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): May 31, 2018

 

 

Aradigm Corporation

(Exact name of registrant as specified in its charter)

 

 

 

California   001-36480   94-3133088

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

3929 Point Eden Way, Hayward, California   94545
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (510) 265-9000

Not Applicable

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

 

 

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

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

Emerging growth company  ☐

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

 

 

 


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

The information set forth in Item 8.01 of this current report is incorporated by reference in this Item 5.02.

 

Item 8.01 Other Events.

Appointment of Chief Medical Officer

Effective May 31, 2018, Aradigm Corporation (the “Company”) appointed Dr. Juergen Froehlich as an executive officer in the position of Chief Medical Officer of the Company, pursuant to an employment agreement, dated May 31, 2018, between the Company and Dr. Froehlich (the “Employment Agreement”).

Employment Agreement with Dr. Froehlich

Cash Compensation

Under the Employment Agreement, Dr. Froehlich will receive an annual base salary of $439,000. The Employment Agreement provides that, although the Board of Directors of the Company (the “Board”) will consider an increase to Dr. Froehlich’s annual base salary after he has been employed for at least one year, it is not required to increase Dr. Froehlich’s base salary.

In addition, in accordance with the Employment Agreement, Dr. Froehlich is eligible to earn an annual performance bonus. Under the Employment Agreement, Dr. Froehlich’s target bonus is 40% of his base salary (approximately $175,600, based on Dr. Froehlich’s initial base salary). The Employment Agreement provides that the Board will determine whether Dr. Froehlich has earned a bonus and the amount of any such bonus based on the overall performance of the Company and Froehlich’s personal contributions. Dr. Froehlich must be a regular employee and in good standing on the bonus calculation date to earn and be eligible to receive a bonus.

Under the Employment Agreement, the terms of Dr. Froehlich’s compensation (including base salary and bonus eligibility) are subject to review and change at the discretion of the Board (or any authorized committee thereof).

Equity-Based Incentive Compensation

Under the Employment Agreement, subject to Board approval, Dr. Froehlich will be eligible to earn a one-time stock bonus consisting of 150,000 shares of the Company’s common stock (“Shares”) and/or a one-time stock bonus consisting of 100,000 Shares, in each case, under the Aradigm Corporation 2015 Equity Incentive Plan, based on the achievement (if any) of the following performance objectives:

 

    150,000 Shares if the Company submits, and the Food and Drug Administration (“FDA”) accepts, a New Drug Application (“NDA”) for a limited population pathway for non-cystic fibrosis bronchiectasis patients within the 12-month period following future agreement by the FDA to accept the Company’s NDA submission; and

 

    100,000 Shares if the European Medicines Agency issues a positive opinion for approval of the Aradigm Marketing Authorisation Application submission for Linhaliq™ (Apulmiq™) on or before May 1, 2019.

Employee Benefits and Travel Expenses

Dr. Froehlich is eligible to participate in the Company’s standard employee benefits plans in accordance with the terms and conditions of the plans and the Company’s applicable policies which may be in effect from time to time as provided by the Company to its executive employees. Dr. Froehlich will be eligible to participate in any additional or new benefits, programs, practices and plans customarily offered to Company employees when deemed available.

In accordance with the Employment Agreement, Dr. Froehlich will be eligible for expense reimbursement for airfare for domestic travel to and from Dr. Froehlich’s home (currently, Newton, Massachusetts) to the Company once per


month. The Employment Agreement also provides that the Company will pay for reasonable travel expenses and for accommodation when Dr. Froehlich is traveling for the Company on business and for reasonable accommodation when Dr. Froehlich is working at the Company’s executive offices.

Additional Employment Matters

Pursuant to the terms of the Employment Agreement, Dr. Froehlich is required to comply with the Company’s Proprietary Information and Inventions Agreement, which Dr. Froehlich entered into effective as of May 31, 2018. In addition, the Company entered into its standard form of indemnity agreement for executive officers with Dr. Froehlich, effective as of May 31, 2018.

In addition, the Employment Agreement provides that during Dr. Froehlich’s employment by the Company, except on behalf of the Company, Dr. Froehlich will not directly or indirectly serve as an officer, director, stockholder, employee, partner, proprietor, investor, joint venture, associate, representative or consultant of any other person, corporation, firm, partnership or other entity whatsoever known by Dr. Froehlich to compete with the Company (or is planning or preparing to compete with the Company), anywhere in the world, in any line of business engaged in (or planned to be engaged in) by the Company; provided that Dr. Froehlich may purchase or otherwise acquire up to 1% of any class of securities of any enterprise (but without participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange.

Under the Employment Agreement, Dr. Froehlich’s employment relationship with the Company is at-will. Subject to the Company’s obligations under the Change of Control Agreement (as defined below), both Dr. Froehlich and the Company may terminate the employment relationship at any time, with or without cause, and with or without advance notice.

Change of Control Agreement

In connection with his entry into the Employment Agreement, Dr. Froehlich also entered into a Change of Control Agreement with the Company, dated May 31, 2018 (the “Change of Control Agreement”).

The Change of Control Agreement provides that Dr. Froehlich is entitled to receive the benefits specified below (less applicable withholding taxes, and as may be further reduced as provided in the agreement) if, during the 18-month period following a Change in Control (as defined in the agreement) of the Company, Dr. Froehlich either (1) is terminated by the Company without Cause (as defined in the agreement) or (2) experiences a Constructive Termination (as defined in the agreement), which includes resignation by Dr. Froehlich due to the occurrence, without consent, of a material reduction in title or duties, a material reduction in salary or benefits or a relocation of Dr. Froehlich’s primary business office of more than 50 miles:

 

    a lump sum payment equal to 12 months of Dr. Froehlich’s base salary as of the date of the Change of Control or the date of termination (whichever is greater);

 

    a lump sum payment equal to 35% of Dr. Froehlich’s base salary as of the date of the Change of Control or the date of termination (whichever is greater);

 

    continuation of Dr. Froehlich’s health insurance benefits for 12 months after the date of termination (if Dr. Froehlich timely elects continued group health insurance coverage under the federal COBRA law or similar state laws);

 

    reimbursement in an amount up to $10,000 for expenses actually incurred by Dr. Froehlich within six months of the termination date for career transition assistance (outplacement services); and

 

    acceleration of vesting of any stock options or restricted stock awards that remain unvested as of the date of termination.

The Change of Control Agreement also provides that, as a condition to receiving any change of control severance benefits thereunder, Dr. Froehlich is required to execute a general release and waiver in favor of the Company.

The above descriptions of the Employment Agreement and the Change of Control Agreement do not purport to be complete and are qualified in their entirety by reference to the Employment Agreement and the Change of Control Agreement, which are filed as Exhibits 10.1 and 10.2 to this report and are incorporated herein by reference.

 

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

The following documents are filed as exhibits to this report:

 

Exhibit No.

  

Description

10.1    Employment Agreement between Aradigm Corporation and Juergen Froehlich, dated May 31, 2018.
10.2    Change of Control Agreement between Aradigm Corporation and Juergen Froehlich, dated May 31, 2018.


SIGNATURES

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

 

    ARADIGM CORPORATION
Dated: June 6, 2018     By:  

/s/ John Siebert

      Name: John Siebert
      Title: Executive Chairman, Interim Principal Executive Officer and Acting Principal Financial Officer

Exhibit 10.1

 

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May 31, 2018

Dr. Juergen Froehlich

19 Prescott Street

Newton, MA 02460

Dear Juergen,

On behalf of Aradigm Corporation (the “Company”), once again, I am very pleased to offer you the position of Chief Medical Officer (“CMO”), on the following terms.

Your employment shall commence today, May 31, 2018.

P OSITION

You will serve in an executive capacity and shall perform the duties of CMO as commonly associated with this position, as specified in the job description and in the Bylaws of the Company, and as required by the Board of Directors of the Company (the “Board”). It is anticipated that you will spend, about three weeks per month at the executive offices, including business travel and activities for the Company, currently located in Hayward, California.

During your employment with the Company, you will devote your best efforts and substantially all of your business time and attention (except for vacation periods and reasonable periods of illness or other incapacity permitted by the Company’s general employment policies) to the business of the Company. Your employment relationship with the Company shall also be governed by, and you will be required to comply with, the general employment policies and practices of the Company (except that if the terms of this letter differ from or are in conflict with the Company’s general employment policies or practices, this letter will control), including but not limited to the policies set forth in the Company’s Employee Handbook, as may be in effect from time to time. The Company reserves the right to change the Company’s general employment policies and procedures, from time to time at its discretion.

C OMPENSATION

You will receive an annual salary of $439,000, less standard payroll deductions and withholdings, payable bi-monthly on the 15 th and last day of each month. Although the Board will consider increasing your annual base salary after you have been employed for at least one year, it is not required to increase your base salary.

In addition, you will be eligible to earn an annual performance bonus. Your target bonus is forty percent (40%) of your base salary. The Board will determine whether you have earned a bonus and the amount of any such bonus based on the overall performance of the Company and your

 

LOGO


personal contributions. You must be a regular employee and in good standing on the bonus calculation date to earn and be eligible to receive a bonus. Your bonus for the calendar year 2018 will be pro-rated to reflect your length of service to the Company. Your compensation terms (including base salary and bonus eligibility) are subject to review and change at the discretion of the Board (or any authorized committee thereof).

As noted, you will serve in an executive capacity as CMO, therefore you will attend Board of Directors meetings upon request. You may be asked to present business updates and respond to inquiries by the Board of Directors as well. There is no additional compensation for that role. The annual salary, bonus and other benefits described in this offer make up the entirety of the compensation package for your position with the Company.

E QUITY I NCENTIVES

Subject to Board approval, you will be eligible to earn a one-time stock bonus of 150,000 shares, and a one-time stock bonus of 100,000 shares under the Company’s 2015 Equity Incentive Plan (the “Plan”) based on the achievement of the following performance objectives:

 

  a) 150,000 shares when Aradigm submits and the FDA accepts an NDA for a limited population pathway for non-cystic fibrosis bronchiectasis (NCFBE) patients within 12 months following FDA agreement to accept Aradigm’s NDA submission.
  b) 100,000 shares when the EMA (CHMP) issues a positive opinion for approval of the Aradigm MAA submission for Linhaliq (Apulmiq) on or before 1 May, 2019.

T RAVEL

You will be eligible for expense reimbursement for airfare for domestic travel to and from your home to Aradigm once per month. The company will pay for reasonable travel expenses and for accommodation when you are traveling for Aradigm on business. The company will also pay for reasonable accommodation when you are working at Aradigm’s executive offices. To qualify for expense reimbursement, the travel arrangements must meet the limitations outlined in Aradigm’s Travel Policy.

E MPLOYEE B ENEFITS

You will be eligible to participate in the Company’s standard employee benefits plans in accordance with the terms and conditions of the plans and applicable policies which may be in effect from time to time, and provided by the company to its executive employees. The benefits include group medical, dental and vision insurance coverage, disability insurance coverage, life insurance coverage, 401(k) Plan, employee stock purchase plan, paid vacation, and Company holidays. You will receive additional information concerning the Company’s benefits plans after you commence employment. You may accept these benefits within 30 days of your hire date or you may decline one or all benefits plans offered at your discretion. You will be eligible to participate in any additional or new company benefits, programs, practices and plans customarily offered to Aradigm employees when deemed available. The Company may modify its standard benefits from time to time as it deems necessary, which would also modify the benefits available to you.

 

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P ROPRIETARY I NFORMATION AND I NVENTIONS A GREEMENT

As a condition of employment, you are required to sign and abide by the Company’s Proprietary Information and Inventions Agreement (the “Proprietary Information Agreement”), a form of which is attached hereto as Attachment A.

I NDEMNITY A GREEMENT

The Company will enter into its standard form of Indemnity Agreement with you, a copy of which is attached as Attachment B.

P ROTECTION OF T HIRD P ARTY I NFORMATION

In your work for the Company, you will be expected not to make unauthorized use or disclosure of any confidential information or materials, including trade secrets, of any former employer or other third party to whom you have an obligation of confidentiality. Rather, you will be expected to use only that information generally known and used by persons with training and experience comparable to your own, which is common knowledge in the industry of otherwise legally in the public domain, or which is otherwise provided or developed by the Company. By accepting employment with the Company, you are representing to us that you will be able to perform your duties within the guidelines described in this paragraph. You represent further that you have disclosed to the Company any contract you have signed that may restrict your activities on behalf of the Company in any manner.

O UTSIDE A CTIVITIES

Throughout your employment with the Company, you may engage in civic and not-for-profit activities so long as such activities do not interfere with the performance of your duties hereunder or present a conflict of interest with the Company. Subject to the restrictions set forth herein and with the prior written consent of the Board, you may serve as a director of other corporations and may devote a reasonable amount of your time to other types of business or public activities not expressly mentioned in this paragraph. The Board may rescind consent, in its sole discretion, to your service as a director of all other corporation or participation in other business or public activities, if it determines that such activities compromise or threaten to compromise the Company’s business interests or conflict with your duties to the Company.

During your employment by the Company, except on behalf of the Company, you will not directly or indirectly serve as an officer, director, stockholder, employee, partner, proprietor, investor, joint venture, associate, representative or consultant of any other person, corporation, firm, partnership or other entity whatsoever known by you to compete with the Company (or is planning or preparing to compete with the Company), anywhere in the world, in any line of business engaged in (or planned to be engaged in) by the Company; provided, however, that you may purchase or otherwise acquire up to (but not more than) one percent (1%) of any class of securities of any enterprise (but without participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange.

A T -W ILL E MPLOYMENT R ELATIONSHIP

Your employment relationship with the Company is at-will. Accordingly, subject to the Company’s obligations under the Change of Control Agreement, both you and the Company may terminate the employment relationship at any time, with or without cause, and with or without advance notice.

 

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M ISCELLANEOUS

This letter, includes the attached Proprietary Information Agreement, the Indemnity Agreement, and your Change of Control Agreement. It constitutes the complete, final and exclusive embodiment of the entire agreement between you and the Company with regard to the subject matter hereof. It is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes any other agreements, promises, warranties or representations concerning its subject matters. Changes in your employment terms, other than those changes expressly reserved here into the Company’s or the Board’s discretion can only be pursuant to a written agreement approved by the Board and signed by you and a duly-authorized representative of the Board. This letter agreement will bind the heirs, personal representative, successors and assigns of both you and the Company, and insure to the benefit of both you and the Company, the heirs, successors and assigns. If any provision of this letter agreement is determined to be invalid or unenforceable, in whole or in part, this determination shall not affect any other provision of this letter agreement and the provision in question shall be modified so as to be rendered enforceable in a manner consistent with the intent of the parties insofar as possible under applicable law. This letter agreement shall be construed and enforced in accordance with the laws of the State of California without regard to conflicts of law principles. Any waiver of a breach of this letter agreement, or rights hereunder, shall be in writing and shall not be deemed to be a waiver of any successive breach or rights hereunder. This letter agreement may be executed in counterparts which shall be deemed to be part of one original, and facsimile signatures shall be equivalent to original signatures.

As required by law, this offer is subject to satisfactory proof of your identity and right to work in the United States. If the terms of this offer are agreeable to you, please sign and return the letter by May 25, 2018 to indicate your acceptance of employment with the Company on the terms set forth herein.

Sincerely,

 

/s/ John M. Siebert                             

John M. Siebert

Interim Principal Executive Officer

Understood, Accepted and Agreed:

 

/s/ Juergen Froehlich                           
Dr. Juergen Froehlich       Effective Start Date: May 31, 2018

 

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Exhibit 10.2

CHANGE OF CONTROL AGREEMENT

This Change of Control Agreement (the “ Agreement ”) is made and entered into as of May 31, 2018, by and between Aradigm Corporation (the “ Company ”), and Dr. Juergen Froehlich (the “ Executive ”).

W HEREAS , the Company’s Board of Directors (the “ Board ”) has determined that it would be in the best interests of the Company and its stockholders to provide for certain severance benefits in the event the Executive’s employment is terminated in connection with a Change of Control (as defined below) in order to align further the interests of the Executive with those of the stockholders of the Company;

N OW , T HEREFORE , in consideration of the Executive’s continued employment with the Company, the Company and the Executive hereby agree as follows:

 

1. D EFINITIONS . The following terms in this Agreement shall have the meanings set forth below:

1.1     “ Change of Control ” shall mean any one or more of the following events:

(a)     The consummation of a merger, consolidation or similar transaction involving (directly or indirectly) the Company and, immediately after the consummation of such merger, consolidation or similar transaction, the shareholders of the Company immediately prior thereto do not own, directly or indirectly, either (i) outstanding voting securities representing more than sixty percent (60%) of the combined outstanding voting power of the surviving entity in such merger, consolidation or similar transaction or (ii) more than sixty percent (60%) of the combined outstanding voting power of the parent of the surviving entity in such merger, consolidation or similar transaction, in each case in substantially the same proportions as their ownership of the outstanding voting securities of the Company immediately prior to such transaction.

(b)     The consummation of a sale, lease, exclusive license or other disposition of 90% or more of the consolidated assets of the Company and its subsidiaries within a single 12 month period, other than a sale, lease, license or other disposition of all or substantially all of the consolidated assets of the Company and its subsidiaries to an entity, more than sixty percent (60%) of the combined voting power of the voting securities of which are owned by the shareholders of the Company in substantially the same proportions as their ownership of the outstanding voting securities of the Company prior to such sale, lease, license or other disposition. The Board shall have the sole discretion to determine whether the event described in this Section 1.1(b) has occurred.

(c)     Individuals who, on the date this Agreement is approved by the Board, are members of the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the members of the Board; provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered a member of the Incumbent Board.

 


The term Change of Control shall not include a sale of assets, merger or other transaction effected exclusively for the purpose of changing the domicile of the Company.                

1.2     “ Cause ” shall mean any one or more of the following: (i) the Executive’s commission of any felony or any crime involving fraud, dishonesty or moral turpitude under the laws of the United States or any state thereof; (ii) the Executive’s attempted commission of, or participation in, a fraud or act of dishonesty against the Company; (iii) the Executive’s intentional, material violation of any material contract or agreement between the Executive and the Company or any statutory duty owed to the Company; (iv) the Executive’s unauthorized use or disclosure of the Company’s confidential information or trade secrets; or (v) the Executive’s gross misconduct. The determination that a termination is for Cause shall be made by the Company in its sole discretion.

1.3     “ Constructive Termination ” shall mean the resignation of the Executive due to the occurrence of any of the following without the Executive’s consent:

(a)     a material reduction in the Executive’s duties, title, reporting relationships, or responsibilities relative to the Executive’s duties, title, reporting relationships, or responsibilities in effect immediately prior to the effective date of the Change of Control; provided, however , that a change in the Executive’s title or reporting relationships shall not in and of themselves (or collectively) constitute a Constructive Termination;

(b)     a material reduction by the Company in the Executive’s annual base salary or benefits, including a reduction in Severance Benefits under the Executive Severance Plans, as in effect on the effective date of the Change of Control or as increased thereafter; provided, however , that Constructive Termination shall not be deemed to have occurred in the event of a reduction in the Executive’s annual base salary or benefits that is pursuant to a salary reduction program or change in Company benefit programs that affects substantially all of the executive officers or employees of the Company and that does not adversely affect the Executive to a greater extent than other similarly situated employees; or

(c)     a relocation of the Executive’s primary business office to a location more than fifty (50) miles from the location at which the Executive performed the Executive’s duties as of the effective date of the Change of Control, except for required travel by the Executive with respect to the Company’s business to an extent substantially consistent with the Executive’s business travel obligations prior to the effective date of the Change of Control.

1.4      “Covered Termination” shall mean either that an Executive’s employment (a) is terminated without Cause, or (b) terminates as a result of a Constructive Termination, in each case, resulting in a “separation from service” with the Company within the meaning of Treasury Regulation Section 1.409A-1(h) (without regard to any permissible alternative definition of “termination of employment” thereunder).

 

2. C HANGE OF C ONTROL S EVERANCE B ENEFITS .

2.1      Severance Benefits. If within eighteen (18) months after the effective date of a Change of Control, the Executive: (a) is either terminated by the Company without Cause or suffers a Constructive Termination; and (b) provides the Company with a signed general release

 

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of all claims in a form acceptable to the Company and allows this release to become effective, then the Executive shall be eligible for the following severance benefits:

(a)      Severance Payment. The Executive shall receive a single lump sum payment equal to 12 months of the base salary he received as of the date of the Change of Control, or the termination of her employment (whichever is greater). This Severance Payment shall be subject to required deductions and tax withholdings and shall be paid within ten (10) business days of the effective date of the Release.

(b)      Bonus Payment . The Executive shall receive a single lump sum payment equal to 35% of the base salary he received as of the date of the Change of Control, or the date of the Covered Termination (whichever is greater). This Bonus Payment shall be subject to required deductions and tax withholdings and shall be paid within ten (10) business days of the effective date of the Release.

(c)      Health Insurance Payments. If, following the termination of Executive’s employment, the Executive timely elects continued group health insurance coverage under the federal COBRA law or similar state laws, if applicable, the Company will pay the Executive’s COBRA premium costs to continue such coverage at the level in effect as of the Executive’s termination date for a period of 12 months after the Executive’s termination date or until the Executive becomes eligible for group health insurance coverage through a new employer (whichever comes first). The Executive must promptly notify the Company in writing if the Executive becomes eligible for group health insurance coverage through a new employer during the Severance Period.

(d)      Career Transition Assistance (Outplacement Services) . The Company will reimburse the Executive up to $10,000 for expenses actually incurred by the Executive within six (6) months of her termination date for reasonable and customary outplacement services for career transition assistance expenses. Such payments shall qualify for exemption provided by Treasury Regulation Sections 1.409A-1 (b)(9)(v)(A) and (C).

(e)      Accelerated Vesting. The Company will accelerate the vesting of any stock options or restricted stock awards that remain unvested as of the date of the termination of the Executive’s employment such that all such unvested options or awards shall be deemed vested as of the date of such termination. Except as modified herein, all such options and awards shall continue to be governed by the applicable agreements and stock option plans.

2.2      Ineligibility For Severance Benefits. The Executive will not be eligible for any benefits under this Agreement if the Company (or its successor) terminates the Executive’s employment for Cause or if the Executive resigns for any reason other than a Constructive Termination. Further, the Executive will not be eligible for severance benefits under this Agreement in the event that the Executive’s employment ends for any reason more than eighteen (18) months after the effective date of a Change of Control. If the Release does not become effective by the Release Deadline, Executive will not have any rights to any benefits under this Agreement.

2.3      Other Severance Benefits. Nothing in this Agreement shall affect the right of the Executive to receive any severance benefits pursuant to any other Company severance plan

 

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including, without limitation, the Aradigm Corporation Executive Officer Severance Benefit Plan; provided, however , that if the Executive actually receives benefits under this Agreement, he shall not be entitled to receive any other severance benefits of any kind (except for the accelerated vesting set forth in Section 2.1(e) above) pursuant to any other severance benefit plan of the Company (including, without limitation, the Aradigm Corporation Executive Officer Severance Benefit Plan). The Executive acknowledges and agrees that any prior agreement between the Executive and the Company providing for or relating to severance benefits in connection with a Change of Control (as defined herein or therein), except for those contained in the Executive’s stock option agreements with the Company, are hereby expressly superseded and replaced in their entirety by this Agreement and shall have no further force or effect.

2.4    Deferred Compensation.

(a)     All payments provided under this Agreement are intended to constitute separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).

(b)     If Executive is a “specified employee” of the Company of any affiliate thereof (or any successor entity thereto) within the meaning of Section 409A9a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended (the “Code”) on the date of a Covered Termination, then any cash severance payments pursuant to Sections 2.1(a) and 2.1(b) (the “ Severance Payments ”) shall be delayed until the earlier of: (i) the date that is six (6) months after the date of the Covered Termination, or (ii) the date of the Executive’s death (such date the “ Delayed Payment Date ”), and the Company (or the successor entity therto, as applicable) shall pay to the Executive a lump sum amount equal to the sum of the Severance Payments that otherwise would have been paid to the Executive on or before the Delayed Payment Date, without any adjustment on account of such delay. Except to the extent that payments may be delayed until the Delayed Payment Date, on the first regularly scheduled payroll period following the date the Release becomes effective by its terms, the Company will pay the Executive the Severance Payments.

(c)     Any amounts paid pursuant to Section 2.1(c) are not intended to be delayed pursuant to Section 409A(a)(2)(B)(i) of the Code and are intended to be delayed pursuant to the exception provided by Treasury Regulation Section 1.409A-1(b)(9)(v)(B). Amounts paid pursuant to Section 2.1(d) are intended to qualify for the exception provided under Treasury Regulation Sections 1.409A-1(b)(9)(v)(A) and (C).

 

3. P ARACHUTE P AYMENTS .

3.1      Reduction of Severance Benefits. Notwithstanding the above, if any payment or benefit that the Executive would receive under this Plan, when combined with any other payment or benefit he receives that is contingent upon a Change in Control (“ Payment ”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (“ Excise Tax ”), then such Payment shall be either (x) the full amount of such Payment or (y) such lesser amount as would result in no portion of the Payment being subject to the Excise Tax (the “ Reduced Amount ”), whichever of the foregoing amounts, taking into account the applicable federal, state and local employment taxes, income taxes and the Excise Tax, results in the Executive’s receipt, on an after-tax basis, of the greater amount notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits

 

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constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in a manner necessary to provide the Executive with the greatest economic benefit. If more than one manner of reduction of payments or benefits necessary to arrive at the Reduced Amount yields the greatest economic benefit, the payments and benefits shall be reduced pro rata . The Executive shall be solely responsible for the payment of all personal tax liability that is incurred as a result of the payments and benefits received under this Plan, and the Executive will not be reimbursed by the Company for any such payments.

3.2      Determination of Excise Tax Liability. The Company shall attempt to cause its accountants to make all of the determinations required to be made under Section 3.1, or, in the event the Company’s accountants will not perform such service, the Company may select another professional services firm to perform the calculations. The Company shall request that the accountants or firm provide detailed supporting calculations both to the Company and the Executive prior to the Change in Control if administratively feasible or subsequent to the Change in Control if events occur that result in parachute payments to the Executive at that time. For purposes of making the calculations required by Section 3.1, the accountants or firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith determinations concerning the application of the Code. The Company and the Executive shall furnish to the accountants or firm such information and documents as the accountants or firm may reasonably request in order to make a determination under this Section 3.1. The Company shall bear all costs the accountants or firm may reasonably incur in connection with any calculations contemplated by Section 3.1. Any such determination by the Company’s accountants or other firm shall be binding upon the Company and the Executive, and the Company shall have no liability to the Executive for the determinations of its accountants or other firm.

 

4. G ENERAL P ROVISIONS .

4.1      At Will Employment. Nothing in this Agreement alters the Executive’s at-will employment status. Either the Executive or the Company may terminate the Executive’s employment relationship at any time, with or without cause or advance notice. In particular, nothing expressed or implied in this Agreement will create any right or duty on the part of the Company or the Executive to have the Executive remain in the employment of the Company or any subsidiary prior to or following any Change of Control.

4.2      Successors and Binding Agreement . This Agreement will be binding upon and inure to the benefit of the Company and any successor to the Company, including without limitation any persons acquiring directly or indirectly all or substantially all of the business or assets of the Company whether or not through a Change of Control (and such successor shall thereafter be deemed the “Company” for the purposes of this Agreement). This Agreement will inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees and legatees.

4.3      Amendments. No provision of the Agreement may be amended, modified or waived unless such amendment, modification or waiver shall be agreed to in writing and signed by the Executive and a duly authorized officer of the Company.

 

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4.4      Severability. If any provision of the Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law.

4.5      Notices. Any notice or other communication required or permitted under the Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand, electronic transmission (with a copy following by hand or by overnight courier), by registered or certified mail, postage prepaid, return receipt requested or by overnight courier addressed to the other party. All notices shall be addressed as follows, or to such other address or addresses as may be substituted by notice in writing:

 

To the Company:

Aradigm Corporation

3929 Point Eden Way

Hayward, CA 94545

  

To the Executive:

Dr. Juergen Froehlich

19 Prescott Street

Newton, MA 02460

4.6      Governing Law. The Agreement shall be construed, interpreted and governed in accordance with the laws of the State of California, without reference to rules relating to conflicts of law.

4.7      Independent Counsel. The Executive acknowledges that this Agreement has been prepared on behalf of the Company by counsel to the Company and that this counsel does not represent, and is not acting on behalf of, the Executive. The Executive has been provided with an opportunity to consult with the Executive’s own counsel with respect to this Agreement.

4.8      Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.

I N W ITNESS W HEREOF , the parties have executed this Change of Control Agreement as of the date first written above.

 

A RADIGM C ORPORATION
By:  

/s/ John M. Siebert

Name:  

John M. Siebert

Title:  

Interim Principal Executive Officer

E XECUTIVE
Signature:  

/s/ Juergen Froehlich

Print Name:  

Juergen Froehlich

 

 

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