Exhibit



Exhibit 10.1




 



 June 21, 2017


Delivered via email
Chris Kroeger 




Dear Chris:


On behalf of OvaScience, Inc. (the “Company”), I am pleased to offer you employment with the Company.  The purpose of this letter is to summarize the terms of your employment with the Company, should you accept this offer.


1.    Employment.  


(a)     You will commence employment with the Company on June 21, 2017 (the “Start Date”), and will initially serve as the Chief Executive Officer Elect of the Company, reporting to the current Executive Chair and the Company’s Board of Directors (the “Board”).  Effective September 1, 2017, you will serve on a full-time basis as the Company’s Chief Executive Officer.  In this role, you will report to the Board, and have such duties and responsibilities as are customary for such position, and as are otherwise assigned to you from time to time by the Board. From and after September 1, 2017, you agree to devote your full business time, best efforts, skill, knowledge, attention, and energies to the advancement of the Company’s business and interests and to the performance of your duties and responsibilities as an employee of the Company.  From and after June 21, 2017, you agree not to engage in any other business activities without prior approval from the Company subject to the provisions of Section 1(c).    


(b)    The Board shall appoint you to the Board as a Class III member effective upon the date that you commence employment as the Chief Executive Officer of the Company, and the Board shall nominate you for election as a member of the Board at every shareholder meeting during your employment as the Chief Executive Officer at which your term as a director would otherwise expire. You agree to accept such appointment and to serve during all or any part of your employment as the Chief Executive Officer with the Company as a member of the Board, without any compensation therefore other than as specified herein. You agree that if your employment is terminated for any reason whatsoever, you will resign, at the Company’s request, from the Board and from any other positions you have as an officer or director of any of the Company’s direct or indirect subsidiaries 


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and any other entity affiliated with the Company in which you are serving as an officer or director at the request of the Company. 


(c)    You may serve as a member of the board of directors of up to two companies (other than the Company), and only one of such two companies may be a “public company,” which is a company with a class of securities registered under the Securities Exchange Act of 1934, and you may serve in an advisory capacity for one additional organization, provided that (i) such companies and organization do not compete with the business of the Company, (ii) such board and advisory activities, as well as your compensation for such activities, have been disclosed in writing to and approved by the Board, which approval shall not be unreasonably withheld and (iii) such service, whether individually or in the aggregate, does not materially interfere or conflict with the performance of your duties and responsibilities as an officer of the Company.


2.    Compensation.  


(a)    Base Salary. Your base salary will be $45,833.33 per month ($550,000.00 on an annualized basis), subject to applicable taxes and withholdings.  Your base salary may be reviewed yearly at the sole discretion of the Board, provided that any reduction to your base salary will not be disproportionate to the salary reductions of other exempt salaried employees and any reduction must be related to overall Company expense reduction.  Please note that the annualized amount of your salary as described above is set forth as a matter of convenience, and shall not constitute or be interpreted as an agreement by the Company to employ you for any specific period of time.  


(b)    Bonus Opportunity. You will be eligible to receive an annual discretionary bonus award of up to sixty percent (60%) of your then current base salary.  The bonus award, if any, will be determined by the Board or a Committee thereof in its sole discretion, based on achieving specific goals to be determined by the Board.  For fiscal year 2017, your annual bonus eligibility shall be prorated to reflect the portion of the year that you are employed by the Company after your start date.  To the extent that you earn any bonus hereunder, such bonus will be paid at the same time that bonuses are paid to other similarly situated Company employees, but in no event later than sixty-five (65) days following the end of the fiscal year in which it was earned.  You must be an active employee of the Company on the date on which bonuses are distributed in order to be eligible for and to be deemed as having earned any bonus award.


3.    Benefits.  You will be eligible to participate in any and all benefit programs that the Company establishes and makes available to its employees from time to time, provided you meet the specific eligibility criteria as set forth in (and subject to all provisions of) the plan documents governing those programs.  The benefits made available by the Company, and the rules, terms and conditions for participation in such benefit plans, may be changed by the Company at any time and from time to time without advance notice.


4.    Vacation.  Beginning on September 1, 2017, you will be eligible to accrue up to a maximum of twenty (20) days of paid vacation per calendar year to be taken at such times as may be approved by the Company.  The number of vacation days for which you are eligible shall accrue at the rate 


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of 1.67 days per month that you are employed during such calendar year, and shall be subject to the Company’s vacation policies and practices as in effect from time to time.   


5.    Stock Options.  


(a)    Option Grant. On the Start Date, subject to the approval of the Board (including a majority of the independent members of the Board) or Compensation Committee, the Company will grant to you a non-qualified stock option (the “Option”) for the purchase of an aggregate of 1,783,106 shares of common stock of the Company (“Common Stock”), at a price per share equal to the closing sale price of the Common Stock on the Nasdaq Global Market on the date of grant, as an inducement material to you joining the Company, pursuant to Rule 5635(c)(4) of the Nasdaq Listed Company Manual. The Option shall be subject to all terms, vesting schedules and other provisions set forth in a separate option agreement to be provided by the Company. The Option will have a term of ten (10) years except as set forth in the stock option agreement and be subject to the following vesting schedule:  (i) 1,069,864 of the shares subject to Option will vest over four (4) years: with 25% of such shares vesting on the first (1st) anniversary of your employment start date and 6.25% of such shares vesting each quarter thereafter; (ii) 356,621 of the shares subject to Option will vest over the period from your employment start date through January 31, 2022, with 25% of such shares vesting on January 31, 2019 and 6.25% of such shares vesting each quarter thereafter; and (iii) 356,621 of the shares subject to Option will vest over the period from your employment start date through January 31, 2023, with 25% of such shares vesting on January 31, 2020 and 6.25% of such shares vesting each quarter thereafter. 


(b)    Change in Control Event. Notwithstanding anything to the contrary in a stock option agreement, if a “Change in Control Event” (as defined on Exhibit A attached hereto) occurs and, within one (1) year of such Change in Control Event, your employment is terminated by the Company (or any successor) without “Cause” (as defined on Exhibit A) or by you for “Good Reason” (as defined on Exhibit A), the vesting schedule of the Option shall be accelerated in full.


(c)    Annual Equity Grants. You shall not be eligible to receive option grants as part of the Company’s annual long term incentive/performance grant program in 2018 and 2019. You may be eligible to receive future stock options grants as the Board shall deem appropriate and in its sole and absolute discretion as part of special grants and as part of the Company’s annual long term incentive/performance grant program from and after 2020.  
    
6.    Consequences of Termination without Cause or for Good Reason.  


(a)    Severance Benefits. If the Company terminates your employment without Cause or you terminate your employment for Good Reason, you shall be eligible to receive the following severance benefits: (i) severance pay in an amount equal to twelve (12) months of your base salary 


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as in effect at the time of your termination, payable in accordance with the Company’s regular payroll procedures proportionately over a twelve (12) month period following the termination of your employment (such period, the “Severance Period”); and (ii) should you be eligible for and elect to continue receiving group medical and dental insurance coverage under the Consolidated Omnibus Budget Reconciliation Act, the Company shall continue to pay on your behalf that portion of the monthly premiums (the “COBRA Premiums”) for such coverage that it pays for active and similarly situated employees receiving the same type of coverage, through the earlier of (A) the last day of the Severance Period, or (B) the date that you become eligible for group health and/or dental insurance coverage from any new employer.   The COBRA Premiums will be subject to imputed income treatment to the extent necessary under applicable law in order to maintain the tax-qualified status of insurance premiums for other employees or former employees of the Company.  


(b)    Release. No severance pay or other benefit under Section 6(a) shall be provided to you unless, within sixty (60) days following the date that your employment is terminated, you first execute and do not revoke a separation agreement in a form prepared by and acceptable to the Company, which shall include, at a minimum, a full release of all claims against the Company (as well as its parents, subsidiaries and affiliates, and its and their executives, officers, directors, employees, consultants, agents, shareholders, and assigns), as well as non-disparagement and confidentiality provisions in favor of the Company (the “Separation Agreement”).  The severance payments shall commence on the first payroll period following the date the Separation Agreement becomes effective (the “Payment Date”).  Notwithstanding the payment requirements set forth in the immediately preceding sentence, if the sixty (60) day period following the date your separation from service begins in one tax year and ends in the following tax year, the Company will commence payment on the next regular payroll date following the later of January 1 of the second tax year and the date the Separation Agreement becomes enforceable and no longer subject to revocation.  The first such payment will include a catch-up payment equal to all amounts you otherwise would have received under Section 6(a) prior to the first payment.  The distribution of any severance payments shall be subject to the provisions of Exhibit B attached hereto. 


7.     Relocation Costs.  The Company will reimburse you for (i) the transfer of personal property from North Carolina to the Boston area and (ii) reasonable travel between North Carolina and the Boston area for purposes of relocation (collectively, clauses (i) and (ii), the "Reimbursable Benefits"); provided that any request for reimbursements shall be made by you no later than 30 days after the related expense is incurred.  The cost of reimbursements will be deemed imputed additional income to you to the extent required by applicable law.


8.    Notices.  Any purported termination of employment by the Company for Cause or by you for Good Reason shall be communicated to the other party through written notice, indicating the specific grounds for such termination.  Such notice, and all other communications which are required 


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or may be given pursuant to the terms of this letter, shall be sufficient in all respects if given in writing and shall be deemed given (a) if delivered personally, on the date of delivery, (b) if mailed by certified or registered mail, return receipt requested and postage prepaid, three (3) days after the mailing date, (c) if sent via a nationally recognized overnight courier, on the next business day thereafter, or (d) if sent via facsimile confirmed in writing to the recipient, or via email, on the next business day thereafter, in each case, if to the Company, at the Company’s principal place of business, and if to you at the most recent home address (and/or, as applicable, the most recent personal email address) which you have provided to the Company or to such other address or addresses as either party shall have designated in writing to the other party.


8.    Invention, Non-Disclosure, Non-Competition and Non-Solicitation.  As a condition of your employment with the Company, you will be required to execute an Invention and Non-Disclosure Agreement and a Non-Competition and Non-Solicitation Agreement in the forms attached as Exhibit C and Exhibit D. 


9.    Other Agreements.  You represent that you are not bound by any employment contract, restrictive covenant or other restriction preventing you from entering into employment with or carrying out your responsibilities for the Company, or which is in any way inconsistent with the terms of this letter.


10.    Proof of Legal Right to Work.  You agree to provide to the Company, within three (3) days of your hire date, documentation of your eligibility to work in the United States, as required by the Immigration Reform and Control Act of 1986.  If you need to obtain a work visa in order to be eligible to work in the United States, your employment with the Company will be conditioned upon your obtaining a work visa in a timely manner as determined by the Company.


11.    At-Will Employment.  This letter shall not be construed as an agreement, either express or implied, to employ you for any stated term, and shall in no way alter the Company’s policy of employment at will, under which both you and the Company remain free to terminate the employment relationship for any reason or no reason, with or without cause, at any time, with or without notice.  Similarly, nothing in this letter shall be construed as an agreement, either express or implied, to pay you any compensation or grant you any benefit beyond the end of your employment with the Company, except as explicitly set forth in Section 6. 


12.    Company Policies and Procedures.  As an employee of the Company, you will be required to comply with all Company policies and procedures.  Further, the Company’s premises, including all workspaces, furniture, documents and other tangible materials, and all information technology resources of the Company (including, but not limited to, computers, data and other electronic files, and all internet and e-mail systems) are subject to oversight and inspection by the Company at any time.  Company employees should have no expectation of privacy with regard to any Company premises, materials, resources or information.


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13.    Entire Agreement. This offer letter, and the Exhibits specifically referenced herein, constitute the entire offer regarding the terms and conditions of your prospective employment with the Company.  It supersedes any prior agreements, or other promises or statements (whether oral or written) regarding the offered terms of employment.  


14.    Governing Law. The resolution of any disputes under this letter or related to your employment with or separation of employment from the Company shall be governed by Massachusetts law.  By accepting this offer of employment, you agree that any action, demand, claim or counterclaim in connection with any aspect of your employment with the Company, or any separation of employment (whether voluntary or involuntary) from the Company, shall be resolved in a court of competent jurisdiction in Massachusetts by a judge alone, and you waive and forever renounce your right to a trial before a civil jury.  


15.    Miscellaneous. This offer letter shall be binding upon and shall inure to the benefit of the parties and their respective successors. The Company shall maintain Director’s and Officer’s liability insurance on your behalf for the duration of your employment and throughout the period of any applicable statute of limitations, in an amount and on terms at least as favorable to you as provided by the Company to any other executive, officer or director.        


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If this letter correctly sets forth the terms under which you will be employed by the Company, please sign the enclosed duplicate of this letter in the space provided below and return it to me by June 21, 2017.   


We are very excited to have you join the team and are confident that you will make significant contributions toward our success.


Very truly yours,


OVASCIENCE, INC.




By:    /s/ John Howe III, M.D.            
          John Howe III, M.D.
Chairman of the Compensation Committee




The foregoing correctly sets forth the terms of my at-will employment with OvaScience, Inc.  I am not relying on any representations other than as set forth above.






/s/ Christopher Kroeger, M.D., M.B.A.            Date: June 21, 2017            
 
Christopher Kroeger, M.D., M.B.A.



Exhibit A
Definitions


“Cause” for termination shall be deemed to exist upon: 


		
	(a) 
	a good faith finding by the Company (i) of failure of (which failure is not cured within ten (10) days of receiving written notice thereof from the Company) or refusal by the employee to perform his or her duties and responsibilities to the Company, or (ii) that the employee has engaged in dishonesty, gross negligence or misconduct, which dishonesty, gross negligence or misconduct has caused harm or damage to the business, affairs or reputation of the Company; 




		
	(b) 
	the commission by the employee of, the conviction of the employee of, or the entry of a pleading of guilty or nolo contendere by the employee to any crime involving moral turpitude or any felony; or 




		
	(c)
	a breach by the employee of any provision of the employee’s offer letter or any invention and non-disclosure agreement or non-competition and non-solicitation agreement with the Company, which breach is not cured within ten (10) days written notice thereof.




A determination to terminate the employee’s employment for Cause (a) must be made in the reasonable discretion of the Board, and (b) may not be made unless the employee has been given, where feasible, possible, and practical under the circumstances, a reasonable opportunity to present his position to the Board in person or in a teleconference.


A “Change in Control Event” shall be deemed to exist upon the sale of all or substantially all of the outstanding shares of capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise (other than a transaction in which all or substantially all of the individuals and entities who were beneficial owners of the capital stock of the Company immediately prior to such transaction beneficially own, directly or indirectly, more than 50% of the outstanding securities (on an as-converted to Common Stock basis) entitled to vote generally in the election of directors of the (a) resulting, surviving or acquiring corporation in such transaction in the case of a merger, consolidation or sale of outstanding shares, or (b) acquiring corporation in the case of a sale of assets); provided that, in each of the foregoing cases, the Change in Control Event also meets all of the requirements of a “change in the ownership of a corporation” within the meaning of Treasury Regulation §1.409A-3(i)(5)(v) or “a change in the ownership of a substantial portion of the corporation’s assets” within in the meaning of Treasury Regulation §1.409A-3(i)(5)(vii).


“Good Reason” shall be deemed to exist upon:  


		
	(a) 
	the relocation of the Company’s offices such that the employee’s daily commute is increased by at least forty (40) miles each way without the consent of the employee; 




		
	(b) 
	material reduction of the employee’s annual base salary without the prior consent of the employee (other than in connection with, and substantially proportionate to, reductions by the Company of the annual base salary of more than 50% of its employees); or 




		
	(c) 
	material diminution in employee’s duties, authority or responsibilities without the prior consent of the employee, other than changes in duties, authority or responsibilities resulting from the employee’s misconduct; 




provided, however, that (i) no such event or condition shall constitute Good Reason unless (x) the employee gives the Company a written notice of termination for Good Reason not more than ninety (90) days after the initial existence of the condition, (y) the grounds for termination if susceptible to correction are not corrected by the Company within thirty (30) days of its receipt of such notice and (z) the employee’s termination of employment occurs within six months following the Company’s receipt of such notice; and (ii) at all times “Good Reason” will be interpreted in a manner consistent with the definition of “good reason” within the meaning of Section 409A (as defined below).


Exhibit B
Payments Subject to Section 409A


1.     Subject to this Exhibit B, payments or benefits during the Severance Period under this offer letter (“Severance Payments”) shall begin only upon the date of your “separation from service” (determined as set forth below) which occurs on or after the termination of your employment.  The following rules shall apply with respect to distribution of the Severance Payments, as applicable:


		
	(a)
	It is intended that each installment of the Severance Payments shall be treated as a separate “payment” for purposes of Section 409A of the Code and the guidance issued thereunder (“Section 409A”).  Neither the Company nor you shall have the right to accelerate or defer the delivery of any such Severance Payments except to the extent specifically permitted or required by Section 409A.




		
	(b)
	If, as of the date of your “separation from service” from the Company, you are not a “specified employee” (within the meaning of Section 409A), then each installment of the Severance Payments shall be made on the dates and terms set forth in the offer letter.




		
	(c)
	If, as of the date of your “separation from service” from the Company, you are a “specified employee” (within the meaning of Section 409A), then:




		
	(i)
	Each installment of the Severance Payments due under the offer letter that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when your separation from service occurs, be paid within the Short-Term Deferral Period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be made on the dates and terms set forth in the offer letter; and




		
	(ii)
	Each installment of the Severance Payments due under the offer letter that is not described in this Exhibit B, Section 1(c)(i) and that would, absent this subsection, be paid within the six-month period following your “separation from service” from the Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, your death), with any such installments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following your separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of Severance Payments if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service).  Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of your second taxable year following the taxable year in which the separation from service occurs.




2.    The determination of whether and when your separation from service from the Company has occurred shall be made in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h).  Solely for purposes of this Exhibit B, Section 2, “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) and 414(c) of the Code.


3.    All expense reimbursements shall be paid as soon as administratively practicable.  If an expense reimbursement or provision of in-kind benefit is not exempt from Section 409A of the Code, the following rules apply: (a) in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred; (b) the amount of reimbursable expenses incurred or provision of in-kind benefits in one tax year shall not affect the expenses eligible for reimbursement or the provision of in-kind benefits in any other tax year; and (c) the right to reimbursement for expenses or provision of in-kind benefits is not subject to liquidation or exchange for any other benefit.


4.     The Company makes no representation or warranty and shall have no liability to you or to any other person if any of the provisions of the offer letter (including this Exhibit) are determined to constitute deferred compensation subject to Section 409A but that do not satisfy an exemption from, or the conditions of, that section.  


Exhibit C
Invention and Non-Disclosure Agreement


Exhibit D
Non-Competition and Non-Solicitation Agreement




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