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): July 5, 2019

 

Anika Therapeutics, Inc.

(Exact name of registrant as specified in its charter)

------------------------

 

Delaware   000-21326   04-3145961
(State or other jurisdiction of   Commission file number   (I.R.S. Employer
incorporation or organization)   Identification No.)    

 

 

32 Wiggins Avenue, Bedford, MA 01730

(Address of principal executive offices) (Zip code)

 

(781)-457-9000

Registrant’s telephone number, including area code:

 

Not applicable

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

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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))

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
Common Stock, par value $0.01 per share   ANIK   NASDAQ Global Select Market

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

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.

 

Effective July 8, 2019, we entered into a separation agreement (the “Separation Agreement”) with Edward S. Ahn, Ph.D., in connection with the previously-announced departure of Dr. Ahn from his position as our Chief Technology and Strategy Officer. Pursuant to the Separation Agreement, among other items, Dr. Ahn will receive severance pay equal to his final base salary, annualized $364,814, for twelve months following his departure on our regular payroll schedule, subject to applicable tax withholdings. In addition, Dr. Ahn will receive health benefits continuation for twelve months, subject to COBRA. The Separation Agreement is consistent with the terms of the Executive Retention Agreement previously executed between Dr. Ahn and us. Dr. Ahn continues to be bound by the terms and conditions of the non-disclosure and non-competition agreement executed in connection with his employment by us. Additionally, in consideration of the separation pay and benefits provided by the Separation Agreement, Dr. Ahn has provided Anika and its affiliates with a general release of claims.

 

In addition, effective July 5, 2019, we entered into a consulting agreement (the “Consulting Agreement”) with Dr. Ahn pursuant to which he will furnish us with reasonable consulting services as requested by us and will be compensated by us at a rate of $250 per hour.

 

The foregoing description of the terms of the Separation Agreement and Consulting Agreement do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the Separation Agreement and Consulting Agreement, which are included as Exhibit 10.1 and Exhibit 10.2, respectively, to this Form 8-K and are incorporated herein by reference.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits.

       
Exhibit
Number
  Description  
10.1   Separation Agreement, effective July 8, 2019, by and between Anika Therapeutics, Inc. and Edward S. Ahn, Ph.D.  
10.2   Consulting Agreement, effective July 5, 2019, by and between Anika Therapeutics, Inc. and Edward S. Ahn, Ph.D.  

 

 

 

 

SIGNATURE

 

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

 

    Anika Therapeutics, Inc.
       
Date: July 10, 2019   By:   /s/ Sylvia Cheung             
      Chief Financial Officer

 

 

 

Exhibit 10.1

 

June 24, 2019

 

Dr. Edward Ahn

175 Dedham St.

Dover, MA 02030

 

 

Re:          Separation Agreement

 

Dear Ed:

 

This letter confirms the decision we have made to terminate your employment with Anika Therapeutics, Inc. (“ Anika ” or the “ Company ”) effective July 5, 2019. This letter also proposes an agreement between you and Anika consistent with the Executive Retention Agreement executed between you and Anika on April 9, 2019.

 

Entitlements and Obligations

 

Regardless of whether you enter into an agreement with the Company, the Company shall:

 

· pay you compensation that accrues to you through the date of termination of your employment;

 

· pay you for all accrued but unused vacation time due to you through the date of termination of your employment;

 

· provide you with the right to continue group medical and dental care coverage after the termination of your employment under the law known as “COBRA,” which will be described in a separate written notice, with the Company paying certain expenses associated therewith as set forth below; and

 

· reimburse you for any outstanding, reasonable business expenses that you have incurred on the Company’s behalf through the termination of your employment, after the Company’s timely receipt of appropriate documentation pursuant to the Company’s business expense reimbursement policy.

 

You shall also have the right to exercise any and all vested options that you hold to purchase common stock of the Company pursuant to and subject to the terms of the grant instruments that have been provided to you over time (the “Equity Grants”). Consistent with the terms of the Equity Grants, you will not vest further in the Equity Grants beyond the last day of your employment.

Dr. Edward Ahn

June 24, 2019

Page 2

For your part, regardless of whether you enter into an agreement with the Company, you are subject to continuing obligations under your October 30, 2014 Anika Therapeutics, Inc. Employee Non-Disclosure and Non-Competition Agreement (the “ Non-Disclosure and Non-Competition Agreement ”), including your obligations to maintain the confidentiality of Company confidential information, return Company documents and other property and, for twelve months after employment ends, refrain from certain solicitation and competition activities.

 

Agreement

 

The remainder of this letter proposes an agreement (the “ Agreement ”) between you and the Company. The purpose of this Agreement is to establish an amicable arrangement for ending your employment relationship, including releasing the Company and related persons or entities from any claims and permitting you to receive separation pay and related benefits.

 

You acknowledge that you are entering into this Agreement knowingly and voluntarily. It is customary in employment separation agreements for the departing employee to release the employer from any possible claims, even if the employer believes, as is the case here, that no such claims exist. By proposing and entering into this Agreement, the Company is not admitting in any way that it violated any legal obligation that it owed to you.

 

With those understandings and in exchange for the promises of you and the Company set forth below, you and the Company agree as follows:

 

1. Transition Assistance Period

 

From now (June 24, 2019) through July 5, 2019, you will continue to be employed by the Company on a full-time basis. Effective as of the close of business July 5, 2019, you and the Company agree that your employment will terminate (the “ Termination Date ”). The period from now through the Termination Date shall be the “ Transition Assistance Period .” As of the Termination Date, your salary will cease, and any entitlement you have or might have under a Company-provided benefit plan, program, contract or practice will terminate, except as required by federal or state law, or as otherwise described below.

 

2. Transition Pay

 

During the Transition Assistance Period, the Company will continue to pay you your base salary at a bi-weekly rate of $14,031.29, in accordance with the Company’s regular payroll practices, less applicable withholdings and deductions, and will continue your employee benefits as a full-time employee. On the Termination Date, the Company will pay to you the balance of all accrued salary payments and any accrued but unused vacation as of that date. You acknowledge that the Company has paid you for all salary then due to you for the payroll dates preceding the date of this letter and that as of the date of this letter, you have an accrued and unused balance of 26.03 hours of vacation time. You are also eligible for reimbursement of reasonable travel and other business expenses incurred during the Transition Assistance Period prior to the Termination Date. All expense reimbursement will be subject to substantiation and documentation in accordance with Company policy. For your part, you will continue during the Transition Assistance Period to perform your duties in a professional, competent, and conscientious manner and you will continue to comply with all applicable Company policies and practices and to comply with all directives that you receive. Should you fail to do so, the Company reserves the right to accelerate the Termination Date without prejudice to any other term of this Agreement. You agree that during the Transition Assistance Period you will provide transitional assistance and perform other work services as required of you by your supervisor(s) and/or your replacement. You agree that you will perform services for the Company either from the Company’s offices or from your personal residence, as determined by the Company.

 

Dr. Edward Ahn

June 24, 2019

Page 3

3. Severance Pay

 

(a)             Severance Pay Period . The Company shall pay you severance pay (“ Severance Pay ”) consisting of salary continuation at your final base salary rate, a bi-weekly rate of $14,031.29, for the fifty-two (52) week period immediately following the Termination Date (the “ Severance Pay Period ”).

 

(b)            Timing and Form of Severance Pay . The Company shall pay you Severance Pay on its regular payroll dates, provided that the Company shall not be obligated to include you on the payroll before this Agreement becomes effective, as defined in Section 24 below. If the Company does not make one or more payments of Severance Pay on a regular payroll date because this Agreement has not yet become effective, the Company shall make all such delayed payments by the first payroll date when it is practicable to do so after the Agreement becomes effective. Severance Pay shall be subject to all applicable tax-related deductions and withdrawals.

 

(c)             Obligations During Severance Pay Period . As a condition to your receipt of Severance Pay, you shall provide up to a total of twenty (20) hours of transitional assistance to the Company during the Severance Pay Period when reasonably requested by the Company, provided that you shall not be required to provide such assistance at any times that would unreasonably interfere with your search for new employment. You shall not be required to travel to the Company’s offices or other locations to provide such transitional assistance.

 

(d)            No Other Payments . You will not be entitled to any other compensation, except for compensation pursuant to this Agreement.

 

4. Taxes .

 

Except as noted herein, all payments set forth in this Agreement shall be subject to all applicable federal, state, and/or local withholding and/or payroll taxes, and the Company may withhold from any amounts payable to you (including any amounts payable pursuant to this Agreement) in order to comply with such withholding obligations. You further agree that, if the Company does not withhold an amount sufficient in all respects to satisfy the withholding obligations of the Company, you will make prompt reimbursement on demand, in cash, for the amount under-withheld. You acknowledge that you have had the opportunity to consult with a competent advisor concerning all of the tax consequences of the transactions set forth herein including, but not limited to, the provisions of Section 409A of the Internal Revenue Code of 1986, as amended.

 

Dr. Edward Ahn

June 24, 2019

Page 4

5.               Employee Benefits.

 

As set forth above, you shall have the right to continue medical, dental, and/or vision plan coverage under and subject to COBRA after July 31, 2019 for the following twelve-month period.  For the avoidance of doubt, you shall be responsible for copayment of the premium amounts at the active employees’ rate and the Company will pay the employer portion of the premium. You shall be responsible for payment of the entire premium and any other amounts necessary to maintain COBRA coverage for any month beginning after July 31, 2020. Notwithstanding the foregoing, if the Company’s payment of the COBRA premiums is deemed to violate the nondiscrimination rules of the Patient Protection and Affordable Care Act of 2010, and/or any guidance or regulations underlying such rules, the Company shall not pay any expenses related to such coverage, but instead you shall receive a lump sum cash payment from the Company equal to twelve (12) times the applicable portion of the monthly COBRA premiums that would be required to keep your coverage in place at the time of your separation from employment with the Company, with such lump sum payment to be made within thirty (30) days following any determination of violation of such nondiscrimination rules. You understand that your participation in all other employee benefit plans will end due to the termination of your employment in accordance with the terms of those plans.

 

6. Return of Company Files, Documents or Other Property

 

You confirm that you will return to the Company all Company property, including, without limitation, computer equipment, personal computers, laptops, fax machines, scanners, copiers, diskettes, intangible information stored on diskettes, software and data, software passwords or codes, tangible copies of trade secrets and confidential information, cellular phones, smart phones, tablets, keys and access cards, credit cards, manuals, building keys and passes, files, names and addresses of all Company customers and potential customers, customer lists, customer contacts, sales information, memoranda, sales brochures, marketing materials, press clippings, business or marketing plans, reports, projections and any other documents (including computerized data and any copies made of any computerized data or software) containing information concerning the Company, its business or its business relationships (in the latter two cases, actual or prospective) (collectively, “Company Property”) no later than the Termination Date. In the event that you subsequently discover that you continue to retain any Company Property, you agree that you will return such property to the Company immediately.

 

Dr. Edward Ahn

June 24, 2019

Page 5

7. Release of Claims

 

In consideration for, among other terms, the payments and benefits described in Sections 2, 3 and 5 and other good and valuable consideration, the receipt of which you hereby acknowledge, you and your representatives, agents, estate, heirs, successors and assigns (“You”) voluntarily, absolutely and unconditionally hereby release, remise, discharge, indemnify and hold harmless the Company, its subsidiaries, affiliated and related entities, its and their respective predecessors, successors and assigns, its and their respective employee benefit plans and fiduciaries of such plans, and the current and former officers, directors, shareholders, trustees, investors, shareholders/stockholders, employees, attorneys, accountants, and agents of the Company, all of the foregoing both in their official and individual capacities (collectively referred to as the “ Releasees ”) generally from any and all actions or causes of action, suits, complaints, claims, demands, agreements, promises, contracts, torts, debts, damages, controversies, judgments, rights, and liabilities of every name and nature, whether existing or contingent, known or unknown (“ Claims ”) that, as of the date when you sign this Agreement, you have, ever had, now claim to have or ever claimed to have had against any or all of the Releasees. This release includes, without limitation, any and all Claims:

 

· Arising out of, in connection with, or relating to your employment, change in employment status, and/or termination of employment with the Company;
· Arising out of or in connection with any relationship between You and the Company;
· Of wrongful discharge;
· Based on any federal, state, or local law, constitution, or regulation regarding either securities, employment, employment benefits, or employment discrimination and/or retaliation including, without limitation, those laws or regulations concerning discrimination on the basis of race, color, creed, religion, age, sex, sexual harassment, sexual orientation, sexual/gender identity, marital status, pregnancy or familial status, physical or mental disability or handicap, unfavorable military discharge, national origin, ancestry, veteran status or any military service or application for military service, or any other characteristic protected by law (including, without limitation, Claims of age discrimination or retaliation under the Age Discrimination in Employment Act, Claims of disability discrimination or retaliation under the Americans with Disabilities Act, and Claims of discrimination or retaliation under Title VII of the Civil Rights Act of 1964);
· Based on any contract whether oral or written, express or implied (including, but not limited to the Offer Letter);
· Under any other federal or state statute (including, without limitation, Claims under the Family and Medical Leave Act);
· Of any torts;
· Of common law statutory or equitable claims including but not limited to actions in defamation, intentional infliction of emotional distress, misrepresentation, fraud, wrongful discharge, breach of contract, breach of the covenant of good faith and fair dealing, unfair competition, and any claims to any non-vested ownership interest in the Company;
· Of violation of public policy;
· For wages, bonuses, incentive compensation, stock options, vacation pay, or any other compensation or benefits, either under the Massachusetts Wage Act, M.G.L. c. 149, §§148-150C, or otherwise; and
· for damages or other remedies of any sort, including, without limitation, compensatory damages, punitive damages, injunctive relief, and attorney’s fees.

 

Dr. Edward Ahn

June 24, 2019

Page 6

 

This release is intended by you to be all encompassing and to act as a full and total release of any Claims, whether specifically enumerated herein or not, that you may have or have had up to the Effective Date of this Agreement, provided , however, that this release shall not affect your rights, if any, under the Company’s Section 401(k) Plan, the Equity Grants, or this Agreement.

 

You agree that you shall not seek or accept damages of any nature, other equitable or legal remedies for your own benefit, attorney’s fees, or costs from any of the Releasees with respect to any Claim. As a material inducement to the Company to enter into this Agreement, You represent that you have not assigned to any third party and you have not filed with any agency or court any Claim released by this Agreement.

 

8. Accord and Satisfaction

 

The payments set forth in Sections 2 and 3 shall be complete and unconditional payment, settlement, accord, and/or satisfaction with respect to all obligations and liabilities of the Releasees to You and with respect to all claims, causes of action, and damages that could be asserted by You against the Releasees regarding your employment with, change in employment status, and/or termination of employment from, the Company, including, without limitation, all claims for back wages, salary, vacation pay, sick pay, draws, incentive pay, bonuses, stock and stock options, equity, commissions, severance pay, any and all other forms of compensation or benefits, attorney’s fees, or other costs or sums.

 

9. No Liability or Wrongdoing

 

The parties hereto agree and acknowledge that this Agreement is intended only to purchase peace and nothing contained in this Agreement, nor any of its terms and provisions, nor any of the negotiations or proceedings connected with it, constitutes, will be construed to constitute, will be offered in evidence as, received in evidence as and/or deemed to be evidence of an admission of liability or wrongdoing by any and/or all of the Releasees, and any such liability or wrongdoing is hereby expressly denied by each of the Releasees.

 

Dr. Edward Ahn

June 24, 2019

Page 7

10. Confidentiality

 

(a)             You acknowledge that you currently are and will remain bound by the terms and conditions of the Non-Disclosure and Non-Competition Agreement, which shall remain in full force and effect in accordance with its terms. Except as specifically set forth herein, nothing in this Agreement shall be construed to supersede the terms and conditions of the Non-Disclosure and Non-Competition Agreement. Notwithstanding the foregoing, You acknowledge that during your employment with the Company, the Company provided you with access to Confidential Information (as defined below) and other valuable resources and assets to which you would not have had access but for your employment with the Company. You will not use, disclose or reveal any Confidential Information of the Company or any of the Releasees (as defined in Section 7) except when acting with prior written authorization from a duly authorized Company officer. For purposes of this Agreement, you understand that the term “Confidential Information” means any information relating to the business of the Company or any of the Releasees (whether or not obtained, acquired, or developed by you), that has value to the Company or the Releasees and that you learned about or had access to through your employment with the Company. Confidential Information does not include (1) any specific information that the Company has voluntarily disclosed to the public without any unauthorized disclosure by you or anyone else, (2) information that has been independently developed and disclosed by others, or (3) information that is deemed not confidential under Section 7 of the National Labor Relations Act or other applicable law. By signing this Agreement, you acknowledge that through this Agreement, the Company has provided you with written notice that the Defend Trade Secrets Act, 18 U.S.C. Section 1833(b), provides an immunity for the disclosure of a trade secret to report suspected violations of law and/or in anti-retaliation lawsuit, as follows:

 

1) IMMUNITY. -- An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that --

(A) is made --

(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and

(ii) solely for the purpose of reporting or investigating a suspected violation of law; or

(B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

(2) USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. -- An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual --

(A) files any document containing the trade secret under seal; and

(B) does not disclose the trade secret, except pursuant to court order.

 

(b)            You agree to keep the existence, substance and terms of this Agreement, including any discussions or negotiations relating to this Agreement (“ Agreement-Related Information ”) in the strictest confidence and not reveal, unless legally compelled to do so, any Agreement-Related Information to any persons except your immediate family, your attorney and your financial advisors, and to them only provided that they first agree for the benefit of the Company to keep Agreement-Related Information confidential. Any violation of this provision will be deemed a material breach of this Agreement. Nothing in this Section shall be construed to prevent you from disclosing Agreement-Related Information to the extent required by a lawfully issued subpoena or duly issued court order; provided that you provide the Company with advance written notice and a reasonable opportunity to contest such subpoena or court order.

 

(c)             Notwithstanding the foregoing, nothing herein shall prohibit or bar you from seeking assistance from, providing truthful testimony in any legal proceeding, or in communicating with any governmental agency or representative, or from making any truthful disclosure required, authorized or permitted under law; provided, however, that in providing such testimony or making such disclosures or communications, you will use your best efforts to ensure that this Section 10 is complied with to the maximum extent possible. In addition, you will be prohibited to the fullest extent authorized by law from obtaining monetary damages in any agency proceeding in which you do participate. Finally, any non-disclosure provision in this Agreement does not prohibit or restrict you (or any representative) from initiating communications directly with, or responding to any inquiry from, or providing testimony before, the SEC, FINRA, any other self-regulatory organization, or any other state or federal regulatory authority, regarding this Agreement or is underlying facts or circumstances.

 

Dr. Edward Ahn

June 24, 2019

Page 8

(d)            The Company agrees to keep the existence, substance and terms of this Agreement, including any discussions or negotiations relating to this Agreement (“ Agreement-Related Information ”) in the strictest confidence and not reveal any Agreement-Related Information to any third parties, except when legally required, including in accordance with the rules and regulations of the United States Securities and Exchange Commission, or as necessary for legitimate internal business purposes.

 

11. Mutual Nondisparagement

 

(a)             You agree not to take any action or make any statements, written or oral, which disparages or criticizes the Company or any of its affiliates or current or former officers, directors, shareholders, management, employees, agents, or any other parties involved in a business relationship with the Company, or its practices, or which disrupts or impairs its normal operations, including actions that would (1) harm the reputation of the Company with its current and prospective customers, distributors, suppliers, other business partners, or the public; or (2) interfere with existing contractual or employment relationships with current and prospective customers, suppliers, distributors, other business partners, or Company employees. You further agree not to take any actions or conduct yourself in any way that would reasonably be expected to affect adversely the reputation or goodwill of the Company or any of its affiliates or any of its current or former officers, directors, shareholders, employees, or agents.

 

(b)            The Company agrees that it will instruct its directors and its officers and executive officers, at or above the rank of Vice President, not to take any action or make any statements, whether written or oral, that could reasonably be interpreted as disparaging or critical of you, personally or professionally. You understand and agree that it will not be a violation of this Section 7(b) for the above-referenced individuals to generally discuss for legitimate internal business purposes the performance of the Company and individuals under your supervision during your employment with Anika. In addition, the foregoing non-disparagement obligations shall not in any way affect the Company or its employees obligations to testify truthfully in any legal proceeding.

 

12. Disclosures

 

Nothing herein shall prohibit or bar you from providing truthful testimony in any legal proceeding or in communicating with any governmental agency or representative or from making any truthful disclosure required, authorized, or permitted under law, provided, however, that in providing such testimony or making such disclosures or communications, you will use your best efforts to ensure that this Section is complied with to the maximum extent possible. In addition, any non-disclosure provision in this Agreement does not prohibit or restrict you (or your attorney, if applicable) from initiating communications directly with, or responding to any inquiry from, or providing testimony before, the SEC, FINRA, any other self-regulatory organization, or any other state or federal regulatory agency regarding this Agreement or its underlying facts or circumstances. Furthermore, nothing in this Agreement shall bar or prohibit you from contacting, seeking assistance from or participating in any proceeding before any federal or state administrative agency to the extent permitted by applicable federal, state, and/or local law. However, you nevertheless will be prohibited from the fullest extent authorized by law from obtaining monetary damages in any agency proceeding in which you do so participate.

 

Dr. Edward Ahn

June 24, 2019

Page 9

13. References

 

You agree to direct any potential employers seeking reference information about you to contact the Company’s Chief Human Resources Officer, or his designee. Consistent with the Company’s Reference Policy, if contacted, the Chief Human Resources Officer will respond to a reference inquiry solely by confirming title and dates of employment.

 

14. Future Cooperation

 

You agree that during and after the Severance Pay Period, you shall cooperate reasonably with the Company and any affiliates (including its and their outside counsel) in connection with (i) the contemplation, prosecution, and defense of all phases of existing, past, and future litigation about which the Company believes you may have knowledge or information; and (ii) responding to requests for information from regulatory agencies or other governmental authorities (together “ Cooperation Services ”). You further agree to make yourself available to provide Cooperation Services at mutually convenient times during and outside of regular business hours as reasonably deemed necessary by the Company’s counsel. The Company shall not utilize this section to require you to make yourself available to an extent that would unreasonably interfere with full-time employment responsibilities that you may have. Cooperation Services include, without limitation, appearing without the necessity of a subpoena to testify truthfully in any legal proceedings in which the Company or an affiliate calls you as a witness. The Company shall reimburse you for any reasonable travel expenses that you incur due to your performance of Cooperation Services, after receipt of appropriate documentation consistent with the Company’s business expense reimbursement policy.

 

15. Termination or Suspension of Payments

 

In the event that you fail to comply with any of your obligations under this Agreement, or the Non-Disclosure and Non-Competition Agreement, in addition to any other legal or equitable remedies it may have for such breach, the Company shall have the right to either delay or not pay the Severance Pay. The delay or nonpayment of the Severance Pay, in the event of such breach by you, will not affect your continuing obligations under this Agreement. Notwithstanding the foregoing, this provision shall not apply to the extent that your breach of this Agreement consists of initiating a legal action in which you contend that the release set forth in Section 7 is invalid, in whole or in part, due to the provisions of 29 U.S.C. § 626(f).

 

Dr. Edward Ahn

June 24, 2019

Page 10

16. Legal Representation

 

This Agreement is a legally binding document and your signature will commit you to its terms. You acknowledge that you have been advised to discuss all aspects of this Agreement with an attorney, that you have carefully read and fully understand all of the provisions of this Agreement, and that you are voluntarily entering into this Agreement.

 

17. Absence of Reliance

 

In signing this Agreement, you are not relying upon any promises or representations made by anyone at or on behalf of the Company.

 

18. Enforcement

 

(a)        Jurisdiction . You and the Company hereby agree that the Superior Court of the Commonwealth of Massachusetts and the United States District Court for the District of Massachusetts shall have the exclusive jurisdiction to consider any matters related to your employment with the Company or this Agreement, including without limitation any claim for violation of this Agreement. With respect to any such court action, you (i) submit to the jurisdiction of such courts, (ii) consent to service of process, and (iii) waive any other requirement (whether imposed by statute, rule of court or otherwise) with respect to personal jurisdiction or venue.

 

(b)        Relief . You agree that it would be difficult to measure any harm caused to the Company that might result from any breach by you of your promises set forth in Sections 6-12 of this Agreement and that in any event money damages would be an inadequate remedy for any such breach. Accordingly, you agree that if you breach, or propose to breach, any portion of your obligations under Sections 6-12 of this Agreement the Company shall be entitled, in addition to all other remedies it may have, to an injunction or other appropriate equitable relief to restrain any such breach, without showing or proving any actual damage to the Company and without the necessity of posting a bond. In the event that the Company prevails in any action to enforce Sections 6-12 of this Agreement, you also shall be liable to the Company for attorney’s fees and costs incurred by the Company in enforcing such provision(s).

 

19. Governing Law; Interpretation

 

This Agreement shall be interpreted and enforced under the laws of the Commonwealth of Massachusetts, without regard to conflict of law principles. In the event of any dispute, this Agreement is intended by the parties to be construed as a whole, to be interpreted in accordance with its fair meaning, and not to be construed strictly for or against either you or the Company or the “drafter” of all or any portion of this Agreement.

 

20. Assignment

 

You shall not assign this Agreement. The Company may assign this Agreement. The benefits of this Agreement shall inure to the successors and assigns of the Company.

 

21. Severability

 

If one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to scope, activity, subject, or otherwise so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear.

 

Dr. Edward Ahn

June 24, 2019

Page 11

22. Entire Agreement

 

This Agreement constitutes the entire agreement between you and the Company with respect to your termination from employment. This Agreement supersedes any previous agreements or understandings between you and the Company including without limitation the Offer Letter provided that this Agreement does not supersede the Non-Disclosure and Non-Competition Agreement attached as Exhibit A hereto. This Agreement may not be changed, amended, modified, altered, or rescinded except upon the express written consent of both you and an authorized Company officer. Any waiver of any provision of this Agreement shall not constitute a waiver of any other provision of this Agreement unless expressly so indicated otherwise.

 

23. Acknowledgements; Time for Consideration

 

With respect to this Agreement, you acknowledge that:

 

(a)       You have been advised of your right to consult with your counsel of choice prior to executing this Agreement and you have not been subject to any undue or improper influence interfering with the exercise of your free will in deciding whether to consult with counsel;

 

(b)       You have carefully read and fully understand all of the provisions of this Agreement, you knowingly and voluntarily agree to all of the terms set forth in this Agreement, and you acknowledge that in entering into this Agreement, you are not relying on any representation, promise, or inducement made by the Company or its attorneys with the exception of those promises contained in this document;

 

(c)       When the Company presented you with this Agreement, you were informed that you have at least twenty-one (21) days to review this Agreement and consider its terms before signing it; and

 

(d)       The twenty-one (21) day review period will not be affected or extended by any revisions, whether material or immaterial, that might be made to this Agreement.

Dr. Edward Ahn

June 24, 2019

Page 12

 

24. Effective Date

 

As set forth above, you have the opportunity to consider this Agreement for twenty-one (21) days before signing it. To accept this Agreement, you must return a signed original or PDF copy of this Agreement so that it is received by the Company’s Chief Human Resources Officer at or before the expiration of this twenty-one (21) day period. If you sign this Agreement within fewer than twenty-one (21) days of the date of its delivery to you, you acknowledge by signing this Agreement that such decision was entirely voluntary and that you had the opportunity to consider this Agreement for the entire twenty-one (21) day period. For the period of seven (7) days from the date when this Agreement becomes fully executed, you have the right to revoke this Agreement by written notice to the Company’s Chief Human Resources Officer. For such a revocation to be effective, it must be delivered so that it is received by the Company’s Chief Human Resources Officer at or before the expiration of the seven (7) day revocation period. This Agreement shall not become effective or enforceable during the revocation period. This Agreement shall become effective on the first business day following the expiration of the revocation period (the “ Effective Date ”).

 

 

 

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

 

 

 

 

Dr. Edward Ahn

June 24, 2019

Page 13

 

Please indicate your agreement to the terms of this Agreement by signing and returning to the Company’s Chief Human Resources Officer the original or PDF copy of this letter within the time period set forth above.

 

Very truly yours,

 

ANIKA THERAPEUTICS, INC.

 

 

 

By: /s/ Thomas Finnerty             June 24, 2019
  Thomas Finnerty Date
Chief Human Resources Officer  

 

Attachment (Exhibit A- Non-Disclosure and Non-Competition Agreement)

 

 

I, Edward Ahn , REPRESENT THAT I HAVE READ THE FOREGOING AGREEMENT, THAT I FULLY UNDERSTAND THE TERMS AND CONDITIONS OF SUCH AGREEMENT, AND THAT I AM VOLUNTARILY EXECUTING THE SAME. IN ENTERING INTO THIS AGREEMENT, I DO NOT RELY ON ANY REPRESENTATION, PROMISE, OR INDUCEMENT MADE BY THE RELEASEES WITH THE EXCEPTION OF THE CONSIDERATION DESCRIBED IN THIS DOCUMENT.

 

ACCEPTED:

 

 

 

/s/ Edward Ahn June 28, 2019
Edward Ahn, Ph.D. Date

 

 

Dr. Edward Ahn

June 24, 2019

Page 14

IF YOU DO NOT WISH TO USE THE 21-DAY PERIOD,

PLEASE CAREFULLY REVIEW AND SIGN THIS DOCUMENT

 

I, Edward Ahn , acknowledge that I was informed and understand that I have 21 days within which to consider the attached Separation Agreement, and, having been advised of my right to consult with an attorney regarding such Agreement and have considered carefully every provision of the Agreement, and that after having engaged in those actions, I prefer to and have requested that I enter into the Agreement prior to the expiration of the 21-day period.

Dated: June 28, 2019

 

/s/ Edward Ahn

EMPLOYEE NAME

 

 

 

 

 

 

Exhibit 10.2

 

CONSULTING AGREEMENT

 

THIS AGREEMENT (“Agreement”) is made effective as of July 5, 2019 (the “Effective Date”), by and between Edward Ahn, Ph.D. (the “Consultant”) and Anika Therapeutics, Inc. (the “Company”), with a business address of 32 Wiggins Avenue, Bedford, MA 01730 (each a “Party” and collectively, the “Parties”).

 

WHEREAS, the Company desires to contract with the Consultant to perform the Services (as defined herein) in accordance with the terms and conditions of this Agreement;

 

WHEREAS, the Consultant desires to provide the Services to Company in accordance with the terms and conditions of this Agreement;

 

NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1.               Services .

 

(a)       Under the terms of this Agreement, Consultant will perform the services described in Exhibit A (the “Services”) attached hereto and incorporated by reference herein.

 

(b)       Consultant agrees to keep Company updated, promptly upon Company’s request, of any progress, problems, and/or developments of which Consultant is aware regarding the Services. Company shall have the right to require such updates in writing from Consultant in a format specified by Company or acceptable to Company in its sole discretion.

 

 

2.               Term and Termination.

 

(a) Unless earlier terminated as provided in this Section 2, the term of this Agreement shall commence on the Effective Date and shall terminate on September 30, 2019 (the “Term”). The Parties may extend the Term of this Agreement at any time by written agreement signed by both Parties.

 

(b) Each Party may, by written notice to the other Party, immediately terminate this Agreement if the other Party: (i) becomes insolvent, (ii) commits an act of bankruptcy, or (iii) makes an assignment for the benefit of creditors or has a receiver or receiver-manager appointed. Such termination shall be without prejudice to any other rights and remedies that the Parties may have for breach of this Agreement. In the event of termination by either Party under this provision, the Company shall pay the Consultant for services performed up to, and expenses incurred until, the time of termination. A final invoice will be sent to the Company upon termination and shall be due within thirty (30) days of such invoice date.

 

(c) Each Party may, by written notice to the other Party, terminate this Agreement for cause upon the material breach of the other Party of any of the provisions of Agreement, provided that the breaching Party shall have thirty (30) days after receiving such notice to cure such breach to the reasonable satisfaction of the non breaching Party. Such termination shall be without prejudice to any other rights and remedies that the Parties may have for breach of this Agreement. In the event of termination by either Party under this provision, the Company shall pay the Consultant for services performed up to, and expenses incurred until, the time of termination. A final invoice will be sent to the Company upon termination and shall be due within thirty (30) days of such invoice date.

 

 

 

(d) In the event of termination for any reason, Consultant shall, upon request, perform such work as may be requested to transfer work in process to the Company or to a party designated by the Company.

 

(e) In the event of termination of this Agreement for any reason provided in this Section 2, all rights and obligations of the Company and the Consultant shall cease immediately except those contained within Sections 3 (Payment), 5 (Indemnification), 6 (Limitation of Liability), 9 (Relationship between the Parties), 11 (Exclusive Method for Resolving Disputes), 12 (Assignment), and 14 (Governing Law) of this Agreement and the Confidentiality Agreement shall survive the termination or expiry of this Agreement.

 

3.               Payment . The Company shall pay Consultant for the Services at an hourly rate of two hundred fifty ($250.00) dollars per hour for work performed in accordance with the terms of this Agreement at the direction of the Company. The Consultant shall invoice the Company during the first week of each month for the Services performed and any related Anika business expenses, including economy travel expenses, which have been pre-approved by the Company in writing, incurred in the immediately preceding month. The Company shall pay Consultant within thirty (30) days of receipt of each such invoice. If this Agreement is terminated for any reason other than a material breach by Consultant, Consultant shall be entitled to payment for the work performed and the expenses incurred up to the date of termination.

 

4.               Representations and Warranties . Each Party represents and warrants to the other that:

 

(a) the Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and it has full power and authority to enter into this Agreement;

 

(b) and the materials furnished by one Party to the other shall be the original creations of such Party for the use intended by the Parties under this Agreement, or that such Party shall possess all of the rights to such materials necessary to furnish them to the other Party for the use intended, and such materials shall not, to the knowledge of the Party furnishing the materials, violate or infringe any rights whatsoever of any third party.

 

(c) each will provide full, good faith cooperation in providing information and other material necessary to perform Services.

 

(d) The Consultant represents and warrants that it shall exercise reasonable care in the performance of its obligations under this Agreement.

 

(e) The Company represents that all information provided by it to Consultant shall be complete and accurate in all material respects to the best of the Company's knowledge, and that Consultant shall be promptly notified in the event that the Company learns of new information or inaccuracies in information already provided to Consultant. Consultant shall not under any circumstances be required to independently verify facts supplied to Consultant by the Company, unless otherwise agreed upon in writing by the Parties.

 

 

 

5.               Indemnification .

 

(a) The Company will indemnify and hold harmless the Consultant and its affiliates (the “Indemnified Party”) from and against any and all losses, claims, damages, expenses, and liabilities, joint or several, to which such Indemnified Party may become subject under any applicable federal or state law relating to or arising out of Consultant’s engagement with the Company or any services provided to the Company by Consultant under this Agreement that are not the result of the Consultant’s gross negligence or willful misconduct. The Company reserves the right to take control of the legal defense of the Consultant related to this provision, provided that the Company shall not agree to a settlement without first consulting, in good faith, the Consultant. Notwithstanding the foregoing, should the company decide not to take control of the legal defense of the Consultant, the Company will reimburse any Indemnified Party for all reasonable expenses (including reasonable counsel fees and disbursements) as they are incurred in connection with the investigation of, preparation for, or defense of any pending or threatened claim or any action or proceeding arising therefrom. The Company will not be liable, nor have any other obligations, under this indemnification provision to the extent that any loss, claim, damage, liability, or expense is found or alleged to have resulted from the Consultant's negligence or willful misconduct.

 

(b) If the indemnification of an Indemnified Party provided for herein is unavailable as a result of the applicable law, the Company agrees to contribute to the losses, claims, damages, and liabilities for which such indemnification is unavailable in such proportion as is appropriate to reflect the relative fault of the Company and any other equitable considerations.

 

6.               LIMITATION OF LIABILITY . IN THE EVENT EITHER PARTY HAS A CLAIM AGAINST THE OTHER ARISING OUT OF THIS AGREEMENT, PARTIES SHALL BE LIABLE TO EACH OTHER FOR ACTUAL DAMAGES ONLY; IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF LIABILITY, RECOURSE BY ONE PARTY AGAINST THE OTHER SHALL ONLY EXTEND TO SUCH PARTY AND NOT TO SUCH PARTY'S EMPLOYEES, AGENTS, MEMBERS, OFFICERS, DIRECTORS, AND SHAREHOLDERS.

 

7.               Confidentiality . The Parties hereby acknowledge that a Confidential Disclosure Agreement has been executed between the Parties and the provisions of said Confidential Disclosure Agreement are to remain in full force and effect during the term of this Agreement.

 

8.               Notices . Under this Agreement, if one Party is required or permitted to give notice to the other, such notice shall be deemed given on the same day if sent by hand, or three (3) business days after mailing if sent by registered or certified mail, return receipt requested, or one day after sending by reputable overnight courier service, if the notice was sent to the other Party at the address specified below:

 

If to Consultant: Edward Ahn, Ph.D.

 

If to the Company: Anika Therapeutics, Inc.
32 Wiggins Avenue
Bedford, MA 01730
Attn: Charles Sherwood III

 

 

 

In the event either Party wishes to change the address to which notices are to be sent, it must do so in writing, and such change of address shall be considered a notice to which the provisions of this Section 8 shall apply.

 

9. Relationship between the Parties.

 

(a) It is understood and agreed that the Consultant’s relationship with the Company in the performance of this Agreement is that of an independent contractor. Nothing in this Agreement shall be construed to create a partnership, joint venture, or employer employee relationship.

 

(b) Consultant is not an agent of the Company, and has no authority whatsoever to make any representation, contract, or commitment of any kind on behalf of the Company. Consultant expressly acknowledges and agrees that it shall not warrant or represent to any person that it has or may have any such authority.

 

(c) The Company will not acquire ownership of any materials, information, know-how, tools, models, methodologies, techniques and/or other intellectual property owned by the Consultant prior to its performance of services under this Agreement.

 

(d) Each Party warrants, agrees, and represents that it has no other Agreement of any kind or nature with any other person, corporation, or entity which would or might prevent it from entering into this Agreement or from fully performing its obligations hereunder. Consultant is free to accept engagements from others during the Term of this Agreement, so long as those engagements do not violate the attached Confidentiality Agreement or impair the Consultant's ability to perform the Services obligations hereunder.

 

(e) Consultant further acknowledges and agrees that none of Consultant, its employees or affiliates shall be entitled to any benefits provided by the Company to its employees. In addition, Consultant understands and agrees that it shall have sole and exclusive responsibility for the payment of all federal, state and local income taxes, for all employment and disability insurance and for Social Security and other similar taxes with respect to any compensation provided by the Company hereunder. Moreover, Consultant agrees that if the Company pays or becomes liable for such taxes or related civil penalties or interest as a result of the Consultant’s failure to pay taxes or report same, or due to the Company’s failure to withhold taxes, Consultant shall indemnify and hold the Company harmless for any such liability. Finally, Consultant shall assume and accept all responsibilities which are imposed on independent contractors by any statute, regulation, rule of law, or otherwise.

 

 

10.            Ownership of Deliverables . Consultant acknowledges and agrees that all materials developed related to Anika Therapeutics, Inc.’s products or intellectual property (the “Deliverables”) generated by Consultant or third parties on the Company's behalf in connection with the Services under this Agreement shall be deemed “work made for hire” and shall be the Company’s exclusive property, not subject to any third party rights, restrictions or obligations; and Consultant and its personnel hereby irrevocably assign their rights in such Deliverables to the Company, and as reasonably requested by the Company, shall execute any documents necessary to effect or confirm such assignment.

 

 

 

11.            Exclusive Method for Resolution of Disputes . In the case of a dispute between the Company and Consultant regarding performance by either Party under this Agreement, the Parties agree to refer such disputes to an arbitration by a single third-party arbitrator to be appointed at the mutual agreement of the Parties. Any such arbitration shall take place in Boston, Massachusetts in accordance with the rules and regulations then in effect of the American Arbitration Association. In any arbitration, each party shall pay its own attorney's fees and one half (1/2) of the arbitration costs, subject to final apportionment by the arbitrator.

 

12.            Assignment . This Agreement shall be binding on, and shall inure to the benefit of the Company and the Consultant, as well as their respective heirs, representatives, successors and assigns, provided, however, that the Company and the Consultant may not assign any of their respective rights or arrange for a third party to assume any of their respective obligations under this Agreement without the prior written consent of each of the Parties to this Agreement.

13.            Third Party Beneficiaries . The Parties do not intend the benefits of this Agreement to inure to any third party not a signatory hereto. Consultant agrees not use any of the Company's Proprietary or Confidential Information for the benefit of any Third Party and to strictly adhere to the terms of the Confidential Disclosure Agreement executed between the Parties. Notwithstanding anything contained herein or any conduct or course of conduct by any Party hereto, before or after the signing of the Agreement, this Agreement shall not be construed as creating any right, claim, or cause of action against either Party by any person or entity not a Party to this Agreement.

 

14.            Governing Law . This Agreement shall be construed, interpreted, and enforced, and the rights of the Parties shall be determined, in accordance with the internal substantive laws of the commonwealth of Massachusetts, without regard to its conflict of law principles. Any construed term shall also be enforced in accordance with the internal substantive laws of the commonwealth of Massachusetts.

 

15.            Waiver . No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. This Agreement may not be superseded, amended or modified except by written agreement signed by an authorized representative of each party. This provision may not be waived.

 

16.            Force Majeure . Neither Party shall be liable to the other for any default or delay in performance of any of its obligations under this Agreement caused directly or indirectly by fire, flood, earthquake, or other acts of God; wars, rebellions, or revolution; riots or civil disorders; lock out, strike or labor dispute; accidents or unavoidable casualties; interruptions or failures in transportation, communications or technical facilities; laws, inactions, rulings, regulations, decisions or requirements of any government, tribunal or government Consultant (whether federal, state, local or foreign) or any other cause, whether similar or dissimilar to those enumerated herein, beyond such Party's control.

 

17.            Entire Agreement . This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all previous oral or written agreements among the Parties with respect to the subject matter hereof, with the exception of the Confidential Disclosure Agreement executed amongst the Parties, which shall remain in full force and effect for the term of that agreement, and may not be modified except by a writing signed by an authorized signatory of each Party hereto.

 

 

 

18.            Severability . The invalidity, unenforceability, or illegality of any provision of this Agreement shall not impair the validity, enforceability, or legality of any other provision; and any provision hereof which might otherwise by invalid, unenforceable, or illegal shall hereby be deemed to be amended to the extent necessary to remove the cause of such invalidity, unenforceability, or illegality, and, to the extent practicable, such amendment shall reflect the original intent of such provision, as negotiated by the Parties, and this Agreement, and such provision, as so amended, shall remain in full force and effect.

 

19.            Counterparts . This Agreement may be executed in counterparts, each of which when taken together shall be deemed an original for all purposes, and may be executed by fax or by email as a PDF document, which, when fully executed, will be deemed to be an original for all purposes.

 

 

 

 

 

 

 

 

 

 

 

 

IN WITNESS WHEREOF, the Parties hereto subscribe their names to this instrument effective as of the date of the first set forth above.

 

 

 

/s/ Edward Ahn   /s/ Thomas Finnerty
Name: Edward Ahn, Ph.D.   Name: Thomas Finnerty
Title: EVP HR
Anika Therapeutics, Inc.
32 Wiggins Avenue
Bedford, MA 01730

 

 

 

 

 

 

EXHIBIT A

 

Services

 

Under the terms of this Agreement, Consultant, shall provide certain business, technical and IP consulting services to the Company. Consultant shall perform these mutually-agreed upon Services at the direction of the Company or the Company’s representatives.