(State or other jurisdiction
of incorporation or organization)
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
EVELO BIOSCIENCES, INC.
Date: April 25, 2019
/s/ Daniel S. Char
Daniel S. Char
General Counsel & Secretary
JOB TITLE AND DUTIES
You are employed as Chief Medical Officer with effect from 15 December 2017. Your continuous employment started on this date.
You will perform all duties required of you by the board of directors of the Company (the
Whilst employed by the Company you must:
during your hours of work devote all of your time, attention and abilities to the business of the Company and carry out your duties with due care and attention;
not, without the Company’s prior written consent, be in any way directly or indirectly engaged or concerned with any other business or employment (with the exception of Weatherden Limited) whether during or outside your hours of work for the Company;
use your best efforts to promote and protect the interests of the Company and its subsidiaries and affiliates (each a “Group Company” and together the “Group”) and observe the utmost good faith towards the Company and the Group; and
comply with all the Company’s rules, regulations and policies from time to time in force and any rules which the Company’s clients may require you to observe whilst working on their premises.
COMMENCEMENT OF EMPLOYMENT
No employment with a previous employer counts as part of your period of continuous employment with the Company.
Your gross basic salary is £306,015 per annum (or such other sum as agreed from time to time). The salary will be paid after deduction of all taxes and national insurance contributions and is payable in equal monthly instalments into your nominated bank account on or around the last working day of each month.
Your salary will be reviewed at regular intervals.
For the purposes of the Employment Rights Act 1996, sections 13-27, you agree that the Company may deduct from your remuneration any sums due from you to the Company including, without limitation, your pension contributions (if any) and any overpayments, loans or advances made to you by the Company.
The Company may, at its absolute discretion pay you an annual, performance-based bonus upon the achievement of certain performance goals determined by the Board from time to time (the “Bonus”). The terms and amount of this Bonus (and whether it is paid in cash or in other forms, such as shares or share options) will be approved from time to time and notified to you by the Board in its sole discretion. In determining whether a bonus is to be paid, and if so the size of that bonus the Board may take into account such factors as it considers, in its absolute discretion, to be appropriate, which may include the anticipated future performance or service and/or past performance of you and/or the Company and/or the Group, although it has no obligation to take any of these factors into account. The bonus will not accrue, nor will you have any legitimate expectation as to the size or form of the discretionary bonus, until the Company pays it to you. There are no circumstances whether in reliance on express or implied terms or otherwise where you can require pay out of a particular sum or payment in a particular form or claim compensation for loss of such a bonus. Upon the termination of your employment or (if earlier) upon either party giving notice of termination you will have no rights as a result of this Agreement or any alleged breach of it to any compensation under or in respect of any bonus scheme.
NORMAL HOURS OF WORK
You will be expected to work a minimum of 40 hours per week during the hours of 8.00am to 8.00pm with such additional hours as are necessary for the performance of your duties.
You may from time to time be required to work additional hours in order to properly perform your duties and/or allow the Company to meet its obligations to its clients. You are not entitled to additional remuneration for authorised hours worked in excess of your normal hours.
In particular, you agree to work hours that exceed the maximum average weekly working time limit of 48 hours imposed by the Working Time Regulations 1998. You may withdraw your agreement on giving to the Company 3 months’ prior written notice.
PLACE OF WORK
Your normal place of work will be Weatherden Limited, 93 Jack Straws Lane, Oxford, OX3 0DW England but the Company may change your normal place of work on giving you at least one month’s notice of any permanent change to your normal place of work.
You may be required to work at any of the Company’s premises or at the premises of its customers, clients, suppliers or associates around the world from time to time.
You may be required to work overseas for periods exceeding one month, however there are currently no particulars to be entered in this regard.
The length of prior written notice that you must give the Company in order to terminate your employment is 3 months.
The Company must give you 3 months’ notice to terminate your employment.
The Company reserves the right in its absolute discretion to terminate your employment immediately either instead of or at any time after notice of termination is given by either party and to make a payment in lieu of notice. For this purpose, pay in lieu of notice will be a sum equal to only your salary that you would have received during the period of notice outstanding on the termination of your employment. For the avoidance of doubt, the Company’s right to make a payment in lieu of notice does not give you a right to receive such a payment in lieu of notice.
The Company may, at its absolute discretion, require you not to attend at work and/or not to undertake all or any of your duties hereunder during any period of notice (whether given by the Company or you), provided always that the Company shall continue to pay your salary and contractual benefits. For the avoidance of doubt, there is no obligation on the Company to provide you with any work during any period of notice and you will not be entitled to work on your own account or on account of any other person, firm or company during that period.
The Company may, notwithstanding any other terms of your employment and irrespective of whether the grounds for termination arose before or after your employment began, at any time by notice in writing, terminate your employment with immediate effect (without any prior period of notice, payment in lieu of notice or payment of any Severance Payments) and without compensation if:-
if you are convicted of a criminal offence other than one which in the opinion of the Board does not affect your position as an employee of the Company, bearing in mind the nature of your duties and the capacity in which you are employed;
you are guilty of any serious default or misconduct in connection with or affecting the business of the Group, commit any serious or repeated breach of your obligations under your employment, are guilty of serious neglect or negligence in the performance of your duties or behave in a manner (whether on or off duty) which is likely to bring the Group into disrepute or which seriously impairs your ability to perform your duties;
in the reasonable opinion of the Company, you have failed to substantially perform your duties to the Company (other than such failure resulting from any material illness that you are suffering) (provided that, to the extent such failure can be cured, the Company shall have provided you with at least 30 days’ notice of such failure and you have not remedied the failure in the 30-day period);
in the reasonable opinion of the Company, you have failed in any material respect to carry out or comply with any lawful and reasonable directive of the Board consistent with the terms of this Agreement (provided that to the extent such failure can be cured, the Company shall have provided you with at least 30 days’ notice of such failure and you have not remedied the failure in the 30-day period);
you are found to be using or under the influence of, or in possession of illegal drugs on the Company’s (or any Group Company’s) premises or while performing your duties under this Agreement;
you do not have the right to work in the UK or you lose the right to work in the UK;
you are found guilty of misconduct by any applicable regulatory body or tribunal or any successor bodies.
HOLIDAYS AND HOLIDAY PAY
You are entitled, to 28 days’ paid holiday in each holiday year (inclusive of all customary and public holidays recognised by the Company).
The Company’s holiday year runs from 1st January to 31st December.
If your employment begins or ends part way through the holiday year your holiday entitlement for that year will be assessed on a pro rata basis.
On termination of your employment you will be entitled to pay in lieu of any holidays which have accrued to you in the holiday year in which the termination takes place but which you have not taken at that time. The Company may require you to take unused holidays during your notice period. If on the termination of your employment, you have taken holidays in excess of the statutory holiday entitlement which has accrued to you at that time you will be required to repay to the Company holiday pay in respect of those holidays.
Holidays must be taken at times agreed by the Company and sufficient notice of a request to take holiday must be given to the Company.
All holidays must be taken in the holiday year in which they accrue and cannot be carried over to the next holiday year without the prior consent of the Company.
SICKNESS OR OTHER ABSENCE
If you are absent from work for any reason and your absence has not previously been authorised by the Company you must inform the Company by 9am on your first day of absence.
In respect of absence due to sickness, injury or accident that continues for more than 7 consecutive days (including weekends) you must provide the Company with a medical certificate stating the reason for the absence. Thereafter medical certificates must be provided to the Company to cover the remainder of the period of continuing sickness absence. Failure to follow these requirements may result in disciplinary action and loss of Statutory Sick Pay and company sick pay.
If you are absent from work due to sickness, injury or accident and comply with the requirements in this Clause you will be paid:
Statutory Sick Pay in accordance with the provisions of the applicable legislation. For the purposes of Statutory Sick Pay, the “qualifying days” are Monday to Friday inclusive; and
At the discretion of the Board, Company sick pay equal to full salary for the first 2 weeks’ of absence due to sickness or injury in each rolling 12 month period where you satisfy the relevant requirements as set out in the Handbook.
Payment of Company sick pay shall be made inclusive of any Statutory Sick Pay payable to you.
The Company reserves the right to require you to undergo a medical examination conducted by a doctor nominated by the Company, at the Company’s expense.
If the sickness, injury or accident is caused by the act or omission of a third party you must, at the Company’s request, include in any claim for damages against such third party a claim in respect of moneys paid by the Company under this Clause 9.6 and must refund to the Company any damages recovered under that head.
PENSION ARRANGEMENTS AND OTHER BENEFITS
During the period of your employment with the Company, the Company will comply at all times with the employer duties under Part 1 of the Pensions Act 2008. Further details are set out in the Benefits Section of the Handbook.
Company’s right to terminate pensions arrangements
Continuing to receive the £10,000 per annum payment; or
Discontinuing the £10,000 per annum payment & accepting benefits provided by the company that will be described in the Benefits Section of the Handbook. The Company reserves the right to alter or amend its employee benefit programs at any time.
divulge or communicate to any person;
use for your own purposes or for any purposes other than those of the Company or, as appropriate, any of its clients; or
through any failure to exercise due care and diligence, cause any unauthorised disclosure of;
You are required to comply with our data protection policy, as set out in the Handbook, when handling personal data in the course of employment including personal data relating to any employee, customer, client, supplier or agent of the Company.
For the purpose of compliance with the Data Protection Act 2018 and General Data Protection Regulations (EU) 2016/679 (collectively the Data Protection Legislation), the Company, may process your personal data in order for us to meet our obligations under these terms of employment, more specifically:
for the processing of payroll;
for the establishment, and maintenance of any benefits available to you under these terms of employment;
for advice we may require from our professional advisers in relation to your employment;
to comply with our obligations under any insurance policy we may have in relation to your employment;
to meet any statutory and / or regulatory reporting obligations, we have with respect to your employment; and
where, due to any accident or injury, whether suspected or actual, in the course of your employment, we are required to make a report to any emergency, or health services, including their respective insurers.
Special Category Personal Data and Personal Data have specific meanings under the Data Protection Legislation. Where the Company is required to process any Special Category Personal Data or transfer any Personal Data outside of the European Economic Area, we will provide you with a separate consent document for your consideration before we process of transfer your data.
COMPANY AND CLIENT PROPERTY
be and remain the property of the Company or the relevant client; and
be handed over by you to the Company on demand and in any event on the termination of your employment.
In this Clause 14, unless the context otherwise requires, “Change in Control” means a “Change in Control” as defined in the Company’s 2018 Incentive Award Plan.
If your employment with the Company is terminated by the Company other than pursuant to Clause 7.5, then subject to the following conditions of this Clause 14 and in addition to any entitlement you may have to prior notice of termination of employment under Clause 7, you will be entitled to the following payments and benefits (each a “Severance Entitlement”):-
if there has not been a Change in Control in the period of 12 months before the date of termination of the employment (the “Termination Date”), you shall be entitled to the payment of:
6 months’ basic salary, paid in equal instalments in accordance with the Company’s ordinary payroll practices over the 6 months following the Termination Date; and
Either £7,500 in lieu of the continuation of any contractual benefits, paid in equal instalments in accordance with the Company’s ordinary payroll practices OR continuation of all employee benefits as described in the Benefits section of the Handbook over the 6 months following the Termination Date.
if there has been a Change in Control in the period of 12 months before the Termination Date, you shall be entitled to the following payments and benefits:
all unvested equity or equity-based awards under any Company equity compensation plans that vest solely based upon the passage of time shall immediately become 100% vested on the Termination Date (for the avoidance of doubt, with any such awards that vest in whole or in part based upon the attainment of performance vesting conditions being governed by the terms of the applicable award agreement);
9 months’ basic salary, paid in equal instalments in accordance with the Company’s ordinary payroll practices over the 9 months following the Termination Date;
100% of your target annual bonus for the year in which the Termination Date occurs, paid in equal instalments in accordance with the Company’s ordinary payroll practices over the 9 months following the Termination Date; and
Either £10,000 in lieu of the continuation of any contractual benefits, paid in equal instalments in accordance with the Company’s ordinary payroll practices OR continuation of all employee benefits as described in the Benefits section of the Handbook over the 9 months following the Termination Date.
The Severance Entitlements are together in full and final settlement of all and any rights and claims that you may have against the Company or any Group Company (as defined in clause
You acknowledge that the Company has agreed to the terms of this Clause 14 in reliance on the undertakings that you have given in Clauses 11 and Clause 15. If you are in breach of any of the terms of Clause 11 or Clause 15, then you will have no entitlement to any Severance Entitlement; and if your beach of any of the terms of Clause 11 or Clause 15 occurs after any payment of provision to you of any Severance Entitlement then you will repay to the Company, immediately upon demand by the Company, the value of all of the Severance Entitlements received by you and the Company shall be entitled to recover the same as a debt.
RESTRICTIONS AFTER TERMINATION
means together or separately the Company, any holding company or undertaking of the Company and any subsidiaries
means any person with which the Company had discussions during the Relevant Period regarding the possible distribution, sale or supply of Restricted Products or Restricted Services and with which during such period you, or any employee who was under your direct or indirect supervision, had material dealings in the course of your employment, but always excluding therefrom any division, branch or office of that person with which you and/or any such employee had no dealings during that period;
England, Scotland, Wales; and
any other country in the world where, on the Termination Date, the Company dealt in Restricted Products or Restricted Services;
means any person who was a director, employee or consultant of the Company at any time within the Relevant Period who by reason of that position and in particular his seniority and expertise or knowledge of confidential information or knowledge of or influence over the clients, customers or contacts of the Company is
so as to compete with the Company, solicit business from or canvas any Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
so as to compete with the Company, accept orders from, act for or have any business dealings with, any Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
within the Restricted Area, be employed or engaged in that part of a business or person which is involved in the business of researching into, developing, manufacturing, distributing, selling, supplying or otherwise dealing with Restricted Products or Restricted Services, if the business or person is or seeks to be in competition with the Company. For the purposes of this sub-clause, acts done by the you outside the Restricted Area shall nonetheless be deemed to be done within the Restricted Area where their primary purpose is to distribute, sell, supply or otherwise deal with Restricted Products or Restricted Services in the Restricted Area;
solicit or induce or endeavour to solicit or induce any person who was a Restricted Employee (and with whom you had dealings during the Relevant Period) to cease working for or providing services to the Company, whether or not any such person would thereby commit a breach of contract;
employ or otherwise engage any Restricted Employee in the business of researching into, developing, manufacturing, distributing, selling, supplying or otherwise dealing with Restricted Products or Restricted Services if that business is, or seeks to be, in competition with the Company; or
solicit or induce or endeavour to solicit or induce any Supplier to cease to deal with the Company and shall not interfere in any way with any relationship between a Supplier and the Company.
Application of restrictive covenants to other Group Companies
acquired knowledge of its products, services, trade secrets or confidential information; or
had personal dealings with its Customers or Prospective Customers; or
supervised directly or indirectly employees having personal dealings with its Customers or Prospective Customers;
Effect of suspension on Restricted Period
during your employment or after the Termination Date engage in any trade or business or be associated with any person engaged in any trade or business using any trading names used by the Company or any Group Company including the name(s) or incorporating the word(s) “Evelo Biosciences” ;
after the Termination Date make any public statement in relation to the Company or any Group Company or any of their officers or employees; or
after the Termination Date represent or otherwise indicate any association or connection with the Company or any Group Company or for the purpose of carrying on or retaining any business represent or otherwise indicate any past association with the Company or any Group Company.
Protection of Company reputation
provide immediately to such person, company or other entity making such an offer or request a full and accurate copy of the Restrictive Covenants set out at Clause 15 of this Agreement; and
notify the Company within 3 working days of receipt of the offer and the identity of the person, company or other entity making the offer.
GRIEVANCE AND DISCIPLINARY MATTERS
The Company’s disciplinary and grievance procedure is set out in the Staff Handbook.
If you have any grievance relating to your employment you may apply in writing to any director of the Company.
The director will consider your grievance and report to you within 7 days of the date when the grievance was raised.
If that report is not acceptable to you, you may then, within 7 days of receipt by you of the report, refer the matter in writing to CEO who will notify you of their decision within 14 days and whose decision will be final and binding.
If you are dissatisfied with any decision of the Company regarding any disciplinary matter, you may apply in writing to the CEO within 5 days of the decision to have that decision re- considered in accordance with the Company’s appeals procedure. The appeals procedure is set out in full in the staff handbook.
The grievance, disciplinary and appeals procedures are not contractually binding on the Company and the Company may alter them, or omit any or all of their stages where it considers it appropriate.
CHANGES TO TERMS OF EMPLOYMENT
The Company reserves the right to make changes to any of your terms and conditions of employment.
You will be given not less than one month’s written notice of any significant changes that may be given by way of an individual notice. Such changes will be deemed to be accepted unless you notify the Company of any objection in writing before the expiry of the notice period.
CONDITIONS TO EMPLOYMENT AND CONTINUED EMPLOYMENT
It is a condition of your employment with the Company that you are and remain legally entitled to reside and work in the United Kingdom. You confirm that you are legally entitled to work in the United Kingdom without holding a work permit. Should it be discovered that you do not have permission to live and work in the United Kingdom or if any such permission is revoked, the Company reserves the right to terminate your employment forthwith without notice or pay in lieu of notice and without referring to the warning stages of the Company’s disciplinary procedure.
PRIVACY OF COMMUNICATION
All communications, whether by telephone, email, fax, or any other means, which are transmitted, undertaken or received using the Company’s IT or communications systems (“Company Systems”) or on Company premises will be treated by the Company as work related. The Company Systems are provided for your work use only. You agree that the Company may intercept, record and monitor all communications made by you and your use of the Company Systems without further notice. You should not regard any communications or use as being private.
The interception, recording and monitoring of communications is intended to protect the Company’s business interests for example, for the purposes of quality control, security of the Company Systems, protection of the Company’s confidential information and legitimate business interests, record-keeping and evidential requirements, detection and prevention of criminal activity or misconduct and to assist the Company to comply with relevant legal requirements.
You acknowledge and agree that all communications, data, records and files stored on the Company Systems or on the Company’s premises may be used as evidence in disciplinary or legal proceedings against you.
GOVERNING LAW AND JURISDICTION
_/s/ Daniel S. Char__________________
Daniel S. Char
620 Memorial Drive