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 26, 2017
ELOXX PHARMACEUTICALS, INC.
(Exact name of registrant as specified in
its charter)
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Delaware
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001-31326
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84-1368850
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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950 Winter Street, Waltham, MA
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02451
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including
area code: (781) 557-5300
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:
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Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange Act.
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Item 5.02
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Departure of Directors of Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
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On December 26, 2017, the Board of Directors (the “Board”)
of Eloxx Pharmaceuticals, Inc. (the “Company”) appointed Robert E. Ward to serve as Chief Executive Officer of
the Company, effective as of December 26, 2017. In connection with his appointment, Mr. Ward was elected as Chairman of the
Board effective as of December 26, 2017. Mr. Ward succeeds Dr. Silvia Noiman as Chief Executive Officer of the Company and
Dr. Robert Heft as Chairman of the Board. Dr. Noiman and Dr. Heft each stepped down from their respective positions effective as
of December 26, 2017. Dr. Noiman will continue her service as a member of the Board. Dr. Heft has resigned from the Board.
Mr. Ward, age 60, served as the Chief Executive Officer and President
at Radius Health, Inc. from December 16, 2013 to July 16, 2017. Prior to joining Radius, Mr. Ward was Vice President for Strategy
and External Alliances for the New Opportunities iMed of AstraZeneca from 2011 to 2013. He has held a series of progressive management
and executive roles with established companies such as NPS Pharmaceuticals, Schering-Plough (Merck), Pharmacia (Pfizer), Bristol-Myers
Squibb and Genentech. Mr. Ward has been a Director of Akari Therapeutics, Plc since October 14, 2016. He served as a Director
of Radius Health, Inc. from December 2013 until July 16, 2017. Mr. Ward serves as a Director of the Massachusetts High Technology
Council. Mr. Ward received a B.A. in Biology and a B.S. in Physiological Psychology, both from the University of California,
Santa Barbara, an M.S. in Management from the New Jersey Institute of Technology and an M.A. in Immunology from The Johns Hopkins
University School of Medicine.
Except as described in the employment agreement (the “Employment
Agreement”) entered into by the Company and Mr. Ward, effective December 26, 2017 (the “Effective Date”), there
is no arrangement or understanding between Mr. Ward and any other person pursuant to which Mr. Ward was selected as an officer.
There are no existing or currently proposed transactions to which the Company or any of its subsidiaries is a party and in which
Mr. Ward has a direct or indirect material interest. There are no family relationships between Mr. Ward and any of the directors
or officers of the Company or any of its subsidiaries.
Pursuant to the terms of his Employment Agreement, Mr. Ward will
receive a base salary of $450,000 and is eligible to receive an annual performance-based bonus with a target value equal to fifty
percent (50%) of his base salary (the “Annual Bonus”). Mr. Ward is eligible to participate in the Company’s
benefit programs as made generally available to other senior executives.
Mr. Ward received an inducement award in the form of an option to
purchase 22,427 shares of the Company’s common stock on the Effective Date with an exercise price per share equal to $8.00,
and an award of restricted stock units for 22,427 shares of the Company’s common stock (collectively the “Performance
Option Awards”). Subject to his continued service through the vesting date, Mr. Ward’s Performance Option Awards will
vest and become immediately exercisable upon the date that marks the first successful completion of a Phase-2B study with respect
to any indication.
In addition, Mr. Ward received an inducement award in the form of
an option to purchase 640,785 shares of the Company’s common stock with an exercise price per share equal to $8.00, and an
award of restricted stock units for 640,785 shares of the Company’s common stock (collectively the “Time-Vesting Awards”).
Subject to his continued service through the vesting date, 1/3 of Mr. Ward’s Time-Vesting Awards will vest and become immediately
exercisable on the first anniversary of the Effective Date, with an additional 1/12 of his Time-Vesting Awards vesting on each
quarterly anniversary of the Effective Date, provided that vesting of the Time-Vesting Awards shall be subject to acceleration
following the achievement of certain milestones.
Pursuant to the terms of the Employment Agreement, upon a termination
by the Company without cause or by Mr. Ward for good reason, Mr. Ward will be entitled to (1) continued payments of his base salary
for 18 months, (2) payments for COBRA coverage at applicable rates for 12 months, (3) any Annual Bonus earned but unpaid for the
year immediately prior to his termination date, (4) a pro-rata portion of the Annual Bonus, to which he would otherwise have been
entitled, based on achievement of performance goals as determined by the Board in good faith, (5) accelerated vesting of 25% his
unvested shares subject to all stock options, restricted stock units and other equity awards, and (6) an additional 9 months vesting
credit for any unvested stock options. If Mr. Ward’s employment is terminated by the Company without cause or by Mr. Ward
for good reason within 24 months following a Change in Control (as defined in the Employment Agreement), he will be entitled to
(1) continued payments of his base salary for 24 months, (2) payments for COBRA coverage at applicable rates for 18 months, (3)
any Annual Bonus earned but unpaid for the year immediately prior to his termination date, (4) payment of his full Annual Bonus,
to which he would otherwise have been entitled, (5) accelerated vesting of all of his unvested shares subject to all stock options,
restricted stock units and other equity awards, and (6) an additional 12 months vesting credit for any unvested stock options.
The foregoing descriptions
of the terms of the Employment Agreement do not purport to be a complete description and are qualified in their entirety by reference
to the Employment Agreement filed as Exhibits 10.1 to this Current Report Form 8-K.
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Item 5.03
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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On December 20, 2017, following the consummation of the
previously announced merger of Eloxx Pharmaceuticals Ltd., an Israeli company (“Eloxx”) and Sevion Sub Ltd., an
Israeli company and a wholly-owned subsidiary of the Company (f/k/a Sevion Therapeutics, Inc.), with Eloxx surviving the
merger as a wholly-owned subsidiary of the Company, the bylaws of the Company were amended and restated in their entirety.
A copy of the Amended and Restated Bylaws of the Company is filed
as Exhibit 3.2 to this Current Report on Form 8-K, and is incorporated by reference herein.
On December 27, 2017, the Company issued a press release relating
to the appointment of Mr. Ward as Chairman of the Board and Chief Executive Officer. A copy of the press release is furnished hereto
as Exhibit 99.1 and incorporated by reference herein.
The information in this Item 7.01 of Form 8-K, including the accompanying Exhibit 99.1, shall not be deemed
“filed” for purposes of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”), or otherwise
subject to the liability of such section, nor shall such information be deemed incorporated by reference in any filing under the
Securities Act of 1933 or the Exchange Act, regardless of the general incorporation language of such filing, except as shall be
expressly set forth by specific reference in such filing.
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Item 9.01
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Financial Statements and Exhibits.
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(d) Exhibits
SIGNATURES
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.
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Eloxx Pharmaceuticals, Inc.
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Dated: December 27, 2017
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By:
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/s/ Gregory Weaver
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Gregory Weaver
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Chief Financial Officer
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EXHIBIT INDEX
Exhibit 3.2
Eloxx
Pharmaceuticals, INC.
AMENDED AND RESTATED BYLAWS
SECTION
1 -
STOCKHOLDERS
Section 1.1.
Annual
Meeting
.
An annual meeting of the
stockholders of Eloxx Pharmaceuticals, Inc., a Delaware corporation (the “
Corporation
”), for the election of
directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting
shall be held at the place, if any, within or without the State of Delaware, on the date and at the time that the Board of Directors
of the Corporation (the “
Board of Directors
”) shall each year fix. Unless stated otherwise in the
notice of the annual meeting of the stockholders of the Corporation, such annual meeting shall be at the principal office of the
Corporation.
Section 1.2.
Advance
Notice of Nominations and Proposals of Business
.
(a) Nominations
of persons for election to the Board of Directors and proposals for other business to be transacted by the stockholders at an annual
meeting of stockholders may be made (i) pursuant to the Corporation’s notice with respect to such meeting (or any supplement
thereto), (ii) by or at the direction of the Board of Directors or any committee thereof or (iii) by any stockholder of record
of the Corporation who (A) was a stockholder of record at the time of the giving of the notice contemplated in Section 1.2(b),
(B) is entitled to vote at such meeting and (C) has complied with the notice procedures set forth in this Section 1.2. Subject
to Section 1.2(h) and except as otherwise required by law, clause (iii) of this Section 1.2(a) shall be the exclusive means for
a stockholder to make nominations or propose other business (other than nominations and proposals properly brought pursuant to
applicable provisions of federal law, including the Securities Exchange Act of 1934 (as amended from time to time, the “
Exchange
Act
”) and the rules and regulations of the Securities and Exchange Commission (the “
SEC
”) thereunder),
before an annual meeting of stockholders.
(b) Except
as otherwise required by law, for nominations or proposals to be properly brought before an annual meeting by a stockholder pursuant
to clause (iii) of Section 1.2(a), (i) the stockholder must have given timely notice thereof in writing to the Secretary of the
Corporation with the information contemplated by Section 1.2(c), including, where applicable, delivery to the Corporation
of timely and completed questionnaires as contemplated by Section 1.2(c), and (ii) the business must be a proper matter for stockholder
action under the General Corporation Law of the State of Delaware (the “
DGCL
”). The notice requirements
of this Section 1.2 shall be deemed satisfied by a stockholder with respect to business other than a nomination if the stockholder
has notified the Corporation of his, her or its intention to present a proposal at an annual meeting in compliance with applicable
rules and regulations promulgated under the Exchange Act and such stockholder’s proposal has been included in a proxy statement
prepared by the Corporation to solicit proxies for such annual meeting.
(c) To
be timely for purposes of Section 1.2(b), a stockholder’s notice must be delivered to the Secretary of the Corporation at
the principal executive offices of the Corporation on a date (i) not later than the close of business on the ninetieth (90
th
)
day nor earlier than the close of business on the one hundred twentieth (120
th
) day prior to the anniversary date of
the prior year’s annual meeting or (ii) if there was no annual meeting in the prior year or if the date of the current year’s
annual meeting is more than thirty (30) days before or after the anniversary date of the prior year’s annual meeting, on
or before ten (10) days after the day on which the date of the current year’s annual meeting is first disclosed in a public
announcement. In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence
a new time period for the delivery of such notice. Such notice from a stockholder must state (i) as to each nominee
that the stockholder proposes for election or reelection as a director, (A) all information relating to such nominee that would
be required to be disclosed in solicitations of proxies for the election of such nominee as a director pursuant to Regulation 14A
under the Exchange Act and such nominee’s written consent to serve as a director if elected, and (B) a description of all
direct and indirect compensation and other material monetary arrangements, agreements or understandings during the past three years,
and any other material relationship, if any, between or concerning such stockholder, any Stockholder Associated Person (as defined
below) or any of their respective affiliates or associates, on the one hand, and the proposed nominee or any of his or her affiliates
or associates, on the other hand; (ii) as to each proposal that the stockholder seeks to bring before the meeting, a brief description
of such proposal, the reasons for making the proposal at the meeting, the text of the proposal (including the text of any resolutions
proposed for consideration and in the event that it includes a proposal to amend the bylaws of the Corporation, the language of
the proposed amendment) and any material interest that the stockholder has in the proposal; and (iii) (A) the name and address
of the stockholder giving the notice and the Stockholder Associated Persons, if any, on whose behalf the nomination or proposal
is made, (B) the class (and, if applicable, series) and number of shares of stock of the Corporation that are, directly or indirectly,
owned beneficially or of record by the stockholder or any Stockholder Associated Person, (C) any option, warrant, convertible security,
stock appreciation right or similar instrument, right, agreement, arrangement or understanding with an exercise or conversion privilege
or a settlement payment or mechanism at a price related to any class (or, if applicable, series) of shares of stock of the Corporation
or with a value derived in whole or in part from the value of any class (or, if applicable, series) of shares of stock of the Corporation,
whether or not such instrument, right, agreement, arrangement or understanding shall be subject to settlement in the underlying
class or series of capital stock of the Corporation or otherwise, and any other direct or indirect opportunity to profit or share
in any profit derived from any increase or decrease in the value of shares of stock of the Corporation of the stockholder or any
Stockholder Associated Person (each, a “
Derivative Instrument
”) directly or indirectly owned beneficially or
of record by such stockholder or any Stockholder Associated Person, (D) any proxy, contract, arrangement, understanding or relationship
pursuant to which such stockholder or any Stockholder Associated Person has a right to vote any securities of the Corporation,
(E) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general
or limited partnership in which such stockholder or any Stockholder Associated Person is a general partner or beneficially owns,
directly or indirectly, an interest in a general partner, (F) any performance-related fees (other than an asset-based fee) that
such stockholder or any Stockholder Associated Person is entitled to based on any increase or decrease in the value of the shares
of stock of the Corporation or Derivative Instruments, (G) any other information relating to such stockholder or any Stockholder
Associated Person, if any, required to be disclosed in a proxy statement or other filing required to be made in connection with
solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election contest pursuant
to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations of the SEC thereunder, (H) a representation
that the stockholder is a holder of record of the Corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to propose such business or nomination, (I) a certification as to whether or not the stockholder and
all Stockholder Associated Persons have complied with all applicable federal, state and other legal requirements in connection
with the stockholder’s and each Stockholder Associated Person’s acquisition of shares of capital stock or other securities
of the Corporation and the stockholder’s and each Stockholder Associated Person’s acts or omissions as a stockholder
(or beneficial owner of securities) of the Corporation, and (J) whether the stockholder intends to deliver a proxy statement and
form of proxy to holders of, in the case of a proposal, at least the percentage of the Corporation’s voting shares required
under applicable law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the
Corporation’s voting shares reasonably believed by such stockholder to be sufficient to elect such nominee or nominees or
otherwise to solicit proxies or votes from stockholders in support of such proposal or nomination. For purposes of these
bylaws, a “
Stockholder Associated Person
” with respect to any stockholder means (i) any “affiliate”
or “associate” (as those terms are defined in Rule 12b-2 under the Exchange Act) of such stockholder, (ii) any
beneficial owner of any capital stock or other securities of the Corporation owned of record or beneficially by such stockholder,
(iii) any person directly or indirectly controlling, controlled by or under common control with any such Stockholder Associated
Person referred to in clause (i) or (ii) above and (iv) any person acting in concert in respect of any matter involving the Corporation
or its securities with either such stockholder or any beneficial owner of any capital stock or other securities of the Corporation
owned of record or beneficially by such stockholder. In addition, in order for a nomination to be properly brought before
an annual or special meeting by a stockholder pursuant to clause (iii) of Section 1.2(a), any nominee proposed by a stockholder
shall complete a questionnaire, in a form provided by the Corporation, and deliver a signed copy of such completed questionnaire
to the Corporation within ten (10) days of the date that the Corporation makes available to the stockholder seeking to make such
nomination or such nominee the form of such questionnaire. The Corporation may require any proposed nominee to furnish
such other information as may be reasonably requested by the Corporation to determine the eligibility of the proposed nominee to
serve as an independent director of the Corporation or that could be material to a reasonable stockholder’s understanding
of the independence, or lack thereof, of the nominee. The information required to be included in a notice pursuant to
this Section 1.2(c) shall be provided as of the date of such notice and shall be supplemented by the stockholder not later than
ten (10) days after the record date for the determination of stockholders entitled to notice of the meeting to disclose any
changes to such information as of the record date. The information required to be included in a notice pursuant to this
Section 1.2(c) shall not include any ordinary course business activities of any broker, dealer, commercial bank, trust company
or other nominee who is directed to prepare and submit the notice required by this Section 1.2(c) on behalf of a beneficial owner
of the shares held of record by such broker, dealer, commercial bank, trust company or other nominee and who is not otherwise affiliated
or associated with such beneficial owner.
(d) Subject
to the certificate of incorporation of the Corporation (the “
Certificate of Incorporation
”), Section 1.2(h)
and applicable law, only persons nominated in accordance with procedures stated in this Section 1.2 shall be eligible for election
as and to serve as members of the Board of Directors and the only business that shall be conducted at an annual meeting of stockholders
is the business that has been brought before the meeting in accordance with the procedures set forth in this Section 1.2. The
chairperson of the meeting shall have the power and the duty to determine whether a nomination or any proposal has been made according
to the procedures stated in this Section 1.2 and, if any nomination or proposal does not comply with this Section 1.2, unless otherwise
required by law, the nomination or proposal shall be disregarded.
(e) For
purposes of this Section 1.2, “
public announcement
” means disclosure in a press release reported by the Dow
Jones News Service, Associated Press or a comparable news service or in a document publicly filed or furnished by the Corporation
with the SEC pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(f) Notwithstanding
the foregoing provisions of this Section 1.2, a stockholder shall also comply with applicable requirements of the Exchange Act
and the rules and regulations thereunder with respect to matters set forth in this Section 1.2. Nothing in this Section
1.2 shall affect any rights, if any, of stockholders to request inclusion of nominations or proposals in the Corporation’s
proxy statement pursuant to applicable provisions of federal law, including the Exchange Act.
(g) Notwithstanding
the foregoing provisions of this Section 1.2, unless otherwise required by law, if the stockholder (or a qualified representative
of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination
or proposed business or does not provide the information required by Section 1.2(c), including any required supplement thereto,
such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect
of such vote may have been received by the Corporation. For purposes of this Section 1.2, to be considered a qualified
representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be
authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such
stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(h) All
provisions of this Section 1.2 are subject to, and nothing in this Section 1.2 shall in any way limit the exercise, or the method
or timing of the exercise of, the rights of any person granted by the Corporation to nominate directors, which rights may be exercised
without compliance with the provisions of this Section 1.2.
Section 1.3.
Special
Meetings; Notice
.
Special meetings of the
stockholders of the Corporation may be called only to the extent and in the manner set forth in the Certificate of Incorporation. Notice
of every special meeting of the stockholders of the Corporation shall state the purpose or purposes of such meeting. Except
as otherwise required by law, the business conducted at a special meeting of stockholders of the Corporation shall be limited exclusively
to the business set forth in the Corporation’s notice of meeting, and the individual or group calling such meeting shall
have exclusive authority to determine the business included in such notice.
Section 1.4.
Notice
of Meetings
.
Notice of the place, if
any, date and time of all meetings of stockholders of the Corporation, the record date for determining the stockholders entitled
to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting) and
the means of remote communications, if any, by which stockholders and proxy holders may be deemed present and vote at such meeting,
and, in the case of all special meetings of stockholders, the purpose or purposes of the meeting, shall be given, not less than
ten (10) nor more than sixty (60) days before the date on which such meeting is to be held (unless a different time is specified
by law), to each stockholder entitled to notice of the meeting.
The Corporation may postpone
or cancel any previously called annual or special meeting of stockholders of the Corporation by making a public announcement (as
defined in Section 1.2(e)) of such postponement or cancellation prior to the meeting. When a previously called annual
or special meeting is postponed to another time, date or place, if any, notice of the place (if any), date and time of the postponed
meeting, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record
date for stockholders entitled to notice of the meeting) and the means of remote communications, if any, by which stockholders
and proxy holders may be deemed present and vote at such postponed meeting, shall be given in conformity with this Section 1.4
unless such meeting is postponed to a date that is not more than sixty (60) days after the date that the initial notice of the
meeting was provided in conformity with this Section 1.4.
When a meeting is adjourned
to another time or place, notice need not be given of the adjourned meeting if the time and place, if any, thereof and the means
of remote communication, if any, by which stockholders and proxy holders may be deemed to be present and vote at such adjourned
meeting are announced at the meeting at which the adjournment is taken;
provided
,
however
, that if the adjournment
is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote
at the meeting, or if after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting
the Board of Directors shall fix a new record date for notice of such adjourned meeting in conformity herewith and such notice
shall be given to each stockholder of record entitled to vote at such adjourned meeting as of the record date for notice of such
adjourned meeting. At any adjourned meeting, any business may be transacted that may have been transacted at the original
meeting.
Section 1.5.
Quorum
.
At any meeting of the stockholders,
the holders of shares of stock of the Corporation entitled to cast a majority of the total votes entitled to be cast by the holders
of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, present
in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger
number is required by applicable law or the Certificate of Incorporation. If a separate vote by one or more classes
or series is required, the holders of shares entitled to cast a majority of the total votes entitled to be cast by the holders
of the shares of the class or classes or series, present in person or represented by proxy, shall constitute a quorum entitled
to take action with respect to that vote on that matter. A quorum, once established, shall not be broken by the subsequent
withdrawal of enough votes to leave less than a quorum.
If a quorum shall fail
to attend any meeting, the chairperson of the meeting may adjourn the meeting to another place, if any, date and time. At
any such adjourned meeting at which there is a quorum, any business may be transacted that might have been transacted at the meeting
originally called.
Section 1.6.
Organization
.
The Chairperson of the
Board of Directors or, in his or her absence, the person whom the Board of Directors designates or, in the absence of that person
or the failure of the Board of Directors to designate a person, the Chief Executive Officer of the Corporation or, in his or her
absence, the person chosen by the holders of a majority of the shares of capital stock entitled to vote who are present, in person
or by proxy, shall call to order any meeting of the stockholders of the Corporation and act as chairperson of the meeting. In
the absence of the Secretary or any Assistant Secretary of the Corporation, the secretary of the meeting shall be the person the
chairperson appoints.
Section 1.7.
Conduct
of Business
.
The chairperson of any
meeting of stockholders of the Corporation shall determine the order of business and the rules of procedure for the conduct of
such meeting, including the manner of voting and the conduct of discussion as he or she determines to be in order. The
chairperson shall have the power to adjourn the meeting to another place, if any, date and time. The date and time of
the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at
the meeting. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors,
the chairperson of the meeting shall have the right and authority to convene and (for any or no reason) to adjourn the meeting,
to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairperson, are appropriate
for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors
or prescribed by the chairperson of the meeting, may include the following: (a) the establishment of an agenda or order of business
for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations
on attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted
proxies or such other persons as the chairperson of the meeting shall determine; (d) restrictions on entry to the meeting after
the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or comments by participants. The
chairperson of the meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct
of the meeting, shall, if the facts warrant, determine and declare to the meeting that a nomination or matter of business was not
properly brought before the meeting and if such chairperson should so determine, such chairperson shall so declare to the meeting
and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless
and to the extent determined by the Board of Directors or the chairperson of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
Section 1.8.
Proxies;
Inspectors
.
(a) At
any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument
in writing or by a transmission permitted by applicable law, but no such proxy shall be voted or acted upon after three (3) years
from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable
and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder
may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of
the Corporation a revocation of the proxy or a new proxy bearing a later date.
(b) Prior
to a meeting of the stockholders of the Corporation, the Corporation shall appoint one or more inspectors, who may be employees
of the Corporation, to act at a meeting of stockholders of the Corporation and make a written report thereof. The Corporation
may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of stockholders, the person presiding at the meeting may, and to the extent required by
applicable law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before beginning the discharge
of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according
to the best of his or her ability. The inspectors may appoint or retain other persons or entities to assist the inspectors
in the performance of the duties of inspectors. The inspectors shall have the duties prescribed by applicable law. Unless
otherwise provided by the Board of Directors, the date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting shall be announced at the meeting. No ballot, proxies, votes or any revocation
thereof or change thereto shall be accepted by the inspectors after the closing of the polls unless the Court of Chancery of the
State of Delaware, upon application by a stockholder, shall determine otherwise. In determining the validity and counting
of proxies and ballots cast at any meeting of stockholders, the inspectors may consider such information as is permitted by applicable
law. No person who is a candidate for office at an election may serve as an inspector at such election.
Section 1.9.
Voting
.
Except as otherwise required
by the rules or regulations of any stock exchange applicable to the Corporation, any law or regulation applicable to the Corporation
or the Certificate of Incorporation, all matters other than the election of directors shall be determined by a majority of the
votes cast on the matter affirmatively or negatively. When a quorum is present at any meeting of stockholders, a nominee for director
shall be elected to the Board of Directors if the votes properly cast for such nominee’s election exceed the votes properly
cast against such nominee’s election (with “abstentions” and “broker non-votes” not counted as votes
cast either “for” or “against” any director’s election);
provided
,
however,
that directors
shall be elected by a plurality of the votes properly cast at any meeting of stockholders at which there is a contested election
of directors. An election shall be considered contested if as of the record date of any meeting of stockholders there are more
nominees for election than positions on the Board of Directors to be filled by election at that meeting.
Section 1.10.
Stock
List
.
A complete list of stockholders
of the Corporation entitled to vote at any meeting of stockholders of the Corporation, arranged in alphabetical order for each
class of stock and showing the address of each such stockholder and the number of shares registered in the name of such stockholder,
shall be open to the examination of any such stockholder, for any purpose germane to a meeting of the stockholders of the Corporation,
for a period of at least ten (10) days before the meeting (a) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of the meeting or (b) during ordinary business hours
at the principal place of business of the Corporation;
provided
,
however
, if the record date for determining the
stockholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the stockholders entitled
to vote as of the tenth (10
th
) day before such meeting date. The stock list shall also be open to the examination
of any such stockholder during the entire meeting. The Corporation may look to this list as the sole evidence of the identity of
the stockholders entitled to vote at a meeting and the number of shares held by each stockholder.
SECTION
2 -
BOARD OF DIRECTORS
Section 2.1.
General
Powers and Qualifications of Directors
.
The business and affairs
of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and
authorities that these bylaws expressly confer upon them, the Board of Directors may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by the DGCL or by the Certificate of Incorporation or by these bylaws required
to be exercised or done by the stockholders. Directors need not be stockholders of the Corporation to be qualified for
election or service as a director of the Corporation.
Section 2.2.
Number
of Directors
.
The number of directors
constituting the Board of Directors shall not be fewer than three (3) and not more than fifteen (15), each of whom shall be a
natural person. Subject to the previous sentence and rights of the holders of any series of Preferred Stock to elect directors,
the precise number of directors shall be fixed exclusively pursuant to a resolution adopted by the Board of Directors.
Section 2.3.
Removal;
Resignation
.
The directors of the Corporation
may be removed in accordance with the Certificate of Incorporation and the DGCL. Any director may resign at any time
upon notice given in writing, including by electronic transmission, to the Corporation.
Section 2.4.
Regular
Meetings
.
Regular meetings of the
Board of Directors shall be held at the place, if any, on the date and at the time as shall have been established by the Board
of Directors and publicized among all directors. A notice of a regular meeting, the date of which has been so publicized,
shall not be required.
Section 2.5.
Special
Meetings
.
Special meetings of the
Board of Directors may be called by (a) the Chairperson of the Board of Directors, (b) the Chief Executive Officer of the Corporation
or (c) two or more directors then in office, and shall be held at the place, if any, on the date and at the time as he, she or
they shall fix. Notice of the place, if any, date and time of each special meeting shall be given to each director either
(a) by mailing written notice thereof not less than five days before the meeting, or (b) by telephone, facsimile or other means
of electronic transmission providing notice thereof not less than twenty-four hours before the meeting. Any and all
business may be transacted at a special meeting of the Board of Directors.
Section 2.6.
Quorum
.
At any meeting of the Board
of Directors, a majority of the total number of directors then in office shall constitute a quorum for all purposes. If
a quorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to another place, if any, date or
time, without further notice or waiver thereof.
Section 2.7.
Participation
in Meetings by Conference Telephone or Other Communications Equipment
.
Members of the Board of
Directors, or of any committee thereof, may participate in a meeting of the Board of Directors or committee thereof by means of
conference telephone or other communications equipment by means of which all directors participating in the meeting can hear each
other director, and such participation shall constitute presence in person at the meeting.
Section 2.8.
Conduct
of Business
.
At any meeting of the Board
of Directors, business shall be transacted in the order and manner that the Board of Directors may from time to time determine,
and all matters shall be determined by the vote of a majority of the directors present, provided a quorum is present at the time
such matter is acted upon, except as otherwise provided in the Certificate of Incorporation or these bylaws or required by applicable
law. The Board of Directors or any committee thereof may take action without a meeting if all members thereof consent
thereto in writing or by electronic transmission, and the writing or writings, or electronic transmission or electronic transmissions,
are filed with the minutes of proceedings of the Board of Directors or any committee thereof. Such filing shall be in
paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic
form.
Section 2.9.
Compensation
of Directors
.
The Board of Directors
shall be authorized to fix the compensation of directors. The directors of the Corporation shall be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may be reimbursed a fixed sum for attendance at each meeting
of the Board of Directors, paid an annual retainer or paid other compensation, including equity compensation, as the Board of Directors
determines. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of committees shall have their expenses, if any, of attendance of each meeting of such
committee reimbursed and may be paid compensation for attending committee meetings or being a member of a committee.
SECTION
3 -
COMMITTEES
The Board of Directors
may designate committees of the Board of Directors, with such lawfully delegable powers and duties as it thereby confers, to serve
at the pleasure of the Board of Directors and shall, for those committees, appoint a director or directors to serve as the member
or members, designating, if it desires, other directors as alternate members who may replace any absent or disqualified member
at any meeting of such committee. In the absence or disqualification of any member of any committee and any alternate
member in his or her place, the member or members of the committee present at the meeting and not disqualified from voting, whether
or not he or she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at
the meeting in the place of the absent or disqualified member. All provisions of this Section 3 are subject to, and
nothing in this Section 3 shall in any way limit the exercise, or method or timing of the exercise of, the rights of any person
granted by the Corporation with respect to the existence, duties, composition or conduct of any committee of the Board of Directors.
SECTION
4 -
OFFICERS
Section 4.1.
Generally
.
The officers of the Corporation
shall consist of a President, one or more Vice Presidents, a Secretary, a Treasurer and other officers as may from time to time
be appointed by the Board of Directors. Each officer shall hold office until his or her successor is elected and qualified
or until his or her earlier resignation or removal. Any number of offices may be held by the same person. The
salaries of officers appointed by the Board of Directors shall be fixed from time to time by the Board of Directors or a committee
thereof or by the officers as may be designated by resolution of the Board of Directors.
Section 4.2.
President
.
Unless otherwise determined
by the Board of Directors, the President shall be the Chief Executive Officer of the Corporation. Subject to the provisions
of these bylaws and to the direction of the Board of Directors, he or she shall have the responsibility for the general management
and control of the business and affairs of the Corporation and shall perform all duties and have all powers that are commonly incident
to the office of chief executive or which are delegated to him or her by the Board of Directors. He or she shall have
the power to sign all stock certificates, contracts and other instruments of the Corporation that are authorized and shall have
general supervision and direction of all of the other officers, employees and agents of the Corporation.
Section 4.3.
Vice
Presidents
.
Each Vice President shall
have the powers and duties delegated to him or her by the Board of Directors or the President. One Vice President may
be designated by the Board of Directors to perform the duties and exercise the powers of the President in the event of the President’s
absence or disability.
Section 4.4.
Treasurer
.
The Treasurer shall have
the responsibility for maintaining the financial records of the Corporation. He or she shall make such disbursements
of the funds of the Corporation as are authorized and shall render from time to time an account to the Board of Directors of all
such transactions and of the financial condition of the Corporation. The Treasurer shall also perform other duties as
the Board of Directors may from time to time prescribe.
Section 4.5.
Secretary
.
The Secretary shall issue
all authorized notices for, and shall keep minutes of, all meetings of the stockholders and the Board of Directors. He
or she shall have charge of the corporate books and shall perform other duties as the Board of Directors may from time to time
prescribe.
Section 4.6.
Delegation
of Authority
.
The Board of Directors
may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any provision
hereof.
Section 4.7.
Removal
.
The Board of Directors
may remove any officer of the Corporation at any time, with or without cause, without prejudice to the rights, if any, of such
officer under any contract to which it is a party. Any officer may resign at any time upon written notice to the Corporation,
without prejudice to the rights, if any, of the Corporation under any contract to which such officer is a party. If
any vacancy occurs in any office of the Corporation, the Board of Directors may elect a successor to fill such vacancy for the
remainder of the unexpired term and until a successor shall have been duly chosen and qualified.
Section 4.8.
Action
with Respect to Securities of Other Companies
.
Unless otherwise directed
by the Board of Directors, the President, or any officer of the Corporation authorized by the President, shall have power to vote
and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of stockholders or equityholders of, or with
respect to any action of, stockholders or equityholders of any other entity in which the Corporation may hold securities and otherwise
to exercise any and all rights and powers which the Corporation may possess by reason of its ownership of securities in such other
entity.
SECTION
5 -
STOCK
Section 5.1.
Certificates
of Stock
.
Shares of the capital stock
of the Corporation may be certificated or uncertificated, as provided in the DGCL. Stock certificates shall be signed
by, or in the name of the Corporation by any two authorized officers of the Corporation, certifying the number of shares owned
by such stockholder. Any signatures on a certificate may be by facsimile. Although any officer, transfer
agent or registrar whose manual or facsimile signature is affixed to such a certificate ceases to be such officer, transfer agent
or registrar before such certificate has been issued, it may nevertheless be issued by the Corporation with the same effect as
if such officer, transfer agent or registrar were still such at the date of its issue.
Section 5.2.
Transfers
of Stock
.
Transfers of stock shall
be made only upon the transfer books of the Corporation kept at an office of the Corporation (within or without the State of Delaware)
or by transfer agents designated to transfer shares of the stock of the Corporation.
Section 5.3.
Lost,
Stolen or Destroyed Certificates
.
In the event of the loss,
theft or destruction of any certificate of stock, another may be issued in its place pursuant to regulations as the Board of Directors
may establish concerning proof of the loss, theft or destruction and concerning the giving of a satisfactory bond or indemnity.
Section 5.4.
Regulations
.
The issue, transfer, conversion
and registration of certificates of stock of the Corporation shall be governed by other regulations as the Board of Directors may
establish.
Section 5.5.
Record
Date
.
(a) In order that the Corporation
may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board of Directors
may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall, unless otherwise required by law, not be more than sixty (60) nor less
than ten (10) days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also
be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines,
at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such
determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of business on the day preceding the day on which notice
is given, or, if notice is waived, at the close of business on the day preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting;
provided
,
however
, that the Board of Directors may fix a new record date for determination of stockholders
entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice
of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance
herewith at the adjourned meeting.
(b) In
order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix a record date, which shall not be more than sixty (60) days
prior to such other action. If no such record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
SECTION
6 -
INDEMNIFICATION
Section 6.1.
Indemnification
.
The Corporation shall indemnify,
defend and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended,
any person (an “
Indemnitee
”) who was or is made, or is threatened to be made, a party or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “
Proceeding
”),
by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director of the Corporation
or an officer of the Corporation elected by the Board of Directors or, while a director of the Corporation or an officer of the
Corporation elected by the Board of Directors, is or was serving at the request of the Corporation as a director, officer, employee,
member, trustee or agent of another corporation or of a partnership, joint venture, trust, nonprofit entity or other enterprise
(including service with respect to employee benefit plans) (any such entity, an “
Other Entity
”), against all
liability and loss suffered (including expenses (including attorneys’ fees and expenses), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such Indemnitee in connection with such Proceeding). Notwithstanding
the preceding sentence, the Corporation shall be required to indemnify an Indemnitee in connection with a Proceeding (or part thereof)
commenced by such Indemnitee only if the commencement of such Proceeding (or part thereof) by the Indemnitee was authorized by
the Board of Directors or the Proceeding (or part thereof) relates to the enforcement of the Corporation’s obligations under
this Section 6.1.
Section 6.2.
Advancement
of Expenses
.
The Corporation shall to
the fullest extent permitted by applicable law pay, on an as-incurred basis, all expenses (including attorneys’ fees and
expenses) actually and reasonably incurred by an Indemnitee in defending any proceeding, which may be indemnifiable pursuant to
this Section 6, in advance of its final disposition. Such advancement shall be unconditional, unsecured and interest
free and shall be made without regard to Indemnitee’s ability to repay any expenses advanced;
provided
,
however
,
that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made
only upon receipt of an unsecured undertaking by the Indemnitee to repay all amounts advanced if it should be ultimately determined
that the Indemnitee is not entitled to be indemnified under this Section 6 or otherwise.
Section 6.3.
Claims
.
If a claim for indemnification
(following the final disposition of such proceeding) or advancement of expenses under this Section 6 is not paid in full within
sixty (60) days after a written claim therefor by the Indemnitee has been received by the Corporation, the Indemnitee may file
suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense
of prosecuting such claim to the fullest extent permitted by law. In any such action the Corporation shall have the
burden of proving that the Indemnitee is not entitled to the requested indemnification or advancement of expenses under applicable
law.
Section 6.4.
Insurance
.
The Corporation shall have
the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, trustee, employee, member
or agent of the Corporation, or was serving at the request of the Corporation as a director, officer, trustee, employee, member
or agent of an Other Entity, against any liability asserted against the person and incurred by the person in any such capacity,
or arising out of his or her status as such, whether or not the Corporation would have the power or the obligation to indemnify
such person against such liability under the provisions of this Section 6 or the DGCL.
Section 6.5.
Non-Exclusivity
of Rights; Other Indemnification
.
The rights conferred on
any Indemnitee by this Section 6 are not exclusive of other rights arising under any bylaw, agreement, vote of directors or stockholders
or otherwise, and shall inure to the benefit of the heirs and legal representatives of such Indemnitee. This Section
6 shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses
to Indemnitees or persons other than Indemnitees when and as authorized by appropriate corporate action, including by separate
agreement with the Corporation.
Section 6.6.
Amounts
Received from an Other Entity
.
Subject to any written
agreement between the Indemnitee and the Corporation to the contrary, the Corporation’s obligation, if any, to indemnify
or to advance expenses to any Indemnitee who was or is serving at the Corporation’s request as a director, officer, employee
or agent of an Other Entity shall be reduced by any amount such Indemnitee may collect as indemnification or advancement of expenses
from such Other Entity.
Section 6.7.
Amendment
or Repeal
.
Any right to indemnification
or to advancement of expenses of any Indemnitee arising hereunder shall not be eliminated or impaired by an amendment to or repeal
of this Section 6 after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative
action, suit, proceeding or other matter for which indemnification or advancement of expenses is sought.
Section 6.8.
Reliance
.
Indemnitees who after the
date of the adoption of this Section 6 become or remain an Indemnitee described in Section 6.1 will be conclusively presumed to
have relied on the rights to indemnity, advancement of expenses and other rights contained in this Section 6 in entering into or
continuing the service. The rights to indemnification and to the advancement of expenses conferred in this Section 6
will apply to claims made against any Indemnitee described in Section 6.1 arising out of acts or omissions that occurred or occur
either before or after the adoption of this Section 6 in respect of service as a director or officer of the Corporation or other
service described in Section 6.1.
Section 6.9.
Successful
Defense
.
In the event that any proceeding
to which an Indemnitee is a party is resolved in any manner other than by adverse judgment against the Indemnitee (including settlement
of such proceeding with or without payment of money or other consideration) it shall be presumed that the Indemnitee has been successful
on the merits or otherwise in such proceeding for purposes of Section 145(c) of the DGCL. Anyone seeking to overcome this presumption
shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
Section 6.10.
Merger
or Consolidation
.
For purposes of this Section
6, references to the “Corporation” shall include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was
a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this Section 6 with respect to the resulting or surviving corporation as he or she would
have with respect to such constituent corporation if its separate existence had continued.
Section 6.11.
Savings
Clause
.
If this Section 6 or any
portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify and advance expenses to each person entitled to indemnification under Section 6.1 to the fullest extent permitted by
any applicable portion of this Section 6 that shall not have been invalidated and to the fullest extent permitted by applicable
law.
SECTION
7 -
NOTICES
Section 7.1.
Notices
.
Except as otherwise provided
herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed
to the directors or stockholders at their addresses appearing on the books of the Corporation. If mailed, notice to
a stockholder of the Corporation shall be deemed given when deposited in the mail, postage prepaid, directed to a stockholder at
such stockholder’s address as it appears on the records of the Corporation. Without limiting the manner by which
notice otherwise may be given effectively to stockholders, any notice to stockholders of the Corporation may be given by electronic
transmission in the manner provided in Section 232 of the DGCL.
Section 7.2.
Waivers
.
A written waiver of any
notice, signed by a stockholder or director, or a waiver by electronic transmission by such person or entity, whether given before
or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to
such person or entity. Neither the business nor the purpose of any meeting need be specified in the waiver. Attendance
at any meeting shall constitute waiver of notice except attendance for the sole purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or convened.
SECTION
8 -
MISCELLANEOUS
Section 8.1.
Corporate
Seal
.
The Board of Directors
may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the Secretary. If
and when so directed by the Board of Directors, duplicates of the seal may be kept and used by the Treasurer or by an Assistant
Secretary or Assistant Treasurer.
Section 8.2.
Reliance
upon Books, Reports, and Records
.
Each director and each
member of any committee designated by the Board of Directors shall, in the performance of his or her duties, be fully protected
in relying in good faith upon the books and records of the Corporation and upon such information, opinions, reports or statements
presented to the Corporation by any of its officers, agents or employees, or committees of the Board of Directors so designated,
or by any other person or entity as to matters which such director or committee member reasonably believes are within such other
person’s or entity’s professional or expert competence and that has been selected with reasonable care by or on behalf
of the Corporation.
Section 8.3.
Fiscal
Year
.
The fiscal year of the
Corporation shall be as fixed by the Board of Directors.
Section 8.4.
Time
Periods.
In applying any provision
of these bylaws that requires that an act be done or not be done a specified number of days before an event or that an act be done
during a specified number of days before an event, calendar days shall be used, the day of the doing of the act shall be excluded,
and the day of the event shall be included.
SECTION
9 -
AMENDMENTS
These bylaws may be altered,
amended or repealed in accordance with the Certificate of Incorporation and the DGCL.
SECTION
10 -
severability
If
any provision or provisions of these bylaws shall be held to be invalid, illegal or unenforceable as applied to any circumstance
for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the
remaining provisions of these bylaws (including each portion of any paragraph of these bylaws containing any such provision held
to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby and (ii) to the fullest extent possible, the provisions of these bylaws (including each such portion
of any paragraph of these bylaws containing any such provision held to be invalid, illegal or unenforceable) shall be construed
so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of
their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law.
Exhibit 10.1
EXECUTIVE EMPLOYMENT
AGREEMENT
This EXECUTIVE EMPLOYMENT
AGREEMENT (the “
Agreement
”) between Eloxx Pharmaceuticals, Inc. (the “
Company
”), and Robert
Ward (the “
Executive
”) is dated as of December 26, 2017 and shall become effective on December 26, 2017 (the
“
Effective Date
”).
W I T N E S S E T H:
WHEREAS, the Company desires
the Executive to provide employment services to the Company, and wishes to provide the Executive with certain compensation and
benefits in return for such employment services; and
WHEREAS, the Executive
wishes to be employed by the Company and to provide employment services to the Company in return for certain compensation and benefits;
NOW THEREFORE, in consideration
of the foregoing, of the mutual promises contained herein and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1.
EMPLOYMENT TERM
. The Company hereby offers to employ the Executive, and the Executive hereby accepts employment
by the Company, upon the terms and conditions set forth in this Agreement, during the period commencing on the Effective Date and
ending on the date of the termination of the Executive’s employment in accordance with Section 7 below (the “
Employment
Term
”). The Executive shall be employed at will, meaning that either the Company or the Executive may terminate this
Agreement and the Executive’s employment at any time, for any reason or no reason, with or without cause, subject to the
terms of this Agreement.
2.
POSITION & DUTIES
.
(a)
Except as provided in Section 2(b) below, the Executive shall serve as the Chairman and Chief Executive Officer of the Company
and its US subsidiary, Eloxx Pharmaceuticals U.S. Sub, Inc. during the Employment Term. As Chairman and Chief Executive Officer,
the Executive shall have such duties, authorities and responsibilities as are commensurate with the position of Chairman and Chief
Executive Officer and such other duties and responsibilities as the Company’s Board of Directors (the “
Board
”)
shall designate that are consistent with the Executive’s position as Chairman and Chief Executive Officer.
(b)
During the Employment Term, the Executive agrees to devote his full business time, attention and energies to the performance
of all of the lawful duties, responsibilities and authority that may be assigned to him hereunder. Nothing contained in this Agreement
will preclude the Executive from (i) devoting time to personal and family investments, (ii) serving as a director of any not-for-profit
company, (iii) serving as a director for Akari Therapeutics and any other for-profit company that is approved by the Board (such
approval not to be unreasonably withheld) or (iv) from participating in charitable or industry associations, in each case,
provided
that
such activities or services do not (x) materially interfere with the Executive’s performance of duties
hereunder or (y) violate the terms of the Confidentiality Agreement (as defined below).
(c)
During the Employment Term, the Executive shall serve as a member of the Board, and the Executive agrees to serve as a member
of the Board without additional compensation. Upon the Executive’s termination of employment from the Company for any reason,
unless otherwise specified in a written agreement between the Executive and the Company, the Executive will be deemed to have resigned
from all offices, directorships, and other employment positions if any, then held with the Company or any of its affiliates, and
agrees to take all actions reasonably requested by the Company to effectuate the foregoing.
(d)
During the Employment Term, the Executive’s principal place of employment shall be the Company’s offices in
Waltham, Massachusetts, subject to customary business travel consistent with the Executive’s duties and responsibilities.
3.
BASE SALARY
. The Company agrees to pay the Executive a base salary (the “
Base Salary
”)
at an annual rate of US$450,000. Following the successful consummation of the first transaction or series of related transactions
in which the Company sells securities for capital raising purposes which results in gross proceeds to the Company of at least US$30,000,000,
but in no event earlier than January 2019, the Base Salary shall be increased to an annual rate of US$500,000. The Base Salary
will be payable bimonthly in accordance with the regular payroll practices of the Company. The Executive’s Base Salary shall
be subject to review by the Board (or a committee thereof) at least annually and may be increased, but not decreased, from time
to time by the Board. The base salary as determined herein from time to time shall constitute “Base Salary” for purposes
of this Agreement.
4.
BONUSES
.
(a)
ANNUAL BONUS
. With respect to each full calendar year during the Employment Term, the Executive shall be eligible
to earn an annual, performance-based bonus (an “
Annual Bonus
”) with a target bonus value equal to fifty percent
(50%) of the Executive’s Base Salary (the “
Target Bonus
”) based upon the achievement of performance targets,
which shall be established by the Board (or a committee thereof) in consultation with the Executive within the first 90 days of
each calendar year during the Employment Term, with the actual amount of the Annual Bonus for a particular year determined by the
Board (or a committee thereof) in its discretion. The Board (or a committee thereof) shall consider the Executive’s performance
from the Effective Date through December 31, 2017 in addition to the Executive’s performance in the 2018 calendar year when
determining the Executive’s Annual Bonus for the 2018 calendar year. Subject to Section 8 below, in order to be eligible
for an Annual Bonus, the Executive must remain employed for the entire calendar year for which the performance targets will have
been set. Any Annual Bonus earned by the Executive will be paid no later than March 15 of the calendar year immediately following
the calendar year in which the Annual Bonus is being measured. The Executive’s Target Bonus shall be subject to review by
the Board (or a committee thereof) at least annually and may be increased, but not decreased, from time to time by the Board.
(b)
TRANSACTION BONUSES
. In addition, the Executive may earn transaction bonuses as follows: (i) a bonus of US$200,000
following the consummation of a first transaction between the Company and a strategic pharmaceutical company and (ii) a bonus of
US$200,000 following the successful consummation of a fundraising by the Company which exceeds US$10,000,000, in each case, as
determined by the Board, in its reasonable discretion. Each such transaction bonus will be payable to the Executive at the next
regular payroll date following such determination by the Board, but in no event later than sixty (60) days following the consummation
of the applicable transaction.
5.
EQUITY COMPENSATION
. The Company will grant to the Executive on the Effective Date (the “
Grant Date
”)
equity compensation awards for shares of the Company’s common stock (“
Common Stock
”) pursuant to the Executive’s
inducement award plan (the “Executive’s Plan”) as provided in clauses (a) through (d) below. The Executive’s
Plan incorporates the terms of this Agreement applicable to the grants and is otherwise consistent with the terms of the Eloxx
Pharmaceuticals Ltd. Share Ownership and Option Plan (2013), as amended, with respect to any subject matter not covered herein.
(a)
PERFORMANCE AWARDS
. A stock option to purchase a number of shares of Common Stock representing 0.07% of the Outstanding
Shares at a price per share equal to the per share fair market value of the Common Stock, as determined by the Board, on the Grant
Date (the “
Performance Option
”), and an award of restricted stock units for a number of shares of Common
Stock representing 0.07% of the Outstanding Shares (the “
Performance Shares
” and, together with the Performance
Option, the “
Performance Awards
”), that will vest and become exercisable or payable, respectively, in full upon
the date the Board determines, in its reasonable discretion, that the first successful completion of a Phase-2B study with respect
to any indication, subject to the Executive’s continued employment with the Company through the date of such Board determination.
For purposes of this Agreement, “
Outstanding Shares
” shall mean the fully-diluted number of shares of Common
Stock outstanding on the Effective Date, including shares issuable upon exercise or conversion of outstanding stock options, restricted
stock units, warrants or other convertible securities.
(b)
TIME-VESTING AWARDS
. A stock option to purchase a number of shares of Common Stock representing 2.0% of the Outstanding
Shares at a price per share equal to the fair market value of such Common Stock, as determined by the Board, on the Grant Date
(the “
Time-Vesting Option
”), and an award of restricted stock units for a number of shares of Common Stock
representing 2.0% of the Outstanding Shares (the “
Time-Vesting Shares
” and, together with the Time-Vesting Option,
the “
Time-Vesting Awards
”), that will vest and become exercisable or payable, respectively, with respect to
1/3 of the shares on the first anniversary of the Effective Date of this Agreement and with respect to an additional 1/12 of the
shares on each quarterly anniversary of the Effective Date thereafter, subject to the Executive’s continued employment with
the Company through each such date. In addition, the vesting of the Time-Vesting Awards, and any future stock options, restricted
stock units or other equity compensation awards granted to the Executive, shall be accelerated and become fully vested and exercisable
or payable, respectively, as follows: (i) immediately prior to a Significant Event (as defined below) and (ii) following the first
successful competition of a Phase 3 study (defined as a clinical trial designed to meet FDA standards for a pivotal study in which
the primary endpoint of the study is achieved) with respect to any indication. For the purposes of this Agreement, each of the
following shall be a “Significant Event”: (a) any consolidation or merger of the Company in which the Company is not
the continuing or surviving corporation, other than a transaction in which the holders of Common Stock (on an as converted basis)
immediately prior thereto have the same, or substantially similar, proportionate ownership of Common Stock (on an as converted
basis) of the surviving corporation immediately after the transaction and a transaction in which the holders of Common Stock (on
an as converted basis) immediately prior thereto own a majority of the voting power of the surviving corporation; or (b) any sale,
exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all the assets or all
or substantially all of the outstanding and issued shares of the Company.
(c)
ANNUAL
AWARDS
. Each year, the Executive will be eligible for annual awards of stock options and or restricted stock units as determined
by the Board. Nothing herein shall be construed as an obligation to grant such awards, which shall be subject to the sole discretion
of the Board.
(d)
TAX
WITHHOLDING
. At Executive’s request, the Company will withhold from the shares of Common Stock otherwise payable to Executive
with respect to vested portions of the Performance Shares and/or the Time-Vesting Shares the number of whole shares of Common Stock
required to satisfy the applicable tax withholding obligation, the number of shares so withhold to be determined by the Company
based on the fair market value of the Common Stock on the date the Company is required to withhold.
6.
EMPLOYEE BENEFITS
.
(a)
BENEFIT PLANS
. The Executive shall be entitled to participate in all employee benefit plans that the Company generally
makes available to its senior executives (other than severance plans) from time to time, including any group health plans, dental
plans, life, disability and AD&D insurances, a 401(k) plan, tuition reimbursement, recreation allowance, parking or public
transportation and various types of paid time off, subject to the terms and conditions of such benefit plans. The Company shall
adopt vision, health, dental and 401(k) plans no later than April 1, 2018. Until the Company does have such plans adopted, the
Company will reimburse the Executive for 100% of the cost of COBRA insurance coverage from Executive’s prior employer, as
well as for costs of dental treatments otherwise covered by the Executive’s current dental plan.
(b)
VACATION
. The Executive shall be entitled to twenty (20) days of paid vacation per year, in accordance with the Company’s
vacation policy;
provided that
the Executive shall be entitled to twenty-five (25) days of paid vacation per year after
three (3) full calendar years of employment. Vacation may be taken at such times as the Executive elects with due regard to the
needs of the Company.
(c)
BUSINESS EXPENSES
. The Company will reimburse the Executive for all reasonable business expenses incurred by the
Executive in connection with the discharge of his duties for the Company, subject to the Company’s expense reimbursement
policy in effect from time to time.
(d)
INDEMNIFICATION
. The Company shall indemnify the Executive to the maximum extent that its officers, directors and
employees are entitled to indemnification pursuant to the Company’s Certificate of Incorporation and Bylaws for any acts
or omissions by reason of being a director, officer or employee of the Company as of the Effective Date. At all times during the
Employment Term, the Company shall maintain in effect a director and officers liability insurance policy with the Executive as
a covered officer and director.
7.
TERMINATION
. The Executive’s employment and the Employment Term shall terminate on the first of the
following to occur:
(a)
DISABILITY
. Upon the 30
th
day following the Executive’s receipt of notice of the Company’s
intention to terminate the Executive’s employment due to Disability (as defined in this Section 7(a));
provided that
,
the Executive has not returned to full-time performance of his duties within 30 days after receipt of such notice. If the
Company determines in good faith that the Executive’s Disability has occurred during the term of this Agreement, it will
give the Executive written notice of its intention to terminate his employment. For purposes of this Agreement, “
Disability
”
shall mean the Executive’s inability to substantially perform the essential duties of his job with or without reasonable
accommodation on a full-time basis for 180 calendar days during any consecutive twelve-month period or for 90 consecutive
days as a result of incapacity due to mental or physical illness.
(b)
DEATH
. Automatically on the date of death of the Executive.
(c)
CAUSE
. Immediately upon written notice by the Company to the Executive of a termination for Cause. “
Cause
”
shall mean (i) the Executive’s commission of an act of fraud, embezzlement or theft against the Company or its subsidiaries;
(ii) the Executive’s conviction of, or a plea of no contest to, a felony; (iii) willful nonperformance by the Executive (other
than by reason of illness) of his material duties as an employee of the Company, which, to the extent it is curable by the Executive,
is not cured within thirty (30) days after written notice thereof is given to the Executive by the Company; (iv) the Executive’s
material breach of this Agreement or any other material agreement between the Executive and the Company or any of its subsidiaries,
including the Confidentiality Agreement, which, to the extent it is curable by the Executive, is not cured within thirty (30) days
after written notice thereof is given to the Executive by the Company; or (v) the Executive’s gross negligence, willful misconduct
or any other act of willful disregard for the Company’s or any of its subsidiaries’ best interests, which, to the extent
it is curable by the Executive, is not cured within thirty (30) days after written notice thereof is given to the Executive by
the Company.
(d)
WITHOUT CAUSE
. Upon written notice by the Company to the Executive no earlier than eighteen (18) months after the
Effective Date of an involuntary termination without Cause and other than due to death or Disability.
(e)
GOOD REASON
. “
Good Reason
” for the Executive to terminate the Executive’s employment hereunder
shall mean the occurrence of any of the following conditions during the Employment Term without the Executive’s express written
consent;
provided that
any resignation by the Executive due to any of the following conditions shall only be deemed for
Good Reason if: (i) the Executive gives the Company written notice of the intent to terminate for Good Reason within sixty (60)
days following the first occurrence of the condition(s) that the Executive believes constitutes Good Reason, which notice shall
describe such condition(s); (ii) the Company fails to remedy, if remediable, such condition(s) within thirty (30) days following
receipt of the written notice (the “
Cure Period
”) of such condition(s) from the Executive; and (iii) the Executive
actually resigns his employment within the first thirty (30) days after expiration of the Cure Period:
(1)
any material reduction by the Company of the Executive’s Base Salary or Target Bonus as initially set forth herein
or as the same may be increased from time to time;
(2)
any material diminution in the Executive’s duties, title, responsibilities or authority;
(3)
a requirement that the Executive report to a corporate officer or employee instead of reporting directly to the Board, other
than any such requirement following a Significant Event;
(4)
any material breach of this Agreement, including a breach of the Company’s obligations under Section 5 or Section
12(b);
(5)
a requirement that the Executive relocate to a principal place of employment more than seventy-five (75) miles from Waltham,
Massachusetts; or
(6)
the Company’s removal or failure to appoint the Executive as a member of the Board, other than any such failure or
removal following a Significant Event.
(f)
WITHOUT GOOD REASON
. The Executive shall provide two (2) weeks’ prior written notice (the “
Transition
Period
”) to the Company of the Executive’s intended termination of employment without Good Reason (“
Voluntary
Termination
”). During the Transition Period, the Executive shall assist and advise the Company in any transition of business,
customers, prospects, projects and strategic planning, and the Company shall pay the pro rata portion of the Executive’s
Base Salary and benefits through the end of the Transition Period. The Company may, in its sole discretion, upon written notice
to the Executive, make such termination of employment effective earlier than the expiration of the Transition Period (“
Early
Termination Right
”), but it shall pay the pro rata portion of the Executive’s Base Salary and benefits through
the earlier of: the end of the Transition Period, or the date that the Executive accepts employment or a consulting engagement
from a third party.
8.
CONSEQUENCES OF TERMINATION
. Any termination payments made and benefits provided under this Agreement to the
Executive shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any
of the plans, policies or programs of the Company or its affiliates as may be in effect from time to time. Subject to satisfaction
of each of the conditions set forth in Section 9, the following amounts and benefits shall be due to the Executive:
(a)
DISABILITY
. Upon employment termination due to Disability, the Company shall pay or provide the Executive: (i) any
unpaid Base Salary through the date of termination and any accrued vacation; (ii) reimbursement for any unreimbursed expenses owed
to Executive; and (iii) all other payments and benefits to which the Executive is entitled under the terms of any applicable compensation
arrangement or benefit, equity or other plan or program, including but not limited to any applicable insurance benefits, payable
on the next regularly scheduled Company payroll date following the date of termination or earlier if required by applicable law
(collectively, “
Accrued Amounts
”). In addition, upon the Executive’s termination due to Disability, the
Company shall pay the amounts described in Sections 8(d)(3) and 8(d)(4) to the Executive.
(b)
DEATH
. In the event the Employment Term ends on account of the Executive’s death, the Executive’s estate
(or to the extent a beneficiary has been designated in accordance with a program, the beneficiary under such program) shall be
entitled to any Accrued Amounts, including but not limited to proceeds from any Company sponsored life insurance programs. In addition,
upon the Executive’s death, the Company shall pay the amounts described in Sections 8(d)(3) and 8(d)(4) to the Executive’s
estate.
(c)
TERMINATION FOR CAUSE OR WITHOUT GOOD REASON
. If the Executive’s employment should be terminated (i) by the
Company for Cause, or (ii) by the Executive without Good Reason, the Company shall pay to the Executive any Accrued Amounts only,
and shall not be obligated to make any additional payments to the Executive.
(d)
TERMINATION WITHOUT CAUSE OR FOR GOOD REASON
. If the Executive’s employment by the Company is terminated by
the Company other than for Cause (and not due to Disability or death) or by the Executive for Good Reason, other than in circumstances
described in Section 8(e), then the Company shall pay or provide the Executive with the Accrued Amounts and subject to compliance
with Section 11:
(1)
continued payment of the Executive’s Base Salary as in effect immediately preceding the last day of the Employment
Term for a period of twelve (12) months following the termination date (the “
Salary Severance Period
”) in accordance
with the Company’s ordinary payroll practices (for purposes of calculating the Executive’s severance benefits, the
Executive’s Base Salary shall be calculated based on the rate in effect prior to any material reduction in Base Salary that
would give the Executive the right to resign for Good Reason (as provided in Section 7(e)(1)));
(2)
if the Executive timely elects continued coverage under COBRA for himself and his covered dependents under the Company’s
group health plans following such termination, then the Company shall pay the COBRA premiums necessary to continue the Executive’s
and his covered dependents’ health insurance coverage in effect on the termination date until the earliest of (i) twelve
(12) months following the termination date (the “
COBRA Severance Period
”); (ii) the date when the Executive
becomes eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment; or
(iii) the date the Executive ceases to be eligible for COBRA continuation coverage for any reason, including plan termination (such
period from the termination date through the earlier of (i)-(iii), the “
COBRA Payment Period
”). Notwithstanding
the foregoing, if at any time the Company determines that its payment of COBRA premiums on the Executive’s behalf would result
in a violation of applicable law (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended
by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying COBRA premiums pursuant to this Section 8(d)(2),
the Company shall pay the Executive on the last day of each remaining month of the COBRA Payment Period, a fully taxable cash payment
equal to the COBRA premium for such month, subject to applicable tax withholding (such amount, the “
Special Severance
Payment
”), such Special Severance Payment to be made without regard to the Executive’s payment of COBRA premiums.
Nothing in this Agreement shall deprive the Executive of his rights under COBRA or ERISA for benefits under plans and policies
arising under his employment by the Company.
(3)
in the event that the Executive’s employment is terminated after December 31 of any performance year, but prior to
the Annual Bonus payment date for such performance year, the Executive shall receive: (i) the amount of the Annual Bonus as determined
by the Board in good faith for the performance year immediately prior to the year in which the Executive’s termination occurs
if the Company has not determined the amount of the Executive’s Annual Bonus as of the date of the Executive’s termination;
or (ii) the amount of the Annual Bonus as already determined by the Board in good faith for the performance year immediately prior
to the year in which the Executive’s termination occurs if the Company has already determined the amount of the Executive’s
Annual Bonus as of the date of the Executive’s termination, payable in either case as a lump sum at the same time annual
bonuses are paid to the Company’s executives generally, but no later than March 15 of the calendar year immediately following
the calendar year in which the Annual Bonus is being measured;
(4)
in the event that the Executive’s employment is terminated: (i) on or before the date Annual Bonus performance goals
are established for the performance year in which the Executive’s termination occurs, the Executive shall receive a pro-rata
portion of the Executive’s Target Bonus for the performance year in which the Executive’s termination occurs, with
such pro-rata portion calculated based upon the number of days that the Executive was employed during such performance year divided
by the total number of days in such performance year; or (ii) after the date Annual Bonus performance goals are established for
the performance year in which the Executive’s termination occurs (but on or before December 31 of such performance year),
the Executive shall receive a pro-rata portion of the Executive’s Target Bonus for the performance year in which the Executive’s
termination occurs, with such pro-rata portion calculated based upon the Executive’s achievement of performance goals as
determined by the Board in good faith, payable in either case as a lump sum payment on the Company’s first ordinary payroll
date occurring on or after the General Release effective date (namely, the date it can no longer be revoked) or as soon thereafter
as is reasonable practicable thereafter; and
(5)
twenty-five percent (25%) of the shares subject to all stock options, restricted stock units and other equity awards then
held by the Executive shall vest and become exercisable or payable, as applicable. In addition, the time period that the Executive
may have to exercise any stock options shall be extended for a period equal to the shorter of (i) nine (9) months or (ii) the remaining
term of the award.
(e)
TERMINATION WITHOUT CAUSE OR FOR GOOD REASON FOLLOWING A SIGNIFICANT EVENT
. If the Executive’s employment by
the Company is terminated by the Company other than for Cause (and not due to Disability or death), or by the Executive for Good
Reason, in either case on or within twenty-four (24) months immediately following a Significant Event, then the Company shall pay
or provide the Executive with the Accrued Amounts and all of the benefits described in Section 8(d) above, subject to compliance
with Section 11;
provided that
: (i) the Salary Severance Period defined in Section 8(d)(1) shall be increased to a total
of eighteen (18) months following the termination date; (ii) the COBRA Severance Period defined in Section 8(d)(2) shall be increased
to a total of eighteen (18) months following the termination date; (iii) in lieu of the pro-rata bonus described in Section 8(d)(4),
the Company shall pay the Executive the full Target Bonus for the performance year in which the Executive’s termination occurs,
payable as a lump sum payment on the Company’s first ordinary payroll date occurring on or after the General Release effective
date (namely, the date it can no longer be revoked); and (iv) in lieu of the vesting acceleration described in Section 8(d)(5),
all of the outstanding unvested shares subject to stock options, restricted stock units and other equity awards then held by the
Executive shall become fully vested and become exercisable or payable, as applicable, and the time period that the Executive may
have to exercise any stock options shall be extended for a period equal to the shorter of (i) twelve (12) months or (ii) the remaining
term of the award.
9.
CONDITIONS
. Any payments or benefits made or provided pursuant to Section 8 (other than Accrued Amounts)
are subject to the Executive’s (or, in the event of the Executive’s death, the beneficiary’s or estate’s,
or in the event of the Executive’s Disability, the guardian’s):
(a)
compliance with the provisions of Section 11 hereof;
(b)
delivery to the Company of the executed Agreement and General Release (the “
General Release
”), which
shall be in the form attached hereto as Appendix A (with such changes therein or additions thereto as needed under then applicable
law to give effect to its intent and purpose) within 21 days following the date of termination of employment, and permitting the
General Release to become effective in accordance with its terms; and
(c)
delivery to the Company of a resignation from all offices, directorships and fiduciary positions with the Company, its affiliates
and employee benefit plans, by no later than 90 days following termination of employment.
Notwithstanding the due
date of any post-employment payments, any amounts due following a termination under this Agreement (other than Accrued Amounts)
shall not be due until after the expiration of any revocation period applicable to the General Release without the Executive having
revoked such General Release, and any such amounts shall be paid or commence being paid to the Executive on the Company’s
first ordinary payroll date occurring on or after the expiration of such revocation period without the occurrence of a revocation
by the Executive (or such later date as may be required under Section 18 or the final sentence of this Section 9). Nevertheless
(and regardless of whether the General Release has been executed by the Executive), upon any termination of Executive’s employment,
Executive shall be entitled to receive any Accrued Amounts, payable after the date of termination in accordance with the Company’s
applicable plan, program, policy or payroll procedures. Notwithstanding anything to the contrary in this Agreement, if any severance
pay or benefits are deferred compensation under Section 409A (as defined below), and the period during which the Executive may
sign the General Release begins in one calendar year and ends in another, then the severance pay or benefit shall not be paid or
the first payment shall not occur until the later calendar year.
10.
SECTION 4999 EXCISE TAX
.
(a)
If any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Internal Revenue
Code of 1986, as amended (the “
Code
”)) to or for the benefit of the Executive, whether paid or payable pursuant
to this Agreement or otherwise (“
Payment
”) would (i) constitute a parachute payment” within the meaning
of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the
“
Excise Tax
”), then the Company shall cause to be determined, before any amounts of the Payment are paid to
the Executive, which of the following two alternative forms of payment shall be paid to the Executive: (i) payment in full of the
entire amount of the Payment (a “
Full Payment
”), or (ii) payment of only a part of the Payment so that the Executive
receives the largest payment possible without the imposition of the Excise Tax (a “
Reduced Payment
”). A Full
Payment shall be made in the event that the quotient obtained by dividing (i) the excess of (a) the Full Payment, over (b) the
Reduced Payment, by (ii) the Reduced Payment, is greater than ten percent (10%). A Reduced Payment shall be made in the event that
the quotient obtained by dividing (i) the excess of (a) the Full Payment, over (b) the Reduced Payment, by (ii) the Reduced Payment,
is less than or equal to ten percent (10%). If a Reduced Payment is made, (i) the Payment shall be paid only to the extent permitted
under the Reduced Payment alternative, and the Executive shall have no rights to any additional payments and/or benefits constituting
the Payment, and (ii) reduction in payments and/or benefits shall occur in the following order: (1) reduction of cash payments;
(2) reduction of other benefits paid to the Executive ; (3) cancellation of accelerated vesting of equity awards other than
stock options; and (4) cancellation of accelerated vesting of stock options. Any reductions in payments to be made shall be made
with respect to payments in inverse order of the scheduled dates or times for the payment.
(b)
If it is determined that the Payment would result in an Excise Tax, the Company shall pay and the Executive shall be entitled
to receive an additional payment (a “
Gross-Up Payment
”) from the Company in an amount that after the payment
of all taxes (including, without limitation, (i) any income or employment taxes, (ii) any interest or penalties imposed with respect
to such taxes, and (iii) any additional excise tax imposed by Section 4999 of the Code) on the Gross-Up Payment, the Executive
shall retain an amount equal to the full Excise Tax. In no event shall any such Gross-Up Payment or any payment of any income or
other taxes to be paid by the Company under this Section 10 be made later than the end of the Executive’s taxable year next
following the Executive’s taxable year in which the Executive remits the related taxes. For purposes of determining the amount
of the Gross-Up Payment, the Executive shall be deemed to have: (x) paid federal income taxes at the highest marginal rate of federal
income and employment taxation for the calendar year in which the Gross-Up Payment is to be made, and (y) paid applicable state
and local income taxes at the highest rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of
the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Except as otherwise
provided herein, the Executive shall not be entitled to any additional payments or other indemnity arrangements in connection with
the Payment or the Gross-Up Payment.
(c)
The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior
to the effective date of the Significant Eventshall make all determinations required to be made under this Section 10. If the independent
registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group
effecting the Significant Event, the Company shall appoint a nationally recognized independent registered public accounting firm
to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent
registered public accounting firm required to be made hereunder.
(d)
The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations,
together with detailed supporting documentation, to the Company and the Executive within fifteen (15) calendar days after the date
on which the Executive’s right to a Payment is triggered (if requested at that time by the Company or the Executive) or such
other time as requested by the Company or the Executive. Any good faith determinations of the accounting firm made hereunder shall
be final, binding and conclusive upon the Company and the Executive.
11.
CONFIDENTIALITY AND POST-EMPLOYMENT OBLIGATIONS
. As a condition of employment, the Executive agrees to execute
and abide by the Company’s current form of Confidentiality and Non-Competition Agreement (“
Confidentiality Agreement
”),
which may be amended by the parties from time to time without regard to this Agreement. The Confidentiality Agreement contains
provisions that are intended by the parties to survive and do survive termination of this Agreement.
12.
ASSIGNMENT
.
(a)
The Executive may not assign or delegate any rights or obligations hereunder without first obtaining the written consent
of the Company.
(b)
This Agreement shall be binding upon and inure to the benefit of the Company and its successors, assigns and legal representatives.
The Company will require any acquiror or successor of the Company in any merger, consolidation, sale, or acquisition of the Company,
or a similar transaction to assume the Company’s obligations under this Agreement, and any failure to do so shall constitute
a material breach of this Agreement.
13.
NOTICE
. For the purpose of this Agreement, notices and all other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly given (a) on the date of delivery if delivered by hand, (b) on the date
of transmission, if delivered by confirmed facsimile, (c) on the first business day following the date of deposit if delivered
by guaranteed overnight delivery service, or (d) on the fourth business day following the date delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to the Executive: at the address
(or to the facsimile number) shown on the records of the Company.
If to the
Company:
Eloxx Pharmaceuticals,
Inc.
950 Winter
Street
Waltham, MA
02451
or to such other address
as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
14.
SECTION HEADINGS; INCONSISTENCY
. The section headings used in this Agreement are included solely for convenience
and shall not affect, or be used in connection with, the interpretation of this Agreement. If there is any inconsistency between
this Agreement and any other agreement (including but not limited to any option, stock, long-term incentive or other equity award
agreement), plan, program, policy or practice (collectively, “
Other Provision
”) of the Company the terms of
this Agreement shall control over such Other Provision.
15.
SEVERABILITY
. The provisions of this Agreement shall be deemed severable and the invalidity of unenforceability
of any provision shall not affect the validity or enforceability of the other provisions hereof.
16.
COUNTERPARTS
. This Agreement may be executed in counterparts, each of which shall be deemed to be an original
but all of which together will constitute one and the same instruments. One or more counterparts of this Agreement may be delivered
by facsimile, with the intention that delivery by such means shall have the same effect as delivery of an original counterpart
thereof.
17.
MISCELLANEOUS
. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing and signed by the Executive and such officer or director of the Company as may be designated
or authorized by the Board. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. This Agreement together with all exhibits hereto and the
Confidentiality Agreement sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein.
No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made
by either party which are not expressly set forth in this Agreement. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflicts of law principles.
18.
SECTION 409A
.
(a)
Notwithstanding anything to the contrary herein, the following provisions apply to the extent severance benefits provided
herein are subject to Section 409A of Code and the regulations and other guidance thereunder and any state law of similar effect
(collectively “
Section 409A
”). Severance benefits payable upon a termination of employment shall not commence
until Executive has a “separation from service” for purposes of Section 409A. Each installment of severance benefits
is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended
to satisfy the exemptions from application of Section 409A provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5)
and 1.409A-1(b)(9). However, if such exemptions are not available and Executive is, upon separation from service, a “specified
employee” for purposes of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences
under Section 409A, the timing of the severance benefits shall be delayed until the earlier of (i) six (6) months and one day
after Executive’s separation from service, or (ii) Executive’s death. Any payment or benefit otherwise payable or
to be provided in the six (6) month period following separation from service that is not so paid or provided by reason of this
Section 18 shall be accumulated and paid or provided in a single lump sum, as soon as practicable (and in all events within 15
days) after the date that is six (6) months after Executive’s separation from service (or, if earlier, as soon as practicable,
and in all events within 15 days, after the date of Executive’s death).
(b)
It is intended that this Agreement shall comply with the requirements of Section 409A, and any ambiguity contained herein
shall be interpreted in such manner so as to avoid adverse personal tax consequences under Section 409A. Notwithstanding the foregoing,
the Company shall in no event be obligated to indemnify the Executive for any taxes or interest that may be assessed by the IRS
pursuant to Section 409A of the Code on payments made pursuant to this Agreement.
19.
MITIGATION OF DAMAGES
. In no event shall the Executive be obliged to seek other employment or take any other
action by way of mitigation of the severance benefits payable to the Executive under any of the provisions of this Agreement, nor
shall the amount of any severance benefit hereunder be reduced by any compensation earned by the Executive as a result of employment
by another employer, except as set forth in this Agreement.
20.
REPRESENTATIONS
. The Executive represents and warrants to the Company that the Executive has the legal right
to enter into this Agreement and to perform all of the obligations on the Executive’s part to be performed hereunder in accordance
with its terms and that the Executive is not a party to any agreement or understanding, written or oral, which could prevent the
Executive from entering into this Agreement or performing all of the Executive’s obligations hereunder. The Executive further
represents and warrants that he has been advised to consult with an attorney and that he has been represented by the attorney of
his choosing during the negotiation of this Agreement (or chosen not to be so represented), that he has consulted with his attorney
before executing this Agreement (or chosen not to consult an attorney), that he has carefully read and fully understand all of
the provisions of this Agreement and that he is voluntarily entering into this Agreement.
21.
NON-DISPARAGEMENT
. Both during and after the Employment Term, the Executive and the Company (through its officers
and directors) agree not to disparage the other party, and the other party’s officers, directors, employees, shareholders,
affiliates and agents, in any manner likely to be harmful to them or their business, business reputation or personal reputation;
provided that
both the Executive and the Company may respond accurately and fully to any question, inquiry or request for
information when required by legal process and provided further that nothing in this Section 21 shall preclude any party from making
truthful statements that are reasonably necessary or to enforce or defend the party’s rights under this Agreement.
22.
WITHHOLDING
. The Company may withhold from any and all amounts payable under this Agreement such federal,
state and local taxes as may be required to be withheld pursuant to any applicable law or regulation.
23.
SURVIVAL
. The respective obligations of, and benefits afforded to, the Company and the Executive which by
their express terms or clear intent survive termination of the Executive’s employment with the Company, including, without
limitation, the provisions of Sections 8 through 26, inclusive, of this Agreement, will survive termination of the Executive’s
employment with the Company, and will remain in full force and effect according to their terms.
24.
AGREEMENT OF THE PARTIES
. The language used in this Agreement will be deemed to be the language chosen by
the parties hereto to express their mutual intent. Neither the Executive nor the Company shall be entitled to any presumption in
connection with any determination made hereunder in connection with any arbitration, judicial or administrative proceeding relating
to or arising under this Agreement.
25.
DISPUTE RESOLUTION
. In the event of any controversy, dispute or claim between the parties under, arising out
of or related to this Agreement (including but not limited to, claims relating to breach, termination of this Agreement, or the
performance of a party under this Agreement) whether based on contract, tort, statute or other legal theory (collectively referred
to hereinafter as “
Disputes
”), the parties shall follow the dispute resolution procedures set forth below. Any
Dispute shall be finally settled by arbitration in accordance with the Employment Arbitration Rules & Procedures of JAMS (“
JAMS
”)
then in force, and that the arbitration hearings shall be held in Boston, Massachusetts. The parties agree to (i) appoint an arbitrator
who is knowledgeable in employment and human resource matters and, to the extent possible, the industry in which the Company operates,
and instruct the arbitrator to follow substantive rules of law; (ii) require the testimony to be transcribed; and (iii) require
the award to be accompanied by findings of fact and a statement of reasons for the decision. The arbitrator shall have the authority
to permit discovery, to the extent deemed appropriate by the arbitrator, upon request of a party, but such discovery process shall
continue for no more than thirty (30) days. The arbitrator shall have no power or authority to add to or detract from the written
agreement of the parties. If the parties cannot agree upon an arbitrator within ten (10) days after demand by either of them, either
or both parties may request JAMS name a panel of five (5) arbitrators. The Company shall strike the names of two (2) off this list;
then, the Executive shall strike two (2) of the remaining names; and the remaining name shall be the arbitrator. The Company and
the Executive shall each pay for their own attorneys’ fees and expenses and their pro rata share of the JAMS fees and expenses.
Any award shall be final, binding and conclusive upon the parties and a judgment rendered thereon may be entered in any court having
jurisdiction thereof. This Section shall not limit the right of any party to sue for injunctive relief for a breach of the obligations
of this Agreement.
[
signature page follows
]
IN WITNESS WHEREOF,
the parties hereto have executed this Agreement, effective as of the date first written above.
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ELOXX PHARMACEUTICALS, INC.
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By:
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/s/ Silvia Noiman
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Dr. Silvia Noiman
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Its:
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Chief Executive Officer and Director
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EXECUTIVE
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/s/ Robert Ward
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Robert Ward
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[Signature Page to Employment Agreement]
APPENDIX A
FORM OF RELEASE
AGREEMENT AND GENERAL
RELEASE
Eloxx Pharmaceuticals,
Inc. (the “
Company
”) and Robert Ward (“
Executive
”) agree:
1.
Last Day of Employment
. Executive’s last day of employment with Employer was
[INSERT DATE]
(the “
Termination
Date
”). In addition, effective as of the Termination Date, Executive ceased to serve as the Chairman and Chief Executive
Officer of the Company and its affiliates and ceased to be eligible for any benefits or compensation from the Company and its affiliates
other than as specifically provided in Section 8 of the Executive Employment Agreement between the Company and Executive dated
as of December 26, 2017 (the “
Employment Agreement
”). Executive further acknowledges and agrees that from and
after the date Executive executes this Agreement and General Release, Executive will not represent (and since the Termination Date
the Executive has not represented) the Executive as being a director, employee, officer, trustee, agent or representative of the
Company or its affiliates for any purpose. In addition, effective as of Termination Date, Executive resigns from all offices, directorships,
trusteeships, committee memberships and fiduciary capacities held with, or on behalf of, the Company and its affiliates or any
benefit plans of the Company and its affiliates. These resignations will become irrevocable as set forth in Section 3 below.
2.
Consideration
. The parties acknowledge that this Agreement and General Release is being executed in accordance with
Section 9 of the Employment Agreement.
3.
Revocation
. Executive may revoke this Agreement and General Release for a period of seven (7) calendar days following
the day Executive executes this Agreement and General Release. Any revocation within this period must be submitted in writing to
the Company and state, “I hereby revoke my acceptance of our Agreement and General Release.” The revocation must be
personally delivered to the Chairman of the Board, Eloxx Pharmaceuticals Ltd., 950 Winter Street, Waltham, MA 02451, or his designee.
This Agreement and General Release shall become effective and irrevocable on the eighth (8th) day after Executive executes it,
unless earlier revoked by Executive in accordance with this Section 3 (the “
Effective Date
”).
4.
General Release of Claims
. (A) Executive and the Executive’s heirs, executors, administrators, successors and
assigns (collectively referred to throughout this Agreement as “
Employee
”) knowingly and voluntarily release
and forever discharge the Company and its affiliates, subsidiaries, divisions, benefit plans, successors and assigns in such capacity,
and the current, future and former employees, officers, directors, trustees and agents thereof (collectively referred to as “
Employer
”)
from any and all actions, causes of action, contributions, indemnities, duties, debts, sums of money, suits, controversies, restitutions,
understandings, agreements, promises, claims regarding stock, stock options or other forms of equity compensation, commitments,
damages, fees and liabilities, responsibilities and any and all claims, demands, executions and liabilities of whatsoever kind,
nature or description, oral or written, known or unknown, matured or unmatured, suspected or unsuspected at the present time, in
law or in equity, whether known and unknown, against Employer, which the Employee has, has ever had or may have as of the date
of Executive’s execution of this Agreement and General Release, including, but not limited to, any alleged violation of:
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Title VII of the Civil Rights Act of 1964, as amended;
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The Civil Rights Act of 1991;
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Sections 1981 through 1988 of Title 42 of the United
States Code, as amended;
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The Employee Retirement Income Security Act of 1974,
as amended;
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The Immigration Reform and Control Act, as amended;
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The Americans with Disabilities Act of 1990, as amended;
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The Age Discrimination in Employment Act of 1967, as
amended;
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The Older Workers Benefit Protection Act of 1990;
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The Worker Adjustment and Retraining Notification Act,
as amended;
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The Occupational Safety and Health Act, as amended;
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The Family and Medical Leave Act of 1993;
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The Massachusetts Wage Act;
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Massachusetts anti-discrimination laws, M.G.L Chapter
151B- Any wage payment and collection, equal pay and other similar laws, acts and statutes of the Commonwealth
of Massachusetts or the United States;
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Any other federal, state or local civil or human rights
law or any other local, state or federal law, regulation or ordinance;
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Any public policy, contract, tort, or common law; or
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Any allegation for costs, fees, or other expenses including
attorneys’ fees incurred in these matters.
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Notwithstanding anything
herein to the contrary, the sole matters to which the Agreement and General Release do not apply are: (i) Employee’s express
rights or claims for accrued vested benefits under any employee benefit plan, policy or arrangement maintained by Employer or under
COBRA; (ii) Employee’s rights under the provisions of the Employment Agreement which are intended to survive termination
of employment; (iii) Employee’s rights as a stockholder; or (iv) any rights of the Executive to indemnification as a Director
or Officer of the Company.
5.
No Claims Permitted
. Employee waives Executive’s right to file any charge or complaint against Employer arising
out of Executive’s employment with or separation from Employer before any federal, state or local court or any state or local
administrative agency, except where such waivers are prohibited by law (with the understanding that that this Agreement and General
Release bars the Executive from recovering monetary relief from Employer in connection with any charges or complaints which are
not waived hereunder).
Furthermore, nothing in this Agreement or
General Release and Waiver of Claims prohibits Executive from reporting possible violations of federal law or regulation to any
governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission,
the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions
of federal law or regulation. Executive does not need the prior authorization of the Company to make any such reports or disclosures
and Executive is not required to notify the Company that Executive has made such reports or disclosures.
6.
Affirmations
. Employee affirms Executive has not filed, has not caused to be filed, and is not presently a party
to, any claim, complaint, or action against Employer in any forum. Employee further affirms that the Executive has been paid and/or
has received all compensation, wages, bonuses, commissions, and/or benefits to which Executive may be entitled and no other compensation,
wages, bonuses, commissions and/or benefits are due to Executive, except as provided in Section 8 of the Employment Agreement.
Employee also affirms Executive has no known workplace injuries.
7.
Cooperation; Return of Property
. Employee agrees to reasonably cooperate with Employer and its counsel in connection
with any investigation, administrative proceeding or litigation relating to any matter that occurred during Executive’s employment
in which Executive was involved or of which Executive has knowledge. Employer will reimburse the Employee for any reasonable out-of-pocket
travel, delivery or similar expenses incurred in providing such service to Employer. Employee represents that Employee has returned
to Employer all property belonging to Employer, including but not limited to any leased vehicle, laptop, cell phone, keys, access
cards, phone cards and credit cards, provided that Executive may retain, and Employer shall cooperate in transferring, Executive’s
cell phone number and Executive’s personal rolodex and other address books.
8.
Governing Law and Interpretation
. This Agreement and General Release shall be governed and conformed in accordance
with the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. In the event Employee or
Employer breaches any provision of this Agreement and General Release, Employee and Employer affirm either may institute an action
to specifically enforce any term or terms of this Agreement and General Release. Should any provision of this Agreement and General
Release be declared illegal or unenforceable by any court of competent jurisdiction and should the provision be incapable of being
modified to be enforceable, such provision shall immediately become null and void, leaving the remainder of this Agreement and
General Release in full force and effect. Nothing herein, however, shall operate to void or nullify any general release language
contained in the Agreement and General Release.
9.
No Admission of Wrongdoing
. Employee agrees neither this Agreement and General Release nor the furnishing of the
consideration for this Agreement and General Release shall be deemed or construed at any time for any purpose as an admission by
Employer of any liability or unlawful conduct of any kind.
10.
Non-Disparagement
. Employee and Employer (through its officers and directors) agree not to disparage the other party,
and the other party’s officers, directors, employees, shareholders and agents, in any manner likely to be harmful to them
or their business, business reputation or personal reputation;
provided that
both Employee and Employer may respond accurately
and fully to any question, inquiry or request for information when required by legal process and
provided further
that nothing
in this Section 10 shall preclude Employer or Employee from making truthful statements that are reasonably necessary or to enforce
or defend the party’s rights under this Agreement and General Release.
11.
Amendment
. This Agreement and General Release may not be modified, altered or changed except upon express written
consent of both parties wherein specific reference is made to this Agreement and General Release.
12.
Entire Agreement
. This Agreement and General Release and the Confidentiality Agreement (as defined in the Employment
Agreement) sets forth the entire agreement between the parties hereto and fully supersedes any prior agreements or understandings
between the parties;
provided
,
however
, that notwithstanding anything in this Agreement and General Release, the
provisions in the Employment Agreement which are intended to survive termination of the Employment Agreement, including but not
limited to those contained in Section 11 thereof, shall survive and continue in full force and effect. Employee acknowledges Executive
has not relied on any representations, promises, or agreements of any kind made to Executive in connection with Executive’s
decision to accept this Agreement and General Release.
13.
ADEA
. Employee understands and acknowledges that Employee is waiving and releasing any rights Executive may have
under the Age Discrimination in Employment Act of 1967 (“
ADEA
”), and that this waiver and release is knowing
and voluntary. Employee understands and agrees that this waiver and release does not apply to any rights or claims that may arise
under the ADEA after the date Executive signs this Agreement and General Release. Employee understands and acknowledges that the
consideration given for this waiver and release is in addition to anything of value to which Employee was already entitled. Employee
further understands and acknowledges that Employee has been advised by this writing that nothing in this Agreement prevents or
precludes Executive from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor
does it impose any condition precedent, penalties, or costs for doing so, unless specifically authorized by federal law.
[
signature page follows
]
EMPLOYEE HAS BEEN ADVISED
THAT EXECUTIVE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS TO REVIEW THIS AGREEMENT AND GENERAL RELEASE AND HAS BEEN ADVISED IN WRITING
TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT AND GENERAL RELEASE.
EMPLOYEE AGREES ANY MODIFICATIONS,
MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT AND GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE
(21) CALENDAR DAY CONSIDERATION PERIOD. IN THE EVENT EMPLOYEE SIGNS THIS AGREEMENT AND GENERAL RELEASE AND RETURNS IT TO THE COMPANY
IN LESS THAN THE TWENTY-ONE (21) DAY PERIOD IDENTIFIED ABOVE, EMPLOYEE HEREBY ACKNOWLEDGES THAT EMPLOYEE HAS FREELY AND VOLUNTARILY
CHOSEN TO WAIVE THE TIME PERIOD ALLOTTED FOR CONSIDERING THIS AGREEMENT AND GENERAL RELEASE.
HAVING ELECTED TO EXECUTE
THIS AGREEMENT AND GENERAL RELEASE, TO FULFILL THE PROMISES SET FORTH HEREIN, AND TO RECEIVE THE SUMS AND BENEFITS SET FORTH IN
THE EMPLOYMENT AGREEMENT, EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE
INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS EXECUTIVE HAS OR MIGHT HAVE AGAINST EMPLOYER.
IN WITNESS WHEREOF, the
parties hereto knowingly and voluntarily executed this Agreement and General Release as of the date set forth below:
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ELOXX PHARMACEUTICALS, INC.
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By:
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Name:
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Its:
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Date:
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EXECUTIVE
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Robert Ward
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Date:
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Exhibit 99.1
Eloxx Pharmaceuticals
Appoints Robert Ward Chairman and Chief Executive Officer
Biopharmaceutical Industry
Leader with Extensive Experience In Drug Development, Strategic Business Combinations and Commercialization to Lead The Company’s
Strategy, Vision and Execution
Waltham,
MA – December 27, 2017 –
Eloxx Pharmaceuticals, Inc. (“Eloxx”) (OTCQB:
SVOND)
, a clinical-stage biopharmaceutical company developing novel small
molecule medicines to treat rare and ultra-rare genetic diseases caused by nonsense mutations
today
announced that Robert (“Bob”) Ward has been appointed Chairman of the Board of Directors of Eloxx (the
“Board”) and Chief Executive Officer effective immediately. Bob succeeds outgoing Chairman of the Board, Robert
Heft, and current founder and Chief Executive Officer Dr. Silvia Noiman at a critical inflection point for Eloxx as the
company advances its lead candidate
ELX-02, a novel translational read-through
inducing drug (TRID), through the completion of Phase 1
clinical trials and navigates its
transition from a private to a public company.
Mr. Ward brings to Eloxx
more than 30 years of experience as a global biopharmaceutical industry leader with experience across the full spectrum of drug
development, commercialization, and strategic business development transactions. Mr. Ward most recently was the President and Chief
Executive Officer of Radius Health, Inc. (“Radius”).
"We are
pleased to have attracted an experienced leader with Bob’s proven track record of success to Eloxx,” said Dr. Robert
Heft. “Having previously lead a fully integrated commercial biopharmaceutical company to achieve its first drug approval
and product launch, we are confident that Bob is the right leader to advance Eloxx as we seek to develop and commercialize
our novel small molecule medicines to treat rare and ultra-rare genetic diseases.”
“Bob has already
built substantial value for patients, employees, and shareholders through his management of the development and commercialization
of important drugs, transformative business development transactions and substantial financings,” said Dr. Noiman. “As
a fellow Board member, I look forward to working with Bob during the transition as we advance our pipeline and build Eloxx.”
“I am excited to
have the opportunity to lead Eloxx and build upon the successful work of Drs. Heft and Noiman. Today the Company is poised to accelerate
our portfolio and to potentially improve the lives of patients with rare diseases while continuing to build our Company and create
substantial value for shareholders and our employees,” said Mr. Ward. “We are grateful for Dr. Heft’s service
and many contributions to the Board and our shareholders.”
Mr.
Ward was formerly the President and Chief Executive Officer of Radius, where he helped the company successfully complete its Initial
Public Offering in 2014, and lead the development, approval and launch of the company’s TYMLOS™ injection. He is a global
pharmaceutical industry leader managing all stages of drug development, commercialization, and strategic deal making and partnerships
across multiple therapeutic areas. Prior to joining Radius, Mr. Ward was Vice President for Strategy and External Alliances for
the New Opportunities iMed of Astra Zeneca from 2011 to 2013. He has held a series of progressive management and executive roles
with established companies such as NPS Pharmaceuticals, Schering-Plough (Merck), Pharmacia (Pfizer), Bristol-Myers Squibb and Genentech.
Mr. Ward has been a Director of Akari Therapeutics, Plc since October 14, 2016. He served as a Director of Radius from December
2013 until July 16, 2017. Mr. Ward serves as a Director of the Massachusetts High Technology Council. Mr. Ward received a B.A.
in Biology and a B.S. in Physiological Psychology, both from the University of California, Santa Barbara, an M.S. in Management
from the New Jersey Institute of Technology and an M.A. in Immunology from the John Hopkins University School of Medicine.
About
Eloxx Pharmaceuticals
Eloxx
Pharmaceuticals, Inc. is a clinical-stage biopharmaceutical company developing novel small molecule medicines to treat many rare
and ultra-rare genetic diseases caused by nonsense mutations. Nonsense mutations are a class of genetic defects that result in
premature termination of protein synthesis. These nonsense mutations have been identified in over 2,000 rare and ultra-rare diseases.
As a consequence, patients with a genetic disease caused by nonsense mutations have absent or truncated nonfunctional proteins,
accounting for some of the most severe phenotypes in these genetic diseases. Eloxx’s lead product candidate, ELX-02, is an
investigational, novel translational read-through inducing drug designed to restore synthesis of full-length functional proteins.
ELX-02 is an investigational agent undergoing clinical trials and has not been approved by any global regulatory body. Eloxx was
founded in 2013 and is headquartered in Waltham, MA, with R&D operations in Rehovot, Israel.
Forward-Looking Statements
Certain
statements included in this press release are forward-looking statements within the meaning of the Private Securities Litigation
Reform Act of 1995 and involve a number of risks and uncertainties. All statements that address activities, events or developments
that we intend, expect or believe may occur in the future are forward-looking statements. Actual results could differ materially
from such statements expressed or implied herein as a result of a variety of factors, including, but not limited to: the Company’s
ability to continue as a going concern; the ability of the Company to consummate additional financings; the development of the
Company’s antibody technology; the approval of the Company’s patent applications; the Company’s ability to successfully
defend its intellectual property or obtain the necessary licenses at a cost acceptable to the Company, if at all; the successful
implementation of the Company’s research and development programs and collaborations; the success of the Company’s
license agreements; the acceptance by the market of the Company’s products; the timing and success of the Company’s
preliminary studies, preclinical research and clinical trials; competition and the timing of projects and trends in future operating
performance; and the quotation of the Company’s common stock on an over-the-counter securities market, as well as other factors
expressed from time to time in the Company’s periodic filings with the Securities and Exchange Commission (the “SEC”).
As a result, this press release should be read in conjunction with the Company’s periodic filings with the SEC. The forward-looking
statements contained herein are made only as of the date of this press release, and the Company undertakes no obligation to publicly
update or revise such forward-looking statements to reflect subsequent events or circumstances.
Contacts:
Eloxx Pharmaceuticals
Greg Weaver, CFO
greg@eloxxpharma.com
Or
Barbara Ryan
Barbara Ryan Advisors
b.ryan12@me.com