Exhibit 10.1


 





RETENTION AGREEMENT


 


This Retention Agreement (this “Agreement”)
is made and entered into as of November 30, 2014 (the “Effective Date”), by and between Sevion Therapeutics,
Inc., a Delaware corporation (the “Company”) and Joel Brooks (“Executive”).


 


WHEREAS, the Company has determined
that it is in the best interests of the Company to retain Executive; and


 


WHEREAS, the Company and Executive
desire to enter into an agreement providing for the payment of severance benefits to Executive in the event of certain terminations
of Executive’s employment.


 


NOW, THEREFORE, in consideration
of the mutual covenants, promises and obligations set forth herein, the parties agree as follows:


 


1.                 
Qualifying Termination. Upon the occurrence of a Qualifying Termination (as defined in Section 6 below), Executive
shall become eligible to receive the payments and benefits set forth in Section 2, subject to the limitations set forth in this
Agreement (including, without limitation, Section 4), in addition to any unpaid salary and benefits earned through the effective
date of the Qualifying Termination.


 


2.                 
Severance Benefits upon Qualifying Termination.


 


(a)               
Base Salary Continuation. In the event of a Qualifying Termination, Executive will be entitled to a receive an aggregate
amount equal to the Executive’s annual base salary (as in effect on the date of Executive’s Qualifying Termination)
payable in accordance with Section 3 and the regular payroll practices of the Company from the date of such Qualifying Termination
until December 15, 2015 (the “Severance Period”). During the Severance Period, the Executive will be available to answer
questions from the Company upon reasonable request and for a reasonable amount of time without additional consideration other than
the severance payments set forth herein.


 


(b)              
Health Benefits. Provided Executive and his eligible dependents elect to continue medical and dental care coverage
under the Company’s group health care plans pursuant to their rights under COBRA (or any similar state law) following Executive’s
Qualifying Termination and subject to Executive’s compliance with the reimbursement procedures set forth in Section 5, the
Company shall reimburse Executive for the costs Executive incurs to obtain such continued coverage for the Severance Period beginning
on the first day of the month following Executive’s Qualifying Termination. The number of months of continued benefit coverage
provided to Executive hereunder shall, to the maximum extent permitted by law, reduce the number of months of continued coverage
that must be made available to Executive and his dependents under COBRA (or any similar state law).


 


(c)               
Option Exercisability. Notwithstanding anything to the contrary in the applicable award agreement, each of Executive’s
options to acquire stock of the Company shall, to the extent vested and exercisable on the effective date of the Qualifying Termination,
remain exercisable until the expiration of its maximum option term. Such options awarded to the Executive in September 2014 and
subsequently granted on November 18, 2014 shall become accelerated and fully vested as a result of a Qualifying Termination, and
any other options to acquire stock of the Company which were awarded or granted that are not yet vested upon a Qualifying Termination,
shall terminate pursuant to their terms as a result of the Qualifying Termination.


 



    	 



    	 



    




3.                 
Payment Timing. Subject to Section 8(f)(ii), the Company shall make the initial base salary continuation payment
under Section 2(a) on the first regularly scheduled payroll date within the sixty (60)-day period measured from the date of Executive’s
Qualifying Termination on which the General Release (as defined in Section 4 below) is effective and irrevocable. However, should
such sixty (60)-day period span two taxable years, then the initial salary continuation payment will be made on the first regularly
scheduled payroll date within the portion of that sixty (60)-day period that occurs in the second taxable year on which the General
Release is effective and irrevocable. If one or more salary continuation payments are delayed pursuant to the preceding sentence,
the initial salary continuation payment will include all amounts that otherwise would have been paid to Executive during the period
beginning on the date of Executive’s Qualifying Termination and ending on the first payment date if no such delay had been
imposed. Any remaining salary continuation payments due under this Agreement will be paid in accordance with the regular payroll
practices of the Company.


 


4.                 
Release Requirement. Notwithstanding anything herein to the contrary, in order to receive any severance payments
or benefits pursuant to this Agreement, Executive must first execute and deliver to the Company, within twenty-one (21) days (or
forty-five (45) days, if such longer period is required under applicable law) after the effective date of Executive’s Qualifying
Termination, a general settlement and mutual release agreement in such form as provided by the Company (a “General Release”),
and such General Release must become effective and enforceable in accordance with its terms following the expiration of any applicable
revocation period under federal or state law. If such General Release is not executed and delivered to the Company within the applicable
twenty-one (21) (or forty-five (45))-day period hereunder or does not otherwise become effective and enforceable in accordance
with its terms, then no severance benefits will be provided to Executive under this Agreement.


 


5.                 
Reimbursement Procedure. In order to obtain reimbursement for the costs Executive incurs to obtain the continued
medical and dental care coverage provided for under Section 2 (the “Health Insurance Costs”), Executive must
submit appropriate evidence to the Company of each periodic payment within sixty (60) days after the required payment date for
those Health Insurance Costs and the Company shall reimburse Executive for that payment within thirty (30) days after receipt of
that submission. All such reimbursements shall be subject to the provisions of Section 8(f)(iii).


 


6.                 
Definitions. For purposes of this Agreement, the following definitions shall be in effect:


 


(a)               
Cause. The term “Cause” shall mean any of the following:


 


(i)                
Failure by Executive, other than by reason of disability, to substantially perform such duties consistent with those reasonably,
customary and lawfully requested, verbally or in writing (including electronic mail), by the Chief Executive Officer of the Company,
within five (5) business days following Executive’s receipt of written notice of such failure (which notice shall have been
authorized by the Board and shall set forth in reasonable detail the purported failure to perform and the specific steps to cure
such failure, which shall be consistent with the terms hereof); provided, however, if a third-party is involved to fulfill such
request (for example, the Company’s accounting firm), such timing is subject to the responsiveness of such third party;


 






    	 



    	 



    

 


(ii)              Executive’s misappropriation of the Company’s funds or willful misconduct which results in material damage to
the Company; or


 


(iii)            
Executive’s conviction of, or plea of nolo contendere to, any crime constituting a felony under the laws of the United
States or any State thereof, or any crime constituting a misdemeanor under any such law involving moral turpitude.


 


(b)           Good Reason. The term “Good Reason” shall mean any action by the Company which results in:


 


(i)               A material diminution of Executive’s position or Executive’s authority, duties or responsibilities;


 


(ii)              Any reduction in Executive’s annual base salary; or


 


(iii)            
A change by the Company in the location at which Executive performs his principal duties for the Company to a new location
that is outside a radius of 50 miles from Executive’s principal residence and outside a radius of 50 miles from the location
at which Executive previously performed his principal duties for the Company;


 


provided, that, the foregoing events
shall not be deemed to constitute Good Reason unless Executive shall have notified the Board in writing of the occurrence of such
event(s) within five (5) business days of the initial existence of the condition and the Board shall have failed to have cured
or remedied such event(s) within five (5) business days of its receipt of such written notice or which breach the Company shall
have failed to begin to attempt to cure during said five (5) business-day period if the breach is not curable during the five (5)
business-day period. If the event is not cured during the five (5) business-day period (or the Company shall have failed to begin
to attempt to cure the event during such five (5) business-day period), Executive’s employment shall terminate on the thirtieth
(30th) calendar day following the date of Executive’s notice to the Board of the event constituting Good Reason, unless the
Board and Executive agree in writing to an extension of Executive’s termination date.


 


(c)            Qualifying Termination. The term “Qualifying Termination” shall mean any of the following:


 


(i)                
The Company terminates Executive’s employment without Cause during the period commencing with the Effective Date and
ending on December 15, 2015; or


 


(ii)              
Executive voluntarily terminates his employment with the Company for Good Reason (following the applicable notice and cure
period requirements specified in Section 6(c)) on or after December 1, 2014 until December 15, 2015; or


 


(iii)            
Executive voluntarily terminates his employment with the Company for any reason after the filing with the U.S. Securities
and Exchange Commission of the Company’s Form 10-Q for the quarter ended March 31, 2015 and until December 15, 2015.


 






    	 



    	 



    

 


7.                 
Executive’s Acknowledgment. By executing this Agreement, Executive acknowledges and agrees that, as
of the Effective Date, the Company has not experienced a “Change of Control” for purposes of that certain Retention
Policy between the Company and the Executive (the “Retention Policy”).


 


8.                 
Miscellaneous Provisions.


 


(a)               
Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed
to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested
and postage prepaid. In the case of Executive, mailed notices shall be addressed to Executive at the home address which Executive
most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of its Secretary.


 


(b)              
Entire Agreement; Severance Benefits Not Duplicative. As of the Effective Date, this Agreement shall contain the
entire agreement between the Executive and the Company with respect to severance or termination pay and will supersede the Retention
Policy or any other severance plan, policy, program or agreement with the Company.


 


(c)               
Successors.


 


(i)                
The Company shall require any successor (whether direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree
to perform this Agreement in the same manner and to the same extent as the Company would be required to perform it in the absence
of a succession. Unless expressly provided otherwise, “Company” as used herein shall mean the Company as defined in
this Agreement and any successor to its business and/or assets as described above.


 


(ii)              
This Agreement and all rights of Executive hereunder shall inure to the benefit of, and be enforceable by, Executive’s
personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.


 


(d)              
Taxes. All payments and benefits made pursuant to this Agreement (including all reimbursements for Health Insurance
Costs, to the extent such reimbursements are treated as taxable wages) will be reported as taxable wages on a Form W-2 and will
be subject to deduction of all required federal, state, local and foreign withholding taxes and any other employment taxes the
Company may be required to collect or withhold.


 


(e)               
No Assignment. Executive’s rights hereunder may not be anticipated, assigned, attached, garnished, optioned,
transferred or made subject to any creditor’s process, whether voluntarily, involuntarily or by operation of law, except
by will or the laws of descent and distribution. Any action in violation of this Section 8(e) shall be void.


 


(f)               
Internal Revenue Code Section 409A.


 


(i)                
This Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(“Section 409A”), or an exemption thereunder and shall be interpreted, administered and applied in accordance
with such intent. Any payments under this Agreement that may be excluded from Section 409A pursuant to Treasury Regulation 1.409A-1(b)(4)
(the so-called “short-term deferral exception”) or Treasury Regulation 1.409A-1(b)(9)(iii) (the so-called “involuntary
separation pay exception”) shall be excluded from Section 409A to the maximum extent possible.


 






    	 



    	 



    

 


(ii)              
Notwithstanding any provision in this Agreement to the contrary, no payment or benefit under this Agreement that constitutes
an item of deferred compensation under Section 409A and becomes payable by reason of a Qualifying Termination will be made to Executive
unless such Qualifying Termination constitutes a “separation from service,” within the meaning of Section 409A and
the Treasury Regulations thereunder. For purposes of this Agreement, each amount to be paid or benefit to be provided to Executive
shall be treated as a separate identified payment or benefit for purposes of Section 409A. In addition, no payment or benefit that
constitutes an item of deferred compensation under Section 409A and becomes payable by reason of Executive’s separation from
service will be made to Executive prior to the earlier of (i) the first day of the seventh month following the date of such separation
from service or (ii) the date of Executive’s death, if Executive is deemed at the time of such separation from service to
be a specified employee (as determined in accordance with Section 409A and the Treasury Regulations thereunder) and such delayed
commencement is otherwise required in order to avoid a prohibited distribution under Section 409A. Upon the expiration of the applicable
deferral period, all payments and benefits deferred pursuant to this paragraph (whether they would have otherwise been payable
in a single sum or in installments in the absence of such deferral) shall be paid or provided to Executive in a lump sum on the
first day of the seventh month after the date of Executive’s separation from service or, if earlier, the first day of the
month immediately following the date the Company receives proof of Executive’s death. Any remaining payments or benefits
due under this Agreement will be paid in accordance with the normal payment dates specified herein.


 


(iii)            
Any reimbursements or other in-kind benefits provided under this Agreement shall be made or provided in accordance with
the requirements of Section 409A, including, where applicable, the requirement that (1) all such reimbursements will be made on
or before the last day of the your taxable year following the taxable year in which Executive incurred such reimbursed expense,
(2) the right to reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit, (3) the
amount of expenses eligible for reimbursement, or the in-kind benefits provided, during any taxable year of Executive will not
affect the expenses eligible for reimbursement, or the in-kind benefits to be provided, in any other taxable year of Executive,
and (4) any reimbursement will be for expenses incurred only during the period of time specified in this Agreement.


 


(g)              
Amendments. This Agreement may not be amended or modified except by an instrument in writing executed by, or on behalf
of, Executive and the Company.


 


(h)              
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original,
but all of which shall constitute the same instrument. Facsimile or other electronic copies of such signed counterparts may be
used in lieu of the originals for any purpose.


 


(i)                
Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by
the laws of the State of New Jersey without regard to the conflicts of laws principles thereof.


 






    	 



    	 



    

 


 


 


IN WITNESS WHEREOF, each of the parties
has executed this Retention Agreement, in the case of the Company by its duly authorized officer, as of the day and year first
above written.


 





	EXECUTIVE:
	 
	 
	/s/ Joel Brooks
	Joel Brooks
	 
	 
	 
	Sevion therapeutics, Inc.:
	 
	By:	/s/ Ronald Martell
	Name:  	Ronald Martell
	Title:	Chief Executive Officer