MARINA
BIOTECH, INC.
17870
Castleton Street, Suite 250
City
of Industry, CA 91748
February
13, 2017
Larn
Hwang, Ph.D.
60
Painted Trellis
Irvine,
CA 92620
Dear
Dr. Hwang:
We
are very pleased that you have decided to accept employment with Marina Biotech, Inc., a Delaware corporation (the “Company”),
and are writing to confirm the terms of your employment.
| Title/Duties: |
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You
shall be employed as the Chief Scientific Officer of the Company and shall report to the Chief Executive Officer of the Company
(the “CEO”) . As Chief Scientific Officer, you shall have the powers, responsibilities and authorities
assigned to you by the CEO from time to time. You will devote such time and efforts as is reasonably necessary to the performance
of your duties for the Company, which is anticipated to represent approximately 50% of your business time. For the avoidance
of doubt, other than as expressly approved by the Company (it being understood and agreed that your provision of services
to Autotelic Inc. and Autotelic LLC, and each of their respective affiliates, including, without limitation, Oncotelic Inc.,
Stocosil, Inc., LipoMedics, Inc., Glucotelic Inc., Osteotelic Inc. and String Therapeutics, shall be deemed approved by the
Company), you shall not provide services to others for compensation, whether as an employee, consultant, or otherwise, while
employed by the Company, and any services you provide to others without compensation shall not: (i) violate any restrictive
covenants by which you are bound, including, but not limited to, your obligations as set forth in the Restrictive Covenant
Agreement (as defined below) or (ii) otherwise interfere with your duties to the Company. |
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| Start
Date: |
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Your
employment with the Company as Chief Scientific Officer will commence effective as of February 1, 2017. |
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| Base
Salary: |
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Base
salary of $85,000 per year (“Base Salary”), payable in accordance with the Company’s payroll practices. |
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| Discretionary
Bonus: |
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You
will be entitled to receive a discretionary bonus as determined by the Board of Directors of the Company in its sole discretion.
However, nothing herein requires the Company to pay any discretionary bonus to you. |
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| Option
Grant: |
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The
Company shall issue to you, in connection with your execution and delivery of this letter, options to purchase up to 60,000
shares of the common stock of the Company under the Company’s 2014 Long-Term Incentive Plan, with all of such options
to vest on the one year anniversary of the date of this letter. |
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| Employee
Benefits: |
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Benefits
will not be provided by Marina Biotech, Inc. |
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| Paid
Time Off: |
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You
shall be entitled to fifteen (15) business days of paid vacation in each calendar year, subject to the policies and procedures
of the Company concerning vacation and sick time. |
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| Termination: |
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Your
employment will be that of an at-will employee which means that either the Company or you can end the employment
relationship at any time for any reason or for no reason, with or without notice, or with or without Cause (defined below).
In the event that your employment with the Company terminates for any reason, you shall not be entitled to any severance amounts
of any kind or other post termination payments, except as required by law (if any). |
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| Return
of Company Property: |
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You
agree that, upon the termination of your employment with the Company for any reason, or upon any request by the Company at
any time, you will immediately deliver to the Company (and will not keep in your possession, recreate or deliver to anyone
else) any and all software, devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings,
blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items which
you developed or which are connected in any way with your employment with the Company, or which otherwise belong to the Company,
its successors or assigns. |
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| Non-Solicitation/ |
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| Confidentiality
Agreement/Policies |
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As
a condition of your employment, you hereby agree to execute and to be subject to the covenants and other provisions of the
Company’s standard confidentiality, restrictive covenant and intellectual property agreement (the “Restrictive
Covenant Agreement”), attached hereto as Schedule A and incorporated herein by reference. You also agree
that you will comply with all Company policies and procedures. |
This
letter and your employment will be governed by the law of the State of California. This letter may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. The Company
may withhold from any payments any amounts required to be withheld by law. If any provision of this letter shall be declared to
be invalid or unenforceable, in whole or in part, such invalidity or unenforceability shall not affect the remaining provisions
hereof which shall remain in full force and effect. The Company shall determine “Cause” in its sole discretion,
which shall include, but not be limited to, your failure to execute the Restrictive Covenant Agreement or your failure to comply
with the Company’s policies and the Restrictive Covenant Agreement. Each party shall bear the costs of any legal fees and
other fees and expenses which may be incurred in respect of enforcing its respective rights under this letter. The respective
rights and obligations of the parties hereunder shall survive any termination of the your employment with the Company to the extent
necessary to the intended preservation of such rights and obligations. This letter contains the entire understanding between the
parties hereto and supersedes in all respects any prior or other agreement or understanding between the Company or any affiliate
of the Company and you with respect to the subject matter hereof.
This
letter is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (“Section
409A”), and the parties hereby agree to amend this letter as and when necessary or desirable to conform to or otherwise
properly reflect any guidance issued under Section 409A after the date hereof without violating Section 409A. In case any one
or more provisions of this letter fails to comply with the provisions of Section 409A, the remaining provisions of this letter
shall remain in effect, and this letter shall be administered and applied as if the non-complying provisions were not part of
this letter. The parties in that event shall endeavor to agree upon a reasonable substitute for the non-complying provisions,
to the extent that a substituted provision would not cause this letter to fail to comply with Section 409A, and, upon so agreeing,
shall incorporate such substituted provisions into this letter. In no event whatsoever shall the Company be liable for any additional
tax, interest or penalty that may be imposed on you by Section 409A or damages for failing to comply with Section 409A.
A termination of your employment hereunder shall not be deemed to have occurred for purposes of any provision of this letter providing
for the payment of any amount or benefit constituting “deferred compensation” under Section 409A upon or following
a termination of employment unless such termination is also a “separation from service” within the meaning of Section
409A and, for purposes of any such provision of this letter, references to a “termination,” “termination of
employment” or like terms shall mean “separation from service.” In the event that any payment or benefit made
hereunder or under any compensation plan, program or arrangement of the Company would constitute payments or benefits pursuant
to a non-qualified deferred compensation plan within the meaning of Section 409A and, at the time of your “separation from
service” you are a “specified employee” within the meaning of Section 409A, then any such payments or benefits
shall be delayed until the six-month anniversary of the date of your “separation from service”. Each payment made
under this letter shall be designated as a “separate payment” within the meaning of Section 409A. All reimbursements
and in-kind benefits provided under this letter shall be made or provided in accordance with the requirements of Section 409A
to the extent that such reimbursements or in-kind benefits are subject to Section 409A. All reimbursements for expenses paid pursuant
hereto that constitute taxable income to you shall in no event be paid later than the end of the calendar year next following
the calendar year in which you incur such expense or pays such related tax. Unless otherwise permitted by Section 409A, the right
to reimbursement or in-kind benefits under this letter shall not be subject to liquidation or exchange for another benefit and
the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the
expenses eligible for reimbursement, or in-kind benefits to be provided, respectively, in any other taxable year.
[remainder
of page intentionally left blank; signature page follows]
Please
indicate your acceptance of the terms and conditions of this letter by signing in the space indicated below and returning one
copy of this letter to me.
We
look forward to working with you.
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Sincerely, |
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/s/
Joseph W. Ramelli |
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Name: |
Joseph
W. Ramelli |
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Title: |
Chief
Executive Officer |
| Accepted
and Agreed: |
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/s/
Larn Hwang |
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| Name: |
Larn
Hwang, Ph.D. |
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SCHEDULE
A
RESTRICTIVE
COVENANT AGREEMENT
CONFIDENTIALITY,
RESTRICTIVE COVENANT
AND
INTELLECTUAL PROPERTY AGREEMENT
As
a condition of my employment and/or continued employment with Marina Biotech, Inc., its subsidiaries, affiliates, successors or
assigns (collectively, the “Company”), and in consideration of my employment with the Company and my receipt
of the compensation now and hereafter paid to me by the Company, I, Larn Hwang, Ph.D., agree to the following (the “Agreement”):
1. Confidential
Information. I agree that I have had access to the Company’s Confidential Information, as defined herein, that such
Confidential Information is valuable to the Company, and that the unauthorized release of that information would cause serious
damage to the Company. I therefore agree to hold in strictest confidence, and not to use, except for the benefit of the Company,
or to disclose to any person, firm or corporation without written authorization of the Company, any Confidential Information of
the Company. I understand that “Confidential Information” means any of the Company’s proprietary information,
technical data, trade secrets or know-how, including but not limited to, sketches and drawings, research, product plans, products,
services, customer lists and customers, markets, software, developments, inventions, processes, formulas, technology, engineering,
marketing, finances, business plans, or other business information disclosed to me by the Company either directly or indirectly
in writing, orally or by drawings or observation. In the event that I am required by law to disclose any Confidential Information,
I will give the Company prompt advance written notice thereof and will assist the Company in obtaining an order to protect the
Confidential Information from public disclosure.
2. Inventions
(a) Inventions
Retained and Licensed. I have attached hereto, as Exhibit A, a list describing all inventions, designs, original
works of authorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company
(collectively referred to as “Prior Inventions”), which belong to me, which relate to the Company’s business,
products or product development, and which are not assigned to the Company hereunder. If there are no such Prior Inventions indicated
on Exhibit A, I represent that there are no such Prior Inventions. If in the course of providing services to the Company,
I incorporate into a Company product, process or design a Prior Invention owned by me or in which I have an interest, the Company
is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify,
use and sell such Prior Invention as part of or in connection with such product, process or design.
(b) Assignment
of Inventions. I acknowledge that during my employment with the Company and/or during such time as I am providing services
to the Company as a consultant, contractor, or in any capacity (both my employment and/or my provision of services are referred
to collectively herein as “employment” or being “employed”), I may be expected to undertake creative work,
either alone or jointly with others, which may lead to inventions, original works of authorship, developments, concepts, improvements,
trade secrets or other intellectual property rights, whether or not patentable or registrable under copyright or similar laws
(“Inventions”). I hereby agree that all Inventions created while employed by the Company (whether or not on
the Company’s premises or using the Company’s equipment and materials or during regular business hours), and in connection
with my employment by the Company, shall be a work-for-hire and shall be the sole and exclusive property of the Company, and I
hereby assign to the Company all of my right, title and interest in and to any and all such Inventions. In addition, any Inventions
created after the termination of my employment with the Company which are based upon or derived from Confidential Information
shall be the sole and exclusive property of the Company, and I hereby assign to the Company all of my right, title and interest
in and to any and all such Inventions.
(c) Patent
and Copyright Registrations. I agree to assist the Company, or its designee, in every way, to secure the Company’s
rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto
in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto,
the execution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary
in order to apply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns and nominees
the sole and exclusive rights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or
other intellectual property rights relating thereto. I further agree that my obligation to execute or cause to be executed any
such instrument or papers shall continue after the termination of this Agreement.
(d) Application.
I agree that the provisions of this Section 2 shall apply with respect to any and all Inventions, whether created during my employment
with the Company or any predecessor entity, or during any pre-organization period that directly apply to the Company’s business
as of the date of creation. I acknowledge that the Company and its future investors shall rely on this representation.
3. Returning
Company Documents. I agree that, at the time I cease performing services for the Company, I will immediately deliver to
the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all software, devices, records, data,
notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other
documents or property, including all Confidential Information, or reproductions of any aforementioned items developed by me in
connection with my employment with the Company or otherwise belonging to the Company, its successors or assigns.
4. Non-Solicitation/Non-Service
(a) Non-Solicit.
To the extent permitted by law, I agree that while I am employed by the Company and for a period of twelve (12) months
immediately following the termination of my employment from the Company for any reason, I shall not either directly or
indirectly:
(i)
hire, solicit, induce,
recruit or encourage any of the Company’s employees or independent contractors to leave their employment or end
their relationship with the Company, or take away such employees or independent contractors, or attempt to solicit, induce,
recruit, encourage or take away employees and independent contractors of the Company, either for myself or for any other
person or entity; or
(ii)
solicit, induce, or attempt to solicit or induce any customer, vendor or client
of the Company to terminate his, her or its relationship with the Company or to encourage said customer, vendor or client to use
my services or those provided by an entity with which I am employed or affiliated to the detriment of the Company.
(b) Non-Service.
To the extent permitted by law, I agree that while I am employed by the Company and for a period of twelve (12) months immediately
following the termination of my employment from the Company for any reason, I shall not, directly or indirectly, on my own behalf
or on behalf of any person, firm, company, or entity, provide services or accept business of the type offered by the Company to
any entity that:
(i)
is a client, customer, or business partner of the Company; and/or
(ii)
was a client, customer, or business partner of the Company within the two year period preceding the termination of my employment
with the Company; and/or
(iii)
was a prospective client, customer, or business partner of the Company during the two year period preceding the termination of
my employment with the Company and which the Company has materially pursued or otherwise made material efforts in developing such
prospective relationship as of the termination date.
(c) Reasonableness/Judicial
Reformation. I agree that the restrictive covenants in this section are reasonable under the circumstances, and I further
agree that if, in the opinion of any court of competent jurisdiction, such restraint is not reasonable in any respect, such court
shall have the right, power and authority to excise or modify such provision or provisions of these covenants as to the court
shall appear not reasonable and to enforce the remainder of the covenants as so amended.
5. Non-Disparagement.
I agree that I will not, directly or indirectly, individually or in concert with others, engage in any conduct or make any statement
that is likely to have the effect of undermining or disparaging the reputation of the Company, or its good will, products, or
business opportunities, or that is likely to have the effect of undermining or disparaging the reputation of any officer, director,
agent, representative, shareholder or employee, past or present, of the Company.
6. Equitable
Relief & Remedies. I agree that it would be impossible or inadequate to measure and calculate the Company’s
damages from any breach of the covenants set forth herein. Accordingly, I agree that if I breach any of the covenants contained
herein, the Company will have available, in addition to any other right or remedy available, the right to cease making any payments
otherwise due to me (to the extent permitted by law) and the right to obtain an injunction from a court of competent jurisdiction
restraining such breach or threatened breach and to specific performance of any such provision of this Agreement. I agree that
the time periods of the restrictive covenants contained herein shall be extended by any and all periods during which I am in breach
of such restrictive covenants.
7. General
Provisions
(a) Severability.
I agree that if one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue
in full force and effect and, if legally permitted, such offending provision or provisions shall be replaced with an enforceable
provision or enforceable provisions that as nearly as possible effects the parties’ intent. Without limiting the generality
of the foregoing, the parties hereby expressly state their intent that, to the extent any provision of this Agreement is unenforceable
due to the scope (temporal, geographic or otherwise) being too broad, the court or arbitrator properly adjudicating any dispute
with respect thereto shall modify such provision to the minimum extent necessary to cause such provision to be enforceable.
(b) Successors
and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and
will be for the benefit of the Company, its successors, and its assigns. I acknowledge and agree that I cannot assign or transfer
this Agreement nor any rights hereunder without the express written consent of the Company, in its absolute discretion. The Company,
however, shall have the right to assign this Agreement and/or any of its rights or obligations set forth herein.
(c) Survival.
I agree that notwithstanding anything in this Agreement to the contrary, the provisions of this Agreement shall survive any termination
of my employment with the Company and/or termination of this Agreement, and shall remain in full force and effect indefinitely.
(d) Governing
Law. This Agreement shall be construed, interpreted and governed in accordance with the laws of the State of California,
without reference to rules relating to conflicts of law.
(e) Amendment.
This Agreement may only be amended by written agreement of the parties hereto.
[remainder
of page intentionally left blank; signature page follows]
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Marina
Biotech, Inc. |
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/s/
Joseph W. Ramelli |
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Name: |
Joseph
W. Ramelli |
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Title: |
Chief
Executive Officer |
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Date:
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2/13/17 |
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/s/
Larn Hwang |
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Name: |
Larn
Hwang |
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Date: |
2/13/17 |
EXHIBIT
A
LIST
OF PRIOR INVENTIONS
AND
ORIGINAL WORKS OF AUTHORSHIP
| Title
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Date
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Identifying
Number
or
Brief Description |
| 1 |
20150147823 |
METHODS
AND COMPOSITIONS FOR PERSONALIZED MEDICINE BY POINT-OF-CARE DEVICES FOR BRAIN NATRIURETIC PEPTIDE |
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| 2 |
20150104520 |
Nanoparticle
Formulations in Biomarker Detection |
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| 3 |
20130281376 |
SPARC
MICROENVIRONMENT SIGNATURE, PLASMA SPARC, AND LDH AS PROGNOSTIC BIOMARKERS IN THE TREATMENT OF CANCER |
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| 4 |
20120183538 |
SPARC
ANTISENSE COMPOSITIONS AND USES THEREOF |
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| 5 |
20090280167 |
ENHANCEMENT
OF DRUG THERAPY BY MIRNA |
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| 6 |
20090220589 |
TREATMENT,
DIAGNOSTIC, AND METHOD FOR DISCOVERING ANTAGONIST USING SPARC SPECIFIC MIRNAS |
___
No inventions or improvements
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Additional Sheets Attached
| Signature:
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/s/ Larn Hwang |
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| Print
Name: |
Larn Hwang |
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| Date: |
February 13, 2017 |
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