bdsi1030vollinsamendment






ACTIVE/105525367.3        October 21, 2020    James Vollins  202 Village Gate Drive  Chapel Hill, NC 27514    Re: First Amendment to Offer Letter    Dear Jim:     As we have discussed, this First Amendment to Offer Letter (the “Amendment”)  confirms the agreement between you and BioDelivery Sciences International, Inc. (“BDSI” or  the “Company”) to amend that certain letter agreement regarding employment between you and  BDSI dated October 25, 2018 (the “Offer Letter”).  This Amendment shall be effective on  October 19, 2020 (the “Amendment Effective Date”).  Capitalized terms not otherwise defined  herein shall have the respective meanings ascribed to such terms in the Offer Letter.      For good and valuable consideration, the receipt of which is hereby acknowledged, you  and BDSI hereby agree as follows:    1. The terms “Agreement” and “Offer Letter” as used in the Offer Letter shall have  the same meaning, and both refer to the Offer Letter.    2. The term “Company” in the Offer Letter shall mean BioDelivery Sciences  International, Inc.    3. The sentence in the Offer Letter that provides an initial base salary at the rate of  $310,000 per year is hereby amended and restated in its entirety to read as follows:    “Commencing on the Amendment Effective Date, you will be paid an  initial annual base salary at the rate of $375,000 per year.”    4. The paragraph in the Offer Letter that provides for an annual bonus target of 40%  of annual base salary is hereby amended and restated in its entirety to read as follows:    “Commencing on the Amendment Effective Date, your annual bonus  target will be 45% of annual base salary, provided the actual bonus amount will  be in the discretion of the CEO.  For the avoidance of doubt, any annual bonus  related to work performed in calendar year 2020 will be based on the annual  bonus target of 45% of the annual base salary in effect on the Amendment  Effective Date.  You must be employed on the date a bonus is paid to earn any  part of a bonus.”    5. The following paragraph is hereby added to the Offer Letter following the  paragraph that discusses the annual bonus target:    





 






ACTIVE/105525367.3        “In addition to the annual bonus opportunity described above,  commencing on the Amendment Effective Date, you will be eligible to receive, in  the sole discretion of the Compensation Committee of BDSI’s Board of Directors,  i) a one-time cash bonus targeted at 45% of your annual base salary, and (ii) a  one-time option grant valued at up to $250,000 that would vest 50% immediately  upon the grant date and 50% on the first anniversary of the grant date, subject to  your continued employment at such time, in each case (i) and (ii), based on the  evaluation by the Compensation Committee of BDSI’s Board of Directors of  BDSI’s success with respect to the Specific Matter (as described on the Annex  hereto).  The strike price for the stock option shall be the 30-day VWAP  preceding the grant date.  The Compensation Committee shall determine your  eligibility for the one-time cash bonus and stock option grant within one (1)  month upon resolution of the Specific Matter.  Any stock options awarded shall  be granted on the same date of the Compensation Committee’s eligibility  determination and the cash bonus shall be paid by the Company on the  Company’s first regular payroll date after the Compensation Committee’s  eligibility determination. You must be employed on the earlier of (i) date the  Compensation Committee makes its eligibility determination, and (ii) one (1)  month from the resolution of the Specific Matter, in order to earn any part of the  bonus, and you must be employed on the date an option grant is granted in order  to receive such grant.”      6. The paragraph starting with “Your employment with BDSI will be ‘at will’” and  the paragraph that immediately follows it are amended and restated in their entirety as follows:    “Your employment with BDSI will be “at will”, which means you or  BDSI may end the employment relationship at any time and with or without  notice. However, if BDSI terminates your employment other than for “Cause” (as  defined below) or if your employment is terminated as a result of your death or  permanent disability or by you for “Good Reason” (as defined below), then  provided you (and/or your beneficiaries) enter into a release agreement in a form  provided by the Company at the time of such termination (a “Release”) and the  Release becomes effective within 60 days after the date of termination (or such  shorter period as set forth in the Release), BDSI will pay you a one-time cash  severance payment equal to 100% of your annual base salary plus the pro-rata  share of your annual bonus target for the year in which the date of termination  occurs (the “Severance Payment”). The Severance Payment will be paid within 60  days of 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 payment to  the extent it qualifies as “non-qualified deferred compensation” within the  meaning of Section 409A of the Code, shall be paid in the second calendar year  by the last day of such 60-day period.    As used herein, the term “Cause” means (i) a material breach or material  default (including, without limitation, any material dereliction of duty) by you of  any agreement between you and BDSI or your continuing failure to follow the  





 






ACTIVE/105525367.3        direction of BDSI’s Chief Executive Officer or BDSI’s Board of Directors; (ii)  your gross negligence, willful misfeasance or breach of fiduciary duty; (iii) your  commission of an act of fraud, embezzlement or any felony or crime of  dishonesty in connection with your duties with BDSI; or (iv) your conviction of a  felony or any other crime that would materially and adversely affect: (a) BDSI’s  business reputation, or (b) the performance of your duties for BDSI. In the event  of a termination of your employment for Cause, BDSI will pay your salary and  expenses reimbursable incurred through the date of termination, and thereafter  BDSI shall have no further responsibility for termination or other payments to  you.    As used herein, the term “Good Reason” means the occurrence of any of  the following in each case during your employment without your consent: (i) a  reduction in your annual base salary; (ii) a reduction in your annual target bonus  opportunity; (iii) a relocation of your principal place of employment by more than  thirty-five (35) miles; (iv) any material breach by the Company of any material  provision of this Agreement or of any other agreement between the Company and  you, including any representation, warranties or covenants set forth herein; (v) the  Company’s failure to obtain an agreement from any successor to the Company  following a Change of Control to assume and agree to perform this Agreement in  the same manner and to the same extent that the Company would be required to  perform if no succession had taken place, except where such assumption occurs  by operation of law; or (vi) a material, adverse change in your authority, duties, or  responsibilities (other than temporarily while you are physically or mentally  incapacitated or as required by applicable law).    You shall not terminate your employment for Good Reason unless you  have first provided written notice to the Company of the existence of the  circumstances providing grounds for termination for Good Reason within sixty  (60) days of the date you learn of the initial existence of such grounds and the  Company has had at least thirty (30) days from the date on which such notice is  provided to cure such circumstances and has failed to cure such circumstances. If  you do not terminate your employment for Good Reason within ninety (90) days  after the date you learn of the first occurrence of the applicable grounds, then you  will be deemed to have waived your right to terminate for Good Reason with  respect to such grounds.    In addition, if your employment with BDSI is terminated by BDSI or its  successor without Cause or by you for Good Reason, in either case within twelve  (12) months following the occurrence of a “Change of Control” (as defined in the  Offer Letter) (a “CIC Severance Triggering Event”), then, in lieu of the Severance  Payment: (i) you will be entitled to a (A) one-time cash severance payment equal  to 100% of your then current annual base salary plus (B) a one-time cash payment  of 100% of your annual bonus target (the “CIC Severance Payment”); (ii) you  shall maintain any rights that you may have been specifically granted pursuant to  any of BDSI’s or its successor’s retirement plans, supplementary retirement plans,  





 






ACTIVE/105525367.3        profit sharing and savings plans, healthcare, 401(k) and any other employee  benefit plans sponsored by BDSI or its successor; and (iii) all unvested time-based  options, RSUs or other equity securities to acquire shares of BDSI common stock  granted to you under BDSI's 2011 and 2019 Equity Incentive Plans or any similar  plan (the “Plan”) shall immediately become fully vested and shall be exercisable  to the extent provided for in the Plan (collectively the “Change in Control  Benefits”). Following BDSI or its successor’s compliance with clauses (i), (ii) and  (iii) above, BDSI or its successor shall have no further obligations to you  following termination. In addition, as a condition to the Change in Control  Benefits you must enter into a Release and the Release must become effective  within 60 days after the date of termination (or such shorter period as set forth in  the Release). The CIC Severance Payment will be paid within 60 days of 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 payment to the extent it  qualifies as “non-qualified deferred compensation” within the meaning of Section  409A of the Code, shall be paid in the second calendar year by the last day of  such 60-day period. All such payments shall comply with Section 409A of the  Internal Revenue Code of 1986, as amended, and all regulations promulgated  thereunder.”    7. The following new paragraph shall be inserted directly above “Please note that  this offer is contingent upon”:    “Anything in this Agreement to the contrary notwithstanding, in the event that the  amount of any compensation, payment or distribution by the Company to you or  for your benefit, whether paid or payable or distributed or distributable pursuant  to the terms of this Agreement or otherwise, calculated in a manner consistent  with Section 280G of the Code, and the applicable regulations thereunder (the  “Aggregate Payments”), would be subject to the excise tax imposed by Section  4999 of the Code, then the Aggregate Payments shall be reduced (but not below  zero) so that the sum of all of the Aggregate Payments shall be $1.00 less than the  amount at which you become subject to the excise tax imposed by Section 4999  of the Code; provided that such reduction shall only occur if it would result in you  receiving a higher After Tax Amount (as defined below) than you would receive  if the Aggregate Payments were not subject to such reduction.  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).  For purposes of this paragraph, the “After Tax  Amount” means the amount of the Aggregate Payments less all federal, state, and  





 






ACTIVE/105525367.3        local income, excise and employment taxes imposed on you as a result of your  receipt of the Aggregate Payments.  For purposes of determining the After Tax  Amount, you shall be deemed to pay federal income taxes at the highest marginal  rate of federal income taxation applicable to individuals for the calendar year in  which the determination is to be made, and state and local income taxes at the  highest marginal rates of individual taxation in each applicable state and locality,  net of the maximum reduction in federal income taxes which could be obtained  from deduction of such state and local taxes. The determination as to whether a  reduction in the Aggregate Payments shall be made pursuant to this paragraph  shall be made by a nationally recognized accounting firm selected by the  Company (the “Accounting Firm”), which shall provide detailed supporting  calculations both to the Company and you within 15 business days of the date of  termination, if applicable, or at such earlier time as is reasonably requested by the  Company or you.  Any determination by the Accounting Firm shall be binding  upon the Company and you.”    8. All other provisions of the Offer Letter shall remain in full force and effect  according to their respective terms, and nothing contained herein shall be deemed a waiver of  any right or abrogation of any obligation otherwise existing under the Offer Letter except to the  extent specifically provided for herein.  For the avoidance of doubt, the Confidentiality,  Intellectual Property and Non-Competition Agreement between you and BDSI dated as of  October 12, 2018 remains in full force and effect.    9. This Amendment shall be governed by and construed in accordance with the laws  of the State of North Carolina, without regard to conflict of law principles.    10. This Amendment may be signed in two counterparts, each of which may be  delivered by facsimile or other electronic transmission and each of which shall be deemed an  original and both of which shall together constitute one agreement.    [Signature page follows] 





 






ACTIVE/105525367.3        We look forward to continuing to work with you at BDSI.  To accept the terms of this  Amendment, please sign and return it to me at your earliest convenience.        Regards,    s/s Jeff Bailey  Name: Jeff Bailey  Title: Interim CEO      First Amendment to Offer Letter accepted and agreed as of the date set forth below:      s/s James Vollins  James Vollins      October 16, 2020  Date       





 






ACTIVE/105525367.3        Annex      For purposes of this Amendment and the Offer Letter, the “Specific Matter” means the  litigation filed on September 7, 2018 by, and counterclaims against, the Company for  patent infringement in the Federal District Court of Delaware in Wilmington against  Alvogen Pb Research & Development LLC, Alvogen Malta Operations Ltd., Alvogen  Pine Brook LLC, Alvogen, Incorporated, and Alvogen Group, Incorporated (collectively,  “Alvogen”), asserting that Alvogen infringes the Company’s Orange Book listed patents  for BELBUCA®, including U.S. Patent Nos. 8,147,866 and 9,655,843, both expiring in  July of 2027, and U.S. Patent No. 9,901,539, expiring in December of 2032.     For purposes of this Amendment and the Offer Letter, the resolution of the Specific Matter shall  have occurred upon the earliest to occur of (i) the settlement of the pending  litigation, (ii) the  date of the trial court’s decision concerning the validity of the BELBUCA Orange Book Patents,  (iii) the dismissal, with prejudice, of the litigation, and (iv) any other resolution of the Specific  Matter as determined by the Compensation Committee.