SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): April 27, 2012
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of
incorporation or organization)
60 Prescott Street
Worcester, Massachusetts 01605
(Address of Principal Executive
Offices) (Zip Code)
Registrants telephone number, including area code: (508) 767-3861
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
|¨||Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)|
|¨||Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)|
|¨||Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))|
|¨||Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))|
|Item 3.02||Unregistered Sales of Equity Securities|
The information set forth under Item 8.01 below is incorporated herein by reference. The issuance of the Series A Preferred Stock and the Advirna Shares were exempt from registration pursuant to Section 4(2) under the Securities Act of 1933, as amended (the Securities Act ).
|Item 5.02||Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.|
The information set forth under Item 8.01 below is incorporated herein by reference.
|Item 5.03||Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.|
The information set forth under Item 8.01 below is incorporated herein by reference.
|Item 8.01||Other Events|
Closing and Completion of Spin-off
On April 27, 2012, RXi Pharmaceuticals Corporation (the Company ) completed the offering and sale of the shares of its Series A Preferred Stock contemplated under that certain Securities Purchase Agreement, dated as of September 24, 2011 (the Purchase Agreement ), by and among the Company, Galena Biopharma, Inc. ( Galena ), and Tang Capital Partners, LP ( Tang ) and RTW Investments, LLC ( RTW and together with Tang, the Investors ). Pursuant to the Purchase Agreement, the Investors purchased a total of 9,500 shares of Series A Preferred Stock issued by the Company (the Series A Preferred Stock) in consideration for $9.5 million, payable in cash and through the extinguishment of approximately $1 million of aggregate indebtedness owed to the Investors by the Company.
The closing under the Purchase Agreement, which occurred on April 27, 2012 (the Closing ), followed the distribution by Galena, on April 26, 2012, of a dividend of one share of the Companys common stock, par value $0.0001 per share (the Common Stock ), that was paid with respect to each share of Galena common stock issued and outstanding as of the close of business on April 23, 2012 (the Record Date ). As a result of the total number of shares of Galena common stock that were issued and outstanding on the Record Date, Galena distributed to its stockholders a total of 66,959,894 shares of Common Stock (the Spin-off ), while Galena retained ownership of an additional 33,479,947 shares of Common Stock, which shares are subject to limitations on resale. The Spin-off was registered under the Securities Act on a Registration Statement on Form S-1 (File No. 333-177498), which was declared effective on February 14, 2012 by the U.S. Securities and Exchange Commission (the Registration Statement ). The Company has, through a registered broker/dealer, applied to have the Common Stock approved for trading through the OTC Markets Group quotation service and expects that this process will be completed, and that the stock ticker symbol RXII will be issued to the Company, within approximately ten days following the Closing. The Company expects to make a public announcement of the issuance of the ticker symbol after it is issued, at which time trading of the Common Stock may commence.
Concurrent with the Closing, the Company issued a total of 41,849,934 additional shares of Common Stock to Advirna, LLC ( Advirna ) in partial consideration for the assignment of certain patent rights to the Company (the Advirna Shares ). Additional information relating to the issuance of the Advirna Shares and the agreement with Advirna under which they were issued can be found in the Registration Statement.
Concurrent with the Closing, Geert Cauwenbergh, Dr. Med. Sc., age 58, was appointed to the Board of Directors and was elected as President and Chief Executive Officer of the Company. Prior to joining RXi, from June 2011 to April 2012, Dr. Cauwenbergh was active, through his consulting company Phases123 LLC, in advising various small biotech and healthcare companies. From July 2008 to June 2011, Dr. Cauwenbergh was the Chief Executive Officer of Rhei Pharmaceuticals HK Ltd, a Chinese company that licenses western drugs for development and commercialization in China, and Managing Director of the Center for Medical Innovation, a government subsidized center for translational medicine for the Belgian Region of Flanders. In February 2008 and May 2009, Dr. Cauwenbergh founded Phases123 LLC and Aramis LLC, a dermatology company, respectively. From 2002 to 2008, Dr. Cauwenbergh was with Barrier Therapeutics, Inc., a publicly-traded biopharmaceutical company he founded in 2001 that focused on dermatology drug development, where he held positions including Chief Executive Officer and Chairman. Barrier was acquired by Stiefel Laboratories, Inc. in 2008. Prior to founding Barrier, Dr. Cauwenbergh held a number of ascending senior management positions at Johnson & Johnson, where he was employed for 23 years. As Vice President, Research and Development for Johnson & Johnsons Skin Research Center, he was responsible for the worldwide research and development of all skin care products for the Johnson & Johnson consumer companies. He is a member of the board of directors of Ablynx NV and Euroscreen S.A., both European biotechnology companies. In 2005, Dr. Cauwenbergh was inducted into the New Jersey High-Tech Hall of Fame, and, from 2009 to 2010, he served as Chairman of the Board of Trustees of BioNJ. He has authored more than 100 publications and has been a guest editor for a number of books in mycology and infectious diseases. Dr. Cauwenbergh received his Doctorate in Medical Sciences from the Catholic University of Leuven, Faculty of Medicine (Belgium), where he also completed his masters and undergraduate work.
Dr. Cauwenbergh was appointed President and Chief Executive Officer pursuant to an employment agreement, effective April 27, 2012. Dr. Cauwenbergh is entitled to receive an annual salary of $360,000. He also is entitled to a grant by us, on the day that is thirty calendar days following the later of: (i) the effective date of his employment; or (ii) the day when the Common Stock is listed for trading or quotation, as the case may be, on any trading market (as defined), of stock options to purchase 4% of the outstanding Common Stock as of such grant date (calculated on a fully-diluted, as-converted basis), at an exercise price per share to be determined based on the fair value of the Common Stock on the date of grant. The options will be subject to vesting with respect to one-quarter of the underlying shares on the first anniversary of the effective date of Dr. Cauwenberghs employment, and the remainder of the underlying shares monthly thereafter over the next three years, subject to accelerated vesting in some events. Dr. Cauwenberghs employment agreement also provides that during the term of his employment with us, he shall serve as a member of our Board of Directors. Additionally, for a period of up to two years from the effective date of his employment, we agreed to reimburse Dr. Cauwenbergh for his temporary housing costs in the greater Boston area in an amount up to $3,000 per month. Under Dr. Cauwenberghs employment agreement, upon termination of Dr. Cauwenberghs employment without cause (as defined) by us or by Dr. Cauwenbergh for good reason (as defined), he will be entitled to: (1) payment of any accrued but unpaid salary and unused vacation as of the date of his termination, as well as any unpaid bonus compensation awarded for the year preceding the year in which his termination occurs; (2) payment of six months of salary from the date of termination (subject to certain exceptions); and (3) continued participation, at our expense, during the period of six months following the date of termination, in our group medical and dental plans. Notwithstanding and in lieu of the foregoing compensation, in the event his employment is terminated within twelve months following a change of control (as defined) of RXi, he will be entitled to: (x) twelve months of salary from the date of termination; (y) accelerated vesting of any unvested stock options held by him so that such awards are fully vested and exercisable upon such termination; and (z) continued participation, at our expense, during the severance period in our sponsored group medical and dental plans.
Also concurrent with the Closing: (i) Mark Ahn, Ph.D., the Chief Executive Officer of Galena, resigned as an officer and director of the Company; and (ii) Anastasia Khvorova, Ph.D. resigned as the Companys Senior Vice President and Chief Scientific Officer. Dr. Ahns resignation was contemplated under the Purchase Agreement and did not relate to any disagreement with the Company. In connection with Dr. Khvorovas resignation, the Company, Galena, the Investors and Dr. Khvorova entered into a Separation Agreement (the Separation Agreement ), pursuant to which the parties clarified and confirmed certain rights and obligations relating to the assignment and grant-back license agreements between the Company and Advirna, as well as other Company intellectual property. Dr. Khvorova co-owns Advirna with her spouse. Dr. Khvorova is not entitled to receive any material consideration from the Company pursuant to the Separation Agreement.
|Item 9.01||Financial Statements and Exhibits.|
|10.1||Employment Agreement, dated April 27, 2012, between RXi Pharmaceuticals Corporation and Geert Cauwenbergh, Ph.D.|
* * *
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.
|RXi PHARMACEUTICALS CORPORATION|
|Date: May 3, 2012||By:||/s/ Geert Cauwenbergh|
Geert Cauwenbergh, Dr. Med. Sc.
Chief Executive Officer
This Employment Agreement (the Agreement ) is entered into as of April 25, 2012 by and between RXi Pharmaceuticals Corporation (the Company ), a Delaware corporation, and Geert Cauwenbergh, Ph.D., (the Executive ). Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in that certain Securities Purchase Agreement by and among Tang Capital Partners, LP, RTW Investments, LLC, the Company and Galena Biopharma, Inc., dated as of September 24, 2011 (the Securities Purchase Agreement ).
1. Employment. Subject to the terms and conditions set forth in this Agreement, the Company hereby offers, and the Executive hereby accepts, employment as the Companys President and Chief Executive Officer.
2. Term . Subject to earlier termination as hereinafter provided, the Executives employment shall commence on the Closing Date, as such term is defined in the Securities Purchase Agreement (the Effective Date ), and shall continue until terminated pursuant to Section 5 hereof (the Term ).
3. Capacity and Performance .
(a) During the Term, the Executive shall be employed by the Company on a full-time basis and shall perform the duties and responsibilities of his position and such other duties and responsibilities on behalf of the Company and its Affiliates as may be reasonably designated from time to time by the Board of Directors of the Company (the Board ) or by its chairman or other designee. The Executives office shall be located at the Companys principal place of business.
(b) During the Term, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge exclusively to the advancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities hereunder. The Executive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or academic position during the Term, except as may be expressly approved in advance by the Board in writing. Notwithstanding the foregoing, the Executive may serve on the boards of directors of: (i) up to two industry groups, such as BioNJ or BIO; and (ii) other companies (excluding industry groups) that are not Competitive (with the boards described in this clause (ii) referred to hereinafter as the Other Company Boards ); provided that: (A) commencing three months after the Effective Date, the Executive may serve on no more than three Other Company Boards; and (B) commencing six months after the Effective Date, the Executive may serve on no more than two Other Company Boards.
(c) During the Term, the Executive shall serve as a member of the Board. The Executive shall tender his resignation from the Board upon termination of his employment for any reason, and Executives execution of this Agreement shall constitute his conditional resignation from the Board pursuant to this Section 3(c).
4. Compensation and Benefits . As compensation for all services performed by the Executive during the Term and subject to the Executives performance of his duties and obligations to the Company and its Affiliates, pursuant to this Agreement or otherwise, the Company shall provide the Executive with the following compensation and benefits:
(a) Base Salary and Bonus .
(i) During the Term, the Company shall pay the Executive a base salary at the rate of $360,000 per annum, payable in accordance with the payroll practices of the Company for its executives and subject to adjustment from time to time by the Board, in its sole discretion, subject to the Executives rights under Section 5(e)(ii) (such base salary, as from time to time adjusted, the Base Salary ).
(ii) The Executive shall be eligible to receive an annual performance bonus, to be awarded at the discretion of the Compensation Committee of the Board (the Compensation Committee ), for the achievement of certain Company and Executive performance goals, which goals will be established annually by the Compensation Committee. The target bonus for achieving these goals shall be equal to fifty (50%) percent of the Base Salary.
(b) Stock Options . On the day that is thirty calendar days following the later of: (i) the Effective Date; or (ii) the day when the Companys common stock is listed for trading or quotation, as the case may be, on any Trading Market; the Company shall grant to the Executive an option to purchase shares of common stock of the Company in an amount equal to 4% of the outstanding common stock as of such grant date (calculated on a fully-diluted, as-converted basis), which option shall be exercisable at the fair market value of the common stock on the grant date (the Option ). The Option shall vest and become exercisable with respect to one-quarter of the underlying shares on the first anniversary of the Effective Date, and then with respect to 1/48th of the underlying shares monthly thereafter over the next three years, such that the Option is fully vested on the fourth anniversary of the Effective Date; provided that the Executive remains in the employ of the Company through each such vesting date. The Option shall have a term of ten years and shall be subject to the terms and conditions of the RXi Pharmaceuticals Corporation 2012 Long Term Incentive Plan.
(c) Paid Time Off . During the Term, the Executive shall be entitled to earn paid time off at the rate of 20 days per year. Paid time off, which may be taken for any reason including vacation, sick leave and personal leave, may be taken at such times and intervals as shall be determined by the Executive, subject to the reasonable business needs of the Company. Paid time off shall otherwise be governed by the policies of the Company, as in effect from time to time. The number of paid time off days will accrue per pay period and will stop accruing once 20 days have been accrued (with such accrual to recommence once the number of paid time off days accrued by the Executive drops below 20 days). The Executive may take paid time off even if his number of accrued paid time off days is insufficient to cover such days, so long as the Executives negative paid time off balance does not exceed a balance of 7 days. Notwithstanding the foregoing, in the event that the Executives employment is terminated while the Executive has a negative time off balance, the Executive shall be liable to the Company for the value of such negative balance, which may be deducted from his Final Compensation.
(d) Other Benefits . During the term hereof, the Executive shall be entitled to participate in any and all employee benefit plans from time to time in effect for employees of the Company generally, except to the extent any such employee benefit plan is in a category of benefit otherwise provided to the Executive (e.g., a severance pay plan). Such participation shall be subject to the terms of the applicable plan documents and generally applicable Company policies. The Company may alter, modify, add to or delete its employee benefit plans at any time as it, in its sole judgment, determines to be appropriate, without recourse by the Executive. To the extent permissible under applicable state law, the Executive may elect, in lieu of participating in certain of the Companys health benefit plans, to receive cash payments equal to the amount that the Company would have paid on the behalf of the Executive for his participation in such plan.
(e) Business Expenses . The Company shall pay or reimburse the Executive for all reasonable and necessary business expenses incurred or paid by the Executive in the performance of his duties and responsibilities hereunder, subject to any maximum annual limit and other restrictions on such expenses set by the Board and to such reasonable substantiation and documentation as may be specified by the Company from time to time.
(f) Housing Allowance . For a period of up to 2 years from the Effective Date, the Company shall reimburse the Executive for his temporary housing costs in the greater Boston area, in an amount up to $3,000 per month. This amount will be paid to the Executive monthly, upon receipt by the Company of substantiation and documentation as may be specified by the Company from time to time.
5. Termination of Employment and Severance Benefits . The Executives employment hereunder shall terminate under the following circumstances:
(a) Death . In the event of the Executives death during the Term, the Executives employment shall immediately and automatically terminate. In such event, the Company shall pay any Final Compensation (as defined below) to the Executives designated beneficiary or, if no beneficiary has been designated by the Executive in writing, to his estate.
(b) Disability .
(i) The Company may terminate the Executives employment hereunder, upon notice to the Executive, in the event that the Executive becomes disabled through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is unable to perform substantially all of his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for a total of ninety (90) days, whether or not consecutive, during any period of three hundred and sixty-five (365) consecutive calendar days. In the event of such termination, the Company shall have no further obligation to the Executive, other than for payment of Final Compensation.
(ii) The Board may designate another employee to act in the Executives place during any period of the Executives disability. Notwithstanding any such designation, the Executive shall continue to receive the Base Salary in accordance
with Section 4(a) and benefits in accordance with Section 4(d), to the extent permitted by the then-current terms of the applicable benefit plans, until the Executive becomes eligible for disability income benefits under the Companys disability income plan or until the termination of his employment, whichever shall first occur.
(iii) While receiving disability income payments under the Companys disability income plan, the Executive shall not be entitled to receive any Base Salary under Section 4(a) hereof, but shall continue to participate in Company benefit plans in accordance with Section 4(d) and the terms of such plans, until the termination of his employment.
(iv) If any question shall arise as to whether during any period the Executive is disabled through any illness, injury, accident or condition of either a physical or psychological nature so as to be unable to perform substantially all of his duties and responsibilities hereunder, the Executive may, and at the request of the Company shall, submit to a medical examination by a physician selected by the Company to whom the Executive or his duly appointed guardian, if any, has no reasonable objection to determine whether the Executive is so disabled and such determination shall for the purposes of this Agreement be conclusive of the issue. If such question shall arise and the Executive shall fail to submit to such medical examination, the Companys determination of the issue shall be binding on the Executive.
(c) By the Company for Cause . The Company may terminate the Executives employment hereunder for Cause at any time upon written notice to the Executive setting forth in reasonable detail the nature of such Cause. The following, as determined by the Board in its reasonable judgment, shall constitute Cause for termination:
(i) The Executives repeated failure or repeated refusal to perform (other than by reason of disability), or gross negligence in the performance of, his material duties and responsibilities to the Company or any of its Affiliates;
(ii) Material breach by the Executive of any provision of this Agreement or any other agreement with the Company or any of its Affiliates; provided that the first occurrence of any particular breach shall not constitute Cause unless the Executive has failed to cure such breach within ten days after receiving written notice from the Board stating the nature of such breach;
(iii) The Executives conviction of, or plea of guilty or nolo contendere to, any felony;
(iv) The Executives act of fraud;
(v) The Executives act or omission that, in the reasonable determination of the Company, indicates alcohol or drug abuse by the Executive; or
(vi) The Executives act or personal conduct that, in the judgment of the Board (or a committee of the Board), gives rise to a material risk of liability of the
Executive or the Company under federal or applicable state law for discrimination, or sexual or other forms of harassment, or other similar liabilities to subordinate employees.
Upon the giving of notice of termination of the Executives employment hereunder for Cause, the Company shall have no further obligation to the Executive, other than for Final Compensation.
(d) By the Company Other Than for Cause . The Company may terminate the Executives employment hereunder other than for Cause at any time upon written notice to the Executive.
(i) In the event of such termination without Cause, in addition to Final Compensation, subject to Section 5(d)(iii) and provided that no benefits are payable to the Executive under a separate severance agreement as a result of such termination, then monthly during the period of six months following the date of termination, the Company shall continue to pay the Executive the Base Salary at the rate in effect on the date of termination and, subject to any employee contribution applicable to the Executive on the date of termination, shall continue to contribute (on a taxable basis) to the premium cost of the Executives participation in the Companys group medical and dental plans (unless prohibited by law), provided that the Executive is entitled to continue such participation under applicable law and plan terms.
(ii) Notwithstanding and in lieu of the compensation set forth in Section 5(d)(i), in the event of a termination without Cause within 12 months following a Change of Control, in addition to Final Compensation, subject to Section 5(d)(iii) and provided that no benefits are payable to the Executive under a separate severance agreement as a result of such termination, then: (A) monthly during the period of 12 months following the date of termination, the Company shall continue to pay the Executive the Base Salary at the rate in effect on the date of termination; (B) the vesting of the Executives outstanding equity awards granted by the Company shall accelerate so that such awards are fully vested and exercisable upon such termination; and (C) subject to any employee contribution applicable to the Executive on the date of termination, shall continue to contribute (on a taxable basis) to the premium cost of the Executives participation in the Companys group medical and dental plans (unless prohibited by law), provided that the Executive is entitled to continue such participation under applicable law and plan terms. For purposes of this Agreement, Change in Control shall mean: (x) an acquisition of any securities of the Company (the Securities ) by any person (as the term person is used for purposes of Section 13(d) or Section 14(d) of the Securities Exchange Act of 1934, as amended (the 1934 Act ), immediately after which such person has beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act) ( Beneficial Ownership ) of 50% or more of the shares of the Companys common stock (as determined on a fully-diluted, as-converted basis) without the approval of the Board; (y) a merger or consolidation in which holders of the Capital Stock immediately prior to such transaction hold or are entitled to acquire, immediately after the consummation of the merger or consolidation, less than 50% of the surviving entitys common stock (as determined on a fully-diluted, as-converted basis); or (z) the sale of all or substantially all of the Companys assets. For purposes of this
Section 5(d)(ii), Capital Stock shall mean the Companys common stock and any other Company securities that are convertible into or exercisable for the Companys common stock.
(iii) Any obligation of the Company to the Executive hereunder, other than for Final Compensation, is conditioned on the Executive signing a timely and effective release of claims in the form provided by the Company (the Employee Release ) and delivering it to the Company by the deadline specified therein, and the Employee Release taking effect by its terms, within 60 calendar days following the date his employment terminates. Any severance payments to which the Executive is entitled hereunder shall be payable in accordance with the normal payroll practices of the Company, with the first payment, which shall be retroactive to the day immediately following the date the Executives employment is terminated, being due and payable on the Companys next regular payday for executives that follows the expiration of 30 calendar days from the date the Executives employment terminates. The release of claims required for separation benefits in accordance with this Section 5(d)(iii) creates legally binding obligations on the part of the Executive and the Company and its Affiliates therefore advise the Executive to seek the advice of an attorney before signing it.
(e) By the Executive for Good Reason . The Executive may terminate his employment hereunder for Good Reason by: (A) providing notice to the Company specifying in reasonable detail the condition giving rise to the Good Reason no later than 30 days following the occurrence of that condition; (B) providing the Company a period of 30 days to remedy the condition and so specifying in the notice; and (C) terminating his employment for Good Reason within 30 days following the expiration of the period to remedy if the Company fails to remedy the condition. The following, occurring without the Executives consent, shall constitute Good Reason for termination by the Executive:
(i) a material reduction of the Executives regular responsibilities from those typically assigned to a President and Chief Executive Officer of a similarly situated biotechnology company;
(ii) a reduction in the Base Salary set forth in Section 4 hereof by more than 10% in any calendar year, unless such reduction is in proportion with any Company-wide reductions in base salary for all executive officers of the Company;
(iii) the Companys breach of any material term of the Agreement; provided that the first occasion of any particular breach shall not constitute such Good Reason unless the Company has failed to cure such breach within 60 days after receiving written notice from the Executive stating the nature of such breach; or
(iv) Relocation of the Companys principal executive offices of a distance in excess of 50 miles from its location at the Effective Date.
In the event of a termination of employment in accordance with this Section 5(e), the Executive will be entitled to receive the same pay and benefits he would have been entitled to receive had
he been terminated by the Company other than for Cause in accordance with Section 5(d) above; provided that the Executive satisfies all conditions to such entitlement, including without limitation the signing of the Employee Release as set forth in Section 5(d).
(f) Timing of Payments and Section 409A .
(i) Notwithstanding anything to the contrary in this Agreement, if at the time of the Executives termination of employment, the Executive is a specified employee, as defined below, any and all amounts payable under this Section 5 on account of such separation from service that would (but for this provision) be payable within six months following the date of termination, shall instead be paid on the next business day following the expiration of such six (6) month period or, if earlier, upon the Executives death; except (A) to the extent of amounts that do not constitute a deferral of compensation within the meaning of Treasury regulation Section 1.409A-1(b) (including without limitation by reason of the safe harbor set forth in Section 1.409A-1(b)(9)(iii), as determined by the Company in its reasonable good faith discretion); (B) benefits which qualify as excepted welfare benefits pursuant to Treasury regulation Section 1.409A-1(a)(5); or (C) other amounts or benefits that are not subject to the requirements of Section 409A of the Internal Revenue Code ( Section 409A ).
(ii) For purposes of this Agreement, all references to termination of employment and correlative phrases shall be construed to require a separation from service (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein), and the term specified employee means an individual determined by the Company to be a specified employee under Treasury regulation Section 1.409A-1(i).
(iii) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.
(iv) The Executives right to reimbursement for business expenses hereunder shall be subject to the following additional rules: (i) the amount of expenses eligible for reimbursement during any calendar year shall not affect the expenses eligible for reimbursement in any other taxable year; (ii) reimbursement shall be made not later than December 31 of the calendar year following the calendar year in which the expense was incurred; and (iii) the right to reimbursement is not subject to liquidation or exchange for any other benefit.
(v) In no event shall the Company have any liability relating to any payment or benefit under this Agreement failing to comply with, or be exempt from, the requirements of Section 409A.
(g) Post-Agreement Employment . In the event the Executive remains in the employ of the Company or any of its Affiliates following termination of this Agreement, by the expiration of the term or otherwise, then such employment shall be at will.
6. Effect of Termination . The provisions of this Section 6 shall apply to any termination of the Executives employment hereunder:
(a) The Company shall pay to the Executive: (i) any Base Salary earned but not paid during the final payroll period of the Executives employment through the date of termination; (ii) pay for any paid time off earned but not used through the date of termination; (iii) any bonus compensation awarded for the year preceding that in which termination occurs, but unpaid on the date of termination; and (iv) any business expenses incurred by the Executive but un-reimbursed on the date of termination, provided that such expenses and required substantiation and documentation are submitted within 60 days of termination and that such expenses are reimbursable under Company policy (all of the foregoing, Final Compensation ). The Company shall have no further obligation to the Executive hereunder. Any Base Salary or pay for earned but unused paid time off shall be payable at the time provided by applicable law. Any bonus due for the preceding year shall be payable at the time provided for at the time such bonus is awarded. Any business expenses shall be payable not later than 90 days following the date of termination.
(b) Payment by the Company of Final Compensation and any Base Salary and contributions to the cost of the Executives continued participation in the Companys group health and dental plans that may be due the Executive in each case under the applicable termination provision of Section 5 shall constitute the entire obligation of the Company to the Executive hereunder. The Executive shall promptly give the Company notice of all facts necessary for the Company to determine the amount and duration of its obligations in connection with any termination pursuant to Section 5(d) hereof.
(c) Except for any right of the Executive to continue medical and dental plan participation in accordance with applicable law, benefits shall terminate pursuant to the terms of the applicable benefit plans based on the date of termination of the Executives employment without regard to any continuation of Base Salary or other payment to the Executive following such date of termination.
(d) Provisions of this Agreement shall survive any termination if so provided herein or if necessary or desirable to accomplish the purposes of other surviving provisions, including without limitation the obligations of the Executive under Sections 7, 8 and 9 hereof. The obligation of the Company to make payments to or on behalf of the Executive under Section 5(d) hereof is expressly conditioned upon the Executives continued full performance of obligations under Sections 7, 8 and 9 hereof. The Executive recognizes that, except as expressly provided in Section 5(d), no compensation is earned after termination of employment.
7. Confidential Information .
(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Affiliates and that the Executive may learn of Confidential Information during the course of employment. The Executive will comply with the policies and procedures of the Company and its Affiliates for protecting Confidential Information and shall not disclose to any Person or use, other than as required by applicable law or for the proper
performance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Affiliates. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. The confidentiality obligation under this Section 7 shall not apply to information which is generally known or readily available to the public at the time of disclosure or becomes generally known through no wrongful act on the part of the Executive or any other person having an obligation of confidentiality to the Company or any of its Affiliates.
(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Affiliates and any copies, in whole or in part, thereof (the Documents ), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executives possession or control.
8. Assignment of Rights to Intellectual Property . The Executive shall promptly and fully disclose all Intellectual Property to the Company. The Executive hereby assigns and agrees to assign to the Company (or as otherwise directed by the Company) the Executives full right, title and interest in and to all Intellectual Property. The Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Intellectual Property to the Company and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. The Executive will not charge the Company for time spent in complying with these obligations. All copyrightable works that the Executive creates shall be considered work made for hire and shall, upon creation, be owned exclusively by the Company. The Executives obligation to assist the Company in obtaining and enforcing patents for Intellectual Property in any and all countries shall continue beyond the termination of the Executives employment with the Company, but the Company shall compensate the Executive at a reasonable, standard hourly rate following such termination for time directly spent by Executive at the Companys request for such assistance.
9. Restricted Activities . The Executive agrees that the following restrictions on his activities during and after his employment are necessary to protect the good will, Confidential Information, trade secrets and other legitimate interests of the Company and its Affiliates:
(a) During the Term, the Executive will not undertake any outside activity, whether or not Competitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise interfere with his duties and obligations to the Company or any of its Affiliates.
(b) During the Term and for the Restricted Period (defined below), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise: (i) engage in any Competitive activity within the United States or any other country in which the Company has conducted discovery, development or
commercialization activities for any Product or has sought patent protection for any Product, in either case as of the date of such termination; or (ii) undertake any planning for any Competitive business. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly Competitive or potentially Competitive and further agrees not to work or provide services, in any capacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Person who is engaged in any business that is Competitive. The foregoing, however, shall not prevent the Executives passive ownership of one percent (1%) or less of the equity securities of any publicly traded company. For purposes of this Agreement: (A) the Restricted Period shall be the six months following the date of termination; and (B) the term Competitive shall mean either (i) the discovery, development or commercialization of any therapeutics or diagnostics utilizing any technology relating to the interference of RNA or otherwise relating to the expression, or non-expression, of targeted genes or genetic pathways; or (ii) the discovery, development or commercialization of any: (1) Products; or (2) drug or drug candidates for the same biological target or for the treatment of the same diseases, disorders or conditions targeted by any Product.
(c) During the Restricted Period, the Executive will not directly or indirectly (a) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or (b) seek to persuade any such customer or prospective customer of the Company or any of its Affiliates to conduct with anyone else any business or activity which such customer or prospective customer conducts or could conduct with the Company or any of its Affiliates; provided that these restrictions shall apply (y) only with respect to those Persons who are or have been a customer of the Company or any of its Affiliates at any time within the immediately preceding two-year period or whose business has been solicited on behalf of the Company or any of the Affiliates by any of their officers, employees or agents within said two year period, other than by form letter, blanket mailing or published advertisement; and (z) only if the Executive has performed work with such Person during his employment with the Company or one of its Affiliates or been introduced to, or otherwise had contact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or has had access to Confidential Information which would assist in the Executives solicitation of such Person.
(d) During the Restricted Period, the Executive will not, and will not assist any other Person to (a) hire or solicit for hiring any employee of the Company or any of its Affiliates or seek to persuade any employee of the Company or any of its Affiliates to discontinue employment; or (b) solicit or encourage any independent contractor providing services to the Company or any of its Affiliates to terminate or diminish its relationship with them. For the purposes of this Agreement, an employee of the Company or any of its Affiliates is any person who was such at any time within the preceding two years.
10. Notification Requirement . Until 45 days after the conclusion of the Restricted Period, the Executive shall give notice to the Company of each new business activity he undertakes, at least ten days prior to beginning any such activity. Such notice shall state the name and address of the Person for whom such activity is undertaken and the nature of the Executives business relationship(s) and position(s) with such Person. The Executive shall provide the Company with such other pertinent information concerning such business activity as
the Company may reasonably request in order to determine the Executives continued compliance with his obligations under Sections 7, 8 and 9 hereof.
11. Enforcement of Covenants . The Executive acknowledges that he has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed upon him pursuant to Sections 7, 8 and 9 hereof. The Executive agrees without reservation that each of the restraints contained herein is necessary for the reasonable and proper protection of the good will, Confidential Information, trade secrets and other legitimate interests of the Company and its Affiliates; that each and every one of those restraints is reasonable in respect to subject matter, length of time and geographic area; and that these restraints, individually or in the aggregate, will not prevent him from obtaining other suitable employment during the period in which the Executive is bound by these restraints. The Executive further agrees that he will never assert, or permit to be asserted on his behalf, in any forum, any position contrary to the foregoing. The Executive further acknowledges that, were he to breach any of the covenants contained in Sections 7, 8 or 9 hereof, the damage to the Company would be irreparable. The Executive therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Executive of any of said covenants, without having to post bond and to recover its reasonable attorneys fees and costs incurred in securing such relief. The Executive agrees that the Restricted Period shall be tolled, and shall not run, during any period of time in which he is in violation of the terms thereof, in order that the Company and its Affiliates shall have all of the agreed-upon temporal protection recited herein. The parties further agree that, in the event that any provision of Section 7, 8 or 9 hereof shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.
12. Conflicting Agreements . The Executive hereby represents and warrants that the execution of this Agreement and the performance of his obligations hereunder will not breach or be in conflict with any other agreement to which the Executive is a party or is bound and that the Executive is not now subject to any covenants against competition or similar covenants or any court order or other legal obligation that would affect the performance of his obligations hereunder. The Executive will not disclose to or use on behalf of the Company any proprietary information of a third party without such partys consent.
13. Definitions . Words or phrases which are initially capitalized or are within quotation marks shall have the meanings provided in this Section and as provided elsewhere herein. For purposes of this Agreement, the following definitions apply:
(a) Affiliates means all persons and entities directly or indirectly controlling, controlled by or under common control with the Company, where control may be by management authority, contract or equity interest.
(b) Confidential Information means any and all information of the Company and its Affiliates that is not generally known by those with whom the Company or any of its Affiliates competes or does business, or with whom the Company or any of its Affiliates plans to compete or do business and any and all information, publicly known in whole or in part
or not, which, if disclosed by the Company or any of its Affiliates would assist in competition against them. Confidential Information includes without limitation such information relating to (i) the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates; (ii) the Products; (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates; (iv) the identity and special needs of the customers of the Company and its Affiliates; and (v) the people and organizations with whom the Company and its Affiliates have business relationships and the nature and substance of those relationships. Confidential Information also includes any information that the Company or any of its Affiliates has received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information would not be disclosed.
(c) Intellectual Property means inventions, discoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets) conceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business hours or on or off Company premises) during the Executives employment and during the period of six months immediately following termination of his employment that relate to either the Products or any prospective activity of the Company or any of its Affiliates or that make use of Confidential Information or any of the equipment or facilities of the Company or any of its Affiliates.
(d) Person means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust and any other entity or organization, other than the Company or any of its Affiliates.
(e) Products mean all products and product candidates planned, researched, developed, tested, manufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all related services provided or planned by the Company or any of its Affiliates, during the Executives employment with the Company or any of its Affiliates.
(f) Trading Market means the OTC Bulletin Board or the Pink Sheets, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market, the New York Stock Exchange, the NYSE Amex or any of the markets operated by the OTC Markets Group, Inc., or any successor markets thereto.
14. Withholding . All payments made by the Company under this Agreement shall be reduced by any tax or other amounts required to be withheld by the Company under applicable law.
15. Assignment . Neither the Company nor the Executive may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other; provided, however, that the Company may assign its rights and obligations under this Agreement without the consent of the Executive in the event that the Executive is transferred to a position with any of the Affiliates or in the event that the Company shall hereafter effect a reorganization, consolidate with, or merge into, any Person or transfer all
or substantially all of its properties or assets to any Person. This Agreement shall inure to the benefit of and be binding upon the Company and the Executive, their respective successors, executors, administrators, heirs and permitted assigns.
16. Severability . If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
17. Waiver . No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of either party to require the performance of any term or obligation of this Agreement, or the waiver by either party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
18. Notices . Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing and shall be effective when delivered in person, consigned to a reputable national courier service or deposited in the United States mail, postage prepaid, registered or certified, and addressed to the Executive at his last known address on the books of the Company or, in the case of the Company, at its principal place of business, attention of the Chairman of the Board, or to such other address as either party may specify by notice to the other actually received.
19. Entire Agreement . This Agreement constitutes the entire agreement between the parties and supersedes all prior communications, agreements and understandings, written or oral, with respect to the terms and conditions of the Executives employment with the Company, other than any obligations owed to the Company or its predecessor with respect to confidentiality, non-competition, intellectual property, and proprietary information, all of which shall continue in force.
20. Amendment . This Agreement may be amended or modified only by a written instrument signed by the Executive and by an expressly authorized representative of the Company.
21. Headings . The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement.
22. Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument.
23. Governing Law . This is a Massachusetts contract and shall be construed and enforced under and be governed in all respects by the laws of the Commonwealth of Massachusetts, without regard to the conflict of laws principles thereof.
[Signature page follows immediately.]
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the Company, by its duly authorized representative, and by the Executive, as of the date first above written.
|THE EXECUTIVE:||THE COMPANY|
|/s/ Geert Cauwenbergh||By:||/s/ Mark J. Ahn|
|Dr. Geert Cauwenbergh||
Mark J. Ahn, Ph.D.
President and Chief Financial Officer
[Signature Page to Geert Cauwenbergh Employment Agreement]