Employment Agreement, dated as of December 31, 2020, by and between the Registrant and Akash Bakshi
This EMPLOYMENT AGREEMENT (this “Employment Agreement”) is entered into by and between Neurobo Pharmaceuticals, Inc., a Delaware corporation (the “Company” or “Neurobo”), and Akash Bakshi (the “Executive”).
WHEREAS, the Company desires to enter into this Employment Agreement with the Executive pursuant to which the Company will employ the Executive on the terms set forth in this Employment Agreement, and the Executive is willing to serve the Company upon such terms and conditions of this Employment Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises, terms, provisions and conditions set forth in this Employment Agreement, the parties hereby agree:
the interests of the Company; and provided, that in the case of (a) and (c), the Executive must disclose such activities in advance in writing to the Board; and further provided that, work at YourChoice shall not involve development of Niclosamide Product across viral homology (with the exclusion of HIV, HSV-2, and other sexually transmitted infections), including for treating the coronavirus disease, mutations, MERS, HRV-A/B, Ebola, Dengue, Yellow Fever, Zika, West Nile, and influenza (“Company Business”).
as in effect from time to time,]2 to be taken at such times and intervals as the Executive shall determine, subject to the reasonable business needs of the Company. During the Employment Term, the Executive shall be entitled to paid sick time in accordance with the Company’s paid sick time policy as in effect from time to time.
appropriate, set forth in this Section 4(b)(ii). For purposes of this Agreement “Cause” shall mean the Executive’s: (1) material failure to observe and comply with any of the Company’s material written policies, including without limitation, its policies prohibiting harassment (sexual or otherwise) and discrimination, and its policies regarding equal employment opportunity and maintenance of an alcohol and drug-free work place, to the satisfaction of the Board; (2) continued failure to substantially perform Executive’s material duties with the Company (other than any such failure resulting from Executive’s incapacity due to Disability) which is not cured within twenty (20) calendar days after receipt by the Executive of written notice of such failure; (3) willful failure to carry out, or comply with, in any material respect any lawful and reasonable written directive of the Board, which is not cured within twenty (20) calendar days after receipt by the Executive of written notice of such failure; (4) commission at any time of any act or omission that results in, or that may reasonably be expected to result in a conviction or plea of no contest, any felony or other crime involving moral turpitude; (5) commission at any time of any material act of fraud, dishonesty, embezzlement, misappropriation, gross neglect or gross misconduct, or breach of fiduciary duty against the Company or any of its parent, subsidiary, or affiliate entities (collectively, “Affiliates”) (or any predecessor thereto or successor thereof) or in the performance of Executive’s duties or responsibilities to the Company; (6) Executive’s exclusion, as a governmental sanction by action of the Office of Inspector General of Health and Human Services, or any equivalent or coordinating governmental agencies relating to the development, marketing, and sale of pharmaceuticals in the United States; or (7) material or willful breach of this Agreement, which, if curable, is not cured within twenty (20) calendar days after receipt by the Executive of written notice of such breach.
circumstances alleged to constitute Good Reason within 60 days of the initial existence of the circumstances, and (ii) Executive resigns within 30 days following the end of the Cure Period. Any resignation that does not meet all of the foregoing requirements shall not be deemed for Good Reason.
|5.||Matters Related to Termination.|
The amounts payable under this Section 5(c), to the extent taxable, shall be paid out in
substantially equal installments in accordance with the Company’s payroll practice over six
months commencing within 60 days after the date of termination; provided, however, that if the 60-day period begins in one calendar year and ends in a second calendar year, such payments, to the extent they qualify as “non-qualified deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), shall begin to be paid in the second calendar year by the last day of such 60-day period; provided, further, that the initial payment shall include a catch-up payment to cover amounts retroactive to the day immediately following the date of termination. Each payment pursuant to this Employment Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A- 2(b)(2).
to protect the Company and its Affiliates against harmful competition, harmful solicitation of employees, and other actions by the Executive that would result in serious adverse consequences for the Company and its Affiliates.
|7.||Intellectual Property Assignment.|
|(b)||Proprietary Developments. The Executive agrees:|
|(iv)||the Executive will promptly disclose all Proprietary Developments to|
the Company; and
|(v)||from time to time as may be requested by the Company, the Executive|
will sign any documents, authorizations, or applications, as “inventor” or otherwise, that are needed to secure the Company’s rights as the sole owner and controller of the Proprietary Development, to obtain, record and perfect patent, copyright, moral rights, mask works and/or trade secret protection in all countries in the Company’s name and at the Company’s expense.
|(c)||Notice Under California Labor Code § 2870.|
Executive is notified that the foregoing assignment shall not include inventions excluded under Cal. Lab. Code § 2870 which provides: “(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) relate at the time of concept or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) result from any work performed by the employee for the employer.”
In the event that the Executive, alone or with others, incorporates into his work for the Company any inventions, copyright eligible works, trade secrets, trademarks or other items of
intellectual property that the Executive owns or controls and that are not assigned to the Company
via this Employment Agreement or some prior agreement, then the Executive hereby grants the Company an irrevocable, perpetual, fully paid-up, royalty-free, worldwide license to make, use, sell, reproduce, display, modify, or distribute such item and its derivatives in the Company’s products and services at Company’s discretion and without any obligation to provide attribution, royalties, or other compensation to the Executive. If the Executive claims rights to or in any invention or computer program or software created or conceived prior to employment with the Company then the Executive will initial where indicated below and attach in writing an Exhibit B describing the item (without revealing any trade secrets); and if the Executive makes no such claim then the Executive so indicates by initialing beside “None” below:
None , or See Exhibit B attached.
If the Executive fails to initial either option above, it shall be presumed that “None” applies. The parties agree and acknowledge that Proprietary Developments created, conceived or otherwise made by the Executive, alone or with others, for YourChoice shall not be assigned to the Company per the terms of this Section 7 so long as they do not compete with Company Business and do not violate Executive’s obligations under the Non-Compete Agreement.
affiliates, during the Executive’s employment.
|11.||Section 409A of the Code.|
second calendar year following the calendar year in which the Executive’s “separation from service” occurs; and provided further that such expenses are reimbursed no later than the last day of the third calendar year following the calendar year in which the Executive’s “separation from service” occurs. To the extent any indemnification payment, expense reimbursement, or the provision of any in-kind benefit is determined to be subject to Section 409A (and not exempt pursuant to the prior sentence or otherwise), the amount of any such indemnification payment or expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the indemnification payment or provision of in-kind benefits or expenses eligible for reimbursement in any other calendar year (except for any life-time or other aggregate limitation applicable to medical expenses), and in no event shall any indemnification payment or expenses be reimbursed after the last day of the calendar year following the calendar year in which the Executive incurred such indemnification payment or expenses, and in no event shall any right to indemnification payment or reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
|21.||Provisional Remedies; Injunctive Relief; Waiver; Attorneys’ Fees.|
by Neurobo for which monetary damages would not be an adequate remedy. Accordingly, in the event of a breach or a threatened breach by the Executive of any such obligations, (x) Neurobo shall, to the fullest extent permitted by law, in addition to any and all other rights and remedies that may be available to it at law, in equity, or under this Employment Agreement and the Non- Compete Agreement, be entitled to seek specific performance and injunctive relief, seek equitable relief, including a temporary restraining order, seek an equitable accounting of all profits or benefits arising out of such breach or threatened breach and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond or other security unless required by a court of competent jurisdiction); (y) the Executive shall waive and shall not assert any defense that Neurobo has an adequate remedy at law with respect to the breach or threatened breach or require that the Neurobo submit proof of the economic value of any such breach or threatened breach; and (z) nothing contained in this Employment Agreement or the Non- Compete Agreement shall limit the right of Neurobo to any other remedies that may be available at law, in equity, or under this Employment Agreement or the Non-Compete Agreement. Such provisional relief may be subject to modification, termination or continuation by the arbitrator after the arbitrator has been appointed.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have entered into this Employment Agreement as of the date first above written.
NEUROBO PHARMACEUTICALS, INC.
Date: December 31, 2020By:/s/ Richard J. Kang Name: Richard J. Kang, Ph.D.
Title: CEO AKASH BAKSHI
Date: December 31, 2020/s/ Akash Bakshi
Name: Akash Bakshi
Key Performance Indicator 2021 Fiscal Year
The compensation committee of the Board shall take into consideration the following factors as key performance indicator when determining the Annual Bonus:
To Be Determined
[Pursuant to Regulation S-K, Item 601(a)(5), this Exhibit B setting forth the Executive’s rights to or in any invention or computer program or software created or conceived prior to employment with the Company has not been filed. The Registrant agrees to furnish supplementally a copy of any omitted exhibit to the Securities and Exchange Commission upon request; provided, however, that the Registrant may request confidential treatment of omitted items.]
CONFIDENTIAL SEPARATION AGREEMENT
This Confidential Separation Agreement (the “Agreement”) is executed
Pharmaceuticals, Inc. (“Employer” or “Company”) (collectively the “parties”). In consideration for the execution of this Agreement and the performance of the terms and conditions herein, the parties agree as follows:
Employer shall pay the Severance Award and if applicable the first installment of the COBRA Award (collectively the “Severance Payment”) within fifteen (15) business days after Employee executes the Agreement and returns the executed Agreement to
Employer, and provided Employee does not revoke the Agreement as set forth in Section 17 below. No other severance payments of any kind of nature are contemplated or offered to Employee.
Act, the Sarbanes-Oxley Act of 2002, the Fair Credit Reporting Act, the Small Necessities Leave Act, the Occupational Safety and Health Act, the Worker Adjustment and Retraining Notification Act, the California Labor Code, any applicable Industrial Wage Orders, The California Private Attorney General Act, the California Government Code, the California Fair Employment and Housing Act, the California Unfair Business Practice Act, the California Family Rights Act, as amended, the California Civil Code, the Fair Labor Standards Enforcement Act, the U.S. Patriot Act, the Sarbanes-Oxley Act of 2002, and any other federal, state or local civil rights, disability, discrimination, retaliation, employment, wage and hour, or labor law, or any theory of contract, criminal, arbitral or tort law. Notwithstanding the foregoing, Employee does not waive or release any claim which cannot be waived or released by private agreement.
Nothing in this Agreement shall be construed as prohibiting Employee from filing a charge or complaint, including a challenge to the validity of this Agreement, with the Equal Employment Opportunity Commission (“EEOC”) or the National Labor Relations Board (“NLRB”), or as prohibiting Employee from participating in any investigation or proceeding conducted by the EEOC or NLRB. Employee agrees, however, that by signing this Agreement, Employee waives all rights to individual relief based on claims asserted in any EEOC or NLRB proceeding.
Notwithstanding anything to the contrary contained herein, this release does not include and will not preclude: (a) any claims for unemployment or workers compensation benefits which cannot be released by private agreement; (b) any vested interests in retirement plans, employee benefit plans, stock option or similar plans; or
(c) any claim for indemnification, contribution, defense or coverage, from or through the Company or its insurers, under the Company’s (or it’s affiliates’) charter or By-laws, under applicable law, or under the Company’s (or its affiliates’) insurance policies (such coverage to be maintained until the expiration of all applicable statutes of limitation), with respect to prior actions or inactions relating in any way to your duties as an employee or officer of the Company.
any claim, charge, suit, complaint, action or proceeding against the Released Parties, unless and to the extent required or compelled by law. Employee shall not encourage and/or solicit any third party to file any claim, charge, suit, complaint, action or proceeding against the Released Parties.
“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.”
EMPLOYEE ACKNOWLEDGES AND AGREES EMPLOYEE HAS BEEN ADVISED THAT THIS AGREEMENT IS A BINDING AND LEGAL DOCUMENT. EMPLOYEE FURTHER AGREES THAT IN EXECUTING THIS AGREEMENT EMPLOYEE HAS ACTED VOLUNTARILY AND HAS NOT RELIED UPON ANY REPRESENTATION MADE BY EMPLOYER OR ANY OF ITS EMPLOYEES OR REPRESENTATIVES REGARDING THIS AGREEMENT’S SUBJECT MATTER AND/OR EFFECT. EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS AGREEMENT AND VOLUNTARILY AGREES TO ITS TERMS.
AGREED AND UNDERSTOOD:
DATED: , 20
NeuroBo Pharmaceuticals, Inc.
DATED: , 20