ENDOCYTE, INC. CHANGE IN CONTROL AND SEVERANCE AGREEMENT
Exhibit 10.13
ENDOCYTE, INC.
This Change in Control and Severance Agreement (the “Agreement”) is made and entered into by
and between _____________ (“Executive”) and Endocyte, Inc., a Delaware corporation (the “Company”),
effective as of ______________, 2010 (the “Effective Date”).
RECITALS
1. It is possible that the Company could terminate Executive’s employment with the Company and
it is expected that the Company from time to time will consider the possibility of an acquisition
by another company or other change in control. The Board of Directors of the Company (the “Board”)
recognizes that such considerations can be a distraction to Executive and can cause Executive to
consider alternative employment opportunities. The Board has determined that it is in the best
interests of the Company and its stockholders to assure that the Company will have the continued
dedication and objectivity of Executive, notwithstanding the possibility, threat or occurrence of
such a termination of employment or the occurrence of a Change in Control (as defined herein) of
the Company.
2. The Board believes that it is in the best interests of the Company and its stockholders to
provide Executive with an incentive to continue his employment and to motivate Executive to
maximize the value of the Company for the benefit of its stockholders.
3. The Board believes that it is imperative to provide Executive with certain severance
benefits upon Executive’s termination of employment and with certain additional benefits upon a
Change in Control. These benefits will provide Executive with enhanced financial security,
incentive and encouragement to remain with the Company.
4. Certain capitalized terms used in the Agreement are defined in Section 6 below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto
agree as follows:
1. This Agreement will have an initial term of three (3) years commencing on the Effective
Date (the “Initial Term”). On the third anniversary of the Effective Date, this Agreement will
renew automatically for additional one (1) year terms (each an “Additional Term”), unless either
party provides the other party with written notice of non-renewal at least sixty (60) days prior to
the date of automatic renewal. Notwithstanding the foregoing provisions of this paragraph, if a
Change in Control occurs when there are fewer than twelve (12) months remaining during the Initial
Term or an Additional Term, the term of this Agreement will extend automatically through the date
that is twelve (12) months following the effective date of the Change in Control. If Executive
becomes entitled to benefits under Section 3 during the term of this Agreement, the Agreement will
not
terminate until all of the obligations of the parties hereto with respect to this Agreement
have been satisfied.
2. At-Will Employment. The Company and Executive acknowledge that Executive’s
employment is and will continue to be at-will, as defined under applicable law.
3. Severance Benefits.
(a) Termination Without Cause or Other than Death or Disability, or Resignation for Good
Reason Prior to a Change in Control or After Twelve Months Following a Change in Control. If
the Company terminates Executive’s employment with the Company for a reason other than Cause or
Executive’s death or Disability, or if Executive resigns for Good Reason, and such termination
occurs prior to a Change in Control or after twelve (12) months following a Change in Control,
then, in each case subject to Section 4, Executive will receive the following severance benefits
from the Company:
(i) Severance Payment. The Company will pay Executive a lump sum payment in an amount
equal to seventy-five (75%) of Executive’s base salary, as in effect immediately prior to
Executive’s termination of employment (unless such termination occurs as a result of clause (ii) of
the definition of “Good Reason” under Section 6(d) below, in which case the amount will be equal to
Executive’s base salary as in effect immediately prior to such reduction), less applicable
withholdings, payable within thirty (30) days following the date of Executive’s termination of
employment.
(ii) Equity. The unvested portion of Executive’s then outstanding equity awards (the
“Awards”) covering shares of the Company’s common stock that otherwise would have vested over a
nine (9) month period following such termination pursuant to the vesting schedule set forth in the
award agreement will immediately vest and, if applicable, become exercisable.
If, however, an Award is to vest, and/or the amount of the Award to vest, is to be determined,
in part or in whole, based on the achievement of performance criteria, then the Award will vest as
to the amount of the Award that would have vested had Executive remained employed through such nine
(9) month period subject to the determination of the achievement of the performance criteria (with
the amount of the Award vesting based upon the extent to which the performance criteria was so
determined to have been achieved). The settlement of any Awards that vest pursuant to the
preceding sentence shall take place at the time of the determination as to what extent the
performance criteria for the performance period have been achieved.
The Awards will remain exercisable, to the extent applicable, following Executive’s
termination for the period prescribed in the respective equity plan and agreement for each Award.
(iii) Continued Employee Benefits. If Executive elects continuation coverage pursuant
to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) for Executive
and Executive’s eligible dependents (as applicable), within the time period prescribed pursuant to
COBRA, the Company will reimburse Executive for, or pay directly
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on Executive’s behalf, the COBRA premiums for such coverage (at the coverage levels in effect
immediately prior to Executive’s termination of employment) until the earlier of (A) a period of
nine (9) months from the last date of employment of the Executive with the Company, or (B) the date
upon which Executive and/or Executive’s eligible dependents becomes covered under similar plans.
(b) Termination without Cause or Resignation for Good Reason Within Twelve Months
Following a Change in Control. If within twelve (12) months following a Change in Control, the
Company terminates Executive’s employment with the Company for a reason other than Cause or
Executive’s death or Disability or Executive resigns for Good Reason, then, in each case subject to
Section 4, Executive will receive the following severance from the Company:
(i) Base Salary Severance. Executive will receive a lump sum severance payment equal
to one hundred percent (100%) of Executive’s base salary as in effect immediately prior to
Executive’s termination of employment (unless the termination occurs as a result of clause (ii) of
the definition of “Good Reason” under Section 6(d) below, in which case the amount will be equal to
Executive’s annual base salary in effect prior to such reduction) or, if greater, at the level in
effect immediately prior to the Change in Control, less applicable withholdings, payable within
thirty (30) days following the date of Executive’s termination of employment.
(ii) Bonus Severance. Executive will receive a lump sum severance payment equal to
one hundred percent (100%) of Executive’s target bonus as in effect for the fiscal year in which
Executive’s termination of employment occurs or, if greater, for the fiscal year in which the
Change in Control occurs, less applicable withholdings, payable within thirty (30) days following
the date of Executive’s termination of employment.
(iii) Equity. one hundred percent (100%) of the unvested portion of the Awards will
immediately vest and, if applicable, become exercisable as of the date of such termination.
If, however, an Award is to vest and/or the amount of the Award to vest is to be determined
based, in part or in whole, on the achievement of performance criteria, then the equity award will
vest as to one hundred percent (100%) of the unvested portion of the Award assuming the performance
criteria had been achieved at target levels for the relevant performance period(s).
The Awards will remain exercisable, to the extent applicable, following Executive’s
termination for the period prescribed in the respective equity plan and agreement for each Award.
(iv) Continued Employee Benefits. If Executive elects continuation coverage pursuant
to COBRA for Executive and Executive’s eligible dependents (as applicable), within the time period
prescribed pursuant to COBRA, the Company will reimburse Executive for, or pay directly on
Executive’s behalf, the COBRA premiums for such coverage (at the coverage levels in effect
immediately prior to Executive’s termination of employment) until the earlier of (A) a period of
twelve (12) months from the last date of employment of the Executive with the
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Company, or (B) the date upon which Executive and/or Executive’s eligible dependents becomes
covered under similar plans.
(c) Voluntary Resignation Without Good Reason; Termination for Cause; Death or
Disability. If Executive’s employment with the Company terminates voluntarily by Executive
(except upon resignation for Good Reason), for Cause by the Company or due to Executive’s death or
Disability, then (i) all vesting will terminate immediately with respect to Executive’s outstanding
Awards, (ii) all payments of compensation by the Company to Executive hereunder will terminate
immediately (except as to amounts already earned), and (iii) Executive will only be eligible for
severance benefits in accordance with the Company’s established policies, if any, as then in
effect.
(d) Exclusive Remedy. In the event of a termination of Executive’s employment as set
forth in Sections 3(a) and 3(b) of this Agreement, the provisions of Section 3 are intended to be
and are exclusive and in lieu of and supersede any other rights or remedies to which Executive or
the Company otherwise may be entitled, whether at law, tort or contract or in equity, or under this
Agreement (other than the payment of accrued but unpaid wages, as required by law, and any
unreimbursed reimbursable expenses). Executive will be entitled to no benefits, compensation or
other payments or rights upon termination of employment other than those benefits expressly set
forth in Section 3 of this Agreement.
4. Conditions to Receipt of Severance
(a) Release of Claims Agreement. The receipt of any severance payments or benefits
pursuant to this Agreement is subject to Executive signing and not revoking a separation agreement
and release of claims in a form acceptable to the Company (the “Release”), which must become
effective and irrevocable no later than the sixtieth (60th) day following Executive’s
termination of employment (the “Release Deadline”). If the Release does not become effective and
irrevocable by the Release Deadline, Executive will forfeit any right to severance payments or
benefits under this Agreement. In no event will severance payments or benefits be paid or provided
until the Release actually becomes effective and irrevocable.
(i) In the event the termination occurs at a time during the calendar year when the Release
could become effective in the calendar year following the calendar year in which Executive’s
termination of employment occurs (whether or not it actually becomes effective in the following
year), then any severance payments and benefits under Section 3 of this Agreement that would be
considered Deferred Payments (as defined in Section 4(c) below) will be paid on the first payroll
date to occur during the calendar year following the calendar year in which such termination
occurs, or, if later, (A) the date the Release actually becomes effective, (B) such time as
required by the payment schedule applicable to each payment or benefit as set forth in Section
4(a)(ii), or (C) such time as required by Section 4(c).
(ii) No severance payments and benefits under Section 3 of this Agreement will be paid or
provided until the Release becomes effective and irrevocable, and any such severance payments and
benefits otherwise payable between the date of Executive’s termination of employment and the date
the Release becomes effective and irrevocable will be paid on the date the Release becomes
effective and irrevocable.
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(b) Confidential Information and Invention Assignment Agreements. Executive’s receipt
of any payments or benefits under Section 3 will be subject to Executive continuing to comply with
the terms of any confidential information and invention assignment agreement executed by Executive
in favor of the Company and the provisions of this Agreement.
(c) Section 409A.
(i) Notwithstanding anything to the contrary in this Agreement, no severance payments or
benefits payable to Executive, if any, pursuant to this Agreement that, when considered together
with any other severance payments or separation benefits, is considered deferred compensation under
Internal Revenue Code Section 409A (together, the “Deferred Payments”) will be payable until
Executive has a “separation from service” within the meaning of Section 409A (“Section 409A”) of
the Internal Revenue Code of 1986, as amended (the “Code”). Similarly, no severance payable to
Executive, if any, pursuant to this Agreement that otherwise would be exempt from Section 409A
pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be payable until Executive has a
“separation from service” within the meaning of Section 409A.
(ii) Further, if Executive is a “specified employee” within the meaning of Section 409A at the
time of Executive’s separation from service (other than due to death), any Deferred Payments that
otherwise are payable within the first six (6) months following Executive’s separation from service
will become payable on the first payroll date that occurs on or after the date six (6) months and
one (1) day following the date of Executive’s separation from service. All subsequent Deferred
Payments, if any, will be payable in accordance with the payment schedule applicable to each
payment or benefit. Notwithstanding anything herein to the contrary, in the event of Executive’s
death following Executive’s separation from service but prior to the six (6) month anniversary of
Executive’s separation from service (or any later delay date), then any payments delayed in
accordance with this paragraph will be payable in a lump sum as soon as administratively
practicable after the date of Executive’s death and all other Deferred Payments will be payable in
accordance with the payment schedule applicable to each payment or benefit. Each payment and
benefit payable under the Agreement is intended to constitute a separate payment for purposes of
Section 1.409A-2(b)(2) of the Treasury Regulations.
(iii) Any amount paid under this Agreement that satisfies the requirements of the “short-term
deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations will not constitute
Deferred Payments for purposes of clause (i) above. Any amount paid under this Agreement that
qualifies as a payment made as a result of an involuntary separation from service pursuant to
Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit
(as defined below) will not constitute Deferred Payments for purposes of clause (i) above.
(iv) The foregoing provisions are intended to comply with, or be exempt from, the requirements
of Section 409A so that none of the severance payments and benefits to be provided under the
Agreement will be subject to the additional tax imposed under Section 409A, and any ambiguities
herein will be interpreted to so comply or be exempt. Executive and the Company agree to work
together in good faith to consider amendments to the Agreement and to take such reasonable actions
which are necessary, appropriate or desirable to avoid imposition of any
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additional tax or income recognition prior to actual payment to Executive under Section 409A.
In no event will the Company reimburse Executive for any taxes that may be imposed on Executive as
result of Section 409A.
5. Limitation on Payments. In the event that the severance and other benefits
provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute
payments” within the meaning of Section 280G of the Code and (ii) but for this Section 5, would be
subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits
under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no
portion of such severance benefits being subject to excise tax under Section
4999 of the Code,
whichever of the foregoing amounts, taking into account the applicable federal, state and local
income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an
after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some
portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction
in severance and other benefits constituting “parachute payments” is necessary so that benefits are
delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash
payments; (ii) cancellation of awards granted “contingent on a change in ownership or control”
(within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity
awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity
award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse
order of the date of grant of Executive’s equity awards.
Unless the Company and Executive otherwise agree in writing, any determination required under
this Section 5 will be made in writing by the Company’s independent public accountants immediately
prior to the Change in Control (the “Accountants”), whose determination will be conclusive and
binding upon Executive and the Company for all purposes. For purposes of making the calculations
required by this Section 5, the Accountants may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the
application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the
Accountants such information and documents as the Accountants may reasonably request in order to
make a determination under this Section. The Company will bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated by this Section 5. If a
reduction in severance and other benefits constituting “parachute payments” is necessary so that
benefits are delivered to a lesser extent, reduction will occur in the following order: (1)
reduction of the cash severance payments; (2) cancellation of accelerated vesting of equity awards;
and (3) reduction of continued employee benefits. In the event that the accelerated vesting of
equity awards is to be cancelled, such vesting acceleration will be cancelled in the reverse
chronological order of the Executive’s equity awards’ grant dates.
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6. Definition of Terms. For purposes of this Agreement, the following terms referred
to in this Agreement will have the following meanings:
(a) Cause. “Cause” means (i) an act of personal dishonesty taken by Executive in
connection with his or her responsibilities as an employee and intended to result in Executive’s
substantial personal enrichment; (ii) Executive being convicted of, or pleading no contest or
guilty to, a felony or misdemeanor that the Company reasonably believes has had or will have a
material detrimental effect on the Company; (iii) a willful act by Executive that constitutes gross
misconduct and that is injurious to the Company; (iv) following delivery to Executive of a written
demand for performance that describes the basis for the Company’s reasonable belief that Executive
has not substantially performed his or her duties, Executive’s continued violations of his or her
obligations to the Company that are demonstrably willful and deliberate on Executive’s part; and
(v) Executive’s material violation of any written employment policy or standard of conduct of the
Company.
(b) Change in Control. “Change in Control” means the occurrence of any of the
following:
(i) A change in the ownership of the Company which occurs on the date that any one person, or
more than one person acting as a group (“Person”), acquires ownership of the stock of the Company
that, together with the stock held by such Person, constitutes more than 50% of the total voting
power of the stock of the Company; provided, however, that for purposes of this subsection (i), the
acquisition of additional stock by any one Person, who is considered to own more than 50% of the
total voting power of the stock of the Company will not be considered a Change in Control; or
(ii) A change in the effective control of the Company which occurs on the date that a majority
of members of the Board (each, a “Director”) is replaced during any twelve (12) month period by
Directors whose appointment or election is not endorsed by a majority of the members of the Board
prior to the date of the appointment or election. For purposes of this subsection (ii), if any
Person is considered to be in effective control of the Company, the acquisition of additional
control of the Company by the same Person will not be considered a Change in Control; or
(iii) A change in the ownership of a substantial portion of the Company’s assets which occurs
on the date that any Person acquires (or has acquired during the twelve (12) month period ending on
the date of the most recent acquisition by such person or persons) assets from the Company that
have a total gross fair market value equal to or more than 50% of the total gross fair market value
of all of the assets of the Company immediately prior to such acquisition or acquisitions;
provided, however, that for purposes of this subsection (iii), the following will not constitute a
change in the ownership of a substantial portion of the Company’s assets: (A) a transfer to an
entity that is controlled by the Company’s stockholders immediately after the transfer, or (B) a
transfer of assets by the Company to: (1) a stockholder of the Company (immediately before the
asset transfer) in exchange for or with respect to the Company’s stock, (2) an entity, 50% or more
of the total value or voting power of which is owned, directly or indirectly, by the Company, (3) a
Person, that owns, directly or indirectly, 50% or more of the total value or voting power of all
the outstanding stock of the Company, or (4) an entity, at least 50% of the total value or voting
power of
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which is owned, directly or indirectly, by a Person described in this subsection (iii)(B)(3).
For purposes of this subsection (iii), gross fair market value means the value of the assets of the
Company, or the value of the assets being disposed of, determined without regard to any liabilities
associated with such assets.
For purposes of this definition of Change in Control, persons will be considered to be acting
as a group if they are owners of a corporation that enters into a merger, consolidation, purchase
or acquisition of stock, or similar business transaction with the Company.
(c) Disability. “Disability” means Executive is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a continuous period of not less than
twelve (12) months.
(d) Good Reason. “Good Reason” means Executive’s termination of employment within
ninety (90) days following the expiration of any cure period (discussed below) following the
occurrence of one or more of the following, without Executive’s express written consent: (i) a
material reduction of Executive’s duties, position, or responsibilities, relative to Executive’s
duties, position, or responsibilities in effect immediately prior to such reduction, unless
Executive is provided with a comparable position (i.e., a position of equal or greater
organizational level, duties, authority, compensation and status), provided, however, that a
reduction in duties, position, or responsibilities solely by virtue of the Company being acquired
and made part of a larger entity (as, for example, when the Chief Executive Officer of the Company
remains as such following a Change of Control but is not the Chief Executive Officer of the
acquiring corporation) will not constitute “Good Reason”; (ii) a material reduction by the Company
in Executive’s annualized base pay as in effect immediately prior to such reduction; (iii) the
relocation of Executive’s principal place of performing his or her duties as an employee of the
Company by more than fifty (50) miles; or (iv) the failure of the Company to obtain the assumption
of this Agreement by a successor. In order for an event to qualify as Good Reason, Executive must
not terminate employment with the Company without first providing the Company with written notice
of the acts or omissions constituting the grounds for “Good Reason” within ninety (90) days of the
initial existence of the grounds for “Good Reason” and a reasonable cure period of not less than
thirty (30) days following the date of such notice.
(e) Section 409A Limit. “Section 409A Limit” means the lesser of two (2) times: (i)
Executive’s annualized compensation based upon the annual rate of pay paid to Executive during the
Executive’s taxable year preceding the Executive’s taxable year of Executive’s termination of
employment as determined under, and with such adjustments as are set forth in, Treasury Regulation
1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with respect thereto; or
(ii) the maximum amount that may be taken into account under a qualified plan pursuant to Section
401(a)(17) of the Code for the year in which Executive’s employment is terminated.
7. Successors.
(a) The Company’s Successors. Any successor to the Company (whether direct or
indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or
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substantially all of the Company’s business and/or assets will assume the obligations under
this Agreement and agree expressly to perform the obligations under this Agreement in the same
manner and to the same extent as the Company would be required to perform such obligations in the
absence of a succession. For all purposes under this Agreement, the term “Company” will include
any successor to the Company’s business and/or assets which executes and delivers the assumption
agreement described in this Section 7(a) or which becomes bound by the terms of this Agreement by
operation of law.
(b) Executive’s Successors. The terms of this Agreement and all rights of Executive
hereunder will inure to the benefit of, and be enforceable by, Executive’s personal or legal
representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
8. Notice.
(a) General. Notices and all other communications contemplated by this Agreement will
be in writing and will be deemed to have been duly given when personally delivered or when mailed
by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of
Executive, mailed notices will be addressed to him or her at the home address which he or she most
recently communicated to the Company in writing. In the case of the Company, mailed notices will
be addressed to its corporate headquarters, and all notices will be directed to the General Counsel
of the Company.
(b) Notice of Termination. Any termination by the Company for Cause or by Executive
for Good Reason or as a result of a voluntary resignation will be communicated by a notice of
termination to the other party hereto given in accordance with Section 8(a) of this Agreement.
Such notice will indicate the specific termination provision in this Agreement relied upon, will
set forth in reasonable detail the facts and circumstances claimed to provide a basis for
termination under the provision so indicated, and will specify the termination date (which will be
not more than thirty (30) days after the giving of such notice). The failure by Executive to
include in the notice any fact or circumstance which contributes to a showing of Good Reason will
not waive any right of Executive hereunder or preclude Executive from asserting such fact or
circumstance in enforcing Executive’s rights hereunder.
9. Miscellaneous Provisions.
(a) No Duty to Mitigate. Executive will not be required to mitigate the amount of any
payment contemplated by this Agreement, nor will any such payment be reduced by any earnings that
Executive may receive from any other source.
(b) Waiver. No provision of this Agreement will be modified, waived or discharged
unless the modification, waiver or discharge is agreed to in writing and signed by Executive and by
an authorized officer of the Company (other than Executive). No waiver by either party of any
breach of, or of compliance with, any condition or provision of this Agreement by the other party
will be considered a waiver of any other condition or provision or of the same condition or
provision at another time.
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(c) Headings. All captions and section headings used in this Agreement are for
convenient reference only and do not form a part of this Agreement.
(d) Entire Agreement. This Agreement constitutes the entire agreement of the parties
hereto and supersedes in their entirety all prior representations, understandings, undertakings or
agreements (whether oral or written and whether expressed or implied) of the parties with respect
to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of
this Agreement will be binding unless in writing and signed by duly authorized representatives of
the parties hereto and which specifically mention this Agreement.
(e) Choice of Law. The validity, interpretation, construction, and performance of
this Agreement will be governed by the laws of the State of Indiana (with the exception of its
conflict of laws provisions). Any claims or legal actions by one party against the other arising
out of the relationship between the parties contemplated herein (whether or not arising under this
Agreement) will be commenced or maintained in any state or federal court located in Tippecanoe
County, Indiana, and Executive and the Company hereby submit to the jurisdiction and venue of any
such court.
(f) Severability. The invalidity or unenforceability of any provision or provisions
of this Agreement will not affect the validity or enforceability of any other provision hereof,
which will remain in full force and effect.
(g) Withholding. All payments made pursuant to this Agreement will be subject to
withholding of applicable income and employment taxes.
(h) Counterparts. This Agreement may be executed in counterparts, each of which will
be deemed an original, but all of which together will constitute one and the same instrument.
o O o
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the
Company by its duly authorized officer, as of the day and year set forth below.
| COMPANY | ENDOCYTE, INC. |
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| By: | ||||
| Title: | ||||
| EXECUTIVE | By: | |||
| Title: | ||||
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