EMPLOYMENT AGREEMENT
Exhibit 10.6
This EMPLOYMENT AGREEMENT (this "Agreement"), is entered into to be effective as of April 15, 2015 (the "Effective Date"), by and between Apotheca Therapeutics, Inc. a Delaware corporation (the "Company"), and Xxxxxx Xxxxxxx, an individual currently residing at [***] (the "Executive").
WHEREAS, Company desires to employ the Executive on the terms, conditions and for the consideration hereinafter set forth, and the Executive is willing to serve as an employee of the Company on such terms and conditions and for such consideration.
NOW THEREFORE, for and in consideration of the mutual promises, covenants and obligations contained herein, the Company and the Executive hereby agree as follows:
1. | Employment and Duties. |
(b)β―β―β―β―β―β―β―β―β―β―β―Exclusive Services. From and after the Financing Date and for so long as the Executive is employed by the Company, the Executive shall devote his full business time and attention to his duties hereunder in such capacity, shall faithfully serve the Company, shall in all respects conform to and comply with the lawful and good faith directions and instructions given to him by the Board and shall use his best efforts to promote and serve the interests of the Company. Further, from and after the Financing Date and for so long as the Executive is employed by the Company, the Executive shall not, directly or indirectly, render services to any other Person (as defined below) without the prior consent of the Board or otherwise engage in activities that would interfere significantly with his faithful performance of his duties hereunder. Notwithstanding the foregoing, the Executive may, without any requirement to obtain the Board's prior consent, (i) serve on civic, childrens' sports organization and/or charitable boards and/or engage in charitable activities without remuneration therefor; and (ii) manage his own personal investments; provided, however, that any such activity or combination of such activities does not or do not unreasonably interfere with Executive's obligations described in the first sentence of this Section 1(b) or any other provision of this Agreement. Nothing in this Section l(b) shall preclude the Executive from continuing employment with Northwestern University prior to the Financing Date: provided, however, that, prior to the Financing Date and irrespective of such employment, the Executive shall be required to dedicate a reasonable amount of time to the performance of his duties hereunder as described in Section l(a) of this Agreement. For purposes of this Agreement, "Person" shall mean an individual, a corporation, a limited liability company, a partnership, an association, a trust, or other entity or organization, including any governmental entity.
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2.β―β―β―β―β―β―β―β―β―β―β―β―Term of Employment. The term of this Agreement (the "Term") shall commence on the Effective Date and shall continue until terminated in accordance with the provisions of this Agreement. Subject to the provisions of Section 4 of this Agreement, this Agreement may be terminated by the Company or the Executive, at any time, upon thirty (30) days' prior written notice thereof to the other party. If the Financing Date has not occurred on or prior to the date that is eighteen months following the Effective Date, then either party may terminate this Agreement immediately upon written notice thereof to the other. Following any termination of this Agreement, Executive shall be entitled to receive any unpaid Base Salary (as defined below) accrued through the date of termination. All other benefits, if any, due to Executive following Executive's termination shall be determined in accordance with the plans, policies and practices of the Company; provided, however, that except as described in Section 4, Executive shall not be entitled to any payments or benefits under any other agreement or any severance plan, policy or program of the Company or any of its affiliates (excluding any medical or dental insurance plans) and Executive shall not accrue any additional compensation (including any Base Salary) or other benefits under this Agreement following any such termination of employment.
(a)β―β―β―β―β―β―β―β―β―β―β―Base Salary. The Company shall pay to the Executive a salary at the annual rate of $120,000 (the "Base Salary"), payable in substantially equal installments at such intervals as may be determined by the Company in accordance with the Company's then current ordinary payroll practices as established from time to time. As of the first day of the payroll cycle that includes the Financing Date, the Executive's Base Salary shall be increased to an annual rate of $200,000. In the event that the Financing Date occurs on a date other than the first day of a payroll cycle, the Executive shall, with respect to such payroll cycle, be entitled to compensation equal to the sum of (i) a prorated Base Salary at the annual rate of $120,000 based on the number of days in such payroll cycle that precede the Financing Date and (ii) a prorated Base Salary at the annual rate of $200,000 for the remaining number of days in such payroll cycle. Such proration shall be calculated by dividing the applicable annual rate of Base Salary by the number of payroll cycles within the calendar year and multiplying such quotient by a fraction, the numerator of which shall be the number of days in such payroll cycle during which such annual rate of Base Salary is in effect and the denominator of which shall be the total number of days in such payroll cycle. The Base Salary shall be reviewed in good faith by the Board, based upon the Executive's performance, within six months of the Financing Date and, thereafter, not less often than annually.
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(a)β―β―β―β―β―β―β―β―β―β―β―Termination of Employment in Absence of a Change in Control. Subject to satisfaction of Section 4(d), if the Executive's employment is terminated by the Company for any reason other than the Executive's death, the Executive's Disability (as defined below) or Cause (as defined below), or is terminated by the Executive for Good Reason, then the Executive shall be entitled to receive a payment equal to one times (x) his then current Base Salary (the "Standard Severance Benefits"). The Executive shall have no further right to receive any other compensation or benefits after such termination or resignation of employment, except as described in Section 2 or, if applicable, Section 4(b). Except as otherwise required under Section 6(b), the Standard Severance Benefits shall be paid to the Executive in a lump sum no later than the forty-fifth (45th) day immediately following the Executive's Separation from Service (as defined below), provided that the Executive first executes a release of any and all claims against the Company (set forth in Section 4(d), below) and the revocation period specified therein has expired without the Executive revoking such release. Notwithstanding the foregoing and for avoidance of doubt, if the Executive's employment is terminated by the Company for the Executive's death, the Executive's Disability or Cause or by the Executive without Good Reason at any time, then the Executive shall not be entitled to or receive the Standard Severance Benefits.
(i)β―β―β―β―β―β―β―β―β―β―β―β―For purposes of this Agreement, the term "Separation from Service" shall have the meaning ascribed under Section 409A of the Internal Revenue Code of 1986, as amended (the "Code")).
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(ii)β―β―β―β―β―β―β―β―β―β―β―For purposes of this Agreement, the term "Cause" shall mean a termination of the Executive's employment with the Company because of: (1) any act or omission by the Executive that constitutes a material breach by the Executive of any of his obligations under this Agreement; (2) the Executive's conviction of, or plea of nolo contendere to, (A) any felony or (B) another crime involving dishonesty or moral turpitude or which could reflect negatively upon the Company or otherwise impair or impede its operations; (3) the Executive's engaging in any misconduct, negligence, act of dishonesty, violence or threat of violence (including any violation of federal securities laws) that is injurious to the Company or any of its subsidiaries or affiliates; (4) the Executive's material breach of a written policy of the Company or the rules of any governmental or regulatory body applicable to the Company; (5) the Executive's refusal to follow the directions of the Board; or (6) any other willful misconduct by the Executive which is materially injurious to the financial condition or business reputation of the Company or any of its subsidiaries or affiliates. Notwithstanding anything in this Section 4(a)(ii) to the contrary, no event or condition described in Sections 4(a)(ii)(l), (3), (4), (5) or (6) shall constitute Cause unless (x) within 90 days from the Board first acquiring actual knowledge of the existence of the Cause condition, the Board provides the Executive written notice of its intention to terminate his employment for Cause and the grounds for such termination; (y) such grounds for termination (if susceptible to correction) are not corrected by the Executive within 20 days of his receipt of such notice (or, in the event that such grounds cannot be corrected within such 20-day period, the Executive has not taken all reasonable steps within such 20-day period to correct such grounds as promptly as practicable thereafter); and (z) the Board terminates the Executive's employment with the Company promptly following expiration of such 20- day period. For purposes of this Section 4(a)(ii), any attempt by the Executive to correct a stated Xxxxx shall not be deemed an admission by the Executive that the Board's assertion of Cause is valid. Notwithstanding anything in this Agreement to the contrary, if the Executive's employment with the Company is terminated by the Company hereunder without Cause, within 90 days of termination the Company shall have the sole discretion to later use after-acquired evidence to retroactively re-characterize the prior termination as a termination for Cause if such after-acquired evidence supports such an action.
(iii)β―β―β―β―β―β―β―β―β―β―For purposes of this Agreement, the term "Good Reason" shall mean: (1) a material diminution in the Executive's Base Salary or a failure by the Company to pay material compensation due and payable to the Executive in connection with his employment; (2) a material diminution in the nature or scope of the Executive's authority, duties, responsibilities, or title from those applicable to him as of the Effective Date; (3) the Company requiring the Executive to be based at any office or location more than 50 miles from Grayslake, Illinois; or (4) a material breach by the Company of any term or provision of this Agreement. Notwithstanding anything in this Section 4(a)(ii) to the contrary, no event or condition described in this Section 4(a)(ii) shall constitute Good Reason unless, (x) within 90 days from the Executive first acquiring actual knowledge of the existence of the Good Reason condition described in this Section 4(a)(ii), the Executive provides the Board written notice of his intention to terminate his employment for Good Reason and the grounds for such termination; (y) such grounds for termination (if susceptible to correction) are not corrected by the Company within 20 days of the Board's receipt of such notice (or, in the event that such grounds cannot be corrected within such 20-day period, the Company has not taken all reasonable steps within such 20-day period to correct such grounds as promptly as practicable thereafter); and (z) the Executive terminates his employment with the Company promptly following expiration of such 20-day period. For purposes of this Section 4(a)(ii), any attempt by the Company to correct a stated Good Reason shall not be deemed an admission by the Company that the Executive's assertion of Good Reason is valid.
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(iv)β―β―β―β―β―β―β―β―β―β―For purposes of this Agreement, the term "Disability" shall mean the Executive's inability, due to physical or mental incapacity taking into account any reasonable accomodations, to perform his duties under this Agreement for a period of at least ninety (90) consecutive days or at least one-hundred twenty (120) days during any consecutive six-month period, in any such case as determined by the Board in good faith. In conjunction with determining Disability for purposes of this Agreement, the Executive hereby (A) consents to any such examinations, to be performed by a qualified medical provider selected by the Company and approved by the Executive (which approval shall not be unreasonably withheld), which are relevant to a determination of whether the Executive has incurred a Disability; and (B) agrees to furnish such medical information as may be reasonably requested by the Company.
(b)β―β―β―β―β―β―β―β―β―β―β―Termination of Employment after a Change in Control. Subject to satisfaction of Section 4(d), if a Change in Control occurs and the Executive's employment is terminated by the Company for any reason other than the Executive's death, the Executive's Disability or Cause, or is terminated by the Executive for Good Reason, in any such case within the six (6) months immediately preceding or the twelve (12) months immediately following such Change in Control, then the Executive shall be entitled to receive a payment equal to one and one-half times (1.5x) his then current Base Salary (or, if applicable, the Base Salary in effect on the date of the Executive's prior Separation from Service), reduced by the Standard Severance Benefits, if any, to which Executive was entitled under Section 4(a) (the "Change in Control Severance Benefits"). Except as otherwise required under Section 6(b), Change in Control Severance Benefits shall be paid to the Executive in a lump sum no later than the forty-fifth (45th) day immediately following the later of the Executive's Separation from Service and the Change in Control, provided the Executive first executes a release of any and all claims against the Company (set forth in Section 4(d), below) and the revocation period specified therein has expired without the Executive revoking such release. Notwithstanding the foregoing and for avoidance of doubt, if the Executive's employment is terminated by the Company for the Executive's death, the Executive's Disability or Cause or by the Executive without Good Reason, in any such case any time prior to or following a Change in Control, then the Executive shall not be entitled to or receive the Change in Control Severance Benefits. Furthermore, for the avoidance of doubt, in no event shall the Executive be entitled to receive both Standard Severance Benefits and Change in Control Severance Benefits in excess of one and one-half times (l.5x) his then current Base Salary (or, if applicable, the Base Salary in effect on the date of the Executive's prior Separation from Service).
(i)β―β―β―β―β―β―β―β―β―β―β―β―For purposes of this Agreement the term "Change in Controlβ shall mean any of the following transactions, as determined in the sole and absolute discretion of the Board of Directors of the Company:
(A)β―β―β―β―β―β―β―β―β―β―β―β―The date that any one Person (other than existing stockholders of the Company), or more than one such Persons acting as a group, acquires ownership of the Company's voting stock that, together with the Company's voting stock held by such Person or group, constitutes more than fiftyΒ· percent (50%) of the total voting power of the Company's capital stock. However, if any one Person (other than existing stockholders of the Company), or more than one such Persons acting as a group, is considered to own more than fifty percent (50%) of the total voting stock of the Company's, the acquisition of additional shares of stock by the same Person or Persons will not be considered to cause a Change in Control.
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(B)β―β―β―β―β―β―β―β―β―β―β―β―The consummation of a consolidation or merger of the Company in which the Company is not the surviving entity or pursuant to which the Company's equity interests would be converted into cash, securities or other property; except that, the foregoing provisions of this Section 4(a)(ii)(B) shall not apply if the majority of the board of directors of the surviving corporation are, and for a one-year period after the merger continue to be, persons who were directors of the Company immediately prior to the merger or were elected as directors, or nominated for election as a director, by a vote of at least two-thirds of the directors then still in office who were directors of the Company immediately prior to the merger; and
(C)β―β―β―β―β―β―β―β―β―β―β―β―The date that any one Person or more than one Person acting as a group acquires all or substantially all of the assets of the Company.
Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred in the event the Company forms a holding company and, as a result thereof, the holders of the Company's voting securities immediately prior to the transaction hold, in approximately the same relative proportions as they held prior to the transaction, substantially all of the voting securities of the holding company that owns all of the Company's voting securities immediately after completion of the transaction. Further, a Change in Control shall not be deemed to have occurred due to any acquisition of voting stock by an employee stock ownership plan sponsored by the Company. -
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(e)β―β―β―β―β―β―β―β―β―β―β―Notice of Termination. Any termination of employment by the Company or the Executive shall be communicated by a written "Notice of Termination" to the other party hereto given in accordance with Section 8(k) of this Agreement. In the event of a termination by the Company for Cause, the Notice of Termination shall (i) indicate the specific termination provision in this Agreement relied upon, (ii) set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive's employment under the provision so indicated and (iii) specify the date of termination. The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause shall not waive any right of the Executive or the Company, respectively, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive's or the Company's rights hereunder.
5.β―β―β―β―β―β―β―β―β―β―β―β―Section 280G Payments. Notwithstanding anything in this Agreement to the contrary, if the Executive is a "disqualified individual" (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which the Executive has the right to receive from the Company or any other Person, would constitute a "parachute payment" (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by the Executive from the Company and/or such person(s) will be $1.00 less than three (3) times the Executive's "base amount" (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by the Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better "net after-tax position" to the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Board in good faith in consultation with the Executive. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its affiliates) used in determining if a "parachute payment" exists, exceeds $1.00 less than three (3) times the Executive's base amount, then the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this paragraph shall require the Company to be responsible for, or have any liability or obligation with respect to, the Executive's excise tax liabilities under Section 4999 of the Code.
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6.β―β―β―β―β―β―β―β―β―β―β―β―Section 409A of the Code. This Agreement is intended to either avoid the application of, or comply with, Section 409A of the Code. To that end this Agreement shall at all times be interpreted in a manner that is consistent with Section 409A of the Code. Notwithstanding any other provision in this Agreement to the contrary, the Company shall have the right, in its sole discretion, to adopt such amendments to this Agreement or take such other actions (including amendments and actions with retroactive effect) as it determines to be necessary or appropriate for this Agreement to comply with Section 409A of the Code. Further:
(a)β―β―β―β―β―β―β―β―β―β―β―Any reimbursement of any costs and expenses by the Company to the Executive under this Agreement shall be made by the Company in no event later than the close of the Executive's taxable year following the taxable year in which the cost or expense is incurred by the Executive. The expenses incurred by the Executive in any calendar year that are eligible for reimbursement under this Agreement shall not affect the expenses incurred by the Executive in any other calendar year that are eligible for reimbursement hereunder and the Executive's right to receive any reimbursement hereunder shall not be subject to liquidation or exchange for any other benefit.
(b)β―β―β―β―β―β―β―β―β―β―β―Any payment following a Separation from Service that would be subject to Section 409A(a)(2)(A)(i) of the Code as a distribution following a Separation from Service of a "specified employee" (as defined under Section 409A(a)(2)(B)(i) of the Code) shall be made on the first to occur of (i) ten (10) days after the expiration of the six month period following such Separation from Service, (ii) death or (iii) such earlier date that complies with Section 409A.
(c)β―β―β―β―β―β―β―β―β―β―β―Each payment that the Executive may receive under this Agreement shall be treated as a "separate payment" for purposes of Section 409A of the Code.
7. β―β―β―β―β―β―β―β―β―β―β―β―Confidential Information1 Trade Secrets and Restrictive Covenants. The Company agrees to: (i) disclose, and to continue to disclose, its confidential information and trade secrets to the Executive; (ii) provide initial and continued training, education and development to the Executive; and (iii) provide the Executive with confidential information and trade secrets about, and the opportunity to develop relationships with, the Company's employees, customers and suppliers, and employees and agents of the Company's customers and suppliers. In consideration thereof, the Executive hereby agrees to comply with the restrictive covenants prescribed in Exhibit B. A default under or breach of Exhibit B shall constitute a material breach of this Agreement.
8. | Miscellaneous. |
(a)β―β―β―β―β―β―β―β―β―β―β―Defense of Claims. The Executive agrees that, during the Term, and for a period of twelve (12) months after termination of the Executive's employment, upon request from the Company, the Executive will cooperate with the Company in the defense of any claims or actions that may be made by or against the Company that affect the Executive's prior areas of responsibility, except if the Executive's reasonable interests are adverse to the Company in such claim or action. The Company agrees to promptly reimburse the Executive for all of the Executive's reasonable legal fees, travel and other direct expenses reasonably incurred to comply with the Executive's obligations under this Section 8(a).
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(d)β―β―β―β―β―β―β―β―β―β―β―Arbitration. Any dispute or controversy arising under or in connection with this Agreement or otherwise in connection with the Executive's employment by the Company that cannot be mutually resolved by the parties to this Agreement and their respective advisors and representatives shall be settled exclusively by arbitration in Tarrant County, Texas in accordance with the rules of the American Arbitration Association before one arbitrator of exemplary qualifications and stature, who shall be selected jointly by an individual to be designated by the Company and an individual to be selected by the Executive, or if such two individuals cannot agree on the selection of the arbitrator, who shall be selected by the American Arbitration Association.
(g)β―β―β―β―β―β―β―β―β―β―β―Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of laws principles thereof. Each party to this Agreement hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts in Tarrant County, Texas, for the purposes of any proceeding arising out of or based upon this Agreement.
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If to the Company: | Apotheca Therapeutics, Inc. 1401 |
Xxxx Xxxxxx, Xxxxx 000 Xxxx Xxxxx, | |
Texas 76107 | |
Attn: Board of Directors | |
If to Executive: | Xxxxxx Xxxxxxx |
(n)β―β―β―β―β―β―β―β―β―β―β―Executive's Representations. The Executive hereby represents to the Company that (i) all confidential information, trade secrets or proprietary information, data or technology, belonging to any prior employer, including, without limitation, those that might have been contained on the Executive's personal computer, cell phone or other electronic communications or storage device have been returned and/or deleted in accordance with any policy of or agreement with the Executive's prior employer and (ii) the execution and delivery of this Agreement by the Executive and the Company and the performance by the Executive of his duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which the Executive is a party or otherwise bound.
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(o)β―β―β―β―β―β―β―β―β―β―β―Assignment; Assumption by Successor. This Agreement is binding upon and shall inure to the benefit of the parties hereto, together with their respective executors, administrators, successors, personal representatives, heirs, and assigns. Notwithstanding the foregoing, the rights and duties of and benefits to the Executive hereunder are personal to the Executive, and no such right or benefit may be assigned by him. The Company shall have the right to assign or transfer this Agreement to its successors or assigns. The terms "successors" and "assigns" shall include any Person who or which buys all or substantially all of Company's assets or all of its stock, or with which Company merges or consolidates. Any purported assignment of this Agreement, other than as provided above, shall be void. The failure of any successor entity to the Company to expressly assume in writing the terms of this Agreement shall be deemed a material breach of this Agreement.
(q)β―β―β―β―β―β―β―β―β―β―β―Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement shall become effective when each party hereto shall have received counterparts thereof signed and delivered by each other party hereto. Any party may deliver an executed copy of this Agreement by facsimile or electronic mail (in .pdf format) to each other party and such delivery shall have the same force and effect as any other delivery of a manually signed copy of this Agreement.
(r)β―β―β―β―β―β―β―β―β―β―β―β―Survival. This Agreement shall terminate upon the termination of employment of the Executive; however, the following shall survive the termination of the Executive's employment and/or the expiration or termination of this Agreement, regardless of the reasons for such expiration or termination: Section 4 ("Termination of Employment") and the corresponding Exhibit A ("Waiver and Release"), Section 7 ("Confidential Information, Trade Secrets and Restrictive Covenants") and the corresponding Exhibit B ("Confidentiality, Non-Competition and Non-Solicitation Agreement"), Section 8(a) ("Defense of Claims"), Section 8(6) ("Non-Disparagement"), Section 8(d) ("Arbitration"), Section 8(f) ("Entire Agreement"), Section 8(g) ("Governing Law/Venue"), Section 8(k) ("Notices"), Section 8(o) ("Assignment; Assumption by Successor), and Section 8(n) ("Executive's Representations").
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the Effective Date.
EXECUTIVE: | APOTHECA THERAPEUTICS, INC.: | |
/S/ Xxxxxx Xxxxxxx | /S/ Xxxxxx Xxxxx Xxxxx, Xx. | |
Xxxxxx Xxxxxxx | Name: Xxxxxx Xxxxx Xxxxx, Xx. | |
Title: Director |
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EXHIBIT
WAIVER AND RELEASE
Pursuant to the terms of the Employment Agreement (the "Agreement") by and between Apotheca Therapeutics, Inc., a Delaware corporation, and myself, and in exchange for any severance benefit payable under the Agreement (the "Severance Benefits"), I hereby waive all claims against and release (i) Apotheca Therapeutics, Inc., its officers, employees, agents, insurers, predecessors, successors and assigns (collectively referred to as the "Company"), (ii) all of the affiliates of the Company and their respective directors, officers, employees, agents, insurers, predecessors, successors and assigns, and (iii) the Company's and its affiliates' respective employee benefit plans and the fiduciaries and agents of said plans (collectively referred to as the "Benefit Plans") from any and all claims, demands, actions, liabilities and damages arising out of or relating in any way to my employment with or separation from employment with the Company and its affiliates other than amounts due pursuant to the Agreement and the rights and benefits I am entitled to under the Benefit Plans (the Company, its affiliates, their respective directors, officers, employees, agents, insurers, predecessors, successors and assigns, and the Benefit Plans are sometimes hereinafter collectively referred to as the "Released Parties").
I understand that signing this Xxxxxx and Release is an important legal act. I acknowledge that I have been advised in writing to consult an attorney before signing this Xxxxxx and Release. I understand that, in order to be eligible for the Severance Benefits, I must sign (and return to the Company) this Waiver and Release before I will receive the Severance Benefits. I acknowledge that I have been given at least 21 days to consider whether to accept the Severance Benefits and whether to execute this Waiver and Release.
In exchange for the payment to me of the Severance Benefits, (1) I agree not to sue the Released Parties in any local, state and/or federal court regarding or relating in any way to my employment with or separation from employment with the Company and its affiliates, and (2) I knowingly and voluntarily waive all claims and release the Released Parties from any and all claims, demands, actions, liabilities, and damages, whether known or unknown, arising out of or relating in any way to my employment with or separation from employment with the Company and its affiliates, except to the extent that my rights are vested under the terms of the Agreement or any employee benefit plans sponsored by the Company or any of its affiliates and except with respect to such rights or claims as may arise after the date this Waiver and Release is executed. This Waiver and Release includes, but is not limited to, claims and causes of action under: Title VII of the Civil Rights Act of 1964, as amended; the Age Discrimination in Employment Act of 1967, as amended, including the Older Workers Benefit Protection Act of 1990; the Civil Rights Act of 1866, as amended; the Civil Rights Act of 1991; the Americans with Disabilities Act of 1990; the Workers Adjustment and Retraining Notification Act of 1988; the Pregnancy Discrimination Act of 1978; the Employee Retirement Income Security Act of 1974, as amended; the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended; the Family and Medical Leave Act of 1993; the Occupational Safety and Health Act; the Texas Labor Code et. seq.; claims in connection with retaliation or "whistle blower" statutes; and/or contract, tort, defamation, slander, wrongful termination or any other state or federal regulatory, statutory or common law. Further, I expressly represent that no promise or agreement which is not expressed in this Waiver and Release has been made to me in executing this Waiver and Release, and that I am relying on my own judgment in executing this Waiver and Release, and that I am not relying on any statement or representation of the Company or any of its affiliates or any of their respective agents. I agree that this Waiver and Release is valid, fair, adequate and reasonable, is with my full knowledge and consent, was not procured through fraud, duress or mistake and has not had the effect of misleading, misinforming or failing to inform me. This release does not include, and is not intended to include, any claims that cannot be released as a matter of law.
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Notwithstanding the foregoing and anything in this Waiver and Release to the contrary, I do not release and expressly retain (a) all rights to payment or providing for post-employment benefits under the Agreement or qualified retirement plans or health plans sponsored by the Company, (b) all rights to indemnity, contribution, and a defense of directors and officers and other liability coverage that I may have under any statute, Company policy or by this or any other agreement; and (c) the right to any, unpaid reasonable business expenses and any accrued benefits payable under any Company welfare plan or tax-qualified plan. Additionally, and notwithstanding the release of liability contained herein, nothing in this Waiver and Release prevents me from filing any non-legal waivable claim (including a challenge to the validity of this Waiver and Release) with the Equal Employment Opportunity Commission ("EEOC") or comparable state or local agency or participating in any investigation or proceeding conducted by the EEOC or comparable state or local agency; however, I understand and agree that I am waiving any and all rights to recover any monetary or personal relief or recovery as a result of such EEOC or comparable state or local agency proceeding or subsequent legal actions
I acknowledge that payment of the Severance Benefits is not an admission by any one or more of the Released Parties that they engaged in any wrongful or unlawful act or that they violated any federal or state law or regulation. I acknowledge that neither the Company nor any of its affiliates have promised me continued employment or represented to me that I will be rehired in the future. I acknowledge that the Company and I contemplate an unequivocal, complete and final dissolution of my employment relationship. I acknowledge that this Waiver and Release does not create any right on my part to be rehired by the Company or any of its affiliates, and I hereby waive any right to future employment by the Company or any of its affiliates.
I understand that for a period of 7 calendar days following the date that I sign this Waiver and Release, I may revoke my acceptance of this Waiver and Release, provided that my written statement of revocation is received on or before that seventh day by [Name and/or Title], [address], facsimile number: [ β― β―β―β― ], in which case the Waiver and Release will not become effective. If I timely revoke my acceptance of this Waiver and Release, the Company shall have no obligation under this Waiver and Release nor the Agreement to provide the Severance Benefits to me. I understand that failure to revoke my acceptance of the offer within 7 calendar days from the date I sign this Waiver and Release will result in this Waiver and Release being permanent and irrevocable.
Should any of the provisions set forth in this Waiver and Release be determined to be invalid by a court, agency or other tribunal of competent jurisdiction, it is agreed that such determination shall not affect the enforceability of other provisions of this Waiver and Release. I acknowledge that this Waiver and Release sets forth the entire understanding and agreement between me and the Company and its affiliates concerning the subject matter of this Waiver and Release and supersedes any prior or contemporaneous oral and/or written agreements or representations, if any, between me and the Company and/or any of its affiliates.
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I acknowledge that I have read this Waiver and Release, have had an opportunity to ask questions and have it explained to me and that I understand that this Waiver and Release will have the effect of knowingly and voluntarily waiving any action I might pursue, including breach of contract, personal injury, retaliation, discrimination on the basis of race, age, sex, national origin, or disability and any other claims arising prior to the date of this Waiver and Release. By execution of this document, I do not waive or release or otherwise relinquish any legal rights I may have which are attributable to or arise out of acts, omissions, or events of the Company or any of its affiliates which occur after the date of the execution of this Waiver and Release.
EXECUTIVE: | APOTHECA THERAPEUTICS, INC.: | |||
By: | ||||
Xxxxxx Xxxxxxx | ||||
Its: | β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―β―β― | |||
Date: | β―β―β―β―β―β―β―β― | Date: |
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EXHIBIT B
CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT
As a condition of employment with Apotheca Therapeutics, Inc., a Delaware corporation, its subsidiaries, affiliates, successors, or assigns (together, the "Company"), the receipt by Xxxxxx Xxxxxxx (the "Employee") of compensation now and hereafter paid to Employee by the Company, and in exchange for the Company's agreement to provide Employee with access to the Company's Confidential Information and Trade Secrets (as defined below) and the grant of stock to Employee, Employee and the Company enter into this Confidentiality, Non-Competition and Non-Solicitation Agreement (the "Agreement"), effective as of April 15, 2015.
2.β―β―β―β―β―β―β―β―β―β―β―β― Confidential Information and Trade Secrets of Company. During the term of and in connection with Employee's employment with the Company, the Company will provide Employee with access to and the opportunity to become familiar with information concerning the business and affairs of the Company and/or its affiliates which is not generally known to persons who are not employees of Company, and which Company generally does not share other than with its employees, or with its customers and suppliers on an individual transactional basis (herein collectively referred to as the "Confidential Information and Trade Secrets"). Confidential Information and Trade Secrets may be written, verbal or recorded by electronic, magnetic or other methods, whether or not expressly identified as "Confidential" by Company.
(a)β―β―β―β―β―β―β―β―β―β― Confidential Information and Trade Secrets includes, but is not limited to, the following information and materials:
(i)β―β―β―β―β―β―β―β―β―β―β―β―Financial information of any kind pertaining to Company or any of its affiliates, including, without limitation, information about the profit margins, profitability, pricing, income and expenses of Company, any of its affiliates, or any of its or their respective products or lines of business;
(ii)β―β―β―β―β―β―β―β―β―β― All information about and all communications received from, sent to or exchanged between Company or any of its affiliates, on the one hand, and any person or entity who or which has purchased, licensed, exchanged or otherwise entered into a transaction with Company or any of its affiliates, or to which Company or any of its affiliates has made a proposal with respect to the purchase, sale, license, exchange or other transaction involving any component, products or services which form any part of the Company Business (defined below) (such person or entity being hereinafter referred to as customer or customers), on the other hand;
(iii)β―β―β―β―β―β―β―β―β―β―Any and all information and records relating to Company's or any of its affiliates' contracts or transactions with, or charges, prices or sales to, its customers, including invoices, proposals, confirmations, bills of ladings, statements, accounting records, bids, payment records or any other information or documents regarding amounts charged to or paid by customers, for any software, products or services which form any part of the Company Business; and
(iv)β―β―β―β―β―β―β―β―β―β―trade secrets, technology, discoveries and improvements, know- how, proprietary rights, formulae, confidential and proprietary information, technical information, techniques, inventions, designs, drawings, procedures, processes, models, formulations, manuals and systems, whether or not patentable or copyrightable, including all biological, chemical, biochemical, toxicological, pharmacological and metabolic material and information and data relating thereto and formulation, clinical, analytical and stability information and data which have actual or potential commercial value and are not available in the public domain.
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The term "Confidential Information and Trade Secrets" shall also include all notes, analyses, compilations, studies, summaries, and other material prepared by Employee containing or based, in whole or in part, on any information included in the foregoing.
(b)β―β―β―β―β―β―β―β―β―β― "Company Business" shall mean development and commercialization of drugs of specific mechanisms of action on defined biological targets that are licensed or may be licensed during the Executive's employment with the Company.
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6.β―β―β―β―β―β―β―β―β―β―β―β― Inventions, Patents, and Copyright Works. "Intellectual Property" includes, but is not limited to: patents, patent applications, inventions (whether patentable or not), discoveries, improvements, designs, ideas (whether or not shown or described in writing or reduced to practice) scientific and technical information, data and know-how of any nature including, and in addition to, any Confidential Information and Trade Secrets, and certain trademarks, service marks, brand names, trade names, trade dress, names, logos, slogans, domain names, and copyrights, copyright registrations, copyright applications, original works of authorship fixed in any tangible medium of expression including, but limited to, literary works (including all written material), books, brochures, catalogs, manuals, training materials, directories, compilations of information, compilations of inspection or testing procedures, computer programs, software (object and source code), protocols, system architectures, advertisements, artistic and graphic works (including designs, graphs, drawings, blueprints, and other works), recordings, models, photographs, slides, motion pictures, audio visual works, and the like, regardless of the form or manner in which documented or recorded, and all other intellectual property or proprietary rights, in each case whether or not subject to statutory registration or protection. As between Company and Employee, Employee recognizes, acknowledges, and agrees that Company is the owner of (x) all Intellectual Property related to the Company Business, (y) all Intellectual Property made, conceived, expressed, developed, or actually or constructively reduced to practice by Employee, solely or jointly with others, during the term of Employee's employment with Company, and (z) all Intellectual Property that uses, refers to, improves on, is derived from, is suggested by, results from or otherwise relates to the Company Business or any of the Company's Intellectual Property. Further, Employee agrees as follows:
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(a)β―β―β―β―β―β―β―β―β―β― Company agrees to provide, and to continue to provide, Employee with both specialized knowledge and education in Company's Business, in order to allow Employee to perform Employee's duties as an employee for and on behalf of Company in an efficient, proper and effective manner. Such knowledge and education may consist of verbal instructions and information, the furnishing of written materials, consultation and counseling, sales, staff and employee meetings, training sessions and seminars, in addition to formal or informal information and orientation methodologies and procedures. Employee will have access to certain of Company's transactional histories, and the details of prior purchases, sales, trades or exchanges, in order that Employee can learn Company's Business and/or improve Employee's skills, experience and knowledge.
(b)β―β―β―β―β―β―β―β―β―β― In consideration of Company's employment of Employee as a highly valued employee, the Company's agreement to provide Employee with access to certain Confidential Information and Trade Secrets, and the Company's agreement to provide specialized knowledge and education, Employee agrees to refrain from competing with Company or otherwise engaging in Restricted Activities, as defined below, during the Restricted Period.
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(c)β―β―β―β―β―β―β―β―β―β― Employee agrees that during the term of his employment with Company and for a period of one (1) year after the Employee's employment with the Company terminates (the "Restricted Period"), regardless of whether the termination occurs with or without cause and regardless of which party terminates such employment, Employee will not, directly or indirectly, on Employee's own behalf or as a shareholder, partner, member, investor, lender, principal, director, officer, employee, consultant or agent of any other person or entity, engage in any of the Restricted Activities.
(d) | "Restricted Activities" means and includes the following: |
(i)β―β―β―β―β―β―β―β―β―β―β―β―Conducting, engaging or participating, directly or indirectly, as the chief executive officer or division head, agent, independent contractor, consultant, partner, shareholder, investor, lender, underwriter, supplier, customer or in any other similar capacity, in any business that competes with any part of the Company's Business; and
(ii)β―β―β―β―β―β―β―β―β―β― Recruiting, hiring, and/or attempting to recruit or hire, directly or by assisting others, any other employee, temporary or permanent, contract, part time or full time of the Company. For purposes of this covenant "any other employee" shall refer to employees who are under contract to provide services to the Company and who are still actively employed by the Company at the time of the attempted recruiting or hiring, or were so employed at any time within six (6) months prior to the time of such attempted recruiting or hiring.
(e)β―β―β―β―β―β―β―β―β―β― The Company and Employee acknowledge that the provisions contained in this Section 6 shall not prevent Employee from owning, solely as an investment, directly or indirectly, securities of any publicly traded corporation engaged in the Company Business if Employee does not, directly or indirectly, beneficially own in the aggregate more than 5% of all classes of outstanding equity securities of such entity.
(f)β―β―β―β―β―β―β―β―β―β―β―β―Employee and the Company agree that the limitations as to time and scope of activity to be restrained are reasonable and do not impose a greater restraint on Employee than is necessary to protect the property rights and other business interests of Company.
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11.β―β―β―β―β―β―β―β―β―β― Assignment. This Agreement is binding upon and shall inure to the benefit of the parties hereto, together with their respective executors, administrators, successors, personal representatives, heirs, and assigns. Notwithstanding the foregoing, the rights, duties and benefits to Employee hereunder are personal to Employee, and no such right or benefit may be assigned by it. The Company shall have the right to assign or transfer this Agreement to its successors or assigns. The terms "successors" and "assigns" shall include any person, corporation, partnership or other entity that buys all or substantially all of Company's assets or all of its stock, or with which Company merges or consolidates. Any purported assignment of this Agreement, other than as provided above, shall be void.
13.β―β―β―β―β―β―β―β―β―β― Governing Law and Venue. This Agreement shall be governed by, and construed in accordance with, the procedural and substantive laws of the State of Delaware. The Company and Employee irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state or federal courts located in Tarrant County, Texas as the sole venue and location for any actions, suits, or proceedings arising out of or relating to any aspect of this Agreement and all issues arising out of or relating to the employment relationship between the Company and Employee.
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[SIGNATURES ON NEXT PAGE]
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AGREED AND ACCEPTED: | AGREED AND ACCEPTED: | ||
APOTHECA THERAPEUTICS, INC. | βEMPLOYEEβ | ||
By: | /s/ Xxxxxx Xxxxx Xxxxx, Xx. | ||
Name: | Xxxxxx Xxxxx Xxxxx, Xx. | Signature | |
Title: | Director | /s/ Xxx Xxxxxxx | |
Xxx Xxxxxxx |
AMENDMENT TO EMPLOYMENT AGREEMENT
This AMENDMENT TO EMPLOYMENT AGREEMENT (this βAmendmentβ) is entered into as of the 5th day of February, 2016, by and between Actuate Therapeutics, Inc. (f/k/a Apotheca Therapeutics, Inc.), a Delaware corporation (the βCompanyβ), and Xxxxxx Xxxxxxx, an individual currently residing at [***] (the βExecutiveβ and together with the Company, the βPartiesβ and each individually, a βPartyβ).
WHEREAS, Each Party is a party to that certain Employment Agreement, dated April 15, 2015 (the βEmployment Agreementβ); and
WHEREAS, in consideration of the services performed by the Executive for and on behalf of the Company to the date hereof, and the services that the Company expects the Executive to perform for and on behalf of the Company from and after the date hereof, the Parties desire to amend certain provisions of the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants and agreements herein contained, and of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by all of the Parties, the Parties do hereby agree and bind themselves as follows:
1.β―β―β―β―β―β―β―β―β―β―β―β―Section 3(a). of the Employment Agreement is hereby amended by deleting such section in its entirety and substituting the following in lieu thereof:
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[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date set forth hereinabove.
COMPANY: | ||
ACTUATE THERAPEUTICS, INC. | ||
By: | /s/ Xxxxxx X. Xxxxxxx | |
Name: | Xxxxxx X. Xxxxxxx | |
Title: | President & CEO | |
EXECUTIVE: | ||
/s/ Xxxxxx Xxxxxxx | ||
Xxxxxx Xxxxxxx |
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This SECOND AMENDMENT TO EMPLOYMENT AGREEMENT (this βAmendmentβ) is entered into as of the 28th day of September, 2017, by and between Actuate Therapeutics, Inc. (f/k/a Apotheca Therapeutics, Inc.), a Delaware corporation (the βCompanyβ), and Xxxxxx Xxxxxxx, an individual currently residing at [***] (the βExecutiveβ and together with the Company, the βPartiesβ and each individually, a βPartyβ).
WHEREAS, each of the Company and the Executive is a party to that certain Employment Agreement, dated April 15, 2015, as amended on February 5, 2016 (the βEmployment Agreementβ); and
WHEREAS, in consideration of the services performed by the Executive for and on behalf of the Company to the date hereof, and the services that the Company expects the Executive to perform for and on behalf of the Company from and after the date hereof, the Parties desire to amend certain provisions of the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties do hereby agree and bind themselves as follows. Capitalized terms used, but not defined, in this Amendment, shall have the meanings set forth in the Employment Agreement.
(a)β―β―β―β―β―β―β―β―β―β―β―β―25% of the Amendment Shares shall vest on the one year anniversary of the Milestone Date (the βAnniversary Dateβ); and
(b)β―β―β―β―β―β―β―β―β―β―β―β―the remaining unvested Amendment Shares shall vest in equal installments on a monthly basis during the thirty-six (36) months following the Anniversary Date.
In addition, and regardless of whether the Sotio Milestone occurs, in the event the Company is sold on or prior to March 1, 2020 for cash in a transaction valued at or above $150,000,000 (a βSale Transactionβ), immediately prior to the consummation of such Sale Transaction, the Executive shall be granted shares of Common Stock under the Existing Plan representing 2.0% of the issued and outstanding shares of Common Stock on the day immediately prior to the closing of the Sale Transaction on a fully diluted basis (the βTransaction Sharesβ). The Transaction Shares shall be fully vested as of the date of grant. For purposes of this Amendment, a Sale Transaction shall include a sale of all of the capital securities of the company or a sale of substantially all of the Companyβs assets in a single transaction or series of related transactions, or a merger of the Company with another entity regardless of whether the Company is the surviving entity in such transaction.
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[Signature Page Follows]
[Signature Page to Second Amendment to Employment Agreement]
EXECUTIVE | ACTUATE THERAPEUTICS, INC. | ||
/s/ Xxxxxx Xxxxxxx | By: | /s/ Xxxxx Xxxxxxxx | |
Xxxxxx Xxxxxxx | Name: | Xxxxx Xxxxxxxx | |
Title: | Director |
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
This THIRD AMENDMENT TO EMPLOYMENT AGREEMENT (this βAmendmentβ) is entered into as of the 23rd day of September, 2018 (the βEffective Dateβ), by and between Actuate Therapeutics, Inc., a Delaware corporation (the βCompanyβ), and Xxxxxx Xxxxxxx, an individual currently residing at [***] (the βExecutiveβ and together with the Company, the βPartiesβ and each individually, a βPartyβ).
WHEREAS, each of the Company and the Executive is a party to that certain Employment Agreement, dated April 15, 2015 (the βOriginal Agreementβ), as amended on February 5, 2016 (the βFirst Amendmentβ) and September 28, 2017 (the βSecond Amendment,β together with the Original Agreement and the First Amendment, the βEmployment Agreementβ); and
WHEREAS, in consideration of the services performed by the Executive for and on behalf of the Company to the date hereof, and the services that the Company expects the Executive to perform for and on behalf of the Company from and after the date hereof, the Parties desire to amend certain provisions of the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties do hereby agree and bind themselves as follows. Capitalized terms used, but not defined, in this Amendment, shall have the meanings set forth in the Employment Agreement.
4.β―β―β―β―β―β―β―β―β―β―β―β―Additional Incentive Awards.
(a)β―β―β―β―β―β―β―β―β―β―β―β―If and when the Qualified Financing Closing occurs (the βQualified Financing Dateβ), the Company shall grant shares of Common Stock to the Executive under the Existing Plan in an amount such that the aggregate number of shares of Common Stock owned by the Executive as of the Qualified Financing Date equals 5.0% of the issued and outstanding shares of Common Stock as of the Qualified Financing Date on a fully diluted basis (such shares of Common Stock, the βAmendment Sharesβ). The Amendment Shares will be βrestricted sharesβ and will be subject to vesting as follows and in accordance with the terms of a Restricted Award Agreement and a Stock Restriction Agreement, each to be executed as of the Qualified Financing Date:
(i)β―β―β―β―β―β―β―β―β―β―β―β―One-third of the Amendment Shares shall vest on the first date of treatment of the first patient in an 1801 study;
(ii)β―β―β―β―β―β―β―β―β―β― One-third of the Amendment Shares shall vest upon the Companyβs receipt of regulatory approval to conduct a clinical trial of 9-ING-41 outside the United States; and
(iii)β―β―β―β―β―β―β―β―β―β― One-third shall vest on the first date of treatment of the third adult or pediatric patient with 9-ING-41 in combination with another chemotherapy agent.
(b)β―β―β―β―β―β―β―β―β―β―β―β―If and when the Qualified Financing Closing occurs, and immediately following issuance of the Amendment Shares (the βAdditional Share Grant Timeβ), the Company shall grant to the Executive additional shares of Common Stock under the Existing Plan equal to 1.0% of the issued and outstanding shares of Common Stock as of the Additional Share Grant Time on a fully diluted basis (which fully diluted basis calculation shall take into consideration the Amendment Shares previously issued to the Executive) (such shares of Common Stock, the βAdditional Sharesβ). The Additional Shares will be βrestricted sharesβ and will be subject to vesting as follows and in accordance with the terms of a Restricted Award Agreement and a Stock Restriction Agreement, each to be executed as of the Additional Share Grant Time:
(i)β―β―β―β―β―β―β―β―β―β―β―β―25% of the Additional Shares shall vest on the one year anniversary of the Qualified Financing Date (the βAnniversary Dateβ); and
(ii)β―β―β―β―β―β―β―β―β―β― the remaining unvested Additional Shares shall vest in equal installments on a monthly basis during the thirty-six (36) months following the Anniversary Date.
(c)β―β―β―β―β―β―β―β―β―β―β―β―In addition, and regardless of whether the Qualified Financing Closing occurs, in the event the Company is sold on or prior to March 1, 2022 for cash in a transaction valued at or above $300,000,000 (a βSale Transactionβ), immediately prior to the consummation of such Sale Transaction, the Executive shall be granted that number of shares of Common Stock under the Existing Plan such that the Executiveβs aggregate ownership of shares of Common Stock as of the date of such grant is equal to 8.0% of the issued and outstanding shares of Common Stock on a fully diluted basis (the βTransaction Sharesβ). The Transaction Shares shall be fully vested as of the date of grant. For purposes of this Amendment, a Sale Transaction shall include a sale of all of the capital securities of the Company or a sale of substantially all of the Companyβs assets in a single transaction or series of related transactions, or a merger of the Company with another entity regardless of whether the Company is the surviving entity in such transaction.
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[Signature Page Follows]
[Signature Page to Third Amendment to Employment Agreement]
EXECUTIVE | ACTUATE THERAPEUTICS, INC. | |
/s/ Xxxxxx Xxxxxxx | By: | /s/ Xxxxxx X. Xxxxxxx |
Xxxxxx Xxxxxxx | Name: | Xxxxxx X. Xxxxxxx |
Title: | President & CEO |
FOURTH AMENDMENT TO EMPLOYMENT AGREEMENT
This FOURTH AMENDMENT TO EMPLOYMENT AGREEMENT (this βAmendmentβ) is entered into as of the 29th day of January, 2019 (the βEffective Dateβ), by and between Actuate Therapeutics, Inc., a Delaware corporation (the βCompanyβ), and Xxxxxx Xxxxxxx, an individual currently residing at [***] (the βExecutiveβ and together with the Company, the βPartiesβ and each individually, a βPartyβ).
WHEREAS, each of the Company and the Executive is a party to that certain Employment Agreement, dated April 15, 2015 (the βOriginal Agreementβ), as amended on February 5, 2016 (the βFirst Amendmentβ), September 28, 2017 (the βSecond Amendmentβ), and September 23, 2018 (the βThird Amendment,β together with the Original Agreement, the First Amendment and the Second Amendment, the βEmployment Agreementβ); and
WHEREAS, in consideration of the services performed by the Executive for and on behalf of the Company to the date hereof, and the services that the Company expects the Executive to perform for and on behalf of the Company from and after the date hereof, the Parties desire to amend certain provisions of the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties do hereby agree and bind themselves as follows. Capitalized terms used, but not defined, in this Amendment, shall have the meanings set forth in the Employment Agreement.
β(a)β―β―β―β―β―β―β―β―β―β―If and when the Qualified Financing Closing occurs (the βQualified Financing Dateβ), the Company shall grant shares of Common Stock to the Executive under the Existing Plan in an amount such that the aggregate number of shares of Common Stock owned by the Executive as of the Qualified Financing Date equals 4.62% of the issued and outstanding shares of Common Stock as of the Qualified Financing Date on a fully diluted basis (such shares of Common Stock, the βAmendment Sharesβ). The Amendment Shares will be βrestricted sharesβ and will be subject to vesting as follows and in accordance with the terms of a Restricted Award Agreement and a Stock Restriction Agreement, each to be executed as of the Qualified Financing Date:
(i)β―β―β―β―β―β―β―β―β―β―β―β―One-third of the Amendment Shares shall vest on the first date of treatment of the first patient in an 1801 study;
(ii)β―β―β―β―β―β―β―β―β―β― One-third of the Amendment Shares shall vest upon the Companyβs receipt of regulatory approval to conduct a clinical trial of 9-ING-41 outside the United States; and
(iii)β―β―β―β―β―β―β―β―β―β―One-third shall vest on the first date of treatment of the third adult or pediatric patient with 9-ING-41 in combination with another chemotherapy agent.β
3.β―β―β―β―β―β―β―β―β―β―β―β―Paragraphs 4(b) of the Third Amendment. Paragraph 4(b) of the Third Amendment shall be amended by deleting such section in its entirety and substituting the following in lieu thereof:
β(b)β―β―β―β―β―β―β―β―β―β―RESERVED.β
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[Signature Page Follows]
[Signature Page to Fourth Amendment to Employment Agreement]
EXECUTIVE | ACTUATE THERAPEUTICS, INC. | ||
/s/ Xxxxxx Xxxxx | By: | /s/ Xxxxxx X. Xxxxx | |
Xxxxxx Xxxxxxx | Name: | Xxxxxx X. Xxxxxxx | |
Title: | President & CEO |
FIFTH AMENDMENT TO EMPLOYMENT AGREEMENT
This FIFTH AMENDMENT TO EMPLOYMENT AGREEMENT (this βAmendmentβ) is entered into as of the 3rd day of September, 2019 (the βEffective Dateβ), by and between Actuate Therapeutics, Inc., a Delaware corporation (the βCompanyβ), and Xxxxxx Xxxxxxx, an individual currently residing at [***] (the βExecutiveβ and together with the Company, the βPartiesβ and each individually, a βPartyβ).
WHEREAS, each of the Company and the Executive is a party to that certain Employment Agreement, dated April 15, 2015 (the βOriginal Agreementβ), as amended on February 5, 2016 (the βFirst Amendmentβ), September 28, 2017 (the βSecond Amendmentβ), September 23, 2018 (the βThird Amendmentβ), and January 29, 2019 (the βFourth Amendment,β together with the Original Agreement, the First Amendment, the Second Amendment and the Third Amendment, the βEmployment Agreementβ); and
WHEREAS, in consideration of the services performed by the Executive for and on behalf of the Company to the date hereof, and the services that the Company expects the Executive to perform for and on behalf of the Company from and after the date hereof, the Parties desire to amend certain provisions of the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties do hereby agree and bind themselves as follows. Capitalized terms used, but not defined, in this Amendment, shall have the meanings set forth in the Employment Agreement.
2.β―β―β―β―β―β―β―β―β―β―β―β―Section 3(e). of the Employment Agreement shall be amended by deleting such section in its entirety and substituting the following in lieu thereof:
β(c)β―β―β―β―β―β―β―β―β―β―In addition, in the event the Company is sold at any time between January 1, 2021 and March 1, 2022 for cash in a transaction valued at or above a per share price of $29.56 (a βSale Transactionβ), immediately prior to the consummation of such Sale Transaction, the Executive shall be granted that number of shares of Common Stock under the Existing Plan such that the Executiveβs aggregate ownership of shares of Common Stock as of the date of such grant is equal to 8.0% of the issued and outstanding shares of Common Stock on a fully diluted basis (the βTransaction Sharesβ). The Transaction Shares shall be fully vested as of the date of grant. For purposes of this Amendment, a Sale Transaction shall include a sale of all of the capital securities of the Company or a sale of substantially all of the Companyβs assets in a single transaction or series of related transactions, or a merger of the Company with another entity regardless of whether the Company is the surviving entity in such transaction.β
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[signatures on next page]
[Signature Page to Fifth Amendment to Employment Agreement]
EXECUTIVE | ACTUATE THERAPEUTICS, INC. | ||
/s/ Xxxxxx Xxxxxxx | By: | /s/ Xxxxxx X. Xxxxxxx | |
Xxxxxx Xxxxxxx | Name: | Xxxxxx X. Xxxxxxx | |
Title: | President & CEO |
SIXTH AMENDMENT TO EMPLOYMENT AGREEMENT
This SIXTH AMENDMENT TO EMPLOYMENT AGREEMENT (this βAmendmentβ) is entered into as of the first day of August, 2022 (the βEffective Dateβ), by and between Actuate Therapeutics, Inc., a Delaware corporation (the βCompanyβ), and Xxxxxx Xxxxxxx, an individual currently residing at [***] (the βExecutiveβ and together with the Company, the βPartiesβ and each individually, a βPartyβ).
WHEREAS, each of the Company and the Executive is a party to that certain Employment Agreement, dated April 15, 2015 (the βOriginal Agreementβ), as amended on February 5, 2016 (the βFirst Amendmentβ), September 28, 2017 (the βSecond Amendmentβ), September 23, 2018 (the βThird Amendmentβ), January 29, 2019 (the βFourth Amendment), and September 3, 2019 (the βFifth Amendment,β together with the Original Agreement, the First Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment, the βEmployment Agreementβ); and
WHEREAS, in consideration of the services performed by the Executive for and on behalf of the Company to the date hereof, and the services that the Company expects the Executive to perform for and on behalf of the Company from and after the date hereof, the Parties desire to amend certain provisions of the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties do hereby agree and bind themselves as follows. Capitalized terms used, but not defined, in this Amendment, shall have the meanings set forth in the Employment Agreement.
β(c)β―β―β―β―β―β―β―β―β―β―In addition, in the event the Company is sold at any time on or prior to March 31, 2024 for cash in a transaction valued at or above a per share price of $29.56 (a βSale Transactionβ), immediately prior to the consummation of such Sale Transaction, the Executive shall be granted that number of shares of Common Stock under the Existing Plan such that the Executiveβs aggregate ownership of shares of Common Stock as of the date of such grant (taking into account any shares owned by Executive separate and apart from the shares awarded in the Sale Transaction) is equal to 6.0% of the issued and outstanding shares of Common Stock on a fully diluted basis (the βTransaction Sharesβ), which percentage may be increased at the discretion of the Board. The Transaction Shares shall be fully vested as of the date of grant. For purposes of this Amendment, a Sale Transaction shall include a sale of all of the capital securities of the Company or a sale of substantially all of the Companyβs assets in a single transaction or series of related transactions, or a merger of the Company with another entity regardless of whether the Company is the surviving entity in such transaction.β
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[signatures on next page]
[Signature Page to Sixth Amendment to Employment Agreement]
EXECUTIVE | ACTUATE THERAPEUTICS, INC. | ||
/s/ Xxxxxx Xxxxxxx | By: | /s/ Xxxxxx X. Xxxxxxx | |
Xxxxxx Xxxxxxx | Name: | Xxxxxx X. Xxxxxxx | |
Title: | President & CEO |
SEVENTH AMENDMENT TO EMPLOYMENT AGREEMENT
This SEVENTH AMENDMENT TO EMPLOYMENT AGREEMENT (this βAmendmentβ) is entered into as of the 27th day of January, 2023 (the βEffective Dateβ), by and between Actuate Therapeutics, Inc., a Delaware corporation (the βCompanyβ), and Xxxxxx Xxxxxxx, an individual currently residing at [***] (the βExecutiveβ and together with the Company, the βPartiesβ and each individually, a βPartyβ).
WHEREAS, each of the Company and the Executive is a party to that certain Employment Agreement, dated April 15, 2015 (the βOriginal Agreementβ), as amended on February 5, 2016 (the βFirst Amendmentβ), September 28, 2017 (the βSecond Amendmentβ), September 23, 2018 (the βThird Amendmentβ), January 29, 2019 (the βFourth Amendment), September 3, 2019 (the βFifth Amendmentβ), and August 1, 2022 (the βSixth Amendment,β together with the Original Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment and the Fifth Amendment, the βEmployment Agreementβ); and
WHEREAS, in consideration of the services performed by the Executive for and on behalf of the Company to the date hereof, and the services that the Company expects the Executive to perform for and on behalf of the Company from and after the date hereof, the Parties desire to amend certain provisions of the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties do hereby agree and bind themselves as follows. Capitalized terms used, but not defined, in this Amendment, shall have the meanings set forth in the Employment Agreement.
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[signatures on next page]
[Signature Page to Seventh Amendment to Employment Agreement]
EXECUTIVE | ACTUATE THERAPEUTICS, INC. | ||
/s/ Xxxxxx Xxxxxxx | By: | /s/ Xxxxxx X. Xxxxxxx | |
Xxxxxx Xxxxxxx | Name: | Xxxxxx X. Xxxxxxx | |
Title: | President & CEO |
EIGHTH AMENDMENT TO EMPLOYMENT AGREEMENT
This EIGHTH AMENDMENT TO EMPLOYMENT AGREEMENT (this βAmendmentβ) is entered into as of the 12th day of December, 2023 (the βEffective Dateβ), by and between Actuate Therapeutics, Inc., a Delaware corporation (the βCompanyβ), and Xxxxxx Xxxxxxx, an individual currently residing at [***] (the βExecutiveβ and together with the Company, the βPartiesβ and each individually, a βPartyβ).
WHEREAS, each of the Company and the Executive is a party to that certain Employment Agreement, dated April 15, 2015 (the βOriginal Agreementβ), as amended on February 5, 2016 (the βFirst Amendmentβ), September 28, 2017 (the βSecond Amendmentβ), September 23, 2018 (the βThird Amendmentβ), January 29, 2019 (the βFourth Amendment), September 3, 2019 (the βFifth Amendmentβ), August 1, 2022 (the βSixth Amendmentβ), and January 27, 2023 (the βSeventh Amendment,β together with the Original Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment and the Sixth Amendment, the βEmployment Agreementβ); and
WHEREAS, in consideration of the services performed by the Executive for and on behalf of the Company to the date hereof, and the services that the Company expects the Executive to perform for and on behalf of the Company from and after the date hereof, the Parties desire to amend certain provisions of the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties do hereby agree and bind themselves as follows. Capitalized terms used, but not defined, in this Amendment, shall have the meanings set forth in the Employment Agreement.
β(c) β―β―β―β― In addition, in the event the Company is sold at any time on or prior to December 31, 2026 for cash in a transaction valued at or above a per share price of $29.56 (a βSale Transactionβ), immediately prior to the consummation of such Sale Transaction, the Executive shall be granted that number of shares of Common Stock under the Existing Plan such that the Executiveβs aggregate ownership of shares of Common Stock as of the date of such grant (taking into account any shares owned by Executive separate and apart from the shares awarded in the Sale Transaction) is equal to 8.0% of the issued and outstanding shares of Common Stock on a fully diluted basis (the βTransaction Sharesβ). The Transaction Shares shall be fully vested as of the date of grant. For purposes of this Amendment, a Sale Transaction shall include a sale of all of the capital securities of the Company or a sale of substantially all of the Companyβs assets in a single transaction or series of related transactions, or a merger of the Company with another entity regardless of whether the Company is the surviving entity in such transaction.β
3.β―β―β―β―β―β―β―β―β―β―β―β―Additional Incentive and Bonus Awards.
(a)β―β―β―β―β―β―β―β―β―β―β―β―In the event on or before December 31, 2026 the Company receives $100 million or more in Gross Revenue (as hereinafter defined) (the βGlobal Licensing Thresholdβ) pursuant to a licensing arrangement between the Company and any third party, regardless of whether such Gross Revenue is derived within or outside the United States, and provided that such Global Licensing Threshold is met within the twelve months following the effective date of such licensing arrangement, the Company shall grant to the Executive shares of Common Stock under the Existing Plan in an amount such that the aggregate number of shares of Common Stock owned by the Executive (taking into account any shares owned by Executive separate and apart from any shares awarded pursuant to this Section 3(a)) on the date the Global Licensing Threshold is met (the βGlobal Threshold Dateβ) equals 6.0% of the issued and outstanding shares of Common Stock as of the Global Threshold Date on a fully diluted basis (such shares of Common Stock, the βGlobal Licensing Sharesβ). The Global Licensing Shares shall be fully vested as of the date of grant. In addition, in the event the Global Licensing Threshold is achieved, the Executive shall be entitled to receive a cash bonus equal to 50% of the Executiveβs Base Salary (the βGlobal Licensing Bonusβ). The Global Licensing Bonus shall be separate and apart from any other bonus amounts to which Executive shall be entitled under the Employment Agreement and shall be payable in a lump sum as soon as practicable following the Global Threshold Date. For purposes of Sections 3(a) and (b), βGross Revenueβ shall mean any value received by the Company, regardless of the form in which received, including, but not limited to, all royalty payments, revenue share payments, milestone payments, and funds received by the Company to subsidize research and development, product commercialization, regulatory approvals and similar activities.
(b)β―β―β―β―β―β―β―β―β―β―β―β―In the event on or before December 31, 2026 the Company receives $50 million but less than $100 million in Gross Revenue (the βEU Licensing Thresholdβ) pursuant to a licensing arrangement between the Company and any third party for Gross Revenue derived from the European Union, and provided that such EU Licensing Threshold is met within the twelve months following the effective date of such licensing arrangement, the Company shall grant to the Executive shares of Common Stock under the Existing Plan in an amount such that the aggregate number of shares of Common Stock owned by the Executive (taking into account any shares owned by Executive separate and apart from any shares awarded pursuant to this Section 3(b)) on the date the EU Licensing Threshold is met (the βEU Threshold Dateβ) equals 5.0% of the issued and outstanding shares of Common Stock as of the EU Threshold Date on a fully diluted basis (such shares of Common Stock, the βEU Licensing Sharesβ). The EU Licensing Shares shall be fully vested as of the date of grant. In addition, in the event the EU Licensing Threshold is achieved, the Executive shall be entitled to receive a cash bonus equal to 25% of the Executiveβs Base Salary (the βEU Licensing Bonusβ). The EU Licensing Bonus shall be separate and apart from any other bonus amounts to which Executive shall be entitled under the Employment Agreement and shall be payable in a lump sum as soon as practicable following the EU Threshold Date. For the avoidance of doubt, any amounts comprising the EU Licensing Threshold may be counted for the purposes of determining if the Global Licensing Threshold has been met; provided that, the maximum number of shares of Common Stock issuable to the Executive shall not exceed the percentage to which the Executive is entitled pursuant to Section 3(a); and provided further that, the maximum cash bonus payable to the Executive pursuant to Sections 3(a) and 3(b) shall not exceed 75% of the Executiveβs Base Salary in the aggregate.
(c)β―β―β―β―β―β―β―β―β―β―β―β―In the event on or before December 31, 2026 the Company receives more than $10 million in non-dilutive capital (the βNon-Dilutive Revenue Thresholdβ) pursuant to any transaction entered into after the Effective Date (other than a transaction contemplated by Section 3(a) or (b)), the Company shall grant to the Executive shares of Common Stock under the Existing Plan in an amount such that the aggregate number of shares of Common Stock owned by the Executive (taking into account any shares owned by Executive separate and apart from any shares awarded pursuant to this Section 3(c)) on the date the Non-Dilutive Revenue Threshold is met (the βNon-Dilutive Revenue Threshold Dateβ) equals 6.0% of the issued and outstanding shares of Common Stock as of the Non-Dilutive Revenue Threshold Date on a fully diluted basis (such shares of Common Stock, the βNon-Dilutive Revenue Sharesβ). The Non-Dilutive Revenue Shares shall be fully vested as of the date of grant. In addition, in the event the Non-Dilutive Revenue Threshold is achieved, the Executive shall be entitled to receive a cash bonus equal to 50% of the Executiveβs Base Salary (the βNon-Dilutive Revenue Bonusβ). The Non-Dilutive Revenue Bonus shall be separate and apart from any other bonus amounts to which Executive shall be entitled under the Employment Agreement and shall be payable in a lump sum as soon as practicable following the Non-Dilutive Revenue Threshold Date.
(d)β―β―β―β―β―β―β―β―β―β―β―β―In the event the Company closes a Qualified Financing (as hereinafter defined), upon closing of such Qualified Financing:
(i)β―β―β―β―β―β―β―β―β―β―β―β―if the shares in such Qualified Financing are sold at a price less than or equal to $3.71 per share (a βLow Price QFβ), then the Company shall grant to the Executive shares of Common Stock under the Existing Plan in an amount such that the aggregate number of shares of Common Stock owned by the Executive (taking into account any shares owned by Executive separate and apart from any shares awarded pursuant to this Section 3(d)(i)) on the closing date of the Low Price QF (the βLow Price QF Closing Dateβ) equals 4.25% of the issued and outstanding shares of Common Stock as of the Low Price QF Closing Date on a fully diluted basis (such shares of Common Stock, the βLow Price QF Sharesβ). The Low Price QF Shares will be fully vested as of the date of grant;
(ii)β―β―β―β―β―β―β―β―β―β―β―β―if the shares in such Qualified Financing are sold at a price in excess of $3.71 per share (a βHigh Price QFβ), then the Company shall grant to the Executive shares of Common Stock under the Existing Plan in an amount such that the aggregate number of shares of Common Stock owned by the Executive (taking into account any shares owned by Executive separate and apart from any shares awarded pursuant to this Section 3(d)(ii)) on the closing date of the High Price QF (the βHigh Price QF Closing Dateβ) equals up to 5.0% of the issued and outstanding shares of Common Stock as of the High Price QF Closing Date on a fully diluted basis (such shares of Common Stock, the βHigh Price QF Sharesβ). The actual percentage referenced in the preceding sentence shall be determined by multiplying 5.0% by a fraction, the numerator of which is the actual price per share of the shares sold in the High Price QF and the denominator of which is $4.36; provided that, in no event shall this calculation result in a percentage greater than 5.0%. The High Price QF Shares shall be fully vested as of the date of grant.
For purposes of this Section 3(d), βQualified Financingβ shall mean the next transaction or series of related transactions occurring on or before December 31, 2026 pursuant to which the Company issues and sells shares of its common or preferred equity securities in exchange for aggregate gross proceeds of more than $10,000,000, excluding any gross proceeds attributable to sales to Bios Partners L.P. (βBiosβ) or its affiliates (which affiliates shall include, but not be limited to, any limited partners of Bios and/or its affiliated funds).
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[signatures on next page]
[Signature Page to Eighth Amendment to Employment Agreement]
EXECUTIVE | ACTUATE THERAPEUTICS, INC. | ||
/s/ Xxxxxx Xxxxxxx | By: | /s/ Xxxxxx X. Xxxxxxx | |
Xxxxxx Xxxxxxx | Name: | Xxxxxx X. Xxxxxxx | |
Title: | President & CEO |
AMENDED AND RESTATED NINTH AMENDMENT TO EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED NINTH AMENDMENT TO EMPLOYMENT AGREEMENT (this βAmendmentβ) is effective as of the 9th day of May, 2024 (the βEffective Dateβ), by and between Actuate Therapeutics, Inc., a Delaware corporation (the βCompanyβ), and Xxxxxx Xxxxxxx, an individual currently residing at [***] (the βExecutiveβ and together with the Company, the βPartiesβ and each individually, a βPartyβ).
WHEREAS, each of the Company and the Executive is a party to that certain Employment Agreement, dated April 15, 2015 (the βOriginal Agreementβ), as amended on February 5, 2016 (the βFirst Amendmentβ), September 28, 2017 (the βSecond Amendmentβ), September 23, 2018 (the βThird Amendmentβ), January 29, 2019 (the βFourth Amendment), September 3, 2019 (the βFifth Amendmentβ), August 1, 2022 (the βSixth Amendmentβ), January 27, 2023 (the βSeventh Amendmentβ), and December 23, 2023 (the βEighth Amendment,β together with the Original Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, and the Seventh Amendment, the βEmployment Agreementβ); and
WHEREAS, in consideration of the services performed by the Executive for and on behalf of the Company to the date hereof, and the services that the Company expects the Executive to perform for and on behalf of the Company from and after the date hereof, the Parties desire to amend certain provisions of the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties do hereby agree and bind themselves as follows. Capitalized terms used, but not defined, in this Amendment, shall have the meanings set forth in the Employment Agreement.
β(d) In the event the Company closes a Qualified Financing (as hereinafter defined), upon closing of such Qualified Financing:
(i) if the shares in such Qualified Financing are sold at a price less than or equal to $3.71 per share (a βLow Price QFβ), then the Company shall grant to the Executive restricted stock units (βRSUsβ) representing the right to receive shares of Common Stock under the Existing Plan in an amount such that the aggregate number of shares of Common Stock owned by the Executive (following the vesting and settlement of such RSUs and taking into account any shares owned by Executive separate and apart from any shares awarded pursuant to this Section 3(d)(i)) on the closing date of the Low Price QF (the βLow Price QF Closing Dateβ) equals 4.25% of the shares of Common Stock deemed issued and outstanding as of the Low Price QF Closing Date on a fully diluted basis (such shares of Common Stock, the βLow Price QF RSUsβ); and
(ii) if the shares in such Qualified Financing are sold at a price in excess of $3.71 per share (a βHigh Price QFβ), then the Company shall grant to the Executive RSUs representing the right to receive shares of Common Stock under the Existing Plan in an amount such that the aggregate number of shares of Common Stock owned by the Executive (following the vesting and settlement of such RSUs and taking into account any shares owned by Executive separate and apart from any shares awarded pursuant to this Section 3(d)(ii)) on the closing date of the High Price QF (the βHigh Price QF Closing Dateβ) equals up to 5.0% of the Companyβs shares of Common Stock as of the High Price QF Closing Date deemed issued and outstanding on a fully diluted basis (such shares of Common Stock, the βHigh Price QF RSUsβ). The actual percentage referenced in the preceding sentence shall be determined by multiplying 5.0% by a fraction, the numerator of which is the actual price per share of the shares sold in the High Price QF and the denominator of which is $4.36; provided that, in no event shall this calculation result in a percentage greater than 5.0%.
Each of the Low Price QF RSUs and the High Price QF RSUs shall be awarded pursuant to a form of RSU agreement under the Existing Plan that provides that such RSUs vest as follows:
(1) | 50% on the first anniversary of the Low Price QF Closing Date or the High Price QF Closing Date, as applicable; and |
(2) | 50% on the second anniversary of the Low Price QF Closing Date or the High Price QF Closing Date, as applicable. |
Notwithstanding the foregoing, all unvested Low Price QF RSUs and High Price QF RSUs, as applicable, shall vest, and all restrictions on all unvested Low Price QF RSUs and High Price QF RSUs, as applicable, shall lapse, immediately upon:
(A) | a Change in Control, |
(B) | termination of Executiveβs employment by the Company without Cause, |
(C) | termination of the Executiveβs employment by the Executive for Good Reason, or |
(D) | the Executiveβs death or Disability, |
in each case as such capitalized terms are defined in the Employment Agreement.
For purposes of this Section 3(d), βQualified Financingβ shall mean the next transaction or series of related transactions occurring on or before December 31, 2026 pursuant to which the Company issues and sells shares of its common or preferred equity securities in exchange for aggregate gross proceeds of more than $10,000,000, excluding any gross proceeds attributable to sales to Bios Partners L.P. (βBiosβ) or its affiliates (which affiliates shall include, but not be limited to, any limited partners of Bios and/or its affiliated funds).β
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[signatures on next page]
[Signature Page to Ninth Amendment to Employment Agreement]
EXECUTIVE | ACTUATE THERAPEUTICS, INC. | ||
/s/ Xxxxxx Xxxxxxx | By: | /s/ Xxxxxx Xxxxxxx | |
Xxxxxx Xxxxxxx | Name: | Xxxxxx Xxxxxxx | |
Title: | President & CEO |