Nervgen Pharma Corp 6-K, filed Feb 10, 2026
Nervgen Pharma Corp. (NGEN)
About this 6-K
Nervgen Pharma Corp filed this 6-K on February 10, 2026.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of February 2026
Commission File Number: 001-43048
NERVGEN PHARMA CORP.
(Exact name of Registrant as specified in its charter)
N/A
(Translation of Registrant’s name)
112-970 Burrard
Street, Unit 1290
Vancouver, British Columbia, Canada V6Z 2R4
Telephone: (778) 731-1711
(Address and telephone number of registrant’s principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ¨ Form 40-F x
EXPLANATORY NOTE
Appointment of Dr. Adam Rogers as Chief Executive Officer
On February 9, 2026, NervGen Pharma Corp. (the “Registrant” or “Company”) announced the appointment of Dr. Adam Rogers as Chief Executive Officer and President, effective immediately (the “Effective Date”). Dr. Rogers had served as the Interim Chief Executive Officer of the Company since July 17, 2025, as member of the Company’s Board of Directors (the "Board") since 2022, including as the Chairperson of the Board since July 2025, and will continue to serve as Chairperson of the Board.
Dr. Rogers, age 56, is a board-certified physician, biotech entrepreneur, and Chief Executive Officer with extensive experience in clinical and regulatory development. Dr. Rogers previously served as the Company’s interim president from September 2022 to April 2023. He is a Principal of PFP Biosciences, an investment firm focused on breakthrough life sciences technologies. Previously, Dr. Rogers co-founded and served as Chief Executive Officer of Hemera Biosciences, a clinical stage gene therapy biotechnology company targeting dry age-related macular degeneration, from 2017 until its acquisition in December 2020 by Janssen Pharmaceuticals, a subsidiary of Johnson & Johnson. From 2001 until 2020, Dr. Rogers also worked as an Assistant Professor of Ophthalmology at the New England Eye Center of Tufts Medical Center. Dr. Rogers holds an M.D. and B.A. from Emory University.
Pursuant to an employment agreement (the “Employment Agreement”), dated as of the Effective Date, between NervGen US Inc., a wholly owned subsidiary of the Company (“NervGen U.S.”), and Dr. Rogers governing the terms of his employment, Dr. Rogers will be paid an annualized base salary of $350,000 and will be eligible to receive an annual incentive bonus of up to 30.0% of his annualized base salary for each fiscal year, as determined by the Board in its sole discretion.
Effective as of the Effective Date, the Board granted to Dr. Rogers stock options (the “Options”) to purchase up to 717,891 common shares of the Company. Of this total, 614,799 have an exercise price per share of $5.06 and are exercisable for a period of ten years from the Effective Date and 103,092 have an exercise price per share of $5.57 and are exercisable for a period of five years from the Effective Date. The Options are scheduled to vest as to 717,891 common shares over a four-year period, with 25.0% vesting on the first anniversary of the Effective Date (the “Cliff Date”) and the remaining 75.0% vesting in thirty-six equal monthly installments on each monthly anniversary of the Cliff Date thereafter, subject to Dr. Rogers’ continued service through each applicable vesting date. The Options were granted pursuant to the Company’s Amended and Restated Stock Option Plan (the “Plan”). The Board has also agreed to grant to Dr. Rogers an additional 1,146,108 Options subject to performance-based vesting conditions to be subsequently determined by the Board. Subject to the approval of an amendment to the Plan or the adoption of a successor equity incentive plan, the Board has also agreed to grant to Dr. Rogers 37,784 fully vested common shares and 617,135 performance-based restricted stock units.
In addition, the Employment Agreement provides that Dr. Rogers will be eligible to participate in the Company’s benefits programs available to regular full-time employees. Pursuant to the Employment Agreement, if Dr. Rogers’ employment is terminated by the Company for cause, the Company is obligated to (1) pay Dr. Rogers an amount equal to the lesser of (x) four weeks of Dr. Rogers’ then base-salary and (y) the base salary which would have been payable to Dr. Rogers had he remained employed with the Company through the remaining term of his Employment Agreement and (2) make payments for the continuation of Dr. Rogers’ health coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), for a period of up to 4 weeks. Pursuant to the Employment Agreement, if Dr. Rogers’ employment is terminated by the Company without cause or by Dr. Rogers with good reason, the Company is obligated to (1) pay Dr. Rogers’ then base-salary for a period of the lesser of (x) six months, plus an additional two months of base salary for each completed year of service (capped at a maximum of 12 months) and (y) the base salary that would have been paid to Dr. Rogers had he remained employed with the Company through the remaining term of his Employment Agreement (such amount, the “Severance Benefit”), (2) pay Dr. Rogers’ any cash performance bonus payable with respect to the financial year prior to the financial year in which termination occurs (if not previously paid), (3) make payments for the continuation of Dr. Rogers’ health coverage under COBRA for a period of up to 12 months and (4) subject to the Company’s compliance with applicable listing standards, accelerate the vesting of any outstanding and unvested equity awards held by Dr. Rogers that would have vested in the 12 months following such termination. Pursuant to the Employment Agreement, if Dr. Rogers’ employment is terminated by the Company without cause or by Dr. Rogers for good reason within three (3) months prior to or in the twelve months following a change of control, the Company is obligated to (1) pay Dr. Rogers’ the Severance Benefit, (2) pay Dr. Rogers’ any cash performance bonus payable with respect to the financial year prior to the financial year in which termination occurs (if not previously paid), (3) make payments for the continuation of Dr. Rogers’ health coverage under COBRA for a period of up to six months and (4) accelerate the vesting in full of any outstanding and unvested equity awards held by Dr. Rogers.
The foregoing description of the Employment Agreement does not purport to be complete and is subject to and qualified in its entirety by reference to the full text of the Employment Agreement. A copy of the Employment Agreement is filed as Exhibit 10.1 to this Report on Form 6-K.
INCORPORATION BY REFERENCE
This Report on Form 6-K, including the exhibit hereto, shall be deemed to be incorporated by reference into the Registrant's Registration Statement on Form F-10 (File No. 333-292197), to be a part thereof from the date on which this Report on Form 6-K is submitted, to the extent not superseded by documents or reports subsequently filed or furnished.
DOCUMENTS INCLUDED AS PART OF THIS REPORT
| Exhibit | ||
| 10.1 | Employment Agreement by and between NervGen U.S. and Adam Rogers, dated February 9, 2026. | |
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, thereunto duly authorized.
NERVGEN PHARMA CORP. | ||
| Date: February 10, 2026 | By: | /s/ Adam Rogers |
| Name: Adam Rogers | ||
| Title: Chief Executive Officer | ||
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made the 9th day of February 2026.
BETWEEN:
DR. ADAM ROGERS
(the “Employee”)
AND
NERVGEN US INC., a Delaware Corporation
(the “Company” or the “Employer”)
WHEREAS:
| A. | The Company is wholly owned by NervGen Pharma Corp., a British Columbia Corporation with its principal place of business at 112-970 Burrard Street, Unit 1290, Vancouver, BC, V6Z 2R4, Canada (the “Parent Company”). |
| B. | The Company is engaged in research, development and commercialization of pharmaceuticals that target protein tyrosine phosphatase sigma (PTPσ) for the treatment of nerve damage in the human clinical market (together, with such other services, research and development activities as undertaken by the Company from time to time, the “Company Business”). |
| C. | The Parent Company is engaged in research, development and commercialization of pharmaceuticals that target protein tyrosine phosphatase sigma (PTPσ) for the treatment of nerve damage in the human clinical market (together with the Company Business, the “Business”). |
| D. | The parties wish to enter into this Agreement to confirm the terms and conditions of the Employee’s employment with the Company. |
NOW THEREFORE in consideration of the mutual covenants and agreements herein and for other good and valuable consideration (the receipt and sufficiency of which are acknowledged), the parties agree as follows:
| 1. | EMPLOYMENT |
| 1.1 | Position. Subject to the terms of this Agreement, the Company agrees to employ the Employee and the Employee agrees to serve as President and Chief Executive Officer of the Company during the Term (hereinafter defined). The Employee also agrees that as part of his duties as an employee of the Company, the Employee shall serve as the President and Chief Executive Officer of the Parent Company, and may be required to serve as an officer and/or director of the Parent Company and its subsidiaries, and that the remuneration and entitlements on termination of employment set out in this Agreement fully compensate the Employee for any services he performs for the Parent Company and its subsidiaries in that regard. |
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| 1.2 | Reporting. The Employee shall report and be directly responsible to the Board of Directors of the Parent Company (the “Board”). |
| 1.3 | Term. The term of this Agreement (the “Term”) shall commence February 9, 2026 (the “Effective Date”) and, unless terminated sooner as provided in Section 7, will end on February 8, 2028 (the “Expiration Date”). Prior to the Expiration Date, the Company and the Employee may agree in writing to extend the Term for one additional year. |
| 2. | COMPENSATION |
| 2.1 | Salary. The Employee shall initially be paid an annual salary (“Salary”) of US$350,000, paid semi-monthly. |
The Salary and any other compensation provided to the Employee pursuant to this Agreement will be subject to deductions and withholdings required by applicable laws. Under the direction of the Board or its duly appointed Compensation Committee, the Company will initiate an annual review of the Employee’s performance, entire non-equity compensation and terms of employment with the first annual review to occur on or before December 31, 2026.
| 2.2 | Benefits. The Employee will be eligible to participate in the Company’s US benefits plans in effect from time to time, subject to the terms of such plans. |
| 2.3 | Non-Equity Incentive Programs. The Employee shall participate in the Company’s incentive program with the opportunity to annually earn up to 30% of the previous 12 months’ paid Salary based upon Company and individual goals and other terms approved by the Board in its sole discretion, prorated for any partial year of employment. The actual amount of the Employee’s annual incentive compensation, if any, shall be determined in the sole discretion of the Board, subject to the terms of any applicable incentive compensation plan that may be in effect from time to time. Except as may be provided by the Board or as may otherwise be set forth in the applicable incentive compensation plan, the Employee must be employed by the Company on the date such incentive compensation is paid in order to earn or receive any annual incentive compensation. |
| 2.4 | Employee Stock Option Plan. The Parent Company will grant to the Employee the following equity awards under the Parent Company’s stock option plan, as in effect from time to time (the “Plan”), within 30 days following the Effective Date: 1,863,999 stock options (“Options”), 37,784 fully vested shares of common stock of the Parent Company (“Shares”), and 617,135 performance-based restricted stock units (“PSUs”). Notwithstanding the foregoing, the Employee understands that all grants of Shares and PSUs are conditioned upon, and subject to, the approval of an amendment to the Plan by the shareholders of the Parent Company to authorize grants of Shares and PSUs thereunder. If such shareholder approval is not obtained within 30 days following the Effective Date, then all grants of Shares and PSUs will be made within 30 days following such shareholder approval. Each equity award will be subject to the terms and conditions set forth below and in the applicable award agreement to be provided to the Employee at the time of grant, with such terms and conditions subject to the Plan, as amended from time to time. In the event of a conflict between this Agreement, on the one hand, and the applicable award agreement or the Plan, on the other hand, the terms of the award agreement or the Plan, as applicable, will control. |
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| (a) | Options. All options granted to the Employee (the “Options”) shall have a term of ten (10) years from the applicable grant date, unless otherwise required by applicable law or expressly provided in the applicable award agreement. The exercise price per share of each Option shall be equal to the thirty (30)-day volume-weighted average trading price of the Company’s common shares on the NASDAQ (the “NASDAQ”) on the trading day immediately preceding the date on which such Option is approved by the Board of Directors (the “Fair Market Value”). |
Time-Based Options.
A total of 717,891 Options shall be subject to time-based vesting conditions. Such Options shall vest over a four (4) year period, with twenty-five percent (25%) vesting on the first anniversary of the grant date (the “Cliff Date”) and the remaining seventy-five percent (75%) vesting in thirty-six (36) equal monthly installments on each monthly anniversary of the Cliff Date thereafter in each case, subject to the Employee’s continued employment with the Company through each applicable vesting date.
Performance-Based Options.
A total of 1,146,108 Options shall be subject to performance-based vesting conditions. Such Options shall vest only upon the achievement of one or more performance milestones, as determined by the Board of Directors (or a committee thereof) in its discretion and as set forth in the applicable award agreement. No portion of the performance-based Options shall vest unless and until the applicable performance conditions are achieved in accordance with the terms of such award agreement.
Post-Termination Exercise.
Except in the event of a termination of employment by the Company for Cause, each Option that is vested as of the date of termination of the Employee’s employment with the Company shall remain exercisable until the earlier of (i) five (5) years following the date of termination and (ii) the expiration of the original term of such Option. All Options that are unvested as of the date of termination shall automatically terminate and be forfeited for no consideration as of such date.
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Incentive Stock Options.
Notwithstanding the foregoing, any Options designated as incentive stock options in the applicable award agreement shall have a term of five (5) years from the grant date and an exercise price equal to one hundred ten percent (110%) of the Fair Market Value, to the extent required by applicable law.
| (b) | Shares. The Shares will be fully vested on the grant date. |
| (c) | PSUs. PSUs will vest based on the achievement of certain milestones as provided for by the applicable award agreement. If any milestones are achieved prior to shareholder approval of the Plan amendment described above, then, in lieu of receiving the PSUs subject to such milestones, the Employee will receive an equal number of fully vested shares of common stock of the Parent Company. |
The Employee acknowledges that all equity awards granted to him shall be governed by the terms of the Plan, the terms of the applicable award agreement, the rules of any applicable quotation system or stock exchanges, and all applicable laws. If shareholder approval of the Plan amendment is not obtained, then the Parent Company will grant to the Employee an additional number of Options in lieu of the Shares and the PSUs, as determined by the Board in its sole discretion to preserve the economic benefit intended to be delivered to the Employee hereunder.
| 2.5 | Expenses. The Company shall reimburse the Employee on a timely basis for all reasonable business expenses incurred in connection with the discharge of his duties and responsibilities under this Agreement, in accordance with the Company’s expense approval procedures then in effect. Reasonable expenses include cell phone and phone usage, internet usage, and office supplies that are incremental to normal home life. Additionally, reasonable training related to employment as well as memberships and dues related to maintaining the employee’s professional designation and work, and travel expenses (whether to Company’s offices or elsewhere), in accordance with Company Policy described in the Employee Handbook will be reimbursed. The Company will purchase a computer and related peripherals at the Company’s expense for use that meets Company specifications, and it together with all other Company purchased materials, will remain the property of the Company and are to be surrendered upon termination. |
| 2.6 | Vacation / Paid Time Off. Employee shall be entitled to paid time-off in accordance with the Company’s employee handbook and applicable policies, as may be amended from time to time. The Company currently maintains a flexible paid time off policy applicable to senior executives, which does not accrue and is not paid out upon termination of employment. |
| 2.7 | No Other Compensation or Benefits. The Employee acknowledges and agrees that unless otherwise expressly agreed to in writing by the Company subsequent to execution of this Agreement by the parties hereto, the Employee shall not be entitled by reason of his employment by the Company or by reason of any termination of such employment, to any remuneration, compensation or benefits other than as expressly set forth in this Agreement. |
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| 3. | OBLIGATIONS OF THE EMPLOYEE |
| 3.1 | Duties. The Employee shall act as President and Chief Executive Officer of the Company and the Parent Company and shall perform such duties as are consistent with that position. In addition, the Employee shall perform, observe and conform to such duties and instructions, consistent with the position of President and Chief Executive Officer, as from time to time are assigned or communicated to the Employee by the Board. |
| 3.2 | Service to the Company. At all times while employed by the Company, the Employee will use his best efforts to: |
| (a) | diligently, honestly and faithfully serve the Company in a manner which is consistent with the fiduciary duties owed to the Company; |
| (b) | act in, and promote, the best interests of the Company; |
| (c) | except as otherwise expressly provided in this Agreement, including Section 7.7, devote substantially all of his working time, attention and energies to the Business and affairs of the Company, subject to the permitted outside activities expressly set forth in Section 7.7, provided, however, that the Employee may serve as an executive and board member of any subsidiary of the Company, serve as a board member at no more than two companies whose primary business is outside of the Business (unless agreed otherwise with the lead independent director); and provided further, that the Employee may provide volunteer services to life sciences associations, non-profit foundations and academic institutions provided that no such activities amount to an actual or potential conflict of interest with the Employee’s duties pursuant to this Agreement and do not otherwise unreasonably interfere with the Employee’s performance of his duties hereunder; |
| (d) | comply in all material respects with all terms of this Agreement, and the Assignment of Intellectual Property Agreement executed between the Parties on the Effective Date, and; |
| (e) | perform his duties in accordance with applicable laws and in accordance with the Company’s policies and procedures as established and updated by the Company from time to time. |
| 3.3 | Location. The Employee shall perform his duties remotely or at such locations as may be reasonably designated by the Company and agreed to by the Employee from time to time, subject to the reasonable business needs of the Company. |
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| 4. | CONFIDENTIALITY, DISCLOSURE OF INFORMATION |
| 4.1 | Confidential Information. The Employee acknowledges that, by reason of his employment with the Employer, he will have access to Confidential Information, as hereinafter defined, which the Employer has spent time, effort and money to develop and acquire. For the purposes of Sections 4 through 6 of this Agreement, any reference to “Employer” or “Company” shall mean the Parent Company and its affiliates and subsidiaries, including, without limitation, the Company. The term “Confidential Information” as used in this Agreement means all trade secrets, proprietary information and other data or information (and any tangible evidence, record or representation thereof) whether prepared, conceived or developed by an employee or agent of the Company (including the Employee) or received by the Company from an outside source that is maintained in confidence by the Company or the outside source who provided the information in question. Without limiting the generality of the foregoing, Confidential Information includes information of the Company pertaining to: |
| (a) | any ideas, drawings, improvements, know-how, research, inventions, innovations, products, services, sales, scientific or other formulae, processes, methods, machines, procedures, tests, treatments, developments, technical data, designs, devices, patterns, concepts, computer programs or software, records, data, training or service manuals, plans for new or revised services or products or other plans, items or strategy methods on compilation of information, or works in process, or any inventions or parts thereof, and any and all revisions and improvements relating to any of the foregoing (in each case whether or not reduced to tangible form) that relate to the business or affairs of the Company or that result from its marketing, research and/or development activities; |
| (b) | the identities of clients and potential clients, customers and potential customers (collectively, “Customers”); the identities of contact persons at Customers; the preferences and needs of Customers; customer contact persons; information regarding sales terms, service plans, methods, practices, strategies, forecasts, know-how, and other marketing techniques; the identities of key accounts, potential key accounts; the identities of suppliers and contractors, and all information about those supplier and contractor relationships such as contact person(s), pricing and other terms; |
| (c) | any information relating to the relationship of the Company with any personnel, suppliers, principals, investors, contacts or prospects of the Company and any information relating to the requirements, specifications, proposals, orders, contracts or transactions of or with any such persons; |
| (d) | any marketing material, plan or survey, business plan, opportunity or strategy, development plan or specification or business proposal; |
| (e) | financial information, including the Company’s costs, financing or debt arrangements, income, profits, salaries or wages; and |
| (f) | any information relating to the present or proposed business of the Employer. |
| 4.2 | Exclusive Property. The Employee acknowledges that the Confidential Information is a valuable and unique asset of the Company and that the Confidential Information is and will remain the exclusive property of the Company. |
| 4.3 | Restrictions. The Employee agrees to maintain securely and hold in strict confidence all Confidential Information received, acquired or developed by him or disclosed to him as a result of or in connection with his association with the Employer. The Employee agrees that, both during the Term and after the termination of his employment with the Company, he will not, directly or indirectly, divulge, communicate, use, copy or disclose or permit others to use, copy or disclose, any Confidential Information to any person, except as such disclosure or use is required to perform his duties hereunder. The obligation of confidentiality imposed by this Agreement shall not apply to information that appears in issued patents or printed publications, that otherwise becomes generally known in the industry through no act of the Employee in breach of this Agreement, or that is required to be disclosed by court order or applicable law, including, without limitation (i) discussing the terms, wages, and working conditions at the Employer, as protected by applicable law; or (ii) initiating communications directly with, responding to any inquiries from, providing testimony before, providing confidential information to, reporting possible violations of law or regulation to, or from filing a claim or assisting with an investigation directly with a self-regulatory authority or a government agency or entity, or from making other disclosures that are required or protected by law. |
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| 4.4 | Third-Party Information. The Employee understands that the Employer has from time to time in its possession information belonging to third parties or that is claimed by third parties to be confidential or proprietary and that the Employer has agreed to keep confidential. The Employee agrees that all such information shall be Confidential Information for the purposes of this Agreement. |
| 4.5 | Work Product. The Employee represents and warrants that the Employee will not, to the best of the Employee’s knowledge and belief, use or cause to be incorporated in any of the Employee’s work product any data software, information, designs, techniques or know-how which the Employee or the Company does not have the right to use. |
| 4.6 | Computer Authorization. The Employee agrees that he is not authorized to use the Company’s computer system or any of the Company’s IT hardware or software for any purpose other than the performance of his job duties or incidental, limited personal use that does not affect the Company or its business in any way. This includes (a) transferring information relating to the Company’s business from the Company’s system, hardware, or software to an external device or account other than as necessary in the performance of his job duties, (b) deleting information relating to the Company’s business from the Company’s system, hardware, or software other than as necessary in the performance of his job duties, or (c) altering information relating to the Company’s business found on the Company’s system, hardware, or software in an unauthorized manner. |
| 5. | Disclosure of Discoveries, Ideas and Inventions |
This Section is subject in all respects to the Background Intellectual Property carve-out and license provisions set forth in Section 7.7.
| 5.1 | Exclusive Property. Any new technology, knowledge or information developed by the Employee related to the business and/or research interests of the Company during the term of this Agreement shall be the exclusive property of the Company to the extent that such technology, knowledge or information is owned by the Employee. |
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| 5.2 | Inventions. The Employee acknowledges that all Confidential Information (as defined above) and all other discoveries, know-how, inventions, ideas, concepts, processes, products, protocols, treatments, methods, tests and improvements, computer programs, or part thereof, conceived, developed, reduced to practice or otherwise made by him either alone or with others, during the course of the Employee’s performing services on behalf of the Employer, whether or not conceived, developed, reduced to practice or made during the Employee’s regular working hours or on the premises of the Employer (collectively “Inventions”), and any and all services and products that embody, emulate or employ any such Inventions will be the sole property of the Employer, and all copyrights, patents, patent rights, trademarks, service marks and reproduction rights to, and other proprietary rights in, each such Invention, whether or not patentable or copyrightable, will belong exclusively to the Employer. For purposes of the copyright laws of the United States of America, to the extent, if any, that such laws are applicable to any such Invention or any such service or product, it will be considered a work made for hire and the Employer will be considered the author thereof. |
| 5.3 | Assignment of Inventions. The Employee hereby assigns and agrees to assign all his right, title and interests in the Inventions to the Employer or its nominee. |
| 5.4 | Waiver of Rights in Inventions. The Employee hereby waives for the benefit of the Company and its successors and assigns any and all moral rights in respect of any Inventions. |
| 6. | RETURN OF DOCUMENTS |
| 6.1 | Return of Company Property. The Employee agrees that all files, documents, equipment, records and other property or materials issued to, or made or received by, the Employee of any nature pertaining to business of the Employer, including Confidential Information, are and shall be the property of the Company, and that all such files, documents, records and other materials, and all copies of them, and all such equipment and other property shall be returned to the Company upon the termination of the Employee’s employment for any reason or at any time upon the request of the Employer. |
| 7. | TERMINATION |
| 7.1 | Termination Due to Death or Disability. This Agreement and the Employee’s employment hereunder shall automatically terminate upon the Employee’s death or, at the option of the Company, by written notice to the Employee and subject to applicable law, upon the Employee’s Death or Disability (as defined below). Such termination shall take effect the last day of the month following the date of death or the date such notice of termination for Employee’s Death or Disability is given. The Employee’s compensation and other benefits shall continue during the term of the Death or Disability through the effective date of termination as set forth above. Upon termination due to the Employee’s death or Death or Disability, no notice, salary, compensation benefits, allowances or pay in lieu of notice shall be paid or payable to the Employee or any of his beneficiaries after or as a result of such termination other than any earned but unpaid Salary to be paid through the effective date of termination. |
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| 7.2 | Termination by Company with Cause. The Company may terminate the Employee’s employment under this Agreement at any time for Cause (as defined below). The Company shall provide the Employee with a detailed written notice of the grounds of termination for Cause and, if reasonably capable of cure, provide the Employee with an opportunity to cure such grounds within 30 days’ notice of termination as set forth in the definition of Cause below. If this Agreement and the Employee’s employment are terminated for Cause, then, subject to the Employee’s execution of a separation agreement and release prepared by the Company in a form and manner reasonably satisfactory to the Company and negotiated by the Company and Employee in good faith without delay, which shall include, without limitation, a general release of claims against the Company and all related persons and entities that shall not release the Employee’s rights under this Agreement, and a reaffirmation of all of the Employee’s post-employment obligations to the Company, which shall provide that if the Employee breaches any of such obligations, all severance benefits as provided herein shall immediately cease (the “Separation Agreement”), which Separation Agreement must become irrevocable within 60 days after such termination of employment (or such shorter period as set forth in the Separation Agreement) (such conditions, the “Separation Conditions”), the Company shall provide the Employee with the following severance benefits as consideration for a settlement agreement that contains complete and full releases of all claims by the Employee: |
| (a) | a lump-sum cash payment, paid within 30 days following the satisfaction of the Separation Conditions, equal to the lesser of (i) four weeks of Salary and (ii) the Salary that would have been paid to the Employee had his employment with the Company continued through the Expiration Date; and |
| (b) | payment by the Company of the monthly premium cost of applicable insurance premiums for all health insurance under the Company’s applicable health insurance plans, subject to the Employee’s copayment of premium amounts at the applicable active employees’ rate and the Employee’s proper election to receive benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), either to the group health plan provider or the COBRA provider until the earliest of (A) four weeks following the effective date of termination, (B) the date on which the Employee becomes eligible for group medical plan benefits under any other employer’s group medical plan, and (C) the cessation of the Employee’s health continuation rights under COBRA; provided, however, that if the Company determines that it cannot pay such amounts to the group health plan provider or the COBRA provider (if applicable) without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then the Company shall convert such payments to payroll payments directly to the Employee for the time period specified above (as applicable, the “COBRA Subsidy”). Such payments to the Employee shall be subject to tax-related deductions and withholdings and paid on the Company’s regular payroll dates. |
| 7.3 | Termination Outside a Change in Control Period by Company Without Cause or by the Employee for Good Reason. The Company may terminate the Employee’s employment at any time without Cause, and the Employee may resign for Good Reason (each as defined below) in accordance with the applicable notice and cure procedures set forth herein. If, outside of a Change in Control Period, the Employee’s employment is terminated by the Company without Cause (other than due to the Employee’s Death or Disability) or by the Employee for Good Reason, then, subject to the Employee’s satisfaction of the Separation Conditions, the Company shall provide the Employee with the severance benefits described below, in addition to any earned but unpaid Salary through the date of termination: |
| (a) | the Severance Benefit (as defined below), |
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| (b) | payment of any cash performance bonus payable with respect to the financial year prior to the financial year in which termination occurs (if not previously paid) to be paid within 30 days following the satisfaction of the Separation Conditions, |
| (c) | the COBRA Subsidy until the earliest of (A) 12 months following the effective date of termination, (B) the date on which the Employee becomes eligible for group medical plan benefits under any other employer’s group medical plan, and (C) the cessation of the Employee’s health continuation rights under COBRA, and |
| (d) | accelerated vesting, as of the date of termination, of that number of Options that would have vested in the 12 months following such termination had the Employee remained employed with the Company during such period. |
| 7.4 | Termination During a Change in Control Period by Company Without Cause or by the Employee for Good Reason. If the Employee’s employment is terminated during a Change in Control Period by the Company without Cause (other than due to his Death or Disability) or by the Employee for Good Reason, then, subject to the satisfaction of the Separation Conditions, the Company shall provide the Employee with the following severance benefits in addition to any earned but unpaid Salary through the date of termination: |
| (a) | the Severance Benefit paid within 30 days following the satisfaction of the Separation Conditions, |
| (b) | payment of any cash performance bonus payable with respect to the financial year prior to the financial year in which termination occurs (if not previously paid), |
| (c) | the COBRA Subsidy until the earliest of (A) 6 months following the effective date of termination, (B) the date on which the Employee becomes eligible for group medical plan benefits under any other employer’s group medical plan, and (C) the cessation of the Employee’s health continuation rights under COBRA, and |
| (d) | full vesting acceleration of all then-outstanding Options effective as of the date of termination. |
For the avoidance of doubt, severance benefits payable in connection with a Change in Control are intended to be payable only upon a qualifying termination of employment and not solely upon the occurrence of a Change in Control.
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| 7.5 | Termination by Employee Outside a Change in Control Period Without Good Reason. The Employee may terminate his obligations under this Agreement without Good Reason by giving 90 days’ written notice to the Board. On the giving of such notice by the Employee, or at any time thereafter, the Company shall have the right to elect at any time thereafter to immediately terminate the Employee’s employment without further payment other than any earned but unpaid Salary through the date of termination, and such termination shall not constitute a termination without Cause for purposes of this Agreement. |
| 7.6 | Definitions. |
| (a) | “Cause” shall mean the occurrence of any one or more of the following events, as determined in good faith by the Board of Directors (or a duly authorized committee thereof): |
(i) Misconduct or Negligence. The Employee’s misconduct, negligence, or failure to substantially perform the Employee’s duties or responsibilities to the Company or the Parent (other than due to the Employee’s physical or mental illness, incapacity, or Death or Disability), which results in or is reasonably likely to result in harm to the Company or the Parent or its business;
(ii) Breach of Fiduciary Duty or Dishonesty. Any act of fraud, embezzlement, misappropriation, dishonesty, or breach of fiduciary duty involving moral turpitude, deceit, or dishonesty with respect to the Company, or the Parent, its affiliates, or their respective assets;
(iii) Criminal Conduct. The Employee’s indictment or arrest for (A) any felony, or (B) any misdemeanor involving moral turpitude, fraud, theft, dishonesty, or misrepresentation, in each case that is reasonably likely to have an adverse effect on the Company’s or the Parent’s reputation or business;
(iv) Violation of Law or Policy. The Employee’s violation of any applicable law, rule, or regulation (including securities laws) or any violation of the Company’s or the Parent’s written policies, codes of conduct, or compliance programs, which violation causes or is reasonably likely to cause harm to the Company or the Parent;
(v) Failure to Perform / Insubordination. The Employee’s failure or refusal to substantially perform the Employee’s duties or responsibilities, or insubordination, after receipt of written notice from the Board specifying such failure or refusal and a reasonable opportunity to cure (which shall be no less than thirty (30) days, except where such failure or refusal is not reasonably susceptible to cure);
(vi) Reputational Harm. Any act or omission by the Employee that results in or is reasonably likely to result in reputational harm to the Company or the Parent, including conduct that undermines the Employee’s ability to effectively perform the Employee’s duties or impairs the confidence of the Board, regulators, investors, or key stakeholders in the Employee’s leadership;
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(vii) Breach of Agreement. The Employee’s breach of this Agreement or any other written agreement with the Company or the Parent, including confidentiality, non-competition, non-solicitation, or intellectual property obligations, which breach remains uncured following written notice and a reasonable opportunity to cure, if curable, including (without limitation) the Employee’s material breach of Section 7.7 of this Agreement (Competition; Non-Solicitation; Outside Activities; Intellectual Property), which breach remains uncured following written notice and a reasonable opportunity to cure, if curable;
(viii) Board Determination of Performance Failure. The Employee’s failure to meet performance objectives or expectations, as determined in good faith by a majority of the Board of Directors, taking into account the Company’s and the Parent’s strategic objectives, financial performance, and the Employee’s role and responsibilities; or
(ix) Substance Abuse / Workplace Policies. The Employee’s violation of any Company or Parent policy, including, without limitation, policies relating to drugs and alcohol, harassment or discrimination, equal employment opportunity, workplace violence, ethics, or code of conduct.
| (b) | “Change in Control” has the meaning set forth in the Plan. |
| (c) | “Change in Control Period” means the period beginning three (3) months prior to the date of a Change in Control and ending on the twelve (12) month anniversary of the Change in Control. |
| (d) | “Disability” shall mean the Disability of the Employee, where the Employee is unable to work and remains continuously so disabled for a period of 180 days. |
| (e) | “Good Reason” means that the Employee has completed all steps of the Good Reason Process following the occurrence of any of the following events without the Employee’s consent (each, a “Good Reason Condition”): |
| (i) | the Employee is placed in a position of lesser stature than his current position or is assigned duties consistent with such position or duties that, if performed, would result in a significant change in the nature or scope of powers, authority, functions or duties inherent such a position immediately prior to the Change in Control, |
| (ii) | the Employee is assigned performance requirements or working conditions that are at variance with the performance requirements and working conditions in effect immediately preceding the Change in Control or is accorded treatment on a general basis that is in derogation of his status in his current position, |
| (iii) | the Employee’s Salary or incentive bonus eligibility is materially decreased, |
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| (iv) | the Employee is required to relocate to an in-office location as his primary work location, |
| (v) | the Company’s material breach of this Agreement, or |
| (vi) | the relocation of Employee’s principal work location by more than fifty (50) miles from Employee’s then-current primary work location, other than a transition from remote work to occasional in-person meetings consistent with Company practice. |
| (f) | The “Good Reason Process” consists of the following steps: |
| (i) | a Good Reason Condition has occurred, |
| (ii) | the Employee notifies the Company in writing of the first occurrence of the Good Reason Condition within 60 days of the first occurrence of such condition, |
| (iii) | the Employee cooperates in good faith with the Company’s efforts, for a period of not less than 30 days following such notice (the “Cure Period”), to remedy the Good Reason Condition, |
| (iv) | notwithstanding such efforts, the Good Reason Condition continues to exist at the end of the Cure Period, and |
| (v) | the Employee terminates employment within 60 days after the end of the Cure Period. |
| (g) | “Severance Benefit” means, when due hereunder, the Company providing Employee with severance equal to the lesser of (i) six (6) months of Employee’s then-current base salary, plus an additional two (2) months of base salary for each completed year of service, capped at a maximum of twelve (12) months in total or (ii) base salary that would have been paid to the Employee had his employment with the Company continued through the Expiration Date. The Severance Benefit shall be paid in accordance with the Company’s standard payroll practices, subject to applicable withholdings, unless the Company elects otherwise in writing. For the avoidance of doubt, the Severance Benefit shall consist solely of base salary continuation as expressly provided herein and shall not include any equity awards, equity acceleration (except as expressly set forth in Section 7), incentive compensation, bonuses (whether discretionary or otherwise), or other forms of compensation, except as expressly stated in this Agreement. |
If the Company cures the Good Reason Condition during the Cure Period and the Good Reason Condition does not resume within 60 days after the end of the Cure Period, Good Reason shall be deemed not to have occurred.
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| 7.7 | Competition; Non-Solicitation; Outside Activities; Intellectual Property. |
This Section 7.7 sets forth the sole and exclusive non-competition, non-solicitation, exclusivity, and intellectual property restrictive covenants applicable to the Employee, and supersedes any inconsistent or overlapping provisions elsewhere in this Agreement. As used in this Section 7.7, the term Company includes the Parent, the Company, and their respective Affiliates.
| (a) | Exclusivity and Non-Competition During Employment. During the term of the Employee’s employment with the Company, the Employee shall devote substantially all of the Employee’s professional business time, attention, skill, and efforts to the performance of the Employee’s duties for the Company and shall not, without the prior written consent of the Board of Directors, directly or indirectly engage in, own, manage, operate, control, advise, consult for, or participate in any business or enterprise that competes with the business of the Company or any of its subsidiaries, nor engage in any activity that would reasonably be expected to conflict with the Employee’s fiduciary duties to the Company. Notwithstanding the foregoing, the Employee may hold passive investments of less than two percent (2%) of the outstanding equity securities of any publicly traded company. |
| (b) | Permitted Outside Activities; Emory University Carve-Out. Notwithstanding Section 3.1, the following activities shall be expressly permitted and shall not be deemed competitive or conflicting with the Employee’s obligations to the Company: |
| (i) | the Employee’s service on the board of directors of Emory University, including active participation on its executive committee, and engagement in related academic, governance, research oversight, and advisory activities, provided that such service does not involve the disclosure or misuse of the Company’s Confidential Information or participation in any commercial enterprise that competes with the Company, and for the avoidance of doubt, service with Emory University shall not be deemed competitive with the Company solely by reason of Emory’s academic research activities; |
| (ii) | service on additional boards of directors or advisory boards of charitable, academic, or non-profit organizations, and service on boards of for-profit entities that are not competitive with the Company, in each case with prior notice to, and consent of, the Board of Directors (such consent not to be unreasonably withheld); |
| (iii) | passive ownership of less than two percent (2%) of the outstanding securities of any publicly traded company; and |
| (iv) | such other activities as may be approved in advance by the Board, provided that such activities do not materially interfere with the Employee’s duties to the Company. |
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| (c) | Post-Termination Non-Competition. In consideration of the Employee’s compensation, access to Confidential Information, and equity participation, the Employee agrees that during the Employee’s employment with the Company and for a period of twelve (12) months following the termination of employment for any reason (the “Restricted Period”), the Employee shall not, directly or indirectly, anywhere in the United States, Canada, or any other jurisdiction in which the Company is actively conducting or has demonstrable plans to conduct business as of the date of termination, engage in, advise, manage, operate, or be employed by, or provide services similar to those performed by the Employee for the Company during his employment, to any business that is competitive with the research, development, manufacture, or commercialization of pharmaceutical, biotechnology, or life-sciences products or platforms that are materially similar to or competitive with those of the Company as conducted during the twelve (12) months preceding termination. This Section 7.7 shall not prohibit the Employee from passive investments permitted under Section 7.7(a) or service expressly permitted under Section 7.7(b). |
| (d) | Post-Termination Non-Solicitation. During the Restricted Period, the Employee shall not, directly or indirectly: |
| (i) | solicit, induce, or encourage any employee, consultant, or independent contractor of the Company to terminate or modify their relationship with the Company; or |
| (ii) | solicit or attempt to solicit any customer, collaboration partner, licensee, supplier, or other business partner of the Company, for the purpose of providing products or services competitive with those of the Company, or to otherwise cause such person to cease or reduce the scope or extent of its business relationship with the Company. |
| (e) | Intellectual Property – Background IP Carve-Out. The Employee acknowledges that the Company’s business depends on the protection of its proprietary scientific, technical, and commercial intellectual property. |
| (i) | Background Intellectual Property. The Employee shall not be required to assign to the Company any inventions, discoveries, developments, works of authorship, patents, data, or other intellectual property that were conceived, developed, or reduced to practice by the Employee prior to the commencement of employment or outside the scope of the Employee’s services for the Company (“Background IP”), provided that such Background IP is disclosed in writing to the Company prior to or promptly following the commencement of employment. |
| (ii) | No Implied Assignment. Nothing in this Agreement shall be construed to require the assignment of any Background IP to the Company. |
| (iii) | License to Background IP if Used. To the extent that any Background IP is incorporated into, used in connection with, or is necessary for the development, manufacture, or commercialization of the Company’s products, services, or research programs, the Employee hereby grants to the Company a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, transferable, and sublicensable license to use, reproduce, modify, develop, commercialize, and otherwise exploit such Background IP solely in connection with the Company’s business. |
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| (f) | Company Intellectual Property. All inventions, discoveries, developments, works of authorship, data, improvements, and other intellectual property conceived, developed, or reduced to practice by the Employee, alone or jointly with others, during the term of employment and within the scope of the Employee’s duties or using Company resources shall be the sole and exclusive property of the Company and shall constitute a “work made for hire” to the maximum extent permitted by law. To the extent not deemed a work made for hire, the Employee hereby irrevocably assigns all right, title, and interest therein to the Company. |
| 7.8 | No Other Entitlements Upon Termination. The Employee agrees that the amounts payable pursuant to this Section 7 shall be the maximum notice or compensation to which the Employee is entitled in lieu of reasonable notice, including statutory, contractual and common law amounts, and the Company will have no further obligations to the Employee with respect to the termination of this Agreement or his employment, including without limitation further compensation, severance pay or damages. |
| 7.9 | Termination by Mutual Agreement or Force Majeure. The Employee’s employment may be terminated at any time by mutual written agreement of the parties. In addition, the Company may terminate the Employee’s employment upon the occurrence of a force majeure event that renders continued performance impracticable or impossible, in accordance with applicable law. |
| 8. | TAXES |
| 8.1 | Withholding. All payments and benefits provided to the Employee pursuant to this Agreement will be paid or provided net of any tax or other amounts that the Company is required to withhold under applicable laws and regulations. Nothing in this Agreement should be construed to require the Company to make any payments to compensate the Employee for any adverse tax effect associated with any payments or benefits or for any deduction or withholding from any payment or benefit. |
| 8.2 | Section 409A. |
| (a) | Notwithstanding anything in this Agreement to the contrary, if at the time of the Employee’s separation from service within the meaning of Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), the Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent that any payment or benefit of “non-qualified deferred compensation” (as such term is used in Section 409A of the Code) under this Agreement becomes payable upon a separation from service (and not due to any other permissible payment event, such as the lapsing of a substantial risk of forfeiture), the Company will defer such payment until the earlier of (i) six months and one day after the Employee’s separation from service and (ii) the Employee’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment occurring after the mandatory deferral contemplated in the immediately preceding sentence will include a catch-up payment covering amounts that would have otherwise been paid during the deferral period but for the application of this provision, and the Company will pay the balance of the installments in accordance with their original schedule. |
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| (b) | The Company will pay or provide all in-kind benefits and taxable expense reimbursements under this Agreement as soon as administratively practicable when due, but in no event will the Company provide any taxable expense reimbursement after the last day of the taxable year following the taxable year in which the expense is incurred. The amount of in-kind benefits provided or taxable expense reimbursements in one taxable year will not affect the amount available in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses), and no such right to reimbursement or in-kind benefits is subject to liquidation or exchange for another benefit. |
| (c) | To the extent that any payment or benefit of “non-qualified deferred compensation” under this Agreement becomes payable upon the Employee’s termination of employment (and not due to any other permissible payment event, such as the lapsing of a substantial risk of forfeiture), then the Company will pay or provide such payments or benefits only if such termination of employment constitutes a “separation from service” (as such term is used in Section 409A of the Code). The Company will determine whether and when a separation from service has occurred in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). |
| (d) | The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision should be read in such a manner so that all payments hereunder comply with, or are exempt from, Section 409A of the Code. Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A 2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary, to fully comply with, or be exempt from, Section 409A of the Code while preserving the payments and benefits provided hereunder to the greatest possible extent without additional cost to either Party. |
| (e) | The Company makes no representation or warranty and accepts no liability to the Employee or any other person if any provision of this Agreement is determined to provide for “nonqualified deferred compensation” subject to Section 409A of the Code in a manner that does not comply with Section 409A of the Code. |
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| 8.3 | Section 280G. If any payments or benefits provided under this Agreement, either alone or together with other payments or benefits which Employee receives or is entitled to receive from the Company or any of its Affiliates, would constitute an “excess parachute payment” within the meaning of Section 280G of the Code: |
| (a) | Employee shall be entitled to receive (i) an amount limited so that no portion thereof shall fail to be tax deductible under Section 280G of the Code or subject to an excise tax under Section 4999 of the Code (the “Limited Amount”), or (ii) if the amount otherwise payable hereunder together with other payments or benefits which Employee receives or is entitled to receive from the Company or any of its applicable Affiliates (without regard to clause (i)) reduced by all taxes applicable thereto (including, for the avoidance of doubt, the excise tax imposed by Section 4999 of the Code) would be greater than the Limited Amount reduced by all taxes applicable thereto, the amount otherwise payable hereunder together with other payments or benefits which Employee receives or is entitled to receive from the Company or any of its applicable Affiliates. |
| (b) | If any payments under this Agreement or otherwise are required to be reduced as described in this Section 8.3, the Company shall reduce the Payments in the following order: (i) by reducing cash severance amounts in reverse chronological order of payment, then (ii) by reducing any accelerated vesting benefits in reduce chronological order of vesting date, applied first with respect to any accelerated vesting that is not subject to Treas. Reg. § 1.280G-1 Q/A 24(c), and applied last with respect to any accelerated vesting that is subject to Treas. Reg. § 1.280G-1 Q/A 24(c). |
| 9. | DIRECTORSHIP AND OFFICES |
| 9.1 | Resignation from Positions. Upon termination of the Employee’s employment for any reason, the Employee shall be deemed to have resigned from all officer, board, and management positions held by the Employee with the Company, the Parent, or any of its affiliates solely by virtue of the Employee’s role as Chief Executive. |
| 10. | MISCELLANEOUS |
| 10.1 | Governing Law. This Agreement shall be governed by, and interpreted in accordance with, the laws of Delaware and the laws of the United States of America as applicable therein. |
| 10.2 | Employee’s Representations and Covenants. |
| (a) | Third-Party Agreements and Rights. The Employee represents that the Employee is not bound by the terms of any agreement with any previous employer or other party that restricts or could reasonably be interpreted to restrict in any way the Employee’s employment or services hereunder. The Employee represents to the Company that the Employee’s execution of this Agreement, the Employee’s employment with the Company, and the Employee’s performance of the duties required hereunder will not violate any obligations the Employee has to any such previous employer or other party. In the Employee’s work for the Company, the Employee will not disclose or make use of any information in violation of any agreements with or rights of any such previous employer or other party, and the Employee will not bring to the premises of the Company any copies or other tangible embodiments of non-public information belonging to or obtained from any such previous employment or other party. |
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| (b) | Litigation and Regulatory Cooperation. During and after the Employee’s employment, the Employee agrees to reasonably cooperate with the Company in (i) the defense or prosecution of any claims or actions now in existence or that may be brought against or on behalf of the Company (other than claims brought on behalf of the Company against the Employee) that relate to events or occurrences that transpired while the Employee was employed by the Company and (ii) the investigation, whether internal or external, of any matters about which the Company reasonably believes the Employee may have knowledge or information. The Employee’s reasonable cooperation in connection with such claims, actions, or investigations may include, but are not limited to, being available to meet with counsel (telephonically or via Zoom or similar remote meeting devices) to answer questions or to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after the Employee’s employment, the Employee also agrees to cooperate with the Company in connection with any investigation or review of any federal, state, or local regulatory authority to the extent that any such investigation or review relates to events or occurrences that transpired while the Employee was employed by the Company. All requests for the Employee’s cooperation, and scheduling of meetings, phone calls, video conferences, and the like, will be made with due regard for the Employee’s professional and personal obligations. The Company will reimburse the Employee for any reasonable out-of-pocket expenses incurred in connection with the Employee’s performance of obligations pursuant to this Section 10.2(b). |
| (c) | Cooperation in Legal Matters. Employee agrees that, upon reasonable request by the Company or the Parent at any time during the Term or thereafter, he will cooperate and participate in the investigation, prosecution, or defense of any matter involving the Company or the Parent or any other matter that arose during his employment. If such activities are required after termination of Employee’s employment with the Company or the Parent, the Company shall compensate Employee for the reasonable value of the time required for such participation and reimburse him for any reasonable travel and out-of-pocket expenses incurred in providing such participation at its request in accordance with the Company’s business expense reimbursement policies as then in effect. The purpose of such reimbursement is to avoid cost to the Employee and not to influence his participation. |
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| 10.3 | Dispute Resolution. To ensure the rapid and economical resolution of disputes that may arise in connection with the Employee’s employment with the Company, the Employee and the Company agree that all disputes, claims, and causes of action, in law or equity, including but not limited to statutory claims, arising from or relating to the enforcement, breach, performance, or interpretation of this Agreement, the Employee’s employment with the Company, or the termination of the Employee’s employment from the Company, will be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. §§1-16, and to the fullest extent permitted by law, by final, binding, and confidential arbitration conducted in New York, City, New York, by JAMS, Inc. (“JAMS”), or its successors, under JAMS’ then-applicable rules and procedures for employment disputes (which can be found at http://www.jamsadr.com/rules-clauses); provided that the arbitrator will have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law and must issue a written arbitration decision including the arbitrator’s essential findings and conclusions and a statement of the award. The Employee and the Company will be entitled to all rights and remedies that they would be entitled to pursue in a court of law. Both the Employee and the Company acknowledge that by agreeing to this arbitration procedure, the Employee and the Company waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. The Company will pay all filing fees in excess of those that would be required of the Employee if the dispute were decided in a court of law and will pay the arbitrator’s fee. Nothing in this Agreement is intended to prevent either the Company or the Employee from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. With respect to the foregoing, the Parties hereby consent to the jurisdiction of the state and federal courts sitting in the State of New York. Accordingly, with respect to any such court action, the Employee and the Company each (a) submit to the exclusive personal jurisdiction of such courts, (b) consent to service of process, and (c) waive any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process. |
| Employee Initials: | /s/ AR |
| 10.4 | Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE EMPLOYEE’S EMPLOYMENT BY THE COMPANY OR ANY AFFILIATE OF THE COMPANY, INCLUDING WITHOUT LIMITATION THE EMPLOYEE’S OR THE COMPANY’S PERFORMANCE UNDER, OR THE ENFORCEMENT OF, THIS AGREEMENT. |
| Employee Initials: | /s/ AR |
| 10.5 | Personal Information. The Employee acknowledges that the Company will collect, use and disclose personal information only where reasonably necessary for security, employment and business purposes. The Employee consents to the Company’s collection, use and disclosure of personal information about the Employee only where reasonably necessary for security, employment and business purposes in accordance with applicable legislation and any privacy policy of the Company that may be in effect from time to time. |
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| 10.6 | Assignment. This Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns. The Employee’s rights and obligations contained in this Agreement are personal and such rights, benefits and obligations shall not be voluntarily or involuntarily assigned, alienated or transferred, whether by operation of law or otherwise, without the prior written consent of the Company. |
| 10.7 | Waiver. Any waiver of any breach or default under this Agreement shall only be effective if in writing signed by the party against whom the waiver is sought to be enforced, and no waiver shall be implied by any other act or conduct or by any indulgence, delay or omission. Any waiver shall apply only to the specific matter waived and only in the specific instance in which it is waived. |
| 10.8 | Further Assurances. The parties will execute and deliver to each other such further instruments and assurances and do such further acts as may be required to give effect to this Agreement. |
| 10.9 | Enforceability. If any provision of this Agreement or any part thereof shall for any reason be held to be invalid or unenforceable in any respect, then such invalid or unenforceable provision or part shall be severable and severed from this Agreement and the other provisions of this Agreement shall remain in effect and be construed as if such invalid or unenforceable provision or part had never been contained herein. |
| 10.10 | Confidentiality. The Employee shall keep the terms and conditions of this Agreement confidential and shall not disclose its contents other than to his spouse, legal and financial advisors on the understanding that they too will keep its contents confidential or except as may be required to enforce any provisions of this Agreement or as may otherwise be required by any law, regulation or other regulatory requirement. |
| 10.11 | Independent Review. Both parties acknowledge that they have carefully reviewed and understand the provisions of this Agreement and the parties acknowledge and agree that the terms are mutually fair and equitable. It was fully and plainly recommended to the Employee that independent legal and tax advice be obtained prior to entering into this Agreement. |
| 10.12 | Indemnity. The Company will continue to include the Employee as an insured under its defined insureds pursuant to its directors’ and officers’ liability insurance policy to be maintained for the Company’s directors and officers. The Company shall indemnify the Employee in accordance with the Indemnity Agreement executed by the Employee on July 13, 2022. |
| 10.13 | Integration. This Agreement (including all referenced and attached agreements and the policies and procedures of the Company, as amended from time to time) constitutes the entire agreement between the Employee and the Company regarding the Employee’s employment with the Company and supersedes all prior understandings and agreements regarding the Employee’s employment. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Employee and the Company other than as expressly set forth in this Agreement. |
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| 10.14 | Notices. All notices, requests, demands, and other communications provided for by this Agreement will be sufficient if in writing and delivered in person or sent by a nationally recognized overnight courier service or by registered or certified mail, postage prepaid, return receipt requested, by email with written acknowledgment by the receiving Party, to the Employee at the last address or email address the Employee has filed in writing with the Company or, in the case of the Company, at its main offices, attention of the Board. |
| 10.15 | Survival. The provisions of this Agreement will survive the termination of the Term and the Employee’s employment to the extent necessary to effectuate the terms contained herein. |
| 10.16 | Amendment. This Agreement may be amended or modified only by a written instrument signed by the Employee and by a duly authorized representative of the Company. |
| 10.17 | Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered should be taken to be an original; but such counterparts together constitute one and the same document. |
| 10.18 | Name, Image and Likeness. During the Employee’s employment and after the Employee’s employment with the Company ends, the Employee consents to the Company’s use of the Employee’s name, image, likeness, voice, or other characteristics in the Company’s website, products or services without any additional compensation other than provided in this Agreement. The Employee releases the Company from any cause of action that the Employee has or may have arising out of the use, distribution, adaptation, reproduction, broadcast, or exhibition of such characteristics. |
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IN WITNESS WHEREOF the parties have executed this Agreement as of the Effective Date, notwithstanding its actual date of execution.
| EMPLOYEE | ||
| /s/ Adam Rogers | ||
| DR. ADAM ROGERS | ||
| NERVGEN US INC. | ||
| By: | /s/ Craig Thompson | |
| Craig Thompson, member of the Board of Directors | ||