Exhibit 10.1
EXECUTIVE TRANSITION AGREEMENT
THIS EXECUTIVE TRANSITION AGREEMENT (this “Agreement”) is entered into as of January 5, 2024 (the “Effective Date”) between Athira Pharma, Inc. (the “Company”) and Hans Moebius (“Executive”) (collectively referred to as the “Parties” or individually referred to as a “Party”).
R E C I T A L S
WHEREAS, the Parties previously entered into an “Offer of Employment” letter agreement dated September 13, 2020, as subsequently amended (the “Offer Letter”), which the Parties intend to replace with this Agreement;
WHEREAS, the Parties previously entered into that certain Change in Control and Severance Agreement dated as of the effective date of the Company’s registration statement relating to the Company’s initial public offering, as may be subsequently amended (the “Severance Agreement”); and
WHEREAS, the Company desires to continue to retain the services of Executive on a transitional basis upon the terms and subject to the conditions set forth in this Agreement;
WHEREAS, Executive desires to provide services to the Company pursuant to the terms and conditions set forth in this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the premises and mutual covenants herein and for other good and valuable consideration, the Parties agree as follows:
2
3
4
5
[Remainder of page is intentionally blank; Signature page follows]
6
IN WITNESS WHEREOF, each of the Parties has executed this Agreement as of the day and year first above written.
“COMPANY”
Athira Pharma, Inc.
By: /s/ Mark Litton_______________________
Name: Mark Litton________________________
Its: President and Chief Executive Officer______
Address: 18706 North Creek Parkway
Suite 104
Bothell, WA 98011
“EXECUTIVE”
HANS MOEBIUS, an individual
/s/ Hans Moebius______________________________
Hans Moebius
Address: ______________________________
7
SCHEDULE 1
Senior Scientific Advisor Duties
Exhibit A
CONSULTING AGREEMENT
This Consulting Agreement (this “Agreement”) is made and entered into as of the beginning of the day on April 1, 2024 (the “Effective Date”) by and between Athira Pharma, Inc. (the “Company”) and moebius-consult GmbH (“Consultant”) (each herein referred to individually as a “Party,” or collectively as the “Parties”).
The Company desires to retain Consultant as an independent contractor to perform consulting services for the Company that are outside the usual course of the Company’s business. Consultant is customarily engaged in an independently established trade, occupation, or business of the same nature of the services to be performed, and Consultant is willing to perform such services, on the terms described below. In consideration of the mutual promises contained herein, the Parties agree as follows:
Consultant shall perform the services described in Exhibit A (the “Services”) for the Company (or its designee), and the Company agrees to pay Consultant the compensation described in Exhibit A for Consultant’s performance of the Services. The Services shall at all times be performed by the Consultant’s principal, Hans Moebius (the “Service Provider”). Service Provider acknowledges that, as an owner of Consultant, Service Provider is a third-party beneficiary of the consideration paid to Consultant by the Company hereunder. Service Provider and Consultant also acknowledge that Service Provider will receive Confidential Information under this Agreement, from which Service Provider and Consultant will derive significant value, including by enabling Service Provider and Consultant to optimize performance of the Services hereunder. The Parties agree that this Agreement shall be null and void, and shall not go into effect, if Service Provider’s employment with the Company ends prior to the end of the day on March 31, 2024.
-2-
-3-
Upon the termination of this Agreement, or upon Company’s earlier request, Consultant and Service Provider will immediately deliver to the Company, and will not keep in their possession, recreate, or deliver to anyone else, any and all Company property, including, but not limited to, Confidential Information, tangible embodiments of the Inventions, all devices and equipment belonging to the Company, all electronically-stored information and passwords to access such property, those records maintained pursuant to Section 3.D and any reproductions of any of the foregoing items that Consultant and/or Service Provider may have in their respective possession or control.
-4-
-5-
To the fullest extent permitted under applicable law, from the date of this Agreement until twelve (12) months after the termination of this Agreement for any reason (the “Restricted Period”), Consultant will not, and will cause Service Provider not to, directly or indirectly, solicit any of the Company’s employees to leave their employment, or attempt to solicit employees of the Company, either for Consultant or for any other person or entity. Consultant agrees that nothing in this section shall affect Consultant’s continuing obligations under this Agreement during and after Restricted Period, including, without limitation, Consultant’s obligations under Section 2.
Consultant agrees to indemnify and hold harmless the Company and its affiliates and their directors, officers and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with any violation or claimed violation of a third party’s rights resulting in whole, or in part, from the Company’s use of the Inventions or other deliverables of Consultant under this Agreement or Consultant’s or Service Provider’s breach of any obligations under any agreement with a third party.
IN NO EVENT SHALL COMPANY BE LIABLE TO CONSULTANT OR TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS OR LOSS OF BUSINESS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL COMPANY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID BY COMPANY TO CONSULTANT UNDER THIS AGREEMENT FOR THE SERVICES, DELIVERABLES OR INVENTION GIVING RISE TO SUCH LIABILITY.
-6-
-7-
-8-
Athira Pharma, Inc.
18706 North Creek Parkway
Suite 104
Bothell, WA 98011
Attention: General Counsel
Email: mark.worthington@athira.com
-9-
(signature page follows)
-10-
IN WITNESS WHEREOF, the Parties hereto have executed this Consulting Agreement as of the date first written above.
“CONSULTANT” “COMPANY”
MOEBIUS-CONSULT GmbH ATHIRA PHARMA, INC.
By: ____________________________________ By: ____________________________
Name: __________________________________ Name: __________________________
Title: ___________________________________ Title: ___________________________
Address for Notice: _______________________
Email: ______________________
With respect to Sections 1, 2, 3, 5, 11, and 12 only:
“SERVICE PROVIDER”
HANS MOEBIUS, an individual
______________________________________
EXHIBIT A
SERVICES AND COMPENSATION
Name: Mark Litton
Title: Chief Executive Officer
Within ten (10) business days following the end of each calendar month that occurs during the Term, Consultant shall submit to the Company a written invoice for Services and expenses, and such statement shall be subject to the approval of the contact person listed above or other designated agent of the Company. The Company will remit payment for properly submitted and approved invoices within thirty (30) days following invoice submission. In order to help prevent adverse tax consequences to Consultant under Section 409A (as defined below), in no event will any payment under Section 3.A. of this Exhibit be made later than the later of (1) March 15th of the calendar year following the calendar year in which such payment was earned, or (2) the 15th day of the third (3rd) month following the end of the Company’s fiscal year in which such payment was earned.
All payments and benefits provided for under this Agreement are intended to be exempt from or otherwise comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance thereunder (together, “Section 409A”), so that none of the payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities or ambiguous terms herein will be interpreted to be exempt or so comply. Each payment and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. In no event will the Company reimburse Consultant or Service Provider for any taxes that may be imposed on Consultant or Service Provider as a result of Section 409A.
-12-