EX-10.2


  Exhibit 10.2

  	SEPARATION AGREEMENT

   

  	This Separation Agreement (the “Agreement”) by and between Wan-Jen Hong (“Executive”) and Imago BioSciences, Inc., a Delaware corporation (the “Company” and, together with Executive, the “Parties”), is made effective as of the eighth (8th) day after Executive signs this Agreement (the “Effective Date”) with reference to the following facts:

    

  A.	Executive’s employment with the Company and status as an officer and employee of the Company ended on the Separation Date (as defined below).

   

  B.	Executive and the Company want to end their relationship amicably and also to establish the obligations of the Parties including, without limitation, all amounts due and owing to the Executive.

   

  	NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the Parties agree as follows:

   

  1.Separation Date.  Executive acknowledges and agrees that Executive’s status as an officer and employee of the Company ended effective as of August 26, 2022 (the “Separation Date”).  Executive hereby agrees to execute such further document(s) as shall be determined by the Company as necessary or desirable to give effect to the termination of Executive’s status as an officer of the Company as of the Separation Date; provided that such documents shall not be inconsistent with any of the terms of this Agreement.  


  2.Transition Consulting Services.  Following the Termination Date, Executive shall be available to provide services to the Company, on a non-exclusive basis, as a consultant and shall provide such transition services in accordance with a Consulting Agreement to be entered into between Executive and the Company substantially in the form attached hereto as Exhibit A (the “Consulting Agreement”).


  3.Final Paycheck; Payment of Accrued Wages and Expenses; Equity Awards.  


  (a)Final Paycheck.  The Executive acknowledges receipt of all accrued but unpaid base salary and all accrued and unused vacation earned through the Separation Date, subject to standard payroll deductions and withholdings.  Executive is entitled to these payments regardless whether Executive executes this Agreement.


  (b)Business Expenses.  The Company shall reimburse Executive for all outstanding expenses incurred prior to the Separation Date which are consistent with the Company’s policies in effect from time to time with respect to travel, entertainment and other business expenses, and submitted by Executive for reimbursement on or before January 1, 2021, subject to the Company’s requirements with respect to reporting and documenting such expenses.  Executive is entitled to these reimbursements regardless whether Executive executes this Agreement.


  (c)Equity Awards.  The portion of each option to purchase Company common stock held by Executive that is unvested shall immediately terminate as of the Separation Date.  The portion of each option to purchase Company common stock held by Executive that is vested as of the Separation Date shall remain outstanding and exercisable through the earlier of the 


  1

   

   

   

   

  |US-DOCS\133800972.2||

  

  Exhibit 10.2

  3-month anniversary of the date Executive ceases to provide services to the Company as an employee or consultant or the original expiration date thereof.


  4.Separation Payments and Benefits.  Without admission of any liability, fact or claim, the Company hereby agrees, subject to (i) Executive’s execution and delivery to the Company of this Agreement and (ii) Executive’s performance of Executive’s continuing obligations pursuant to this Agreement and the Confidential Information and Invention Assignment comparable Agreement entered into between Executive and the Company as of May 11, 2021 (the “Confidentiality Agreement) to provide Executive the severance benefits set forth below.  Specifically, the Company and Executive agree as follows: 


  (a)Cash Severance.  The Company shall pay to Executive $342,913, less applicable withholding taxes, which constitutes 9 months of Executive’s base salary at the rate in effect immediately prior to the Separation Date, such payment to be made on the first regularly scheduled payroll date that is at least five business days after the Effective Date.


  (b)COBRA.  During the period commencing on the Separation Date and ending on the nine-month anniversary thereof or, if earlier, the date on which Executive  and Executive’s covered dependents, if any, become eligible for comparable replacement coverage under a subsequent employer’s group health plan (in any case, the “COBRA Period”), subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to Executive and Executive’s dependents, at the Company’s sole expense, or (B) reimburse Executive and Executive’s dependents for coverage under its group health plan (if any) at the same levels in effect on the Separation Date; provided, however, that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A of the Code under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans, or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining Company subsidy shall thereafter be paid to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof).


  (c)Taxes.  Executive understands and agrees that all payments under this Agreement will be subject to appropriate tax withholding and other deductions.  To the extent any taxes may be payable by Executive for the benefits provided to Executive by this Agreement beyond those withheld by the Company, Executive agrees to pay them and to indemnify and hold the Company and the other entities released herein harmless for any tax claims or penalties, and associated attorneys’ fees and costs, resulting from any failure by Executive to make required payments. 


  (d)Sole Separation Benefit.  Executive agrees that the payments included in this Section 4 are provided as a severance solely in connection with this Agreement.  Executive acknowledges and agrees that the payment referenced in this Section 4 constitutes adequate and valuable consideration, in and of itself, for the promises contained in this Agreement. 


  2

   

   

   

   

  |US-DOCS\133800972.2||

  

  Exhibit 10.2

  5.Full Payment.  Executive acknowledges that the payments herein shall constitute full and complete satisfaction of any and all amounts properly due and owing to Executive as a result of Executive’s employment with the Company and separation therefrom.  Executive further acknowledges that, other than the Confidentiality Agreement and the stock option agreements governing the terms of Executive’s options to purchase Company common stock (each, a “Stock Option Agreement”), this Agreement shall supersede each agreement entered into between Executive and the Company regarding Executive’s employment, including, without limitation, any offer letter, employment agreement, severance and/or change in control agreement, and each such agreement (other than the Confidentiality Agreement and each Stock Option Agreement) shall be deemed terminated and of no further effect as of the Effective Date.


  6.Executive’s Release of the Company.  Executive understands that by agreeing to the release provided by this Section 6, Executive is agreeing not to sue, or otherwise file any claim against, the Company or any of its affiliates, directors, officers, employees, investors or other agents for any reason whatsoever based on anything that has occurred as of the date Executive signs this Agreement.


  (a)Released Claims.  On behalf of Executive and Executive’s heirs, assigns, executors, administrators, trusts, spouse and estate, Executive hereby releases and forever discharges the “Releasees” hereunder, consisting of the Company and its owners, affiliates, subsidiaries, predecessors, successors, assigns, agents, directors, officers, partners, employees, and insurers, and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, loss, cost or expense, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called “Claims”), which Executive now has or may hereafter have against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof, including, without limiting the generality of the foregoing, any Claims arising out of, based upon, or relating to Executive’s hire, employment, remuneration or termination by the Releasees, or any of them, Claims arising under federal, state, or local laws relating to employment, Claims of any kind that may be brought in any court or administrative agency, including any Claims arising under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §  2000, et seq.; Americans with Disabilities Act, as amended, 42 U.S.C. § 12101 et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq.; Age Discrimination in Employment Act, as amended, 29 U.S.C. § 621, et seq.; Civil Rights Act of 1866, and Civil Rights Act of 1991; 42 U.S.C. § 1981, et seq.; Equal Pay Act, as amended, 29 U.S.C. § 206(d); regulations of the Office of Federal Contract Compliance, 41 C.F.R. Section 60, et seq.; The Family and Medical Leave Act, as amended, 29 U.S.C. § 2601 et seq.; the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq.; the Employee Retirement Income Security Act, as amended, 29 U.S.C. § 1001 et seq.; the Worker Adjustment and Retraining Notification Act, as amended, 29 U.S.C.  § 2101 et seq.; the California Fair Employment and Housing Act, as amended, Cal. Lab. Code § 12940 et seq.; the California Equal Pay Law, as amended, Cal. Lab. Code §§ 1197.5(a),199.5; the Moore-Brown-Roberti Family Rights Act of 1991, as amended, Cal. Gov’t Code §§12945.2, 19702.3; California Labor Code §§ 1101, 1102; the California WARN Act, California Labor Code §§ 1400 et. seq; California Labor Code §§ 1102.5(a),(b); Claims for wages under the California Labor Code;, and any other federal, state or local laws of similar effect; the employment and civil rights laws of California; Claims for breach of implied or express contract; Claims arising in tort, including, without limitation, Claims of wrongful dismissal or 


  3

   

   

   

   

  |US-DOCS\133800972.2||

  

  Exhibit 10.2

  discharge, discrimination, harassment, retaliation, fraud, misrepresentation, defamation, libel, slander, defamation, infliction of emotional distress, violation of public policy, and/or breach of the implied covenant of good faith and fair dealing; and Claims for damages or other remedies of any sort, including, without limitation, compensatory damages, punitive damages, injunctive relief and attorney’s fees.  


  (b)Unreleased Claims.  Notwithstanding the generality of the foregoing, Executive does not release the following claims:


  (i)Claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law; 


  (ii)Claims for workers’ compensation insurance benefits under the terms of any worker’s compensation insurance policy or fund of the Company;


  (iii)Claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA);


  (iv)Claims to any benefit entitlements vested as the date of Executive’s employment termination, pursuant to written terms of the Company employee benefit plan;


  (v)Claims for indemnification under any indemnification agreement, the Company’s Bylaws or any applicable law; and


  (vi)Executive’s right to bring to the attention of the Equal Employment Opportunity Commission claims of discrimination; provided, however, that Executive does release Executive’s right to secure any damages for alleged discriminatory treatment.


  (c)Acknowledgement.  In accordance with the Older Workers Benefit Protection Act of 1990, Executive has been advised of the following:


  (i)Executive should consult with an attorney before signing this Agreement;


  (ii)Executive has been given at least twenty-one (21) days to consider this Agreement; and


  (iii)Executive has seven (7) days after signing this Agreement to revoke it.  If Executive wishes to revoke this Agreement, Executive must deliver notice of Executive’s revocation in writing, no later than 5:00 p.m. on the seventh (7th) day following Executive’s execution of this Agreement to Laura G. Eichorn, Chief Financial Officer, email:  laura@imagobio.com. Executive understands that if Executive revokes this Agreement, it will be null and void in its entirety, and Executive will not be entitled to any benefits provided in Section 4.


  4

   

   

   

   

  |US-DOCS\133800972.2||

  

  Exhibit 10.2

  (d)EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE HAS BEEN ADVISED OF AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:


  “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

  BEING AWARE OF SAID CODE SECTION, EXECUTIVE HEREBY EXPRESSLY WAIVES ANY RIGHTS EXECUTIVE MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.

  7.Non-Disparagement and Transfer of Company Property.  Executive further agrees that:


  (a)Non-Disparagement.  Executive agrees that Executive shall not disparage, criticize or defame the Company, its affiliates and their respective directors, officers, agents, partners, stockholders, employees, products, services, technology or business, either publicly or privately.  The Company agrees that it shall not, and shall instruct its officers and directors to not, disparage, criticize or defame Executive.  Nothing in this Section 7(a) shall have application to any evidence or testimony required by any court, arbitrator or government agency.


  (b)Transfer of Company Property.  Executive warrants and represents that Executive has turned over to the Company all physical or personal property that are the property of the Company and that Executive had in Executive’s possession, custody or control, including, without limitation, Executive’s laptop computer, along with all other equipment and originals and copies of correspondence, drawings, manuals, letters, notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents concerning the Company’s customers, business plans, marketing strategies, products, processes or business of any kind and/or which contain proprietary information or trade secrets which are in the possession or control of Executive or Executive’s agents or representatives.


  8.Executive Representations.  Executive warrants and represents that (a) Executive has not filed or authorized the filing of any complaints, charges or lawsuits against the Company or any affiliate of the Company with any governmental agency or court, and that if, unbeknownst to Executive, such a complaint, charge or lawsuit has been filed on Executive’s behalf, Executive will immediately cause it to be withdrawn and dismissed, (b) Executive has reported all hours worked as of the date of this Agreement and has been paid all compensation, wages, bonuses, commissions, and/or benefits to which Executive may be entitled and no other compensation, wages, bonuses, commissions and/or benefits are due to Executive, except as provided in this Agreement, (c) Executive has no known workplace injuries or occupational diseases and has been provided and/or has not been denied any leave requested under the Family and Medical Leave Act or any similar state law, (d) the execution, delivery and performance of this Agreement by Executive does not and will not conflict with, breach, violate or cause a default under any agreement, contract or instrument to which Executive is a party or any judgment, order or decree to which Executive is subject, and (e) 


  5

   

   

   

   

  |US-DOCS\133800972.2||

  

  Exhibit 10.2

  upon the execution and delivery of this Agreement by the Company and Executive, this Agreement will be a valid and binding obligation of Executive, enforceable in accordance with its terms.  


  9.No Assignment by Executive.  Executive warrants and represents that no portion of any of the matters released herein, and no portion of any recovery or settlement to which Executive might be entitled, has been assigned or transferred to any other person, firm or corporation not a party to this Agreement, in any manner, including by way of subrogation or operation of law or otherwise.  If any claim, action, demand or suit should be made or instituted against the Company or any other Releasee because of any actual assignment, subrogation or transfer by Executive, Executive agrees to indemnify and hold harmless the Company and all other Releasees against such claim, action, suit or demand, including necessary expenses of investigation, attorneys’ fees and costs.  In the event of Executive’s death, this Agreement shall inure to the benefit of Executive and Executive’s executors, administrators, heirs, distributees, devisees, and legatees.  None of Executive’s rights or obligations may be assigned or transferred by Executive, other than Executive’s rights to payments hereunder, which may be transferred only upon Executive’s death by will or operation of law.  


  10.Governing Law.  This Agreement will be construed and enforced in accordance with, and the rights of the parties will be governed by, the laws of the State of  California or, where applicable, United States federal law, in each case, without regard to any conflicts of laws provisions or those of any state other than California.


  11.Miscellaneous.  This Agreement, collectively with the Confidentiality Agreement and each Stock Option Agreement, comprises the entire agreement between the Parties with regard to the subject matter hereof and supersedes, in their entirety, any other agreements between Executive and the Company with regard to the subject matter hereof.  The Company and Executive acknowledge that the termination of the Executive’s employment with the Company is intended to constitute an involuntary separation from service for the purposes of Section 409A of the Code, and the related Department of Treasury regulations.  Executive acknowledges that there are no other agreements, written, oral or implied, and that Executive may not rely on any prior negotiations, discussions, representations or agreements.  This Agreement may be modified only in writing, and such writing must be signed by all Parties and recited that it is intended to modify this Agreement.  This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.  


  12.Company Assignment and Successors.  The Company shall assign its rights and obligations under this Agreement to any successor to all or substantially all of the business or the assets of the Company (by merger or otherwise).  This Agreement shall be binding upon and inure to the benefit of the Company and its successors, assigns, personnel and legal representatives.    


  13.Maintaining Confidential Information.  Executive reaffirms Executive’s obligations under the Confidentiality Agreement.  Executive acknowledges and agrees that the payments provided in Section 4 above shall be subject to Executive’s continued compliance with Executive’s obligations under the Confidentiality Agreement.  For the avoidance of doubt, nothing in the Confidentiality Agreement or this Agreement will be construed to prohibit Executive from filing a charge with, reporting possible violations to, or participating or cooperating with any governmental agency or entity, including but not limited to the EEOC, the Department of Justice, the Securities and Exchange Commission, Congress, or any agency Inspector General, or making other disclosures that are protected under the whistleblower, anti-discrimination, or anti-retaliation provisions of federal, state or local law or regulation.  Executive does not need the prior authorization 


  6

   

   

   

   

  |US-DOCS\133800972.2||

  

  Exhibit 10.2

  of the Company to make any such reports or disclosures, and Executive is not required to notify the Company that Executive has made such reports or disclosures.  Furthermore, in accordance with 18 U.S.C. § 1833, notwithstanding anything to the contrary in the Confidentiality Agreement or this Agreement: (i) Executive will not be in breach of this Agreement, and will not be held criminally or civilly liable under any federal or state trade secret law (x) for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law, or (y) for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (ii) if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the trade secret to Executive’s attorney, and may use the trade secret information in the court proceeding, if Executive files any document containing the trade secret under seal, and does not disclose the trade secret, except pursuant to court order.


  14.Executive’s Cooperation.  Executive shall cooperate with the Company upon the Company’s reasonable request, with respect to any internal investigation or administrative, regulatory or judicial proceeding involving matters within the scope of Executive’s duties and responsibilities to the Company during Executive’s employment with the Company (including, without limitation, Executive being available to the Company upon reasonable notice for interviews and factual investigations, appearing at the Company’s reasonable request to give testimony without requiring service of a subpoena or other legal process, and turning over to the Company all relevant Company documents which are or may have come into Executive’s possession during Executive’s employment); provided, however, that any such request by the Company shall not be unduly burdensome or interfere with Executive’s personal schedule or ability to engage in gainful employment.   


   

  15.Section 409A of the Code.  This Agreement is intended, to the greatest extent permitted under law, to comply with the short-term deferral exemption and the separation pay exemption provided in Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other interpretative guidance issued thereunder (“Section 409A”) such that no benefits or payments under this Agreement are subject to Section 409A.  Notwithstanding anything herein to the contrary, the timing of any payments under this Agreement will be made consistent with such exemption.  To the extent applicable, this Agreement will be interpreted in accordance with Section 409A, including without limitation any such regulations or other guidance that may be issued after the Separation Date.  Notwithstanding any provision of this Agreement to the contrary, in the event that the Company determines that any amounts payable hereunder may be subject to Section 409A, the Company may, to the extent permitted under Section 409A cooperate in good faith to adopt such amendments to this Agreement or adopt other appropriate policies and procedures, including amendments and policies with retroactive effect, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section 409A; provided however, that this paragraph will not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor will the Company have any liability for failing to do so.  To the extent that any reimbursements payable pursuant to this Agreement are subject to the provisions of Section 409A, such reimbursements will be paid to Executive no later than December 31 of the year following the year in which the expense was incurred, the amount of expenses reimbursed in one year will not affect the amount eligible for reimbursement in any subsequent year, and Executive’s right to reimbursement under this Agreement will not be subject to liquidation or exchange for another benefit.


  7

   

   

   

   

  |US-DOCS\133800972.2||

  

  Exhibit 10.2

   

  [Signature page follows]

  8

   

   

   

   

  |US-DOCS\133800972.2||

  

  Exhibit 10.2

  	IN WITNESS WHEREOF, the undersigned have caused this Separation Agreement to be duly executed and delivered as of the date indicated next to their respective signatures below.

   

   

   

  DATED: August 11, 2022

  						/s/ Wan-Jen Hong

  Wan-Jen Hong

   

   

   

  						IMAGO BIOSCIENCES, INC.

  DATED: August 11, 2022

   

   

  						By: /s/ Hugh Young Rienhoff, Jr. M.D.

  Name:  Hugh Young Rienhoff, Jr., M.D.

  Title:  Chief Executive Officer

   

   

   

    

   

   

   

   

   

   

  |US-DOCS\133800972.2||

  

  Exhibit 10.2

  EXHIBIT A

   

  CONSULTING AGREEMENT

  (attached)

   

   

   

   

  A-1

   

   

   

   

  |US-DOCS\133800972.2||