Separation and Release Agreement, by and between the Registrant and Timothy Pigot, dated August 15, 2024
Exhibit 10.1
930 Winter Street, Suite M-500
Waltham, MA 02451
August 15, 2024
PERSONAL AND CONFIDENTIAL
Timothy Pigot
Re:Separation Agreement
Dear Tim:
This letter confirms your separation from employment with Aerovate Therapeutics, Inc. (the “Company”) effective August 15, 2024 (the “Separation Date”) due to a restructuring. This letter also proposes an agreement between you and the Company.
First, a few formalities. Regardless of whether you sign the Agreement below:
The remainder of this letter proposes an agreement (the “Agreement”) between you and the Company. You and the Company agree as follows:
with the Company, beginning with the first such payroll date after the Effective Date (as defined below).
In consideration for, among other terms, the Severance Pay, which you acknowledge you would otherwise not be entitled, you, on behalf of yourself and your heirs, administrators, representatives, successors and assigns (together with you, the “Releasors”), voluntarily release and forever discharge the Company, its affiliated and related entities, its and their respective predecessors, successors and assigns, its and their respective employee benefit plans and fiduciaries of such plans, and the current and former officers, directors, shareholders, employees, managers, members, investors, independent contractors, partners, attorneys, accountants and agents of each of the foregoing in their official and personal capacities (collectively referred to as the “Releasees”) generally from all claims, demands, debts, damages and liabilities of every name and nature, known or unknown (“Claims”) that, as of the date when you sign this Agreement, you or any other Releasor have, ever had, now claim to have or ever claimed to have had against any or all of the Releasees. This release includes, without limitation, all Claims:
● | relating to your employment by and termination of employment with the Company; |
● | of wrongful discharge or violation of public policy; |
● | of breach of contract; |
● | of defamation or other torts; |
● | of retaliation or discrimination under federal, state or local law; |
● | under the Age Discrimination in Employment Act and the Older Workers’ Benefit Protection Act |
● | under the Worker Adjustment and Retraining Notification (“WARN”) Act or any state mini- WARN law |
● | under the California Fair Employment and Housing Act, the California Family Rights Act and the California Labor Code; |
● | under the Texas Labor Code (specifically including the Texas Payday Law, the Texas Anti- Retaliation Act, Chapter 21 of the Texas Labor Code, and the Texas Whistleblower Act) |
● | under the New Jersey Conscientious Employee Protection Act and the West Virginia Human Rights Act (provision 3.2.b). |
● | under the New York State Human Rights Law, the New York Labor Law, the New York State Correction Law, the New York State Civil Rights Law, Section 125 of the New York Workers' Compensation Law, the New York City Human Rights Law; |
● | under any other federal or state statute; |
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● | for wages, bonuses, incentive compensation, expenses, commissions, overtime, stock, stock options, vacation pay or any other compensation or benefits, either under the Massachusetts Wage Act, M.G.L. c. 149, §§148-150C, or otherwise, and in each case to the fullest extent permitted by applicable law, and any Claims under MGL c. 151B; |
● | for damages or other remedies of any sort, including, without limitation, compensatory damages, punitive damages, injunctive relief and attorney’s fees; |
provided, however, that this release shall not affect your rights under this Agreement and to any vested benefits under any 401(k) plan and Health Savings Account.
You agree not to accept damages of any nature, other equitable or legal remedies for your own benefit or attorney’s fees or costs from any of the Releasees with respect to any Claim released by this Agreement. As a material inducement to the Company to enter into this Agreement, you represent that you have not assigned any Claim to any third party. You acknowledge and agree that except as expressly specified in this Agreement, you are not entitled to any wages, salary, vacation pay, bonuses, severance, equity or any other compensation or benefits from the Company or its affiliates.
The Company shall permit you to retain your Company laptop, monitor and associated computer equipment, provided that you promptly delete any Company confidential information and other information contained on or in such equipment.
If you are located in California, the following ((i), (ii) and (iii) apply to you:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
If you are located in Washington State, the following applies to you: Nothing contained in this Agreement or the Ongoing Obligations limits your ability to disclose or discuss conduct, or the existence of a settlement (other than the amount paid in any such settlement) involving conduct, that
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you reasonably believe under Washington state, federal, or common law to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, or sexual assault, or that is recognized as against a clear mandate of public policy regardless of whether the conduct occurred at the workplace, at work-related events coordinated by or through the Company, between employees, or between the Company and an employee, whether on or off Company premises.
If you are located in Oregon, you agree that your signature to this Agreement constitutes a request to enter into this Agreement.
Subject to the Protected Activities section below, you agree not to make any disparaging statements, whether verbally, in writing, on social media or otherwise, concerning the Company or any of its affiliates or current or former officers, directors, shareholders, employees, other agents, products or services. These nondisparagement obligations shall not in any way affect your obligation to testify truthfully in any legal proceeding.
In connection with the ending of your employment, you agree to take such steps as the Company (or its applicable affiliate) reasonably requests to ensure the transition of any account access, systems access, password access, customer access, confidential information, Company property, customer information or customer relationships to the Company or its applicable affiliate.
Subject to the “Protected Activities” Section below, you agree, to the fullest extent permitted by law, to keep all Agreement-Related Information completely confidential. “Agreement-Related Information” means the negotiations leading to this Agreement and the terms of this Agreement.
Notwithstanding the foregoing, you may disclose Agreement-Related Information to your spouse, your attorney and your financial advisors, and to them only provided that they first agree for the benefit of the Company to keep Agreement-Related Information confidential. You represent that during the period since the date of this Agreement, you have not made any disclosures that would have been contrary to the foregoing obligation if it had then been in effect. Nothing in this Section shall be construed to prevent you from disclosing Agreement-Related Information to the extent required by a lawfully issued subpoena or duly issued court order; provided that you provide the Company with advance written notice and a reasonable opportunity to contest such subpoena or court order. To the extent you have not assigned any Company-related developments and intellectual property rights to the Company that are related to the Company’s business activities or were made using the Company’s time, equipment or resources, you hereby assign such developments and intellectual property rights to the Company, to the fullest extent permitted by law. You agree to promptly return all Company property to the Company; not to disclose or use any Company confidential information at any time; not to represent yourself as currently employed or engaged by the Company after the Separation Date; to cooperate with the Company in any future dispute or intellectual property matter; and to notify future employers of your Ongoing Obligations.
You understand that pursuant to the Defend Trade Secrets Act of 2016, you shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret
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that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
Nothing contained in this Agreement or in any other agreement with the Company limits your ability to: (i) file a charge or complaint with any federal, state or local governmental agency or commission, including without limitation the Equal Employment Opportunity Commission, the National Labor Relations Board or the Securities and Exchange Commission (a “Government Agency”); (ii) communicate with any Government Agency or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency; (iii) exercise any rights you may have under Section 7 of the National Labor Relations Act, including any rights you may have under such provision to assist co-workers with or discuss any employment issue, dispute or term or condition of employment as part of engaging in concerted activities for the purpose of mutual aid or protection; (iv) discuss or disclose information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful; or (v) testify truthfully in a legal proceeding, in any event with or without notice to or approval of the Company so long as such communications and disclosures are consistent with applicable law and the information disclosure was not obtained through a communication that was subject to the attorney client privilege (unless disclosure of that information would otherwise be permitted consistent with such privilege). If you file any charge or complaint with any Government Agency and if the Government Agency pursues any claim on your behalf, or if any other third party pursues any claim on your behalf, you waive any right to monetary or other individualized relief (either individually or as part of any collective or class action) but the Company will not limit any right you may have to receive an award by an order of a Government Agency pursuant to the whistleblower provisions of any applicable law or regulation for providing information to the SEC or any other Government Agency.
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Agreement by the Company shall not constitute a defense to enforcement of any provision of the Ongoing Obligations.
IF YOU ARE AGE 40 OR OLDER ON THE DATE OF THIS AGREEMENT
You acknowledge that you have been given the opportunity to consider this Agreement for forty-five (45) days before signing it (the “Consideration Period”) and that you have knowingly and voluntarily entered into this Agreement. You acknowledge that the above release of claims expressly includes without limitation claims under the Age Discrimination in Employment Act. You are advised to consult with an attorney before signing this Agreement. To accept this Agreement, you must return an electronic signature via DocuSign, a signed original or a signed PDF copy of this Agreement so that it is received by the undersigned at or before the expiration of the Consideration Period. If you sign this Agreement before the end of the Consideration Period, you acknowledge by signing this Agreement that such decision was entirely voluntary and that you had the opportunity to consider this Agreement for the entire Consideration Period. For the period of seven (7) business days from the date when you sign this Agreement (the “Revocation Period”), you have the right to revoke this Agreement by written notice to the undersigned. For such a revocation to be effective, it must be delivered so that it is received by the undersigned at or before the expiration of the Revocation Period. This Agreement shall not become effective or enforceable during the Revocation Period. It will become effective on the day after the Revocation Period ends (the “Effective Date”). You acknowledge receipt of the Disclosure Memorandum enclosed with this Agreement.
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IF YOU ARE UNDER AGE 40 ON THE DATE OF THIS AGREEMENT
By entering into this Agreement you acknowledge that you have been given five (5) days from the date of this Agreement to consider this Agreement (the "Consideration Period"). To accept this Agreement, you must return an electronic signature via DocuSign, a signed original or a signed PDF copy of the Agreement so that it is received by the undersigned Company representative within the Consideration Period. If you sign this Agreement before the end of the Consideration-Period, you acknowledge by signing this Agreement that such decision was entirely voluntary and that you had the opportunity to consider this Agreement for the entire Consideration Period. For the period of seven (7) calendar days from the date when you sign this Agreement (the "Revocation Period"), you have the right to revoke this Agreement by written notice to the undersigned. For such a revocation to be effective, it must be delivered so that it is received by the undersigned at or before the expiration of the Revocation Period. This Agreement shall not become effective or enforceable during the Revocation Period. It will become effective on the day after the Revocation Period ends (the "Effective Date"). Subject to the foregoing this Agreement shall become effective on the day it becomes fully executed (the "Effective Date").
Please indicate your agreement to the terms of this Agreement by signing and returning to the undersigned an electronic signature via DocuSign, the original or a PDF copy of this letter within the time period set forth above.
Very truly yours, Aerovate Therapeutics
By: | /s/Tim Noyes |
| 8/15/24 | |
| Tim Noyes | | Date | |
| Chief Executive Officer | | | |
| | |
Enclosure(s): (For employees age 40 and older) Disclosure Memorandum
This is a legal document. Your signature will commit you to its terms. By signing below, you
acknowledge that you have carefully read and fully understand all of the provisions of this Agreement and that you are knowingly and voluntarily entering into this Agreement.
/s/ Tim Pigot |
| 8/12/2024 |
Tim Pigot | | Date |
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