Exhibit 10.9


 


AEROVATE. INC.


c/o RA Capital Management


200 Berkeley Street, Boston, MA 02116


 


April 26, 2020


 


BY EMAIL


Ralph Niven


 


Dear Ralph:


 


We are pleased
to extend you this offer of employment to serve as the Chief Development Officer of Aerovate, Inc. (the “Company”)
on the terms set forth herein. This offer may be accepted by countersigning where indicated at the end of this letter agreement. For purposes
of this letter agreement, we have agreed that your start date is July 1st, 2020 (the “Start Date”).


 


Duties and Extent of Service


 


As the Company’s
Chief Development Officer, you will report to me and will have responsibility for performing those duties as are customary for, and are
consistent with, your position with the Company. You agree to abide by the rules, regulations, instructions, personnel practices and policies
of the Company and any changes therein that may be adopted from time to time by the Company. Except for vacations and absences due to
temporary illness, you will devote your full-time business efforts to the business and affairs of the Company


 


Employment at Will


 


You and
the Company understand and agree that you are an employee at-will, and that you may resign, or the Company may terminate your employment,
at any time and for any or for no reason in accordance with the termination provisions set forth further below in this letter agreement.
Nothing in this letter agreement shall be construed to alter the at-will nature of your employment, nor shall anything in this letter
agreement be construed as providing you with a definite term of employment.


 


Compensation


 


Until the termination of your employment
hereunder, in consideration for your services hereunder, we will compensate you as follows:


 


●                   
Base Salary. We will pay you, in accordance with the Company's then current payroll practices, a base salary (the
 “Base Salary”) at an annual rate of $350,000.


 


●                    Annual
Bonus. You will be eligible to receive an annual discretionary bonus in an amount up to 10% of your Base Salary for the relevant
year, pro-rated for any partial years. The determination of whether you will receive a discretionary bonus with respect to
any given fiscal year of the Company, and the amount of any such discretionary bonus, shall be determined by the Board, in its
discretion, after considering your performance and the Company’s performance for such fiscal year. If you are awarded a
discretionary bonus with respect to a given fiscal year of the Company, the Company will make payment of such discretionary bonus no
later than March 31 of the next fiscal year of the Company. If you cease being an employee of the Company for any reason prior to
the last day of a fiscal year of the Company, you shall forfeit your right to receive a discretionary bonus for such fiscal
year.


 






    


     


    

 


●                   
Equity Incentives. Subject to the approval of the Company’s Board of Directors, the Company will grant you
either a restricted stock or an option award (as you prefer) of shares of the Company’s common stock representing 1% of the Company’s
current fully-diluted capitalization (the “Granted Shares”) at the then-current fair market value. You will own 10%
of the Granted Shares on your start date with a vesting commencement date of May 1, 2020; the remaining 90% shall be subject to standard
vesting terms (25% cliff at first anniversary of your vesting commencement date and the balance monthly thereafter over the following
thirty-six months, with double-trigger acceleration). This equity grant will be the subject of further agreements between you and the
Company delineating in detail the applicable restrictions.


 


●                   
Vacation. You will be entitled to vacation in accordance with the Company’s vacation policy in effect from
time to time. Any vacation shall be taken at the reasonable and mutual convenience of the Company and you.


 


●                   
Benefits. You will also be entitled to participate in such benefits (including group medical insurance), if any,
as the Company shall make generally available from time to time to executive-level employees and in such employee benefit plans and fringe
benefits as may be offered or made available by the Company from time to time to its employees. The Board reserves the right from time
to time to change or terminate the Company’s employee benefit plans and fringe benefits. Your participation in such employee benefit
plans and fringe benefits, and the amount and nature of the benefits to which you shall be entitled thereunder or in connection therewith,
shall be subject to the terms and conditions of such employee benefit plans and fringe benefits.


 


●                   
Expenses. Upon delivery of reasonable documentation, you will be entitled to reimbursement by the Company during
the term of your employment for reasonable travel, entertainment and other business expenses incurred by you in the performance of your
duties hereunder in accordance with the policies and practices as the Company may from time to time have in effect.


 


●                   
Signing Bonus. Within ten days of your Start Date, we will pay you a signing bonus in the amount of $58,333.33.


 


Withholding Taxes


 


All payments
and benefits described in this letter agreement or that you may otherwise be entitled or eligible to receive as a result of your employment
with the Company will be subject to applicable federal, state and local tax withholdings.


 


Nondisclosure, Developments, Non-Compete and Non-Solicitation


 


Prior to commencing
your employment with the Company, you agree to sign a copy of the Company’s standard Employee Confidential Information, Invention
Assignment, Non-Compete and Non- Solicitation Agreement, attached as Exhibit A hereto (the “Proprietary Rights Agreement”).


 






    


     


    

 


No Conflicting Obligation


 


You
hereby represent and warrant that the execution and delivery of this letter agreement, the performance by you of any or all of the
terms of this letter agreement and the performance by you of your duties as an employee of the Company do not and will not breach or
contravene (i) any agreement or contract (including, without limitation, any employment or consulting agreement, any agreement not
to compete or any confidentiality or nondisclosure agreement) to which you are or may become a party on or at any time after the
Start Date or (ii) any obligation you may otherwise have under applicable law to any former employer or to any person to whom you
have provided, provide or will provide consulting services. You hereby further represent and warrant to the Company that, prior to
the date of this letter agreement, you have provided to the Company a copy of any and all potentially conflicting agreements for the
Company’s review.


 


Termination


 


You acknowledge
that the employment relationship between the Company and you is at-will, meaning that the employment relationship may be terminated by
the Company or you for any reason or for no reason. Either party may terminate your employment with the Company at any time and for any
or no reason upon thirty (30) days prior written notice; provided that the Company may terminate you for Cause at any time upon
written notice. Regardless of the reason your employment with the Company terminates, you will continue to comply with the Proprietary
Rights Agreement contemplated hereby.


 


Work Eligibility


 


You have provided
to the Company sufficient documentation to demonstrate your eligibility to work in the United States and, at the request of the Company,
shall provide any additional documentation requested by the Company to demonstrate your eligibility to work in the United States.


 


Governing Law


 


This letter agreement shall be governed
by and construed in accordance with the internal substantive laws of the Commonwealth of Massachusetts.


 


Dispute Resolution


 


To ensure
the rapid and economical resolution of disputes that may arise in connection with your employment with the Company, you and the Company
agree that any and all disputes, claims, or causes of action, in law or equity, including but not limited to statutory claims, arising
from or relating to the enforcement, breach, performance, or interpretation of this letter agreement, your employment with the Company,
or the termination of your employment from the Company, will be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16,
and to the fullest extent permitted by law, by final, binding and confidential arbitration conducted in Boston, Massachusetts by JAMS,
Inc. (“JAMS”) or its successors, under JAMS’ then applicable rules and procedures for employment disputes (which
can be found at http://www.jamsadr.com/rules-clauses/, and which will be provided to you on request); provided that the arbitrator
shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise
be permitted by law; and (b) issue a written arbitration decision including the arbitrator’s essential findings and conclusions
and a statement of the award. You and the Company shall be entitled to all rights and remedies that either would be entitled to pursue
in a court of law. Both you and the Company acknowledge that by agreeing to this arbitration procedure, you and the Company waive the
right to resolve any such dispute through a trial by jury or judge or administrative proceeding. The Company shall pay all filing fees
in excess of those which would be required if the dispute were decided in a court of law, and shall pay the arbitrator’s fee. Nothing
in this letter agreement is intended to prevent either the Company or you from obtaining injunctive relief in court to prevent irreparable
harm pending the conclusion of any such arbitration.


 






    


     


    

 


Entire Agreement; Amendment





 


This letter
agreement (together with the Proprietary Rights Agreement contemplated hereby) sets forth the sole and entire agreement and understanding
between the Company and you with respect to the specific matters contemplated and addressed hereby and thereby. No prior agreement, whether
written or oral, shall be construed to change or affect the operation of this letter agreement in accordance with its terms, and any provision
of any such prior agreement, which conflicts with or contradicts any provision of this letter agreement, is hereby revoked and superseded.
Any prior agreement, if any, you may have with the Company regarding your employment, whether written or oral, is hereby, and without
any further action on your part or the Company’s, terminated, revoked and superseded by this letter agreement. This letter agreement
may be amended or terminated only by a written instrument executed both by you and the Company.


 


We are excited
to have you on board as the Company’s Chief Development Officer. Please acknowledge your acceptance of this offer and the terms
of this letter agreement by signing below and returning a copy to me.


 


	 	Sincerely,
	 	 
	 	AEROVATE, INC.
	 	 
	 	By:	/s/ Benjamin T. Dake
	 	 	Name:	Benjamin T. Dake
	 	 	Title:	President



 


	Accepted and Agreed:	 
	 	 
	I hereby acknowledge that I have had a full and adequate opportunity to read, understand and discuss the terms and conditions contained in this letter agreement prior to signing hereunder.	 
	 	 
	/s/ Ralph Niven	 
	Ralph Niven	 
	 	 
	Date: May 1st, 2020