Exhibit 10.1


 


 





AMENDMENT
No. 2 TO

EMPLOYMENT AGREEMENT


 


This
Amendment No. 2 to Employment Agreement dated as of April 9, 2019 (this “Amendment”) is entered
into by and between Anika Therapeutics, Inc., a Delaware corporation (the “Company”), and Joseph Darling (the
“Executive”), and relates to the Employment Agreement effective as of July 27, 2017 and amended as of March
8, 2018 (the “Agreement”), between the Company and the Executive.


 


The Board of Directors
of the Company approved certain changes to the Agreement at a regularly-scheduled meeting on January 29, 2019. The Company and
the Executive desire to amend the Agreement as set forth herein regarding such changes to the Executive’s Agreement. Section
17 of the Agreement provides that the Agreement may be modified only by a written instrument duly executed by both parties to the
Agreement.


 


Now,
Therefore, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Executive agree as follows with respect to the Agreement, all effective as of the
date hereof:


 


1.       Section
3(a) of the Agreement is amended in its entirety as follows:


 


“(a)   Base
Salary. Effective as of January 1, 2019, the Executive’s annual base salary shall be $599,500. The Executive’s
base salary shall be redetermined annually by the Board or the Compensation Committee of the Board (the “Compensation Committee”).
The base salary in effect at any given time is referred to herein as “Base Salary.” The Base Salary shall be payable
in substantially equal bi-weekly installments.”


 


2.       Section
3(b) of the Agreement is amended in its entirety as follows:


 


“(b)
 Incentive Compensation. The Executive shall be eligible to receive cash incentive compensation as approved by the Board
or the Compensation Committee from time to time in its sole discretion. Effective as of January 1, 2019, the Executive’s
target annual bonus shall be 85% percent of his Base Salary, subject to adjustment in the sole discretion of the Board or its Compensation
Committee with respect to any fiscal year after 2019.”


 


3.       Section
3(d) of the Agreement is amended in its entirety as follows:


 


“(d)   Expenses.
The Executive shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by him in performing services
hereunder during the Term, in accordance with the policies and procedures then in effect and established by the Company for its
senior executive officers. Notwithstanding the foregoing, in connection with expenses associated with performing his responsibilities
at, and/or moving his personal residence closer to, the Company’s Bedford, Massachusetts headquarters, the Company:


 


(i)       has
previously provided the Executive with expense reimbursement, in accordance with the Company’s standard expense reimbursement
practices, up to an amount of $15,000 for personal expenses and up to $50,000 and, to the extent the payment of such $50,000 results
in taxable income to the Executive (without any offsetting deduction), an amount to the Executive equal to an additional amount
such that the net after-tax proceeds to the Executive of such $50,000 and such additional amount (at the Executive’s then-current
combined state and federal marginal income tax rates, taking into account the deductibility of state and local income taxes for
federal income tax purposes) was equal to $50,000;


 






     

     




    

 


(ii)       will
pay to the Executive for each of the calendar years of 2019 and 2020 an unallocated housing allowance of $100,000 per year, which
amount for each year shall be paid in equal monthly installments during the year with payments for the months of January, February
and March 2019 to be made within ten (10) days of execution of this Amendment;


 


(iii)       will
reimburse the Executive for documented expenses incurred after January 1, 2019 for realtor fees associated with the sale of his
existing residence and for expenses incurred with moving from his current residence to a new residence closer to the Company’s
headquarters; and, to the extent the payment of any such reimbursement results in taxable income to the Executive (without any
offsetting deduction), an amount to the Executive equal to an additional amount such that the net after-tax proceeds to the Executive
of such reimbursement and such additional amount (at the Executive’s then-current combined state and federal marginal income
tax rates, taking into account the deductibility of state and local income taxes for federal income tax purposes) is equal to the
amount of the expense incurred that is being reimbursed; and


 


(iv)       shall
promptly reimburse the Executive for any cancellation fees, penalties, or similar costs incurred by the Executive associated with
a termination of his current apartment lease (including any renewals thereof) related to a Change in Control or a termination of
the Executive’s employment under the circumstances set forth in Section 5(b) or 6(a); and, to the extent the payment of any
such reimbursement results in taxable income to the Executive (without any offsetting deduction), an amount to the Executive equal
to an additional amount such that the net after-tax proceeds to the Executive of such reimbursement and such additional amount
(at the Executive’s then-current combined state and federal marginal income tax rates, taking into account the deductibility
of state and local income taxes for federal income tax purposes) is equal to the amount of the expense incurred that is being reimbursed.


 


Further, the Executive shall
be entitled to receive prompt reimbursement for up to an amount of $10,000 for reasonable legal fees and expenses incurred by the
Executive in connection with the negotiation and review of this Agreement, provided that the Executive shall no longer be
entitled to the $10,000 to which the Executive was previously entitled under the Agreement.”


 


4.       Section
5(b) of the Agreement is amended in its entirety as follows:


 


“(b)   
Termination by the Company Without Cause or by the Executive with Good Reason.  If the Executive’s employment
is terminated by the Company without Cause as provided in Section 4(d), or the Executive terminates his employment for Good Reason
as provided in Section 4(e), then the Company shall, through the Date of Termination, pay the Executive his Accrued Benefit. If
the Executive signs a general release of claims in a form and manner satisfactory to the Company (the ‘Release’) within
45 days of the receipt of the Release (which shall be provided no later than within two business days after the Date of Termination)
and does not revoke such Release during the seven-day revocation period,


 


(i)       the
Company shall pay the Executive an amount (the ‘Severance Amount’) equal to 11⁄2 times the sum of (A) the
Executive’s current Base Salary plus (B) the Executive’s target annual bonus for the fiscal year in which the
Date of Termination occurs. The Severance Amount shall be paid out in substantially equal installments in accordance with the Company’s
payroll practice over 12 months, beginning within 60 days after the Date of Termination; provided, however, that if the 60-day
period begins in one calendar year and ends in a second calendar year, the Severance Amount will commence to be paid in the second
calendar year. Solely for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the ‘Code’), each
installment payment is considered a separate payment. Notwithstanding the foregoing, if the Executive breaches any of the provisions
contained in Section 8 of this Agreement, all payments of the Severance Amount shall immediately cease; and


 






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(ii)       subject
to the Executive’s copayment of premium amounts at the active employees’ rate, the Executive may continue to participate
in the Company’s group health, dental and vision program for 18 months; provided, however, that the continuation of health
benefits under this Section shall reduce and count against the Executive’s rights under the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended (‘COBRA’); provided, however, that if the Company determines necessary to avoid any adverse
tax or other consequences for the Executive or the Company, the Company may instead pay to the Executive on a monthly basis during
the period covered by this Section 5(b)(ii) an amount equal to the difference between the applicable COBRA premium and the applicable
active employees’ rate for the coverage (plus, to the extent the payment of any such reimbursement results in taxable income
to the Executive (without any offsetting deduction), an amount to the Executive equal to an additional amount such that the net
after-tax proceeds to the Executive of such reimbursement and such additional amount (at the Executive’s then-current combined
state and federal marginal income tax rates, taking into account the deductibility of state and local income taxes for federal
income tax purposes) is equal to the amount of the expense incurred that is being reimbursed); and


 


(iii)       all
unvested stock options or other stock-based awards shall become nonforfeitable and (for stock options) exercisable as of the Date
of Termination; provided, however, that (A) for any stock option, the period to exercise after the Date of Termination shall be
18 months following the Date of Termination (not to exceed the original option expiration date); (B) for any performance-vesting
award, the award shall be earned based on actual performance results through the end of the applicable performance period and payable
at the time set forth in the award agreement as if employment had not terminated; and (C) for any such award that is determined
to be deferred compensation that is subject to the requirements of Section 409A of the Code, settlement of the vested portion of
the award shall be accelerated only to the extent permitted by Section 409A of the Code, and to the extent not permitted, settlement
shall occur at the time otherwise provided by the award agreement as if employment had not terminated. For the avoidance of any
doubt, the provisions of this Section 5(b)(iii) shall supersede the provisions contained in the applicable award agreements, provided
that the provisions of the award agreements will control to the extent such provisions are more favorable to the Executive.”


 


5.       Sections
6(a)(i)(A) and (B) of the Agreement are amended in their entirety as follows:


 


“(A)       Subject
to the signing of the Release by the Executive within 45 days of the receipt of the Release (which shall be provided no later than
two business days after the Date of Termination) and not revoking the Release during the seven-day revocation period, the Company
shall pay the Executive a lump sum in cash in an amount (the ‘Change in Control Severance Amount’) equal to two times
the sum of (I) the Executive’s current Base Salary (or the Executive’s Base Salary in effect immediately prior to the
Change in Control, if higher) plus (II) the Executive’s target annual bonus for the current fiscal year (or if higher, the
target annual bonus for the fiscal year immediately prior to the Change in Control). The Change in Control Severance Amount shall
be paid to the Executive by the 60th day after the later of the date of the Change in Control and the Date of Termination;
provided, however, that (x) if the Date of Termination occurs during the three-month period before the Change in Control, the payment
under this Section 6(a)(i)(A) shall be reduced by any payments made under Section 5(b)(i) before the date of the Change in Control;
and (y) to the extent required to comply with Section 409A of the Code, all or a portion of the payments under this Section 6(a)(i)(A)
shall be made on the schedule set forth in Section 5(b)(i) rather than in a lump sum.


 






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(B)       The
Company shall pay to the Executive in a cash lump sum by the 60th day after the later of the date of the Change in Control and
the Date of Termination, an amount equal to 24 times the excess of (I) the monthly premium payable by former employees for continued
coverage under COBRA for the same level of coverage, including dependents, provided to the Executive under the Company’s
group health benefit plans in which the Executive participates immediately prior to the Date of Termination over (II) the monthly
premium paid by active employees for the same coverage immediately prior to the Notice of Termination.”


 


6.       Section
6(a)(ii) of the Agreement is amended in its entirety as follows:


 


“(ii)   Notwithstanding
anything to the contrary in any applicable option agreement or stock-based award agreement:


 


(A)             
All stock options and other stock-based awards held by the Executive that were granted before January 29, 2019 shall immediately
accelerate and become fully exercisable or nonforfeitable as of the effective date of such Change in Control. If any such award
includes a performance-based vesting condition, vesting shall be based on the greater of assumed target performance or actual performance
measured through the date of the Change in Control; and


 


(B)             
All stock options and other stock-based awards held by the Executive that were granted on or after January 29, 2019, (x)
if assumed or continued by the successor in the Change in Control (as set forth in Section 15.2.1(b) of the Company’s 2017
Omnibus Incentive Plan, or any similar provision in any successor plan), and the Executive’s employment is terminated by
the Company without Cause as provided in Section 4(d) or the Executive terminates his employment for Good Reason as provided in
Section 4(e), in either case within 3 months prior to or 12 months after the Change in Control, shall immediately accelerate and
become fully exercisable or nonforfeitable upon the later of the Date of Termination or the effective date of the Change in Control,
and (y) if not assumed or continued by the successor in the Change in Control, shall become fully vested and exercisable upon the
effective date of the Change in Control as provided in Section 6(a)(ii)(A). In that regard, for any such award that includes a
performance-based vesting condition, vesting shall be based on the greater of assumed target performance or actual performance
measured through the date of accelerated vesting.


 


For the avoidance
of any doubt, the provisions of this Section 6(a)(ii) shall supersede the provisions contained in the applicable award agreements,
provided that the provisions of the award agreements will control to the extent such provisions are more favorable to the Executive.”


 






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7.       Section
6(c)(ii) of the Agreement is amended in its entirety as follows:


 


“the
date a majority of the members of the Board is replaced during the longer of (a) any 12-month period or (b) the period covering
two consecutive annual meetings of the Company’s stockholders, in either case by directors whose appointment or election
is not endorsed by a majority of the members of the Board before the date of the appointment or election (other than an endorsement
that occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consent by or on behalf of a person other than the Board);”


 


8.       The
following sentence is added to the end of Section 7(c) of the Agreement:


 


“To the extent
required by Section 409A of the Code, each reimbursement or in-kind benefit provided under the Agreement shall be provided in accordance
with the following: (i) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year
cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (ii) any
reimbursement of an eligible expense shall be paid to the Executive promptly after it is submitted for reimbursement, but in any
event on or before the last day of the calendar year following the calendar year in which the expense was incurred, and (iii) any
right to reimbursements or in-kind benefits under the Agreement shall not be subject to liquidation or exchange for another benefit.”


 


9.       Except
as set forth herein, the terms of the Agreement are unchanged and remain in full force and effect.


 


In
Witness Whereof, the parties hereby execute this Amendment as of the date first written above.


 





	 	Anika Therapeutics, Inc.	 
	 	 	 
	 	 	 
	 	By:	/s/ Joseph Bower	 
	 	Name:  Joseph L. Bower	 
	 	Title:  Chairman of the Board	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	Joseph Darling	 
	 	 	 
	 	 	 
	 	/s/ Joseph Darling	 







 


 


 


 


 


 


 


 





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