Exhibit 10.1


 


 


 


May 17, 2021


 


Kianoush Motesharei, Ph.D.

via email


 


Re:
Offer Letter of Employment


 


Dear Dr. Motesharei:


 


I
am very pleased to confirm our offer to you of full-time employment with NeuBase Therapeutics, Inc. (the “Company”)
in the position of Chief Business and Strategy Officer. Your effective start date will be mutually decided, but our hope is that you
are able to join the Company on May 24, 2021. You will work out of the Boston area and visit the Company’s headquarters in
Pittsburgh, PA as appropriate. The terms of our offer and the benefits currently provided by the Company are as follows:


 


1.                 
Salary. Your starting salary will be $410,000 per year, less payroll deductions and withholdings, payable in accordance
with the Company’s standard policies and procedures and will be subject to review from time to time in accordance with the Company’s
policies. You will be eligible for an annual performance bonus with a target amount equal to 40% of your base salary, provided
you remain employed by the Company on the date bonuses are paid. In addition, you will receive a signing bonus of $100,000 payable
at the start of your employment.


 


2.                 
Benefits. You will be eligible to participate in regular health insurance and other employee benefit plans established
by the Company for its employees from time to time, subject to the terms and conditions of such plans. The Company reserves the right
to change or otherwise modify, in its sole discretion, the preceding terms of employment. You will be eligible for 21 days
of paid time off each year. The Company currently has 9 paid holidays each year. Paid time-off may be taken in accordance with applicable
Company policies which may be modified from time to time.


 


3.                 
Equity. Subject to the approval of Company’s Board of Directors (the “Board”), the Company will
issue you a stock option to purchase 250,000 shares of Common Stock of the Company (the “Award”). The Award shall
vest in accordance with the following schedule: 1/4th of the total shares shall vest on the first anniversary of the effective date of
your employment, and 1/36th of the remaining shares shall vest on a monthly basis starting on the first anniversary of the effective
date of your employment; provided that vesting shall only occur on a scheduled vesting date if your employment has not terminated
prior to such vesting date, inclusive. The Award shall be issued pursuant to Company’s 2019 Stock Incentive Plan (as amended,
the “Plan”) and form of award agreement adopted by the Board for use thereunder (collectively, the “Grant
Documents”). In the event of the termination of your employment by the Company (or its successor) without Cause or by you due
to resignation for Good Reason, in either case within 12 months following a Change in Control (as defined in the Plan), then,
subject to your execution and delivery of a general release of all claims, which shall include a non- disparagement provision, in a form
to be provided by the Company (“Separation Agreement”), and such Separation Agreement becoming irrevocably effective
within 60 days of the termination of your employment, your then outstanding, unvested Award, if any, will vest and be exercisable
as to all of the covered shares. You should consult with your own tax advisor concerning the tax risks associated with accepting the
Award.


 






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4.                 
Policies; Confidentiality. As a Company employee, you will be expected to abide by Company rules, procedures and policies,
as adopted or revised from time to time, and acknowledge in writing that you have read the Company’s Employee Handbook. As an employee
of the Company, you will have access to certain confidential information of the Company and you may, during the period of time that you
are an employee of the Company, develop certain information or inventions that will be the property of the Company. To protect the interests
of the Company, you will need to sign the Company’s standard Employee Confidentiality and Invention Assignment Agreement attached
as Exhibit A (the “Confidentiality Agreement”) as a condition of your employment. We wish to impress upon
you that we do not want you to, and we hereby direct you not to, bring with you any confidential or proprietary material of any former
employer or to violate any other obligations you may have to any former employer. During the period of time that you render services
to the Company, you agree not to engage in any employment, business, or activity that is in any way competitive with the business or
proposed business of the Company. You will disclose to the Company in writing any other gainful employment, business or activity that
you are currently associated with or participate in that competes with the Company. During the period of time that you are an employee
of the Company, you will not assist any other person or organization in competing with the Company or in preparing to engage in competition
with the business or proposed business of the Company. You represent that (i) this letter, (ii) the Confidentiality Agreement,
(iii) the Grant Documents and (iv) your commencement of employment with the Company, will not violate any agreement currently
in place between yourself and current or past employers.


 


5.                  At
Will Employment. While we look forward to a long and profitable relationship, should you decide to accept our offer, you will be
an at-will employee of the Company, which means your employment relationship with the Company can be terminated by either of you or
the Company for any reason, at any time, with or without prior notice and with or without cause. Any statements or representations
to the contrary (and, indeed, any statements contradicting any provision in this letter) should be regarded by you as ineffective.
Further, your participation in any equity or benefit plan or program is not to be regarded as assuring you of continuing employment
for any particular period of time. Any modification or change in your at will employment status may only occur by way of a written
agreement signed by you and the Chief Executive Officer of the Company. Should your employment be terminated by the Company without
Cause, whether or not in connection with a change in control, subject to your execution and delivery of a Separation Agreement and
such Separation Agreement becoming irrevocably effective within 60 days following the termination of your employment
(such 60 day period, the “Release Period”), you will receive continued payment of salary
for 12 months, reimbursement of 12 months of health benefits (COBRA subsidization) in accordance with the
Company’s standard expense reimbursement procedures, and, subject to the discretion of the Company’s Board of Directors,
a prorated portion of your annual bonus target as severance paid when bonuses for the fiscal year are paid to other Company
employees but not before January 1 or after December 31 of the year following the year in which your employment terminates
(such continued base salary, COBRA subsidization, and pro-rated bonus, collectively, the “Severance”). For
purposes of this Agreement, “Cause” means: (i) your continued and willful failure to substantially perform
the material duties and obligations under this Agreement (for reasons other than death or disability), which failure, if curable
within the discretion of the Company, is not cured to the reasonable satisfaction of the Company within thirty (30) days after
receipt of written notice from the Company of such failure; (ii) your failure or refusal to comply with the policies, standards
and regulations established by the Company from time to time which failure, if curable in the discretion of the Company, is not
cured to the reasonable satisfaction of the Company within thirty (30) days after receipt of written notice of such failure
from the Company; (iii) any act of personal dishonesty, fraud, embezzlement, misrepresentation, or other unlawful act committed
by you that benefits you at the expense of the Company; (iv) your violation of a federal or state law or regulation applicable
to the Company’s business; (v) your plea of nolo contendere or guilty to, any misdemeanor involving moral turpitude or
any felony under the laws of the United States or any state; (vi) your material breach of the terms of this Agreement or the
Confidentiality Agreement; or (vii) your continued failure to take such lawful actions as directed by the Board. For purposes
of this Agreement, “Good Reason” means (i) a reduction in your base salary other than comparable reductions
applied to substantially all similarly situated employees, (ii) the relocation of your principal place of employment by more
than fifty (50) miles from the prior location, or (iii) a material diminution in your title, duties, or responsibilities; provided, however
a resignation shall be for Good Reason only if (X) you provide written notice to the Company of the potential Good Reason
trigger within thirty (30) days of the occurrence of the potential Good Reason trigger, (Y) the Company does not cure the
potential Good Reason trigger within thirty (30) days of receipt of notice, and (Z) you resign your employment within
thirty (30) days following the expiration of the Company’s 30-day cure period. Severance shall accrue until the
required Separation Agreement becomes irrevocably effective, with accrued amounts paid in full as a lump sum on the first regularly
scheduled payroll date thereafter; provided, however, that in the event the Release Period spans two calendar years,
no Severance shall be paid or provided prior to January 1 of the second calendar year. In the case of voluntary resignation or
termination for Cause, you will be subject to a 12 month non-compete in the general area of antisense oligonucleotide
therapies.


 






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6.                  Arbitration.
You and the Company agree to submit to mandatory binding arbitration any and all claims arising out of or related to your employment
with the Company and the termination thereof, including, but not limited to, claims for unpaid wages, wrongful termination, torts,
equity or phantom equity in the Company, and/or discrimination (including harassment) based upon any federal, state or local
ordinance, statute, regulation or constitutional provision except that each party may, at its or his option, seek injunctive relief
in court related to claims arising under the Confidentiality Agreement or otherwise relating to the improper use, disclosure or
misappropriation of a party’s proprietary, confidential or trade secret information. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY
MAY HAVE TO TRIAL BY JURY IN REGARD TO SUCH CLAIMS. All arbitration hearings shall be conducted in Pittsburgh, Pennsylvania. This
letter does not apply or preclude resort to government agency processes or proceedings, and does not restrict your right to file
administrative claims you may bring before any government agency where, as a matter of law, the parties may not restrict the
employee’s ability to file such claims (including, but not limited to, the National Labor Relations Board, the Equal
Employment Opportunity Commission and the Department of Labor). However, the parties agree that, to the fullest extent permitted by
law, arbitration shall be the exclusive remedy for the subject matter of such administrative claims. The arbitration shall be
conducted through JAMS before a single neutral arbitrator, in accordance with the JAMS employment arbitration rules then in effect,
a copy of which can be obtained at https://www.jamsadr.com/rules-employment-arbitration/. Except as otherwise may be required by
law, the parties to the arbitration shall share equally the JAMS fee and the arbitrator’s fee; provided, however,
that the arbitrator at the conclusion of the arbitration shall award costs and fees to the prevailing party. The arbitrator shall
issue a written decision that contains the essential findings and conclusions on which the decision is based. The Federal
Arbitration Act shall govern this section, but if for any reason the FAA is held to be inapplicable, then the law of arbitrability
of Pennsylvania shall apply.


 


7.                 
Full-Time Employee. Since you are a full-time employee, during the term of your employment you agree to devote your best
efforts to the interests of the Company and not to engage in employment that competes with or otherwise has an adverse effect on the
Company’s business or your ability to perform your services hereunder. We recognize that you are a member of the Board of Directors
of Ariana, Inc., and that this is an approved outside activity. We acknowledge and accept that you are a member of the Board of Directors
of Ariana Pharma, and there is no conflict with this activity.


 


8.                 
Electronic Communication. Company may, in its sole discretion, decide to deliver to you by email or any other electronic
means any documents or notices related to this letter, securities of the Company or any of its affiliates or any other matter, including
documents and/or notices required to be delivered to you by applicable securities law or any other law or Company’s Certificate
of Incorporation or Bylaws. You hereby consent to receive such documents and notices by such electronic delivery (including pdf or any
electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable
law) and agree to participate through any on-line or electronic system that may be established and maintained by Company or a third party
designated by Company.


 


9.                 
Entire Agreement; Applicable Law. This offer, the Confidentiality Agreement and the Grant Documents, once accepted, constitute
the entire agreement between you and the Company with respect to the subject matter hereof and thereof and supersede all prior offers,
negotiations and agreements, if any, whether written or oral, relating to such subject matter. You acknowledge that neither the Company
nor its agents have made any promise, representation or warranty whatsoever, either express or implied, written or oral, which is not
contained in this letter for the purpose of inducing you to countersign this letter, and you acknowledge that you have countersigned
this letter in reliance only upon such promises, representations and warranties as are contained herein. Except to the extent governed
by federal law, this letter will be construed and enforced according to the laws of the State of Pennsylvania, other than the choice
of law provisions thereof.


 


10.             
Taxes. The Company shall withhold taxes and other amounts from payments it makes pursuant to this letter as it reasonably
determines.


 






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11.              Section 409A.
This Agreement is intended to meet the requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(“Section 409A”), and will be interpreted and construed consistent with that intent. For purposes of this
Agreement, the terms “terminate,” “terminated” and “termination” mean a termination of your
employment that constitutes a “separation from service” within the meaning of the default rules of Section 409A.
Notwithstanding any other provision of this Agreement, to the extent that the right to any payment (including the provision of
benefits) hereunder provides for the “deferral of compensation” under Section 409A, the payment will be paid (or
provided) in accordance with the following: if you are a “Specified Employee” within the meaning of Section 409A on
the date of your termination of employment, then no such payment shall be made or commence during the period beginning on the date
of termination and ending on the date that is six (6) months following the date of termination or, if earlier, on the date of
your death. The amount of any payment that would otherwise be paid to you during this period will instead be paid on the fifteenth
(15th) day of the first calendar month following the end of the period. Furthermore, payments with respect to
reimbursements of expenses shall be made on or before the last day of the calendar year following the calendar year in which the
relevant expense is incurred. The amount of expenses eligible for reimbursement during a calendar year may not affect the expenses
eligible for reimbursement in any other calendar year.


 


12.             
Validity/Severability. The invalidity or unenforceability of any provision of this letter shall not affect the validity
or enforceability of any other provision of this letter, which shall remain in full force and effect. If any provision of this letter
is determined by any court or arbitrator of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such provision
will be enforced to the maximum extent possible given our intent hereto.


 


13.             
Acceptance. If you decide to accept our offer, please countersign the enclosed copy of this letter in the space indicated,
as well as the Confidentiality Agreement and return both documents to me. Your signatures will acknowledge that you have read and understood
and agreed to the terms and conditions of this letter and the Confidentiality Agreement. Should you have anything else that you wish
to discuss, please do not hesitate to call me.


 


14.             
Background Check. Our offer of employment is contingent upon completion of a satisfactory background check (including criminal
history) conducted in accordance with applicable law.


 


[SIGNATURE
PAGE FOLLOWS]


 






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We look forward
to the opportunity to welcome you to the Company.


 


	 	Very truly yours,
	 	 
	 	Dietrich A. Stephan, Ph.D. Chief Executive Officer
	 	 
	 	/s/ Dietrich A. Stephan




 


I have read and
understood this letter and hereby acknowledge, accept and agree to the terms as set forth above and further acknowledge that no other
commitments were made to me as part of my employment offer except as specifically set forth herein.


 


	By:	 /s/ Kianoush Motesharei, Ph.D.	 
	Employee
    Name: Kianoush Motesharei, Ph.D.	 


 


Date
signed: May 17, 2021           


 






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Exhibit A


 


Employee Proprietary Information and Invention Assignment Agreement


 








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