Blueprint





  Exhibit 10.28







EMPLOYMENT
AGREEMENT


This EMPLOYMENT AGREEMENT (this
“Agreement”), dated as of
February 13, 2017 is by and between ADGERO BIOPHARMACEUTICALS
HOLDINGS, INC., a Delaware corporation (the “Company”) and Jane M.
Maida (the “Employee”).


W I T N E S S E T H:


WHEREAS, the Company desires to employ
the Employee as its Chief Financial Officer and Vice President of
Finance and the Employee desires to accept such employment, on the
terms and conditions set forth in this Agreement; and


WHEREAS, the Company and the Employee
have mutually agreed that, as of the Start Date (as defined below),
this Agreement shall govern the terms of employment between the
Employee and the Company.


NOW, THEREFORE, in consideration of the
promises and the mutual covenants and agreements contained herein
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as
follows:

ARTICLE
1


Employment; TERM OF
AGREEMENT


Section
1.1. Employment and Acceptance.
During the Term (as defined in Section 1.2), the Company shall
employ the Employee, and the Employee shall accept such employment
and serve the Company, in each case, subject to the terms and
conditions of this Agreement.


Section
1.2. Term. The employment
relationship hereunder shall be for the period (such period of the
employment relationship shall be referred to herein as the
“Term”)
commencing on February 13, 2017, or such earlier date as mutually
agreed to in writing by the Company and the Employee (the
“Start
Date”) and ending upon the termination of the
Employee’s employment hereunder by either party hereto
pursuant to the terms of Section 4.1, Section 4.2, or Section 4.3. In the event that
the Employee’s employment with the Company hereunder
terminates, the Company’s obligation to continue to pay,
after the Termination Date (as defined in Section 4.2(a)), Base Salary
(as defined in Section
3.1(a)), Annual Bonus (as defined in Section 3.1(b)) and other
unaccrued benefits shall terminate, except to the extent provided
for in ARTICLE
4.

ARTICLE
2


TITLE; DUTIES AND OBLIGATIONS;
LOCATION

Section
2.1. Title. The Company shall employ
the Employee to render exclusive and full-time services to the
Company. The Employee shall serve in the capacity of Chief
Financial Officer and Vice President of Finance.



 







 






Section
2.2. Duties. The Employee shall
report to the Company’s Chief Executive Officer (the
“CEO”)
and be subject to the lawful direction of the CEO. The Employee
agrees to perform to the best of her ability, experience and talent
those acts and duties, consistent with the position of Chief
Financial Officer and Vice President of Finance as the CEO shall
from time to time direct.


Section
2.3. Compliance with Policies, etc.
During the Term, the Employee shall be bound by, and comply fully
with, all of the Company’s policies and procedures for
employees in place from time to time, including, but not limited
to, all terms and conditions set forth in the Company’s
employee handbook, compliance manual, codes of conduct and any
other memoranda and communications applicable to the Employee
pertaining to the policies, procedures, rules and regulations, as
currently in effect and as may be amended from time to time. These
policies and procedures include, among other things and without
limitation, the Employee’s obligations to comply with the
Company’s rules regarding confidential and proprietary
information and trade secrets.


Section
2.4. Time Commitment. During the
Term, the Employee shall use her best efforts to promote the
interests of the Company (including its subsidiaries and other
Affiliates) and shall devote all of her business time, ability and
attention to the performance of her duties for the Company. and
shall not, directly or indirectly, render any services to any other
person or organization, whether for compensation or otherwise,
except (with the Board’s prior written consent, provided that
the foregoing shall not prevent the Employee from (i) participating
in charitable, civic, educational, professional, community or
industry affairs, or (ii) managing the Employee’s passive
personal investments, so long as, in each case, such activities
individually or in the aggregate do not materially interfere or
conflict with the Employee’s duties hereunder or create a
potential business or fiduciary conflict (in each case, as
determined by the Board).


Section
2.5. Location. The Employee’s
principal place of business for the performance of her duties under
this Agreement shall be at the principal executive office of the
Company located at 4365 US Route 1 South, Suite 211, Princeton, New
Jersey 08540, as of the Start Date. The Employee shall travel as
determined necessary to perform her duties hereunder by the
CEO.

ARTICLE
3


COMPENSATION AND
BENEFITS; EXPENSES


Section
3.1. Compensation and Benefits. For
all services rendered by the Employee in any capacity during the
Term (including, without limitation, serving as an officer,
director or member of any committee of the Company or any of its
subsidiaries or other Affiliates), the Employee shall be
compensated as follows (subject, in each case, to the provisions of
ARTICLE 4
below):


(a)           Base
Salary. During the Term, the Company shall pay the Employee
a base salary (the “Base Salary”) at the
annualized rate of $275,000, which shall be subject to customary
withholdings and authorized deductions and be payable in equal
installments in accordance with the Company’s customary
payroll practices in place from time to time. The Employee’s
Base Salary and title shall be subject to, on an annual basis
beginning in January 2018, periodic review and adjustments as the
Board and/or the Compensation Committee of the Board (the
“Compensation
Committee”) shall in its/their discretion deem
appropriate.



 

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(b)           Annual
Bonus. For each calendar year ending during the Term
(beginning with the calendar year ending December 31, 2017), the
Employee shall be eligible to receive an annual bonus (the
“Annual
Bonus”) with a target amount equal to thirty five
percent (35%) of the Base Salary earned by the Employee for such
calendar year (the “Target Annual Bonus”).
The actual amount of each Annual Bonus will be based upon the level
of achievement of the Company’s corporate objectives and the
Employee’s individual objectives, in each case, as
established by the Board or the Compensation Committee (taking into
account the input of the CEO with respect to the establishment of
the Employee’s individual objectives) for the calendar year
with respect to which such Annual Bonus relates. The determination
of the level of achievement of the corporate objectives and the
Employee’s individual performance objectives for a year shall
be made by the Board or the Compensation Committee (taking into
account the input of the CEO with respect to the establishment of
the Employee’s individual objectives), in its reasonable
discretion. Each Annual Bonus for a calendar year, to the extent
earned, will be paid in a lump sum in the following calendar year,
within the first 75 days of such following year. The Annual Bonus
shall not be deemed earned until the date that it is paid.
Accordingly, in order for the Employee to receive an Annual Bonus,
the Employee must be actively employed by the Company at the time
of such payment.


 


(c)           Equity
Compensation. Subject to the terms of the Company’s
2016 Equity Incentive Plan (the “Plan”) and approval of
the Board or Compensation Committee, at the next regular meeting of
the Board or the Compensation Committee on or following the Start
Date, the Employee will be granted options to purchase up to
100,000 shares of the Company’s common stock, on the terms
and conditions determined by the Board or the Compensation
Committee, with an exercise price of $5.00 per share (provided that
the Board or the Compensation Committee determines that such
exercise price represents no less than fair market value per share
on the date of grant in accordance with the Plan). The shares subject to the option shall vest
in three (3) equal annual installments, beginning on the first
anniversary of the date of grant, and continuing on each of the
second and third anniversaries, provided that the Employee remains
employed by or remains a service provider to, the Company through
each applicable vesting date. During the Term, subject to the terms
and conditions established within the Plan or any successor equity
compensation plan as may be in place from time to time and separate
award agreements, the Employee also shall be eligible to receive
from time to time stock options, stock unit awards, performance
shares, performance units, incentive bonus awards, other cash-based
awards and/or other stock-based awards (as permitted by the Plan),
in amounts, if any, to be approved by the Board or the Compensation
Committee in its discretion. Notwithstanding anything in the Plan
to the contrary, if (i) the Termination Date occurs at least six
(6) months after the Start Date and (ii) the Employee is terminated
without Cause (as defined in Section 4.1(b)) or resigns with Good
Reason (as defined in Section 4.1(c)) within twenty-four (24)
months following a Change in Control (as defined in Section 5.19),
in lieu of the application of Section 4.1(d)(ii), the Employee
shall receive accelerated vesting of all unvested options upon the
Termination Date and all of the Employee’s outstanding vested
stock options shall remain exercisable for a period of six (6)
months, measured from the Termination Date (but in no event later
than the expiration date of their term); provided, however, that in the event
stock options under the Plan are cancelled or otherwise terminated
pursuant to the Plan in connection with such Change in Control, the
Employee’s stock options may be cancelled or otherwise
terminated, as applicable, on terms no less favorable than those
provided to other similarly situated option holders. This
Section 3.1(c)
shall be deemed an amendment to each award agreement entered into
by the Employee evidencing a grant of stock options, whether
entered into prior to the Start Date or during the Term (but, in no
event shall this Section
3.1(c) be deemed an amendment to any award agreement entered
into after expiration of the Term).


 



 

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(d)           Benefit
Plans. The Employee shall be entitled to participate in all
employee benefit plans and programs (excluding severance plans, if
any) generally made available by the Company to executives of the
Company, to the extent permissible under the general terms and
provisions of such plans or programs and in accordance with the
provisions thereof. The Company may amend, modify or rescind any
employee benefit plan or program and/or change employee
contribution amounts to benefit costs without notice in its
discretion.


 


(e)           Paid
Vacation. The Employee shall be entitled to paid vacation
days in accordance with the Company’s vacation policies in
effect from time to time for its executive team; provided, however, that the Employee
shall be entitled to no less than fifteen (15) paid vacation days
per calendar year during the Term.


 


Section
3.2. Expense
Reimbursement. The Company shall reimburse the Employee
during the Term, in accordance with the Company’s expense
reimbursement policies in place from time to time, for all
reasonable out-of-pocket business expenses incurred by the Employee
in the performance of her duties hereunder. In order to receive
such reimbursement, the Employee shall furnish to the Company
documentary evidence of each such expense in the form required to
comply with the Company’s policies in place from time to
time.

ARTICLE
4


TERMINATION OF
EMPLOYMENT

Section 4.1.
Termination Without Cause
or Resignation for Good Reason.

(a) The Company may
terminate the Employee’s employment hereunder at any time
without Cause (other than by reason of death or Disability) upon
sixty (60) days prior written notice to the Employee. Employee may
terminate her employment hereunder for Good Reason upon written
notice to the Company in accordance with the provisions set forth
in Section
4.1(c).

(b) As used in this
Agreement, “Cause” means: (i) a
material act, or act of fraud, committed by the Employee that is
intended to result in the Employee’s personal enrichment to
the detriment or at the expense of the Company or any of its
Affiliates; (ii) the Employee is convicted of a felony; (iii) gross
negligence or willful misconduct by the Employee, or failure by the
Employee to perform the duties or obligations reasonably assigned
to the Employee by the CEO (or the Board) from time to time, which
is not cured upon ten (10) days prior written notice (unless such
negligence, misconduct or failure is not susceptible to cure, as
determined in the reasonable discretion of the Board); or (iv) the
Employee violates the Covenants Agreement (as defined in
Section 5.1
below).

(c) As used in this
Agreement, “Good
Reason” means the occurrence of any of the following:
(1) a material breach by the Company of the terms of this
Agreement; (2) a material reduction in the Employee’s Base
Salary (other than pursuant to a reduction uniformly applicable to
all executives of the Company); or (3) a material diminution in the
Employee’s authority, duties or responsibilities;
provided,
however, that the
Employee must notify the Company within ninety (90) days of the
occurrence of any of the foregoing conditions that she considers it
to be a “Good Reason” condition and provide the Company
with at least thirty (30) days in which to cure the condition. If
the Employee fails to provide this notice and cure period prior to
her resignation, or resigns more than six (6) months after the
initial existence of the condition, her resignation will not be
deemed to be for “Good Reason.” It is an express
condition of this Agreement that an acquiring entity in a Change in
Control assume this Agreement; if this Agreement is not so assumed,
it shall constitute a material breach of the terms of the
Agreement.



 

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(d) If the
Employee’s employment is terminated pursuant to Section 4.1(a), the Employee
shall, in full discharge of all of the Company’s obligations
to the Employee, be entitled to receive, and the Company’s
sole obligation to the Employee under this Agreement or otherwise
shall be to pay or provide to the Employee, the
following:

(i)     
the Accrued
Obligations (as defined in Section 4.2(b));

(ii) if
the Termination Date occurs at least six (6) months after the Start
Date during which period the Employee performed continuous service
for the Company, and the Company determines in its sole discretion
that the Employee’s performance was satisfactory, for each
outstanding stock option held by the Employee under the Plan for
which vesting is time-based, accelerated vesting upon the
Termination Date as if the Employee had provided service to the
Company for an additional three (3) months (i.e., if there is annual vesting, stock
options representing one-fourth (three months out of twelve) of the
stock options that would have vested on the next annual vesting
date will vest on the Termination Date), and all of the
Employee’s outstanding vested stock options shall remain
exercisable for a period of six (6) months, measured from the
Termination Date (but in no event later than the expiration date of
their term); and

(iii) subject
to Section 4.4 and
Section 4.5, if the
Termination Date occurs at least six (6) months after the Start
Date during which period the Employee performed continuous service
for the Company, and the Company determines in its sole discretion
that the Employee’s performance was
satisfactory:


(A) the
Employee will be eligible to receive payments equal to the sum of
six (6) months’ of the Employee’s Base Salary at the
rate in effect immediately prior to the Termination Date (provided
that if such salary has been reduced, the pre-reduction Base Salary
(less applicable withholdings and authorized deductions) (the
“Severance
Payments”) to be paid (subject to Section 5.16) in equal
installments bimonthly (for clarity, two times per month) in
accordance with the Company’s regular payroll practices,
commencing on the next regular payroll date that occurs on or after
the sixtieth (60th) day following the Termination Date;
and



 

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(B) if
the Employee then participates in the Company’s medical
and/or dental plans and the Employee timely elects to continue and
maintain group health plan coverage pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”), then the Company
shall reimburse the Employee for the healthcare continuation
payments under COBRA actually made by the Employee for the coverage
period beginning on the day following the Termination Date and
ending on the earlier
of: (A) the six (6) month anniversary of the Termination
Date; and (B) the date the Employee becomes eligible to obtain
alternate healthcare coverage from a new employer (the
“COBRA
Assistance”). The Employee agrees to immediately
inform the Company if she becomes eligible to obtain alternate
healthcare coverage from a new employer. The Employee also agrees
to remit to the Company on a monthly basis and within thirty (30)
days of the date of payment, paid invoices for each such monthly
COBRA premium for which she seeks reimbursement pursuant to this
Section
4.1(d)(iii)(B) and such reimbursement (to the extent
required pursuant to this Section 4.1(d)(iii)(B)) shall
be made to the Employee within thirty (30) days following the
Employee’s delivery to the Company of each such invoice.
Notwithstanding anything set forth in this Section 4.1(d)(iii)(B), if and
to the extent that the Company may not provide such COBRA
Assistance without incurring tax penalties or violating any
requirement of the law, the Company shall use its commercially
reasonable best efforts to provide substantially similar assistance
in an alternative manner provided that the cost of doing so does
not exceed the cost that the Company would have incurred had the
COBRA Assistance been provided in the manner described above or
cause a violation of Section 409A (as defined in Section 5.16).


Section
4.2.   Termination for Cause; Voluntary
Termination. The Company may terminate the Employee’s
employment hereunder at any time for Cause upon written notice to
the Employee. The Employee may voluntarily terminate her employment
hereunder at any time without Good Reason upon sixty (60) days
prior written notice to the Company; provided, however, the Company
reserves the right, upon written notice to the Employee, to accept
the Employee’s notice of resignation and to accelerate such
notice and make the Employee’s resignation effective
immediately, or on such other date prior to Employee’s
intended last day of work as the Company deems appropriate. It is
understood and agreed that the Company’s election to
accelerate Employee’s notice of resignation shall not be
deemed a termination by the Company without Cause for purposes of
Section 4.1 of this Agreement or otherwise or constitute Good
Reason (as defined in Section 4.1) for purposes of Section 4.1 of
this Agreement or otherwise. If the Employee’s employment is
terminated pursuant to Section 4.2, the Employee shall, in full
discharge of all of the Company’s obligations to the
Employee, be entitled to receive, and the Company’s sole
obligation under this Agreement or otherwise shall be to pay or
provide to the Employee, the following (collectively, the
“Accrued
Obligations”):


(a)    
the Employee’s earned, but unpaid, Base Salary through the
final date of the Employee’s employment by the Company (the
“Termination
Date”), payable in accordance with the Company’s
standard payroll practices;


(b)    
the Employee’s accrued, but unused, vacation (in accordance
with the Company’s policies);


(c)    
expenses reimbursable under Section 3.2 above incurred on
or prior to the Termination Date but not yet reimbursed;
and



 

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(d)    
any amounts or benefits that are vested amounts or vested benefits
or that the Employee is otherwise entitled to receive under any
Company plan, program, policy or practice (with the exception of
those, if any, relating to severance) on the Termination Date, in
accordance with such plan, program, policy, or
practice.



Section
4.3. 

Termination Resulting from Death or
Disability.





(a)   
As the result of any Disability suffered by the Employee, the
Company may, upon five (5) days prior notice to the Employee,
terminate the Employee’s employment under this Agreement. The
Employee’s employment shall automatically terminate upon her
death.

(b) “Disability” means a
determination by the Company in accordance with applicable law that
as a result of a physical or mental injury or illness, the Employee
has been unable to perform the essential functions of her job with
or without reasonable accommodation for a period of (i) ninety (90)
consecutive days; or (ii) one hundred twenty (120) days during any
twelve (12) month period.

(c) If the
Employee’s employment is terminated pursuant to Section 4.3(a), the Employee or
the Employee’s estate, as the case may be, shall be entitled
to receive, and the Company’s sole obligation under this
Agreement or otherwise shall be to pay or provide to the Employee
or the Employee’s estate, as the case may be, the Accrued
Obligations.


Section
4.4.       Release Agreement. In order to
receive the Severance Payments or the COBRA Assistance set forth in
Section 4.1 (if
eligible), the Employee must timely execute (and not revoke) a
separation agreement and general release (the “Release Agreement”) in a
customary form as is determined to be reasonably necessary by the
Company in its good faith and reasonable discretion. If the
Employee is eligible for Severance Payments and COBRA Assistance
pursuant to Section
4.1, the Company will deliver the Release Agreement to the
Employee within seven (7) calendar days following the Termination
Date. The Severance Payments and COBRA Assistance are subject to
the Employee’s execution of such Release Agreement within 45
days of the Employee’s receipt of the Release Agreement and
the Employee’s non-revocation of such Release
Agreement.


Section
4.5.       Post-Termination Breach.
Notwithstanding anything to the contrary contained in this
Agreement, the Company’s obligations to provide the Severance
Payments and the COBRA Assistance will immediately cease if the
Employee breaches any of the provisions of the Covenants Agreement,
the Release Agreement or any other agreement the Employee has with
the Company.


Section
4.6.       Removal from any Boards and
Position. If the Employee’s employment is terminated
for any reason under this Agreement, she shall be deemed (without
further action, deed or notice) to resign (i) if a member, from the
Board or board of directors (or similar governing body) of any
Affiliate of the Company or any other board to which she has been
appointed or nominated by or on behalf of the Company and (ii) from
all other positions with the Company or any subsidiary or other
Affiliate of the Company, including, but not limited to, as an
officer of the Company and any of its subsidiaries or other
Affiliates.



 

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ARTICLE
5


GENERAL
PROVISIONS


Section
5.1.  Company
Non-Disclosure and Invention Assignment Agreement. The
Employee acknowledges and confirms that the Non-Disclosure and
Invention Assignment Agreement executed by the Employee in favor of
the Company in January, 2017 (“Covenants Agreement”),
the terms of which are incorporated herein by reference, remains in
full force and effect and binding upon the Employee. The Covenants
Agreement shall survive the termination of this Agreement and the
Employee’s employment by the Company for the applicable
period(s) set forth therein.


Section
5.2.  Expenses. Each of the Company
and the Employee shall bear its/her own costs, fees and expenses in
connection with the negotiation, preparation and execution of this
Agreement.


Section
5.3.  Entire
Agreement. This Agreement and the Covenants Agreement
contain the entire agreement of the parties hereto with respect to
the terms and conditions of the Employee’s employment during
the Term and activities following termination of this Agreement and
the Employee’s employment with the Company and supersede any
and all prior agreements and understandings, whether written or
oral, between the parties hereto with respect to the subject matter
of this Agreement or the Covenants Agreement. Each party hereto
acknowledges that no representations, inducements, promises or
agreements, whether oral or in writing, have been made by any
party, or on behalf of any party, which are not embodied herein or
in the Covenants Agreement. The Employee acknowledges and agrees
that the Company has fully satisfied, and has no further,
obligations to the Employee arising under, or relating to, any
other employment or consulting arrangement or understanding
(including, without limitation, any claims for compensation or
benefits of any kind) or otherwise. No agreement, promise or
statement not contained in this Agreement or the Covenants
Agreement shall be valid and binding, unless agreed to in writing
and signed by the parties sought to be bound thereby.


Section
5.4.  No Other
Contracts. The Employee represents and warrants to the
Company that neither the execution and delivery of this Agreement
by the Employee nor the performance by the Employee of the
Employee’s obligations hereunder, shall constitute a default
under or a breach of the terms of any other agreement, contract or
other arrangement, whether written or oral, to which the Employee
is a party or by which the Employee is bound, nor shall the
execution and delivery of this Agreement by the Employee nor the
performance by the Employee of her duties and obligations hereunder
give rise to any claim or charge against either the Employee, the
Company or any Affiliate, based upon any other contract or other
arrangement, whether written or oral, to which the Employee is a
party or by which the Employee is bound. As a condition of her
employment hereunder, the Employee shall provide to the Company a
written acknowledgement from Signum Biosciences, Inc., Signum
Dermalogix, Inc. and Signum Nutralogix, Inc. (collectively,
“Signum”) attesting (i) to
waiver of the ninety (90) day notice period for resignation under
Employee’s employment agreement with Signum, dated as of
September 28, 2016 (the “Signum Employment
Agreement”), and (ii) that Signum is not in direct
competition with the Company and the Employee’s employment
with the Company would not violate Employee’s non-compete
under the Signum Employment Agreement (the “Waiver”). If the Employee
is unable to provide the Company with the Waiver prior to the Start
Date, this Agreement shall be null and void ab infinito. The Employee further
represents and warrants to the Company that she is not a party to
or subject to any restrictive covenants, legal restrictions or
other agreement, contract or arrangement, whether written or oral,
in favor of any entity or person which would in any way preclude,
inhibit, impair or limit the Employee’s ability to perform
her obligations under this Agreement or the Covenants Agreement,
including, but not limited to, non-competition agreements,
non-solicitation agreements or confidentiality agreements. The
Employee shall defend, indemnify and hold the Company harmless from
and against all claims, actions, losses, liabilities, damages,
costs and expenses (including reasonable attorney’s fees and
amounts paid in settlement in good faith) arising from or relating
to any breach of the representations and warranties made by the
Employee in this Section
5.4.



 

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Section
5.5.  Notices.
Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally or sent by
nationally recognized overnight courier service (with next business
day delivery requested). Any such notice or communication shall be
deemed given and effective, in the case of personal delivery, upon
receipt by the other party, and in the case of a courier service,
upon the next business day, after dispatch of the notice or
communication. Any such notice or communication shall be addressed
as follows:


If
to the Company, to:


 


Adgero
Biopharmaceuticals Holdings, Inc.


4365 US
Route 1 South


Suite
211


Princeton, NJ
08540


Attn:
Chief Executive Officer


 


With
a copy to:


Lowenstein Sandler
LLP


1251
Avenue of the Americas


New
York, New York 10020


Attn:
Michael J. Lerner, Esq.


 


If
to the Employee, to:


 


Jane M.
Maida



238 Grandview Road


Skillman, NJ
08558


 


 


With
a copy to:



                                 

___________________






____________________


 



 

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Any
person named above may designate another address or fax number by
giving notice in accordance with this Section to the other persons
named above.


Section
5.6. Governing Law;
Jurisdiction. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New Jersey,
without regard to principles of conflicts of law. Any and all
actions arising out of this Agreement or Employee’s
employment by Company or termination therefrom shall be brought and
heard in the state and federal courts of the State of New Jersey
and the parties hereto hereby irrevocably submit to the exclusive
jurisdiction of any such courts. THE COMPANY AND THE EMPLOYEE
HEREBY WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY JURY IN ANY ACTION
CONCERNING THIS AGREEMENT OR ANY AND ALL MATTERS ARISING DIRECTLY
OR INDIRECTLY HEREFROM AND REPRESENT THAT THEY HAVE CONSULTED WITH
COUNSEL OF THEIR CHOICE OR HAVE CHOSEN VOLUNTARILY NOT TO DO SO
SPECIFICALLY WITH RESPECT TO THIS WAIVER.


Section
5.7. Waiver. Either
party hereto may waive compliance by the other party with any
provision of this Agreement. The failure of a party to insist on
strict adherence to any term of this Agreement on any occasion
shall not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any
other term of this Agreement. No waiver of any provision shall be
construed as a waiver of any other provision. Any waiver must be in
writing.


Section
5.8. Severability.
If any one or more of the terms, provisions, covenants and
restrictions of this Agreement shall be determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated and the parties will
attempt to agree upon a valid and enforceable provision which shall
be a reasonable substitute for such invalid and unenforceable
provision in light of the tenor of this Agreement, and, upon so
agreeing, shall incorporate such substitute provision in this
Agreement. In addition, if any one or more of the provisions
contained in this Agreement shall for any reason be determined by a
court of competent jurisdiction to be excessively broad as to
duration, geographical scope, activity or subject, it shall be
construed, by limiting or reducing it, so as to be enforceable to
the extent compatible with then applicable law.


Section
5.9. Counterparts.
This Agreement may be executed in any number of counterparts and
each such duplicate counterpart shall constitute an original, any
one of which may be introduced in evidence or used for any other
purpose without the production of its duplicate counterpart.
Moreover, notwithstanding that any of the parties did not execute
the same counterpart, each counterpart shall be deemed for all
purposes to be an original, and all such counterparts shall
constitute one and the same instrument, binding on all of the
parties hereto.


Section
5.10. Advice of
Counsel. This Agreement was prepared by Lowenstein Sandler
LLP in its capacity as legal counsel to the Company. Both parties
hereto acknowledge that they have had the opportunity to seek and
obtain the advice of counsel before entering into this Agreement
and have done so to the extent desired, and have fully read the
Agreement and understand the meaning and import of all the terms
hereof.



 

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Section
5.11. Assignment.
This Agreement shall inure to the benefit of the Company and its
successors and assigns (including, without limitation, the
purchaser of all or substantially all of its assets) and shall be
binding upon the Company and its successors and assigns. This
Agreement is personal to the Employee, and the Employee shall not
assign or delegate her rights or duties under this Agreement, and
any such assignment or delegation shall be null and
void.


Section
5.12. Agreement to Take
Actions. Each party to this Agreement shall execute and
deliver such documents, certificates, agreements and other
instruments, and shall take all other actions, as may be reasonably
necessary or desirable in order to perform their or its obligations
under this Agreement.


Section
5.13. No
Attachment. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge,
pledge, or hypothecation or to execution, attachment, levy or
similar process or assignment by operation of law, and any attempt,
voluntary or involuntary, to effect any such action shall be null,
void and of no effect; provided, however, that nothing in this Section 5.13 shall preclude the
assumption of such rights by executors, administrators or other
legal representatives of the Employee or the Employee’s
estate and their assigning any rights hereunder to the person or
persons entitled thereto.


Section
5.14. Source of
Payment. Except as otherwise provided under the terms of any
applicable employee benefit plan, all payments provided for under
this Agreement shall be paid in cash from the general funds of
Company. The Company shall not be required to establish a special
or separate fund or other segregation of assets to assure such
payments, and, if the Company shall make any investments to aid it
in meeting its obligations hereunder, the Employee shall have no
right, title or interest whatever in or to any such investments
except as may otherwise be expressly provided in a separate written
instrument relating to such investments. Nothing contained in this
Agreement, and no action taken pursuant to its provisions, shall
create or be construed to create a trust of any kind, or a
fiduciary relationship, between the Company and the Employee or any
other person. To the extent that any person acquires a right to
receive payments from the Company hereunder, such right, without
prejudice to rights which employees may have, shall be no greater
than the right of an unsecured creditor of the Company. The
Employee shall not look to the owners of the Company for the
satisfaction of any obligations of the Company under this
Agreement.


Section
5.15. Tax
Withholding. The Company or other payor is authorized to
withhold from any benefit provided or payment due hereunder, the
amount of withholding taxes due any federal, state or local
authority in respect of such benefit or payment and to take such
other action as may be necessary in the opinion of the Board to
satisfy all obligations for the payment of such withholding taxes.
The Employee will be solely responsible for all taxes assessed
against her with respect to the compensation and benefits described
in this Agreement, other than typical employer-paid taxes such as
FICA, and the Company makes no representations as to the tax
treatment of such compensation and benefits.



 

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Section
5.16. 409A
Compliance. All payments under this Agreement are intended
to comply with or be exempt from the requirements of Section 409A
of the Code and regulations promulgated thereunder
(“Section
409A”). As used in this Agreement, the
“Code”
means the Internal Revenue Code of 1986, as amended. To the extent
permitted under applicable regulations and/or other guidance of
general applicability issued pursuant to Section 409A, the Company
reserves the right to modify this Agreement to conform with any or
all relevant provisions regarding compensation and/or benefits so
that such compensation and benefits are exempt from the provisions
of 409A and/or otherwise comply with such provisions so as to avoid
the tax consequences set forth in Section 409A and to assure that
no payment or benefit shall be subject to an “additional
tax” under Section 409A. To the extent that any provision in
this Agreement is ambiguous as to its compliance with Section 409A,
or to the extent any provision in this Agreement must be modified
to comply with Section 409A, such provision shall be read in such a
manner so that no payment due to the Employee shall be subject to
an “additional tax” within the meaning of Section
409A(a)(1)(B) of the Code. If necessary to comply with the
restriction in Section 409A(a)(2)(B) of the Code concerning
payments to “specified employees,” any payment on
account of the Employee’s separation from service that would
otherwise be due hereunder within six (6) months after such
separation shall be delayed until the first business day of the
seventh month following the Termination Date and the first such
payment shall include the cumulative amount of any payments
(without interest) that would have been paid prior to such date if
not for such restriction. Each payment in a series of payments
hereunder shall be deemed to be a separate payment for purposes of
Section 409A. In no event may the Employee, directly or indirectly,
designate the calendar year of payment. All reimbursements provided
under this Agreement shall be made or provided in accordance with
the requirements of Section 409A, including, where applicable, the
requirement that (i) any reimbursement is for expenses incurred
during the Employee’s lifetime (or during a shorter period of
time specified in this Agreement), (ii) the amount of expenses
eligible for reimbursement during a calendar year may not affect
the expenses eligible for reimbursement in any other calendar year,
(iii) the reimbursement of an eligible expense will be made on or
before the last day of the calendar year following the year in
which the expense is incurred, and (iv) the right to reimbursement
is not subject to liquidation or exchange for another benefit.
Notwithstanding anything contained herein to the contrary, the
Employee shall not be considered to have terminated employment with
the Company for purposes of Section 4.1 unless the Employee
would be considered to have incurred a “termination of
employment” from the Company within the meaning of Treasury
Regulation §1.409A-1(h)(1)(ii). In no event whatsoever shall
the Company be liable for any additional tax, interest or penalty
that may be imposed on the Employee by Section 409A or damages for
failing to comply with Section 409A.


Section
5.17. 280G Modified
Cutback.


(a)          If
any payment, benefit or distribution of any type to or for the
benefit of the Employee, whether paid or payable, provided or to be
provided, or distributed or distributable pursuant to the terms of
this Agreement or otherwise (collectively, the “Parachute Payments”)
would subject the Employee to the excise tax imposed under Section
4999 of the Code (the “Excise Tax”), the
Parachute Payments shall be reduced so that the maximum amount of
the Parachute Payments (after reduction) shall be one dollar
($1.00) less than the amount which would cause the Parachute
Payments to be subject to the Excise Tax; provided that the
Parachute Payments shall only be reduced to the extent the
after-tax value of amounts received by the Employee after
application of the above reduction would exceed the after-tax value
of the amounts received without application of such reduction. For
this purpose, the after-tax value of an amount shall be determined
taking into account all federal, state, and local income,
employment and excise taxes applicable to such amount. Unless the
Employee shall have given prior written notice to the Company to
effectuate a reduction in the Parachute Payments if such a
reduction is required, which notice shall be consistent with the
requirements of Section 409A to avoid the imputation of any tax,
penalty or interest thereunder, then the Company shall reduce or
eliminate the Parachute Payments by first reducing or eliminating
any cash payments (with the payments to be made furthest in the
future being reduced first), then by reducing or eliminating
accelerated vesting of stock options or similar awards, and then by
reducing or eliminating any other remaining Parachute Payments;
provided, that no such reduction or elimination shall apply to any
non-qualified deferred compensation amounts (within the meaning of
Section 409A) to the extent such reduction or elimination would
accelerate or defer the timing of such payment in manner that does
not comply with Section 409A.



 

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(b)       
An initial determination as to whether (x) any of the Parachute
Payments received by the Employee in connection with the occurrence
of a change in the ownership or control of the Company or in the
ownership of a substantial portion of the assets of the Company
shall be subject to the Excise Tax, and (y) the amount of any
reduction, if any, that may be required pursuant to the previous
paragraph, shall be made by an independent accounting firm selected
by the Company (the “Accounting Firm”) prior
to the consummation of such change in the ownership or effective
control of the Company or in the ownership of a substantial portion
of the assets of the Company. The Employee shall be furnished with
notice of all determinations made as to the Excise Tax payable with
respect to the Employee’s Parachute Payments, together with
the related calculations of the Accounting Firm, promptly after
such determinations and calculations have been received by the
Company.


(c)       
For purposes of this Section 5.17, (i) no portion of
the Parachute Payments the receipt or enjoyment of which the
Employee shall have effectively waived in writing prior to the date
of payment of the Parachute Payments shall be taken into account;
(ii) no portion of the Parachute Payments shall be taken into
account which in the opinion of the Accounting Firm does not
constitute a “parachute payment” within the meaning of
Section 280G(b)(2) of the Code; (iii) the Parachute Payments shall
be reduced only to the extent necessary so that the Parachute
Payments (other than those referred to in the immediately preceding
clause (i) or (ii)) in their entirety constitute reasonable
compensation for services actually rendered within the meaning of
Section 280G(b)(4) of the Code or are otherwise not subject to
disallowance as deductions, in the opinion of the auditor or tax
counsel referred to in such clause (ii); and (iv) the value of any
non-cash benefit or any deferred payment or benefit included in the
Parachute Payments shall be determined by the Company’s
independent auditors based on Sections 280G and 4999 of the Code
and the regulations for applying those sections of the Code, or on
substantial authority within the meaning of Section 6662 of the
Code.


Section
5.18.      Recoupment of Erroneously Awarded
Compensation. Any incentive-based or other compensation paid
to the Employee under this Agreement or any other agreement or
arrangement with the Company which is subject to recovery under any
law, government regulation, stock exchange listing requirement or
any clawback policy adopted by the Company from time to time will
be subject to the deductions and clawback as may be required by
such law, government regulation, stock exchange listing requirement
or clawback policy.  In
addition, if the Employee is or becomes an executive officer
subject to the incentive compensation repayment requirements of the
Dodd-Frank Wall Street Reform and Consumer Protection Act (the
“Dodd-Frank
Act”), then if required by the Dodd-Frank Act or any
of its regulations she will enter into an amendment to this
Agreement or a separate written agreement with the Company to
comply with the Dodd-Frank Act and any of its
regulations.



 

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Section
5.19.  Certain
Definitions. As used in this Agreement, “Change in Control” means
(x) a change in ownership of the Company under clause (i) below or
(y) a change in the ownership of a substantial portion of the
assets of the Company under clause (ii) below:

(i) Change in the Ownership of the
Company. A change in the ownership of the Company shall
occur on the date that any one person, or more than one person
acting as a group (as defined in clause (iii) below), acquires
ownership of capital stock of the Company that, together with
capital stock held by such person or group, constitutes more than
50 percent of the total fair market value or total voting power of
the capital stock of the Company. However, if any one person or
more than one person acting as a group, is considered to own more
than 50 percent of the total fair market value or total voting
power of the capital stock of the Company, the acquisition of
additional capital stock by the same person or persons shall not be
considered to be a change in the ownership of the Company. An
increase in the percentage of capital stock owned by any one
person, or persons acting as a group, as a result of a transaction
in which the Company acquires capital stock in the Company in
exchange for property will be treated as an acquisition of stock
for purposes of this paragraph.

(ii)
Change in the Ownership of a
Substantial Portion of the Company’s Assets. A change
in the ownership of a substantial portion of the Company’s
assets shall occur on the date that any one person, or more than
one person acting as a group (as defined in clause (iii) below),
acquires (or has acquired during the 12-month period ending on the
date of the most recent acquisition by such person or persons)
assets from the Company that have a total gross fair market value
equal to or more than 80 percent of the total gross fair market
value of all of the assets of the Company immediately prior to such
acquisition or acquisitions. For this purpose, gross fair market
value means the value of the assets of the Company, or the value of
the assets being disposed of, determined without regard to any
liabilities associated with such assets. There is no Change in
Control under this clause (ii) when there is a transfer to an
entity that is controlled by the shareholders of the Company
immediately after the transfer, as provided below in this clause
(ii). A transfer of assets by the Company is not treated as a
change in the ownership of such assets if the assets are
transferred to (a) a shareholder of the Company (immediately before
the asset transfer) in exchange for or with respect to its capital
stock, (b) an entity, 50 percent or more of the total value or
voting power of which is owned, directly or indirectly, by the
Company, (c) a person, or more than one person acting as a group,
that owns, directly or indirectly, 50 percent or more of the total
value or voting power of all the outstanding capital stock of the
Company, or (d) an entity, at least 50 percent of the total value
or voting power of which is owned, directly or indirectly, by a
person described in clause (ii)(c) of this paragraph. For purposes
of this clause (ii), a person's status is determined immediately
after the transfer of the assets.



 

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(iii)
Persons Acting as a Group. For
purposes of clauses (i) and (ii) above, persons will not be
considered to be acting as a group solely because they purchase or
own capital stock or purchase assets of the Company at the same
time. However, persons will be considered to be acting as a group
if they are owners of a corporation that enters into a merger,
consolidation, purchase or acquisition of assets or capital stock,
or similar business transaction with the Company. If a person,
including an entity, owns stock in both corporations that enter
into a merger, consolidation, purchase or acquisition of assets or
capital stock, or similar transaction, such shareholder is
considered to be acting as a group with other shareholders in a
corporation only with respect to the ownership in that corporation
before the transaction giving rise to the change and not with
respect to the ownership interest in the other corporation. For
purposes of this paragraph, the term “corporation”
shall have the meaning assigned such term under Treasury Regulation
section 1.280G-1, Q&A-45.

(iv)
Each of clauses (i)
through (iii) above shall be construed and interpreted consistent
with the requirements of Section 409A and any Treasury Regulations
or other guidance issued thereunder.



[Signature Page Follows]


 


 


 







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IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the day and year first above
written.


	
 

	
 

COMPANY


 


ADGERO
BIOPHARMACEUTICALS


HOLDINGS,
INC.





By:_/s/Frank G.
Pilkiewicz____________________

Name: Frank G.
Pilkiewicz

Title:  
President and Chief Executive Officer





EMPLOYEE





__/s/Jane
Maida___________________________


Jane M.
Maida









 


 


 


 





[Signature Page to Employment Agreement]