April 1st, 2020
4.4. If you receive a Payment for which the Reduced Amount was determined pursuant to clause (x) of Section 4.1 and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, you agree to promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of Section 4.1) so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) of Section 4.1, you shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.
5.1. Change in Control. For purposes of this Agreement, the term Change in Control means a transaction or series of transactions (including by way of merger, consolidation, recapitalization, reorganization or sale of stock or units), the result of which is that Jay Short and Carolyn Short are, after giving effect to such transaction, no longer, in the aggregate, in control, directly or indirectly (including through one or more intermediaries and/or voting rights agreements), of more than 50% of the voting power of the outstanding voting securities of the surviving entity of such transaction, and including a capital raising transaction in which the Company is the surviving entity.
5.2. Termination Year. For purposes of this Agreement, Termination Year means the fiscal year in which your Company employment is terminated for any reason.
5.3. Good Reason. For purposes of this Agreement, Good Reason is a Qualifying Termination, and Good Reason includes Company requiring Executive to work full time for Himalaya Therapeutics (Himalaya), to advance Himalayas development and commercialization of Companys products under the rights agreement with Himalaya in the Himalaya territory.
6. Miscellaneous. Nothing in this Agreement is intended to alter the at-will nature of your employment with the Company or the terms of any offer letter and/or employment-related agreement with the Company. This Agreement constitutes the complete, final and exclusive embodiment of the entire agreement between the Company and you with regard to Severance Benefits, and it supersedes and replaces any other agreements (whether written or unwritten) you may have with the Company concerning any severance benefits. This Agreement is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes any other such promises, warranties or representations. This Agreement may not be modified or amended except in a written agreement approved by the Board and signed by you and a duly authorized and independent member of the Board. This Agreement will bind the heirs, personal representatives, successors and assigns of both you and the Company, and inure to the benefit of both you and the Company, their heirs, successors and assigns. If any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, this determination shall not affect any other provision of this Agreement and the provision in question shall be modified so as to be rendered enforceable in a