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):  August 28, 2018

 

IMMUNE PHARMACEUTICALS, INC.

(Exact name of registrant as specified in its charter)

 

Delaware 001-36602 52-1841431

(State or other jurisdiction

of incorporation)

(Commission

File Number)

(IRS Employer

Identification No.)

 

1 Bridge Plaza N, Suite 270  

07024

(Address of principal executive offices) (Zip Code)

 

Registrant’s telephone number, including area code:  (201) 464-2677

 

 

550 Sylvan Avenue, Suite 101, Englewood Cliffs, NJ 07632  

(Former name or former address, if changed since last report)

  

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

 

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

 

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

 

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

 

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

  

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

 

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

 

 

  

 

 

 

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

 

On August 28, 2018, Elliot M. Maza resigned all positions held by him with Immune Pharmaceuticals Inc. (the “Company”) and its subsidiaries, including his positions as the Company’s Chief Executive Officer and President and as a member of the Company’s Board of Directors. Mr. Maza’s resignation was not due to any disagreement related to the Company’s operations, policies or practices, financial status or financial statements.


In connection with his resignation, Mr. Maza entered into a Termination Agreement (the “Termination Agreement”) and a General Release of Claims with the Company (the “Release”). Pursuant to the Termination Agreement, the Company has agreed to pay Mr. Maza a severance payment in the amount of $300,000 (the “Severance Amount”). The Severance Amount will be paid to Mr. Maza in equal installments in accordance with the Company’s customary payroll practices; provided, however, that any outstanding monthly installments will be accelerated in the event of a “Company Sale” (as defined in the Termination Agreement). In addition, the Company will reimburse Mr. Maza for the cost of continued medical insurance for a period of up to nine months.

 

The foregoing summary of the Termination Agreement and the Release do not purport to be complete and is qualified in its entirety by reference to the Termination Agreement and Release, which are filed herewith as Exhibits 10.1 and 10.2, respectively, and incorporated by reference herein in their entirety.

 

Tony Fiorino, M.D., Ph.D., age 50, the Company’s Chief Medical Officer and Chief Operating Officer will assume the role of Interim Chief Executive Officer. Dr. Fiorino will also retain his duties as Chief Medical Officer and Chief Operating Officer. In connection with his appointment as Interim Chief Executive Officer, Dr. Fiorino was also elected to the Company’s Board of Directors to fill the vacancy resulting from Mr. Maza’s resignation.

 

Dr. Fiorino was appointed Chief Medical Officer and Chief Operating Officer of the Company in August 2017. Dr. Fiorino served as President and Chief Executive Officer of Triumvira Immunologics, an immuno-oncology company developing a novel engineered T cell platform, 2015-2017. Dr. Fiorino was the Chief Executive Officer of BrainStorm Cell Therapeutics (NASDAQ:BCLI) a leading developer of adult stem cell technologies for neurodegenerative diseases from 2014-2015. Dr. Fiorino was the Founder, President and CEO of EnzymeRx from 2008-2010, where he led the acquisition of a late-stage pre-clinical biologic and the development of the compound through phase 2 clinical trials and its subsequent sale to 3SBio, and worked as an independent consultant to biotechnology and pharmaceutical companies and investment funds from 2008-2014.

 

In connection with his employment as the Company’s Interim Chief Executive Officer, the Company entered into an amendment to Dr. Fiorino’s employment agreement (the “Supplemental Employment Agreement”). The Supplemental Employment Agreement provides for an increase in Dr. Fiorino’s base salary from $360,000 to $400,000 per annum while he remains Interim Chief Executive Officer. Dr. Fiorino’s base salary would be subject to annual review and an increase at least equal to the greater of (i) 3% and (ii) the percentage increase (if any) in the Consumer Price Index: Urban Wage Earners and Clerical Workers for the N.Y. Northeastern N.J. region as published by the U.S. Bureau of Labor Statistics during the immediately preceding 12-month period running from October 1st through September 30 th . Dr. Fiorino will be entitled to a target bonus of not less than 15% of his annual base salary and up to 60% of his annual base salary upon the achievement of goals developed and mutually agreed to by the Company’s Board of Directors and Dr. Fiorino. Dr. Fiorino will also receive an option grant under the Company’s 2015 Incentive Compensation Plan, in an amount and on terms to be agreed upon by the parties. Dr. Fiorino will be entitled to an increased severance benefit in an amount equal to nine months’ annual base salary if his date of termination is on or before December 31, 2018, which will increase by one month for each month that he remains employed by the Company thereafter up to a maximum of 12 months. Except as amended by the Supplemental Employment Agreement, Dr. Fiorino’s existing employment agreement will remain in full force and effect.

 

The foregoing summary of the Supplemental Employment Agreement does not purport to be complete and is qualified in its entirety by reference to the Supplemental Employment Agreement, which is filed herewith as Exhibit 10.3 and incorporated by reference herein in its entirety.

 

  - 2 -  

 

 

There are no arrangements or understandings between Dr. Fiorino and any other persons pursuant to which he was selected as Interim Chief Executive Officer. There are also no family relationships between Dr. Fiorino and any director or executive officer of the Company, and he has no direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.

 

Item 9.01. Financial Statements and Exhibits

 

  (d) Exhibits

 

Exhibit

Number

  Description
10.1   Termination Agreement, dated as of August 28, 2018, by and between Immune Pharmaceuticals Inc. and Elliot M. Maza
10.2   General Release of Claims, dated as of August 28, 2018, by and between Immune Pharmaceuticals Inc. and Elliot M. Maza
10.3   Supplemental Employment Agreement, dated as of August 28, 2018, by and between Immune Pharmaceuticals Inc. and Tony Fiorino
     

 

 

  - 3 -  

 

  

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 thereunto duly authorized.

 

  IMMUNE PHARMACEUTICALS INC.
       
  By: /s/ John Clark  
  Name:  John Clark  
  Title: Corporate Secretary  

 

Date: August 28, 2018

 

 

 

  - 4 -  

Exhibit 10.1

 

August 28, 2018

 

Elliot Maza

150 Columbus Avenue, Apt 6D

New York, NY 10023

  

Re: Termination of Employment

 

Dear Elliot,

 

This letter summarizes the discussions between you and Immune Pharmaceuticals, Inc. (together with its subsidiaries, the “Company”), regarding the terms and conditions of the termination of your employment by the Company and your resignation as a member of the Company’s Board of Directors, effective immediately.

 

Reference is hereby made to the Employment Agreement, dated as of December 1, 2017 (the “Employment Agreement”), by and between you and the Company. Capitalized terms used herein have the respective meanings ascribed thereto in the Employment Agreement unless otherwise defined herein.

 

In consideration of your agreement to resign all positions held by you with the Company effective immediately and in lieu of and in complete satisfaction of your rights pursuant to Sections 4.2, 5.4 and 5.5 of the Employment Agreement, the Company agrees to pay to you an amount equal to $300,000 (the “Severance Amount”) and to waive any right it may have to seek to terminate your employment “For Cause” as specified in Section 5.3 of the Employment Agreement. The Severance Amount will be paid to you in equal installments over a nine (9) month period (net of applicable withholding) in accordance with the Company’s customary payroll practices; provided, however, that all outstanding installments shall be paid in full in a lump sum (net of applicable withholding) within 15 days of the consummation of a Company Sale (as defined below). As used herein, “Company Sale” means the acquisition by a third-party person, entity or “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) (collectively, an “Acquirer”) of (i) at least 50% of the voting power of the Company, (ii) the merger, consolidation or other similar business combination transaction pursuant to which the stockholders of the Company immediately prior to such transaction own less than 50% of the voting power of the Company or the successor thereto after giving effect to such transaction, or (iii) the sale, lease, exclusive license, assignment or other transfer of Bertilimumab or all or substantially all of the Company’s assets in one or a series of related transactions; provided, however, that in no event shall this clause (iii) include the disposal of the Company’s and its subsidiaries’ right, title and interest in Ceplene. In addition, if you timely and properly elect continuation coverage under the Consolidated Omnibus Reconciliation Act of 1985 (“COBRA”), then the Company will reimburse you for the cost of the monthly COBRA premium paid by you for you and your eligible dependents. You shall be eligible to receive such reimbursement until the earliest of: (x) the nine (9) month anniversary of the date the Severance Payment commences; (y) the date you are no longer eligible to receive COBRA continuation coverage; or (z) the date on which you either receive or becomes eligible to receive substantially similar coverage from another employer.

 

 

 

 

You hereby resign all positions held by you as an officer, director or employee of the Company, effective immediately and shall evidence your resignation by executing and delivering to the Company the resignation letter attached hereto as Exhibit A. Furthermore, as a condition to the payment of the Severance Amount and reimbursement of COBRA premiums you shall, simultaneously herewith, shall execute and deliver to the Company the General Release attached hereto as Exhibit B. The Company hereby accepts your resignation and is also delivering to you an executed counterpart of the General Release.

 

Except as expressly modified hereby, the terms of the Employment Agreement shall continue in full force and effect.

 

This Agreement shall be governed by and interpreted under the laws of the State of New York applicable to contracts made and to be performed therein without giving effect to the principles of conflict of laws thereof. Except in respect of any action commenced by a third party in another jurisdiction, the parties hereto agree that any legal suit, action, or proceeding against them arising out of or relating to this Agreement may be brought in the United States Federal Courts in the State of New York or the state courts, in the State of New York. By its execution hereof, the parties hereby irrevocably waive any objection and any right of immunity on the ground of venue, the convenience of the forum or the jurisdiction of such courts or from the execution of judgments resulting therefrom. The parties hereby irrevocably accept and submit to the jurisdiction of the aforesaid courts in any such suit, action or proceeding.

 

THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY ACTION OR PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.

 

 

 

 

This Agreement may be executed and delivered in counterparts, including by facsimile transmission or portable document format (“.pdf”), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

This Agreement shall be binding on successors and assigns.

 

[ Signature page immediately follows ]

 

 

 

  

If the forgoing accurately sets forth our agreement, please so indicate by executing a counterpart of this agreement where indicated below and returning it to me.

 

  Very truly yours,  
     
  IMMUNE PHARMACEUTICALS, INC.  
     
         
  By:  /s/ Jeffrey Paley, MD  
  Name: Jeffrey Paley, MD  
  Title: Chair of the Nominating and Corporate Governance  
    Committee of the Board of Directors  

 

ACCEPTED AND AGREED

 

 

/s/ Elliot Maza ________________

Elliot Maza

 

 

 

 

  

EXHIBIT A

 

Form of Resignation Letter

 

 

 

 

EXHIBIT B

 

Form of General Release

 

  

 

 

Exhibit 10.2

 

General Release of Claims

 

I, Elliot Maza (the “ Employee ”), in consideration of and subject to the performance by Immune Pharmaceuticals, Inc. (together with its subsidiaries, the “ Corporation ”), of its obligations under the Employment Agreement dated as of November 1, 2017, as modified by a letter agreement dated the date hereof (as so amended, the “ Agreement ”), do hereby release and forever discharge as of the date hereof the Corporation and its respective affiliates, subsidiaries and direct or indirect parent entities and all present, former and future directors, officers, agents, representatives, employees, successors and assigns of the Corporation and/or its respective affiliates, subsidiaries and direct or indirect parent entities (collectively, the “ Released Parties ”) to the extent provided below (this “ General Release ”). The Released Parties are intended to be third-party beneficiaries of this General Release, and this General Release may be enforced by each of them in accordance with the terms hereof in respect of the rights granted to such Released Parties hereunder. Terms used herein but not otherwise defined shall have the meanings given to them in the Agreement.

 

1.       Employee understands that any payments or benefits paid or granted to him under  Section 5.5 or Section 10.1  of the Agreement represent, in part, consideration for signing this General Release and are not salary, wages or benefits to which he was already entitled. Employee understands and agrees that he will not receive certain of the payments and benefits specified in  Section 5.5 or Section 10.1  of the Agreement unless he executes this General Release and does not revoke this General Release within the time period permitted hereafter.

 

2.       Employee agrees that he is not entitled to and will not seek any further consideration, including but not limited to, any wages, vacation pay, sick pay, disability pay, bonus, compensation, profit sharing contributions, restricted stock, stock options, payment or benefit from the Released Parties other than that to which he is entitled pursuant to the Agreement.

 

3.       In consideration of the payments and benefits to Employee provided herein and in the Agreement, Employee knowingly and voluntarily (for himself, his heirs, executors, administrators and assigns) releases and forever discharges the Corporation and the other Released Parties from any and all complaints, claims, liabilities, obligations, promises, agreements, damages, actions, causes of action, suits, rights, demands, losses, debts and expenses (including attorneys’ fees and costs), whether known or unknown, that Employee ever had, now has or hereafter can or may have arising or accruing at any time up to and including the date this General Release is fully executed, including any claims arising out of Employee’s employment with the Corporation or the termination of that employment based upon any theory of tort, contract or law and any prohibited acts under local, state and federal employment or benefits laws, including, without limitation, breach of any express or implied employment contract or agreement, wrongful discharge, breach of the implied covenant of good faith and fair dealing, intentional or negligent infliction of emotional distress, fraud, retaliation, misrepresentation, defamation, interference with prospective economic advantage, failure to pay wages due or other monies owed, and discrimination based on race, sex, age, religion, national origin, sexual orientation, disability, marital status, retaliation and any other protected characteristic (individually and collectively, “ Claims ”), except as to the enforcement of this General Release and any rights which cannot be waived as a matter of law. This includes a release of all rights and Claims, including, without limitation, any and all claims Employee may have under the National Labor Relations Act, the Age Discrimination in Employment Act as amended, the Older Workers Benefit Protection Act, Title VII of the Civil Rights Acts of 1964 as amended, the Civil Rights Act of 1870, the Americans with Disabilities Act of 1990 as amended, the Family and Medical Leave Act, the Fair Labor Standards Act of 1938 as amended by the Equal Pay Act of 1963, as amended, the Lilly Ledbetter Fair Pay Act of 2009, the Employee Retirement Income Security Act of 1974, the Civil Rights Act of 1991, the Sarbanes-Oxley Act, the U.S. Patriot Act, the Worker’s Adjustment and Retraining Notification Act, the Occupational Safety and Health Act, the Consolidated Omnibus Budget Reconciliation Act of 1985, the New York State Human Rights Law, the New York City Human Rights Law, the New York Labor Law, the New York Wage Theft Prevention Act, the New York the Worker’s Adjustment and Retraining Notification Act, as well as any other federal, state or local law, statute, ordinance, regulation or common law regarding employment, employment discrimination, termination, retaliation, equal opportunity, wages and hours, or otherwise. Employee specifically understands that he is releasing Claims based on race, color, sex, sexual orientation or preference, pregnancy, marital status, religion, national origin, citizenship, veteran status, disability, age and any other category protected by law.

 

     

 

 

4.       For the purpose of implementing a full and complete release and discharge of the Released Parties as set forth above, Employee acknowledges that this General Release is intended to include in its effect, without limitation, all claims known or unknown that you have or may have against the Released Parties which arise out of or relate to Employee’s employment, including but not limited to compensation, performance or termination of employment with the Corporation, except for, and notwithstanding anything in this General Release to the contrary, claims which cannot be released solely by private agreement. This General Release also excludes any claims relating to any right you may have to payments pursuant to Section 5.5 or Section 10.1, as applicable in the Agreement, any claim for workers’ compensation benefits and any rights you may have to indemnification or directors’ and officers’ liability insurance under the Corporation’s bylaws or certificate of incorporation, any indemnification agreement to which you are a party or beneficiary or applicable law, as a result of having served as an officer, director or employee of the Corporation or any of its affiliates.

 

5.       In the course of his employment with the Corporation prior to the date hereof, Employee may have had access to confidential and proprietary information and records, data and other trade secrets of the Corporation (“Confidential Information”). Confidential Information shall include, without limitation, the following types of information or material, both existing and contemplated, regarding the Corporation or its parents, subsidiaries, direct and indirect affiliated corporations and other entities:  corporate information , including plans, strategies, policies, resolutions, drawings, designs, proposals and any litigation or negotiations;  marketing information , including marketing and sales plans, strategies, methods, customer and/or supplier information, pricing information, prospects or market research data;  financial information , including cost and performance data, debt arrangement, equity structure, investors and holdings;  operational and scientific information , including trade secrets, confidential processes, specifications, expertise, techniques, inventions, concepts, ideas and technical information; and  personnel information , including personnel lists, resumes, personnel data, organizational structure, compensation structure and performance evaluations. Employee shall not directly or indirectly disclose Confidential Information to any person or entity or use any Confidential Information in any way. Employee represents and warrants that as of his Release Date, he has returned to the Corporation all property of the Corporation in his possession, including, but not limited to, all office equipment, computer equipment and peripherals (such as laptops, printers and memory sticks), cell phones, credit cards, keys, documents, manuals, procedures, notebooks and any other Confidential Information. In addition, Employee represents and warrants that he has deleted all of the Corporation’s Confidential Information from his personal computers, other memory devices and/or records.

 

  - 2 -  

 

 

6.       This General Release is not an admission by the Corporation of any liability. The Corporation specifically denies and disclaims any discrimination or injury to any person.

 

7.       The parties agree that this General Release may not be introduced in any proceeding, except to establish the settlement and release, the breach of this General Release, or as may be required by law or judicial directive.

 

8.       Employee agrees not to directly or indirectly take, support, encourage or participate in any activity or attempted activity which in any way would disparage the Corporation, its parents, subsidiaries and affiliated entities. Employee agrees not to write or speak about the Corporation, its parents, subsidiaries and affiliated entities in negative terms.

 

9.       Employee agrees that Employee will not disclose the existence or terms of this General Release except to his immediate family, tax advisor and attorney, federal or state taxing authorities, or as compelled by court process.

 

10.       Employee agrees to cooperate with the Corporation with respect to any past, present or future legal matters that relate to or arise out of Employee’s employment with the Corporation or in the event that any claim or action is brought against the Corporation concerning a matter which Employee may have knowledge or information. Employee’s cooperation may take the form of, among other things, Employee making himself reasonably available for interviews by the Corporation’s counsel, providing copies of any relevant documents Employee may have, and preparing to testify and testifying at depositions, informal and formal hearings, and trials. Such cooperation should not adversely interfere with any future positions Employee may obtain. Nothing in the General Release shall be construed to prohibit the Employee from cooperating with and participating in any investigation by or action taken by federal, state, or local administrative agencies, regulatory agencies, or law enforcement agencies. Furthermore, Employee’s cooperation with and participation in any investigation by, or action taken by, federal, state or local administrative agencies, regulatory agencies, or law enforcement agencies will not violate any provision of this Agreement.

 

11.       This General Release contains the complete understanding of the parties with respect to the subject matter hereof. No other promises or agreements shall be binding or shall modify this General Release unless reduced to writing and signed by the parties hereto or counsel for the parties.

 

  - 3 -  

 

 

12.       This General Release shall be governed by New York law without regard to conflicts of laws principles, and any action to enforce this General Release must be brought and heard in a court within the State of New York. The parties to this General Release consent to personal jurisdiction in New York in any action commenced to enforce its terms.

 

13.       Employee shall not institute nor be represented as a party in any lawsuit, claim, complaint or other proceeding against or involving the Corporation, its parents, subsidiaries or affiliated entities based on Employee’s employment with the Corporation or upon any act or omission occurring up to and including the date this General Release is fully executed, whether as an individual or class action, under any federal, state or local laws, rules, regulations or any other basis. Further, Employee shall not seek or accept any award or settlement from any such source or proceeding (not including unemployment insurance proceedings). In the event that Employee institutes, is a knowing participant, or is a willing member of a class that institutes any such action, Employee’s claims shall be dismissed or class membership terminated with prejudice immediately upon presentation of this General Release. This General Release does not affect Employee’s right to file a charge with the Equal Employment Opportunity Commission (“EEOC”), or any similar state or local agency, or to participate in any investigation conducted by the EEOC, or any similar state or local agency, but Employee acknowledges that he is not entitled to any monies other than those payments described in the Agreement.

 

14.       Nothing in this General Release prohibits Employee 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 or state law or regulation. Employee does not need the prior authorization of the Corporation to make any such reports or disclosures and Employee is not required to notify the Corporation that Employee has made such reports or disclosures. Further, this General Release does not limit Employee’s right to receive an award for information provided to any governmental agency or entity.

 

15.       Employee agrees that he will not make any applications for employment with Employer, its parents, subsidiaries or affiliated entities and further agrees that any application for employment he makes to such entities will violate this General Release and will be rejected by Employer or its parents, subsidiaries or affiliated entities pursuant to the terms herein.

 

16.       This General Release is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (“ 409A ”). Employer shall undertake to administer, interpret and construe the provisions of the General Release in a manner that does not result in the imposition of any additional tax, penalty or interest under 409A.

 

17.        Employee warrants he is fully competent to enter into this General Release and Employee acknowledges that he has been afforded the opportunity to review this General Release with an attorney, that he has been advised to consult with an attorney about this General Release prior to executing it, that Employee has read and understands this General Release and that Employee has signed this General Release freely and voluntarily.

 

  - 4 -  

 

 

PLEASE READ CAREFULLY. THIS GENERAL RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.

 

To signify their agreement to the terms of this General Release, the parties have executed this General Release on the dates set forth under their signatures which appear below.

 

 

Elliot Maza Immune Pharmaceuticals, Inc.
   
By: /s/ Elliot Maza                               By: /s/ Jeffrey Paley, MD                        
 

Name: Jeffrey Paley, MD

Title: Chair of the Nominating and

Corporate Governance Committee

of the Board of Directors

 

Date: August 28, 2018 Date: August 28, 2018

 

  - 5 -  

Exhibit 10.3

 

First Amendment to Employment Terms

  

Whereas, Anthony Fiorino, MD, PhD (“Executive” or “You”) is currently employed by Immune Pharmaceuticals Inc. (the “Company;” collectively, the “Parties”) as the Company’s Chief Medical Officer and Chief Operating Officer; and

 

Whereas, the Parties are bound by a Letter Agreement dated August 14, 2017, specifying the terms and conditions of Executive’s employment (the “Unamended Agreement”); and

 

Whereas, the Company seeks to appoint you as Interim Chief Executive Officer (“CEO”) and therefore seeks to amend the agreement in accordance with Section 14 of the Agreement.

 

Accordingly, the following changes (this “First Amendment”) are hereby incorporated into the Agreement, effective August 28, 2018.

  

Section 1 (“Position and Duties”) of the Unamended Agreement states:

 

You will function as the Chief Medical Officer and Chief Operating Officer of the Company, responsible for all scientific and medical research, pre-clinical and clinical development and drug manufacturing activities and, in addition, will perform all duties as determined necessary by the Chief Executive Officer. This position is full-time for which you agree to devote 100% of your working hours.

 

And is hereby replaced with:

 

You have functioned until now as the Chief Medical Officer and Chief Operating Officer of the Company (your “Prior Role”); henceforth you will function as the Interim Chief Executive Officer (“CEO”) of the Company for the Term specified in Section 2. If your term as Interim CEO concludes owing to the Company appointing another party to the position of CEO, then you will resume your Prior Role, subject to the terms and conditions of the Unamended Agreement, except where otherwise noted in this First Amendment.

 

In your position as Interim CEO, you will report directly to the Board of Directors of the Company (the “Board”) and perform such duties and responsibilities as may be properly and lawfully required from time to time by the Board, with your principal work place being at the Company’s offices in Fort Lee, New Jersey. You will devote sufficient business time, energy and talent to serving as Interim CEO, and will perform your duties conscientiously and faithfully, subject to the reasonable and lawful directions of the Board and in accordance with the policies, rules and decisions adopted from time to time by the Company and the Board.

 

In addition, during your tenure as Interim CEO, you will be appointed to the Board. subject to re-election by stockholders. Due to your status as an insider during the Term, you will not receive any non-employee director cash retainers or other cash compensation under the Company’s director compensation program for your services as a director; however, you will be entitled to receive the same type of annual equity award for the same number of shares of the Company’s common stock, with the same terms and at the same time, as such annual equity awards that you would have been entitled to receive had you continued to serve as one of the Company’s executives (the “New Equity Awards”). The vesting and/or exercisability of outstanding equity awards and the New Equity Awards will continue during and after the Term in the same manner as the annual equity awards to the Company’s non-employee directors. The Company may elect for you to remain on the Board following the end of the Term.

 

  1  

 

 

The following is hereby appended to Section 2 (“Term”) of the Unamended Agreement:

 

Your term as Interim CEO begins on the Effective Date of the Amendment and will end upon the earlier of (a) the date on which a successor CEO is hired and begins employment with the Company, (b) the date on which you are named non-interim CEO, or (c) the date of your termination of employment pursuant to Section 8 below. Notwithstanding any change in position or title or this First Amendment or subsequent amendments, the Effective Date of the Unamended Agreement for purposes of salary, severance, stock option vesting and all related matters shall remain August 15, 2017.

 

Section 3 (“Compensation”) of the Unamended Agreement states in Paragraph (a) (“Annual Base Salary”):

 

Your annual base salary shall be $300,000 until the closing by the Company of one or more subsequent financings with gross proceeds to the Company equal to $5,000,000 in the aggregate, and $360,000 thereafter; , less required and authorized deductions (the "Base Salary"), with such Base Salary paid to you on a semi-monthly basis in accordance with the Company’s regular payroll practices.

 

And is hereby replaced with:

 

Your initial annual “Base Salary” shall be $400,000, less required and authorized deductions (the "Base Salary"), with such Base Salary paid to you on a semi-monthly basis in accordance with the Company’s regular payroll practices. If you resume your Prior Role, your base salary shall be adjusted according to the provisions in Section 3 of the Unamended Agreement, under which, for the avoidance of doubt, you were to have received an annual raise as specified in the unamended Agreement on August 15, 2018. In this case, the annual raise will be made effective as of the date you resume your Prior Role; however, the Effective Date for future base salary adjustments shall remain August 15.

 

  2  

 

 

Section 3 (“Compensation”) of the Unamended Agreement further states in Paragraph a (“Annual Base Salary”):

 

Your Base Salary will be reviewed on an annual basis and may be modified, at the sole discretion of the Chief Executive Officer in consultation with the Compensation Committee of the Board of Directors of the Company (the “Board”) but in no case will you receive an annual raise of less than the percentage increase (if any) in the Consumer Price Index: Urban Wage Earners and Clerical Workers for the N.Y. Northeastern N.J. region as published by the U.S. Bureau of Labor Statistics during the immediately preceding 12-month period running from October 1st through September 30th.

 

And is hereby replaced with:

 

Your Base Salary will be reviewed on an annual basis and may be modified at the sole discretion of the Compensation Committee of the Board of Directors of the Company (the “Board”), but in no case will you receive an annual raise of less than the greater of (i) 3% or (ii) the percentage increase (if any) in the Consumer Price Index: Urban Wage Earners and Clerical Workers for the N.Y. Northeastern N.J. region as published by the U.S. Bureau of Labor Statistics during the immediately preceding 12-month period running from October 1st through September 30th. For avoidance of doubt, any raise in your Base Salary will become effective no later than the annual anniversary of the Effective Date (August 15).

 

Section 3 (“Compensation”) of the Unamended Agreement states in Paragraph b (“Bonus”):

 

You will be eligible for periodic and annual cash incentive awards during the Term, upon your achievement of mutually agreed upon goals, in amounts to be determined by the Chief Executive Officer in consultation with the Compensation Committee of the Board. Your annual bonus will be a minimum of 10% of your annual Base Salary.

 

And is hereby replaced with:

 

You will be eligible for periodic and annual cash incentive awards during the Term, upon your achievement of goals developed and mutually agreed to by you and the Board (“Goals”) and provided to you in writing prior to the start of each calendar year. The total amount of such award will consist of a “Performance Bonus” to be determined by the Compensation Committee of the Board, up to 60% of your annual Base Salary, plus a “Minimum Bonus” that will in no case will be less than 15% of your annual Base Salary. Should the Board fail to provide you with Goals by March 1 in any calendar year, then your Minimum Bonus for that year will be 40% of your annual Base Salary. For avoidance of doubt, if you are the CEO of the Company (interim or non-interim) on December 31, 2018, any cash incentive award for 2018 shall be determined according to the metrics described in this paragraph and not according to your Prior Role.

 

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The following is appended to Paragraph c (“Equity”) of Section 3 (“Compensation”) of the Unamended Agreement:

 

In conjunction with your appointment as Interim CEO, you are eligible to receive options to purchase shares of the Company’s stock, at a price per share equal to the fair market value of the common stock on the date of the grant. The number of options and vesting schedule will be negotiated separately. These options will be subject to acceleration as provided for in Sections 9 (“Severance”) and 11 (“Change of Control”) below.

 

Section 9 (“Severance”) of the Unamended Agreement states:

 

The “Severance Period” shall be determined as follows: (i) if your Termination Date is before the one-year anniversary of the Effective Date, the Severance Period shall be three (3) months; (ii) if your Termination Date is after the one-year anniversary of the Effective Date but before the two-year anniversary of the Effective Date, the Severance Period shall be six (6) months; (iii) if your Termination Date is on or after the two-year anniversary of the Effective Date and before the three-year anniversary of the Effective Date, the Severance Period shall be nine (9) months; and (iv) if your Termination Date is on or after the three-year anniversary of the Effective Date, the Severance Period shall be twelve (12) months.

 

And is hereby replaced with:

 

The “Severance Period” shall be nine (9) months if your Termination Date is on or before December 31, 2018 and shall increase by one (1) month for each month that you remain employed by the Company after that date. However, the Severance Period shall not accrue to more than twelve (12) months. If you return to your Prior Role, your “Severance Period” will be calculated according to Section 9 of the Unamended Agreement, with one (1) month added if the Severance Period according to the Unamended Agreement is less than twelve (12) months.

 

The following Section 12 shall be added with the subsequent Sections, beginning with Section 12 (“Non-Disparagement”) and through 20 (“Section 409A of the Internal Revenue Code, as amended”) to be renumbered as Sections 13-21.

 

12.    Indemnification and Insurance.

 

The Company will indemnify you with respect to activities in connection with your employment as Interim CEO and as an Executive of the Company should you resume your Prior Role, to the full extent provided for in its corporate charter, Bylaws or any other indemnification policy or procedure as in effect from time to time and applicable to its other directors and senior executive officers. In addition, you will be named as an insured in your capacities as Interim CEO and as director of the Company on the director and officer liability insurance policy currently maintained, or as may be maintained, by the Company from time to time.

 

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Section 18 (“Notices”) of the Unamended Agreement states:

 

If to Executive:

 

  Anthony S. Fiorino, MD, PhD
  1510 Summit Avenue, Apartment 501
  Union City, NJ 07087

 

and:

 

  308 Churchill Road
  Teaneck, NJ  07666

 

and:

 

  fiorino@alum.mit.edu

 

if to the Company:

 

  Immune Pharmaceuticals Inc.
  550 Sylvan Avenue, Suite 101
  Englewood Cliffs, NJ 07632
  Att: Chief Executive Officer

 

And is hereby replaced with:

 

If to you, the current contact information maintained in your personnel file

  

if to the Company:

 

  Immune Pharmaceuticals Inc.
  One Bridge Plaza North, Suite 270
  Fort Lee, NJ 07024
  Attn: Board of Directors and Corporate Counsel

  

[SIGNATURE PAGE TO FOLLOW]

 

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Agreed to and accepted on this 28 th day of August 2018.

 

  Immune Pharmaceuticals Inc.  
       
       
  /s/ Jeffrey Paley, MD  
  Name: Jeffrey Paley, MD  
  Title: Chair of the Nominating and Corporate Governance  
    Committee of the Board of Directors  

  

 

  /s/ Tony Fiorino  
  Anthony (“Tony”) Fiorino, MD, PhD  

 

[REMAINDER OF PAGE IS BLANK]

 

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