Exhibit 10.6
TRANSITION and Separation AGREEMENT
and release of claims
This Transition and Separation Agreement and Release of Claims (the “Agreement”) is entered into by and among Anthony Guzzo (“Executive”) and Phathom Pharmaceuticals, Inc. (the “Company”).
Recitals
WHEREAS, Executive currently serves as the Chief Accounting Officer of the Company and has expressed an intention to voluntarily resign his position with the Company;
WHEREAS, in order to ensure a smooth transition of Executive’s duties, the Company desires for Executive to continue employment with the Company through August 15, 2022 (such date, or any earlier date on which Executive’s employment terminates for any reason, “Separation Date”);
WHEREAS, in recognition of Executive’s past services and contributions to the Company and agreement to continue his employment and ensure a smooth transition, the Company desires to provide Executive with the Separation Benefits (as defined below); and
WHEREAS, the parties hereto desire to set forth in writing the terms and conditions governing Executive’s continued employment and eligibility to receive the Separation Benefits.
NOW THEREFORE, in consideration of the mutual promises contained herein, the adequacy of which is hereby acknowledged by each party, Executive and the Company hereby agree as follows:
Agreement
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(b) Provided the Separation Date occurs as a result of (i) the expiration of the Employment Period on August 15, 2022, or (ii) any earlier termination of Executive’s employment by the Company, including as a result of Executive’s death or disability (other than due to (x) circumstances described as “Cause” definition under the Company’s 2019 Incentive Award Plan or (y) Executive’s material breach of Section 5 hereof (such termination pursuant to clauses (x) or (y), a “Cause Termination”), and other than as a result of Executive’s resignation, and subject to Executive’s continued compliance with Section 5, including Section 5(e) regarding the return of Company property, and the occurrence of the Release Effective Date (as defined below), in addition to the amounts set forth in Section 3(a), Executive shall be entitled to receive the following separation benefits (the “Separation Benefits”):
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(c) As a condition to Executive’s receipt of the foregoing Separation Benefits pursuant to this Section 2(d), Executive shall execute (but not prior to the Separation Date) and not revoke a general release of all claims in favor of the Company (the “Release”) in the form attached hereto as Exhibit B. The date on which Executive’s Release becomes effective in accordance with its terms is referred to as the “Release Effective Date.”
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(i) On behalf of Executive and his executors, administrators, heirs and assigns, Executive hereby releases and forever discharge the Company Parties, 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 any of the Company Parties by reason of any matter, cause, or thing whatsoever from the beginning of time through and including the execution date of this Agreement, including, without limiting the generality of the foregoing: any Claims arising directly or indirectly out of, relating to, or in any other way involving in any manner whatsoever Executive’s employment by the Company or its affiliates or the separation thereof, including without limitation any and all Claims arising under federal, state, or local laws relating to employment; any Claims of any kind that may be brought in any court or administrative agency; any Claims arising under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act, the Civil Rights Act of 1866, Section 1981, 42 U.S.C. § 1981, the Family and Medical Leave Act of 1993, the Americans with Disabilities Act of 1990, the False Claims Act, the Employee Retirement Income Security Act, the Worker Adjustment and Retraining Notification Act, the Fair Labor Standards Act, the Sarbanes-Oxley Act of 2002, the National Labor Relations Act of 1935, the Uniformed Services Employment and Reemployment Rights Act of 1994, Fair Credit Reporting Act, New Jersey's Conscientious Employee Protection Act, the New Jersey Soldiers' and Sailors' Civil Relief Act, Millville Dallas Airmotive Plant Job Loss Notification Act, New Jersey Family Leave Act, New Jersey Law Against Discrimination, New Jersey Security and Financial Empowerment Act, New Jersey State Wage and Hour Law, New Jersey Paid Sick Leave Law, and New Jersey State Wage Payment Law, or any similar state law, each of the foregoing as may have been amended, and any other federal, state, or local statute, regulation, ordinance, constitution, or order concerning labor or employment, termination of labor or employment, wages and benefits, retaliation, leaves of absence, or any other term or condition of employment; Claims for breach of contract; Claims for unfair business practices; Claims arising in tort, including, without limitation, Claims of wrongful dismissal or discharge, discrimination, harassment, retaliation, fraud, misrepresentation, defamation, libel, 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.
(ii) Notwithstanding the generality of the foregoing, Executive does not release any Claims that cannot be released as a matter of law including, without limitation, (A) Executive’s right to file for unemployment insurance benefits or any state disability insurance benefits pursuant to the terms of applicable state law; (B) Executive’s right to file claims for workers’ compensation insurance benefits under the terms of any worker’s compensation insurance policy or fund of the Company; (C) Executive’s right to file a charge of discrimination, harassment, interference with leave rights, failure to accommodate, or retaliation with the Equal Employment Opportunity Commission or any other federal, state or local government agency, or to cooperate with or participate in any investigation conducted by such agency; provided, however, that Executive hereby releases Executive’s right to receive damages in any such proceeding brought by Executive or on Executive’s behalf; (D) Executive’s right to communicate directly with the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission, the U.S. Department of Justice or similar agency, or to cooperate with or participate in any investigation by such agency; or (E) Executive’s right to make any disclosure that are protected under the whistleblower provisions of applicable law. For the avoidance of doubt, Executive does not need to notify or obtain the prior authorization of the Company to exercise any of the foregoing rights. Furthermore, Executive does not release hereby any rights that Executive may have relating to (x) indemnification by the Company or its affiliates under any indemnification agreement with the Company, the Company’s Bylaws or any applicable law or under any applicable insurance policy with respect to Executive’s liability as an employee of the Company; (y) Executive’s vested accrued benefits under the Company’s respective benefits and compensation plans; and (z) any Claims for breach of this Agreement.
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[Signature page follows]
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EXECUTIVE’S ACCEPTANCE OF AGREEMENT
BEFORE SIGNING HIS NAME TO THIS AGREEMENT, EXECUTIVE STATES THE FOLLOWING: EXECUTIVE HAS READ THE AGREEMENT, HE UNDERSTANDS IT AND HE KNOWS THAT HE IS GIVING UP IMPORTANT RIGHTS. HE HAS OBTAINED SUFFICIENT INFORMATION TO INTELLIGENTLY EXERCISE HIS OWN JUDGMENT. HE HAS BEEN ADVISED THAT HE SHOULD CONSULT WITH AN ATTORNEY BEFORE SIGNING IT, AND HE HAS SIGNED THE AGREEMENT KNOWINGLY AND VOLUNTARILY.
Executed this ____ day of _____, 2022.
_____________________________________
Anthony Guzzo
Agreed and Accepted:
Phathom Pharmaceuticals, Inc.
___________________________
By: Joe Hand
Title: Chief Administrative Officer
Date:
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Exhibit A
Proprietary Information and Inventions Assignment Agreement
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Exhibit B
Release of Claims
EXHIBIT A
GENERAL RELEASE OF CLAIMS
This General Release of Claims (“Release”) is entered into as of this day of , 2022, between Anthony Guzzo (“Executive”), and Phathom Pharmaceuticals, Inc. (the “Company”) (collectively referred to herein as the “Parties”).
WHEREAS, Executive and the Company are parties to that certain Transition and Separation Agreement and Release of Claims dated as of _______, 2022 (the “Agreement”);
WHEREAS, the Parties agree that Executive is entitled to certain “Separation Benefits” under Section 3 of the Agreement, subject to Executive’s execution of this Release; and
WHEREAS, the Company and Executive now wish to fully and finally to resolve all matters between
them.
NOW, THEREFORE, in consideration of, and subject to, the Separation Benefits payable to Executive pursuant to Section 3 of the Agreement, the adequacy of which is hereby acknowledged by Executive, and which Executive acknowledges that he would not otherwise be entitled to receive, Executive and the Company hereby agree as follows:
1. Release.
(i) On behalf of Executive and his executors, administrators, heirs and assigns, Executive hereby releases and forever discharge the Company Parties, 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 any of the Company Parties by reason of any matter, cause, or thing whatsoever from the beginning of time through and including the execution date of this Release, including, without limiting the generality of the foregoing: any Claims arising directly or indirectly out of, relating to, or in any other way involving in any manner whatsoever Executive’s employment by the Company or its affiliates or the separation thereof, including without limitation any and all Claims arising under federal, state, or local laws relating to employment; any Claims of any kind that may be brought in any court or administrative agency; any Claims arising under the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act, the Civil Rights Act of 1866, Section 1981, 42 U.S.C. § 1981, the Family and Medical Leave Act of 1993, the Americans with Disabilities Act of 1990, the False Claims Act, the Employee Retirement Income Security Act, the Worker Adjustment and Retraining Notification Act, the Fair Labor Standards Act, the Sarbanes-Oxley Act of 2002, the National Labor Relations Act of 1935, the Uniformed Services Employment and Reemployment Rights
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Act of 1994, Fair Credit Reporting Act, New Jersey's Conscientious Employee Protection Act, the New Jersey Soldiers' and Sailors' Civil Relief Act, Millville Dallas Airmotive Plant Job Loss Notification Act, New Jersey Family Leave Act, New Jersey Law Against Discrimination, New Jersey Security and Financial Empowerment Act, New Jersey State Wage and Hour Law, New Jersey Paid Sick Leave Law, and New Jersey State Wage Payment Law, or any similar state law, each of the foregoing as may have been amended, and any other federal, state, or local statute, regulation, ordinance, constitution, or order concerning labor or employment, termination of labor or employment, wages and benefits, retaliation, leaves of absence, or any other term or condition of employment; Claims for breach of contract; Claims for unfair business practices; Claims arising in tort, including, without limitation, Claims of wrongful dismissal or discharge, discrimination, harassment, retaliation, fraud, misrepresentation, defamation, libel, 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.
(ii) Notwithstanding the generality of the foregoing, Executive does not release any Claims that cannot be released as a matter of law including, without limitation, (A) Executive’s right to file for unemployment insurance benefits or any state disability insurance benefits pursuant to the terms of applicable state law; (B) Executive’s right to file claims for workers’ compensation insurance benefits under the terms of any worker’s compensation insurance policy or fund of the Company; (C) Executive’s right to file a charge of discrimination, harassment, interference with leave rights, failure to accommodate, or retaliation with the Equal Employment Opportunity Commission or any other federal, state or local government agency, or to cooperate with or participate in any investigation conducted by such agency; provided, however, that Executive hereby releases Executive’s right to receive damages in any such proceeding brought by Executive or on Executive’s behalf; (D) Executive’s right to communicate directly with the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission, the U.S. Department of Justice or similar agency, or to cooperate with or participate in any investigation by such agency; or (E) Executive’s right to make any disclosure that are protected under the whistleblower provisions of applicable law. For the avoidance of doubt, Executive does not need to notify or obtain the prior authorization of the Company to exercise any of the foregoing rights. Furthermore, Executive does not release hereby any rights that Executive may have relating to (x) indemnification by the Company or its affiliates under any indemnification agreement with the Company, the Company’s Bylaws or any applicable law or under any applicable insurance policy with respect to Executive’s liability as an employee of the Company; (y) Executive’s vested accrued benefits under the Company’s respective benefits and compensation plans; and (z) any Claims for breach of this Release.
(b) Executive acknowledges that he has had at least twenty-one (21) calendar days in which to consider whether to execute the Release, no one hurried Executive into executing the Release during that period and no one coerced Executive into executing the Release. Executive understands that the Company’s obligations under the Release will not become effective or enforceable until the eighth (8th) calendar day after the date Executive signs the Release provided that Executive has timely delivered it to the Company, and that in the seven (7) day period following the date Executive delivers a signed copy of the Release to the Company, Executive understands that Executive may revoke his acceptance of the Release. Executive understands that the Separation Benefits will become available to him at such time after the Effective Date as provided in this Release. Executive further understands that the offer of the Separation Benefits and this Release will expire in the event the Effective Date has not occurred on or before the thirtieth (30th) calendar day after the Separation Date.
(c) Executive represents and warrants that he is the sole owner of all Claims relating to his employment or service with the Company and/or with any predecessor of the Company and that he has not assigned or transferred any Claims relating to his employment or service to any other person or entity.
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Executive understands and agrees that the Release will not be construed at any time as an admission of liability or wrongdoing by either the Company or Executive.
2. Continuing Obligations. Executive hereby expressly reaffirms his obligations under the Proprietary Information and Inventions Agreement (the “PIIA”), a copy of which is attached to the Agreement as Exhibit A and incorporated herein by reference, and his obligations under Section 5 of the Agreement, and agrees that such obligations shall survive the Separation Date.
3. No Assignment. Executive represents and warrants to the Company Parties that there has been no assignment or other transfer of any interest in any Claim that Executive may have against the Company Parties. Executive agrees to indemnify and hold harmless the Company Parties from any liability, claims, demands, damages, costs, expenses and attorneys’ fees incurred as a result of any such assignment or transfer from Executive.
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[Signature Page Follows]
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EXECUTIVE’S ACCEPTANCE OF AGREEMENT
BEFORE SIGNING HIS NAME TO THIS RELEASE, EXECUTIVE STATES THE FOLLOWING: EXECUTIVE HAS READ THE RELEASE, HE UNDERSTANDS IT AND HE KNOWS THAT HE IS GIVING UP IMPORTANT RIGHTS. HE HAS OBTAINED SUFFICIENT INFORMATION TO INTELLIGENTLY EXERCISE HIS OWN JUDGMENT. HE HAS BEEN ADVISED THAT HE SHOULD CONSULT WITH AN ATTORNEY BEFORE SIGNING IT, AND HE HAS SIGNED THE RELEASE KNOWINGLY AND VOLUNTARILY.
Executed this 5th day of April, 2022.
/s/ Anthony Guzzo______________
Anthony Guzzo
Agreed and Accepted:
Phathom Pharmaceuticals, Inc.
/s/ Joe Hand___________________________
By: Joe Hand
Title: Chief Administrative Officer
Date: 5th April 2022
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