject to stockholder
approval to increase the number of shares authorized for grant under the Plan (expected by the Company to be in the third quarter
of 2016), and the Company reserves the right to alter, amend, replace or discontinue the Plan or any other plan at any time, with
or without notice to the Employee.
2.3
Bonus. The Employee may be entitled to earn an annual bonus of up to 50% of Base Salary, payable based on performance in
the previous fiscal year (“Bonus”). The Bonus will be determined based on the achievement of the Employee’s objectives
that will be agreed to with the Board for each particular fiscal year (the “Achievements”), and paid to Employee within
the earlier of 90 days after the close of each fiscal year and the completion of the company audit. The Achievements for the partial
fiscal year ended March 31, 2017 shall be determined in good faith and agreed to in writing by the Employee and the Company within
14 days after the date of this Agreement.
2.4
Benefits. The Employee shall be entitled to participate in all of the Company’s (or applicable Subsidiary’s)
benefit plans generally available to its employees from time to time in accordance with the terms thereof. The Employee’s
participation in such plans shall become fully effective as of the commencement of his employment hereunder pursuant to the terms
of such plans. The Company reserves the right to alter, amend, replace or discontinue the benefit plans it makes available to its
employees at any time, with or without notice. Notwithstanding the preceding sentence, Company will pay eighty-five (85%) percent
of Employee’s agreed to cost for health, dental, life, and disability insurance coverage’s so long as Employee is employed.
2.5
Vacation. The Employee shall be entitled to four (4) weeks of paid vacation per calendar year. Such vacation shall be taken
at a time or times acceptable to the Company. The Employee shall be allowed to carry forward any unused vacation into the next
calendar year for up to one (1) month.
2.6
Expense Reimbursement. The Employee shall be reimbursed for all reasonable expenses actually and properly incurred by him
in connection with the performance of his duties hereunder. The Employee shall submit to the Company written, itemized expense
accounts, together with supporting invoices, acceptable to the Company and such other additional substantiation and justification
as the Company may reasonably request within sixty (60) days after the expenses have been incurred.
ARTICLE
3 – COVENANTS
3.1
No Restrictions on Employee’s Employment. The Employee acknowledges and affirms that he is not a party to any agreement
or understanding that would conflict or interfere with, or prevent or limit him from being employed by or perform services for
the Company.
3.2
Confidential Information. The Employee hereby acknowledges that, by reason of his employment with the Company, he has and
will acquire information about matters and things which are confidential to the Company and/or the Subsidiaries (the “Confidential
Information”), and which Confidential Information is the exclusive property of the Company and/or the Subsidiaries, respectively.
The Confidential Information includes, without limitation, information concerning the Company’s and the Subsidiaries’
strategic plans, product research and development plans, details and results, trade secrets, supplier lists, data, work product
developed by or for the Company or the Subsidiaries, and all other data and information concerning the business and affairs of
the Company and the Subsidiaries. Notwithstanding anything to the contrary contained herein, for the purposes hereof, Confidential
Information shall not include:
(a)
information that is generally available to and known by the public at the time of disclosure to the Employee, provided that
such disclosure is through no direct or indirect fault of the Employee or person(s) acting on the Employee's behalf; or
(b)
information which the Employee is required to disclose pursuant to applicable law, policies or due processes of applicable
regulatory bodies or legal or regulatory proceedings; provided that the Employee provides the Company with prompt notice of same
and assists the Company in seeking to prevent or limit such requirement.
The Employee agrees that during the Term
and at all times thereafter, he shall not for any reason (except in the performance of his responsibilities for the Company) directly
or indirectly, (i) use for his own benefit or for the benefit of others, (ii) disseminate, publish or disclose, or (iii) authorize
or permit the use, dissemination or disclosure by any person, firm or entity, any Confidential Information without the express
written consent of the Board. Upon termination of the Employee’s employment or this Agreement, or at any time at the request
of the Company for any reason, the Employee agrees to return to the Company (or, in the case of electronic items, permanently delete)
all documents, records, storage, data, samples, and other property of the Company and its Subsidiaries, together with all copies
thereof which contain or incorporate any Confidential Information.
3.3
Intellectual Property, Inventions and Patents. As part of the consideration for this Agreement and for his employment by
the Company, subject to the provisions of this Agreement, the Employee hereby assigns to the Company, as and when same arise, his
entire right, title and interest, including all intellectual property rights and trade secret rights, in and to any and all work
product that is conceived, created, developed or otherwise generated by the Employee from time to time that relates to the business
of the Company or the Subsidiaries, including but not limited to all inventions, research, designs, trade secrets, improvements,
plans, specifications and documentation (collectively, “Work Product”), all of which shall be deemed a work for hire
for the Company under the U.S. Copyright Act to the fullest extent permitted under the law. The Employee further agrees that he
will promptly, fully disclose to the Company all such Work Product and will, at any time from the date hereof, including during
and after his employment with the Company, at the Company’s expense, render to the Company or the Subsidiaries such cooperation
and assistance as the Company or the Subsidiaries may deem advisable in order to obtain copyright, patent, trademark or industrial
design registrations as the case may be on, or otherwise vest, perfect or defend the Company’s or the Subsidiaries’
rights with respect to, any or all Work Product. Such cooperation and assistance shall include, but is not limited to, the execution
of any and all applications for copyright, patent, trademark or industrial design registrations, assignments of copyrights and
other instruments in writing which the Company and the Subsidiaries may deem necessary or desirable. The Employee hereby irrevocably
waives all of his moral rights in the Work Product in favor of the Company and its Subsidiaries and their respective successors,
assignees and licensees.
The Employee shall take all precautions
to maintain and protect the legal rights of the Company and its Subsidiaries in the Work Product, and to maintain the confidentiality
of trade secrets included in the Work Product in accordance with Section 3.1 hereof. For certainty, no license to the Work Product
is granted to the Employee, except to the extent required for the performance of his responsibilities under this Agreement.
The Employee irrevocably appoints any other
officer of the Company or the Subsidiaries from time to time to be his attorney, with full power of substitution, to do on the
behalf of the Employee anything that the Employee can lawfully do by an attorney to do all acts and things in relation to ownership
of the Work Product which the Company or the Subsidiaries shall deem desirable, and to do, sign and execute all documents, conveyances,
deeds, assignments, transfers, assurances and other instruments which may reasonably be necessary or desirable for the purpose
of registering, vesting, perfecting; defending, assigning or otherwise dealing with the Work Product. Such power of attorney is
given for valuable consideration acknowledged by the Employee to be coupled with an interest, shall not be revoked by the bankruptcy
or insolvency of the Company or the Subsidiaries, and may be exercised by the officers of any successor or assign of the Company
or the Subsidiaries.
The Employee hereby covenants that the
Work Product will not violate or infringe any intellectual property rights of any third party or constitute an unauthorized use
of confidential or proprietary information of any third party.
All of the aforesaid covenants in this
Section shall be binding on the assigns, executors, administrators and other legal representatives of the Employee.
3.4
Non-Solicitation of Employees. The Employee shall not, during the period from the date hereof to that date which is one
(1) year following the termination of this Agreement or the Employee’s employment, for any reason, directly or indirectly,
hire any employees or consultants of the Company or Subsidiaries, or induce or attempt to induce, solicit or attempt to solicit,
any of the employees or consultants of the Company or Subsidiaries to leave their employment or engagement with the Company.
3.5
Non-Solicitation of Customers and Suppliers. The Employee shall not, during the period from the date hereof to that date
which is one (1) year following the termination of this Agreement or the termination of the Employee’s employment, for any
reason, directly or indirectly, without the prior written consent of the Company, solicit or attempt to solicit any customers of
the Company or the Subsidiaries with whom the Employee had contact or material knowledge of, for the purpose of selling to those
customers any products or services which are the same as or substantially similar to or in any way competitive with the products
or services sold by the Company or the Subsidiaries at the time of termination of this Agreement. The Employee shall not, during
the period from the date hereof to that date which is one (1) year following the termination of this Agreement or the termination
of the Employee’s employment, for any reason, directly or indirectly, without the prior written consent of the Company, solicit
or attempt to solicit any suppliers of the Company or the Subsidiaries with whom the Employee had contact with or material knowledge
of, for the purpose of diverting or attempting to divert business away from the Company or the Subsidiaries.
3.6
Non-Competition. The Employee shall not, at any time during the period from the date hereof to that date which is one (1)
year following the date of termination of this Agreement or the Employee’s employment, engage in the commercialization of
medical devices similar to those, or devices that are in any way competitive with the products or services, developed, being developed,
commercialized and/or sold by the Company or the Subsidiaries during the term of this Agreement and at the time of the termination
of this Agreement (“Competitive Activity”). The Employee may not engage in such Competitive Activity either individually
or in partnership or jointly or in conjunction with any person as principal, agent, employee, consultant, shareholder (other than
a holding of shares listed on a United States stock exchange that does not exceed five percent (5%) of the outstanding shares so
listed) or in any other manner whatsoever, nor shall the Employee lend money to, guarantee the debts or obligations of or permit
his name or any part thereof to be used or employed by any person engaged in a similar business to the Company or the Subsidiaries.
The Company shall have the option to elect whether to enforce this Section 3.6. If the Company elects to enforce this Section 3.6,
it shall continue to pay the Employee’s base salary (at the rate at which it was paying the Employee’s base salary
on the date of termination) for as long as it wishes to enforce this Section 3.6, up to one (1) year following termination of employment.
The Company’s payment obligation pursuant to this Section 3.6 shall apply regardless of the circumstances or reasons leading
to the termination of the Employee’s employment. If the Company fails to continue the Employee’s base salary pursuant
to the terms of this Section 3.6, the Employee’s restrictions set forth in this Section 3.6 shall be void thereafter.
3.7
Disparaging Comments. The Employee agrees not to make critical, negative or disparaging remarks about the Company or its
management, business or employment practices; provided that nothing in this paragraph shall be deemed to prevent the Employee from
responding fully and accurately to any question, inquiry or request for information when required by applicable law or legal process,
or to enforce this Agreement. The Company agrees to direct its officers and directors not to make critical, negative or disparaging
remarks about the Employee; provided that nothing in this paragraph shall be deemed to prevent the Company or its officers or directors
from responding fully and accurately to any question, inquiry or request for information when required by applicable law or legal
process, or to enforce this Agreement.
3.8
Acknowledgement, Waiver and Enforcement. The Employee confirms that the restrictions contained in this Article 3 are reasonable
and valid to protect the legitimate business interests of the Company and the Subsidiaries, including its business plans and marketing
and commercialization strategies. The Employee hereby agrees and acknowledges that it would be extremely difficult to measure the
damages that might result from any breach of any of the covenants of the Employee contained herein and that any breach of any of
the covenants of the Employee might result in irreparable injury to the business for which monetary damages could not adequately
compensate. If a breach of any of the covenants of the Employee occurs, the Company shall be entitled, in addition to any other
rights or remedies the Company may have at law or in equity, to have an injunction issued by any competent court (without the need
to post a bond) enjoining and restricting the Employee and all other parties involved therein from continuing such breach.
3.9
Notwithstanding anything to the contrary herein, if any applicable law or governmental entity shall reduce the time period
or scope during which the Employee shall be prohibited from engaging in any competitive or soliciting activity described in this
Article 3, the period of time or scope, as the case may be, for which the Employee shall be prohibited shall be reduced to the
maximum time or scope permitted by law.
3.10
Survival and Enforceability. It is expressly agreed by the parties hereto that the provisions of this Article 3 shall survive
the termination of this Agreement and the Employee’s employment.
ARTICLE
4 – DEATH; DISABILITY
4.1
Death. If the Employee dies while employed under this Agreement, this Agreement shall terminate immediately and the Company
shall pay to the Employee’s estate, any earned Base Salary, accrued vacation, if any, that is unpaid up to the date of his
death.
4.2
Termination by Disability. The Company may terminate this Agreement as a result of any mental or physical disability or
illness which results in (a) the Employee being unable to substantially perform his duties for a continuous period of 150 days
or for periods aggregating 180 days within any period of 365 days or (b) the Employee being subject to a permanent or indefinite
inability to perform essential functions based on the opinion of a qualified medical provider chosen by the Company. Termination
will be effective on the date designated by the Company, and the Employee will be paid his annual Base Salary, accrued vacation,
if any, and benefits as set out in Section 2.4 through the date of termination.
ARTICLE
5 – TERMINATION OF EMPLOYMENT
5.1
Termination by Company for Cause. The Company may terminate this Agreement for cause at any time without any prior notice.
The Employee will be provided with any unpaid, earned Base Salary incurred up to the date of termination. For the purposes of this
Agreement, “cause” shall mean:
(a)
a material breach by the Employee of the terms of this Agreement;
(b)
a conviction of or plea of guilty or nolo contendere to any felony or any other crime involving dishonesty or moral turpitude;
(c)
the commission of any act of fraud or dishonesty, or theft of or intentional damage to the property of the Company;
(d)
willful or intentional breach of the Employee’s fiduciary duties to the Company;
(e)
the violation of a material policy of the Company as in effect from time to time; or
(f)
any act or conduct that would constitute cause at common law.
5.2
Termination by Company for Other than Cause. The Company may terminate this Agreement and the Employee’s employment,
for any reason without cause and provided that the Employee executes a general release to be provided to the Company in form and
substance acceptable to the Company, the Company shall pay to the Employee an amount equal to six (6) months’ salary and
benefits (the “Severance”) plus accrued vacation and pro-rata bonus, if any.
5.3
Termination by Employee. The Employee may terminate this Agreement and his employment at any time, for any reason, provided
that the Employee provides the Company with thirty (60) days’ prior written notice. The Employee agrees to use his best effort
to assist the Company to complete an effective reallocation of his responsibilities upon the giving of such notice. In case of
Good Reason (as defined below), the Company shall pay to the Employee: (i) the Severance; (ii) accrued vacation time if any; provided
that the Company shall not be required to pay the Severance in the event the Company elects to enforce Section 3.6, and continues
paying Employee’s salary pursuant to Section 3.6 in an amount no less than the Severance amount. For purposes of this Employment
Agreement, “Good Reason” shall mean:
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(1)
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A material diminution in the Employee's base compensation.
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(2)
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A material diminution in the Employee's authority, duties, or responsibilities.
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(3)
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Any other action or inaction that constitutes a material breach by the Company of this Employment
Agreement.
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For Good Reason to exist, the Employee
must provide notice to the Company of the existence of any of the foregoing conditions within ninety (90) days of the initial existence
of the condition, and the Company shall upon such notice have a period of forty-five (45) days during which it may remedy the condition
(and upon such remedy Good Reason shall be deemed not to have existed).
5.4
Limitation of Liability. The Employee acknowledges, understands and agrees that the payments and other benefits provided
for in this Article 5 represent the Company’s maximum termination and severance obligations to the Employee. No other notice
or severance entitlements shall apply. This provision shall remain in full force and effect unamended, notwithstanding any other
alterations to the terms and conditions of the Employee’s employment, unless agreed to by the Company in writing. The Employee
also acknowledges, understands and agrees that any such payment by the Company to the Employee on termination of the Employee’s
employment shall not prevent the Company from alleging cause for the termination.
5.5
Effect of Termination. Upon any termination of this Agreement, the Employee shall immediately deliver or cause to be delivered
to the Company all Confidential Information and Company property which are in the possession, charge, control or custody of the
Employee.
ARTICLE
6 – GENERAL
6.1
Release.
Upon any termination of this Agreement or the Employee’s employment, the Employee agrees to release the Company, the Subsidiaries,
and all officers, directors and employees of the Company or the Subsidiaries from all actions, causes of action, claims or demands
as a result of such termination, except as otherwise expressly provided in this Agreement. Upon compliance with the applicable
termination provisions of this Agreement by the Company, the Employee agrees to deliver to the Company a full and final written
release of and from all actions or claims in connection with this Agreement and the Employee’s employment in favor of the
Company, the Subsidiaries, and their directors, officers and employees in a form to be provided by the Company.
6.2
Recitals. The parties agree that the Recitals set out herein are true and accurate and shall form part of this Agreement.
6.3
Headings. The division of this Agreement into articles and sections and the insertion of headings are for the convenience
of reference only and shall not affect the construction or interpretation of this Agreement.
6.4
Assignment. This Agreement shall be personal as to the Employee and shall not be assignable by the Employee subject to the
terms herein. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators and legal personal
representatives of the Employee and the successors and assigns of the Company. The Company may assign this Agreement, in its sole
discretion, to any corporate affiliate or Subsidiary of the Company.
6.5
Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter
hereof and cancels and supersedes any prior understandings and agreements between the parties hereto with respect thereto, whether
verbal or in writing. There are no other written or verbal representations, warranties, terms, conditions, undertakings or collateral
agreements, express, implied or statutory between the parties.
6.6
Amendments. No amendment to this Agreement shall be valid or binding unless set forth in writing and duly executed by both
of the parties hereto. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach by any party.
6.7
Severability.
If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability
shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof shall
continue in full force and effect.
6.8
Further Acts. The parties shall do all such further acts and things and provide all such assurances and deliver all such
documents in writing as may be required, from time to time in order to fully carry out the terms, provisions and intent of this
Agreement.
6.9
Notice. Any demand, notice or other communication to be given in connection with this Agreement shall be given in writing
by personal delivery, electronic delivery or by registered mail addressed to the recipient as follows:
Bionik Laboratories Corp.
483 Bay Street, N105
Toronto, Ontario M5G 2C9
Telephone: (416) 640-7887
Email: pb@bioniklabs.com
Tim McCarthy
At the most recent address on
file with the Company
Email: timothyamccarthy@yahoo.com
or such other address or number as may
be designated by either party to the other in accordance herewith. Any notice given by personal delivery will be conclusively deemed
to have been given on the day of actual delivery of the notice and, if given by registered mail, on the third day, other than a
Saturday, Sunday or statutory holiday in Ontario, Canada or the Commonwealth of Massachusetts, following the deposit of the notice
in the mail. If the party giving any notice knows or ought reasonably to know of any difficulties with the postal system that might
affect the delivery of mail, any such notice may not be mailed but must be given by personal delivery. In the case of electronic
delivery, on the same day that it was sent if sent on a business day and the acknowledgement of receipt is received by the sender
before 5:00 p.m. (in the place of receipt) on such day, and otherwise on the first business day thereafter.
6.10
Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.
Each of the parties hereto agrees that any action or proceeding related to this Agreement must be brought in any court of competent
jurisdiction in the Commonwealth of Massachusetts, and for that purpose hereby submits to the jurisdiction of such Massachusetts
court.
6.11
Section 409A. This Agreement is intended to comply with or be exempt from Section 409A of the Code and will be interpreted,
administered and operated in a manner consistent with that intent. Notwithstanding anything herein to the contrary, if at the time
of the Employee’s separation from service with the Company he is a “specified employee” as defined in Section
409A of the Code (and the regulations thereunder) and any payments or benefits otherwise payable hereunder as a result of such
separation from service are subject to Section 409A of the Code, then the Company will defer the commencement of the payment of
any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the
Employee) until the date that is six months following the Employee’s separation from service with the Company (or the earliest
date as is permitted under Section 409A of the Code), and the Company will pay any such delayed amounts in a lump sum at such time.
If any other payments of money or other benefits due to the Employee hereunder could cause the application of an accelerated or
additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment
or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured,
to the extent possible, in a manner, determined by the Company, that does not cause such an accelerated or additional tax. To the
extent any reimbursements or in-kind benefits due to the Employee under this Agreement constitute “deferred compensation”
under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to the Employee in a manner consistent
with Treas. Reg. Section 1.409A-3(i)(1)(iv). Each payment made under this Agreement shall be designated as a “separate payment”
within the meaning of Section 409A of the Code. References to “termination of employment” and similar terms used in
this Agreement are intended to refer to “separation from service” within the meaning of Section 409A of the Code to
the extent necessary to comply with Section 409A of the Code. Whenever a payment under this Agreement may be paid within a specified
period, the actual date of payment within the specified period shall be within the sole discretion of the Company. In no event
may the Employee, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. Any provision
in this Agreement providing for any right of offset or set-off by the Company shall not permit any offset or set-off against payments
of “non-qualified deferred compensation” for purposes of Section 409A of the Code or other amounts or payments to the
extent that such offset or set-off would result in any violation of Section 409A or adverse tax consequences to the Employee under
Section 409A.
6.12
Independent
Legal Advice. The Employee acknowledges that he has been advised to seek independent legal counsel in respect of the Agreement
and the matters contemplated herein. To the extent that he declines to receive independent legal counsel in respect of the Agreement,
he waives the right, should a dispute later develop, to rely on his lack of independent legal counsel to avoid his obligations,
to seek indulgences from the Company or to otherwise attack the integrity of the Agreement and the provisions thereof, in whole
or in part.
[Remainder
of Page Intentionally Left Blank; Signature Page Follows]
IN WITNESS WHEREOF
this Agreement has been executed by the parties hereto as of the date first written above.
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BIONIK LABORATORIES CORP.
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By:
/s/ Peter Bloch
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Name: Peter Bloch
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Title: CEO
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/s/ Tim McCarthy
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NAME: Tim McCarthy
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Exhibit 99.1
Bionik Laboratories Appoints Timothy
A. McCarthy as Chief Commercialization Officer and Expands Commercial Team
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Experienced commercial leader in medical and healthcare technology
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Top-producing and results-oriented leader with 20+ years of accomplishments
in developing commercial strategies, building world class global organizations and growing multimillion-dollar revenues
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Additional key appointments for expansion of sales representatives
named to launch commercial strategy
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TORONTO and BOSTON – August 8,
2016 –
Bionik Laboratories Corp.
(OTCQX: BNKL) (“Bionik” or the “Company”), a global pioneering
robotics company focused on providing rehabilitation solutions to individuals with neurological disorders, announced today that
it has appointed Timothy A. McCarthy to its Management team as Chief Commercialization Officer. Mr. McCarthy is a well-established
and successful commercial leader in medical and healthcare technology. The Company also announced the addition of Steven L. Brown
and Jon C. King to its newly formed global commercialization team.
Peter Bloch, Chief Executive Officer
and Chairman of the Board
, stated, “We are delighted to have Tim join the Bionik team. As a renowned expert in commercialization
and with the experience he brings, we look forward to driving forward a strong commercial engine, the number one priority for
our growth strategy. This key strategic appointment is another step for Bionik in positioning the Company as a leader in the robotics
medical technology and device space and propels us closer to bringing more effective rehabilitation solutions to those with neurological
disorders by utilizing innovative technologies and robotics.”
Timothy A. McCarthy joins the Bionik team
having recently served as the Chief Executive Officer of Medical Compression Systems, Inc., a medical device company specializing
in compression therapy to prevent DVT and improve wound healing for joint replacement patients. He was recruited as the top executive
at MCS to lead a commercial stabilization and turnaround effort in order to prepare the company for an M&A process seeking
a strategic partner. Prior to that, Mr. McCarthy served as the President and CEO of iWALK, Inc. (now known as BionX Medical Technologies),
a venture backed medical robotics company commercializing the Massachusetts Institute of Technology (“MIT”) invented
BiOM System, the world’s first and only actively powered lower limb bionic prosthesis to normalize gait. While at iWALK,
Inc. Mr. McCarthy was responsible for leading the final product development and commercial sales strategy that led to the successful
establishment of a long-term market foothold for this new category of healthcare technology products. In addition, Mr. McCarthy
served at Össur Americas as Vice President of Sales and Marketing, where he was promoted to the top commercial executive and
leader of a sales and marketing restructuring and growth effort, resulting in above budget attainment each year and 4.5x revenue
growth during his nine year tenure. Mr. McCarthy also held sales leadership roles at the Chattanooga Group, Inc. (now known as
DJO Global). Over the course of his career Mr. McCarthy has proven to be instrumental in the expansion of public, private and startup
healthcare technology and medical device companies.
“Robotic rehabilitation is an emerging
market that represents a vast and growing opportunity,” commented Mr. McCarthy. “The Bionik team and their range of
robotic rehabilitation systems show incredible promise in the robotic rehabilitation market and ultimately beyond in the home setting.
I am confident that the InMotion Systems and ARKE have the potential to provide incredible opportunities for effective therapy
for a range of individuals suffering from neurological disorders. I look forward to leading the Company’s commercial efforts
and further advancing Bionik in this potentially fast growing market to its next stage of growth.”
Mr. McCarthy graduated
cum laude
from Northeastern University with a Bachelor of Science in Business Administration and received his Master of Business Administration
from the University of California in Los Angeles.
Bionik also appointed to its commercialization
team two key sales executives, Steven L. Brown and Jon C. King.
Steven L. Brown has over 35 years of significant
contributions in key roles with industry leaders in the field of Rehabilitation and Sports Medicine. Previous to joining the Bionik
team, Mr. Brown served as the National Business Development Manager at Bioness, Inc. Over the course of his career, Mr. Brown has
a diversified and proven management record in sales, marketing, product management, strategic planning and commercialization.
Jon C. King is a domestic and international
business development executive with over 25 years of experience in the field of Physical Medicine and Rehabilitation. Prior to
joining the Bionik team, Mr. King served as the Business Development Manager, Western Region and Director of International Business
Development at Bioness, Inc. Mr. King has a proven history of increasing sales revenue and maintaining customer relationships on
both a national and international level.
“We are also
pleased to welcome Steven Brown and Jon King to our commercialization team. As we continue to advance Bionik and execute on our
business strategy, we believe these key appointments play an integral part in our ability to do so. We are excited to have attracted
these individuals and continue to focus our efforts on building a premier and innovative robotics company achieving success globally,”
concluded Mr. Bloch.
About Bionik Laboratories
Bionik Laboratories
(OTCQX: BNKL), is a global, pioneering robotics company focused on providing rehabilitation solutions to individuals with neurological
disorders. The Company has a portfolio of products focused on upper and lower extremity rehabilitation for stroke and paraplegic
patients, including three products on the market and three products in varying stages of development. The InMotion Systems - the
InMotion ARM™, InMotionWrist™, InMotion Hand™ and InMotion Ankle™, are designed to provide intelligent,
patient-adaptive therapy in a manner that has been clinically verified to maximize neuro-recovery. Bionik is also developing a
lower-body exoskeleton, ARKE™, designed to allow paraplegics as well as other wheelchair users the ability to rehabilitate
through walking. ARKE is expected to be designed to continually adapt to a patient’s ability and provide real time feedback
to the physiotherapist through the use of Bionik’s proprietary data collection and analytics cloud network through its partnership
with IBM.
For more information,
please visit
www.bioniklabs.com
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Forward-Looking Statements
Any statements contained in this press
release that do not describe historical facts may constitute forward-looking statements. Forward-looking statements may include,
without limitation, statements regarding (i) the plans and objectives of management for future operations, including plans or objectives
relating to the design, development and commercialization of human exoskeletons and other rehabilitation products, (ii) a projection
of income (including income/loss), earnings (including earnings/loss) per share, capital expenditures, dividends, capital structure
or other financial items, (iii) the Company’s future financial performance, (iv) the successful integration of IMT with Bionik,
(v) the successful integration of the Company’s new commercialization team and (vi) the assumptions underlying or relating
to any statement described in points (i), (ii), (iii), (iv) or (v) above. Such forward-looking statements are not meant to predict
or guarantee actual results, performance, events or circumstances and may not be realized because they are based upon the Company’s
current projections, plans, objectives, beliefs, expectations, estimates and assumptions and are subject to a number of risks and
uncertainties and other influences, many of which the Company has no control over. Actual results and the timing of certain events
and circumstances may differ materially from those described by the forward-looking statements as a result of these risks and uncertainties.
Factors that may influence or contribute to the inaccuracy of the forward-looking statements or cause actual results to differ
materially from expected or desired results may include, without limitation, the Company’s inability to obtain additional financing,
the significant length of time and resources associated with the development of our products and related insufficient cash flows
and resulting illiquidity, the Company’s inability to expand the Company’s business, significant government regulation of medical
devices and the healthcare industry, lack of product diversification, volatility in the price of the Company’s raw materials, and
the Company’s failure to implement the Company’s business plans or strategies. These and other factors are identified and described
in more detail in the Company’s filings with the SEC. The Company does not undertake to update these forward-looking statements.
Bionik Laboratories, Inc. Investor and Media Contact:
Jenene Thomas
Jenene Thomas Communications, LLC
(908) 996-0239
jenene@jenenethomascommunications.com
SOURCE: Bionik Laboratories Corp.
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