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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

 

FORM 8-K

 

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of report (Date of earliest event reported): August 20, 2021

 

 

 

Beyond Air, Inc.

(Exact Name of Registrant as Specified in Charter)

 

 

 

Delaware   001-38892   47-3812456

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

 

825 East Gate Blvd., Suite 320

Garden City, NY 11530

(Address of Principal Executive Offices and Zip Code)

(516) 665-8200

Registrant’s Telephone Number, Including Area Code

(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 communication 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))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading Symbol(s)

 

Name of each exchange on which registered

Common Stock, par value $.0001 per share   XAIR   The Nasdaq Stock Market LLC

 

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

 

Emerging growth company ☒

 

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

 

 

 

 
 

 

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

 

Appointment of Douglas Larson as Chief Financial Officer

 

On August 20, 2021, the Board of Directors (the “Board”) of Beyond Air, Inc. (the “Company”) appointed Douglas Larson, age 51, as the Company’s Chief Financial Officer, principal financial officer and principal accounting officer, effective September 1, 2021 (the “Start Date”).

 

Mr. Larson joins the Company with over 20 years of international and operational financial leadership experience. Most recently, he served as an independent consultant providing operational and financial consulting services from February 2021 to August 2021. Prior to that, he served as Vice President, Finance and Head of Global Controlling at DBV Technologies, Inc. (NASDAQ: DBVT) (“DBV”), a global clinical stage biopharmaceutical company headquartered in France, from June 2017 to September 2020. Prior to DBV, Mr. Larson served as the Chief Financial Officer of The Scotts Miracle-Gro Company’s (NYSE: SMG) International division, based in Lyon, France from January 2001 to May 2015. Mr. Larson graduated from the Certified General Accountant’s Association of Canada in 2001 and HEC Paris’s Executive MBA program in 2015.

In connection with Mr. Larson’s appointment, the Company entered into an employment agreement (the “Employment Agreement”) with Mr. Larson, which provides that his employment will continue until either the Company or Mr. Larson provides notice of termination in accordance with the terms of the Employment Agreement. Pursuant to the Employment Agreement, Mr. Larson is entitled to receive an annual base salary of $275,000, which will be reviewed annually and will be subject to increase from time to time, as determined by the Board. In addition, pursuant to the Employment Agreement, Mr. Larson is eligible to receive an annual cash bonus, which is based on the achievement of performance objectives, which will be determined by the Board or its Compensation Committee.

 

In addition, the Company will grant to Mr. Larson as of the Start Date a stock option award (the “Inducement Option”) as an inducement material to Mr. Larson’s entering into employment with the Company in accordance with Nasdaq Stock Market Listing Rule 5635(c)(4). The Inducement Option will be exercisable for the purchase of 75,000 shares of the Company’s common stock, at an exercise price equal to the last reported sale price on Nasdaq on the Start Date. The Inducement Option grant was approved by the independent compensation committee of the Board in accordance with Nasdaq Stock Market Listing Rule 5635(c)(4). The Inducement Option will have a ten-year term and will vest over a four-year period, with 25% of the shares underlying the stock option award vesting on the first anniversary of the date of grant and annually thereafter in three equal installments, subject to Mr. Larson’s continued service with the Company through the applicable vesting dates. The Inducement Option will be subject to the terms and conditions of the Company’s 2013 Equity Incentive Plan.

 

Under the Employment Agreement, termination of Mr. Larson’s employment by the Company without “Cause,” or by Mr. Larson with “Good Reason” (as such terms are defined in the Employment Agreement), will require the Company to pay severance to Mr. Larson. Upon any such termination, Mr. Larson will be entitled to receive: (i) any portion of his base salary for the period up to the date of termination that has been earned but remains unpaid; (ii) any benefits that have accrued to him under the terms of any employee benefit plans of the Company, which benefits shall be paid in accordance with the terms of those plans; and (iii) subject to Mr. Larson’s execution of a release and compliance with all terms and provisions of the Employment Agreement that survive the termination of the his employment by the Company, (A) his base salary for a period of six months, less applicable taxes and withholdings, payable in accordance with the Company’s regular payroll practices, with an accelerated payment of any balance upon the occurrence of a “Change in Control” (as such term is defined in the Employment Agreement); provided, however, that if such termination of employment occurs within three months before or within 12 months after the occurrence of a Change in Control (the “Change in Control Period”), the severance payable to Mr. Larson will be increased to an amount equal to Mr. Larson’s base salary for a period of 18 months and be payable in a single lump sum payment, less applicable taxes and withholdings; and (B) payment or reimbursement (upon presentation of proof of payment) of Mr. Larson’s medical insurance premiums at the same level as was in effect on the termination date for a period of six months, which period shall increase to 18 months if such termination of employment shall occur within the Change in Control Period.

 

The Employment Agreement also contains customary non-solicitation and non-competition covenants, which covenants remain in effect for 12 months following any cessation of employment with respect to Mr. Larson.

 

In connection with his appointment, the Company will also enter into the Company’s standard indemnification agreement (the “Indemnification Agreement”) with Mr. Larson. Pursuant to the terms of the Indemnification Agreement, the Company may be required, among other things, to indemnify Mr. Larson for some expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by him in any action or proceeding arising out of his services as an executive officer of the Company.

 

 
 

 

Other than with respect to the Employment Agreement, the Inducement Option and the Indemnification Agreement, there are no arrangements or understandings between Mr. Larson and any other persons pursuant to which Mr. Larson was appointed as Chief Financial Officer, principal financial officer or principal accounting officer of the Company. There are also no family relationships between Mr. Larson and any director or executive officer of the Company and Mr. Larson has no direct or indirect interest in any transaction or proposed transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.

 

The description of the Employment Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the Employment Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K.

 

Departure of Douglas Beck as Chief Financial Officer

 

On August 24, 2021, the Company entered into a Consulting and Severance Agreement (the “Consulting and Severance Agreement”) with Douglas Beck, the Company’s Chief Financial Officer, in connection with Mr. Beck’s separation from the Company. Mr. Beck’s last day of employment is on or about September 1, 2021. The Consulting and Severance Agreement sets forth Mr. Beck’s separation benefits and the terms pursuant to which Mr. Beck will assist the Company in the transition of his roles and continue in a consulting capacity for a six-month period beginning as of his date of termination (the “Consulting Period”).

 

During the Consulting Period, Mr. Beck will continue to provide services to the Company on a non-exclusive basis, unless earlier terminated by either party in accordance with the terms of the Consulting and Severance Agreement. In exchange for his services, the Company will pay Mr. Beck a fee of $10,416.67 per month during the Consulting Period.

 

In addition, the Consulting and Severance Agreement provides for the following separation benefits, subject to Mr. Beck agreeing to a release of claims and complying with certain other continuing obligations contained therein:

 

  ● For a period of six months, the Company will pay Mr. Beck salary continuation, at the rate of Mr. Beck’s salary in effect as of the termination of employment in accordance with the Company’s customary payroll practices and subject to applicable federal and local taxes;
     
  ● the Company will continue to contribute to Mr. Beck’s health and dental benefits for six months in the same proportion as the month preceding his date of termination; and
     
  ● Mr. Beck will continue to receive all equity awards that vest through December 31, 2021, and Mr. Beck will have 12 months from the end of the Consulting Period to exercise all vested equity awards.

 

The description of the Consulting and Severance Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the Consulting and Severance Agreement, which is filed as Exhibit 10.2 to this Current Report on Form 8-K.

 

Item 8.01. Other Events.

 

A copy of the press release announcing the appointment of Mr. Larson as Chief Financial Officer and the separation of Mr. Beck is filed herewith as Exhibit 99.1 and is incorporated by reference in this Item 8.01.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit

No.

  Description
10.1   Employment Agreement, dated August 20, 2021, by and between Douglas Larson and Beyond Air, Inc.
10.2   Consulting and Severance Agreement, dated August 24, 2021, by and between Douglas Beck and Beyond Air, Inc.
99.1   Press Release of Beyond Air, Inc., dated August 20, 2021.
104   Cover Page Interactive Data File (embedded within the inline XBRL document)

 

 
 

 

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.

 

  BEYOND AIR, Inc.
     
Date: August 25, 2021 By: /s/ Steven A. Lisi
  Name: Steven A. Lisi
  Title Chief Executive Officer

 

 

 

 

Exhibit 10.1

 

 

EMPLOYMENT AGREEMENT

 

EMPLOYMENT AGREEMENT is effective on August 20th, 2021 between Beyond Air, Inc. (the “Company”), a Delaware corporation, and Douglas Larson (the “Employee”).

 

Recital:

 

The parties desire to enter into this Agreement so as to provide for the employment of the Employee by the Company and for certain other matters in connection with such employment, all as set forth more fully in this Agreement.

 

NOW, THEREFORE, in consideration of the premises and covenants set forth herein, and intending to be legally bound hereby, the parties to this Agreement hereby agree as follows:

 

1.Duties. The Company agrees that the Employee shall be employed by the Company to serve as the Chief Financial Officer of the Company. The Employee shall report to the Chief Executive Officer of the Company (the “CEO”). The Employee agrees to be so employed by the Company and to devote his/her best efforts and full working time to advance the interests of the Company and to perform the duties customarily incident to the position of Chief Financial Officer and such other duties assigned to the Employee by the CEO and the Board of Directors, provided such other duties are commensurate with the Employee’s employment level at the Company.

 

2.Term. The Employee’s employment under this Agreement shall continue in effect until terminated pursuant to Section 4 of this Agreement.

 

3.Compensation.

 

(a)Salary. During the term of the Employee’s employment under this Agreement, the Employee shall be paid an annual salary at the rate of not less than $275,000 (the “Base Salary”). The Base Salary may be increased from time to time by the Board of Directors (the “Board”) in its sole discretion. The Board shall review the Base Salary at least annually at the end of each fiscal year of the Company. The Base Salary shall be paid in accordance with the Company’s regular payroll practices.

 

(b)Annual Bonus. At the end of each fiscal year of the Company that ends during the term of this Agreement, the Board shall consider whether to award a performance bonus to the Employee based upon the achievement of performance objectives established annually by the Board or its Compensation Committee in their sole discretion. Whether the performance objectives for any year have been achieved by the Employee shall be determined by the Board or its Compensation Committee and any award is solely at the discretion of the Board or its Compensation Committee. Any bonus, if awarded, shall be paid within two and one-half months after the close of each year and Employee must be employed on the date the bonus to be eligible for the bonus. A bonus in one year does not guarantee a bonus in any subsequent year.

 

 

 

 

(c)Equity Incentive Awards. On the date hereof, the Employee will be granted an inducement stock option award under the Company’s 2013 Equity Incentive Plan, as amended, exercisable for the purchase of 75,000 shares of the Company’s Common Stock, subject to the execution of a stock option agreement in the form approved by the Company. The exercise price of the stock option will be equal to the last reported sale price on the Nasdaq on the start date. The stock option will vest 25% on the first anniversary and annually thereafter in 3 equal installments, provided that, no portion of the stock option that is not exercisable at the time of the Employee’s termination of employment for any reason shall thereafter become exercisable. The Employee shall be eligible to participate in equity incentive programs established by the Company from time to time to provide stock options and other equity-based incentives to key employees of the Company in accordance with the terms of those programs.

 

(d)Vacation and Fringe Benefits. Based on your level in the company, you are eligible to take paid time off during the year, provided that you schedule and take time off in a manner that ensures that all Company needs are met and you maintain satisfactory performance and productivity levels. Paid time off is additional to bank holidays and days the company does not operate. The Employee shall be entitled to participate in all insurance and other fringe benefit programs of the Company to the extent and on the same terms and conditions as are accorded to other officers and key employees of the Company.

 

(e)Reimbursement of Expenses. The Employee shall be reimbursed for all normal items of travel, entertainment and miscellaneous business expenses reasonably incurred by the Employee on behalf of the Company, provided that such expenses are documented and submitted in accordance with the reimbursement policies of the Company as in effect from time to time.

 

4.Termination.

 

(a)Death. This Agreement and Employee’s employment shall automatically terminate effective as of the date of the Employee’s death, in which event the Company shall not have any further obligation or liability under this Agreement except that the Company shall pay to the Employee’s estate: (i) any portion of the Employee’s Base Salary for the period up to the Employee’s date of death that has been earned but remains unpaid; and (ii) any benefits that have accrued to the Employee under the terms of the employee benefit plans of the Company, which benefits shall be paid in accordance with the terms of those plans.

 

 

 

 

(b)Total Disability. The Company may terminate the employment of the Employee immediately upon written notice to the Employee in the event of the Disability (as that term is hereinafter defined) of the Employee, in which event, the Company shall not have any further obligation or liability under this Agreement except that the Company shall pay to the Employee: (i) any portion of the Employee’s Base Salary for the period up to the date of termination that has been earned but remains unpaid; and (ii) any benefits that have accrued to the Employee under the terms of the employee benefit plans of the Company, which benefits shall be paid in accordance with the terms of those plans. For purposes of this Agreement, the term “Disability” shall mean an illness, incapacity or a mental or physical condition that renders the Employee unable or incompetent to carry out the job responsibilities that the Employee held or the tasks that the Employee was assigned at the time the disability commenced for 120 consecutive days or 180 days in a one-year period, as determined by the Board and supported by the opinion of a physician. The Employee shall fully cooperate with the physician retained to furnish such opinion, including submitting to such examinations and tests as may be requested by the physician.

 

(c)Termination by the Company for Cause. The Company may terminate the Employee’s employment hereunder and this Agreement immediately (unless stated otherwise) upon written notice to the Employee for “Cause.” For purposes of this Agreement, Cause shall be defined as: (i) the Employee’s use of alcoholic beverages, controlled substances or other narcotics, which use has had or is reasonably likely to have a material adverse effect on the business or financial affairs of the Company or the reputation of the Company; (ii) failure by the Employee to cooperate with the Company in any investigation or formal proceeding; (iii) the commission by the Employee of, or a plea by the Employee of guilty or nolo contendere with respect to, or conviction of the Employee for, a felony (or any lesser included offense or crime in exchange for withdrawal of a felony indictment or charged crime that might result in a penalty of incarceration), a crime involving moral turpitude, or any other offense that results in or could result in any prison sentence; (iv) adjudication of Employee as an incompetent; (v) a breach by the Employee of any material term of this Agreement, including the Employee’s failure to faithfully, diligently and adequately perform the Employee’s duties under this Agreement, that is not corrected within ten days after written notice from the Company, which notice shall set forth the nature of the breach; (vi) violation by Employee in any material respect of any of the Company’s rules, regulations or policies; (vii) gross insubordination by the Employee in the performance of the Employee’s duties under this Agreement; (viii) any conduct, action or behavior by Employee that, in the reasonable opinion of the Company, has had or is likely to have a material adverse effect on the reputation of the Company or the Employee; (ix) any continued or repeated absence of Employee from the Company, unless the absence is approved or excused by the CEO or the result of the Employee’s illness, disability or incapacity (in which event the provisions of Section 4(b) hereof shall control); or (x) misappropriation by Employee of any funds or property of the Company, theft, embezzlement or fraud. For the avoidance of doubt, “Cause” shall not mean a failure to achieve scientific goals, financial goals or forecasted timelines. In the event that the Company shall discharge the Employee pursuant to this Section 4(c), the Company shall not have any further obligation or liability under this Agreement, except that the Company shall pay to the Employee: (i) any portion of the Employee’s Base Salary for the period up to the date of termination that has been earned but remains unpaid; and (ii) any benefits that have accrued to the Employee under the terms of the employee benefit plans of the Company, which benefits shall be paid in accordance with the terms of those plans.

 

 

 

 

(d)Other Termination by the Company. The Company may terminate the employment of the Employee and this Agreement for any reason other than one specified in Section 4(b) or 4(c) hereof immediately upon written notice to the Employee, in which event the Employee shall be entitled to receive: (i) any portion of the Employee’s Base Salary for the period up to the date of termination that has been earned but remains unpaid; (ii) any benefits that have accrued to the Employee under the terms of any employee benefit plans of the Company, which benefits shall be paid in accordance with the terms of those plans; and (iii) subject to the satisfaction of the provisions of Section 4(g) and the compliance by the Employee with all terms and provisions of this Agreement that survive the termination of the Employee’s employment by the Company, (A) the Employee’s Base Salary for a period of six (6) months, less applicable taxes and withholdings, payable in accordance with the Company’s regular payroll practices, with an accelerated payment of any balance upon the occurrence of a Change in Control; provided, however, that if such termination of employment shall occur within three months before or within twelve months after the occurrence of a Change in Control (such period being referred to herein as the “Change of Control Period”), the severance payable to the Employee shall be increased to an amount equal to the Employee’s Base Salary for a period of eighteen (18) months and be payable in a single lump sum payment, less applicable taxes and withholdings; and (B) payment or reimbursement (upon presentation of proof of payment) of the Employee’s medical insurance premiums at the same level as was in effect on the termination date for a period of six (6) months, which period shall increase to eighteen months if such termination of employment shall occur within the Change in Control Period. Any payments due hereunder shall commence as soon as administratively feasible within 60 days after the date of the Employee’s termination of employment provided the Employee has timely executed and returned the Release referred to in Section 4(g) and, if a revocation period is applicable, the Employee has not revoked the Release; provided, however, that if the 60-day period begins in one calendar year and ends in a second calendar year, the severance payments shall begin to be paid in the second calendar year. On the date that severance payments commence, the Company will pay the Employee in a single lump sum payment, less applicable taxes and withholding, the Severance payments that the Employee would have received on or prior to such date but for the delay imposed by the immediately preceding sentence, with the balance of the severance payments to be paid as originally scheduled.

 

 

 

 

(e)Termination by the Employee for Good Reason. The Employee may terminate the Employee’s employment by providing written notice to the Company of a breach constituting Good Reason. “Good Reason” shall be deemed to exist with respect to any termination of employment by the Employee for any of the following reasons: (i) reassignment of the Employee to a primary work location that is more than 50 miles from Garden City, New York, but only if the Company, in such instance, does not permit Employee to work remotely; (ii) any material failure by the Company to comply with any material term of this Agreement; (iii) the sustained demotion of the Employee to a lesser position than described in Section 1 hereof or a substantial diminution of the Employee’s authority, duties or responsibilities as in effect on the date of this Agreement or as hereafter increased; or (iv) a material diminution of the Executive’s Base Salary and benefits, in the aggregate, unless such reduction is part of a Company-wide reduction in compensation and/or benefits for all of its senior executives. If the Employee shall terminate the Employee’s employment hereunder for Good Reason, the Employee shall be entitled to receive the same payments and benefits on the same terms and conditions (including satisfaction of the provisions of Section 4(g)) as would be applicable upon a termination of the Employee’s employment by the Company without Cause, as provided in Section 4(d) and subject to the satisfaction of the other provisions of this Section 4(e). The Employee may not resign with Good Reason pursuant to this Section 4(e), and shall not be considered to have done so for any purpose of this Agreement, unless (A) the Employee, within 60 days after the initial existence of the act or failure to act by the Company that the Employee believes constitutes “Good Reason” within the meaning of this Agreement, provides the Company with written notice that describes, in particular detail, the act or failure to act that the Employee believes to constitute “Good Reason” and identifies the particular clause of this Section 4(e) that the Employee contends is applicable to such act or failure to act; (B) the Company, within 30 days after its receipt of such notice, fails or refuses to cure the act(s) or failure(s) that the Employee claims to be Good Reason (the “Cure Period”), and (C) the Employee actually resigns from the employ of the Company on or before that date that is 30 days after the Cure Period ends with the Company not having cured the act or failure that the Employee claims to be Good Reason. If the requirements of the preceding sentence are not fully satisfied on a timely basis, then the resignation by the Employee from the employ of the Company shall not be deemed to have been for “Good Reason,” the Employee shall not be entitled to any of the benefits to which the Employee would have been entitled if the Employee had resigned from the employ of the Company for “Good Reason,” and the Company shall not be required to pay any amount or provide any benefit that would otherwise have been due to the Employee under this Section 4(e) had the Employee resigned with “Good Reason.”

 

(f)Other Termination by the Employee. The Employee may terminate the Employee’s employment and this Agreement for any reason other than one specified in Section 4(e) upon at least 30 days’ prior written notice to the Company, which notice shall specify the effective date of the termination. In the event the Employee shall terminate the Employee’s employment pursuant to this Section 4(f), the Company shall not have any further obligation or liability under this Agreement, except that the Company shall pay to the Employee: (i) any portion of the Employee’s Base Salary for the period up to the date of termination that has been earned but remains unpaid; and (ii) any benefits that have accrued to the Employee under the terms of the employee benefit plans of the Company, which benefits shall be paid in accordance with the terms of those plans.

 

(g)Execution of Release. The Employee shall not be entitled to any payments or benefits under Sections 4(d) or 4(e) unless the Employee executes and does not revoke a Release and Agreement (the “Release”), as drafted by the Company at the time of the Employee’s termination of employment, which shall include, but not limited to the following terms:

 

(i)an unconditional release of all rights to any claims, charges, complaints, grievances, known or unknown to the Employee, against the Company, its affiliates or assigns, through the date of the Employee’s termination from employment other than post-termination payments and benefits pursuant to this Agreement;

 

 

 

 

(ii)a representation and warranty that the Employee has not filed or assigned any claims, charges, complaints, or grievances against the Company, its affiliates, or assigns;

 

(iii)an agreement not to use, disclose or make copies of any confidential information of the Company, as well as to return any such confidential information and property to the Company upon execution of the Release;

 

(iv)a mutual agreement to maintain the confidentiality of the Release or disclose the reasons for any termination of employment;

 

(v)an agreement not to disparage the Company or its affiliates, or its or their respective officers, directors, stockholders, products or business;

 

(vi)an agreement to continue to comply with the terms of Section 5 herein; and

 

(vii)an agreement to indemnify the Company, or its affiliates or assigns, in the event that the Employee breaches any portion of this Agreement or the Release.

 

Notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of the Employee’s execution of the Release, directly or indirectly, result in the Employee designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year.

 

(h)Definition of Change in Control. As used in this Agreement, the term “Change in Control” means:

 

(i)any merger or consolidation in which voting securities of the Company possessing more than 50% of the total combined voting power of the Company’s outstanding securities are transferred to a person or persons different from the person holding those securities immediately prior to such transaction and the composition of the Board following such transaction is such that the directors of the Company prior to the transaction constitute less than 50% of the Board membership following the transaction;

 

 

 

 

(ii)any acquisition, directly or indirectly, by a person or related group of persons (other than the Company or a person that directly or indirectly controls, is controlled by, or is under common control with, the Company) of beneficial ownership of voting securities of the Company possessing more than 50% of the total combined voting power of the Company’s outstanding securities; provided, however, that, no Change in Control shall be deemed to occur by reason of the acquisition of shares of the Company’s capital stock by an investor or group of investors in the Company in a capital-raising transaction; or

 

(iii)any sale, transfer, exclusive worldwide license or other disposition of all or substantially all of the assets of the Company; or

 

(iv)within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company immediately before the beginning of such period (the “Incumbent Directors”) shall cease (for any reason other than death) to constitute at least a majority of the Board of Directors of the Company or the board of directors of any successor to the Company, provided that any director who was not a director as of the date hereof shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 4(h)(iv), unless such election, recommendation or approval was the result of an actual or threatened contested election of directors pursuant to Regulation 14A under the Securities Exchange Act of 1934 or any successor provision.

 

(i)Base Salary Continuation. The Base Salary continuation set forth in Sections 4(c) and (e) above shall be intended either (i) to satisfy the safe harbor set forth in the regulations issued under section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) (Treas. Regs. 1.409A-1(n)(2)(ii)) or (ii) be treated as a Short-term Deferral as that term is defined under Code section 409A (Treas. Regs. 1.409A-1(b)(4)). To the extent such continuation payments exceed the applicable safe harbor amount or do not constitute a Short-term Deferral, the excess amount shall be treated as deferred compensation under Code section 409A and as such shall be payable pursuant to the following schedule: such excess amount shall be paid via standard payroll in periodic installments in accordance with the Company’s usual practice for its senior executives. Solely for purposes of Code section 409A, each installment payment is considered a separate payment. Notwithstanding any provision in this Agreement to the contrary, in the event that the Employee is a “specified employee” as defined in Section 409A, any continuation payment, continuation benefits or other amounts payable under this Agreement that would be subject to the special rule regarding payments to “specified employees” under Section 409A(a)(2)(B) of the Code shall not be paid before the expiration of a period of six months following the date of the Employee’s termination of employment or before the date of the Employee’s death, if earlier.

 

 

 

 

(j)Parachute Provisions. Notwithstanding any provisions of this Agreement to the contrary:

 

(i)If any of the payments or benefits received or to be received by the Employee in connection with the Employee’s termination of employment in respect of a Change in Control, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company (all such payments and benefits, being hereinafter referred to as the “Total Payments”), would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Employee shall receive the Total Payments and be responsible for the Excise Tax; provided, however that the Employee shall not receive the Total Payments and the Total Payments shall be reduced to the Safe Harbor Amount (defined below) if (A) the net amount of such Total Payments, as so reduced to the Safe Harbor Amount (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). The “Safe Harbor Amount” is the amount to which the Total Payments would hypothetically have to be reduced so that no portion of the Total Payments would be subject to the Excise Tax.

 

(ii)For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the accounting firm that was, immediately prior to the Change in Control, the Company’s independent auditor (the “Auditor”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (B) all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and expenses of Tax Counsel and the Auditor shall be paid by the Company.

 

(iii)In the event it is determined that the Safe Harbor Amount is payable to Employee, then the severance payments provided under this Agreement that are cash shall first be reduced on a pro rata basis, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax.

 

 

 

 

5.Non-Disclosure and Non-Competition.

 

(a)Non-Disclosure. The Employee acknowledges that in the course of performing services for the Company, the Employee will obtain knowledge of the Company’s business plans, products, processes, software, know-how, trade secrets, formulas, methods, models, prototypes, discoveries, inventions, improvements, disclosures, customers, clients, vendors, pricing, names and positions of employees and/or other proprietary and/or confidential information (collectively the “Confidential Information”). The Employee agrees to keep the Confidential Information secret and confidential and not to publish, disclose or divulge to any other party, and the Employee agrees not to use any of the Confidential Information for any purpose other than in the lawful course of his employment with the Company and in furtherance of the Company’s interests, whether or not such Confidential Information was discovered or developed by the Employee. The Employee also agrees not to divulge, publish or use any proprietary and/or confidential information of others that the Company is obligated to maintain in confidence.

 

(b)Non-Competition. The Employee agrees that during the Employee’s employment by the Company hereunder and for an additional period of twelve (12) months after the termination of the Employee’s employment hereunder for any reason (the “Restricted Period”), the Employee will (i) not anywhere in the world where the Company markets or sells its products, engage or assist others in engaging in any business or enterprise (whether as owner, partner, officer, director, employee, consultant, investor or otherwise) that is competitive with the Company’s business, including but not limited to any business or enterprise that develops, manufactures, markets, licenses, sells or provides any product that competes with any product developed, manufactured, marketed, licensed, sold or provided, or planned to be developed, manufactured, marketed, licensed sold or provided, by the Company (“Competitive Business”) while Employee was employed by the Company; or (ii) solicit, hire, contract for services or otherwise employ, directly or indirectly, anyone who is or was employed by the Company within the six-month period prior to Employee’s termination of employment with the Company. The foregoing prohibition shall not prevent any employment or engagement of the Employee, after termination of employment with the Company, by any company or business organization not substantially engaged in a Competitive Business as long as the activities of any such employment or engagement, in any capacity, do not involve work on matters related to any product or service being developed, manufactured, marketed, distributed or planned in writing by the Company at the time of termination of Employee’s employment with the Company. The Employee’s ownership of no more than 5% of the outstanding voting stock of a publicly traded company shall not constitute a violation of this Section 5(b). The Employee is entering into this covenant not to compete in consideration of the additional agreements of the Company in this Agreement, including but not limited to the rights of the Employee set forth in Sections 4(d) and 4(e). The Restricted Period shall be tolled for any period of time during which the Employee is in breach of any obligations under this Section 5(b).

 

 

 

 

(c)Blue Pencil. In the event that the terms of this Section 5 shall be determined by any court of competent jurisdiction to be unenforceable in whole or in part by reason of their extending for too great a period of time or over too great a geographical area or by reason of their being too extensive in any other respect, the parties intend for such court to interpret such terms to extend only over the maximum period of time for which they may be enforceable, over the maximum geographical area as to which they may be enforceable, or to the maximum extent in all other respects as to which they may be enforceable.

 

6.Inventions and Discoveries.

 

(a)Disclosure. The Employee shall promptly and fully disclose to the Company, with all necessary detail, all developments, know-how, discoveries, inventions, improvements, concepts, ideas, formulae, processes and methods (whether copyrightable, patentable or otherwise) made, received, conceived, acquired or written by the Employee (whether or not at the request or upon the suggestion of the Company, solely or jointly with others), during the period of the Employee’s employment with the Company that (i) result from, arise out of, or relate to any work, assignment or task performed by the Employee on behalf of the Company, whether undertaken voluntarily or assigned to the Employee within the scope of the Employee’s responsibilities to the Company, or (ii) were developed using the Company’s facilities or other resources or in Company time, or (iii) result from the Employee’s use or knowledge of the Company’s Confidential Information, or (iv) relate to the Company’s business or any of the products or services being developed, manufactured or sold by the Company or that may be used in relation therewith (collectively referred to as “Inventions”). The Employee hereby acknowledges that all original works of authorship that are made by the Employee (solely or jointly with others) within the above terms and that are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. The Employee understands and hereby agrees that the decision whether or not to commercialize or market any Invention developed by the Employee solely or jointly with others is within the Company’s sole discretion and for the Company’s sole benefit and that no royalty shall be due to the Employee as a result of the Company’s efforts to commercialize or market any such Invention.

 

(b)Assignment and Transfer. The Employee agrees to assign and hereby does irrevocably assign to the Company all of the Employee’s right, title and interest in and to the Inventions, and the Employee further agrees to deliver to the Company any and all drawings, notes, specifications and data relating to the Inventions, and to sign, acknowledge and deliver all such further papers, including applications for and assignments of copyrights and patents, and all renewals thereof, as may be necessary to obtain copyrights and patents for any Inventions in any and all countries and to vest title thereto in the Company and its successors and assigns and to otherwise protect the Company’s interests therein. The Employee shall not charge the Company for time spent in complying with these obligations. If the Company is unable because of the Employee’s mental or physical incapacity or for any other reason to secure the Employee’s signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Inventions or original works of authorship assigned to the Company as above, then the Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as the Employee’s agent and attorney in fact, to act for and in the Employee’s behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by the Employee.

 

 

 

 

(c)Company Documentation. The Employee shall hold in a fiduciary capacity for the benefit of the Company all documentation, disks, programs, data, records, drawings, manuals, reports, sketches, blueprints, letters, notes, notebooks and all other writings, electronic data, graphics and tangible information and materials of a secret, confidential or proprietary information nature relating to the Company or the Company’s business that are in the possession or under the control of the Employee. The Employee agrees that in connection with any research, development or other services performed for the Company, the Employee will maintain careful, adequate and contemporaneous written records of all Inventions, which records shall be the property of the Company.

 

7.Injunctive Relief. The Employee acknowledges that the Employee’s compliance with the agreements in Sections 5 and 6 hereof is necessary to protect the good will and other proprietary interests of the Company and that the Employee is one of the principal executives of the Company and conversant with its affairs, its trade secrets and other proprietary information. The Employee acknowledges that a breach of any of the Employee’s agreements in Sections 5 and 6 hereof will result in irreparable and continuing damage to the Company for which there will be no adequate remedy at law; and the Employee agrees that in the event of any breach of the aforesaid agreements, the Company and its successors and assigns shall be entitled to injunctive relief in any court of competent jurisdiction, without being required to post bond, and to such other and further relief as may be proper.

 

8.Full Agreement. This Agreement constitutes the entire agreement of the parties concerning its subject matter and supersedes all other oral or written understandings, discussions, and agreements, and may be modified only in a writing signed by both parties. The parties acknowledge that they have read and fully understand the contents of this Agreement and execute it after having an opportunity to consult with legal counsel.

 

9.Amendments. Any amendment to this Agreement shall be made in writing and signed by the parties hereto.

 

 

 

 

10.Enforceability. If any provision of this Agreement shall be invalid or unenforceable, in whole or in part, then such provision shall be deemed to be modified or restricted to the extent and in the manner necessary to render the same valid and enforceable, or shall be deemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law as if such provision had been originally incorporated herein as so modified or restricted or as if such provision had not been originally incorporated herein, as the case may be.

 

11.Construction. This Agreement shall be construed and interpreted in accordance with the internal laws of the State of New York.

 

12.Assignment.

 

(a)By the Company. The rights and obligations of the Company under this Agreement shall inure to the benefit of, and shall be binding upon, the successors and assigns of the Company. This Agreement may be assigned by the Company without the consent of the Employee.

 

(b)By the Employee. This Agreement and the obligations created hereunder may not be assigned by the Employee, but all rights of the Employee hereunder shall inure to the benefit of and be enforceable by the Employee’s heirs, devisees, legatees, executors, administrators and personal representatives.

 

13.Notices. All notices required or permitted to be given hereunder shall be in writing and shall be deemed to have been given when mailed by certified mail, return receipt requested, or delivered by a national overnight delivery service addressed to the intended recipient as follows:

 

If to the Company:

 

Beyond Air, Inc.

900 Stewart Avenue

Garden City, New York 11566

Attention: Chief Executive Officer or General Counsel

 

If to the Employee, to address stated on the signature page to this Agreement.

 

Any party may from time to time change its address for the purpose of notices to that party by a similar notice specifying a new address, but no such change shall be deemed to have been given until it is actually received by the party sought to be charged with its contents.

 

 

 

 

14.Waivers. No claim or right arising out of a breach or default under this Agreement shall be discharged in whole or in part by a waiver of that claim or right unless the waiver is supported by consideration and is in writing and executed by the aggrieved party hereto or such party’s duly authorized agent. A waiver by any party hereto of a breach or default by the other party hereto of any provision of this Agreement shall not be deemed a waiver of future compliance therewith, and such provisions shall remain in full force and effect.

 

15.Section 409A. It is intended that this Agreement be drafted and administered in compliance with section 409A of the Code, including, but not limited to, any future amendments to Code section 409A, and any other Internal Revenue Service or other governmental rulings or interpretations (together, “Section 409A”) issued pursuant to Section 409A so as not to subject the Employee to payment of interest or any additional tax under Code section 409A. The parties intend for any payments under this Agreement to either satisfy the requirements of Section 409A or to be exempt from the application of Section 409A, and this Agreement shall be construed and interpreted accordingly. In furtherance thereof, if payment or provision of any amount or benefit hereunder that is subject to Section 409A at the time specified herein would subject such amount or benefit to any additional tax under Section 409A, the payment or provision of such amount or benefit shall be postponed to the earliest commencement date on which the payment or provision of such amount or benefit could be made without incurring such additional tax. In addition, to the extent that any Internal Revenue Service guidance issued under Section 409A would result in the Employee being subject to the payment of interest or any additional tax under Section 409A, the parties agree, to the extent reasonably possible, to amend this Agreement in order to avoid the imposition of any such interest or additional tax under Section 409A, which amendment shall have the minimum economic effect necessary and be reasonably determined in good faith by the Company and the Employee.

 

16.Survival of Covenants. The provisions of Sections 4, 5, 6 and 7 hereof shall survive the termination of this Agreement. Furthermore, each other provision of this Agreement that, by its terms, is intended to continue beyond the termination of the Employee’s employment shall continue in effect thereafter.

 

(Signature page follows.)

 

 

 

 

IN WITNESS WHEREOF, this Agreement has been executed by the parties.

 

  BEYOND AIR INC.
     
  By: /s/ Steven Lisi
    Steven Lisi
    Chief Executive Officer
  Date: August 16, 2021
     
    /s/ Douglas Larson
  By: Douglas Larson
    265 East 66th Street
    New York, New York 10065
  Date: August 20, 2021

 

 

 

 

Exhibit 10.2

 

 

CONSULTING AND SEVERANCE AGREEMENT

 

This CONSULTING AND SEVERANCE AGREEMENT (this “Agreement”) is made and entered into by and between BEYOND AIR, INC., a Delaware corporation (the “Company”) and Douglas Beck (the “Beck” and together with the Company, the “Parties”) on August 18, 2021.

 

WHEREAS, until August 31, 2021, Beck served as Chief Financial Officer (“CFO”) under the terms set forth in an Offer Letter dated October 17, 2018 (the “Offer Letter”); and

 

WHEREAS, Beck and the Company wish to document their agreement concerning the end of Beck’s employment with the Company as CFO and to provide for Beck’s ongoing assistance to the Company as a Consultant during the Consulting Period (as defined below).

 

NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this document and the payment of the severance pay hereunder, which shall be paid by the Company to Beck in accordance with this Agreement, it is hereby agreed by and between the parties as follows:

 

1. Termination, Consulting Period; Consulting Fees.

 

  (a) Effective on August 31, 2021, Beck’s employment with the Company has terminated (“Separation Date”).
     
  (b) Provided that this Agreement becomes effective in accordance with Section 3 hereof and that Beck does not breach any of his obligations to the Company as set forth in this Agreement or the Non-disclosure Agreement, for the six-month period commencing on the Separation Date (the “Consulting Period”) Beck shall provide services to the Company on a non-exclusive basis pursuant to the terms of this Agreement. Beck shall not be required to commit in excess of 45% of his average working time while a Consultant of the Company to providing services as a non-employee Consultant. Such services shall consist of assisting the Company (i) with ongoing projects, (ii) the transition of Beck’s former duties as CFO, and (iii) with specific projects as directed by the Company’s Executive Officer, Chief Financial Officer or General Counsel. Beck shall also provide assistance with respect to any investigative, administrative or regulatory proceeding as requested from time to time. Such services are collectively referred to as the “Services.” Such Consulting Period will automatically be terminated in the event Beck commences full-time employment during the Consulting Period.

 

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  (c) During the Consulting Period, and unless the Parties agree otherwise in writing, the Company shall pay Beck a consulting fee of $10,416.67 per month (such fees, the “Consulting Fees”), payable monthly in arrears. The Company shall reimburse Beck for preapproved reasonable business expenses incurred by Beck during the Consulting Period in connection with providing the consulting services hereunder. Beck shall bill the Company monthly for all such expenses (including providing reasonably required documentation of such expenses), which invoices the Company shall pay in accordance with the Company’s expense reimbursement policy in effect at that time. The Company shall not withhold or deduct from the Consulting Fee any amount or amounts in respect of income taxes or other employment taxes of any other nature on behalf of Beck. Beck shall be solely responsible for the payment of any Federal, state, local or other income and/or self-employment taxes in respect of the compensation described in this Section 1(c) and shall hold the Company and its affiliates and their officers, directors and employees harmless from any liability arising from Beck’s failure to comply with the foregoing provisions of this sentence.
     
  (d) Beck may terminate the Consulting Period at any time after sixty (60) days on 14 days’ prior written notice to the Company. Except as set forth in Section 5, upon termination of the Consulting Period by Beck, no other payment shall be due to Beck.
     
  (e) For the duration of the Consulting Period, Beck (i) understands that he is an independent contractor and shall have sole control of the manner and means of performing the Services and shall complete such Services in accordance with his own means and methods of work, and according to his own schedule, provided that Beck meets the Company’s needs and deadlines with respect to the Services; (ii) shall be solely responsible for any federal, state or local income taxes or self-employment taxes arising with respect to the amounts payable under Section 1(c); (iii) has no federal, state or local law workers’ compensation rights with respect to the Services; (iv) shall not be entitled to disability insurance, Social Security or unemployment compensation coverage or any other statutory benefit generally granted to employees of the Company, or be entitled to participate in any employee benefit plans or other benefits or conditions of employment available to the employees of the Company or its affiliates, except as may be elected by Beck pursuant to COBRA or as set forth in Section 5.c below; (v) shall comply at his expense with all applicable provisions of workers’ compensation laws, unemployment compensation laws, federal Social Security law, the Fair Labor Standards Act, OSHA regulations, federal, state and local income tax laws, and all other applicable federal, state and local laws, regulations and codes relating to terms and conditions of employment required to be fulfilled by employers or independent contractors; and (vi) shall not have the authority or ability to legally bind or commit the Company or any of its affiliates. Nothing contained in this Section 1(e) is intended to give rise to, or gives rise to, a partnership, joint venture, agency, fiduciary, employment, or other relationship between the parties or imposes upon the parties any of the duties or responsibilities of partners, joint venturers or employer-employee, beyond the relationship of independent parties to a commercial contract. Beck also agrees to observe and comply with, and that he is subject to, the policies and rules of the Company. Beck agrees to observe and comply with all such policies that by their operation survive termination of his consultancy hereunder.

 

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  (f) EXCEPT FOR A BREACH OF THE NON-DISCLOSURE AGREEMENT (AS DEFINED BELOW) BY BECK, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF USE, OR LOST PROFIT DAMAGES, ARISING IN CONNECTION WITH BECK PROVIDING SERVICES TO THE COMPANY PURSUANT TO THE TERMS HEREOF DURING THE CONSULTING PERIOD, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

 

2. Eligibility for Certain Payments and Benefits. Provided that this Agreement becomes effective in accordance with Section 3 hereof and that Beck does not breach any of his obligations to the Company as set forth in this Agreement or the Non-disclosure Agreement, the Parties agree that Beck will be entitled to the severance payments and benefits described in Section 5 hereof (the “Severance Benefits”), which shall be paid or provided in such amounts and in such manner as is described in Section 5 below. If the Agreement does not become effective (i) Beck will not be entitled to the Severance Benefits, and (ii) Beck may elect to continue receiving group medical, dental and vision insurance pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), starting in the month after the Separation Date, in which case Beck shall pay all premium costs on a monthly basis for as long as, and to the extent that, Beck remains eligible for COBRA continuation.

 

3.

Effectiveness of Agreement. This Agreement becomes effective, if Beck (A) within (21) days of receiving this Agreement, but not before the Separation Date, executes this Agreement and returns it to Company’s General Counsel or Head of Human Resources, (B) does not exercise his revocation right set forth below and (C) executes the Company’s standard form Non-disclosure and Invention Assignment Agreement (“Non-disclosure Agreement”). If Beck (i) does not timely execute the Agreement, (ii) timely revokes the Agreement, or (iii) does not timely execute the Non-disclosure Agreement and Invention Assignment Agreement, this Agreement shall be null and void, ab initio and Beck will not be entitled to the Severance Benefits.

 

 

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4. Accrued Benefits. By signing this Agreement, Beck acknowledges and agrees that Beck has been fully paid all outstanding, accrued compensation due and owing to Beck up to and including the Separation Date, including all wages, salary, commissions, bonuses, incentive payments, vacation, paid time off, profit-sharing payments, expense reimbursements, leave or other benefits.

 

5. Severance Benefits. Subject to the satisfaction of the conditions described in Section 3, the Company shall provide the following Severance Benefits to Beck:

 

(a) Salary Continuation. For a period of 6 (six) months, the Company shall pay Beck salary continuation, at the rate of Beck’s base salary in effect as of the Separation Date, in accordance with the Company’s customary payroll practices and subject to applicable federal and local taxes and withholdings.

 

(b) Benefits. Subject to the satisfaction of the conditions described in Section 3 and to the extent permitted by applicable law, the Company shall continue to contribute to Consultant’s health and dental benefits for six (6) months in the same proportion as the month preceding the Separation Date.

 

(c) Treatment of Equity Awards. In addition to all vested equity awards, Beck shall continue to receive all equity awards that vest through December 31, 2021. All other outstanding equity awards shall be forfeited on the Separation Date. Beck shall have twelve (12) months from the end of the Consulting Period to exercise all vested equity awards.

 

Beck hereby acknowledges that, in connection with his termination of employment as CFO of the Company or any event subsequent to such termination, Beck shall not be entitled to receive from the Company or an affiliate any severance pay or benefits except as described in Section 4 and this Section 5 and that the payments and benefits described in this Section 5 are greater than what Beck would have been entitled to but for this Agreement. All payments and benefits referenced hereunder other than the Consulting Fee shall be subject to required tax withholding.

 

6. Section 409A. The Company and Beck each hereby affirm that it is their mutual view that the provision of payments and benefits described or referenced herein are exempt from or in compliance with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury regulations relating thereto (“Section 409A”) and that each party’s tax reporting shall be completed in a manner consistent with such view. The Company and Beck each agree that upon the Separation Date, Beck will experience a “separation from service” for purposes of Section 409A.

 

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7. Release. In consideration of the payment of the Severance Benefits and the opportunity to earn Consulting Fees, which Beck acknowledges Beck would not otherwise be entitled to receive, Beck hereby fully, forever, irrevocably and unconditionally releases, remises and discharges the Company, its officers, directors, stockholders, corporate affiliates, subsidiaries, parent companies, agents, assigns, insurers, employees and representatives (each in their individual and corporate capacities, and collectively referred to hereinafter as the “Released Parties”) from any and all claims, charges, complaints, demands, actions, causes of action, suits, rights, debts, sums of money, costs, accounts, reckonings, covenants, contracts, agreements, promises, doings, omissions, damages, executions, obligations, liabilities, penalties, interest and expenses (including attorneys’ fees and costs), of every kind and nature that Beck ever had or now has against any or all of the Released Parties, whether existing or contingent, known or unknown, including but not limited to: (i) any and all claims arising out of or relating to the Offer Letter, Beck’s employment with and/or separation from any of the Released Parties (including, without limitation, any tax liabilities applicable to compensation or benefits with respect to such employment and/or separation) or arising out of Beck’s relation in any capacity to any of the Released Parties; (ii) any and all claims under any Federal, state, or local constitution, law, or regulation, including (without limitation) any claims for whistleblowing or retaliation; (iii) any and all claims for discrimination, harassment, or retaliation on any prohibited basis (including claims of age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq. (“ADEA”) or any other law prohibiting age discrimination); (iv) any and all claims for compensation of any kind whether under any agreement between the parties or under New York Labor Law or any other law; (v) any and all contract, tort or common law, statutory or equitable claims including, but not limited to, actions in defamation, intentional infliction of emotional distress, misrepresentation, fraud, wrongful discharge, whistleblowing, and breach of contract; breach of the covenant of good faith and fair dealing; unfair competition; and (vi) any and all claims to any non-vested ownership interest in the Company, contractual or otherwise. This release is intended to be all encompassing and to act as a full and total release of all claims, whether specifically enumerated above or not, that Beck may have or have had against any or all of the Released Parties up to the date Beck signs this Agreement but nothing therein prevents Beck from filing a charge with, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission or a state fair employment practices agency (except that Executive acknowledges that Beck may not be able to recover any monetary benefits in connection with any such claim, charge or proceeding) and provided further, however, that nothing herein is intended to be construed as releasing the Company from any obligation of this Agreement.

 

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Beck understands and agrees that by entering into this Agreement, Beck is waiving any and all rights or claims Beck might have under the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act, and that Beck has received consideration beyond that to which Beck was previously entitled.

 

8. Return of Company Property and Information. Within five calendar (5) days following the end of the Consulting Period, or earlier at the direction of the Company, Beck shall return to the Company all materials containing Company Information (as defined below), and any copies, duplicates, reproductions or excerpts thereof, including, but not limited to, documents and memoranda, and all other property belonging to Company which in each case is in Consultant’s possession or control. The term Company Information as used in this Agreement means (a) confidential information including, without limitation, information received from third parties under confidential conditions; and (b) other technical, business or financial information, which Company regards as confidential and the use or disclosure of which might reasonably be considered to be contrary to the interests of Company.

 

9. Cooperation. Beck agrees that to the extent the Company deems Beck’s cooperation necessary, Beck will cooperate with the Company and its respective counsel in connection with any internal, governmental, or regulatory investigations, and in any litigation, arbitration, or regulatory proceedings brought by or against the Company concerning matters within Beck’s knowledge. Beck will be entitled to reimbursement of reasonable out-of-pocket expenses (not including counsel fees) incurred in connection with fulfilling Beck’s obligations under this provision, subject to the Company’s then-prevailing policies for employee expense reimbursement.

 

10. Non-Disparagement. Beck agrees that he will not comment in a detrimental fashion, or make any disparaging remarks on any past or current circumstances in regard to his employment (including the termination of his employment) with the Company or about the Company, its affiliates, and its and their respective employees, officers, directors, shareholders, business affairs or financial condition. This provision, however, will not prevent Beck from making truthful statements in any internal, governmental, or regulatory investigations, and in any litigation, arbitration, or regulatory proceedings brought by or against the Company or in any other court proceeding when requested to do so.

 

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11. Compliance with this Agreement’s Terms. The Severance Benefits and other benefits the Company has offered to Beck, as described in this Agreement, are in excess of the amounts and benefits that Beck would be otherwise be entitled to receive. The Company’s willingness to enter into this Agreement and make such payments and provide such benefits are in consideration of Beck’s agreement to abide by the terms of this Agreement and the Non-disclosure Agreement, particularly the agreements provided herein regarding confidential information, return of company property, non-disparagement and cooperation. If Beck breaches any of the provisions of this Agreement, the Company shall have the right to cease making the payments and providing the benefits specified above. In addition, Beck acknowledges that a breach by Beck of the foregoing provisions relating to confidentiality, return of Avid property, non-disparagement, and cooperation would constitute irreparable harm to the Company for which a remedy at law would be inadequate, and accordingly, Beck consents to the Company obtaining injunctive relief in the event of any such breach without being required to post a bond. Beck agrees that if bond is mandated by applicable law, Beck will not dispute the Company’s request to post only the minimum bond required by such law. Beck agrees to indemnify and hold the Company harmless from and against any and all loss, cost, damage, or expense, including but not limited to reasonable attorneys’ fees incurred by the Company arising out of any action at law or equity or other proceedings the Company finds necessary to enforce the terms covenants or conditions of this Agreement.

 

12. Time and Disclosures. The Company advises Beck to consult with a lawyer before executing this Agreement and Beck acknowledge that he: (i) has been provided with a period of at least twenty-one (21) days to do so, (ii) has read this Agreement (including, but not limited to, the “Release” in Section 7), (iii) fully understands the terms of this Agreement, and (iv) has executed this Agreement knowingly and voluntarily and without coercion, whether express or implied. Beck represents and warrants that the Parties agreed that any changes to this Agreement from the date it was first presented to him, whether material or immaterial, would not restart the twenty-one (21) day review period.

 

13. Severability. In the event any paragraph, section, sentence, provision, or clause of this Agreement, or portion thereof, shall be determined to be illegal, invalid, or unenforceable, the remainder of this Agreement, and the remainder of any such paragraph, section, sentence, provision, or clause shall not be affected and shall be given full effect without regard to the illegal, invalid or unenforceable portion, provided, however, if Section 3(a) or 7 above are held illegal, invalid or unenforceable, the Company shall be released from any obligations under Section 2 and/or Section 5 above.

 

14. Revocation.

 

(a) Right to Revoke. Beck may revoke his release of ADEA claims within seven (7) days after the date on which you sign it (the “Revocation Period”). This Agreement will not be binding or enforceable until that seven- (7) day Revocation Period has expired. If Beck decides to exercise his revocation right, Beck must notify the Company of such revocation in a letter signed by you and received by the General Counsel or the Head of Human Resources no later than the seventh (7th) day after Beck signed this Agreement. A letter of revocation that is not post-marked by the seventh (7th) day after Beck has signed the Agreement will be invalid and will not revoke this Agreement. In the event of such revocation, the Company shall have the right, in its sole discretion, to treat this entire Agreement as null and void.

 

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(b) Effective Date of Agreement. If Beck has not revoked this Agreement in accordance with this Section 14, the eighth (8th) day after the date on which Beck signs the Agreement shall be the “Effective Date” of the Agreement.

 

15. No Admission of Wrongdoing. Nothing herein is to be deemed to constitute an admission of wrongdoing by Beck, the Company or any of its affiliates.

 

16.

Applicable Law. This Agreement shall be interpreted and construed by the laws of the State of New York without regard to conflict of laws provisions. Beck hereby irrevocably submits to the jurisdiction of the courts of the State of New York or if appropriate, a federal court located in the State of New York, (which courts, for purposes of this Agreement, are the only courts of competent jurisdiction), over any suit, action or other proceeding arising out of, under or in connection with this Agreement or the subject matter hereof. 

 

17. Entire Agreement. This Agreement, together with any confidentiality, non-disclosure, inventions or similar agreement (including the Non-disclosure Agreement) executed by Beck with the Company, represent the entire agreement of the parties regarding the subject matter hereof, and supersedes any and all prior agreements or understandings between the parties, including the Offer Letter. Beck represents that, in executing this Agreement, Beck has not relied upon any representation or statement made by the Company or any affiliate of the Company, other than those set forth herein, with regard to the subject matter, basis or effect of this Agreement or otherwise.

  

BECK IS ADVISED TO READ THIS AGREEMENT AND THE RELEASE CONTAINED HEREIN CAREFULLY. THIS AGREEMENT IS A LEGAL DOCUMENT. IT INCLUDES AN AGREEMENT BY BECK TO GIVE UP ALL KNOWN AND UNKNOWN CLAIMS AGAINST THE COMPANY, ITS SUCCESSORS, SUBSIDIARIES AND AFFILIATES (AND THE OTHER RELEASED PARTIES DESCRIBED IN SECTION 7).

 

Acknowledgments and Waivers Including Express Waiver Under the ADEA

 

By signing below, Beck certifies and acknowledges as follows:

 

(a) That Beck has read the terms of this Agreement, and that Beck understands its terms and effects, including the fact that under this Agreement Beck has agreed to RELEASE AND FOREVER DISCHARGE the Releasees from any legal action arising out of or relating to Beck’s employment by the Company or the separation of Beck’s employment, up and through the date of Beck’s execution of this Agreement, including any and all claims relating to age discrimination under the ADEA;

 

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(b) That Beck has signed this Agreement voluntarily and knowingly in exchange for the Severance Benefits described herein, which Beck acknowledges are adequate and satisfactory to Beck and which Beck acknowledges are in addition to any other benefits to which Beck is otherwise entitled;

 

(c) That Beck has been and is hereby advised in writing to consult with an attorney prior to signing this Agreement, and that Beck has been given an adequate opportunity to do so;

 

(d) That under this Agreement Beck does not waive rights or claims that may arise after the date this Agreement is executed;

 

(e) That the Company has provided Beck with a period of at least twenty-one (21) days within which to consider this Agreement, and that Beck has signed on the date indicated below after concluding that this Agreement is satisfactory to Beck ;

 

(f) That if Beck chooses to execute this Agreement before the expiration of the twenty-one (21) day period, Beck does so freely, voluntarily and with full knowledge of Beck’s rights; and

 

(g) That this Agreement may be revoked by Beck within seven (7) calendar days after Beck executes this Agreement, in accordance with Section 14 above, and it shall not become effective until the expiration of such seven- (7) day revocation period.

 

SIGNATURE PAGE FOLLOWS

 

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IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement as of the date written below.

 

BEYOND AIR, INC.

 

By: /s/ Steven Lisi   Date: August 20, 2021
Name: Steven Lisi    
Title:

Chief Executive Officer

 

 

/s/ Douglas Beck   Date: August 24, 2021

Douglas Beck

   

 

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Exhibit 99.1

 

Beyond Air® Announces CFO Transition

 

GARDEN CITY, N.Y., August 20, 2021 (GLOBE NEWSWIRE) — Beyond Air, Inc. (NASDAQ: XAIR), a clinical-stage medical device and biopharmaceutical company focused on developing inhaled nitric oxide (NO) for the treatment of patients with respiratory conditions, including serious lung infections and pulmonary hypertension, and gaseous NO (gNO) for the treatment of solid tumors, today announced the appointment of Douglas Larson as Chief Financial Officer, succeeding Douglas Beck effective September 1, 2021. Mr. Beck will remain a consultant to the Company and is expected to work closely with Mr. Larson and the Beyond Air leadership team to ensure a seamless transition of CFO responsibilities.

 

Douglas Larson joins Beyond Air with over 20 years of international and operational financial leadership experience. Recently he served as Vice President, Finance and Head of Global Controlling at DBV Technologies, Inc. (NASDAQ: DBVT), a global clinical stage biopharmaceutical company headquartered in France, from 2017 to 2020. Prior to DBV, Mr. Larson served as the Chief Financial Officer of The Scotts Miracle-Gro Company’s International division, based in Lyon, France from 2001 to 2015. Mr. Larson has a deep knowledge of performance management, supply chain finance, forecasting and business modeling, and defining and executing strategic and financial goals for companies in various stages of development across a diverse geographic footprint.

 

“On behalf of the Board of Directors and the entire company, I want to thank Mr. Beck for his commitment to Beyond Air and continued support. Since joining in 2018, Mr. Beck has been instrumental to our success, leading with a forward-thinking mindset and establishing the financial foundation for our future development and growth. He leaves the Company in a strong cash position, and I personally want to thank him for his contributions and wish him the best in his future endeavors,” commented Steve Lisi, Chairman and Chief Executive Officer of Beyond Air. “This transition comes at a time of tremendous momentum for Beyond Air, and I am excited to welcome Douglas Larson to effectively guide the Company through our transition to a commercial stage entity.”

 

In connection with the appointment of Mr. Larson, the Company granted Mr. Larson an inducement stock option award (the “Inducement Option”) as an inducement material to Mr. Larson’s entering into employment with the Company in accordance with Nasdaq Stock Market Listing Rule 5635(c)(4). The Inducement Option is being granted effective as of September 1, 2021 and is exercisable for the purchase of 75,000 shares of the Company’s common stock, at an exercise price equal to the last reported sale price on Nasdaq on September 1, 2021. The Inducement Option grant was approved by the independent compensation committee of the Board in accordance with Nasdaq Stock Market Listing Rule 5635(c)(4). The Inducement Option has a ten-year term and will vest over a four-year period, with 25% of the shares underlying the stock option award vesting on the first anniversary of the date of grant and annually thereafter in three equal installments, subject to Mr. Larson’s continued service with the Company through the applicable vesting dates. The Inducement Option is subject to the terms and conditions of the Company’s 2013 Equity Incentive Plan.

 

 

 

 

About Beyond Air, Inc.

 

Beyond Air, Inc. is a clinical-stage medical device and biopharmaceutical company developing a revolutionary NO Generator and Delivery System, LungFit®, that uses NO generated from ambient air to deliver precise amounts of NO to the lungs for the potential treatment of a variety of pulmonary diseases. The LungFit® can generate up to 400 ppm of NO, for delivery either continuously or for a fixed amount of time and has the ability to either titrate dose on demand or maintain a constant dose. The Company is currently applying its therapeutic expertise to develop treatments for pulmonary hypertension in various settings, in addition to treatments for respiratory tract infections that are not effectively addressed with current standards of care. Beyond Air is currently advancing its revolutionary LungFit® for clinical trials for the treatment of severe lung infections such as acute viral pneumonia (including COVID-19) and nontuberculous mycobacteria (NTM). Additionally, Beyond Air is using ultra-high concentrations of NO with a proprietary delivery system to target certain solid tumors in the pre-clinical setting. For more information, visit www.beyondair.net.

 

Forward Looking Statements

 

Any statements in this press release about future expectations, plans and prospects for the Company, the Company’s strategy, future operations, and other statements containing the words “anticipates,” “expects,” “intends,” “impacts,” “plans,” “projects,” “believes,” “estimates,” “likely,” “goal,” “assumes,” “targets” and similar expressions and/or the use of future tense or conditional constructions (such as “will,” “may,” “could,” “should” and the like) constitute forward-looking statements within the meaning of The Private Securities Litigation Reform Act of 1995. These statements do not relate strictly to historical or current matters. Rather, forward-looking statements relate to anticipated or expected events, activities, trends or results as of the date they are made. Because forward-looking statements relate to matters that have not yet occurred, these statements are inherently subject to risks and uncertainties that could cause our actual results to differ materially from any future results expressed or implied by the forward-looking statements. These forward-looking statements are only predictions and reflect our views as of the date they are made with respect to future events and financial performance. Many factors could cause our actual activities or results to differ materially from the activities and results anticipated in forward-looking statements, including risks related to: our approach to discover and develop novel drugs, which is unproven and may never lead to efficacious or marketable products; our ability to fund and the results of further pre-clinical and clinical trials; obtaining, maintaining and protecting intellectual property utilized by our products; our ability to enforce our patents against infringers and to defend our patent portfolio against challenges from third parties; our ability to obtain additional funding to support our business activities; our dependence on third parties for development, manufacture, marketing, sales, and distribution of products; the successful development of our product candidates, all of which are in early stages of development; obtaining regulatory approval for products; competition from others using technology similar to ours and others developing products for similar uses; our dependence on collaborators; our short operating history and other risks identified and described in more detail in the “Risk Factors” section of the Company’s most recent Annual Report on Form 10-K and other filings with the SEC, all of which are available on our website. We undertake no obligation to update, and we do not have a policy of updating or revising, these forward-looking statements, except as required by applicable law.

 

CONTACTS:

 

Maria Yonkoski, Head of Investor Relations

Beyond Air, Inc.

Myonkoski@beyondair.net

 

Corey Davis, Ph.D.

LifeSci Advisors, LLC

Cdavis@lifesciadvisors.com

(212) 915-2577

 

Source: Beyond AirTM