Blueprint





 







 Exhibit 10.9



EMPLOYMENT
AGREEMENT


This EMPLOYMENT AGREEMENT (this
“Agreement”), dated April
8, 2016 and effective on the date of consummation of the initial
closing of the private placement offering of the Company’s
common stock (the “Effective Date”), is by
and between ADGERO BIOPHARMACEUTICALS HOLDINGS, INC., a Delaware
corporation (the “Company”) and Steven J.
Rychnovsky (the “Executive”).


W I T N E S S E T H:


WHEREAS, the Company desires to employ
the Executive as its Vice President of Operations and Product
Development and the Executive desires to accept such employment, on
the terms and conditions set forth in this Agreement;
and


WHEREAS, the Company and the Executive
have mutually agreed that, as of the Effective Date, this Agreement
shall govern the terms of employment between the Executive 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 Executive, and the Executive 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 commencing on the
Effective Date and, subject to earlier termination as provided in
ARTICLE 4, ending
on the second (2nd) anniversary of the
Effective Date (the “Term”). In the event that
the Executive’s employment with the Company terminates, the
Company’s obligation to continue to pay, after the
Termination Date (as defined in Section 4.2(b)), 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 as may be provided for
in ARTICLE
4.


ARTICLE
2


TITLE; DUTIES AND OBLIGATIONS;
LOCATION


Section
2.1. Title. The Company shall employ
the Executive to render exclusive and full-time services to the
Company. The Executive shall serve in the capacity of Vice
President of Operations and Product Development.


Section
2.2. Duties. The Executive shall
report to the Company’s Chief Executive Officer (the
“CEO”)
and be subject to the lawful direction of the CEO. The Executive
agrees to perform to the best of his ability, experience and talent
those acts and duties, consistent with the position of Vice
President of Operations and Product Development as the CEO shall
from time to time direct. During the Term, the Executive also shall
serve in such other executive-level positions or capacities as may,
from time to time, be reasonably requested by the CEO, including,
without limitation (subject to election, appointment, re-election
or re-appointment, as applicable) as (a) a member of the Board of
Directors of the Company (the “Board”) and/or as a
member of the board of directors or similar governing body of any
of the Company’s subsidiaries or other Affiliates (as defined
below), (b) an officer of any of the Company’s subsidiaries
or other Affiliates, and/or (c) a member of any committee of the
Company and/or any of its subsidiaries or other Affiliates, in each
case, for no additional compensation. As used in this Agreement,
“Affiliate” of any
individual or entity means any other individual or entity that
directly or individual controls, is controlled by, or is under
common control with, the individual or entity.



 

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Section
2.3. Compliance with Policies, etc.
During the Term, the Executive shall be bound by, and comply fully
with, all of the Company’s policies and procedures for
employees and officers 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 Executive 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 Executive’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 Executive shall use his best efforts to promote the
interests of the Company (including its subsidiaries and other
Affiliates) and shall devote all of his business time, ability and
attention to the performance of his 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 Executive from (i)
participating in charitable, civic, educational, professional,
community or industry affairs, or (ii) managing the
Executive’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 Executive’s duties
hereunder or create a potential business or fiduciary conflict (in
each case, as determined by the Board).


Section
2.5. Location. The Executive
understands that his primary place of employment shall be the
Executive’s home office in the Washington, D.C. area;
provided,
however, that the
Executive shall also be required to perform services from time to
time at the Company’s principal office in Princeton, New
Jersey as reasonably requested by the Company’s Chief
Executive Officer, and to travel to other such places as necessary
to perform his duties hereunder.


ARTICLE
3


COMPENSATION AND
BENEFITS; EXPENSES


Section
3.1. Compensation and Benefits. For
all services rendered by the Executive 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 Executive shall be
compensated as follows (subject, in each case, to the provisions of
ARTICLE 4
below):



 

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(a)           Base
Salary. During the Term, the Company shall pay the Executive
a base salary (the “Base Salary”) at the
annualized rate of $249,000, 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 Executive’s
Base salary shall be subject to periodic adjustments as the Board
and/or the Compensation Committee of the Board (the
“Compensation
Committee”) shall in its/their discretion deem
appropriate; provided, however, that (1) following the
current private placement offering (the initial closing of which is
occurring as of the Effective Date), upon the closing of an
additional underwritten round of financing (including equity, debt
or convertible debt financing, and whether in one transaction or a
series of related transactions) with gross proceeds of at least $20
million (exclusive of proceeds from investor warrants), that
results in the listing of the Company’s shares on a major
exchange such as Nasdaq or the New York Stock Exchange if the
shares are not already so listed, the annualized rate of Base
Salary shall increase by $25,000 and (2) upon the approval of a
Company NDA, the annualized rate of Base Salary shall increase by
$75,000. As used in this Agreement, the term “Base Salary” shall refer
to Base Salary as may be adjusted from time to time.


(b)           Annual
Bonus. For each calendar year ending during the Term
(beginning with the calendar year ending December 31, 2016), the
Executive shall be eligible to receive an annual bonus (the
“Annual
Bonus”) with a target amount equal to thirty percent
(30%) of the Base Salary earned by the Executive 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 Executive’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 Executive’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 Executive’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
Executive’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 Executive to receive an Annual Bonus,
the Executive 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, upon or immediately following
the final closing of the private placement offering of the
Company’s common stock, the Executive will be granted options
to purchase up to the number of shares equal to two and one-half
percent (2.5%) of the Fully-Diluted (as defined in the Plan) 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), with a vesting schedule and
other terms and conditions to be determined by the Compensation
Committee. 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 Executive 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, in the event that Executive 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), Executive
shall receive accelerated vesting upon the Termination Date as if
the Executive had provided service to the Company for an additional
nine (9) months, and all of Executive’s outstanding vested
stock options shall remain exercisable for a period of nine (9)
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
Executive’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(d)
shall be deemed an amendment to each award agreement entered into
by the Executive evidencing a grant of stock options, whether
entered into prior to the Effective Date or during the Term (but,
in no event shall this Section 3.1(d) be deemed an
amendment to any award agreement entered into after expiration of
the Term).


 



 

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(d)           Benefit
Plans. The Executive shall be entitled to participate in all
employee benefit plans and programs (excluding severance plans, if
any) generally made available by the Company to senior 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 Executive 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 Executive
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 Executive 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 Executive in the performance of
his duties hereunder. In order to receive such reimbursement, the
Executive 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.



 

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ARTICLE
4


TERMINATION OF
EMPLOYMENT


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


(a) The Company may
terminate the Executive’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 Executive. Executive
may terminate his 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 Executive that is
intended to result in the Executive’s personal enrichment to
the detriment or at the expense of the Company or any of its
Affiliates; (ii) the Executive is convicted of a felony; (iii)
gross negligence or willful misconduct by the Executive, or failure
by the Executive to perform the duties or obligations reasonably
assigned to the Executive 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 Executive 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 Executive’s Base
Salary (other than pursuant to a reduction uniformly applicable to
all senior executives of the Company); or (3) a material diminution
in the Executive’s authority, duties or responsibilities;
provided,
however, that the
Executive must notify the Company within ninety (90) days of the
occurrence of any of the foregoing conditions that he 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 Executive fails to provide this notice and cure period prior to
his resignation, or resigns more than six (6) months after the
initial existence of the condition, his 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.


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


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


(ii) for
each outstanding stock option held by the Executive under the Plan
for which vesting is time-based, accelerated vesting upon the
Termination Date as if the Executive had provided service to the
Company for an additional six (6) months, and all of the
Executive’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:



 

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(A)                 payments
equal to the sum of six (6) months’ of the Executive’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 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; provided, however, that the Severance
Payments will cease in the event that Executive secures
substantially gainful employment from a new employer prior to the
expiration of the time such Severance Payments are to be paid (and
Executive agrees to immediately inform the Company if he becomes
employed by a new employer); and


(B)                 if
the Executive then participates in the Company’s medical
and/or dental plans and the Executive 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 Executive for the healthcare continuation
payments under COBRA actually made by the Executive 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 Executive becomes eligible to obtain
alternate healthcare coverage from a new employer (the
“COBRA
Assistance”). The Executive agrees to immediately
inform the Company if he becomes eligible to obtain alternate
healthcare coverage from a new employer. The Executive 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 he 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 Executive within thirty (30) days following the
Executive’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; Expiration of Term.


(a)   
The Company may
terminate the Executive’s employment hereunder at any time
for Cause upon written notice to the Executive. The Executive may
voluntarily terminate his 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 Executive,
to accept the Executive’s notice of resignation and to
accelerate such notice and make the Executive’s resignation
effective immediately, or on such other date prior to
Executive’s intended last day of work as the Company deems
appropriate. It is understood and agreed that the Company’s
election to accelerate Executive’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. The Executive’s employment shall automatically
terminate upon the expiration of the Term in accordance with
Section
1.2.



 

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(b)
If the
Executive’s employment is terminated pursuant to Section 4.2(a), the Executive
shall, in full discharge of all of the Company’s obligations
to the Executive, be entitled to receive, and the Company’s
sole obligation under this Agreement or otherwise shall be to pay
or provide to the Executive, the following (collectively, the
“Accrued
Obligations”):

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

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

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

(iv)
any
amounts or benefits that are vested amounts or vested benefits or
that the Executive 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 Executive, the Company may, upon
five (5) days prior notice to the Executive, terminate the
Executive’s employment under this Agreement. The
Executive’s employment shall automatically terminate upon his
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
Executive is unable to perform the essential functions of his 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
Executive’s employment is terminated pursuant to Section 4.3(a), the Executive
or the Executive’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 Executive or the
Executive’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
Executive 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
Executive is eligible for Severance Payments and COBRA Assistance
pursuant to Section
4.1, the Company will deliver the Release Agreement to the
Executive within seven (7) calendar days following the Termination
Date. The Severance Payments and COBRA Assistance are subject to
the Executive’s execution of such Release Agreement within 45
days of the Executive’s receipt of the Release Agreement and
the Executive’s non-revocation of such Release
Agreement.



 

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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 Executive breaches any of the provisions of the Covenants
Agreement, the Release Agreement or any other agreement the
Executive has with the Company.


Section
4.6. Removal from any
Boards and Position. If the Executive’s employment is
terminated for any reason under this Agreement, he 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 he 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.


ARTICLE
5


GENERAL
PROVISIONS


Section
5.1. Company
Non-Disclosure and Invention Assignment Agreement. The
Executive acknowledges and confirms that the Non-Disclosure and
Invention Assignment Agreement executed by the Executive in favor
of the Company on April 8, 2016 (“Covenants Agreement”),
the terms of which are incorporated herein by reference, remains in
full force and effect and binding upon the Executive. The Covenants
Agreement shall survive the termination of this Agreement and the
Executive’s employment by the Company for the applicable
period(s) set forth therein.


Section
5.2. Expenses. Each
of the Company and the Executive shall bear its/his 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 Executive’s employment during
the Term and activities following termination of this Agreement and
the Executive’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 Executive acknowledges and agrees
that the Company has fully satisfied, and has no further,
obligations to the Executive 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.



 

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Section
5.4. No Other
Contracts. The Executive represents and warrants to the
Company that neither the execution and delivery of this Agreement
by the Executive nor the performance by the Executive of the
Executive’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 Executive
is a party or by which the Executive is bound, nor shall the
execution and delivery of this Agreement by the Executive nor the
performance by the Executive of his duties and obligations
hereunder give rise to any claim or charge against either the
Executive, the Company or any Affiliate, based upon any other
contract or other arrangement, whether written or oral, to which
the Executive is a party or by which the Executive is bound. The
Executive further represents and warrants to the Company that he 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 Executive’s
ability to perform his obligations under this Agreement or the
Covenants Agreement, including, but not limited to, non-competition
agreements, non-solicitation agreements or confidentiality
agreements. The Executive 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 Executive in this Section 5.4.


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.


301 N.
Harrison St., Suite 9F #459


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 Executive, to:


 


Steven
J. Rychnovsky


____________________


____________________


 



 

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With
a copy to:






                                            
___________________


____________________


 


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 EXECUTIVE
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.



 

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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.


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 Executive, and the Executive shall not
assign or delegate his 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 his 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 Executive or the Executive’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 Executive 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 Executive 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
Executive 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 Executive will be solely responsible for all taxes assessed
against him 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 Executive 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 Executive’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 Executive, 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 Executive’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 Executive shall not
be considered to have terminated employment with the Company for
purposes of Section
4.1 unless the Executive 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
Executive 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 Executive, 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 Executive 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 Executive 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
Executive 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 Executive 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 Executive shall be furnished with
notice of all determinations made as to the Excise Tax payable with
respect to the Executive’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 Executive 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.



 

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Section
5.18. Recoupment of
Erroneously Awarded Compensation. Any incentive-based or
other compensation paid to the Executive 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 executive 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 he 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.


 


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
Pilkiewicz                         




Name:
Frank Pilkiewicz


Title:
President





EXECUTIVE


/s/ Steven J.
Rychnovsky                       




Steven
J. Rychnovsky





[Signature Page to Employment Agreement]

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