0001551986FALSE00015519862022-01-142022-01-14
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): January 14, 2022
9 Meters Biopharma, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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001-37797
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27-3948465
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(State or other jurisdiction of
incorporation or organization)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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8480 Honeycutt Road, Suite 120, Raleigh, NC 27615
(Address of principal executive offices) (Zip Code)
(919) 275-1933
(Registrant’s telephone number, include area code)
N/A
(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Stock $0.0001 Par Value
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NMTR
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The Nasdaq Stock Market LLC
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Indicate by check mark whether the registrant is an emerging growth company as defined in 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. ☐
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Item 5.02.
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Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
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On January 18, 2022, 9 Meters Biopharma, Inc. (the “Company”) publicly announced that its board of directors has appointed Bethany L. Sensenig as Chief Financial Officer. Ms. Sensenig will serve as the Company’s “principal financial officer” and “principal accounting officer” for SEC filing purposes.
Prior to joining the Company, from March 2019 to January 2022, Ms. Sensenig was Chief Financial Officer and Head of U.S. Operations of Minovia Therapeutics, Ltd., a clinical-stage biotech company, where she played a leadership role building the company’s business and financing strategy. From April 2006 to March 2019, Ms. Sensenig held various roles at Biogen, Inc., a multinational biotechnology company, where she most recently held the position of Vice President of Finance and Commercial Operations. Earlier in her career, Ms. Sensenig held financial management and analyst roles at Merck & Co. Inc. and Nexus Technologies, Inc. Ms. Sensenig holds a Bachelor of Science in Accounting and Business Management from Montreat College, a Master of Business Administration from Western Carolina University and is a Certified Management Accountant.
Ms. Sensenig is 46 years old and has no familial relationships with any executive officer or director of the Company. There have been no transactions in which the Company has participated and in which Ms. Sensenig had a direct or indirect material interest that would be required to be disclosed under Item 404(a) of Regulation S-K.
In connection with her hiring, Ms. Sensenig entered into an employment agreement with the Company (the “Employment Agreement”). The Employment Agreement provides that Ms. Sensenig’s employment is “at will.” Her annual base salary is initially $425,000 and she is eligible to receive a discretionary annual bonus, with a target amount of 40% of her base salary. The board of directors approved an option grant to Ms. Sensenig to purchase 1,300,000 shares of common stock, which will vest 25% one year from the vesting commencement date, with the remainder vesting in 36 equal monthly installments, provided that Ms. Sensenig remains an employee of the Company as of each such vesting date. Ms. Sensenig will also be eligible to participate in the Company’s other employee benefit plans as in effect from time to time on the same basis as are generally made available to other senior executive employees of the Company. The Company will also pay Ms. Sensenig’s reasonable moving expenses up to $70,000.
If the Company terminates Ms. Sensenig without cause, she will receive an amount equal to six months of her then-current base salary, plus COBRA premium support for six months. All of the separation benefits are conditioned upon Ms. Sensenig entering into a general release of claims in favor of the Company. Ms. Sensenig will be eligible for complete separation benefits upon completing 12 months of continued employment with the Company. If Ms. Sensenig is terminated without cause prior to 12 months of continued employment, then such separation benefits will be prorated. Following any termination of her employment, Ms. Sensenig will remain subject to confidentiality obligations, as well as non-competition and non-solicitation covenants for one year.
As of January 14, 2022, the Company entered into a separation and consulting agreement with its current Chief Financial Officer, Edward J. Sitar (the “Separation Agreement”), effective January 14, 2022 (the “Separation Date”). Mr. Sitar’s separation was not related to any disagreement with the Company on any matter relating to the Company’s operations, policies or practices. Pursuant to the Separation Agreement, Mr. Sitar will serve as an independent consultant for three months following the Separation Date (the “Consulting Period”). The Consulting Period can be terminated upon 10 days’ notice by either party or immediately by the Company for cause.
Subject to Mr. Sitar’s non-revocation of a general release of claims contained in the Separation Agreement and in connection with his separation, Mr. Sitar will receive: (i) separation pay in an amount equal to 12 months of his regular base salary, minus applicable withholdings, paid in accordance with the Company’s normal payroll practices; (ii) payment of his 2021 annual bonus, as determined by the Company’s board of directors; (iii) payment of his 2022 annual bonus prorated for his period of service prior to the Separation Date and during the Consulting Period; and (iv) reimbursement for premiums for continuation coverage under COBRA for 12 months following the Separation Date. The material terms of Mr. Sitar’s previously granted equity awards subject to time-based vesting remain unchanged and will continue to vest during the
Consulting Period. Following the end of the Consulting Period, any remaining unvested equity awards previously granted to Mr. Sitar subject to time-based vesting will accelerate and become fully vested and the exercise period will be extended to ten years from the issuance date.
The foregoing summary of the material terms of the Employment Agreement and Separation Agreement are subject to the full and complete terms of the agreements, copies of which are filed as Exhibit 10.1 and Exhibit 10.2, respectfully, hereto and are incorporated herein by reference. A copy of the press release regarding the above matters is attached hereto as Exhibit 99.1 and incorporated herein by reference.
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Item 9.01.
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Financial Statements and Exhibits.
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(d) Exhibits
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Exhibit No.
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Description
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Exhibit 10.1
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Exhibit 10.2
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Exhibit 99.1
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Exhibit 104
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Cover Page Interactive Data File (embedded within the Inline XBRL document).
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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.
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9 Meters Biopharma, Inc.
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Date: January 18, 2022
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By:
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/s/ John Temperato
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John Temperato
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Chief Executive Officer
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Exhibit 10.1
November 30, 2021
Bethany L. Sensenig
35 Ryan Farm Rd
Windham, NH 03087
Dear Bethany,
On behalf of 9 Meters Biopharma, Inc. (the “Company”), I am very pleased to extend an offer of employment to you. We hope that you will accept this offer and look forward to having a mutually successful relationship with you. The purpose of this letter is to summarize the terms of your employment with the Company should you accept this offer.
If you accept this offer, you will be employed [on an effective to be agreed upon] to serve on a full-time basis in the position of Chief Financial Officer, responsible for the essential duties and responsibilities outlined in the CFO job description along with other duties from time to time assigned to you by the Company. You will be a member of the Company’s executive leadership team reporting to John Temperato, President and CEO of the Company. You agree to devote your full business time, best efforts, skill, knowledge, attention and energies to the advancement of the Company’s business and interests and to the performance of your duties and responsibilities as an employee of the Company, and to not engage in any other business activities without prior approval of the Company.
1.Base Compensation. Your initial base salary will be $425,000 per year, paid in accordance with the customary payroll practices of the Company, and subject to all applicable federal, state, and local taxes and withholdings. Currently, paychecks are issued semi-monthly for a total of 24 pay periods per year. Such base salary rate may be adjusted from time to time in accordance with normal business practices and in the sole discretion of the Company. This is a salaried exempt position.
2.Reimbursement of Relocation Expenses. To support your relocation, the Company will reimburse you for reasonable moving expenses up to $70,000. Expenses will be reimbursed based upon submission of actual receipts. Reimbursement of certain expenses can be prepaid as deemed necessary with submission of actual receipts to be provided in a timely manner. In the event you voluntarily terminate your employment with the Company prior to the one-year anniversary of your start date, you agree to refund the relocation expenses provided by the Company.
3.Bonus. Provided the Board of Directors approves an annual bonus for any calendar year in which you are employed, you will be eligible for a target bonus of 40% of your earned salary. Earned salary does not include any compensation paid for temporary housing or travel. The bonus award, if any, will be based on both individual and corporate performance. In any event, you must be an active employee of the Company on the date the year-end bonus is distributed to be eligible for a bonus award.
4.Benefits. You will be offered the opportunity to participate in any medical, dental, retirement and other employee benefit plan the Company may offer to eligible employees from time to time, subject to the terms and conditions of those plans. Currently, the Company offers the following benefit programs:
Group Medical Dental
Vision
The benefits made available by the Company, and the rules, terms, and conditions for participation in such benefit plans, may be added, changed, or discontinued by the Company in its discretion at any time without advance notice.
Full-time employees are eligible for Group Medical, Dental, and Vision Coverage as of their first day of employment, subject to the terms of the applicable plan. Although subject to change, the Company currently pays the entire monthly premium (100%) for employee coverage and eighty percent (80%) of the monthly premium for eligible family members.
5.Vacation and Holidays. During your first year of employment, you will be eligible to accrue a maximum of twenty (20) days of vacation per calendar year, subject to proration to your date of hire, and to be taken at such times as may be approved in the sole discretion of the Company. The vacation days shall accrue at the rate of 1.67 days per month that you are employed. Under our current policy, you may accrue and/or carry over up to 160 hours of accrued unused vacation from one calendar year to the next, and the Company will pay you for any accrued unused vacation at the time of your employment termination. You will also receive paid time off for Company-designated holidays in accordance with Company policy. You will not be paid in lieu of taking such holidays, nor can you carry over from year to year any holidays not taken.
6.Expense Reimbursement. The Company will reimburse you for all reasonable and necessary expenses incurred by you in connection with performing your duties on behalf of the Company, provided that you comply with any Company policy or practice on submitting, accounting for and documenting such expenses.
7.At-Will Employment. If you accept the Company’s offer of employment, your employment with the Company will be on an “at-will” basis, meaning that either you or the Company may terminate the employment relationship at any time, for any reason or no reason, with or without cause and with or without notice. Nothing in this letter shall be construed as an agreement, either express or implied, to guarantee employment for any period of time or to pay you compensation or grant you any benefit beyond the end of your employment with the Company; however, if the conditions in Section 9 of this agreement are met, you will be eligible for Separation Pay. Although your job duties, title, compensation and benefits, as well as the Company’s personnel policies and procedures, may change from time to time, the “at-will” nature of your employment may only be changed by a written agreement signed by you and the CEO of the Company that expressly states the intention to modify the at-will nature of your employment.
8.Stock Options. Subject to approval of the Company’s Board of Directors, you will receive an award of stock options exercisable for 1,300,000 shares of the Company’s common stock (the “Option”). The exercise price per share of the Option will be equal to the fair market value of a share of the Company’s common stock determined in accordance with the Company’s Omnibus Plan (the “Plan”) on the date of grant. The Option will be subject to the terms and conditions outlined in the Plan and a grant notice and option agreement to be entered between you and the Company. The Option shall vest over a period of 4 years so long as you continue to be employed by the Company, with 25% vesting one year from the vesting commencement date and the balance vesting at the rate of 2.083% per month over the remaining 3 years. Further, the Option will vest in full in the event your employment is terminated by the Company other than for Cause within 6 months of a change of control of the Company.
9.Separation Pay. If the Company terminates your employment without Cause, provided that you execute and do not revoke a separation and release agreement in a form acceptable to the Company within the time period then-specified by the Company but in any event no later than sixty (60) days after the date of termination (the “Release”), the Company shall pay the you an amount equal to: (a) six (6) months of your then-current base salary (less all applicable deductions) (the “Separation Pay”), and (b) six months of COBRA premiums for health, dental, and vision insurance coverage, payable in installments in accordance with the then-current generally applicable payroll schedule of the Company commencing on
the first regularly scheduled pay date of the Company processed after you have executed and delivered to the Company the Release and the Release has become non-revocable. You will be eligible for complete Separation Pay provided if you have completed twelve (12) months of continued employment. If your employment is terminated without Cause prior to twelve (12) months of continued employment, then the Separation Pay shall be prorated. Should your employment terminate for any reason other than termination by the Company without Cause, including but not limited to your voluntary resignation or termination for Cause by the Company, you will not be eligible for Separation Pay.
For purposes of this offer letter, “Cause” shall be determined by the Company and shall mean:
a.Your material breach of the terms of this offer letter, or your material failure to diligently perform your duties for the Company; provided, however, that the Company must first provide you with written notice of the grounds under this subparagraph and a period of twenty (20) business days in which to cure such grounds;
b.Your unauthorized use of the Company’s tangible or intangible property (excluding incidental use) or your breach of the Proprietary Information Agreement (as defined herein) or any other similar agreement regarding confidentiality, intellectual property rights, non-competition or non- solicitation;
c.Your material failure to comply with material Company policies, applicable government laws, rules and regulations and/or directives of the CEO;
d.Your illegal use or abuse of any controlled substance, or your use of alcohol in any manner that materially interferes with the performance of your duties;
e.Your dishonest or illegal action (including, without limitation, embezzlement) or any other action whether or not dishonest or illegal by you which is materially detrimental to the interest and well-being of the Company, including, without limitation, harm to its reputation;
f.Your failure to fully disclose any material conflict of interest that you may have with the Company in a transaction between the Company and any third party which is materially detrimental to the interest and well-being of the Company; or
g.Any knowing and intentional adverse action or omission by you which would be required to be disclosed pursuant to public securities laws or which would limit the ability of the Company or any entity affiliated with the Company to sell securities under any federal or state law or which would disqualify the Company or any affiliated entity from any exemption otherwise available to it.
10.Indemnification.
a.By the Employee. The Executive shall indemnify and hold harmless the Company, its directors, officers, stockholders, agents, and employees against all claims, costs, expenses, liabilities, and lost profits, including amounts paid in settlement, incurred by any of them as a result of Executive engaging in actions that constitute Cause under Section 9 of this offer letter or the breach by the Executive of any provision of the preamble of this letter.
b.By the Company. The Company will indemnify and hold harmless the Executive from any liabilities and expenses arising from Executive’s actions as an officer, director or employee of the Company to the fullest extent permitted by law, excepting any unauthorized acts, intentional or illegal conduct which breaches the terms of this or any other agreement or Company policy, including but not limited to the Proprietary Information Agreement. As an officer, the Executive will be covered under the Company’s by-laws and/or Directors & Officers insurance policy, to the same extent and amount as the President & CEO and the Board of Directors.
11.Proprietary Information Agreement. You will be required to sign a Confidentiality, Invention Assignment, Non-Competition, and Non-Solicitation Agreement (the “Proprietary Information Agreement”) as a condition of your employment. The form of the Proprietary Information Agreement, which is enclosed with this letter for your review, contains, among other provisions, non-disclosure, intellectual property assignment, return of Company property, non-competition, and non-solicitation covenants that apply to you both during your employment with the Company and following any termination of your employment with the Company.
12.Confidential Information. It is the policy of the Company not to solicit or accept proprietary information and/or trade secrets of other companies or third parties. In your work for the Company, you will be expected not to use or disclose any confidential information or trade secrets of any former employer or other person to whom you have an obligation of confidentiality. Rather, you will be expected to use only that information which is generally known and used by persons with training and experience comparable to your own, which is common knowledge in the industry or otherwise legally in the public domain, or which is provided or developed by the Company. You agree not to bring onto Company premises or use in your work for the Company any unpublished documents or property belonging to any former employer or third party that you are not authorized to use and disclose. This may include, but is not limited to, confidential or proprietary information in the form of documents, magnetic media, software, customer lists, formulae and business plans or strategies. A violation of these requirements will lead to discipline up to and including termination of your employment.
13.Drug and Alcohol Testing. The Company reserves the right to require employees to be tested for drugs and alcohol in accordance with applicable law.
14.Proof of Legal Right to Work. For purposes of federal immigration law, you will be required to provide the Company with documentary evidence of your identity and eligibility for employment in the United States. Such documentation must be provided to the Company within three business days following your start date, or our employment relationship with you may be terminated.
15.Company Policies and Procedures. As an employee of the Company, you will be required to comply with all Company policies and procedures as documented in the Company’s Employee Handbook. Violations of the Company’s policies may lead to discipline, up to and including immediate termination of your employment. Further, the Company’s premises, including all workspaces, furniture, documents and other tangible materials, and all information technology resources of the Company (including computers, data and other electronic files, and all internet and email) are subject to oversight and inspection by the Company at any time, subject to applicable law. Company employees should have no expectation of privacy regarding any Company premises, materials, resources or information.
16.Other Agreements and Governing Law. You represent that you are not bound by any employment contract, restrictive covenant or other restriction preventing you from entering into employment with or carrying out your responsibilities for the Company, or that is in any way inconsistent with the terms of this letter. Please let me know immediately if there are any restrictions that you have not disclosed to us, even if you believe such restrictions are unenforceable or not applicable. Your duties may change from time to time, depending upon the needs of the Company and your skills. Please note that this offer letter is your formal offer of employment and supersedes any and all prior or contemporaneous agreements, discussions and understandings, whether written or oral, relating to the subject matter of this letter or your employment with the Company. North Carolina law (excluding choice of law provisions) will govern the resolution of any dispute under this letter, courts located in the State of North Carolina will have exclusive jurisdiction of any such dispute and you agree to submit to such jurisdiction.
We are very excited about the prospect of your joining our team. We are confident that you have much to contribute to the success of the Company. This offer is contingent on you passing our pre-employment background and reference checks. If the terms described herein are acceptable to you, please acknowledge your acceptance by signing below.
On behalf of 9 Meters Biopharma, Inc.
/s/ John Temperato
John Temperato – President and CEO
The foregoing correctly sets forth the terms of my at-will employment with 9 Meters Biopharma, Inc.
/s/ Bethany L. Sensenig
Signature
Bethany L. Sensenig
Name:
Enclosures: Proprietary Information Agreement
SEPARATION AND CONSULTING AGREEMENT
This SEPARATION AND CONSULTING AGREEMENT (the “Agreement”) is hereby made and entered into this 14th day of January, 2022, by and between 9 Meters Biopharma, Inc. (f/k/a Innovate Biopharmaceuticals, Inc.), a Delaware corporation (the “Company”), and the undersigned employee, referred to in this Agreement as “you.”
WHEREAS, you and the Company are parties to that certain Executive Employment Agreement dated as of June 22, 2019 and that certain First Amendment to Employment Agreement dated as of July 12, 2021 (together, the “Employment Agreement”), as well as that certain Proprietary Information, Inventions, Non-Competition and Non-Solicitation Agreement dated around June 22, 2019 (the “Proprietary Information Agreement”), pursuant to which you have been employed by the Company as its Chief Financial Officer;
WHEREAS, the parties intend that this Agreement will set out the terms of your separation from employment with the Company, your eligibility for certain separation benefits, your release of claims against the Company, and certain related matters; and
WHEREAS, notwithstanding the termination of your employment, the Company wishes to engage you as an independent contractor to perform certain advisory services, and you wish to accept such engagement, on the terms set forth herein.
NOW, THEREFORE, in consideration of the promises and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows.
1.Termination. Your employment with the Company will terminate effective on the close of business on January 14, 2022 (the “Termination Date”), and, except as set out in this Agreement, as provided by the specific terms of a benefit plan or as required by law, all employee benefits will end at that time. With the exception of your laptop computer and its related equipment, you hereby agree to return to the Company by the Termination Date all Company-owned equipment, keys or passes, software, files, samples, training materials, programs and documents (including any copies), in the same condition as when provided to you, reasonable wear and tear excepted. You will retain your laptop and related equipment for use during the consulting services you perform for the Company, and for your personal use, but you agree to delete Company materials from the computer and any other electronic devices as may be directed by the Company. Your return of the other Company property is an express requirement under this Agreement and a condition to your receipt of the Separation Pay described below. You hereby acknowledge that, upon receipt of your final paycheck, you will have received all wages due to you by the Company.
2.Consulting Relationship. In consideration of the Company’s promises as described in this Agreement, you agree to make yourself reasonably available to provide consulting services to the Company (the “Services”) on an independent contractor basis as described below.
a.You will provide the Services to the Company during the period beginning on the day immediately following the Termination Date and ending three (3) months after the Termination Date or such earlier date on which the Consulting Period may be terminated in accordance with this Agreement (the “Consulting Period”). The Consulting Period may be extended only by written agreement of the parties.
b.The Consulting Period may be terminated (i) by the Company upon notice to you for Cause, or (ii) by either party upon at least 10 days’ advance notice to the other party. As used herein, “Cause” means: (A) your failure to perform the Services in a timely manner as reasonably requested by the Company’s Chief Executive Officer; (B) your material breach of this Agreement; (C) your willful or grossly negligent misconduct with respect to the Services; (D) your conviction on charges of, or plea of guilty or no contest to any felony or a misdemeanor having as its predicate element fraud, dishonesty or misappropriation; or (E) your intentional or grossly negligent act or omission that materially injures, or in the reasonable determination of the Company, has the capacity to materially injure, the operations or reputation of the Company. To the extent any such failure to perform, breach of this Agreement, or other act or omission which the Company asserts constitutes Cause is curable, the Company will provide you with written notice, and Cause will exist only in the event you fail to cure the alleged Cause within ten (10) days.
c.During the Consulting Period, you agree to make yourself available to render, and to render in a timely manner, such Services as are reasonably requested by the Company’s Chief Executive Officer. The Parties anticipate that the Services will include, but not be limited to, transitioning ongoing projects and files as directed, and serving as an advisor to the Company’s executive officers. During the Consulting Period, you will be expected to devote a reasonable amount of time providing the Services in a manner and on a schedule which does not interfere with your other employment. You will perform the Services at such times as are mutually agreeable to you and the Company, taking into account your other employment and your other business and personal commitments. You agree to perform the Services diligently, competently, and in a professional manner, in compliance with all laws applicable to the provision of the Services. You will at all times retain discretion and judgment in the manner and means of carrying out the Services and will not be expected to adhere to any particular schedule for the performance of the Services, except in the case of occasional scheduled meetings. The Company will reimburse your reasonable, documented travel expenses incurred in connection with your Services, provided such expenses are pre-approved by the Company.
d.You acknowledge and agree that, during the Consulting Period, you will be an independent contractor and not an employee of the Company, and will not be entitled to receive any compensation for your service as an independent contractor other than as expressly provided above. You acknowledge that as an independent contractor, you will not be entitled to any benefits or rights provided by the Company to its employees, including but not limited to group health insurance (except to the extent continuation coverage is available pursuant to COBRA or
applicable state law), disability insurance, paid time off, retirement plans, workers’ compensation coverage, or any similar benefits that may be provided to the Company’s employees. You agree that you will be solely responsible for any taxes that may be due and owing by you as a result of any payments provided under this Agreement, and the Company has made no representations or promises regarding the tax treatment of any payments provided pursuant to this Agreement. You acknowledge that you have not relied on any statements or representations by the Company or its attorneys with respect to the tax treatment of any compensation due under this Agreement.
e.You will be free to be employed by, or perform consulting services for, other persons and entities during the Consulting Period, provided that you will comply with the Proprietary Information Agreement (“PIA”) with respect to your services for other persons and entities. The Company acknowledges that any other company you join may have its own proprietary information, and that the PIA does not prohibit you from utilizing that other company’s proprietary information.
3.Separation Benefits. If you sign and do not revoke this Agreement as set forth herein, the Company will provide you with the following separation pay and benefits (collectively, the “Separation Benefits”), provided, however, if you voluntarily terminate your engagement or you are terminated for “Cause” during the Consulting Period, no further Separation Benefits will be provided to you following such termination:
a.Separation pay in an amount equal to your base salary (minus applicable federal, state and local payroll taxes, and other withholdings required by law or authorized by you), for a total period of twelve (12) months following the Termination Date (the “Separation Pay”. The Company acknowledges that the Separation Pay will continue for the twelve month period even though the Consulting Period is three months. The Separation Pay will be paid accordance with the Company’s normal payroll practices and procedures beginning on the Company’s next regular payday following the expiration of the “Right to Revoke Period” defined in Section 11 below.
b.To the extent that a bonus would have been awarded had you remained employed through December 31, 2021 (as set forth in the Employment Agreement), an amount equal to your 2021 bonus if and as determined by the Board of Directors of the Company or its Compensation Committee in a similar manner as so determined for other senior employees of the Company (the “2021 Bonus”). The 2021 Bonus, if any, will be paid in accordance with the terms set forth in the Employment Agreement.
c.Following the completion of the Consulting Period, you will receive a prorated bonus for 2022, calculated as (D/365) times the bonus you would have received under the Employment Agreement paragraph 4(b) if you had remained an executive employee for all of 2022, where D equals the number of days in 2022 that you were employed, if any (from December 31, 2021 through the Termination Date) by the Company plus the number of days of the Consulting Period in 2022.
d.If you properly and timely elect to continue your health insurance benefits under the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”) after the Termination Date, reimbursement for the cost of your COBRA health continuation coverage premium for twelve (12) months following the Termination Date (the “Separation Period”) such that you pay a portion of the COBRA premiums at a rate equal to the rate at which you paid your portion of health premiums during the last full month that you were in active status with the Company. Upon expiration of the Separation Period, you may have the right to continue your health insurance coverage under COBRA at your own expense. The Company’s obligation to reimburse you for your COBRA premiums as provided for in this Section will terminate if you become eligible for equivalent health benefits from another employer during the Separation Period. In addition, the Company has the right to discontinue the payment of the premium and pay to you a lump sum amount equal to the current monthly COBRA premium times the number of months remaining in the Separation Period if the Company determines.
If you do not sign this Agreement and return it to the Company within twenty-one (21) days, or if you revoke your acceptance of this Agreement during the Right to Revoke Period, you will not be eligible to receive the Separation Benefits described above.
4.Options. You were previously granted stock options to purchase 1,337,468 shares of the Company’s common stock (the “Options”), which options were to vest over time in accordance with the applicable stock plan and award agreement. In exchange for your execution and non-revocation of this Agreement, your provision of the Services, and your promises made herein, the Company agrees that the Options will continue to vest in accordance with the applicable vesting schedule over the course of the Consulting Period. Provided you remain engaged by the Company either as an employee or as a consultant through the earlier of either December 31, 2021, or the end of the Consulting Period, the Company will accelerate the vesting of all remaining unvested Options and extend the exercise period to match the life of the options (10 years from issuance date). You acknowledge and agree that to the extent any of the Options were designated as incentive stock options pursuant to Section 422 of the Internal Revenue Code of 1986, the exercise of such options more than three months after your employment with the Company ends will result in the options being deemed nonstatutory stock options (except in certain limited circumstances specified in the applicable option grant agreement as permitted by applicable tax laws). Treatment of the options as nonstatutory stock options may result in tax consequences to you, including an obligation on the part of the Company to withhold taxes from income you may recognize at the time of exercise. You are encouraged to seek your own tax and financial advice regarding the consequences any decision to exercise the options, and acknowledge that you are not relying on any statements or representations of the Company or any of its agents with regard to such tax consequences. Except as expressly provided herein, the Options remain subject to the terms of the applicable award agreement(s) between you and the Company.
5.Release of Claims. Release of Claims. In exchange for offer to provide you with the Separation Benefits described in Section 3, above, by your signing this Agreement, you release and forever discharge the Company, as well as its parent companies, affiliates,
subsidiaries, divisions, officers, directors, stockholders, employees, agents, representatives, attorneys, lessors, lessees, licensors and licensees, and their respective successors, assigns, heirs, executors and administrators (collectively, the “Company Parties”), from any and all past and present claims, demands, and causes of action of every kind and nature, whether known or unknown, direct or indirect, accrued, contingent or potential, which you ever had or now have, including but not limited to any claims arising out of or related to your employment with the Company and the termination thereof (except where or to the extent that such a release is expressly prohibited or made void by law). The release includes, without limitation, your release of the Company and the Company Parties from any claims by you for lost wages or benefits, stock options, compensatory damages, punitive damages, attorneys’ fees and costs, equitable relief or any other form of damages or relief. In addition, this release is meant to release the Company and the Company Parties from all common law claims, including claims in contract or tort, including, without limitation, claims for breach of contract, wrongful or constructive discharge, intentional or negligent infliction of emotional distress, misrepresentation, tortious interference with contract or prospective economic advantage, defamation, negligence or breach of any covenant of good faith and fair dealing. You also specifically and forever release the Company and the Company Parties (except where and to the extent that such a release is expressly prohibited or made void by law) from any claims based on unlawful employment discrimination or harassment, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS UNDER THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT (29 U.S.C. § 621 ET SEQ.).
You acknowledge that this release applies both to known and unknown claims that may exist between you and the Company and the Company Parties. You expressly waive and relinquish all rights and benefits which you may have under any state or federal statute or common law principle that would otherwise limit the effect of this Agreement to claims known or suspected prior to the date you execute this Agreement, and do so understanding and acknowledging the significance and consequences of such specific waiver. Provided, however, that nothing in this Agreement extinguishes any claims you may have against the Company for breach of this Agreement.
The Company represents that it has no knowledge of any claims against you, and that it has no intent or pursuing any claims against you.
6.No Admissions. You understand, acknowledge and agree that the release set out above in Section 5 of this Agreement is a final compromise of any potential claims by you against the Company and the Company Parties in connection with your employment by the Company, and is not an admission by the Company or the Company Parties that any such claims exist or that the Company or any of the Company Parties are liable for any such claims. Unless prohibited by applicable law or regulation, you further agree not to hereafter, directly or indirectly, sue, assist in or be a voluntary party to any litigation against the Company or any one or more of the Company Parties for any claims relating to events occurring prior to or simultaneously with the execution of this Agreement, including but not limited to your termination of employment with the Company.
Notwithstanding the foregoing, nothing in this Agreement prohibits you from filing a charge with, or participating in any investigation or proceeding conducted by, the U.S. Equal Employment Opportunity Commission or a comparable state or federal fair employment practices agency; provided, however, that this Agreement fully and finally resolves all monetary matters between you and the Company and the Company Parties, and by signing this Agreement, you are waiving any right to monetary damages, attorneys’ fees and/or costs related to or arising from any such charge, complaint or lawsuit filed by you or on your behalf, individually or collectively.
7.Confidentiality. You acknowledge and agree that in your employment with the Company, you held a position of trust and confidence that gave you access to confidential information belonging to the Company and to its customers, which, if divulged or misused, would be potentially harmful to the Company and/or its customers (the “Confidential Information”). You therefore agree not to disclose any Confidential Information, except as required by law or court order. You also hereby represent and agree that you have not and will not (except as required by law) disclose information regarding the specific terms of this Agreement, and particularly the amount or nature of your Separation Benefits, to anyone except your immediate family, your attorney and accountant or financial advisor as reasonably necessary.
8.No Disparagement. You agree that you will not falsely denigrate, defame, disparage or cast aspersions upon the Company, the Company Parties, their products, services, business and manner of doing business, and that you will use your reasonable best efforts to prevent any member of your immediate family from engaging in any such activity. Upon inquiry from any third party, the Company will release only your dates of employment and positions held, and our CEO, John Temperato, will provide a mutually agreed form of reference letter on Company letterhead.
9.Relief and Enforcement. You understand and agree that any material breach of this Agreement and/or any termination of your engagement under this Agreement for Cause in accordance with paragraph 2(b) will nullify the Company’s obligation to provide the Separation Benefits as set out in Section 3, above. You also understand and agree that if a court of law determines that you violated the terms of Sections 7 or 8 of this Agreement, you will cause injury to the Company (and/or one or more of the Company Parties) that will be difficult to quantify or repair, so that the Company (and/or the Company Parties) will have no adequate remedy at law. Accordingly, you agree that if you violate Sections 7 or 8 of this Agreement, the Company (or the Company Parties) will be entitled as a matter of right to obtain an injunction from a court of law, restraining you from any further violation of this Agreement. The right to an injunction is in addition to, and not in lieu of, any other remedies that the Company (or the Company Parties) has at law or in equity.
10.No Modifications; Governing Law; Entire Agreement. This Agreement cannot be changed or terminated orally, and no modification or waiver of any of the provisions of this Agreement is effective unless in writing and signed by all of the parties hereto. The parties agree that this Agreement is to be governed by and construed in accordance with the laws of the State of North Carolina, and that any suit, action or charge arising out of or relating to this Agreement will be adjudicated in the state or the federal courts in Wake
County, North Carolina. This Agreement sets forth the entire and fully integrated understanding between the parties with respect to the matters addressed herein, and there are no representations, warranties, covenants or understandings, oral or otherwise, that are not expressly set out herein.
11.Right to Revoke. ONCE SIGNED BY YOU, THIS AGREEMENT IS REVOCABLE IN WRITING FOR A PERIOD OF SEVEN (7) DAYS (THE “RIGHT TO REVOKE PERIOD”). IN ORDER TO REVOKE YOUR ACCEPTANCE OF THIS AGREEMENT, YOU MUST DELIVER WRITTEN NOTICE TO COMPANY CEO JOHN TEMPERATO, AND SUCH WRITTEN NOTICE MUST ACTUALLY BE RECEIVED WITHIN THE SEVEN (7) DAY RIGHT TO REVOKE PERIOD.
12.Voluntary Execution. By signing below, you acknowledge that you have read the foregoing Agreement, that you understand its contents and that you have relied upon or had the opportunity to seek the legal advice of your attorney, who is the attorney of your own choosing. YOU HEREBY ACKNOWLEDGE THAT YOU HAVE BEEN GIVEN A PERIOD OF AT LEAST TWENTY-ONE (21) DAYS TO CONSIDER WHETHER TO EXECUTE THIS AGREEMENT. YOU ALSO ACKNOWLEDGE THAT YOU WERE ADVISED BY THE COMPANY IN WRITING TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT.
13.Miscellaneous.
(a) Should any portion, term or provision of this Agreement be declared or determined by any court to be illegal, invalid or unenforceable, the validity or the remaining portions, terms and provisions shall not be affected thereby, and the illegal, invalid or unenforceable portion, term or provision shall be deemed not to be part of this Agreement.
(b) The parties agree that the failure of a party at any time to require performance of any provision of this Agreement shall not affect, diminish, obviate or void in any way the party’s full right or ability to require performance of the same or any other provision of this Agreement at any time thereafter.
(c) This Agreement shall inure to the benefit of and shall be binding upon you, your heirs, administrators, representatives, executors, successors and assigns and upon the successors and assigns of the Company.
(d) The headings of the paragraphs of this Agreement are for convenience only and are not binding on any interpretation of this Agreement. This Agreement may be executed in counterparts.
[Signature page follows.]
9 METERS BIOPHARMA, INC.
/s/ John Temperato
John Temperato, CEO
EMPLOYEE:
/s/ Edward J. Sitar
Edward J. Sitar
DATE: January 14, 2022
PRESS RELEASE
9 Meters Biopharma Appoints Bethany Sensenig as Chief Financial Officer
Formerly served as VP of Finance and Commercial Operations at Biogen with 20+ years
of business and strategic financial leadership experience
RALEIGH, NC / ACCESSWIRE / January 18, 2021 / 9 Meters Biopharma, Inc. (NASDAQ: NMTR), a clinical-stage company pioneering novel treatments for people with rare or debilitating digestive diseases, announced today the Company has appointed Bethany Sensenig, MBA, CMA, as Chief Financial Officer.
“We’re very pleased to have Ms. Sensenig join the 9 Meters team as Chief Financial Officer with over twenty years of business and strategic financial leadership experience at both early-stage and large biotechnology companies,” said John Temperato, President & Chief Executive Officer. “Her skill sets and financial acumen in strategically driving growth and profitability for companies will be especially valuable as we work to progress our advanced pipeline products toward commercialization in the coming years. As we welcome Ms. Sensenig, we’d like to thank 9 Meters’ inaugural Chief Financial Officer, Ed Sitar, for his outstanding contributions to the Company through its formation and early growth phase and wish him the best with his future endeavors.”
Ms. Sensenig added, “I’m thrilled to be a part of 9 Meters’ mission of bringing long-needed treatments to patients with gastrointestinal disorders. As the Company works to advance its lead candidates for short bowel syndrome and celiac disease, I look forward to leveraging my experience in financial management and capital markets, business development, and commercial and manufacturing operations to support the Company’s evolution and help ensure adequate capitalization and optimal profitability for 9 Meters.”
Ms. Sensenig spent thirteen years at Biogen, Inc., a multinational biotechnology company, where she held several positions of increasing responsibility, the latest of which was Vice President of Finance and Commercial Operations. Ms. Sensenig most recently comes to 9 Meters from Minovia Therapeutics, Ltd., a clinical-stage biotech company, where she served as CFO and Head of U.S. Operations. There she played a critical, global leadership role building the company’s business and financing strategy. Previously Ms. Sensenig has played key roles in numerous transactions and acquisition-related deals totaling over $2 billion across Biogen and Minovia and had accountability for upwards of $1 billion in annual revenue in specialty medicine and rare disease products across 30 countries spanning the U.S., Asia-Pacific, Latin America and Europe. Earlier in her career, Ms. Sensenig held financial management and analyst roles at Merck & Co. Inc. and Nexus Technologies, Inc. Ms. Sensenig holds a Bachelor of Science in Accounting and Business Management from Montreat College, a Master of Business Administration from Western Carolina University and is a Certified Management Accountant.
About 9 Meters Biopharma
9 Meters Biopharma is a clinical-stage company pioneering novel treatments for people with rare digestive diseases, GI conditions with unmet needs, and debilitating disorders in which the biology of the gut is a contributing factor. The Company is advancing vurolenatide, a proprietary Phase 2 long-acting GLP-1 agonist, for short bowel syndrome (SBS), larazotide, a Phase 3 tight junction regulator in non-responsive celiac disease, and several near clinical-stage assets.
For more information, please visit www.9meters.com or follow 9 Meters on Twitter and LinkedIn.
Forward-looking Statements
This press release includes forward-looking statements based upon the Company's current expectations. Forward-looking statements include, but are not limited to, statements that express our intentions, beliefs,
PRESS RELEASE
expectations, strategies, predictions, anticipated milestones and any other statements relating to our future activities or other future events or conditions. These statements are based on current expectations, estimates and projections about our business based, in part, on assumptions made by management. Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of various risks and uncertainties, which include, without limitation: our ability to recruit, integrate and retain qualified personnel; uncertainties associated with the clinical development and regulatory approval of product candidates; uncertainties in obtaining successful clinical results for product candidates and unexpected costs that may result therefrom; risks related to the failure to realize any value from product candidates and preclinical programs being developed and anticipated to be developed in light of inherent risks and difficulties involved in successfully bringing product candidates to market; reliance on research and development partners; the impact of COVID-19 on our operations, enrollment in and timing of clinical trials; risks related to the inability of the Company to obtain sufficient additional capital to continue to advance these product candidates and its preclinical programs; reliance on collaborators; and risks associated with acquiring and developing additional compounds. These and other risks and uncertainties are more fully described in periodic filings with the SEC, including the factors described in the section entitled "Risk Factors" in the Company's Annual Report on Form 10-K for the year ended December 31, 2020, Form 10-Q for the quarter ended September 30, 2021, and in other filings that the Company has made and future filings the Company will make with the SEC. You should not place undue reliance on these forward-looking statements, which are made only as of the date hereof or as of the dates indicated in the forward-looking statements. The Company expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in its expectations with regard thereto or any change in events, conditions or circumstances on which any such statements are based.
Investor Contacts
Al Medwar
Investor Relations
9 Meters Biopharma, Inc.
investor-relations@9meters.com
www.9meters.com
Media Contact
Veronica Eames
LifeSci Communications, LLC
veames@lifescicomms.com
203-942-4626
SOURCE: 9 Meters Biopharma
