Exhibit 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is made between Adagio Therapeutics, Inc., a Delaware corporation (the “Company”), and Peter Schmidt (the “Executive”) and is effective as of November 9, 2020 (the “Effective Date”). Except with respect to the Restrictive Covenants Agreement and the Equity Documents (each as defined below), this Agreement supersedes in all respects all prior agreements between the Executive and the Company regarding the subject matter herein, including without limitation (i) the offer letter between the Executive and the Company dated November 9, 2020 (the “Prior Agreement”), and (ii) any other offer letter, employment agreement or severance agreement.
WHEREAS, the Company desires to continue to employ the Executive and the Executive desires to continue to be employed by the Company on the new terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
(the “Term”). The Executive’s employment with the Company shall continue to be “at will,” meaning that the Executive’s employment may be terminated by the Company or the Executive at any time and for any reason subject to the terms of this Agreement.
services and activities do not interfere with the Executive’s performance of the Executive’s duties to the Company.
amount is discretionary and will be subject to the Company’s assessment of the Executive’s performance, as well as business conditions at the Company. The bonus will also be subject to the terms of any applicable bonus plan and approval by and adjustment at the discretion of the Board or the Compensation Committee. The bonus, if any, shall be paid by March 15th of the calendar year following the calendar year for which such bonus relates. The Company also may make adjustments, at its sole discretion, in the targeted amount of the Executive’s annual incentive bonus. The target annual incentive bonus in effect at any given time is referred to herein as the “Target Bonus.”
The “Good Reason Process” consists of the following steps:
If the Company cures the Good Reason Condition during the Cure Period, Good Reason shall be deemed not to have occurred.
Executive’s authorized representative or estate) (i) any Base Salary earned through the Date of Termination; (ii) unpaid expense reimbursements (subject to, and in accordance with, Section 2(c) of this Agreement); and (iii) any vested benefits the Executive may have under any employee benefit plan of the Company through the Date of Termination, which vested benefits shall be paid and/or provided in accordance with the terms of such employee benefit plans
(collectively, the “Accrued Obligations”).
Notwithstanding anything to the contrary in this Section 5, if the Executive’s termination is a termination by the Company without Cause due to a role elimination or a reduction in force, then the requirement that the Executive be employed for at least six (6) months prior to the Date of Termination in order to be eligible for the severance pay and benefits set forth in this Section 5 shall be waived.
For the avoidance of doubt, and notwithstanding anything to the contrary in any applicable option agreement or other stock-based award agreement, if the Separation Agreement becomes effective, the unvested portions of all stock options and other stock-based awards held by the Executive that are subject solely to time-based vesting, including, without limitation, the Initial Stock Option (the “Time-Based Equity Awards”) shall not terminate or be forfeited on the Date of Termination, but rather shall be delayed until the earlier of (i) a Change in Control, at which time the Time-Based Equity Awards shall immediately accelerate and become fully vested and
exercisable or nonforfeitable pursuant to Section 6 below and/or pursuant to the applicable option agreement or other stock-based award agreement or (ii) the date immediately following the three (3) month anniversary of the Date of Termination, at which time the unvested portion of the Time-Based Equity Awards will terminate or be forfeited. If the Separation Agreement does not become effective, then the unvested portion of the Time-Based Equity Awards will terminate or be forfeited on the date that the Separation Agreement can no longer become effective. Notwithstanding the foregoing, no additional time-based vesting of the Time-Based Equity Awards shall occur following the Date of Termination.
The amounts payable under Section 5, to the extent taxable, shall be paid or commence to be paid 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 be paid or commence to be paid in the second calendar year by the last day of such 60-day period. 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 amounts payable under this Section 6(a), to the extent taxable, shall be paid or commence to be paid within 60 days after the Date of Termination or, if later, the Change in Control;
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 Code, shall be paid or commence to be paid in the second calendar year by the last day of such 60-day period.
In such event, the Aggregate Payments shall be reduced in the following order, in each case, in reverse chronological order beginning with the Aggregate Payments that are to be paid the furthest in time from consummation of the transaction that is subject to Section 280G of the Code: (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits; provided that in the case of all the foregoing Aggregate Payments all amounts or payments that are not subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c) shall be reduced before any amounts that are subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c).
in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
construed to limit the rights of the Executive under the Company’s benefit plans, programs or policies except as otherwise provided in Section 8 hereof, and except that the Executive shall have no rights to any severance benefits under any Company severance pay plan, offer letter or otherwise. Except for the Restrictive Covenants Agreement, in the event that the Executive is party to an agreement with the Company providing for payments or benefits under such plan or agreement and under this Agreement, the terms of this Agreement shall govern and the Executive may receive payment under this Agreement only and not both. Further, Section 5 and Section 6 of this Agreement are mutually exclusive and in no event shall the Executive be entitled to payments or benefits pursuant to both Section 5 and Section 6 of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective on the Effective Date.
ADAGIO THERAPEUTICS, INC.
By: /s/ Halley E. Gilbert
Its: COO
EXECUTIVE
/s/ Peter Schmidt__________________________
Peter Schmidt
Exhibit A
Restrictive Covenants Agreement